National legal scholarship in the European legal area—A manifesto

Abstract

The advancing European integration poses fundamental questions for the various national traditions of legal scholarship. With a particular view to the German case, these questions will be unfolded in a first step, which will show how legal scholarship is affected by the political project of a European research area, the dynamics of a European legal area and, in this context, by leading American law schools. In a second step, I will submit considerations for dealing with these challenges, namely by an intensification of comparative legal analysis, a Europeanization of methods and a pluralization of the disciplinary identities. The article advances subjects already exposed in an earlier piece1 and responds, to the extent possible under the new focus, to its discussion by Michel Rosenfeld, Robert Post, Mattias Kumm, Alexander Somek,2 and Giulio Napolitano.3

1. Introduction

Although core European achievements are currently in crisis (the euro, free movement, the single institutional framework), European integration advances in other fields and poses fundamental questions for the structure and orientation of ever new spheres of society. It was only recently that their significance for the German academic system was truly recognized, but that has led to far-reaching recommendations by the German Council of Science and Humanities.4 All actors within the German academic system are called upon to include the European dimension in their decisions and the different disciplines are encouraged to identify concrete challenges. It is high time to discuss how the various disciplines should position themselves within the new European context. These recommendations prompt the following thoughts on legal scholarship. Although developed with regard to the German example, they might be also of interest in other areas of legal scholarship, particularly in continental European countries with strong and proud national traditions of legal scholarship (e.g., France, Italy, Poland, Spain). Moreover, this article aims to contribute to the more general debate on legal scholarship and globalization.5

2. Facing the challenges

2.1. The European research area

The project stipulated in article 179(1) TFEU, stating that a European research area is to be achieved,6 not only covers natural and life sciences but also social sciences and the humanities, and therefore legal scholarship. That project aims to improve research in all disciplines through new possibilities and increased competition. In that respect, there are indeed parallels to the single European market program of 19857 which owed its existence mainly to the political perception of rather sclerotic national economics that were thought to be ill-equipped for the rising global competition against the United States and East Asia. The governments of the member states used the former EEC to carry out a fundamental reform program with an impact that could never have been achieved simply through national measures. Something similar may very well occur with the launch of the project concerning the European research area.

The European reform of the academic systems of the member states commenced with the decisions of the European Council in Lisbon (2000) and Barcelona (2002). They were preceded by numerous studies that did not cast a positive light on the European scientific stage, in particular when compared to the United States. During the first summit, it was boldly proclaimed that the European Union was “to become the most competitive and dynamic knowledge-based economy in the world” by the year 2010.8 That date has slipped.

Various measures are meant to realize this goal. In Barcelona, the heads of state and government decided to increase their overall expenditures for research to 3% of the GDP in order to achieve this aim.9 But the project is not just about money. The structural response is the project of a European research area (ERA). One of the fruits of these efforts, though not the only one, is the European Research Council, which started work in 2007 and also supports and promotes legal studies. It has positioned itself quite successfully: The success rate in obtaining funding from one of its programs is perhaps the most visible instrument for an intra-European comparison regarding the attractiveness and capability of the research institutions of the member states. Its funding already boosts a grantee’s reputation in a way that is presently hard to match by any other distinction in a European context. These tentative first steps challenge the national systems. They were in fact the cause for the German Council of Science and Humanities to develop exactly those recommendations for a reorientation of the German academic system in light of the European research area; accordingly, it also includes several statements concerning the future of German legal scholarship.10

In order to grasp the magnitude of this undertaking one needs to understand that a European research area does not exhaust itself in establishing more and more academic contacts or racking up frequent flyer miles. Neither does it only imply more competition. The essence of academic life is in the process of being shaken up. The creation of the European research area questions established objects and methods of research, but also disciplinary identities. In the United States, the creation of a continental area of legal scholarship at the beginning of the twentieth century profoundly changed the structure of that academic discipline; why should this be any different in Europe?

