Vogenauer Empire of Light2

provided that certain limitations of personal freedom were admissible. The Federal Supreme Court held that this ordinance could not be invoked to justify the defendants’ conduct, in words strongly resembling those of Radbruch.64 The same reasoning was applied in a case where the defendant had been a prosecutor in a Nazi court martial and claimed to have acted in accordance with the provisions then in force.65 Even when the heyday of the Nazi trials was over, the Radbruch formula did not fall into oblivion. The Federal Supreme Court invoked it in the post-reunification border guard cases of the 1990s66 in order to strike down the provision of an East German statute that had set out the grounds for justification of the killing of fugitives trying to escape from the German Democratic Republic:

A ground of justification, which gave priority to the enforcement of the prohibition to leave the German Democratic Republic over the right to human life by permitting the intentional killing of unarmed fugitives, is invalid because of its evident and intolerable violation of elementary precepts of justice and human rights protected by public international law. This violation is of such weight that it infringes the legal convictions, shared by all people, as to the worth and dignity of the human being; in such a case the positive law must yield to justice (so-called Radbruch formula).

The Court added that the principles violated were circumscribed more closely by the International Covenant on Civil and Political Rights of 19 December 1966 and the Universal Declaration of Human Rights of 10 December 1948.67 The Federal Constitutional Court approved of the use of the formula in cases like this, and also in cases in which senior politicians and officials had been tried as the principal offenders using the border guards as their agents. In those ‘wholly exceptional situations’ even the strict constitutional prohibition of retroactivity in criminal law matters would have ‘to give way to the most basic requirements of justice’.68

C. Indirect Influence

Finally, apart from the instances of controlling and direct scholarly impact on the judiciary, judges are indirectly influenced by legal learning. To an even stronger extent than the legislator they rely on the conceptual and systematic infrastructure developed and maintained by legal scholarship which provides a constant point of reference for understanding, assessing and discussing new

64BGHSt (1 StR 563/51 of 29 January 1952) 2, 234, 237, 238–9. For a similar case with similar reasoning see BGHSt (1 StR 2/52 of 19 December 1952) 3, 358, 362–3.

65BGHSt (1 StR 658/51 of 12 February 1952) 2, 173, 177.

66For a short account in English see Rudolf Geiger, ‘The German Border Guard Cases and International Human Rights’ (1998) 9 European Journal of International Law 540.

67BGHSt (5 StR 111/94 of 20 March 1995) 41, 101, 105. See already BGHSt (5 StR 370/92 of 3 November 1992) 39, 1, 15–16, translated in Youngs, above n 45 at 542, 569; BGHSt (5 StR 418/92 of 25 March 1993) 39, 168, 183–4.

68BVerfGE (2 BvR 1851, 1853, 1875, 1852/94 of 24 October 1996) 95, 96, 133–5, upheld in K.-H.W. v Germany [GC], no 37201/97 §§ 48–114, ECHR 2001-II, 495.

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issues, way beyond specific solutions for particular instances. Judicial decisions are usually intended to fit into this framework. This is especially so in areas of law which have remained virtually uncodified. Most parts of administrative law and labour law, for instance, have essentially been created by case law which, in turn, has respected the existing statutes and has been guided by legal learning.

4. Where There is Light, There is Shadow: Lawmaking Without Learning

As mentioned before, the instances of scholarly influence on lawmaking described in the two preceding sections could easily be multiplied. Numerous concepts, rules, principles and doctrines afterwards approved and adopted by the legislator and the courts were formulated by academics in the first place. However, this is only part of the story: the fate of the law is not at all exclusively determined by scholarship. There are two constellations in which lawmaking is exercised autonomously from legal learning.

