Vogenauer Empire of Light2

of all, the emphatically academic and scientific spirit of legal scholarship with its struggle for rationality, systematic coherence, logical consistency, building on first principles, obsession with taxonomy, abstractness, precision and clarity of concepts still characterizes German legal culture, and the ‘acute analysis of problems, separation of issues, and elaboration of clearly defined and consistently used terminology have been the work of the professors’.111 Sure, apart from the strife for consistency within the legal system as a whole, there is a desire to do justice, but this would rather be pursued with typical constellations in mind than with regard to single instances. In order to work successfully within this system every practising lawyer and even the legislator has to know its co-ordinates, its basic structure and its guiding principles. He has to rely on the repositories of principle, the professors. Here it becomes obvious that, for better or for worse, legal scholarship is still very much under the spell of 19th-century ‘legal science’.112 The scientific approach of German legal scholarship can easily be contrasted to the traditional approach of English law with its virtual absence of clear divisions of the law and a ‘tradition of working disorder’ where lawyers categorized and compartmentalized only at a relatively low level of abstraction;113 where the first and, for a long time, the last person who seriously attempted to draw up a ‘map of the law’ was Blackstone;114 where the average lawyer is probably still content ‘to use a concept of half-known outline as soon as he knows it is capable of performing the actual limited task he wants it to perform’, so that ‘concepts are much more like human beings whose personalities become known only by experience and may easily change in the course of time’;115 and where, up to this day, it is still proudly affirmed that an area such as tort law neither has a normative theory or a purpose since: ‘Tort is what is in the tort books, and the only thing holding it together is their binding’.116

Another characteristic feature of German legal scholarship is its ‘non-positivist’ or critical spirit. Legal positivism is widely rejected. ‘The law’ is conceived to be more than just the entirety of those rules and principles that can be derived from the acknowledged and authoritative sources of law. If there is a tendency towards positivism it can be seen in the idea that every answer is somewhere implicit in the legal ‘system’. But the system and the rules and principles contained within it are not considered to be immutable. They are to be constantly refined and improved, and this is not only done by legislators and judges. Legal scholarship has the function to contribute to this process. This is considered to be entirely legitimate because, in accordance with the non-positivist approach, suggestions as to the improvement of the law are not necessarily regarded as

111M. Rheinstein, ‘The Approach to German Law’ (1958–59) 34 Indiana LJ 546 at 553.

112cf. Vogenauer, above n 3 at 499–500.

113Tony Weir, ‘The Common Law System’ in International Encyclopedia of Comparative Law, vol. II ch. II (1974) at paras 82–84.

114Commentaries on the Laws of England, vol I (1765) at 35.

115Frederick Henry Lawson, A Common Lawyer Looks at the Civil Law (1953) at 66.

116Tony Weir, An Introduction to Tort Law (2nd edn, 2006) at ix.

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mere legal policy, but they belong (in Austinian terminology) to the ‘Province of Jurisprudence’ properly so called. Thus legal academics are expected to criticize the existing law, and they live up to this expectation with a certain relish. German authors are, in general, much bolder in their criticism of judicial opinions than their counterparts in this country have traditionally been.117 It would be highly unusual for a German academic to adopt the position of Sir William Holdsworth, Vinerian Professor between 1922 and 1944, who felt that ‘the law teacher ought not to encourage criticisms of the judiciary in an age of scepticism’ and gave the impression that he wanted to cast himself into the dust whenever a judge approached.118 Their critical attitude vis-à-vis the judiciary is, of course, made easier for them because of the non-bindingness of precedent which permits jurists to criticize and even disregard judicial dicta in putting forward their own account of the law. Judges may take comfort from the fact that the legislator is not necessarily treated in a more benign fashion. A good example can be found in a law journal article on the Civil Code’s provisions on the revocation of contracts which appeared only a couple of months after the aforementioned reform of the law of obligations.119 ‘With all the respect due to the authority of legislation in a democratic state under the rule of law’, it read, ‘the weaknesses of the new law of revocation allow us not to regard the latter as so sacrosanct that its provisions would have to be interpreted literally if its purpose and system point to a different solution ... This allows for a correct reordering of the new rule’.120

