Vogenauer Empire of Light2

Oxford Journal of Legal Studies, Vol. 26, No. 4 (2006), pp. 627–663 doi:10.1093/ojls/gql026

An Empire of Light?

II: Learning and Lawmaking in Germany Today

STEFAN VOGENAUER*

Abstract—German law is commonly assumed to be strongly influenced by legal scholarship. This was certainly true in the past, and this article explores whether it is still the case today. But what is actually meant by ‘influence’ in the context of law? Who exerts it on whom, and how? These questions are analysed in the first part of the article. It is then shown, by drawing on biographical material, legislative history and case law, how legal scholarship contributes to both the legislative and the judicial lawmaking process in Germany—and where it does not. Finally it is asked how the specific relationship between legal academics and lawmakers in the German legal system can be explained and whether this model can be transferred to other systems.

Escaping ‘from the empire of chaos and darkness, to a world that seems by comparison, the region of order and light’: this is how John Austin summarized his sentiments when he turned from the study of English law to the study of Roman law, as taught in the German universities of his day.1 The main reason for his admiration was the systematic, rational and coherent structure of this system of law which had been almost entirely the work of professors. These had been exercising an enormous influence on both legislative and judicial lawmaking for centuries, so that critics were able to denounce them as ‘juristic Brahmins, who eternalize their Sanskrit, rule everywhere all silent and still, suck the people’s marrow dry, and would like to work themselves out as the teachers of laws and morals, like the Rabbis of the Jews’.2

* Email: stefan.vogenauer@iecl.ox.ac.uk. Professor of Comparative Law and Fellow of Brasenose College, University of Oxford. Director of the Oxford Institute of European and Comparative Law. This is the second part of an enlarged, updated and annotated version of a paper presented at an All Souls Symposium on ‘Learning and Lawmaking’ in January 2003, convened by the late Professor Peter Birks. I am grateful to my South African colleagues Anton Fagan, Jacques du Plessis and David Yuill and to Alexandra Braun of St. John’s College, Oxford for their valuable comments on parts of this paper. The following abbreviations of German law reports have been used: BAGE—Entscheidungen des Bundesarbeitsgerichts (Reports of the Federal Labour Court); BGH—Bundesgerichtshof (Federal Supreme Court); BGHSt—Entscheidungen des Bundesgerichtshofs in Strafsachen (Reports of the Federal Supreme Court in Criminal Matters); BGHZ—Entscheidungen des Bundesgerichtshofs in Zivilsachen (Reports of the Federal Supreme Court in Private Law Matters); BVerfGE—Entscheidungen des Bundesverfassungsgerichts (Reports of the Federal Constitutional Court).

1John Austin, The Province of Jurisprudence Determined: Being the First Part of a Series of Lectures on Jurisprudence, or the Philosophy of Positive Law (1832) (2nd edn, 1861) at xciv.

2An anonymous reviewer of Savigny, quoted from James Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change (1990) at 110.

♥The Author 2006. Published by Oxford University Press. All rights reserved. For permissions,

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In a recent article I attempted to show how and why German law had come to reach this point in the 19th century.3 However, I also argued that the relationship of legal learning and lawmaking in a given legal system is the result of a complex interplay between scholars, legislators and judges, and that it can and does shift in the course of history.4 Following up on these observations, this article charts the contemporary role of legal scholarship in German law. ‘Contemporary’, for this purpose covers the period from the 1870s onwards. At first sight, this might seem a rather long time span to qualify as ‘today’. After all, much has changed in German law over the last 130 years: two wars and two revolutions have taken place, and four constitutions have seen the light of day. But the years between 1871 and 1900 saw the coming into force of the most important codes in the areas of private and criminal law, all of which are, despite frequent amendments, still on the statute book today. Even more importantly, the founding of the German Empire in 1871 and the establishment of the Imperial Court eight years thereafter contributed to a significant change in the relationship of learning and lawmaking: it replaced the previous patchwork of territories and jurisdictions with a strong and unified state that possessed a single national parliament and a centralized court system. This constitutional and institutional framework has remained in place ever since.

