【中文字幕】“如果法学学术不与实务保持距离，它就只是司法的附庸”；尼尔斯·扬森：《关于德国法学的一点思考——危机与出路》

• The speaker, Niels Jensen, discusses the current state of legal science in Germany.
• He highlights concerns about the fragmentation and marginalization of German legal science.
• The shift of influence from law faculties to the judiciary has impacted the role of legal scholars.
• Jensen calls for a reevaluation of legal science's objectives, separating academic work from practical counseling.
• He emphasizes the importance of generating new legal knowledge while maintaining a clear distance from practice.

The eighth station of the RES discuss special groupoth. Tonight we are very pleased to welcome Niels Jensen, professor of Legal History and European Private Law at the University Ofer, who’s going to talk to us about the view of leg political science. Thank you very much for joining us. Thank you very much to have me here.

I should perhaps say that what I’m presenting today is a reflection on developments in Germany. I’m aware that there are discussions in England on the relation of academia to the judiciary, and I do not wish to directly contribute to those discussions. Sometimes I have the feeling a conflict between academic and judges and I think my points are of a little bit more general interest.

So I should perhaps start with a necessary background for understanding my argument. And that is a feeling of a crisis in German legal science. You have the handout there, that handout. The purpose of that is only to help you. Follow me.

Many scholars today fear that legal science is in danger of fragmentation and of marginalization and that the German law faculties are losing their status and their influence. Scholars usually point to two what they call alarming developments, namely a decline in the international reputation of German nal science and its diminishing influence on the judiciary.

Well, the decline in international reputation is simply a matter of fact. The days are gone when German textbooks were translated as a matter of course into leading international languages and when a textbook on the tiny little parts of French law in Germany, the Saachari von Linga, became a leading authority or the leading authority in France under the name of Ari and Ro. International law students are not seen in great numbers anymore in German lecture halls, apart of course, from Erasmus students.

Second point is the diminishing influence of science on the judiciary. And also that is a matter of fact, this decline is an expression of the legal sciences' loss of the leading position in the legal systems. Judges, confronted with a difficult legal issue today, no longer look up to law professors as they did in earlier times. They do not orientate themselves on what scholars write, as was the practice well into the 20th century.

Rather, today German doctrinal science has begun to follow the French example by subordinating itself to the courts. More and more scholars accept the judiciary's leading role in the legal system and accordingly see their task in explaining case law to other lawyers.

Now, today I will first analyze the actual state of legal science in Germany and thereby explain the factors and developments that led to the present symptoms of crisis. In the second step, I will develop new perspectives for contemporary legal science. Here I will draw some lessons from the German legal path on the one hand and take some inspiration from contemporary ang of American jurisprudence.

And when I say legal science, I mean doctrinal legal science. Normally I do not mean legal philosophy or legal history or so now current discussions. It’s often assumed that contemporary legal science simply continues the tradition of learned law and that that is possible. Many scholars believe that legal science today is and should be similar to 19th century models such as the works of Saignir or Jen.

Yet since the 19th century, legal systems have undergone significant changes. And it is important to understand those changes when reflecting on the road and on the specific point of view.

Now, the first or the most important development—let me put it that way—if you would ask anybody in Germany what was the most important development or event in German legal history, they would probably say it’s the codifications. And this is simply not true. Much more important was a shift in the center of gravity from the law faculties to the courts.

This shift changed the modes of thinking and the perception of the legal system by practical jurists. Much more fundamentally than the fact that the digest was replaced with civil codes. In the 19th century, the legal system centered on the major law faculties and on leading scholars. Today this center is a federal constitutional court and other highest courts in Germany or in Europe.

Obviously, this shift of the legal center of gravity is the main factor explaining why doctrinal science can no longer rest in itself, but revolves around the authoritative judgments of the highest courts. Also in Germany, judge-made law or rich today occupies the plates formerly held by learned or professor'law—what formerly was called juristch.