The first constellation might be termed ‘failure of persuasion’. Obviously not every suggestion put forward in legal writings is accepted by the legislator or the judiciary. With respect to legislation, the aforementioned reform of the law of obligations may again serve as an example.69 To the dismay of many academics, various scholarly proposals for a more limited, a more far-reaching or at least a more coherent reform were simply ignored, for instance with respect to the law on limitation periods.70 There have been many instances where the legislator even refused to be swayed by widespread academic consensus as to the need for a specific reform enactment. The recognition of a general right of privacy and its effective protection by means of the law of delict, for example, had already been advocated in the run-up to the Civil Code, but spurned by the draftsmen. The issue was controversially discussed for decades, and by the early 1950s legal scholars almost unanimously favoured its recognition.71 The legislator remained passive, so it finally fell to the Federal Supreme Court to acknowledge the existence of a right of privacy in a 1954 landmark decision.72 Still, there remained dissatisfaction as to the remedies available. The Civil Code explicitly stated that monetary compensation could be granted for non-pecuniary damages only in cases expressly designated by statute, and thus obviously not for the violation of the right of privacy—which did not have a statutory foundation at all. In 1957 and in 1964, two sessions of the Deutscher Juristentag urgently advocated legislative reform, resulting in two ministerial drafts in 1959 and in 1967 neither of which made it to the statute book. In the face of legislative inertia it was again

69See text to n 23, above.

70cf. Zimmermann, above n 23 at 122–58.

71See the references provided by Nipperdey ‘Würde’, above n 41 at 42, n 113.

72BGHZ (I ZR 211/53 of 25 May 1954) 13, 334, 338, translated without full references in Markesinis and Unberath, above n 45 at 412, 414.

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the Federal Supreme Court which for the first time granted monetary compensation by judicial fiat in a 1958 case.73

With regard to judicial decision-making, the first of these two Supreme Court judgments on privacy may be regarded as a prime example of direct scholarly influence. The Court explicitly based its core reasoning on the writings of Nipperdey and Helmut Coing who had advocated the acknowledgment of a right of privacy in order to comply with the constitutional provisions on the protection of human dignity and personal freedom.74 However, scholarly suggestions frequently fail to persuade the judiciary. In the law of delict, for instance, for a couple of decades now a host of most distinguished writers has attacked the received ‘theory of wrongful consequence’ according to which human conduct is regarded as unlawful as soon as it violates one of the interests protected by statute and is not justified by one of the legally recognized defences. They have instead proposed the ‘theory of wrongful conduct’ which regards human conduct as unlawful only if the defendant has also violated the general duty of care. The Federal Supreme Court, after an initial tendency to give in to this new view,75 has finally clung to the old theory.76 A well known example of failure of persuasion in criminal law concerns the actual determination of the judicial sentence. Although there is certainly no shortage of highly philosophical sentencing theories in scholarly writing, the Federal Supreme Court has adopted a pragmatic approach which leaves the judiciary with a great margin of discretion and has later been dubbed the ‘leeway theory’ in legal writings.77 Another instance concerned the interpretation of the Criminal Code’s former s 246 on misappropriation. The provision required that the object of the unlawful appropriation ‘is in the actual custody’ of the offender. This was taken literally by some authors who consequently argued that the offender had to have gained actual custody before committing the act of misappropriation. Another group of very distinguished criminal lawyers advocated what they called a ‘major corrective solution’. They wanted to penalize any misappropriation, even if the offender had never gained actual custody of the object. The Federal Supreme Court, however, refused to follow either of the two views and steered a middle course which was later described as the ‘minor corrective solution’. The Court held that s 246 required actual custody, but that it was sufficient if the act of gaining custody and the act of misappropriation coincided.78 Finally, in 1998, the legislator achieved the

73BGHZ (I ZR 151/56 of 14 February 1958) 26, 349, 356, translated in Markesinis and Unberath, above n 45 at 415, 418.

74The decision was immediately greeted with an approving note by Helmut Coing, (1954) 9 Juristenzeitung 700.

75BGHZ (GSZ 1/56 of 4 March 1957) 24, 21, 25–26, translated in Markesinis and Unberath, above n 45 at 778, 780–1.

76BGH (V ZR 280/94 of 12 July 1996) (1996) 59 Neue Juristische Wochenschrift 2305 at 2307, with further references to the Court’s case law.