The critical character of legal writing is closely related to another hallmark of German legal scholarship, its ‘pre-emptive’, ‘anticipatory’, ‘constructive’, creative or proactive spirit. This is really just another facet of the general rejection of legal positivism. If ‘the law’ is more than the entirety of the rules and principles in force, it is as much a genuinely legal argument (as opposed to a mere argument from legal policy) to suggest improvements by developing the law in entirely new directions, as it is to criticize the existing law. Legal scholarship therefore constantly looks out for legal problems which have not yet been settled by legislation or by case law, and it even deals with purely hypothetical questions. There is widespread agreement that scholarship should be both descriptive and normative,121 thus providing the legislator and the courts with solutions

117A good example is provided by the devastating critique by Friedrich Schoch, ‘Staatliche Informationspolitik und Berufsfreiheit—Das Urteil des BVerwG vom 18. 10. 1990 (3 C 2/88) im Spiegel der Rechtsordnung’ (1991) 106 Deutsches Verwaltungsblatt 667.

118Robert B. Stevens, Law and Politics: The House of Lords as a Judicial Body 1800–1976 (1979) at 194.

119See text to n 23, above.

120Jürgen Kohler, ‘Rücktrittsrechtliche Bereicherungshaftung’ (2002) 57 Juristenzeitung 682 at 684.

121See already Karl Binding, ‘Strafgesetzgebung, Strafjustiz und Strafrechtswissenschaft in ihrem normalen Verhältnis zu einander’ (1881) 1 Zeitschrift für die gesamte Strafrechtswissenschaft 4 at 18 and, more recently, Ralf Dreier, ‘Zum Selbstverständnis der Jurisprudenz als Wissenschaft’ (1971) 2 Rechtstheorie 37 at 44–7; Klaus Adomeit, ‘Zivilrechtstheorie und Zivilrechtsdogmatik’ (1972) 2 Jahrbuch für Rechtssoziologie und Rechtstheorie 503 at 504–7; Josef Esser, ‘Dogmatik zwischen Theorie und Praxis’ in F. Baur (ed.), Funktionswandel der Privatrechtsinstitutionen: Festschrift für Ludwig Raiser zum 70. Geburtstag (1974) 517 at 518, 523; Alexy, above n 92 at 251; Franz Bydlinski, Juristische Methodenlehre und Rechtsbegriff (2nd edn, 1991) at 10–11, 14; Jürgen Basedow, ‘Anforderungen an eine europäische Zivilrechtsdogmatik’ in R. Zimmermann (ed.), Rechtsgeschichte und Zivilrechtsdogmatik (1999) 79 at 84, 90.

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if they wish to take them up. Academics do not confine themselves to a reactive exposition, analysis, systematization, rationalization or even critique of isolated statutes and cases, and the distillation of principles from them. They rather follow the pattern of the traditional continental jurist who, according to F.H. Lawson, regarded ‘himself as an independent agent who was entitled to state the law in his own way and to give it the best possible form’.122 There is a constant attempt to anticipate new problems and to find an innovative solution before these problems even arise. Admittedly, the 19th-century idea that the legal system somehow contains an answer to every potential legal issue which may arise in the future, and that every solution is already latent within the system, is still alive and well. As a consequence, scholarly creations are often cloaked as doctrinal ‘discoveries’, reminding the common lawyer of the so-called ‘declaratory theory of law’ which English judges employed mainly in the 19th century: by maintaining that they found the answers to all legal problems in the ‘seamless web’ of the common law and only ‘declared’ the law they were able to deny any creative lawmaking function for themselves.123 However, even in 19th-century Germany it was acknowledged that the system is itself of a constructive nature, that it is constantly developed further and that legal scholarship has to play a major role in this exercise.124 This creative approach still prevails. It is in marked contrast to the traditional situation in this country, where Maitland could regret that ‘we’ do not have ‘any turn for juristic speculation’125 and, until fairly recently, it could be said that ‘[o]thers—especially judges, of course—make the law; academics simply read it up, and then reduce it to some shape or order’.126