Certainly, legal scholarship is not the sole discipline that finds itself under pressure to change. The global knowledge community as a whole developed on a largely national basis. Academic life as we know it today was shaped in the nineteenth and twentieth centuries as a national system; indeed, as a system under the aegis of the nation state.11 It was the nation state that financed science for an effective administration, national glory, economic gains, and military power. Disciplines accordingly organized themselves into national organizations, maintained national scientific publication organs, and provided for a national scientific public in their national language. In fact, most scientists were (and still are) state employees, many even public officials. Although there have always been more or less intensive international contacts, they were founded upon a national basis, which informed and often dictated the direction and the style of investigation, funding and publication media, careers and, last but not least, the ways to gain reputation.12 Under the bell jar of the nation state, national academic systems developed their own distinctive traits. This particularly applies to legal scholarship, which traditionally and in all its subjects, even in international law,13 focuses on “its own” state and “its own” legal system.14

Against this background, the extent of the challenge to constructively combine these differences in a European research area should be obvious. It is by no means certain that the pressure of transformation resulting from the creation of the European research area will result in positive developments. The many downsides of the Bologna process, initiated on a European scale with regard to education at universities, provide sufficient proof. Nevertheless, it appears certain that it would definitely not be recommendable to ignore this political project.

2.2. The European legal area

The challenge for legal scholarship is even greater than for most other social sciences or the humanities because not only has its academic context been thoroughly Europeanized, but so has its subject matter. By now, the legal Europeanization not only affects national customs and agricultural law, but also national administrative law and business law in general,15 the law of obligations,16 family law and the law of succession,17 civil procedure,18 labor and social law,19 criminal law,20 tax law,21 constitutional law,22 and even, thanks to varied activities of the EU in this area, international law—in particular for many parts of practical relevance.23 Perspicacious commentators argue that this development has by now led to a change in kind.24 They consider the phase of Europeanization of the national legal systems to be completed insofar as it has led to a new situation, which is most illustratively described through the term European legal area.25 Although the European superimposition mostly did not occur through grand codes but rather happened in a “pointillist” and ad hoc manner,26 many parts of this new European law are even broader than their counterparts in the United States. This new quality is brought out by the singular legal area. There is a new whole now, the area and its law, which transcends the individual nation states. At the same time, the term area avoids both a federal interpretation of this new whole and a purely international understanding of European integration, and therefore takes no position within this oldest controversy of European integration. For that very reason, it might present an acceptable conceptual basis for both understandings to comprehend the new whole.

The bedrock for the European legal area is the territory of the European Union as defined by the legal systems of its member states. As such, it is characterized by the combination of state elements and supranational features. The core of the term, therefore, is the statement that the legal organization of this territory is as much achieved by national norms as it is by those of the Union. Accordingly, membership in the Union becomes an essential and defining feature of the statehood of the states involved, their administration evolves into becoming part of the administration of the area,27 and their legal systems, formerly self-contained normative universes, become parts of a larger legal framework.28 The domestic legal system, and hence national legal doctrine, should accordingly be reconsidered in that larger context.

2.3. American universities

The challenge posed by leading US law schools must be appreciated in this context.29 The abolition of borders and the formation of new areas mostly occur according to the rules of the strongest system. Just as the European Monetary Union follows German concepts and the example of the Deutschmark, the European scientific area is shaped by the rules and practices of the Anglo-American academic world. The upshot is that legal scholarship is strongly influenced by elite American law schools.30 Of course, the US is not part of the European research area. Its power to shape the system is, however, based upon the fact that legal research organized and produced in the United States often forms the reference point for cross-border European discourses. Much of the academic legal work debated by European scholars is produced at US institutions.

This brings with it effort and costs for German scholars, as for many others. English, as is now agreed upon even by French scholars, is the leading language for European discourse in almost all legal disciplines. Furthermore, national doctrinal thinking cannot be successfully Europeanized without modifications. A simple translation will rarely lead to pieces that make an impact. Instead, legal thought must be unfolded specifically for the new context.31

Yet, it would be wrong to see this purely as a burden. The many chances offered by a European and internationally interconnected research area following the rules of the Anglo-American research world should also be taken into consideration. There is a general understanding that global specialization and competition are, in principle, beneficial. Moreover, continental research should benefit if it follows the more discursive Anglo-American style. Following this path by no means necessarily implies US hegemony. In many disciplines, there are global beacons outside the United States. Some countries—chiefly Scandinavian ones, the Netherlands and Switzerland—have reorganized important parts of their scientific system accordingly and appear to be as successful in global academic life as research based in the United States.

