Legal Scholarship

From Max-EuP 2012

by Stefan Vogenauer

1. Function and terminology

Legal scholarship is the rational enquiry into legal phenomena. It usually involves a combination of conceptual, systematic, empirical and normative approaches. These may be given different weight in different legal systems and at different times in history. The core of legal scholarship is black letter legal doctrine or ‘legal dogmatics’ (Rechtsdogmatik), ie the acquiring of knowledge of the law in force, its analysis and the process of making suggestions for its improvement. Legal scholarship in the broader sense also includes the investigation into the historical, philosophical, economic, political, sociological and cultural foundations of law, as well as the comparison of legal phenomena in different legal systems.

The notion of ‘legal scholarship’ can be traced back to the Latin phrase iuris prudentia (‘knowledge’ or ‘prudence of the law’, ‘skills in the law’). In medieval Europe, this developed into terms like Jurisprudenz or Rechtsgelehrtheit (‘legal learning’ or ‘scholarship’). From the 16th century onwards, learned jurists increasingly discussed whether they pursued a ‘scientific’ activity. This led to the establishment of the concept of Rechtswissenschaft in early 19th-century Germany which was borrowed by other European languages, such as Italian, where the terms scienza del diritto or scienza giuridica are used with a broadly similar meaning. However, in other legal systems, such as England and France, concepts like ‘legal science’ and science du droit still have a ring of artificiality, and they are much less used than more traditional terms, such as ‘legal scholarship’ or la doctrine.

In Italian and German legal terminology, la dottrina or die Lehre are used synonymously with scienza del diritto and Rechtswissenschaft. This usage shows that legal scholarship is primarily a matter of academic teaching and research. However, the law is not a purely academic affair but a quintessentially practical subject. Legal scholarship therefore not only strives for gaining knowledge but also attempts to produce results that are of use in legal practice. At the same time it receives ideas for the formulation of new questions and the development of new solutions from legal practice. As a result, in most legal systems practising lawyers participate in scholarly discourse.

In modern societies, the law is mostly laid down in written texts. It is one of the main functions of legal scholarship to further the understanding of these writings. Legal scholarship is thus largely concerned with their interpretation. The peculiarity of these texts is their claim to normative force: they oblige their addressees, and their non-observance triggers sanctions backed by state force. As a consequence, legal scholarship is to a much larger extent bound by normative standards than other text-based scholarly disciplines. At the same time, one of the main functions of legal scholarship is the suggestion of new solutions going beyond the law currently in force, and those solutions, in turn, are to acquire normative force themselves. Legal scholarship is thus also normative in character.

These features of legal scholarship make it difficult to define its place within the broad range of other academic disciplines. Its claim to normative force with regard to resolving questions of wider relevance to society connects it to philosophy and a number of social sciences, such as politics and economics. Its text-based character resembles that of other hermeneutic disciplines such as theology. In the early universities, the strong practical bent of legal scholarship led to a close affiliation with other vocational subjects, particularly medicine. As a result, the ‘scientific’ or rigorously ‘academic’ character of legal scholarship has sometimes been doubted. Today, there are more pressing questions, for instance whether, given its many points of contact with other disciplines, legal scholarship actually is or should be an ‘autonomous’ subject of enquiry, and, if so, whether it should be a part of the humanities or of the social sciences.

In many European languages, concepts such as ‘legal learning’, la doctrine or die Rechtswissenschaft not only denote the process of analysing legal phenomena, but also serve as the collective noun for the persons who produce legal scholarship and/or the publications which emerge from this process.

2. Origins of legal scholarship in Europe

An independent group of legal experts emerged early in ancient Rome. Initially, they belonged to the caste of Roman priests; later they were independent and wealthy private scholars. The iuris prudentes or iuris consulti provided legal consultation. At first, the jurists handed down their knowledge orally to their pupils, but since the 2nd century BC they increasingly recorded it in writing. The first comprehensive treatment of Roman law, which is usually attributed to the jurist Quintus Mucius Scaevola, was written around 100 BC. The earliest textbook style overview for teaching purposes, the Institutes of Gaius, dates from roughly AD 160. The first 250 years AD are commonly regarded as the high-water mark of Roman legal scholarship. Although Roman law and legal scholarship generally declined in late antiquity, the first schools of law were nonetheless established in Asia Minor in the 5th and 6th centuries.