The difference becomes apparent by looking at the major textbooks in the different jurisdictions. Many a section in an English textbook closes with the words: ‘It remains to be seen how the courts will resolve this question’. The German version typically runs: ‘This problem has to be solved in the following way for the following reasons: ...’. Casenotes in German law journals frequently include a suggestion as to the future development of the law, too. The courts are, as it has been said, in no way bound to follow such propositions. Still, the mere fact that proposals for the solution of a novel legal issue are readily available when the issue arises for the first time in litigation makes it highly probable that the courts will at least take account of them. The reform of the law of obligations provides, yet again, a good example. It immediately generated a flood of publications

122Frederick Henry Lawson, The Rational Strength of English Law (1951) at 27.

123cf. Rupert Cross and James W. Harris, Precedent in English Law (4th edn, 1991) at 27–34.

124cf. Vogenauer, above n 3 at 499–500, with further references to the tradition of ascribing a creative function to legal scholarship at 481–2, 486, 490, 494.

125Frederick William Maitland, ‘Trust and Corporation’ in H.A.L. Fisher (ed.), The Collected Papers of Frederic William Maitland, vol I (1911) 321 at 356.

126Patrick S. Atiyah, Pragmatism and Theory in English Law (1987) at 37. Cf. also, Frederick Henry Lawson, ‘Doctrinal Writing: A Foreign Element in English Law’ in F.H. Lawson, Many Laws: Selected Essays, vol I (1977) at 207; A.W.B. Simpson, ‘The Survival of the Common Law System’ in A.W.B. Simpson, Legal Theory and Legal History: Essays on the Common Law (1987) 383 at 395. For comparative views on this feature of English legal scholarship see Patrick S. Atiyah and Robert S. Summers, Form and Substance in Anglo-American Law (1987) at 398– 403; Vogenauer, above n 108 at 923–5; Braun, above n 6, at 216–20.

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which appeared long before the first court had an opportunity to decide on the meaning of any of the new provisions. A similar situation prevails in relation to the recent Takeover Act. It triggered the publication of some ten academic commentaries—which may seem somewhat disproportionate given the fact that Germany does not, on average, see more than twenty takeovers a year, two of which are hostile. The idea that one should cross the bridge when one comes to it is definitely alien to German legal scholarship. The aim is rather to have a most solid bridge in place, just in case anyone might wish to cross it one day. Academics therefore do not restrict their function to describing the law and making predictions as to what the courts will do in fact, but they perceive it to be an important part of their role to give directions as to what the courts ought to do.

At the same time, German legal scholarship has, on the whole, retained its rather ‘black-letterish’, ‘middle ground’ or doctrinal spirit. It has not lost contact with legal doctrine, and a disjunction between the academy and the profession, as it has been diagnosed in the United States,127 has not occurred as yet. Law schools have not been highjacked by teachers who do not hold law degrees. On the contrary, all professors are supposed to be capable of teaching one of the ‘dogmatic’ core subjects, private law, criminal law or public law. This also holds for teachers who specialize in the so called ‘marginal subjects’ and are thus accustomed to adopt an external perspective to the law, be it sociological, economic, anthropological, historical or comparative. ‘Law and economics’, ‘Law and literature’ and the other ‘Law ands’ are explored, but they remain at the fringe of scholarly activity. So the German professor might be ‘theoretical, somewhat unworldly and strongly doctrinaire’128—but at least he is doctrinaire in many of the fields which are relevant to practitioners.

Finally, the integrative spirit of legal scholarship facilitates the reception of academic proposals in legal practice. Modern legal scholarship never loses sight of what the courts do in fact. This may have been somewhat different in the 19th century when scholars widely ignored case law.129 Today, learned writers do not indulge in elaborate scholarly frameworks and constructs which lack any references to the courts’ jurisprudence. The relevant case law is integrated into academic textbooks so that it is comparatively easy for judges to link up with scholarly writing.

