Showing Germans the Light

–Or Bassok, Tikvah Scholar, NYU School of Law

Conferences in the US on German public law often digress into an attempt by Americans scholars to show their German counterparts the scholarly “light.” The recipe has several variations.[1] According to the milder version, German public law scholarship fails to give an adequate account of reality when it comes to issues such as the relationship between courts and other political actors or to judicial motives. German scholarship thus needs to adopt a more realist view, similar to the one characteristic of American scholarship.

According to the harsher line of critique, German public law scholars continue to adhere to an unrealistic view of courts (the first line of critique) and to doctrinal analysis of law since they are not sufficiently aware that legal concepts do not really decide cases (the indeterminacy problem). American public law scholars have seen the legal realist “light” presented by the legal realist movement and thus are not focused anymore on doctrinal analysis. Therefore, German scholars need to be enlightened by American scholarship, or so the claim goes.[2]

The recent workshop “The Changing German Landscape of Theorizing Public Law” held at NYU School of Law symbolized a departure from these lines of critique as all papers presented an Americanized style of analysis written on German public law. Yet one should stop and consider two issues that stand at the core of the harsher line of critique. First, German scholars acknowledged the lessons learned from the legal realist movement earlier than Americans scholars but did not follow them. Second, it is not clear that following the realist “light” will lead to positive consequences. In this brief post I will address these two issues.

In its seventh volume, I-CON sponsored an exchange that outlines nicely the terms of the comparison between German and American public law scholarship. Armin von Bogdandy explained in his article that while in the US the “doctrinal approach has been mostly abandoned, at least in leading institutions,” “German scholarship has spun an exceptionally thick layer of constitutional doctrine.”[3] He summarizes by noting that “[t]hroughout Europe, legal doctrine is an important – if not the primary – emphasis of constitutional scholarship.”[4] In this spirit, Alexander Somek describes his experience as an Austrian law student noting that ”[a]t the end of my studies, I found myself in the position not only able to spot issues but also to resolve, to my great satisfaction all constitutional problems.”[5] Robert Post writes in his contribution to the volume that in view of the exposure of legal doctrine’s indeterminacy by legal realists, American constitutional scholars “typically seek to translate political needs into systematic and coherent jurispudential framework…”[6] Indeed, American legal scholarship is typically much less interested in doctrinal analysis than its German counterpart.[7]

No doubt, in Germany the culture of doctrinal legal expertise is much stronger than in the US. In my forthcoming article, The Court’s New Source of Legitimacy (University of Pennsylvania Journal of Constitutional Law) I explicate the difference between these two cultures of expertise in view of the decline of legal expertise in American social imaginary in recent decades. I argue that difficulties such as the countermajoritarian difficulty or the view of proportionality as an indeterminate concept do not receive the same attention in Germany as they do in the US due to the manner Germans imagine legal expertise and not only due to structural or doctrinal differences (p. 22-26).

At the NYU workshop Michaela Hailbronner (Yale Law School and the Humboldt University of Berlin) argued that the authority of the German Constitutional Court has much less to do with Germany’s Nazi past than commonly assumed and more with the German emphasis on legal expertise. A few days earlier, in a Strauss workshop at NYU, Niels Petersen (Emile Noël Fellow, NYU and Max Planck Institute for Research on Collective Goods) demonstrated through an historical account the perplexing path through which the doctrine of proportionality became so central to German culture of legal expertise.  Yet this culture of expertise in Germany did not survive since German scholars were deprived of the realist “light” thus depriving their society of the realist critique on the true nature of law and judicial institutions.

In 1921 Justice Cardozo delivered over four nights his Storrs Lectures at Yale Law School titled “The Nature of the Judicial Process.” In the published version of the lectures, Cardozo exposed some of the major themes of legal realism. While discussing the indeterminacy difficulty and “a method of free decision” that became “dominant” “above all in the field of constitutional law,” he mentioned the contribution of three continental scholars: Gény (French), Ehrlich (German-Austrian) and Gemlin (German).[8] Later in the book he also discussed the work of another central figure of that movement, the German jurist Kantorowicz. James Herget and Stephen Wallace have shown in their article “The German Free Law Movement as the Source of American Legal Realism” that American legal realists “rediscovered an attic of ideas that had blossomed a quarter-century earlier in Germany.”[9] While Cardozo and others at the beginning of the century gave credit to their German counterparts, the scholars that led the realist movement since the late 1920s failed to give proper credit to the contribution of the German free law thinkers.[10] And yet as an historical fact, the Germans saw the realist “light” before their American counterparts.

The question of why legal skepticism did not catch in Germany is a complex issue.[11] The question is not only why the “free movement” itself waned around World War I,[12] but why after the success of legal realism in the US it did not rise from the ashes. The bad odor the movement received from Nazi’s encouragement of judges to engage in “free interpretation,”[13] and the suspension of many free-law scholars (many of whom of Jewish heritage) from their posts by the Nazi regime are two possible (though somewhat conflicting) explanations of this mystery.[14] But beyond these explanations, it is plausible that German elites after the Second World War wanted to sustain a “noble lie” of a determinate expert law as to ensure some form of uncontested expert authority in a world without gods.