Whoever wants to orient him or herself in the law looks at presidential cases rather than the doctrinal textbooks. The decisions of the Supreme Court increasingly determine the horizon of thought, the language, and the doctrinal figures of the German legal system.

Now two factors explain this shift. The first is a professionalization of the judiciary. Until the 18th century, many judges in Germany still did not possess a university degree. But today it simply cannot be said that professors would be better jurists than judges. They are just on one level, of course.

The second factor is the publication of judicial decisions. Wherever courts have a decision published today become unofficial lawmakers, of course, because people can expect that judges will orient themselves on former decisions. On the continent, such reporting was never practiced before the 17th century and the courts did not themselves publish their decisions before 1800. So it is a fairly recent development that the judiciary assumed a more active and a more self-conscious role in the progress of the law.

Now, German scholars often assume that the brand corps, that is an important point, that the brand corps of legal doctrine is the exclusive orientation towards the applicable law of a concrete legal system. Yet my colleagues rarely notice that with this assumption they take the opposite position to what was self-evidence. That’s to say until 1910, perhaps.

During the 19th century, legal science was oriented towards the idea of a national German law. Even after, although there was no Germany. That is the point. Even after the collapse of the old empire in 1806, the law faculties continued to teach the same law, treating it not only as a school of thought but also as a common national law. Not only in private law, with a digest also in public law or in international private law. Scholars had developed a specifically academic structural preference for universalistic knowledge systems. That is actually the main reason for this attitude.

But all this changed fundamentally in the years after 1900, though not as a result of the codification of the law, but in accordance with a self-definition of the cultural sciences as individualizing rather than universalizing academic disciplines. The self-perception of the humanities was a reaction to philosophical debates concerning the nature of sciences in general and that of history in particular.

And it fits into the time. I mean, it’s a time when history was a matter of national history and of great men, rather than of structures, historical structures, and other aspects of history. So that was, yes, the time. I won’t go into further detail into those discussions, but as far as I can see, no legal scholar has ever reflected the consequences of this turn towards one legal system.

One reason may be that the idea of the law being a system—that’s what German believed—helped to preserve a specifically academic point of view. Scholars were concerned with the abstract system of the law rather than with particular issues of specific legal provision. Academic legal literature was easily distinguished from legal practitioners commentaries.

Thus, despite their focus on positive law of Germany, scholars could keep a genuinely academic distance from daily legal practice and their academic habitus.

Now, since the second half of the 20th century, this trust in the systematic nature of the law is in decline. Again, there are a variety of factors contributing to this decline, including increasingly thick losses of case law, which today overlays the codifications provisions. And secondly, and perhaps more importantly, the integration of national laws into international multilayer systems, in particular European law.

Of course, this multilayer structure simply destroys national structures, systematic structures. And it is a consequence of this development that scholars have been losing their last remaining device for creating some distance of science from practice since the second half of the 20th century. Professors have therefore been pushed into the market of commentaries.

Meanwhile, commentaries have replaced traditional2tr as the leading form of doctrinal science. Now the purpose of standard commentaries is to map the fabric of statutory and case law within the regulatory framework of a codification, and that means in a contingent legislative rather than in a scientific theoretical framework. The purpose of commentary is to make case law accessible to legal practitioners.

They are not meant to systematically reflect on progress and other disciplines, to offer new theoretical insights, present new concepts, or better deeper understanding of, for instance, of the moral dimension of doctrinal problems. Commentaries are not innovative and do not wish to be innovative, but rather present the actual knowledge of the court in an easily accessible format. Where they define the standards of academic doctrinal writing, legal science becomes indistinguishable from practical jurisprudence.

Scholars thus become relatively poorly paid and professional collaborators in the administration of the law. From the academic perspective, it is therefore very difficult to perceive doctrinal literature as scientific research, and that is so despite its undoubtedly high, very high value for legal practice and despite the high quality.

I do not mean to say that that is poor literature, it’s very, very good literature, but it is not perceived as academic literature, and that is simply a result of the increasing differentiation of law and academic science. Now, summing up this analysis, the following three statements—I have them on the paper—may serve as a starting point for further analysis.