77BGHSt (5 StR 476/54 of 10 November 1954) 7, 28, 32. For an overview of the theories see Herbert Tröndle and Thomas Fischer, Strafgesetzbuch und Nebengesetze (53rd edn, 2005), § 46 n 20.

78BGHSt (5 StR 735/52 of 26 February 1953) 4, 76, 77. For an overview of the theories see Albin Eser in A. Schönke and H. Schröder, Strafgesetzbuch: Kommentar (24th edn, 1991), § 246 n 1.

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result favoured by the proponents of the ‘major corrective solution’ by abolishing the requirement of actual custody altogether.

The second constellation of lawmaking without learning might be termed ‘failure of production’. Legal scholarship is traditionally concerned with the core areas of the legal system. There is, for instance, not much academic work on issues relevant to the functioning of the modern welfare state, such as state health care, the pension system or social security. Other parts of the legal system, albeit very important in everyday litigation, are considered by many academics as too trivial to be given serious attention. Road traffic law or the law on legal fees would be cases in point. Finally, there are new phenomena, such as telecommunications, IT or venture capital, where legal scholarship simply has not managed to keep pace with the rapid technological or economic change. In all these areas of law there is (or has been, until recently) a serious lack of academic lawyers’ work which the legislator would be able to rely on when devising new enactments. There might even be no academic experts who could be invited to participate in the preparation of legislation. The drafting will then be done exclusively by the officials of the Ministry in charge of the subject matter. It is as simple as that: where there is no learning, it cannot make an impact.

This also applies to the work of the courts which have to venture into largely uncharted territory if they are faced with cases from the aforementioned areas of law. True, especially in those fields affected by rapid technological or economic change one cannot speak of a ‘failure of production’ in the sense that nothing is written. On the contrary, practitioners’ handbooks and commentaries abound. But it is definitely possible to speak of a ‘failure of production’ in the sense that very few new and original ideas are produced. Thus legal literature follows the courts rather than providing guidance for them. This can even be noticed in some areas of law which have developed some time ago but have as yet remained largely uncodified. With respect to competition law and labour law it has, for instance, been said that the academic debate has, for the last decades, been no more than ‘accompanying music’79 while the beat has been set by the courts. In constitutional law a similar situation prevails. Whereas there was considerable academic influence on the Federal Constitutional Court’s jurisprudence in the first years after the Constitution’s enactment (as has been shown above with respect to Dürig), today even leading constitutional lawyers cannot deny the complete ‘dethronement of constitutional law scholarship by the constitutional judiciary’.80 The more recent constitutional law doctrines and theories have mainly been developed by the Court itself, and legal writings have been mostly confined to a rather uncritical description of the case law, combined with

79Rainer Schröder, ‘Der gewerbliche Kampf’ in U. Falk and H. Mohnhaupt (eds), Das Bürgerliche Gesetzbuch und seine Richter: Zur Reaktion der Rechtsprechung auf die Kodifikation des deutschen Privatrechts (1896–1914) (2000),

553at 560.

80Bernhard Schlink, ‘Die Entthronung der Staatsrechtswissenschaft durch die Verfassungsgerichtsbarkeit’ (1989) 28 Der Staat 161. For Dürig see text to nn 43–46, above.

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attempts at systematization and proposals for minor changes for the future. This ‘loss of intellectual independence of scholarship vis-à-vis the judiciary’81 which has also been labelled a ‘Federal Constitutional Court positivism’82 has grown to such an extent that, in the 1980s, even the then Chief Justice of the Court publicly deplored the lack of substantial criticism and control from the academics and urged them to assume the intellectual lead and think ahead.83