At the same time, the challenges are enormous. Future success in the European scientific system will require profoundly rearranging many aspects of German, but probably also French, Spanish, and Italian academic life. The recommendations by the Science Council provide a starting point. Thus, it will likely become necessary to concentrate scarce resources on fewer research facilities; the German Excellence Initiative may well be understood in that light.32 After all, the abolition of borders facilitates migration; international attractiveness is expensive. A further erosion of the postulate of equality among scientific institutions and scientists would be painful and might result in fierce struggles over distribution. And like in the United States with Harvard and Yale, the education of young legal scholars might be limited to a handful of institutions. This puts an immense strain on the principle of equality of public research institutions, which has long been a dominant value in the Federal Republic of Germany.

A particularly demanding task concerning leading American law schools lies in contrasting their research orientation, as diverse as it may actually be, with “regular” doctrinal research in Europe.33 The central role of doctrinal construction and argumentation in the academic discourse in continental Europe is probably played by economic or policy analysis of law in the US—though this is not true in all fields.34 At elite law schools, it is the application of methods and research interests taken from other sciences that is regarded as truly scientific.35 It certainly appears that the preparation and systematization for practical purposes of the law in force, which is the main concern of most continental law professors, is largely left to jurists employed by publishers, who also administer databases. Successful scholars rather tend to regard themselves as public intellectuals,36 producing new ideas by pursuing interdisciplinary angles. In a globalized system of legal scholarship, of which the European research area invariably will be a part, the doctrinal mode of scholarship comes under pressure and must be rethought. Nota bene: The question cannot be whether American methods research should be copied, since copying can hardly produce outstanding research. Moreover, European countries are not a place where there is no meaningful space left for doctrinal arguments, and where those who try to advance them “consign themselves to oblivion.”37 The opposite is true, based on the axiom that the legal form affects and models the substance.38 Hence, ways of opening up must be found without abandoning the manifold achievements of developed legal doctrine.39

3. What can be done?

3.1. Comparative legal analysis

All of these challenges call for profound rethinking which may done by means of comparative legal analysis—not just in constitutional law, but in almost all legal fields. First of all, comparison allows for orientation in this new situation through reflecting on the paths taken by the various systems of legal scholarship.40 Every generation must write its history in light of the questions of its time. A contemporary narrative should present the diverse ways of national development in light of a common legal area. It is one of the academic tasks of the European legal area to develop a common framework and thus a new orientation for the various national systems, not least for doctrinal reconstruction and legal practice. The national legal systems must be brought into a “discussion,” which simultaneously seeks identity and difference,41 in order to understand and shape the common legal area.

The quality of the European legal area depends on the shared abilities, knowledge, and values of the legal academics and practicing lawyers involved. They should also have an understanding of other countries’ laws and should adjust and further develop their own legal knowledge base according to the perspective of a European legal area. Comparative legal analysis, currently only a general standard of thorough research in smaller states, is now, due to the European legal area, becoming an integral part of good scholarship. There are various reasons for this.

Often, it is only a comparative analysis that offers an insight into and proper understanding of the regulatory model of a European legal act or a decision of a European court, and thereby makes it possible to comprehend the transformation of national law that is underway. Moreover, comparative analysis and knowledge of other legal systems may help those lawyers, civil servants, or judges who act on a European or interstate level to understand the positions of their colleagues and to modify and enrich their own line of argumentation. Likewise, this applies to the intensification of academic meetings in the European legal area during conferences, but also of the individual reading of publications from other countries. This is true not only of “European” topics. Adopting a Europe-wide perspective in the study of national questions is increasingly becoming a standard element of any in-depth legal research.

It is, however, important not to fall prey to the domestic analogy here. The law of another member state, although part of the shared European legal area, is a different part thereof and the result of a dissimilar path taken. Due to divergent developments, even the same words or their equivalents may carry rather different meanings. The diversity within the European legal area, in general, requires accepting foreign law as foreign and counteracting the tendency to interpret these other legal systems purely through the prism of one’s own system. This diversity is, to some extent, even protected by article 4(2) TEU which recognizes the expressive role of the constitutions of the member states. It is necessary to study the basic structure of other European legal systems, but also to respect their decisive historical experiences, stages of development, and their legal as well as their scholarly styles in the perspective of the forming European legal area, and to then develop one’s specific tradition in that light.