In England, discussions on the relationship between learning and lawmaking usually adopt a narrow focus on the relations between ‘judge and jurist’.5 In order to trace the influence of the latter on the former, much has been written on the frequency and significance of judicial citation of academic literature.6 This approach, however, does not enable us to see the complete picture of a relationship that is much more complex and dynamic than models relying on pseudocausal ‘influences’ suggest.7 For this reason I shall attempt to elaborate a more comprehensive framework and typology, and also to clarify some key concepts at the outset of this article (1). The next section will focus on the relationship of legal scholarship and the legislature in Germany (2). I will then analyse the impact of legal learning on judicial lawmaking, and it should become apparent that the effect of published scholarly views cited by the courts is an important, but by no means the only type of influence (3). After a brief overview of instances where lawmaking proceeds without being influenced by legal learning (4), I will look at the eternal question as to the status of legal writings as a ‘source of law’ (5). Having summarized the position in modern German law and

3Stefan Vogenauer, ‘An Empire of Light? Learning and Lawmaking in the History of German Law’ (2005) 64 CLJ 481.

4Ibid at 483.

5Cecil Herbert Stuart Fifoot, Judge and Jurist in the Reign of Victoria (1959).

6For recent examples see Neil Duxbury, Jurists and Judges: An Essay on Influence (2001); Basil Markesinis, Comparative Law in the Courtroom and Classroom (2003). For a more comprehensive account see Alexandra Braun,

Guidici e Accademia nell’esperienza inglese: Storia di un dialogo (2006).

7See the remarks by Michael Stolleis, ‘Zur Bedeutung der Rechtswissenschaft für die Dynamik der Rechtsordnung im 19. und 20. Jahrhundert’ in S. Dauchy, J. Monballyu and A. Wijffels (eds), Auctoritates: Xenia R.C. van Caenegem Oblata—Law Making and its Authors (1997) at 118, 119–22.

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having provided some attempts at explanation of the status quo (6) I shall ask, in conclusion, whether the German approach to the relationship of learning and lawmaking can serve as a source of inspiration for English law (7).

1. Different Shades of Light: the Various Types

and Degrees of Influence

A. The Influence of Lawmaking on Learning

Learning and lawmaking can interact in various ways. It is usually taken for granted, and thus not even mentioned, that lawmaking influences legal scholarship. It seems obvious that legal academics have to proceed on the basis of the law as it is in force, so that the products of lawmaking set the agenda for research and teaching. Even the most superficial comparative and historical overview shows that this is not necessarily the case. German scholars, for the most part of the 19th century, chose to ignore the products of territorial legislation and taught a ‘contemporary Roman law’ that had never been enacted by a German legislator.8 Furthermore, many of them did not pay heed to case law. Not only would they strenuously oppose the very idea that judicial decisions could make law; some textbook writers explicitly presented it as a virtue that they did not make any references to such decisions.9 This attitude still seems to prevail in Italy,10 and it was also common in France where 19th century lawyers, maybe with a certain tendency to exaggerate, famously complained about the rift between the law faculties and the courts, the ‘rupture’ or ‘divorce entre l’école et le palais’.11 Today, however, legal scholars in Germany certainly do not lose sight of legislation and case law and are influenced by these sources.12

Lawmaking, especially legislation, can also influence learning by promoting or restricting certain forms of scholarship and teaching. In Europe there are, fortunately, only historical examples of such restrictions, such as the dissolution of the French law faculties in 1793 or the so-called ‘bans on writing’ which some of the enlightened absolutists employed on the continent.13 A more recent and infamous example from Germany was a 1950 resolution of the East German politburo. It opposed the edition of a commentary on the East German Constitution of 1949 as ‘inexpedient’ and suggested the elaboration of a ‘manual’ by two party hacks instead.14 Today, the freedom of science, research and teaching

8Vogenauer, above n 3 at 495–7.

9cf. Paul Koschaker, Europa und das römische Recht (4th edn, 1966) at 251, 256–8.

10Alexandra Braun, ‘Professors and Judges in Italy: It Takes Two to Tango’ (2006) 26 OJLS 665 at 678–9.

11John P. Dawson, The Oracles of the Law (1968) at 386–400.

12See text to n 129, below.

13Vogenauer, above n 3 at 492.

14Protocol no. 84 of the politburo meeting of 18 April 1950, cited from Karl A. Mollnau (ed.), Normdurchsetzung in osteuropäischen Nachkriegsgesellschaften (1944–1989), vol 5/2: Deutsche Demokratische Republik—Dokumente (2004) at 19.

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spelt out in Article 5(3) of the German Basic Law protects scholarship from legislative encroachments of this sort.

B. The Influence of Learning on Lawmaking

Scholarly influence on the development of the law can take various shapes. First, it can be concerned with different objects in the sense that it can be directed at distinct forms of lawmaking. Second, it can be exercised either individually or collectively. Third, it can vary according to the immediacy of its effect. Fourth, it can differ in degree, i.e. it can be either ‘stronger’ or ‘weaker’. I will look at these issues in turn.