The Roman jurists were not concerned with establishing a uniform legal terminology, with rigid taxonomies or anything like the construction of a sophisticated system of rules and principles, although they did develop a specific style of legal thinking and elaborated key concepts, guiding principles and patterns for the organization of the legal material. Gaius, for example, divided the subject matter into the seminal categories of persons, ‘things’ and actions. However, the discussions of the Roman lawyers mostly turned on selected legal problems which were resolved in a close interplay with legal practice. Since the men who were entrusted with the administration of civil justice did not have any legal training, they normally followed the informed advice of the jurists. As a result, the legal opinions of the jurists (responsa) became a veritable source of law. This ‘jurists’ law’ ultimately gained such importance that, in order to limit its authoritative force to the writings of five eminent classical jurists, Emperor Theodosius II enacted a ‘law of citation’ in 426. Nevertheless, many of the classical fragments acquired legislative force later when they became the textual basis of the Digest (Corpus Juris Civilis). Earlier pieces of Roman legislation had also been influenced by jurists who had given legal advice to the Emperors.

3. Development of European legal scholarship since the Middle Ages

Many features of European legal scholarship can be traced back to Roman law: its being bound by authoritative, originally even sacral standards; its focus on practical application in a constant dialogue with those working in legal practice; and its claim to normative force with an influence on lawmaking. In the Middle Ages its text-based character, the central role of interpretation and the institutional link with the universities were added.

The renewal of European legal scholarship started with the rediscovery of the Digest in the late 11th century. Due to its reception in the era of the ius commune, the Corpus Juris Civilis acquired the status of a subsidiary source of law in large parts of Europe. Justinian’s codification was the cornerstone of legal education in the newly established universities. From that point onwards, legal scholarship and the teaching of law remained closely interlocked. Those working as legal scholars were usually also expected to teach law. A similar link prevailed in countries and periods where legal education was not provided in the universities. In England the national law in force was only taught in the universities from the 19th century onwards; in earlier centuries, the function of analysing and structuring legal material was performed by the practitioners teaching law in the Inns of Court, albeit to a lesser degree than by the continental scholars of the time.

The periodization of European legal history since the Middle Ages which is widely accepted today divides the past millennium according to the scholarly approaches vis-à-vis the sources of Roman law that prevailed in the respective periods. Each of these periods placed a different emphasis on the various features of legal scholarship that were highlighted at the outset of this entry.

The era of the glossators began towards the end of the 11th century. Here, scholarly treatment remained mostly confined to an intensive analysis of legal texts by way of marginal glosses (glossae) to particular words of the Corpus Juris. The glossators did not intend to criticize the Roman codification but rather aimed to make it more accessible and comprehensible. This approach is usually said to have been closely related to theological scholarship. To lawyers the Corpus Juris was as much the ratio scripta, an authority that had to be strictly followed, as was the Bible to theologians. In the High Middle Ages the two disciplines also shared the same scholastic method of textual analysis that relied on specific modes of reasoning, particularly the syllogism and the attempt to resolve contradictions between different, equally authoritative, textual fragments by way of a so-called harmonizing interpretation. As a general rule, students of law had studied the septem artes liberales before embarking on their law degree and had thus received training in grammar, rhetoric and logic (dialectic), as had the aspiring theologians and medical doctors of the time.

The era of the commentators (‘consiliators’, ‘postglossators’) which began in the 14th century saw a reorientation towards legal practice. The focus shifted to making the ancient sources more useful for the solution of contemporary problems. This was achieved by way of creative, sometimes bold, reinterpretations of the Corpus Juris. The strong connection to legal practice was supported by the scholars’ extensive involvement in the writing of legal opinions. Their consilia dealt with the practical problems of the day, and they did not only apply ancient legal sources, but also the modern Stadtrechte (town laws), other territorial laws and the rules and principles of canon law.

From the early 16th century onwards, legal humanism advocated a new philological-historical method. The idea was to elucidate the original meaning of the legal sources by way of intense textual criticism. This approach did not have much influence on legal practice. Its enduring impact was rather to shatter the early modern lawyers’ belief in the sanctity and authority of legal texts. In contrast to the glossators and the commentators who had not aimed at a comprehensive systematization of the legal material they found, the humanists went beyond the close exegesis of individual fragments and worked out the first comprehensive treatises of selected areas of the law.

The prevailing strand of 17th and 18th-century legal scholarship, the Usus modernus pandectarum, was again more interested in the contemporary use of the Digest. Its hallmark was the attention it paid to the interrelation of the Roman sources and the statutory and customary law of the European territories. In doing so, the authors of this era focused intensely on the needs of legal practice and produced voluminous and comprehensive expositions of the law and of particular areas of law, including overviews of some territorial laws.

