Books of authority

On the Continent the writings of legal authors form an important source of law. In England, in accordance with the tradition that the law is to be sought in judicial decisions, their writings have in the past been treated with comparatively little respect. They have been cited in court, if citied at all, rather by way of evidence of what the law is that as independent sources from which it may be derived.

This general rule has, however, always been subject to certain recognized exceptions; for there are certain ‘books of authority’, written by authors of outstanding eminence, which may not only be cited as independent sources in themselves for the law of their times but which also carry a weight of authority almost equal to that of precedents.

In modern times the established tradition appears to have been breaking down, because many textbooks are now in practice constantly cited in the courts, though only the best of them are likely to command attention. The reason for this departure from the established tradition is probably that in comparatively recent years a large increase in the popularity of the study of English law in all our major universities has done much to improve the quality of legal writing and to increase the volume of legal literature. Thus, today books of authority are commonly referred to in court and even works of living authors are now often cited, though by a rule of etiquette, counsel who refers to works of the latter category should not cite them directly as authorities, but should request the leave of the court to ‘adopt’ the arguments which they contain as part of his own submissions. In practice, however, even this latter etiquette is now not always observed.

Vocabulary

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