3.2. Methodological Europeanization

The formation and development of a European legal area is not only a political task, but also one affecting legal practice, judicial decisions, and academic writing. It is therefore vital to familiarize academic and practicing lawyers and judges with the European legal area in a way that enables them to see it as a relevant context for their work, their roles, and their responsibility, and that encourages them to frame their decisions and arguments accordingly. In order to accomplish this, a generalization test might be of assistance. Such a test could guide scholarship, but also legislative and judicial law-making, and inform the interpretation of law in force. It has nowadays become a methodological standard.42

The generalization test is a paramount criterion for the development and critique of a line of legal reasoning. It finds its paradigmatic expression in Kant’s categorical imperative which commands this: “Act only according to that maxim whereby you can at the same time will that it should become a universal law.”43 In legal terms, it requires examining how a doctrinal (i.e., “black-letter”) proposition or an innovative interpretation may be applied to other constellations and whether it produces plausible results in the new context, as well.44 This is a self-evident, firmly established methodological tool. Currently, however, the frame of reference of this test is, at least as far as the development of national law is concerned, that of the respective member state. The effect of such a development outside the domestic legal order is usually not considered. Nevertheless, a development in domestic tax law, corporate law, administrative law, or even constitutional law may have important ramifications in other member states. Such effects should be of concern for any responsible legal operation.

Hence, it may be argued that the European legal area offers a further context for generalization, even when only the development of national law would seem to be at stake.45 Under German constitutional law, such branching out can be even based in the constitutional decision to further European integration.46 In the context of the European legal area, the generalization test is an important instrument to distinguish the convincing from the less convincing doctrinal figures and developments, and an aid in overcoming a methodological narrow-mindedness which might, due to its national focus, even be called methodological nationalism.47 This opening up, however, affects not only our methodology, but also the very identity of scholarship.

3.3. Transformation of disciplinary identity

German legal scholars mostly adopt a doctrinal orientation.48 This is the European mainstream: doctrinal work intended to guide legal practice forms the core of most disciplines in most countries, though it comes in distinctively varying guises. Other topics and scholarly outlooks can be found, but they are often seen, sometimes dismissively, as being “outside” the scope of legal scholarship. It is submitted here that within the European research area, these other topics and approaches need to become as important as the integral doctrinal mode. Here, a lot can be learnt from the American experience, its interdisciplinary openness, but also the critiques thereof.49

In order to maximize the visibility of a national system of scholarship, and even more so of an individual scholar in the European research area, basic research on core doctrinal features or interdisciplinary and theoretically informed work is essential. It is only such projects that can stand a chance before the European Research Council. Doctrinal contributions that delve into the details of the law of a member state and which are meant for the day-to-day work of practitioners, i.e. the vast majority of legal works, have dim prospects in this respect. They are usually too densely interwoven with their specific national legal material.

Apart from doctrinal analysis, empirical, theoretical, and critical examination of the law, but also essayistic speculation, are needed for a vibrant discipline. Such scholarship cannot limit itself to doctrinal terminology but needs to employ research interests, concepts, theories, and methods from other disciplines and must be linked to larger cultural debates. This pluralization has a transforming character: It follows that scholarship is no longer shaped by a single, so-called “legal method.”50 This new approach will in turn transform the disciplinary identity, i.e. what it means to be a scholar and what one is expected to do in order to become one.

The disciplinary identity is not only affected by such a pluralization. In many legal systems, individual legal sub-disciplines have established themselves through concentrating on a specific legal segment to the exclusion of other subjects. They have each found a distinctive characteristic, as is shown by a largely standardized approach in the leading textbooks: constitutional law, administrative law, criminal law, private law, international law, European law.

This strict compartmentalization is already challenged by the constitutionalization of the legal system.51 Compartmentalization is further cast into doubt by the development of the European legal area which presents an increasing need for dealing with certain topics in a way that crosses disciplinary borders. For example, many topics important to a practitioner possess both a domestic and an EU law aspect. A scholar who only focuses on domestic law becomes increasingly old-fashioned, even outdated. This transformation also affects traditional identities of given disciplines. Two aspects particularly stand out in that regard.

