Intro_continental_legal_science [Unlocked]

being akin to a corporate body <or the community of legal writers>…

Dogma of law

sometimes is used in the sense of ‘doctrine’ or ‘legal science’ in Russian academic literature (especially, pre-revolutionary publications).

Poldnikov D. Dogma and Legal History in Russian Science of Civil Law // Journal on European History of Law. 2011, №1, p. 63– 64.

The beginnings of the Russian legal science can be traced back to the Western European universities, mainly the German-speaking ones. This is why dogma became predominantly associated with the so-called modern Roman law (heutiges Römisches Recht), one of the major courses of the university curriculum of those days. Professors lecturing on the Dogma of Roman law understood dogma as ‘the systematic teaching on legal institutions and concepts which generalizes specific social relationships’. According to Prof. David Grimm (St. Petersburg’s Imperial University), such dogma reflected the essence of legal science which by its definition studied ‘not the social relationships as such, but the abstract types thereof’. By grouping such abstractions into legal institutes, dogma created the object of the legal science itself!

However, in English this word does not have legal meaning.

Black’s Law Dictionary, 9th ed. by Brian A. Garner, p. 556.

dogma, n. A philosophy, opinion, or tenet that is strongly held, is believed to be authoritative, and is followed steadfastly, usu. to the exclusion of other approaches to the same subject matter; a formally stated and proclaimed doctrine of faith.

All in all, there are various synonyms for legal science (or legal scholarship) in the international legal literature. Occasionally, in the same publication these terms could be used interchangeably.

Community.

Black’s Law Dictionary, 9th ed. by Brian A. Garner, p. 979.

Legal science. (term in English since the 18th century)

“The field of study that, as one of the social sciences, deals with the institutions and principles that particular societies have developed

(1) for defining the claims and liabilities of persons against one another in various circumstances, and (2) for peaceably resolving disputes and controversies in accordance with principles accepted as fair and right in the particular community at a given time.”

Elgar encyclopedia of comparative law, p. 159.

Legal science is a body of knowledge, developed mainly by the university professors of law, based on a set of assumptions, principles, and methodology to rationalize and systematize law in its broad sense.

Thanks to legal science, continental lawyers believe now that “legal solutions can be deduced via the syllogism from a closed axiomatic model of law (codification in its traditional sense)”.

Van Caenegem R.C. An historical introduction to private law, p. 171–172.

Jurisprudence <= legal science> has the ability to explain statutes and judgments, to make criticisms which may lead to reforming legislation, and above all to give a rational basis to the study of law. This demands theoretical reflection, close attention to general principles and the coherence of the system as a whole, as well as an interest in legal philosophy and the purpose of law.

Two possible meanings of legal science: body of knowledge and community of scholars.

(1) Legal science as (an autonomous) body of knowledge.

The principal meaning of legal science as an outcome of a critical

analysis of the sources of law on the basis of methods and 11

ideological assumptions.

Vogenauer S. An Empire of Light? II: Learning and lawmaking in Germany today, in: Oxford journal of legal studies, p. 656–660.

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

First 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’.

Here it becomes obvious that, for better or for worse, legal scholarship is still very much under the spell of 19th-century ‘legal science’.

Another characteristic feature of German legal scholarship is its… critical spirit… 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.

… suggestions as to the improvement of the law are not necessarily regarded as mere legal policy, but they belong … to the ‘Province of Jurisprudence’ properly so called. Thus, legal academics are expected to criticize the existing law…

The critical character of legal writing is closely related to another hallmark of German legal scholarship, its… creative or proactive spirit… 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

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scholarship therefore constantly looks out for legal problems which have not yet been settled by legislation or by case law, and it deals even with purely hypothetical questions. There is widespread agreement that scholarship should be both descriptive and normative, thus providing the legislator and the courts with solutions if they wish to take them up.

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… is still alive and well.

At the same time, German legal scholarship has generally retained its… doctrinal spirit. It has not lost contact with legal doctrine and a disjunction between the academy and the profession… <All> professors are supposed to be capable of teaching one of the ‘dogmatic’ core subjects, private law, criminal law or public law.

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… The relevant case law is integrated into academic textbooks so that it is comparatively easy for judges to link up with scholarly writing.

Jestaz Ph., Jamin Ch., The entity of French doctrine: some thoughts on the community of French legal writers, p. 415–434.