All forms of lawmaking can become the object of scholarly influence. Today, it is widely acknowledged in German legal writings—although it is by no means uncontroversial—that it is not only the legislator who engages in making law, but that other actors in the legal system share this task. These can be judges, practitioners, members of the executive, civil servants, or even private individuals. Granting a licence, ordering a search, making a will or concluding a contract clearly have normative force, and the officials giving orders contribute to the development of the law, as do the legal advisors drafting wills or contractual terms, especially standard terms. All these persons can be, and often are, guided by legal scholarship. Civil servants, as has been observed by legal sociologists, tend to follow academic writings ‘spontaneously and without further reflection’.15 Practitioners constantly use the relevant scholarly literature. When engaging in complex transactions they frequently rely on legal opinions drafted by academics: a couple of years ago, at the time of the biggest business takeover in German history, the acquisition of Mannesmann Corp by Vodafone plc, it was said that both parties had received advice by three professors respectively. However, such influences are extremely difficult to verify. They can only be traced through empirical field studies. The most important and most visible objects of scholarly influence are statutory and judicial lawmaking, and for this reason in what follows I will focus on these two forms of making law.

As far as the origin of scholarly influence is concerned, it is possible to distinguish individual and collective influence. Individual influence is exercised through the views of single academics. Every legal solution proposed by a scholar has the potential to sway either the legislator or the judiciary. German law knows no restrictions on the admissibility of academic opinions to the legislative and judicial process, such as, for instance, a convention against the citation of the works of living authors in court. Neither is there a formal way of ranking the authority of writers. But clearly, the influence of an individual academic corresponds to his status and scholarly prestige. The more elevated he is in the hierarchy of the academic community, the more he has published in the area in question, the

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more prestigious the places of publication have been and the better the reputation of his law faculty is, the more authoritative is his opinion and the more receptive is his audience.

Collective influence is exercised through the corresponding views of various scholars on a given legal question. German lawyers take it for granted that there is a body of persons, writings and opinions that, in its entirety, constitutes ‘the doctrine’ (die Lehre), ‘the legal doctrine’ (die Rechtslehre), ‘legal science’ (die Rechtswissenschaft) or ‘the literature’ (das Schrifttum). ‘The legal doctrine’ as such should not be confused with a particular legal doctrine, such as ‘the doctrine of offer and acceptance’ (die Lehre vom Vertragsschluss). Legal doctrine is regarded as a collective entity, as would be the case with ‘the legislature’, ‘the judiciary’, ‘the executive’, ‘the civil service’ or ‘the police’. Thus lawyers frequently refer to ‘the doctrine’ advancing a theory, proposing a solution or criticizing a judgment. This use of language is peculiar to the legal community. A remotely equivalent collective denomination in other disciplines would be that of the ‘scientific community’.16 Furthermore, the notion of ‘legal doctrine’ does not have a straightforward counterpart in the English language where the concepts of ‘legal scholarship’, ‘legal learning’, ‘research and teaching in law’ or ‘the legal academy’ are mostly confined to professional academics. As opposed to this, the German idea of ‘legal doctrine’ would also encompass judges, civil servants or practitioners expressing their views in books and learned articles on the law. The difficulties in translating the term only mirror the fact that most English lawyers would find it slightly odd to refer to a collective ‘legal doctrine’ since they would regard scholarly work primarily as an individual achievement and its published expression as an individual and personal opinion.

Speaking of a collective entity does not entail that ‘legal doctrine’ would speak with one voice in all, or even in most cases. Quite the contrary, a body of writing on a given legal question can represent either the ‘common view’ (allgemeine Ansicht), the ‘prevailing doctrine’ (herrschende Lehre) or at least a ‘minority view’ (Mindermeinung) on this specific issue. A ‘common view’, also called a ‘unanimous opinion’ (einhellige Meinung), is said to exist on those—admittedly fairly rare—occasions where a legal proposition is universally shared and absolutely uncontroversial. If a proposition is controversial the ‘prevailing doctrine’ is the predominant current in scholarly writing. It can readily be identified as the inheritor of the old communis opinio doctorum of the continental ius commune.17 The ‘prevailing doctrine’, incidentally, does not necessarily have to coincide with the ‘prevailing opinion’ (herrschende Meinung), the latter term designating the dominant current in the entirety of all scholarly and judicial opinions viewed

16As to the similar phenomenon of la doctrine in French law, see Philippe Jestaz and Christophe Jamin, ‘The entity of French doctrine: some thoughts on the community of French legal writers’ (1998) 18 LS 415; Philippe Jestaz and Christophe Jamin, La doctrine (2004) at 1–3, 6–9, 193–215. For Italian law see Braun, above n 10 at 680.