In sum, it cannot be denied that, for almost a century now, in many areas of the law the motor of legal development has been the judiciary rather than legal scholarship. This can even be said of private law, the core area of scholarly interest. It is the courts which are widely credited for keeping the Civil Code up to date in an increasingly changing society.84 As a result, even judicial innovations which have been prepared by academic writings, such as the aforementioned development of a general tort of privacy,85 are widely perceived as instances of Germany’s 20th century ‘case-law revolution’86 and not as triumphs of legal learning. At the end of the day it is the courts whose innovations prevail, even against fierce academic resistance as, for instance, in the case of product liability. The extent of the change of intellectual leadership can be seen from a glance at the leading textbook on the German history of private law: whereas the description of the development up to 1900 is almost exclusively confined to a survey of legal scholarship, the remainder of the book deals in an equally exclusive fashion with the development of case law.87

5. A Guiding Light: Legal Learning as a ‘Source of Law’?

Many discussions on the relationship between legal scholarship and, above all, the judiciary centre on the question whether learning constitutes a ‘source of law’. The answer of course depends on the definition given to this term.88 Leaving aside the enormous theoretical literature on the concept of sources of law, today there is unanimous agreement amongst German legal scholars and practitioners (the ‘common view’, so to speak) that doctrinal writings do not constitute a ‘formal’ source of law in the sense that they are legally binding and thus must be taken into account and followed by the judiciary. The German legislator has

81Michael Kloepfer, ‘Vom Zustand des Verfassungsrechts’ (2003) 58 Juristenzeitung 481 at 483.

82Schlink, above n 80 at 163, 168 (‘Bundesverfassungsgerichtspositivismus’). A similar, but much more polemical argument has recently been made with respect to all legal scholarship by Bernd Rüthers, ‘Die Neuen Herren— Rechtsdogmatik und Rechtspolitik unter dem Einfluss des Richterrechts’ (2005) 3 Zeitschrift für Rechtsphilosophie 1.

83Roman Herzog, cited by Thomas Mayen, ‘Zum “Dialog zwischen Rechtsprechung und Rechtswissenschaft im Verfassungsrecht”’ (1988) 103 Deutsches Verwaltungsblatt 948–9. Incidentally, before being appointed to the Constitutional Court, Herzog had held a chair at the University of Munich and had been regarded as one of the country’s most distinguished academic constitutional lawyers.

84Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (3rd edn, 1998) at 148–53.

85See text to n 71–72, above.

86The term was coined by Dawson, above n 11 at 432.

87Franz Wieacker, A History of Private Law in Europe (1995).

88For various attempts at definition see Stefan Vogenauer, ‘Sources of Law and Legal Method in Comparative Law’ in R. Zimmermann and M. Reimann (eds), The Oxford Handbook of Comparative Law (2006) 869 at 877–80.

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refrained from enacting a provision to this effect, as can be found in other civil law systems where the judge is required to have regard to ‘approved legal doctrine’89 or to ‘the common and constant opinion of learned persons’90 whenever the code contains gaps and no custom exists. The only ‘formal’ sources of law in the sense that they are legally binding are statute and custom. It is therefore generally accepted that, on any given legal issue, the courts can legitimately deviate from scholarly opinion. However, it is equally uncontested that legal writings do constitute a ‘de facto’ or ‘indirect’ source of law in the sense that they usually are taken into account and often are followed by the courts. This particularly applies to the ‘prevailing doctrine’. Thus, in theory, a firm line is drawn between the normative and the empirical level: legal learning constitutes a ‘source of law’ only in the second sense.91