“Doctrine” <here as a synonym of legal science>, from the legal point of view, is often understood, in France at least, as a collection of works. For example, Le Petit Robert <a trusted French dictionary> defines it as “the entirety of legal works whose aim is to expound or interpret the law (as opposed to legislation and judicial decisions)". This definition is not erroneous, but it only captures one aspect of the matter…

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In a second meaning, which seems to be particular to France and certain other countries in continental Europe, doctrine is presented as an entity, since jurists commonly say that doctrine agrees with or is critical of such and such a solution, proposes such and such a reform, etc. It would hardly be an exaggeration to argue that doctrine is understood as being akin to a corporate body <or the community of legal writers>…

1. FRENCH DOCTRINE AS A POWER

.. French doctrine exerts a collective power… <but a specific

one>

(i) Absence of <controlling power>

… law… is decided by state officials and thus results from what is concisely called ‘Power’. In France… statutes, administrative acts in the wider sense three embodiments of it (two ‘powers’ and one ‘authority’) and legal decisions, in substance, form our positive law. The feature of doctrine is that it does not belong to that, it does not belong to any of the three decision-makers." Law professors and other authors are part of doctrine, in that they write on law, yet without having any responsibility for enacting it.

(ii) Independence in relation to decision-makers.

This independence has almost a constitutional value, if one remembers that most authors are university professors, who are recognized by the <Constitutional Council of France> as having complete freedom of opinion both in their courses and in their written works. Professors… do not receive orders.

Consequently, in their written works, professors only commit themselves, and not their university, even less the state or the higher education administration…

(b) A power close to Power

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(i) <Doctrine as dogmatics> (in the strongest sense of the word)

… doctrine is like an ant-hill where, in the end, each of the authors, even the most famous, only carries out quite modest work. From time to time, the legislator kicks over the ant-hill, but it is then built up once more. He never completely destroys it, as the existing doctrine is imposed on him to a certain extent. There lies the true power of doctrine, which is always said to be based on knowledge, but also on the enormous amount of collective work. (p. 426)

2. FRENCH DOCTRINE AS A BODY

(a) Admission to the body

professors and senior lecturers make up at least 90% of the <doctrine as a body>. As for the other 10% (doctoral students, judges, civil servants, etc), they have all been students of the former. Thus, members of doctrine have all gone through the mould of French universities…

.. doctrine essentially includes professors with a favoured social status … and, eventually, the wealthy bourgeoisie… Doctrine thus constitutes an extremely homogeneous group, even if it is not totally identified with the faculty…

<Moreover>, to be successfully admitted to doctrine, one must have made a certain number of publications and… they should be dense rather than numerous, according to precise literary genres, respecting all the rituals of written works and even paying attention to the means of publication…

To be admitted, the person concerned must have published works which are considered <or recognized>… to be genuinely doctrinal.

… not considered as being part of doctrine… the <introductory> textbooks… a brief on-the-spot commentary of a new law aimed at

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practitioners, and, more generally, on works considered purely descriptive.

… <only the authors of> authorised doctrine <are entitled> to speak in the name of doctrine!

Legal Science as Continental Phenomenon vs English Judge-Made Law.

Is Legal Science a pan-European Phenomenon?

Cotterrell R. Comparative law and legal culture, in: Oxford handbook of comparative law, p. 714.

(see also: Wieacker F. Foundations of European Legal Culture // The American Journal of Comparative Law, Vol. 38, No. 1 (Winter, 1990), pp. 1–29)

Franz Wieacker’s identification of elements of European legal culture has been influential here. He emphasizes three elements that may together indicate the essence of this culture. Thus, ‘Personalism’ refers to the ‘primacy of the individual as subject, end, and intellectual point of reference in the idea of law’… ‘Legalism’ indicates decisionmaking through general rules of law… It points to a positivistic separation of law and morals, and of law and politics… Finally, ‘intellectualism’ indicates a general, intellectually orderly, systematic way of thinking about law that, for Wieacker, strains towards ‘thematization, conceptualization and contraction-free consistency’.

… In other words, <legal> culture could be envisaged as unifying and giving meaning to law, and perhaps inspiring its future development in ways that would be justified by the sense of a cultural heritage in which changing positive law finds secure moral and emotional foundations.

