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Wednesday, February 19, 2014

Will Germany always really best the US (and the world) in doctrinal legal scholarship?

Germany's Science Council (Wissenschaftsrat) has issued a report on the state of legal scholarship in the country.  At first glance it is fairly interesting as an overview of the strengths and weaknesses of the discipline.  The report has attracted, however, a rather unusual response at Verfassungsblog from a professor at Duke, Ralf Michaels, who seems to hold to theories of cultural determinism in legal education.  According to Michaels, "German doctrinal scholarship will always be superior to that of other countries,.." 

Always?  I am not sure what to make of this.  Is it an indirect insult, a polite (at least in Germany) way of saying that Germany will not ever be superior in Rechtsphilosophie or interdisciplinary scholarship?  Even if one were to accept for a moment cultural determinism, and I do not, still one would have to wonder about the soundness of the assessment of the historical German legal culture-is the German public law tradition, and its strengths, to be reduced to doctrinal wizardry?  Anyone with awareness of that tradition as it evolved from Hegel until the day Hitler came to power would, I think, have to say no.    

It is not clear what Ralf Michaels thinks is wrong with American doctrinal scholarship-he only mentions that a lot of it is written by practitioners-whether this is empirically the case is questionable, but of course one finds an enormous amount of subtle and careful commentary on appellate and Supreme Court jurisprudence in a range of areas, from academics as well as practitioners.  I have used German doctrinal tools like the Max Planck Encyclopedia of International Law, which is excellent,  but also some of the US Restatements, which are of very high quality,too.   I just can't imagine where Michaels gets the authority to assert with confidence the national or cultural stereotypes that he does (and I would add that I have learned a lot from reading recent German scholarship in public law and constitutional law theory by for example Armin von Bogdandy, Christoph Moellers, Christian Joerges, among others, which is of course not at all "doctrinal" at least not in the caricatural sense that Michaels suggests).

What is the real issue?  All doctrinal scholarship, if illuminating, must make signifcant normative or evaluative judgments.  I believe that can be shown.  The question is what is the source of those judgments; is there an internal conception of the law itself as a normative order, or do we need to go "outside" and to what extent and to where, and how is that legitimate?  On this as on many other matters, re-reading my much missed late colleague Ronnie Dworkin is very instructive.  



Posted by Rob Howse on February 19, 2014 at 08:40 AM | Permalink


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Rob Howse's original post is spot on. I hope to be able to weigh into this a bit more comprehensively, but I just want to associate myself completely with Howse's comments. The celebration of German hegemony in doctrinal scholarship (going well beyond the Report upon which Michaels relies) borders on the xenophobic.
More troublingly, the mischaracterizations of trends and tendencies in contemporary American legal scholarship are remarkable. More on that later.

Posted by: dan rodriguez | Feb 24, 2014 2:28:05 PM

There are some eternal truths. For instance, Germans will be better than Americans at soccer. Forever.

And Americans will be best at the sports that they invented and nobody else plays. Forever.

Posted by: Bayern | Feb 22, 2014 8:51:36 AM

To Martin, that is fine, I appreciate your openness to reconsidering how you thought of my initial post in light of our exchanges. As I say, the last line in your first post seemed to me to add an important deepening element to this whole discussion.

Posted by: Rob Howse | Feb 21, 2014 8:25:38 AM

I read Ralf's post (including the claim about German doctrinal scholarship) as a very nice argument that the U.S. legal education model risks losing some of its unique strengths if it accepts the overwhelmingly practical emphasis in the ABA Task Force's report. He might be overstating the differences between the US and German models of legal education and scholarship but he's correct that there's some irony "that US legal education should be asked to drop its strong interdisciplinarity at the exact moment when this is proposed as the way forward for other countries." He highlights the German emphasis on doctrinal scholarship not to critique it but to suggest that both countries have something to learn from each other--and more importantly to argue that scholarship for its own sake is a worthwhile endeavor that the consumer model represented by the ABA report calls into question.

Posted by: Brian Ray | Feb 20, 2014 10:50:18 PM

Okay, thanks for the clarification. What I found upsetting was the accusation of cultural determinism, which arguably Ralf brought on himself with his choice of words. Personally I would find this kind of accusation upsetting, especially on the basis of a short sentence that was probably written without much thought since it makes a point that is probably self-evident to a German audience (with respect to the current situation, not necessarily "always"). Therefore I thought it is problematic to make this criticism without a deeper understanding of what domestic German scholarship looks like. But since I have no stake in this, please consider my request for an apology to Ralf retracted (my reading of your post was probably biased by some of the comments that it triggered).