17cf. Vogenauer, above n 3 at 486, 487–8.

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together. A ‘minority view’, then, is a view on a given issue which is not the prevailing one. Whereas on one and the same legal issue there can be only one ‘prevailing opinion’ it is possible to have various ‘minority views’, all of which advance a different solution. Whether a legal proposition represents the ‘prevailing doctrine’ or a ‘minority view’ is not determined by a simple head count of the authors in favour and against the proposition, but by weighing the various voices according to the authors’ reputations. Thus a view held by three of the most distinguished specialists in a certain area of law will usually be considered to be the ‘prevailing doctrine’ even if a host of brilliant young authors might put forward sensible arguments for a different solution. The latter constellation, incidentally, would be described in textbooks and commentaries as a controversy between ‘the doctrine still prevailing’ (noch herrschende Lehre) and ‘a doctrine gaining ground’ (eine im Vordringen begriffene Lehre). However, every view has the potential to carry the day, so that our young authors may legitimately hope that, after a couple of years or, more realistically, decades, their opinion can justly be labelled the ‘doctrine now prevailing’ (die nunmehr herrschende Lehre). Admittedly, all these somewhat excessive distinctions have the potential to strike many a foreign observer as absurd. But the constellation just described shows how such classifications can serve as a convenient shorthand for a summary of the ‘state of the controversy’ (Streitstand) if, as often happens, there is an abundance of legal literature on a given legal issue.

With regard to the immediacy of the effect of both individual and collective scholarly views on either the legislator or the judiciary, it is possible to distinguish what can be termed ‘controlling’, ‘direct’ or ‘indirect influence’. ‘Controlling influence’ is exercised by a scholar (or, less frequently, by a group of scholars) who is, for institutional reasons, in a position to determine the outcome of the lawmaking process. ‘Direct influence’ is exercised if such a position is not being held, but a scholar (or a group of scholars) nevertheless has the opportunity to make an immediate impact on the outcome of the lawmaking process by providing specific suggestions as to how to deal with the issue at hand. ‘Indirect influence’ is exercised if a scholar (or, more frequently, a group of scholars or even ‘the doctrine’) provides a kind of background knowledge which does not specifically concern the issue at hand and thus does not aim at furnishing the legislator or the judge with an immediate solution, but nevertheless turns out to be helpful in arriving at that solution.

The degree or the strength of scholarly influence is difficult to measure. It might be said that a legal proposition developed by a scholar is the more influential, the more readily and the more completely it is adopted by the legislator or the courts. But if a learned opinion is followed this does not necessarily have to be so because the reasons given by the scholar are considered to be compelling—it may be due to entirely different considerations. And if, on the other hand, the solution favoured by an academic is not adopted, this does not necessarily have to be so because the reasons put forward by him are considered to be untenable—it

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may be due to the fact that other considerations prevail although the considerable force of the scholar’s reasoning is readily accepted and may be successful in other contexts. As a rule of thumb, however, it can be said that, empirically, collective opinions are more influential than individual opinions, and scholars who exert controlling influence are more influential than those exercising direct or indirect influence. In this sense it might be said that collective influence is ‘stronger’ than individual influence and that controlling influence is ‘stronger’ than direct and indirect influence. Still, in single instances an individual or a ‘minority view’ can surely make as much of an impact as the ‘prevailing doctrine’, and indirect influence may prove to be highly pervasive in the long run.

In the following two sections some examples of these various types and degrees of influence in German law will be presented. It would be easy to multiply them,18 but it might be more helpful to focus on a few instances and analyse them in more depth so that it becomes possible to gather a flavour of the way in which the legal system’s main participants interact in practice.