First, in modern society, legal academia, the judicial administration of the law have been differentiated. Therefore, to merely contribute to the making of new law cannot be a function of science. Scholars are neither in a position to control the development of the law effectively, nor are they legitimized to do so.

Second, we should no longer see our profession in stabilizing the law doctrinally by means of commentaries and other forms of practical legal literature. Ultimately, that would mean conflating the academic and the legal perspectives and in the end threaten to undermine doctrinal science as a whole.

With this, I’m not saying, of course, that scholars should not contribute in their role as legal experts to the legal system. The point is merely that we should distinguish academic work from counseling. Indeed, the interconnection between practice and academia I find it much closer even in medicine.

But at university hospitals, nobody would think about patient care being an academic activity, and I do see no reason why such a differentiation should not be possible and also meaningful in law.

Third point, the task of scientific research is to formulate new legal knowledge in the form of meaningful, generalizing statements about some object. This must also hold true for doctrinal legal science if it wants to maintain its place in academia. The task of legal science must therefore be to generate new knowledge which does not exhaust itself in the description of the norms of an individual legal system.

With this, I do not mean that legal science would formulate in the same way as, for instance, natural sciences, truth acts or falsifiable statements. Such objectivity is possible only from an external perspective, for instance, such as comparative law or legal history. Legal doctrine is concerned with the intellectual structure of law as well as with the design of legal concepts. And such constructions are not true or false, but rather appropriate or inappropriate.

That is the same in mathematics, for instance. It’s not a particular feature of doctrine. The basic question in view of those propositions is whether generalizing statements are possible as far as doctrine is concerned, and whether such statements actually make sense.

As I said before, many scholars assume that science is necessarily concerned with the positive law of single legal systems, and their generalizing statements are therefore meaningless. But this is not necessarily the case for common lawyers. I find this actually quite remarkable. For common lawyers, it is a matter of course that science need not be narrowly bound to the positive law of, let’s say, New Hampshire.

Most textbooks and private law theories describe principles of private law or principles of the common law in general terms. Even in the 20th century, German law, legal science received innovative input primarily through historically and comparatively informed doctrinal contributions.

Now, the object of such work is not the positive law of an individual legal system, but rather the conceptual and systematic tools for legal thinking in general. Such analysis do not simply describe legal rules. In fact, they put them in perspective and for that purpose construct concepts and intellectual models which may then be used for the doctrinal description of individual legal systems.

Usually such studies combine a functional analysis with the design or construction of concepts and models. The assumption that different legal systems and their rules often serve similar functions—not necessarily the same, but similar functions—allows doctrinal science to formulate generalizing statements and design models as well as concepts independently of a specific legal system.

Now, as I told you, the basis of 19th century doctrine and the science is somehow a fictitious idea of a national German law on which the many different positive laws in Germany, in Prussia, and Bavaria and wherever you had it, were modeled. And this national German law was then today’s Roman law, at least mainly the Digest could normally serve as a starting point for doctrinal analysis.

With this object of legal science, there was, of course, no problem of creating distance of science from the many positive laws of the German territories. Now that’s today of course, no way back. Those gave expression to pre-modern values.

I mean the digest and they could not be applied like modern legislation. What is more, 19th century models of private law were highly political in that they were primarily designed to protect society and its independence from governmental regulations.

That the harveitos of the Peter Mayer scholars therefore built the systems on the fiction that society consisted of free and equal citizens and that distributive considerations had to be disregarded. At least as private law was concerned. That was simply necessary to keep social policy out of the private law system. Scholars conceived legal transactions as an embodiment of liberal notions of private autonomy. And they regarded the Roman aionis palis or punitive actions as good law, although those actions had long been out of use.

This is a reason why the four principles became an axiom of tort law. Clearing such a political approach would be inappropriate today. And I mean that seriously. Those people were not primarily liberal in their thinking. They simply wanted to keep the state and those strange governments out of private law. They wanted to do their own stuff.