D. Recent Developments

Again, in order to give the complete picture it has to be added at least briefly that most of the aforementioned features of the legal system which contribute to the continuing impact of learning on lawmaking have not survived entirely unmodified.

127William Twining, Ward Farnsworth, Stefan Vogenauer and Fernando Téson, ‘The Role of Academics in the Legal System’ in P. Cane and M. Tushnet (eds), The Oxford Handbook of Legal Studies (2003) 920 at 929–35.

128Koschaker, above n 9 at 249.

129See text to n 9, above.

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The creative function of the judiciary has been more openly acknowledged since the 1870s.130 It was rendered highly visible with the establishment, for the first time in German legal history, of a strongly centralized judicial system with the Imperial Court at its head in 1879. This went hand in hand with a massive increase in the number of law reports which contained reasoned judicial opinions and could thus serve as a basis for case law. In 1949 came the establishment of the Federal Constitutional Court which is an arbiter of legislation, superior even to Parliament, and the decisions of which have binding force. Its judges are, quite exceptionally in the German legal system, entitled to give dissenting opinions. Judges from the higher courts are interviewed in the daily press and give the judiciary a public face. The wider public, ever perceptive of the real political weight of the various actors, pays more attention to their opinions than to those of the professors. All this has led to a relative increase in the judges’ prestige as opposed to that of legal scholarship. The days of the Weimar Republic, when one of the most distinguished private law professors would command more than one and a half times the salary of the President of the Imperial Court,131 are long gone. Recent reforms of the university payscale ensure that a university professor’s salary shortly before retirement is well below that of a county court judge in a rural German backwater. Today, even a Festschrift, this ancient sign of academic grandeur, might be dedicated to a judge.

At the same time the traditional notion of legal scholarship has been attacked by various waves of violent anti-rationalist and anti-formalist critiques. The ‘scientific’ character of legal learning has been seriously questioned.132 And, indeed, there are signs of a creeping ‘de-academization’ of legal scholarship. The continuous changes in modern legislation, the inflation of law-reporting, and the ‘publish-or-perish’ syndrome encourage breathless, descriptive, technical and positivistic surveys and reports on new and supposedly attractive issues.133 Frequently, this research is pursued at the expense of the critical analysis and the thorough examination of the context of the whole legal system that used to be the hallmark of traditional legal scholarship. If legal learning one day should no longer be of a different kind than legal practice, it might easily be asked what it is needed for.

However, it should have become clear from the preceding sections of this article that there is no need to worry too much about legal scholarship. All the recent

130Beginning, perhaps, with Rudolph Jhering, Ist die Jurisprudenz eine Wissenschaft? (1868, Reprint 1998) at 85,

89.

131Wolfgang Ernst, ‘Fritz Schulz (1879–1957)’ in J. Beatson and R. Zimmermann (eds), Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain (2004) 105 at 122.

132The debate on the scientific character began with the attack of Julius Hermann von Kirchmann, Die Werthlosigkeit der Jurisprudenz als Wissenschaft (1848) at 45, and it is still going on, cf. Theodor Viehweg, ‘Zur Geisteswissenschaftlichkeit der Jurisprudenz’ (1958) 11 Studium Generale 334; Karl Larenz, Über die Unentbehrlichkeit der Jurisprudenz als Wissenschaft (1966), and the summary by Dieter Simon, ‘Jurisprudenz und Wissenschaft’ (1988) 7 Rechtshistorisches Journal 141.

133From a Swiss perspective Jean Nicolas Druey, ‘Die schweizerische Rechtswissenschaft heute—Fragen an ihre Befindlichkeit’ in Festschrift für Heinz Hausheer zum 65. Geburtstag (2002) at 3.

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developments just mentioned account for the comparative increase in the authority of the judiciary as opposed to legal scholarship, but they have by no means led to a displacement of learning from the process of lawmaking, be it legislative or judicial. This is particularly visible in the ongoing harmonization and unification of European law where not only some of the standard treatises,134 but also important theoretical reflections on the role of legal scholarship in this process have been written by German scholars.135 These authors generally agree that the task cannot be mastered by legislation and judge-made law alone. Very much in the spirit of classical German scholarship as sketched above, they see a need for a common European legal science that provides future lawmakers and judges with a common stock of systematic and conceptual tools which in turn can provide a legal grammar for further development of the law.