2.Legal Luminaries I: Learning and Legislation

A.Controlling Influence

Up to the 19th century, legal scholars occasionally exerted controlling influence on certain pieces of legislation by single-handedly drafting statutes or codes.19 Two more recent examples from the civil law tradition would be those of Bern law professor Eugen Huber and of Professor Eduard Maurits Meijers of Leyden who wrote the Swiss Civil Code (1892 seqq.) and large parts of the Dutch Nieuw Burgerlijk Wetboek (1947 seqq.) virtually on their own. The last incident remotely resembling this in Germany was probably Gustav Radbruch’s personal authorship of the Draft Criminal Code of 1922 which proved to be highly influential in the long-term development of criminal law, but never made it to the statute book. Radbruch was a leading criminal lawyer and legal philosopher who, as a Member of Parliament from 1920 to 1924, served as the German Minister of Justice for two brief periods in 1921–22 and 1923.20 Today, even smaller legislative projects are considered to be too complex to be entrusted to a single person. Even if, as occasionally happens, the Minister of Justice is a law professor, the actual drafting of legislation is primarily done by ministerial officials.

18See, for instance, Stolleis, above n 7 at 120, 124–8.

19cf. Vogenauer, above n 3 at 485, 492.

20For concise biographies see Jan Schröder, ‘Gustav Radbruch’ in G. Kleinheyer and J. Schröder (eds), Deutsche und Europäische Juristen aus neun Jahrhunderten (4th edn, 1996) at 340–6; Arthur Kaufmann, ‘Radbruch, Gustav’ in W. Killy and R. Vierhaus (eds), Deutsche Biographische Enzyklopädie, vol. 8 (1998) at 113. See also the text to nn 55–68, below.

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B. Direct Influence

Bills, however, are usually not drafted exclusively by civil servants, and legal scholars are given the opportunity to exert direct influence on legislation. This is exercised in four different ways. First, in certain areas of the law there is a sort of institutionalized consultation by the most distinguished experts who cooperate closely with the relevant Ministry and constantly and critically comment on all relevant legislative proposals throughout the lawmaking process. Thus, for instance, the proposals of the ‘German Council for Private International Law’ have decisively shaped the legislative reforms in that field since 1954.

Second, legislative proposals are often based on specific studies or opinions commissioned by the government and authored by academics. These papers are usually asked for in areas such as criminal law, family law or corporate law, and they include pieces of practical and empirical research with a heavy dose of interdisciplinary work, integrating sociology, criminology, psychology, political sciences, or economics. Some of this work is of comparative nature. In preparing the recently enacted highly controversial statute on same-sex partnerships, for example, the Ministry of Justice commissioned Germany’s leading research institution in comparative law, the Hamburg-based Max Planck Institute, to supply a major study on the legal situation in the most important Western countries. It also commissioned a comprehensive study on the practical effects of discrimination from a group of social scientists.21

Third, for many important pieces of legislation an ad-hoc commission of officials, legal practitioners and law professors is set up. Due to their expert knowledge the academics not infrequently dominate these commissions and thus are ultimately responsible for specific parts of legislative bills. A number of influential constitutional lawyers, for instance, participated in the two bodies preparing the Federal Republic’s 1949 Constitution, and a couple of the constitutional provisions still in force today can be traced directly back to their proposals. The major overhaul of the Criminal Code’s General Part in 1969 was prepared by the ‘Great Criminal Law Commission’ which included a number of professors. The Commission worked for eight years and published 15 volumes of documents and three drafts. Another major source of the 1969 reform was the so called ‘Alternative Draft’ written by 14 criminal law teachers.

Fourth, academics frequently publish proposals for specific legislative solutions to particular legal problems on their own initiative. If a given situation is not provided for in a statute, if the application of a statute leads to undesirable results, or if a certain solution is widely seen to be doctrinally unacceptable, legal scholars feel challenged to advance a remedy for the mischief perceived. This is often done in a rather general way, but it is also not unusual to find a recommendation for

21 Jürgen Basedow, Peter Dopffel and Hein Kötz (eds), Die Rechtsstellung gleichgeschlechtlicher Lebensgemeinschaften (2000); Hans Peter Buba and Laszlo A. Vaskovics (eds), Benachteiligung gleichgeschlechtlich orientierter Personen und Paare (2001).

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the precise formulation of a new rule to be enacted. Take the case of the former version of s 7 of the Road Traffic Act. Its infelicitous phrasing had introduced an element of negligence into a tort which was, in principle, conceived as an instance of strict liability. This inconsistency was met with widespread academic disapproval, combined with a suggestion to substitute the respective phrase by a different formulation, thus drawing the tort firmly into the camp of strict liability. Recently, in the course of a general reform of the law on damages, the legislator gave in and followed the prevailing doctrine.22 Citation of academic writings in the travaux préparatoires of new legislation bears witness to this type of direct influence on the legislator.