I did not read your post as critique of German doctrinal scholarship (or Continental European scholarship more broadly) at all. In fact, I am very critical of it and feel that it ought to be infused with a strong dose of legal realism. This is part of the reason why I am in the US.

Posted by: Martin Gelter | Feb 20, 2014 11:49:54 AM

A quick reply to Ted: Recall that "our illustrious" judge Oliver Wendell Holmes Jr. was himself a proponent of eugenics and authored the Supreme Court's opinion on compulsory sterilization in Buck v. Bell (1927). I mention this merely as a reminder that Germany did not have a monopoly on eugenic thinking or practice at the time, not as a defense of either, or an attempt to relativize Nazi atrocities.

Ted's point about the dangers of severing substantive from formal rationality are well taken, however. Max Weber also made this point quite forcefully.

This leads to the paradox suggested by Martin's last paragraph: The effort to "de-politicize" law in Germany after 1945 created the contemporary situation in which many legal scholars hide behind ostensible 'scientific neutrality' and deny the political valence of their work.

Posted by: Helen Hartnell | Feb 20, 2014 11:35:58 AM

You say I owe an apology to Ralf due to my unfamiliarity with German domestic legal scholarship. I do think that statement misrepresents the issue between us, because it suggests that what I have done is criticize German domestic legal scholarship from an uniformed point of view. But as I explain, I do not do that and the disagreement between Ralf and I is otherwise.

Posted by: Rob Howse | Feb 20, 2014 11:27:37 AM

I do not think I misrepresented your post. Where? My second and third paragraph respond to James Maxeiner, and my fourth paragraph responds to Ted.

My only comment about your post is in the first sentence, where I agree with you that "will always be superior" is unfortunate. We agree that he should not have written this. We disagree about the extent to which the criticism of this sentence is justified. Maybe I should not have said "it is taken out of context", but rather that it is blown out of proportion. But by no means it justifies some of the vicious attacks on this page (for which you of course have no direct responsibility).

In any event, I look forward to reading your response on Verfassungsblog.

Posted by: Martin Gelter | Feb 20, 2014 11:18:42 AM

To Mr. Gelter: First of all, I took nothing out of context. The statement that German doctrinal scholarship will always be superior to any other was a self-standing claim in the blog post. Second, I owe no apology whatever due to my supposed unfamiliarity with domestic German legal scholarship. After all, I made no judgment in my post about that scholarship as a whole; I did indicate that I found illuminating some particular German scholars who write a form of scholarship that could in some ways be called "doctrinal" and in other ways as theoretical in a manner that transcends what people often think of as "doctrinal". I certainly would have no basis to denigrate domestic German legal scholarship as a whole nor would I imagine ever engaging in such an exercise. At the same time, I don't think that any degree of familiarity with such scholarship could establish the triumphalist claim that it will always be superior to the scholarship of a similar genre by other nationalities.

Having misrepresented fundamentally the issue between me and Ralf-my own reply to his response will be posted soon on Verfassungsblog- you go on nevertheless in the final sentence of your comment to make what seems to me a very important observation, which may get to the heart of the matter.

Posted by: Rob Howse | Feb 20, 2014 10:57:29 AM

I agree with James that Professor Michaels’ blog post is very thoughtful and interesting. The use of the term “always” is unfortunate, since we do not know the future, but taking it out of the larger context of the post is unfair to Ralf. (In my view Professor Howse, who does not seem to be familiar with domestic German legal scholarship, owes Ralf an apology).

What I think Ralf means by “doctrinal scholarship” is “Rechtsdogmatik”, and I have used this translation myself. Simply speaking, the objective of this kind of scholarship is to determine what the correct interpretation of the law is. This goes way beyond commenting on court cases. In the light of legal realism, it is of course questionable whether there is a correct interpretation of the law and whether this type of scholarship can actually be meaningful. Most Americans probably would say it cannot. However, within its own frame of reference, German Rechtsdogmatik is very sophisticated, and today there is very little of this in the US, at least in the areas that I follow. In Germany, doctrinal scholarship is thus cited all the time by the courts.