That is a reason why we had this liberal private law. Nevertheless, there were at least two lessons to learn from 19th century experiences.

The first is the academic benefit of distance of science from practice. Benedict doctrine is a clear proof of the fact that how such distance facilitates conceptual and systematic progress. Indeed, this distance was simply the basis for the invention of fully new constructions and concepts, just to name some. The idea of a subjective public rights in public law, the idea of abstract legal transactions throughout the legal system, or the law of enrichment. And I could now speak for our on other points.

The second lesson is saying farewell to political normatively thick legal doctrine. That I think is important. Good doctrine needs to be conceived normatively as thin as possible. Of course, doctrine can never be innocent. Doctrinal concepts and constructions unavoidably connect normative elements with descriptive and conceptual elements. They embody implicit normative assumptions.

We can’t get beyond that. In that respect, legal doctrine simply resembles language, which likewise gives expression to underlying social norms. Nevertheless, we can reflect upon the normative concept of our doctrine and we should keep doctrinal concepts and constructions as flexible as possible.

Constructions should no longer embody possibly contested values and policies, but rather be designed as means to give expression to them as clearly and appropriately as possible. Hence, well-designed constructions fit divergent rulutes and regulations. Transparent and normatively thin forms of doctrine must be preferred to thick ones.

Now, some German authors today argue that legal theory can serve as a mutual academic perspective on legal doctrine. I find it difficult to understand this claim as every legal science formulates theoretical statements and as there exist no clearly defined disciplines such as legal theory.

Thus, I think that theory may first be understood as analytical jurisprudence or conceptual analysis. Here legal science gains distance from its object by means of conceptual abstraction. Classic examples of such approaches are Hofer theories of rights, Hart’s concept of law, Rickness formula of causation if you know it, or Alexi’ principle theory of constitutional rights.

Although theories are formulated in highly abstract terms, they do not describe a specific legal system, but rather analyze general legal notions such as right, duty, legal system, causation, etc. Hence they are normatively thin. They do not embody specific values, but rather described, in the words of Hanen, the pure structure of the law.

Now, the results of analytical jurisprudence are always a very valuable starting point for doctrinal analysis. However, contextual linguistic analysis does not generate in itself doctrinal insights. It does not explain the normative as opposed to the logical structure of some theory or institution.

It may explain the distinction between first and second order rules or between principles and rules, but it does not suffice to normatively explain the distinction, for instance, between legislation, administration and the judiciary, or between strict liability and fault.

It does therefore not provide the synthesis necessary to understand legal institutions such as assignments of rights, delict contracts. From a doctrinal perspective, analytical jurisprudence can therefore not be more than a necessary first step.

A more normative conception of legal theory is now the search of philosophical foundations of some fields of the law. A well-known early example of such approaches could be seen in Hart’s and Honoré’s discussions about causation in the law and take fantastic book.

Meanwhile, more normative contributions to this discussion by scholars such as Fletcher, Coleman, and many others have long become classics. I name so many in order that because I hope that you may know one or two of them.

The academic objective of such theories is to reduce the apparent complexity of some field of law, to provide better normative explanations, or to identify moral inconsistencies. Usually, such theories integrate interpretative or hermeneutic with normative perspectives. They regard the law usually as a positive expression of reasonable moral convictions and analyze legal institutions and doctrines from the point of view of private or public political morality, claiming that complex legal institutions such as contract can be traced to and are determined by a small number of basic moral principles.

That’s the citation from feet, and you find the same in all of those works. Tort, for instance, are described as moral wrongs, that is as a breach of moral beauty or as an infringement of rights.

Now, legal doctrine of this sort often has a significant explanatory power. It makes us understand rather than only know or describes the law. Nevertheless, I’m skeptical whether such intuitions may serve as a sufficient solid foundation for legal analysis. And there are two main reasons for my skepticism.

