Kristoffel R. Grechenig and Martin Gelter (University of St. Gallen, Department of Law and Vienna University of Economics and Business Administration - Department of Business Law) have posted The Transatlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism on SSRN. Here is the abstract:
Economic analysis plays a major role in the American legal discourse, while its position in the German-speaking legal debate remains comparatively limited. In Germany and Austria, a widespread aversion against law and economics can be observed among legal scholars. This article advances an explanation for this divergence on the basis of two main factors: First, American legal realism enjoyed great success, whereas the German free-law movement failed to leave lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory emphasizes the internal coherence of the legal system, and assigns only limited role to external elements. Second, the different philosophical roots and attitude towards and utilitarianism and consequentionalist thinking in general can explain why law and economics takes a prominent position in the US legal academia. We argue that a convergence of the discourses over the medium term is unlikely.
And a bit more from the text:
Several critics have repeatedly pointed to the marginalization of policy in German legal scholarship.261 This is relevant for our theory since law and economics was a normative movement that introduced policy criteria into the legal debate. In order to better understand why the mainstream approach was not receptive to (economic) policy considerations it is worthwhile looking at the evolution of legal methods. A central point was the self-reference of the legal discourse which meant that arguments for both interpretation and policy were to be found in the existing law. This tradition can be traced to the 19th century Historical School of Savigny, which proposed to take the customs of ancient Roman law as a model, and reemerged in a different shade in Hans Kelsen’s 20th century “Pure Theory of Law”. Whereas Savigny proposed to make policy considerations dependent on the existing law, Kelsen argued that policy should be entirely be excluded from “legal science”.262 In light of the success of these movements in German-speaking countries, the law and sociology literature has tried to interpret the law as an autopoietic system which was supposed to operate widely autonomous from other subsystems of society.263 This focus on systematization was coined both by the natural law approach as well as by the Historical School264 and led to an overemphasis of the non-contradiction condition in the law. Under these premises, it was not surprising that any reform had to be consistent with the existing law.265
A decisive development preceding the Historical School of Law was the rise of historism towards the end of the 18th century. Johann Gottfried Herder and others sparked the separation of the humanities from philosophy.266 Phenomena were increasingly viewed in their historical context, discussed with reference to their origins and explained in a dynamic way of movements and developments. To think historically meant to put oneself in the Zeitgeist of the respective age and understand the problem “from within”.267 Whereas Leopold von Ranke contributed to the “science of history”268, Friedrich Carl von Savigny was the main proponent of a “science of law” as an independent discipline. Like Herder, Savigny aspired to explain legal phenomena as an outgrowth of their respective historical context, which was most explicitly expressed in the Volksgeist (spirit of the people).269
And a bit more:
For Savigny, the law was to be found in customs, legal scholarship and the practice, most importantly from concepts of Roman Law. He argued that Roman Law embodied the true will of the people as a whole. However, this interpretation of the Volksgeist was presumed to be independent of social and political movements. Savigny did not believe that the law had an end in itself.276 However, his approach required this assumption to allow further interpretative work by jurists! It denied a social function and legitimized the law on its historical evolution, for which reason it was impermissible to question its social adequacy. Clearly, non-legal criteria were necessary for the original development of the Historical School of Law; once this approach was accepted, external criteria became superfluous.277
From today’s perspective, Savigny’s approach was strictly conservative in the sense that it was opposed to change and progress.278 Under this theory, any changes had to be changes through interpretation, which meant that Savigny allocated the decision-making authority to the legal community instead of philosophers or the government.279 This allocation of powers was affirmed by Puchta’s approach, which created a monopoly of the legal community to interpret and thereby to make law.280 Over the course of the 19th century, the jurist class obtained not just their own discipline, independent of philosophy; but they also played a major role in the decision-making process through their interpretative competences.
This idiosyncratic allocation of important decision-making power to jurists, as it was brought forward by Savigny and his followers, meant that other authorities were restrained from implementing reforms if those reforms were incoherent with the existing concepts.281 This consequence closely relates to Savigny’s argument that codification and statutory law were an expression of authoritative power and not the people’s will.282 Savigny apparently believed that allocating decision rights to lawyers was in the interest of the people, and that no other (interest) group was better suited as its representative.283
If you are interested in comparative law and the sociology of legal theory, this article is truly a must. My very highest recommendation. Download it while its hot, hot, hot!
