Intro_continental_legal_science [Unlocked]

general the notion that a university education was indispensable for judges and advocates in the higher courts became current only in early modern times <i.e. from the early 16th century on>.

Each educational system – theoretical on the continent, practical in England – has its advantages and disadvantages. The continental method offered the prospect of acquiring a detailed knowledge of the principles of a rational legal system, but it was remote from actual legal practice and did not prepare graduate lawyers to practise customary law. The English method on the other hand immediately confronted the intending lawyer with daily practice and living law, but it could not offer him the theoretical and analytical approach peculiar to universities, nor familiarize him with Roman law to broaden his intellectual horizons.

Braun A. Professors and judges in Italy: it takes two to tango, p.

680.

In England… a community of scholars has formed only slowly over the last four decades, but which does not conceive of itself, or act as, a collective entity. This might also explain why England does not know of an <expression equivalent to French or Italian ‘legal doctrine’ in legal language>.

Braun A. Professors and judges in Italy: it takes two to tango, p. 666–670.

2. Recent Developments in England

We have often been told that in England, legal scholarship has always been far less important in the legal process than on the Continent… the role of legal scholarship as one of the major differences between common and civil law… <see, for example, Zweigert and Kötz’s Introduction to Comparative Law>.

However, since <1980s> the situation has changed radically. In particular, appellate court references to academic literature have increased enormously; a phenomenon which is gaining increasing

20

recognition among the judiciary and legal scholars alike… References to academic writings in judgments have not only increased in frequency, they have also evolved considerably in style and language. On some occasions English judges explicitly acknowledge the influence of academic literature on their decisions, or on the development of specific areas of the law. Some courts have, indeed, declared that academic materials can be of great assistance when reaching a decision; in particular when there is no binding precedent or statute to be applied…

…Academic writers, in fact, have the instruments, as well as the time, to analyse, interpret, criticize, synthesize and rationalize case law.

…The analysis of English reports of recent years reveals to us, for instance, that judges are better informed about the literature than they used to be in the past. As Lord Justice Longmore has recently put it: ‘These days judges read academic articles as part of their ordinary judicial activity’.

…Apart from displaying the deeper knowledge… the citation practice of English judges shows that their formal attitude towards legal doctrine has changed. Judges do not usually try to conceal the fact that they read academic literature… On the contrary, there seems to be a tendency explicitly to demonstrate how well-informed judges are and that in making decisions they also take into consideration the existing legal literature – a tendency which has become more evident since the definite abandonment of the convention which forbade judges from citing living authors as authorities. Judges finally feel free to make use of legal literature and to admit it openly.

Gordley J. Comparative law and legal history, in: Oxford handbook of comparative law, p. 758.

A.W.B. Simpson <d. 2011> and others have shown that in the 19th and early 20th centuries, the English borrowed these ‘great elementary conceptions’ from Continental law. Until then, the English organized their thinking in terms of the rules governing particular writs

21

such as trespass and assumpsit. In the 19th century, for the first time, they developed a systematic doctrinal structure, borrowing much from the Continent. … the history of English law cannot be read, nor modern English law understood, apart from the history of Continental law.

Significance of Legal Science through Its Influence on Lawmaking, Administration of Justice, and Education.

Professor of law is paramount

Van Caenegem R.C. European Law in the Past and the Future: Unity and Diversity over Two Millennia (2002), p. 45–46.

In civil-law countries the ‘makers of the law’ have for centuries been the learned jurists led by the professors in the Law Faculties. The academic writer is the senior, the judge the junior partner in the life of the law. The authors of the great Treatises are the teachers, and all barristers and judges once sat at their feet. Legal wisdom spoke from the pages of the commentaries <and textbooks>… <in Germany> the leadership of the Faculty reached its zenith with the practice known as Aktenversendung <forwarding of acts>, in which a law court faced with a difficult question of law consulted the professors of a Law School, sent them the ‘acts’ of the suit and was given a binding advice. That the Bench should be told what judgement to give by a group of professors is hard to imagine in common-law lands, but on the Continent the <forwarding of acts> descended from the medieval practice of lower courts consulting a superior jurisdiction (‘appeal before judgement’), as judges nowadays can pose prejudicial questions to the European courts. That, however, was consultation within the judicial system, but after the reception of <Roman law> German courts began to consult the law professors, whose advice eventually became binding. The most famous example was the Spruchkollegium <committee of experts> of the Berlin Faculty when Savigny taught there, from 1810 onwards. The practice was terminated after 1877–1879, when new laws on procedure and court organization were introduced

22

Professors of law influence lawmaking and judicial decisionmaking

Legal science (legal doctrine) is not a ‘formal’ source of law, but it is a de-facto source.

David R. Academic works, reason, equity // International encyclopedia of comparative law. p. 142.

The function of academic works may differ <from country to country>. A judge may be required, if in difficulties, to follow the opinion of one or more particularly expert jurisconsults (1). Or they may be of persuasive authority only (2).

Vogenauer S. An Empire of Light? II: Learning and lawmaking in Germany today, in: Oxford journal of legal studies, p. 651–653.