First, the Europeanization of such identities is inevitable. While a thick layer of European law covers many issues today, we are still far from common scholarship. Such common scholarship is nonexistent even with respect to Union law.52 A truly European space of scholarship is currently only in its very beginnings; most jurists understand themselves first and foremost with regard to their respective national law and the corresponding scientific community. This is hardly a compelling vision for a future collective orientation. If the European legal area is to live up to well justified standards of legal rationality formulated in the twentieth century with regard to national law, there is a patent need for intensive academic collaboration. It cannot be achieved solely by and within the national areas.53 What is needed is a European academic community, and such a community demands, as the very term indicates, a corresponding identity of its members. There is still a long and arduous way to its achievement, not least because of the question of language, the deep fragmentation, and the lack of transparency regarding research and publication patterns; in short, due to the diversity within the European area of research and law altogether. There are a variety of national academic styles and cultures, which greatly complicate a common discussion in a common area. There are scattered proposals on how to improve the situation. One is the foundation of a European Law Institute,54 modeled on the example of the American Law Institute.55 It intends to foster common scholarship as well as help create an association of European scholars. The European Society of International Law provides a shining example of how that can be achieved. Probably the fastest way to influence the development of the disciplines is through the description of academic positions for young scholars: if comparative legal analysis, publications in various languages, and intense collaboration in transnational settings are mentioned as plusses, or even as requirements, the smart will adapt quickly.

Second, disciplinary identities in the European legal area that are formed primarily through demarcation—such as administrative law against constitutional law, national law against Union law, Union law against international law, and, above all public law against private law—are going to lose influence. Negative categorization is hardly promising any more, assuming it ever was. Disciplinary identity in the European legal area should be as much shaped according to (self-imposed) limits, and certainly not through a fixation on a specific method, as by a core research interest.

4. Outlook: A manifesto for scholarship in the European legal area

The defining criterion for disciplinary identities should no longer depend on whether the norms that are being studied flow from sources of international law, Union law, or national law.56 Rigid primary identities such as a constitutionalist, internationalist, or European Union scholar will be precarious. It is to be expected, and even hoped, that in order to develop scholarship as an adequate response to contemporary problems, such identities will become increasingly flexible and multifaceted, which is not to deny that they have a certain utility, for example in legal education or in the organization of university departments.57 However, other identities, for example informed by a particular interest in a given subject matter (e.g., competition, regulation of financial markets, public procurement, procedure, legal protection in complex polities, many of which combine elements of public, private, and criminal law) or a specific profile and outlook (e.g., the creation of doctrinal systems, direct academic support for legal practice, the elaboration of a certain theory imported from another discipline, empirical analysis) should gain weight for the self-understanding of scholars. This pluralization should be welcomed as a healthy sign of disciplinary vibrancy and curiosity. In the course of such development, the divide between the internal (doctrinal) and external analysis of law should finally be bridged.58

Doctrinal work should remain the focal point for the identity of legal scholarship, as it contributes more than other scholarly approaches to the smooth operation of a legal system. A complex legal system without a sophisticated doctrine usually lacks clarity, predictability, and fairness. This doctrinal core should, however, certainly more than it is at present, be supplemented by a series of further research interests, concepts, theories, and methods, which should be considered equally essential.59 One may hope that this kind of pluralization will increase the attractiveness of legal scholarship; this much, at least, is promised by the American example.

1

Armin von Bogdandy, The Past and Promise of Doctrinal Constructivism: A Strategy for Responding to the Challenges Facing Constitutional Scholarship in Europe, 7 INT’L J. CONST. L. (I·CON). 364 (2009).

2

Michel Rosenfeld, Preface: The Role of Constitutional Scholarship in Comparative Perspective: An Exchange Among Armin von Bogdandy, Robert Post, Mattias Kumm, and Alexander Somek, 7 INT’L J. CONST. L (I·CON). 361 (2009); Mattias Kumm, On the Past and Future of European Constitutional Scholarship, 7 INT’L. J. CONST. L. 401 (2009); Robert C. Post, Constitutional Scholarship in the United States, 7 INT’L. J. CONST. L (I·CON). 416 (2009); Alexander Somek, The Indelible Science of Law, 7 INT’L. J. CONST. L (I·CON). 424 (2009).