It is not surprising, then, that Reinhard Zimmermann calls for the development, in a Europe-wide context, of what Savigny called an ‘organically progressive’ legal science, and for the reconstitution of

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Savigny’s German historical school of jurisprudence on a European level. Implicit in this is the idea that legal culture itself cannot be codified but has to grow from diffuse sources, hard to define or categorize.

Jestaz Ph., Jamin Ch., The entity of French doctrine: some thoughts on the community of French legal writers, p. 436.

The hypothesis: if the same conditions (independence, crucible, dogmatic analysis, etc) are all found in another country, the doctrinal entity may appear with characteristics similar to those observed in France. We should turn towards our close neighbours on the continent, especially Belgium (historically sharing the same Code civil as us), Italy (which is very doctrinal) and Germany (the country of Professorenrecht <i.e. a scientifically constructed law>).

Legal Science as Phenomenon of (continental) Civil Law, not of English Common Law.

Elgar encyclopedia of comparative law, p. 221.

“One important difference between <contemporary> legal systems... concerns the role of legal science in interpreting and even making law. Owing to the historical role of legal scholars in rediscovering and adapting ancient Roman law to medieval and renaissance societies in central Europe, the systematic way of analysing and interconnecting legal issues typical of theory-oriented legal thinkers still plays an important role in several legal systems, especially on the European continent. Academics certainly cannot ‘invent’ new criminal prohibitions or claim prevalence over the courts in interpreting existing ones, but leading legal scholars still wield considerable authority in suggesting interpretations of the law in line with their theoretical concepts.”

Elgar encyclopedia of comparative law, p. 158–159.

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“A number of conclusions can be drawn from this survey of the common law but perhaps the most important for the comparatist is the absence of a notion of legal science (Legrand and Samuel, 2005). There are several reasons for this. First, and foremost perhaps, is the lack, until the late 19th century, of university law faculties which, of course, not only deprived English law of a body of professors keen to rationalize and systematize but equally left law in the hands of practitioners whose epistemological framework was, and is, different. Secondly, the old forms of action did not lend themselves to scientific analysis; they were closed empirical categories which did not form part of more general categories themselves capable of forming part of a deductive, and ultimately axiomatic, model. Reasoning, therefore, tended to be by way of analogy rather than logic; and while things have undoubtedly changed since the 18th century – mainly as a result of the growth of university law faculties – this change has come too late to effect a fundamental epistemological shift.”

Vogenauer S. An Empire of Light? II: Learning and lawmaking in Germany today, in: Oxford journal of legal studies, p. 657–658.

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; where the first and, for a long time, the last person who seriously attempted to draw up a ‘map of the law’ was Blackstone…

<reserved criticism> of the English… Sir William Holdsworth, Vinerian Professor between 1922 and 1944, … felt that ‘the law teacher ought not to encourage criticisms of the judiciary in an age of skepticism’…

The <difference between civil law and common law> becomes apparent <also> by looking at the major textbooks in the different jurisdictions. Many a section in an English textbook closes with the

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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: ...’..

Van Caenegem R.C. European Law in the Past and the Future: Unity and Diversity over Two Millennia (2002), p. 47.

… famous Professor Dicey chose as the title of his inaugural lecture in Oxford ‘Can English law be taught at the Universities?’ (his reassuring answer was positive) – this was in 1882!...

Eventually the debate was settled in favour of the universities: Oxford created a School of Jurisprudence and Modern History in 1850, followed by an autonomous School of Jurisprudence in 1871. Nowadays Law Faculties are omnipresent and almost all young people who want a career as solicitor, barrister or judge obtain a law degree in a university.

Van Caenegem R.C. An historical introduction to private law, p. 79–80.

The fact that for centuries leading lawyers were educated in law faculties had great importance for the development of law in Europe. It gave continental European law not only its Romano-Germanic basis but also its typically theoretical and conceptual character. In a general historical perspective, it is rather surprising that these lawyers received their professional education far away from daily legal practice; their education instead took place in universities and consisted in an initiation lasting several years into the 'sacred books' of their discipline. The education of common lawyers is much more typical: young people who wanted to devote themselves to a legal career were taken on as apprentices with an established practitioner and worked as clerks or assistants in practice in London, where the royal courts sat…

On the continent, for centuries judges and advocates trained in practice practised alongside university graduates. In the Netherlands the latter acquired real importance only from the fifteenth century, and in

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