Law's Sources

Abstract Law has sources—sources of actual law, and sources of information and opinion about law. Familiarity with these so-called primary and secondary sources is integral to law-application, and to making the strongest case possible for how particular laws should be interpreted and understood. Yet law’s sources raise thorny questions. Are the norms that courts enforce as law always attributable to primary sources? Can a bright-line distinction be drawn between what judges apply as law and what they rely on when interpreting what they apply? When, and how, do secondary sources get upgraded so as to acquire primary status? Are some secondary sources more amenable to being upgraded than others? Do some sources have neither primary nor secondary status? How is scholarship used as a secondary source? This study considers these—and other—questions, not simply as matters of legal theory but as aspects of judicial decision-making and practical legal reasoning.