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. 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…

.. 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…

… Still, both legal theory and legal practice also attribute 23

some normative force to the ‘prevailing doctrine’ <or> ‘dominating doctrine’. Legal theory assigns a status to legal learning which can be compared to the ‘persuasive authority’… This is achieved by requiring any judge who wants to deviate from the prevailing doctrine to bear the ‘burden of argument’… 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… In this respect, the rebuttable presumption in favour of the ‘truth’ of the communis opinio doctorum that existed under the ius commune 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. But he may not ‘blindly trust’ that these precedents will be upheld, and he has to follow the recent developments in legal literature <especially, in the leading commentaries>.

Vogenauer S. An Empire of Light? II: Learning and lawmaking in Germany today, in: Oxford journal of legal studies, p. 633–648.

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. 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 ff.) and large parts of the Dutch Nieuw Burgerlijk Wetboek (1947 ff.) 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...

24

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…

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…

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…

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 the precise formulation of a new rule to be enacted…

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

25

the law, especially those which have never been comprehensively codified…

But even in other areas the legislator usually does not engage in sophisticated system building… 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…

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…

<‘Doctrine>... is like an ant-hill where ... each of the authors ...

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’.

… 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.

3. Legal Luminaries II: Learning and Judicial Decisionmaking

A. Controlling Influence

The impact of legal scholarship on judicial decision-making can also be controlling, direct or indirect.

Controlling influence is exerted if legal scholars themselves assume an adjudicating function. There is no sending of cases to professorial benches at the nearest law faculties anymore, the practice of the ius commune having been finally abolished in 1879. However,

26

the German Statute Concerning the Judiciary and the Federal Regulation of Civil Servants’ Salaries explicitly provide for the possibility of academics serving as fullor part-time judges. A number of law professors thus hold a part-time post in a senate of one of the regional <courts of appeal>…

… the Federal Constitutional Court is dominated by academics who are on leave from their faculties in order to take up a 12 year fulltime position at the Court. Currently eight out of the 16 Federal Constitutional Judges previously held a chair in law. Of course, a professor who is appointed as a judge does not necessarily copy statements from his textbooks into his judgments. But his whole outlook and attitude have been shaped for a considerable period in academia, and he will not be able to deny this completely.

B. Direct Influence

… The direct influence of scholarly activity on judicial decisionmaking is of much greater relevance. This is exercised in three different ways. First, law professors are allowed to practice and thus to act as counsel in court for one of the parties to litigation…

Second, scholars frequently prepare legal opinions or empirical studies on issues being contested in a particular court proceeding… Here, the academics usually act as neutral expert witnesses appointed by the court. As opposed to this, legal opinions are not commissioned by the court since… German courts are supposed to know the law themselves. Professorial opinions are therefore ordered by counsel for one of the parties to litigation who then introduces them into the proceedings. This is done in every area of the law, particularly if there are high values at stake, as in banking law, corporate law or insurance law or <constitutional law>… Thus it is usually very difficult to estimate the impact of such contributions on the process of judicial decision-making. On the one hand, they are intended to buttress counsel’s argument on a specific point of law and therefore lack impartiality and are only of limited value to judges. On the other hand,

27

an opinion of a prestigious law teacher carries great authority and will not be easily dismissed.

Third, direct influence on judicial decision-making is exercised by the publications of legal scholars… Legal literature can influence the courts in various ways. It can make suggestions as to the treatment of very specific legal problems and provide an exact solution for a case… Such writing might be spurred by technological change… It might also be occasioned by legal developments… In addition, legal literature can deal with very general and sometimes even rather philosophical questions, the treatment of which nevertheless determines the outcome of particular cases…

Direct influence through publications is highly visible because of the frequent citation of academic writings in judicial opinions… Of course, citation frequency cannot straightforwardly be equated with intellectual influence. Noncitation does not necessarily indicate an absence of influence, and different citations can embody strongly different degrees of influence…

… the impact of learning on judicial decision-making in France or Italy cannot be gathered from citation frequency, the terse style of judicial opinionwriting in these countries not allowing for any specific references at all, whereas the discursive style of German judgments leaves ample room for such citation.

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 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

28

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.

… “The result… is an extraordinarily effective working partnership between courts and legal scholars”.

Braun A. Professors and judges in Italy: it takes two to tango, p. 680–681.

In Italy, judges often write their opinions as if they were composing an academic article, adopting the same language and almost the same style. In other words, judges seem to mimic the behaviour of legal writers.

Italian judges… seem to be afraid that their judgments will not meet with the approval of legal doctrine, and in some cases may even radically change their position following critical remarks by academics. In doing so they demonstrate an attempt to establish a dialogue which they expect to be reciprocated by academic legal writers. But the latter, in fact, do not always respond. Indeed, academics usually do not seem to really care about the opinions of judges on their writings. While judges seemingly acknowledge the authority of ‘legal doctrine’, academics paradoxically do not appear to acknowledge the authority of the judges.

Pervasive Influence of Legal Science on Legal Education.

Vogenauer S. An Empire of Light? II: Learning and lawmaking in Germany today, in: Oxford journal of legal studies, p. 654.

The first and most obvious institutional factor <in the relation between legal science and lawmaking and administration of justice> is the continuing university monopoly on legal education <in all major countries of Continental Europe>. 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. Even the second phase of legal

29