7. A Light to Lighten the Gentiles, or: Lessons from Germany?

Many comparative enquiries close with the question of whether one legal system should adopt or ‘borrow’ a particular legal solution from another legal system. The issue has to be treated with particular care if the author discusses the possibility of transplanting a solution to be found in the legal system where he received most of his legal education. Comparatists with reformist zeal are easily tempted to see this as an opportunity to follow in the footsteps of St Luke and ‘to give light to them that sit in darkness’ or to ignite ‘a light to lighten the Gentiles’.136 However, this article is based on a paper given at a comparative symposium on learning and lawmaking. One of the avowed aims of the conference was to ‘help understand the modern common law’. It may therefore be legitimate to conclude with a tentative answer to the question whether the relationship between learning and lawmaking in Germany can serve as a model or at least as a source of inspiration for the English legal system. The question can only be framed like this if two assumptions are being made, both of which are at least questionable—first, that there indeed still exists a significant difference in the respective relationship between the legal systems mentioned, and secondly, that the German state of affairs is preferable.

Even if one proceeds on the basis of these assumptions, at first glance it hardly seems feasible to transplant an intricate structure such as the German one, with its interplay between legislators, judges and jurists, into a legal system that has a rather different historical experience, another institutional and sociological

134For the most prominent examples see Jürgen Schwarze, European Administrative Law, vols I and II (1992); Hein Kötz, European Contract Law, vol I (1997); Christian von Bar, The Common European Law of Torts, vols I and II (1998 and 2000); Peter Schlechtriem, Restitution und Bereicherungsausgleich in Europa, vols I and II (2000 and 2001).

135Helmut Coing, ‘Europäisierung der Rechtswissenschaft’ (1990) 53 Neue Juristische Wochenschrift 937; Reinhard Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Legal, Science’ (1996) 112 LQR 576; Basedow, above n 121 at 79.

136Ch. 1 v 79 and ch. 2 v 32.

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background, a divergent concept of law and a different theory of the sources of law. However, the relationship between the three groups is not immutable. Recent developments in England have shown that a more prominent role for legal scholarship is possible within the existing confines of the legal system, especially since in recent decades legal positivism has been perceptibly on the retreat and the rigid doctrine of stare decisis has been considerably softened—although it will be difficult for legal scholarship to flourish as long as there is still consensus that auctoritas non veritas facit legem. But there is a much more important reason why English judges nowadays refer to jurists as ‘pilgrims with us on the endless road to unattainable perfection’137 and support ‘the modern view ... that the views of academic lawyers on the structure and development of the law are entitled to just as much respect as those of judges and others engaged in the practice of the law’138: the quality of legal writing has improved dramatically over the last decades. Whilst it may be true that in Victorian times there were ‘few law books an intelligent man could read without dismay or disgust’,139 this could hardly be said today. The improvement in quality went hand in hand with a perceptible change in the character of English legal scholarship which, on the whole, has become much more systematic, critical and, maybe to a lesser extent, proactive than it used to be only a few decades ago. If legal scholarship on this side of the channel wishes to make itself even better heard it might be useful to lay further emphasis on these three key features. ‘University Law triumphed’, Professor Simpson wrote with respect to continental legal history, ‘not because the universities taught and studied the existing law in force around them, but because they obstinately taught and studied what they thought to be better law, and in the end their obstinacy prevailed. There must be a moral in this somewhere’.140

137Spiliada Maritime Corporation v Consulex Ltd [1987] AC 460 at 488 (Lord Goff).

138Lord Hope of Craighead, ‘Review Article—Northern Lights’ (2001) 22/3 Journal of Legal History 83, 87.

139Fifoot, above n 5 at 21.

140Simpson, above n 126 at 394.

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