The first is that moral institutions are reliable only between two people. I mean, I have to keep my promises. I’m responsible for loss caused by my actions. But things get much more difficult where three or more persons are affected. Actually, as is usually the case in life, simple cases such as where bank B erroneously pays C money due to a revoked transfer order.

Now, is he obliged to return this money to bank B or to A? The mistaken transfer falls within... Perhaps you may argue that in the responsibility of the bank where the error occurred. But what if A had announced the transfer to C and the not revoked it here C may have relied on a behavior?

Now I won’t go into more detail of just unjust enrichment, but even more complex considerations apply where private law is part of public regulation. It would be implausible to assume that jurists usually understand such rules in moral terms. Thus, from the perspective of European legislatures, consumer law is an instrument for market regulation.

The Union’s power of legislation is based on and limited by the intention to promote the internal market. Such legislation is clearly not formulated as an expression of moral principle, but rather on the basis of public policy.

And of course we may regret the result in the complexity of the law moral principles on the one hand, and such policies on the other hand. But we should not ignore it. And we would do it, for instance, if we construct tort solely as a relation of corrective justice, because we would thereby simply ignore the fact that distributive concerns in modern law have become pervasive.

Now, the second reason for my skepticism is that we have had all us before with 18th century natural law theories. Indeed, much that is currently presented as private law theory bears extremely strong similarities with those former theories. If you take Freig’s analysis of promises, this looks very similar to what Grosus wrote on the issue, and his analysis of the risk of mistakes and errors simply repeats a classic argument by Thomasius.

And you could do all the same with other authors of the period. Yet one should not forget that natural law theory fell in decline for good reasons at the end of the 18th century. The discussion had become so polyphonic that it was obvious that natural law theory would never agree on either principle or specific rules.

For instance, many natural lawyers had very forcibly argued that tort should be based on the for-profit principle. But others had likewise possibly defended a principle of strict liability against Marius. There, apparently no sufficient basis in common intuitions to design legal routes on which at least all reasonable jurists would agree. And that is a small group, one must say.

It is therefore remarkable that private law theorists from England regularly based their analysis on comparative findings. An early example is again Hart's and Honoré’s discussions.

Now, one obvious advantage of such approaches is that it takes the idea of the philosophical foundations of the law seriously. This idea, I think, implies some element of universality and thus a commitment to transcend once the narrow horizon or the borders of one’s legal system. Philosophical and moral arguments are obviously not limited to the boundaries of legal systems. And other legal systems reflect moral values as well.

Yet, despite agreement in many aspects, legal systems simply do differ from one another. It is implausible to assume that a legal system with all its principles and roots was an exemplification of moral value. As Sandy St put it quite funnily.

To the extent, say, that an English lawyer has a firm conviction as to the moral value of some principle, the fact that the same principle has been explicitly rejected by German courts gives at least some reason to pause and consider whether the conviction should be as firmly held.

Nevertheless, I think we’re a broad majority of legal systems, and that is something one can observe as a matter of fact accords on a specific issue. One might presume that such a common case or such a used gium as former Jews would have put it was more likely to conform to moral principles than the sovereignty of a single legal system.

Of course, such a presumption is again rebuttable comparative findings. But comparative findings may nevertheless at least determine a burden of moral argument. Hence, the search for philosophical foundations of a legal institution should naturally trigger an interest in comparative information.

Such information may be translated into, so to speak, moral starting points. A second and second advantage of such an approach is that it helps to describe the law in transparent and normatively thin concepts. That’s where the comparative survey reviewed significant differences between legal systems.

The search for philosophical foundations may identify a common moral or intellectual framework in which different contested principles apply. Doctrinal context describing such a complex structure may well embody the weak moral assumptions underlying the journal framework, though not the contested moral principles applying within.

They are not normatively empty, and they cannot be normatively empty, but they are thin. One example may be my suggestion to keep the corrective justice framework of tort law open for distributive concerns and accordingly reconceptualize the notions of Bronx and for with Tony Honore’s concept of outcome responsibility.