At the same time the schools of modern natural law and the law of reason emerged. Their lasting legacy is the incorporation of rationalistic thinking into legal scholarship. Lawyers were called upon to emancipate themselves from the law in force, be it of ancient Roman or of contemporary territorial origin, as well as from the medieval and early modern authorities. Scholars attempted to reduce all legal rules to a small set of overarching and guiding principles which were said to be in harmony with human nature or reason. These principles were the ‘major premises’ of the legal ‘system’ from which it was possible to deduce concrete rules of law with the application of a logical-deductive method. The complete and comprehensive conceptual and systematic analysis of the law by the natural lawyers and the writers of the law of reason did not initially impact on legal practice greatly, but it ultimately paved the way for the great 18th and 19th-century codifications.

Regardless of the shifts in the prevailing methodological approach that occurred over the centuries, legal scholarship during the ius commune continuously displayed two major traits. First, it was a common European venture. Of course it is true that each of the major schools of legal thinking had a particular geographical origin and focus. In the case of the glossators and the commentators this was northern Italy, for legal humanism it was France and for the usus modernus it was first Germany and later the Netherlands. However, even as the writers of the late usus modernus increasingly dealt with the domestic laws of the new nation states, the unifying bonds of the Latin language and of Roman law which remained in force as a subsidiary source of law ensured that legal writings were read all over Europe, the syllabi of the law faculties were more or less identical, and the cross-border mobility of both students and teachers of law was high. Even parts of Europe where there had been little or no reception of Roman law, such as England and parts of Scandinavia, were not cut off from these common European legal developments.

Secondly, legal scholarship was widely acknowledged to have the power of creating law. As had been the case in Roman law, the writings of the most distinguished scholars, or at least the common opinion of the learned jurists (communis opinio), carried such authority that they were regarded as a freestanding source of law complementing the legislation that these scholars interpreted and commented upon. Some European legislators acknowledged the normative force of legal scholarship by enacting ‘laws of citation’ that obliged the courts to take the views of certain authors into account in difficult cases. The influence of legal scholarship was not only a consequence of the legal vacuum left by the ageing of the Roman sources and the simultaneous lack of active and powerful national lawgivers in many European countries. In some jurisdictions it was also promoted by features of procedural law, particularly by the prevalence of written procedures which required lengthy written submissions with citations of the relevant legal writings and encouraged the obtaining of professorial expert opinions. In Germany, there was an additional factor. The courts routinely sent difficult case files to law faculties in order to obtain expert advice (Aktenversendung), and they usually followed the advice they received. Finally, many professors acted as part-time judges.

4. The national character of legal scholarship from the 18th century onwards

Legal scholars also retained their influence on legal practice under the national codifications of the 18th and 19th centuries, although their position was challenged. Amongst other things, the codes had been enacted to enforce the sovereign national legislators’ claim to power vis-à-vis rival lawgiving forces and to improve legal certainty and clarity. Both aims pointed towards curtailing the significance of legal scholars and their frequently contradictory opinions. The Allgemeines Landrecht für die Preußischen Staaten (ALR) of 1794 therefore stipulated that the courts should ignore ‘the opinions of legal writers … in future decision-making’. Some German territories enacted legislation prohibiting the writing of academic commentaries on the new codifications. In post-revolutionary France the law faculties were closed for a decade.

Nevertheless, particularly in Germany, the historical school and the pandectist scholars (Pandektensystem) continued to advocate the lawmaking force of the ‘jurists’ law’. Although the codifications had abrogated Roman law, they did not lead to a radical break with the older learned law. They had mostly been drafted by law professors who happily adopted the structural models suggested by the writers of the law of reason and the substantial solutions inherited from the ius commune. German legal writers of the 19th century thus still felt comfortable postulating that true ‘legal scientificity’ depended on the historical continuity or the systematic perfection of their current version of the updated and modernized Roman sources. The heyday of the science of Roman law only came to an end when the Bürgerliches Gesetzbuch (BGB) came into force in 1900. In those continental jurisdictions which had enacted national codifications and established central judiciaries at an earlier stage than Germany, the weight of legal scholarship within the institutional framework vis-à-vis the legislature and the judiciary (judge-made law) had diminished earlier.

The codification movement and the legal parochialism it entailed also marked the end of a common European legal scholarship. Legal writers started to focus on the exegesis and the cautious further development of the new codes. Legal teaching and research were conducted in the respective national languages. Cross-border movements of students and teachers became exceptional. Methodological trends that gained prominence across Europe still emerged, such as the ‘exegetical schools’ of the 19th century, the anti-formalistic and critical ‘free-school’ movements around the turn of the 20th century or the topical approaches of the ‘new legal rhetoric’ variant after World War II. However, these were perceived as parallel developments rather than as overarching European phenomena.