Still, both legal theory and legal practice also attribute some normative force to the ‘prevailing doctrine’, a claim that is already inherent in the term herrschende Lehre itself, the literal translation of which is ‘dominating doctrine’. Legal theory assigns a status to legal learning which can be compared to the ‘persuasive authority’ accorded in England to judgments from other common law jurisdictions. This is achieved by requiring any judge who wants to deviate from the prevailing doctrine to bear the ‘burden of argument’, a term coined in imitation of the expression ‘burden of proof’. This means that to discharge the burden a court decision must be very carefully reasoned in order to convince the legal community that the court has got the better side of the argument. Simply not to mention a contrary view which is widely held in legal literature is considered to be intellectually dishonest and a flaw in legal reasoning.92 In this respect, the rebuttable presumption in favour of the ‘truth’ of the communis opinio doctorum that existed under the ius commune93 lives on. Legal practice also acknowledges that scholarly opinion carries a certain degree of normativity. This can be seen from the case law on the liability of legal counsel. In order to avoid liability counsel has, as a rule, to advise his client on the basis of the relevant precedents, even when they have been criticized in legal writing and might be departed from in the future.94 But he may not ‘blindly trust’ that these precedents will be upheld, and he has to follow the recent developments in legal literature. Thus he has to take into account deviating solutions proposed in the leading commentaries.95 This is particularly so if the relevant area of law is currently undergoing substantial

89Art 1(3) of the Swiss Civil Code of 1907.

90Canon 19 of the Code of Canon Law of 1983. See also Art 38(1)(d) of the Statute of the International Court of Justice according to which the Court ‘shall apply ... the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’.

91Stefan Althaus, Die Konstruktion der herrschenden Meinung in der juristischen Kommunikation (1994) at 13–29.

92Robert Alexy, A Theory of Legal Argumentation (1989) at 270, 275–8; Thomas Drosdeck, Die herrschende Meinung: Autorität als Rechtsquelle (1989) at 79–80, 90–2, 95, 120; Karl Larenz and Martin Wolf, Allgemeiner Teil des Bürgerlichen Rechts (8th edn, 1997) at 118.

93cf. Vogenauer, above n 3 at 487–8.

94BGH (3 June 1993—IX 173/92) (1993) 56 Neue Juristische Wochenschrift 2799, 2800.

95BGH (30 September 1993—IX ZR 211/92) (1993) 56 Neue Juristische Wochenschrift 3323, 3324–25 (obiter).

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change and further case law is to be expected. Counsel’s duty to consult legal literature then even extends to the more recent issues of specialist law journals relevant to the subject matter.96

The case law on the duties of counsel alludes to another major problem of the German theory of the sources of law. According to most authors, judicial precedent also constitutes a mere ‘de facto’ source of law in the sense that it is not binding and does not have to be followed by the lower courts, but that, as a matter of fact, the lower courts usually do follow the decisions rendered in a higher court. If they refuse to do so, the ‘burden of argument’ lies with them. Thus both the prevailing doctrine and precedent carry persuasive authority, and there should be no difference in the weight of academic and judicial authorities. However, in practice the persuasive force of precedent is much stronger than that of legal doctrine because the ‘burden of argument’ in favour of precedent is much more difficult to rebut than that in favour of the prevailing doctrine.97 Counsel will always be pleased to find a case supporting his client’s position, even if legal doctrine is unanimous in condemning that particular case. He will be much less pleased to find that his client’s demands are in accord with legal doctrine, but that the Federal Supreme Court has decided differently.

6. Shedding Light on the ‘Empire of Light’: an Overview and an Attempt at Explanation

The overall picture which emerges from the discussion so far is clear. Legal learning exerts a strong, but not a determinative influence on lawmaking. Lawmaking is conceived as a joint enterprise of the legislator, the judiciary and legal scholarship. No voice is excluded a priori. A good argument trumps authority. None of the three groups enjoys clear cut preponderance; to a certain degree all of them contribute to the common effort. Keeping in mind that there has been a marked increase in that of precedent as compared to the authority of legal scholarship for somewhat more than a century now, it can confidently be said that, all in all, a state of equilibrium has been reached which is generally regarded as satisfactory. ‘The result’, as has been said by an eminent American observer, ‘is an extraordinarily effective working partnership between courts and legal scholars’.98

The current relationship between learning and lawmaking in Germany cannot only be explained by the long scholarly tradition of German legal culture which I have described elsewhere.99 It is precisely because many features of this tradition are still alive that the influence of legal doctrine has remained strong right up to the present day. These features can be usefully grouped into three main categories:

96BGH (21 September 2000—IX ZR 127/99) (2001) 64 Neue Juristische Wochenschrift 675, 678.