Contrary to James, I would say that “Rechtswissenschaft” (legal science) is broader and includes other perspectives on law such as legal philosophy, legal sociology, law and economics etc., but all of these disciplines are marginalized in the domestic legal discourse in Continental Europe.

Ted’s comment seems a bit beside the point, but there is a good argument to be made that German legal scholarship turned so strongly toward doctrinal scholarship after World War II because it seemed apolicital and thus allowed the legal community to avoid confronting the role of judges, lawyers, and law professors between 1933 and 1945.

Posted by: Martin Gelter | Feb 20, 2014 10:37:50 AM

James, is this a joke? You cite the 1914 Carnegie Report which ostensibly praised German scientific achievement and "implored American law professors to work 'for the establishment at last of a scientific system for the common law, thereby opening the way for a most fruitful development of national law and procedure and making and invigorating the principle of social and economic justice in the life'
Didnt German scientists plan and implement the killing mentally retarded people in the 1920s and 1930s because they couldnt contribute to national achievement?
See http://www.bbc.co.uk/ouch/fact/the_holocaust_and_disabled_people_faq_frequently_asked_questions.shtml

That of course included people with physical disabilities like Parkinsons. http://www.disabilityhistory.org/t4prog.html

Is that "superior" scientific achievement? I recall that important legal scholars at the time approved of this as a "humane" and "social" way of taking care of these people. If that what "social and economic justice" I am happy that American legal scholars are not as superior.

Posted by: Ted | Feb 20, 2014 3:17:02 AM

American legal scholars should read Professor Michael’s blog post. It is a thoughtful comparative analysis of approaches to law in two different systems by one of the rare persons who knows and appreciates both. Those who share his knowledge are not likely to take issue with much of anything in the post. I think Roscoe Pound and Karl Llewellyn would agree with Ralf. I think Arthur von Mehren (under whom Ralf studied) and Rudolf B. Schlesinger (under whom I studied) would agree with him. I think the authors of the most international of American reports on legal education (the 1890s ABA report and the 1914 Carnegie Report) would agree. German legal science (Rechtswissenschaft) IS remarkable. Frederick Maitland marveled at it. We have nothing like it. One hundred years ago the 1914 Carnegie Report in its final sentence implored American law professors to work “for the establishment at last of a scientific system for the common law, thereby opening the way for a most fruitful development of national law and procedure and making and invigorating the principle of social and economic justice in the life of the American people." Ralf’s mistake—that drew ire—was to call Rechtswissenschaft “doctrinal scholarship.” Had he spoken of legal science, Americans would have laughed at him: who wants that, they would ask. No one would have objected to his having written: “German legal science will always be superior to that of other countries.”

Posted by: James Maxeiner | Feb 19, 2014 10:35:56 PM

I have to disagree that the remark was impolite. To say your country is "the best" at a kind of "scholarship" that is recognized as what you do when you don't know anything other than the pablum courts of a particular jurisdiction produce is a strange kind of bragging. Germany, which in the 19th-century, was the Western leader in all areas of scholarship, has been suffering a century-long eclipse in the intellectual arena. If the best it can claim is leadership in 'doctrinal legal scholarship," then we should accord it that 'distinction.'

Posted by: Brian | Feb 19, 2014 10:35:00 PM

Ralf Michael's remark is stupid and impolite. The rest of German scholars apologizes for this guy (at least it wasn't us who made him a professor ...).

Posted by: Stefan | Feb 19, 2014 7:06:34 PM


Posted by: Jeff Lipshaw | Feb 19, 2014 10:18:01 AM

Hyperlinks to the source of the claims? One of the nice features of the blogging medium. What you've quoted sounds odd, but context may be everything....

Posted by: Jeff Lipshaw | Feb 19, 2014 10:12:25 AM

So Prof Rolf claims "German doctrinal scholarship will always be superior to that of other countries,.."
What a bizarre claim to make. It presumes that such scholarship is currently "superior" as well. Can he point to studies which so prove? By what standards does he make this boast? What about American legal scholarship or Chinese? What about Israeli or Singaporean or British scholarship? Are these legal scholarships "inferior" to German scholarship? No.

Posted by: Ted | Feb 19, 2014 8:52:48 AM

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