A common European feature of legal scholarship was the increasing specialization within the discipline from the mid-20th century onwards. The enhanced significance of public law meant that scholars mapped out entire areas of law in earnest for the first time. Even the non-core areas of private law, such as labour law, company law, insurance law and insolvency law, developed into largely freestanding disciplines. The diversification of the subject mirrored the increasing complexity of, and division of labour in, modern societies as well as the increase in student numbers and the corresponding growth in legal education. It further reflected the legal scholars’ reluctant turn towards the social sciences. This has, however, not yet reached mainstream scholarship in the subjects belonging to the core syllabus; rather, it has manifested itself in the establishment of new subjects, such as criminology, sociology of law or economic analysis of law. This reluctance distinguishes Europe from the United States where traditional black letter law scholarship has since the 1960s been gradually superseded by interdisciplinary approaches such as law and economics, law and literature, and empirical legal studies.

5. European legal scholarship today

The most important development in legal scholarship today is that it is gradually overcoming its national focus in favour of a stronger internationalization and Europeanization. At first, legal scholarship was reactive rather than proactive when faced with the founding of the European Community and the subsequent enactment of Community instruments which began in the 1950s. The focus was on Community constitutional, administrative and competition law. Legislative activity in the area of European private law began only in the 1970s, and it was mostly fragmentary and happened outside the traditional core areas of private law, eg in labour law, company law and consumer protection law. Similarly, the European Court of Justice (ECJ) has not dealt with many core private law cases. The European Court of Human Rights (ECtHR) has had a stronger impact on domestic private laws, particularly in the areas of family law, civil procedure and the protection of privacy.

Since the 1980s, legal scholarship has been the driving force behind the development of a European private law. In the wake of programmatic writings by authors such as Helmut Coing, Hein Kötz and Reinhard Zimmermann, the 1990s witnessed the first law reviews and teaching materials with a common European outlook. They were meant to contribute to the Europeanization of legal education, which was also promoted by a reform of law school syllabi and the establishment of student exchanges. The first private law treatise of a traditional kind that was written from an uncompromisingly European perspective was produced by Kötz on European contract law. In the past few years a number of academic working groups have made suggestions for restatements of core areas of private law (Principles of European Contract Law (PECL), Principles of European Tort Law (PETL), Study Group on a European Civil Code, Acquis Principles). The Community legislature has been slow in taking these up, possibly with the exception of contract law (Common Frame of Reference (CFR)).

Legal history and comparative law have a pivotal function in the Europeanization of legal scholarship. Past and present similarities are emphasized with a view to the achievements of legal learning under the ius commune and the comparative elaboration of a ‘common core’ of modern private laws. These commonalities can form the basis for further legislative unification of private law. They also play an important, albeit controversial, role in legitimizing the development of a European private law by legal scholars.

It may be expected that during the coming decades European private law scholars will be developing a European black letter legal doctrine with an autonomous terminology, systematic structure and general principles. Also, it will be important to develop a common European style of legal scholarship and a common European legal method.

At this stage it is too early to speak of a common European private law scholarship. Fully in line with the realities of legal practice, national topics, perspectives and styles still dominate today’s legal discourse. However, the development of European Union law scholarship, particularly in the areas of constitutional law and competition law, shows the speed with which the Europeanization of legal learning can occur in areas which are subject to European Union legislation.

Literature

Paul Koschaker, Europa und das römische Recht (4th edn, 1966); Helmut Coing (ed), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol I: Mittelalter (1973) 37 ff and vol II/1: Neuere Zeit—Wissenschaft (1977); Tony Weir (tr), Franz Wieacker, A History of Private Law in Europe (1995); Reinhard Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law and the Emergence of European Legal Science’ (1996) 112 LQR 576; Tony Weir (tr), Hein Kötz, European Contract Law, vol I (1997); Peter Stein, Roman Law in European History (1999); Jan Schröder, Recht als Wissenschaft: Geschichte der juristischen Methode vom Humanismus bis zur historischen Schule (2001); Brian H Bix, ‘Law as an Autonomous Discipline’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (2003) 975; William Twining, Ward Farnsworth, Stefan Vogenauer and Fernando Tesón, ‘The Role of Academics in the Legal System’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (2003) 920; Philippe Jestaz and Christophe Jamin, La doctrine (2004); Christopher McCrudden, ‘Legal Research and the Social Sciences’ (2006) 122 LQR 632; Reinhard Zimmermann, ‘Comparative Law and the Europeanization of Private Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2006) 539; Christoph Engel and Wolfgang Schön (eds), Das Proprium der Rechtswissenschaft (2007).

Retrieved from Legal Scholarship – Max-EuP 2012 on 02 October 2022.

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