In her book, On Revolution, Hannah Arendt discusses the problem of putting “law above man” in a world that lost its belief in a transcendent source of authority. She notes that in view of the recent “political crime on an unprecedented scale, committed by people who had liberated themselves from all beliefs in ‘future states’ and lost the age-old fear of an ‘avenging God,’” attempts to recreate a transcendent source of authority of sort even in the American context (“We hold these truths to be self-evident”) should not be dismissed easily.[15] Indeed, Paul Kahn’s work on the role of political theology in the American constitutional discourse shows that these attempts are still very much with us.[16]

However, an even more complex question is whether the attempt to “enlighten” the current generation of German public law scholars is worthwhile. Doctrinal scholarly work has far greater influence in constraining courts in Continental Europe than in the US.[17] In Continental Europe, “[a]s a collectivity, the legal professoriate is the custodian of La Doctrine”[18] and thus the German Constitutional Court pays close attention to the doctrinal work produced by German constitutional law professors.[19]

In the US, the interpretative community, the community that creates the disciplinary constraints in any disciplinary field, was at least partly destroyed in the realm of American constitutional law. Part of the process of this dissolution of the interpretative community is related to the rise of legal realism. Though legal indeterminacy was well known and discussed among academics at least since the early years of the 20^th century, law scholarship changed gradually.[20] But regardless of the debate over the exact period in which legal scholarship shifted, there is hardly a debate that the exposure of the plasticity and malleability of legal doctrine had great effect on the legal academia. Many scholars were not interested anymore in wasting time in researching doctrine if any skillful law technician can reach and reason almost any reasonable result within the confines of doctrine.[21]

As Mattias Kumm noted in the I-CON exchange, “[i]n elite American schools, doctrinal constructivism is mostly associated with hornbooks and commercial outlines, the kind of pedestrian tools that might be helpful for students as basic study aids but that self-respecting professors would not waste much time with.”[22] Richard Posner emphasizes that “[p]articularly in constitutional law…[scholars became] engaged in an enterprise very different from traditional doctrinal analysis.”[23] Law became an object to study from outside through the perspective of other disciplines, disciplines guided by a paradigm that did not lose its respectability. Legal scholars did not see their role anymore as imitating the judicial role by writing on the “correct” solution to a legal problem.[24]

However, the story has another side, of a Court losing interest in the scrutiny of its professional community. Ironically, the hero of the American constitutional academy, the Warren Court, has the chief responsibility for this demise. As Terri Peretti writes, “the Warren Court was less concerned with persuasively elucidating the legal principles underlying its decisions or with winning the support of law professors and the organized bar.”[25] Laura Kalman bluntly notes that “[s]ome Warren Court opinions did make no pretense of suggesting law and legal theory compelled the justices to reach their decision…One popular quip described the apparent thought of the Warren Court majority: ‘With five votes, we can do anything.’”[26] Robert Post alludes to this sad story in his I-CON piece when he writes how “the giants of the legal-process school [that] sought to bring the Warren Court to heel by criticizing it abstract professional technique and competence, [were] all but consigned themselves to oblivion.”[27] Even though “almost all law professors at the time were liberal in their politics”,[28] and thus supportive of the Warren Court’s substantive results, they lost their ability to constrain the Court through their doctrinal criticism.

In 1982, Owen Fiss explained that “legal interpretations are constrained by rules that derive their authority from an interpretative community that is itself held together by the commitment to the rule of law.”[29]  Yet this community has dissolved in recent decades as the shared praxis disappeared.[30] Indications for this dissolution are numerous. For example, the Harvard Law Review’s annual foreword, which was once a forum for doctrinal criticism of the Court’s previous term,[31] has in recent years lost any connection to doctrinal analysis. In one year (2003), one judgment of the Court previous year was mentioned; in another (2009) there was no single case from the previous term discussed. Laurence Tribe, whose American Constitutional Law treatise is the closest Americans ever had to a German style constitutional Kommentar, could not find doctrinal logic in the current constitutional disarray in the Court’s adjudication and thus decided not to complete the second volume of his third edition.[32] Suzanna Sherry has recently noted that “[i]f constitutional law is in crisis, it is our fault. The legal academy has erased the distinction between law and politics, used its expertise for political advantage rather than for elucidation, and mis-educated a generation of lawyers.”[33]

Disciplines require the relevant community to follow the method of the discipline.[34]  Yet the American legal community partly stopped following its own method of producing expert knowledge, at least in the context of constitutional law. The process of vetting knowledge through an exchange between the Court and the academia partly stopped. In view of this partial dissolution of the interpretative community, it is not wonder that in certain cases the American Supreme Court finds its constrains solely in public opinion (see my forthcoming article p. 40-41). Yet as Thomas Kuhn explained, expert knowledge cannot by determined by appeals to the populace at large.[35] Taking into account the current dire situation of American constitutional interpretative community, should Germans scholars follow the American light?