97See the cases mentioned in nn 94–96, above.

98Dawson, above n 11 at 505.

99Vogenauer, above n 3.

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institutional factors, sociological factors, and the character of German legal scholarship itself.

A. Institutional Factors

The first and most obvious institutional factor is the continuing university monopoly on legal education. The most important statutory requirement for admission to the legal profession is the successful completion of a university degree which requires at least four years of previous studies at a law faculty.100 Even the second phase of legal education (which mainly consists of practical training) involves a substantial amount of theoretical coursework. All young lawyers’ perspectives on law will thus be formed at the university. They begin their discovery of the law with abstract and conceptual reflections of the sort that might be taught to English finalists in their jurisprudence course, for instance on the distinction between ‘the objective law’ and ‘subjective rights’ and on the nature of ‘absolute’ and ‘relative’ rights. They study the various theories about the distinctions between private law and public law and between general private law and commercial law. They become acquainted with the various categories of crimes and will learn to distinguish justification and excuse sharply. By this means they acquire a structural foundation and a conceptual system at an early stage that later enables them to classify any new legal phenomenon and to integrate it somehow into that system. As a result, all practising lawyers are, in principle, ‘learned lawyers’ whether they work in a law firm, as a judge or anywhere in the legislative process; indeed, a relatively high proportion, roughly ten percent of the law graduates, will have read for a doctoral degree before going into practice.101 These products of university teaching will never dismiss academic opinion out of hand, let alone simply ignore it. On the contrary, many judges and practitioners regularly join in the academic discourse by participating in conferences, teaching in the law faculties and contributing to law reviews and commentaries. An important five-volume commentary of the Civil Code, the ‘Reichsgerichtsrätekommentar’ which saw a number of editions between 1910 and the 1980s was exclusively written by judges of the Imperial Court and, later, the Federal Supreme Court. Today’s standard commentary, the ‘Palandt’, is almost entirely produced by judges.

Further institutional factors concern the structure of the courts and the character of the adjudicative process.102 First, judges are usually appointed straight after the end of their legal education when they are still imbued with university training. Second, judges are highly specialized. The Federal Supreme Court alone currently consists of 17 senates which cover closely defined areas of private

100See ss 5(1) and 5a(1) Deutsches Richtergesetz. For the most recent account of German legal education in English see Ingo von Münch, Legal Education and the Legal Profession in Germany (2002).

101Currently only two of the sixteen Federal Constitutional Court judges do not hold a doctorate.

102For a recent and comprehensive overview see John Bell, Judiciaries within Europe: a Comparative Review (2006) at 108–73.

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law and criminal law; the Federal Administrative Court has 14 specialized senates. This high degree of specialization enables judges to take account of legal writings in their narrow area of jurisdiction. Third, the input of academic literature is further facilitated by the clerking system. Every senate at the Federal Supreme Court can rely upon the assistance of two or three young judges who have been seconded from a lower court for three or four years. They draft legal opinions and help in preparing judgments. At the Federal Constitutional Court every judge is even supported by four personal clerks and the assistants’ influence is so substantial that, in their entirety, they are often jokingly labelled the Court’s ‘third senate’. Fourth, the adjudicative process with its predominantly written procedure which is almost always terminated with a reserved judgment leaves much more room for the consideration of legal writings than, for instance, the traditional English oral procedure followed by an impromptu judgment. Fifth, and maybe most importantly, the jurists’ capability to exert influence is strongly enhanced by the fact that precedent is generally not considered to be binding.103 This leaves room for academics to criticize and even disregard judicial dicta in putting forward their account of what the law is or ought to be. If, as in England, a judicial decision is part of the law of the land, legal scholars have to accept it like they have to accept a statute, and criticism can only be levelled at it from the perspective of legal policy. ‘It is’, it has been said, ‘largely because the case is authoritative that the writer is not’.104 If, on the contrary, a decision is perceived simply as an interpretation or as a gloss of the law, scholars can legitimately argue that the court has not stated the law correctly. They can maintain a completely different view, and in arriving there they are not confined to arguments from legal policy, but can use genuinely legal arguments.

