than statute law seems to be in daily use. Surprisingly, legal doctrine – and in particular legal textbooks – are used daily by 16, 1 percent of the jurists included in the studies.8 When the scope of the question was broadened to comprise sources used at least once a week, an astonishing 58.5 percent of jurists admitted to consulting legal textbooks at least once a week.9 10 Legal periodicals came in at surprising fifth place, only narrowly beaten by case law collections and preparatory works.11 No one, least of all legal scholars, would have anticipated such an outrageous outcome. These results are, as far as the standing of legal doctrine is concerned, clearly at odds with conventional wisdom.The view held by most legal scholars at the time was that doctrinal writing on law, irrespective of type, occupies a lowly position within the doctrine of legal sources. According to, amongst others, Aleksander Peczenik, sources of law should be taken into consideration according to the corresponding modal auxiliary; statutes must be observed – though not necessarily followed – while precedents and preparatory works should be considered. Legal doctrine, however, may be taken into consideration.Other legal scholars, including Jan Hellner, have argued that legal doctrine doesn’t qualify as a source of law at all.Texts written by legal scholars may contain more or less persuasive legal arguments, but are no more binding than the opinions of every Tom, Dick and Harry. If the figures are to be trusted, legal scholars and the legal profession do not see eye to eye on this issue. The statistics reveal another remarkable inconsistency between theory and practice. Most legal scholars routinely arrange sources of law hierarchically, in order to resolve any conflicts that might arise between individual sources of law. Statute law will, for instance, invariably trump case law and even preparatory works, whereas legal doctrine isn’t presumed to trump anything. In reality, however, jurists seem to work their way through legal sources in an organic – even holistic – way. Legal sources are treated like individual pieces of a giant jigsaw puzzle, rather than warring legal arguments. In clear defiance of the re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 298 8 Sandgren, ibidem, p 596. 9 Ibidem. 10 In fact, according to the results of the questionnaire,80percent of jurists study legal doctrine at least once a week, making doctrinal writing the most extensively used source of law, see Sandgren, ibidem, p 598. 11 Ibidem. P596.
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