This is a concept which is open then to distributive concerns regarding the extent of responsibility. All in all, the legal sciences focused on the positive law of one legal system is relativized by its broader comparative horizons.

Such crossing of the comparative point of view with doctrinal philosophical perspectives emancipates legal science intellectually from established normative and intellectual frameworks. The task of legal scholars is then not to develop traditional constructions in further detail, but rather to formulate spectra of alternative models and to evaluate those options.

But it would then be for judges and legislatures to make the necessary normative choices and decisions. Scholars would no longer have to pretend that there was one right answer, but they should rather put judges and legislators in a position to make well-considered decisions.

With such an approach, scholars continue to think doctrinally, that is in legal terms, but no longer narrowly within the borders of a legal system. Now one classical example of such an approach is the concept of indicia of seriousness. That concept makes it possible to understand different legal institutes such as form requirements, the English consideration, the French courseus, and the German reindill as doctrinal alternatives.

Another one is the concept of assignments of claims. While such assignments are often described as transfers of a thing of an obligation, a comparative perspective makes visible the limits of such a concept. Indeed, with the assignment of future claims, the metaphorical idea of a transfer of thing is clearly overstretched.

How can one transfer a thing which does not yet exist? More importantly, however, the concept ties with one another the effect of an assignment between the party with the effect vis-à-vis the debtor and other third parties.

So creditors of the sign know or the assignee. Yet from a comparative perspective, and actually, if you think about it a you, it is simply not obvious why the transfer of an item of words between two persons should follow the same routes as the effect of this transfer against third parties.

I won’t go into detail here, but in the end, we can conclude that assignments should no longer be described as transfers, but rather that they should entitle the assignee to proceeds received by the assignor from the debtor and vest in the assignee a power to affect substitution of the creditor.

Such a doctrinal analysis of assignment is much more precise and transparent than the notion of a transfer. And it is normatively, again, much thinner and makes it possible to reflect on assumptions and roots, in particular on priority conflicts which have traditionally been taken to be implied in the concept of assignments and such implications.

Such doctrinal implications are always a problem. Now let me conclude, of course, with such an approach, one difficult issue is how to define the doctrinal horizon appropriately.

19th century scholars could work on the basis of Roman sources. Contemporary common law scholars can still argue on the basis of a common common law. For civilian lawyers, a scientifically and politically disposable perspective seems to be more difficult to find. Yet one obvious option is, of course, European law, broadly understood, including both the treaty so the director and regulations and the comparative observations.

Such a perspective means thinking together the European Union's legislation with the many European non-legislative formulations and with comparative findings. European lawyers would then, of course, be confronted with a very high plurality of legal sources, which from a practical lawyer’s perspective, of course, seems frightening.

But from an academic perspective, such plurality is highly attractive because it forces us to think in alternatives. Nevertheless, I think one should not overemphasize the question of the right horizon. Widening the horizon does not necessarily require us to refer to an overarching or even universal legal system.

Including a comparative perspective suffices to learn from other legal systems and construct some distance which is necessary to think in alternative models. It’s often a pragmatic decision which legal systems to include in analysis th forance as far as human rights are concerned.

Of course, South African law is particularly interesting. Why? South African law may be much less interesting as far as torts and conflicts are concerned. Former generations of academics in Germany at least worked on the assumption that their views of the law would eventually become the law.

And this is quite obviously no longer the case. The oracles of the law are today judges, even in civilian legal systems. And that means that in the end scientific legal knowledge will increasingly be detached from individual legal systems and become perhaps international.

At the same time, it assumes a role similar to the knowledge of or in other disciplines. It is of general societal value. It helps us to better understand the law in general and thus their legal system in particular. And it may help legislators and judges to make good decisions.

Academics will continue to speak to judges, yet not in order to convince them, but rather to inform them about alternative options. Legal knowledge will make it possible for judges to leave the established path of the law where those paths may lead. A great thank you very much.