Finally, the academic influence on the development of the law is openly supported by the legislator and the courts and thus cannot be denounced as completely illegitimate. The modern lawgiver does not claim to achieve complete coverage of all conceivable circumstances. He rather envisages a division of labour which leaves room for further development by judges and academics. The travaux préparatoires to most codes and statutes therefore contain phrases like this: ‘On this issue no final decision has to be reached at this stage. The question has to be resolved by the judiciary and legal scholarship’. They abound, for instance, in the legislative materials elaborated in the preparation of the Civil Code.105 Roughly at the same time the Imperial Court, in a well-known judgment, emphasized that the legislator cannot explicitly provide for every case: ‘It rather is the business of legal scholarship, and the duty of the courts ... to bring to light the principles of the statute (which are not spelt out concisely in a

103See text to n 97, above.

104William Warwick Buckland and Arnold D. McNair, Roman Law and Common Law: a Comparison in Outline

(1936) at 10, adding at 11 that where case law is ‘handled loosely, the writer is likely to have more influence’.

105See the thorough account by Horst Heinrich Jakobs, Wissenschaft und Gesetzgebung im bürgerlichen Recht nach der Rechtsquellenlehre des 19. Jahrhunderts (1983) at 134–58, and Hans Schulte-Nölke, Das Reichsjustizamt und die Entstehung des Bürgerlichen Gesetzbuchs (1995) at 296–7, 337–41.

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general provision of the statute) and to apply them to the emerging cases which are not mentioned specifically in the statute but are covered by the principle’.106

B. Sociological Factors

When it comes to sociological factors, the traditionally high prestige of academics in general, and of law professors in particular, certainly contributes to scholarly influence on the lawmaking process. The names of many law professors are associated with legal innovations and their views are widely debated. Their standing is enhanced by the fact that they generally occupy a detached and neutral position and that they form a rather small, elitist group. They might not necessarily receive a higher remuneration than judges and are, salary-wise, definitely worse off than leading advocates, but the path to a chair is so extraordinarily arduous that it is unthinkable to allege, as has sometimes been done in England, that someone would have gone into academia because he could not make a success of the Bar.107

By contrast, less prestige is generally attached to being a member of the judiciary or the legislature. German judges enjoy a relatively modest social standing and salary. They are civil servants and, traditionally, their role is not seen as engaging in creativity. Their lawmaking function is usually not explicitly acknowledged. In all cases involving difficult issues judges sit in panels with judgment being given in the name of the court as a unit and not in the name of a specific judge. Dissenting opinions are not permitted. Individual judges are simply not widely known within the legal community. If it is at all possible to speak of the ‘prestige’ of the legislator, this has certainly not been at its peak since the early 20th century.108 German law has undergone the process that French lawyers have described as ‘la désacralisation de la loi’: the belief in the omniscience and the omnipotence of the legislator has been shattered, and it is, as has just been said, not even upheld by those who engage in lawmaking.109 The resulting ‘self-abandonment of the legislator’, his ‘flight’ into vague and indeterminate provisions has often been criticized. Whatever the merits of these claims, it is clear that legislators are not in a position to displace academics as the ‘honoratiores of the law’ or ‘legal notables’ in the Weberian sense.110

C. The Character of Legal Scholarship

With respect to the character of German legal scholarship, it is possible to single out various features contributing to the impact of academics on lawmaking. First

106RGZ (I 332/88 of 2 February 1889) 24, 45, 50 with respect to the 1877 Act on insolvency.

107Harold J. Laski in a letter to O.W. Holmes, 11 June 1929, in M. De Wolfe Howe (ed.), Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935 vol II (1953) at 1156.

108For the remainder of this paragraph see Stefan Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent (2001) at 167–80.

109See text to n 105, above.

110cf. Vogenauer, above n 3 at 482.

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