A relatively recent and most impressive instance in which the second, third and fourth form of direct influence were combined is provided by the Act to Modernise the Law of Obligations of 2002.23 It represented the most sweeping reform of the Civil Code since its enactment in 1900. Here, the legislator could rely on more than twenty years of preparatory work by some of Germany’s most distinguished scholars. In 1978 the Ministry of Justice had requested 24 opinions from legal academics. These were published in three volumes between 1981 and 1983 and were immediately subjected to intense scrutiny by other scholars. Another commission was appointed to formulate a detailed reform agenda. It presented a final report in 1992 which was again discussed and positively received at the Deutscher Juristentag, the bi-annual assembly of German lawyers, in 1994. In the following years, the solutions proposed were taken up in the legal literature on the law of obligations. Still, the whole project seemed to be bogged down by a lack of reformist zeal in the Ministry.

But in October 2000 the legal community was surprised by a 630-page ‘discussion draft’ for a reform Act, published by the new Minister of Justice. She had used the Community law obligation to implement several EU directives as a pretext for a more comprehensive reform based on the old proposals and to be enacted within less than 15 months. This was immediately met with, as a highranking civil servant called it, ‘grumpily-defiant’ resistance24 by a large section of the academic community, which was not only appalled by the proposed haste of the amendments, but also criticized the content of the draft: the world had moved on since 1981, and even since 1992, and many of the old suggestions had been rendered obsolete by more recent developments in German and European private law. Two conferences were held, and a flood of publications with specific proposals for amendments swamped the market. The Ministry knew that such a fundamental change could only be realized if it was supported by academic experts. It thus established two working groups charged with the task of improving

22Gerhard Wagner, Das neue Schadensersatzrecht (2002) at 62–3.

23For a general account, see Reinhard Zimmermann, The New German Law of Obligations: Historical and Comparative Perspectives (2005) at 30–5.

24Eckhart Pick, Secretary of State in the Ministry of Justice, quoted by Barbara Dauner-Lieb, ‘Die geplante Schuldrechtsmodernisierung—Durchbruch oder Schnellschuss?’ (2001) 56 Juristenzeitung 8 at 11.

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the main parts of the discussion draft. The groups consisted of civil servants, representatives of the various legal professions and a number of law professors. Their recommendations led to a substantial revision of the draft. The revised draft was again discussed at an extraordinary meeting of the Association of Teachers of Private Law. Only then was the final government draft published.

Still, there was widespread dissatisfaction within academic circles. Even when the bill was already on its way through Parliament, vigorous attacks were directed at the Ministry and at those scholars supporting it. When this was raised by the opposition parties, an MP for the majority defended the draft against its critics. ‘Those favouring’ the reform, he said: ‘include the cream of legal scientists. I remind you that the highly respected professors Medicus, Canaris, Heinrichs and Westermann have supported the reform of the law of obligations. For nonlawyers: this is as if you play football in the early seventies and you have Franz Beckenbauer, Günter Netzer, Uwe Seeler and Gerd Müller in your team, opposing Rudi Völler’s squad of the last weekend’;25 a team which, it has to be admitted, had just achieved a dull, goalless draw against Finland. The standing of the leading law professors in the German legal system could not be summarized more appropriately than by this quotation.

C. Indirect Influence

Indirect influence on legislation concerns the instances in which scholarly literature provides the structural and conceptual framework into which new statutes are fit. Legal writings organize entire areas of the law, especially those which have never been comprehensively codified, such as labour law or administrative law before the enactment of the 1976 Act on Administrative Procedure which was, incidentally, but a restatement of a century of administrative law scholarship and case law. But even in other areas the legislator usually does not engage in sophisticated system building. Neither does he spell out the leading principles, nor does he provide a host of statutory definitions. He simply assumes the existence and the validity of the basic framework, the fundamental principles and the most important concepts, with the content elaborated under the guidance of scholarly writings for a long time past and basically agreed upon in today’s legal community. Legislative innovations or amendments tend to respect this structure as far as possible. Radical departures will only be made for important reasons of legal policy.

Thus indirect influence is much less spectacular and visible than controlling or direct influence, but it may be much more penetrating and enduring since it pervades the very fabric of the legal system. Two French authors have found a fitting metaphor for the fact that it is virtually impossible for the legislator simply

25Dirk Manzewski, Social Democrat MP, in Stenographischer Bericht, 102. Sitzung, Plenarprotokoll 14/192, p. 18763 C.

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