3

Giulio Napolitano, Sul futuro delle scienze del diritto pubblico: variazioni su una lezione tedesca in terra Americana [The Future of Public Law Scholarship: Variations on a German Lecture in America], 60 RIVISTA tRIMESTRALE DI dIRITTO pUBBLICO 1 (2010).

4

German Council of Science and Humanities, Recommendations on German Science Policy in the European Research Area (Drs. 9866-10).

5

On the general theme, see THE INTERNATIONALIZATION OF LAW AND LEGAL EDUCATION (Jan Klabbers & Mortimer Sellers eds., 2008); Norman Dorsen, Achieving International Cooperation: NYU’s Global Law School Program, 51 J. LEGAL EDUC. 332 (2001).

6

Cf. Álvaro de Elera, The European Research Area: On the Way Towards a European Scientific Community?, 12 EUR. L.J. 559 (2006); Joseph Franz Lindner, Die Europäisierung des Wissenschaftsrechts [The Europeanization of Science Law], 19 WISSENSCHAFTSRECHT (WISSR) SUPPLEMENT 1, 7 (2009).

7

Completing the Internal Market: White Paper from the Commission to the European Council (Milan, June 28–29, 1985), COM 85 (310) final, June 14, 1985. See also1992: ONE EUROPEAN MARKET? (Roland Bieber, Renaud Dehousse, John Pinder, & Joseph Weiler eds., 1988).

8

Presidency Conclusions, European Council (Lisbon), March 23–24, 2000 (SN 100/1/00 REV. 1), No. 5.

9

Presidency Conclusions, European Council (Barcelona), March 14–16, 2000 (SN 100/1/02 REV. 1), No. 47.

10

Decision 2007/134/EC of the Commission of Feb. 2, 2007, OJ L 57 (Feb. 24, 2007), at 14; in detail Thomas Groß, Der Europäische Forschungsrat [The European Research Council], 45 EUROPARECHT (EUR) 299 (2010).

11

Walter Rüegg, Die Universität in der “Moderne” des 19. und 20. Jahrhunderts, in PHäNOMENOLOGIE DES eUROPäISCHEN WISSENSCHAFTSSYSTEMS [Phenomenology of the European Science System] 121 (Wolfgang Mantl ed., 2010).

12

On the core function of reputation in the academic system, see NIKLAS LUHMANN, DIE WISSENSCHAFT DER GESELLSCHAFT [The Science of Society] 267 (1994).

13

For a detailed account, see MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870–1960 (2002).

14

This also applies to private law, which is very open to the comparative perspective. See Reinhard Zimmermann, The Present State of European Private Law, 57 AM. J. COMP. L. 479, 482 (2009).

15

MARIO P. CHITI, DIRITTO aMMINISTRATIVO eUROPEO [European Administrative Law] (4th edn. 2011); GIACINTO DELLA CANANEA & CLAUDIO FRANCHINI, I pRINCIPI dELL’aMMINISTRAZIONE eUROPEA (2010); Karl-Peter Sommermann, Veränderungen des nationalen Verwaltungsrechts unter europäischem Einfluß—Analyse aus deutscher Sicht [Changes in National Administrative Law under European Influence: An Analysis from the German Perspective], in BESTAND UND PERSPEKTIVEN DES EUROPäISCHEN VERWALTUNGSRECHTS 18 (Jürgen Schwarze ed., 2008).

16

LUIS DíEZ-PICAZO Y PONCE DE LEóN, ANTONIO MANUEL MORALES MORENO, & ENCARNA ROCA TRIAS, LOS PRINCIPIOS DEL dERECHO eUROPEO DE cONTRATOS [Principles of the European Law of Contracts] (2002); REINHARD ZIMMERMANN, DIE EUROPäISIERUNG DES PRIVATRECHTS UND DIE RECHTSVERGLEICHUNG [Comparative Law and the Europeanization of Private Law] 22, 46 (2006).

17

Nina Dethloff, Familien- und Erbrecht zwischen nationaler Rechtskultur, Vergemeinschaftung und Internationalität [Family and Estate Law between National Legal Culture, Communitarization and Internationality], 15 ZEITSCHRIFT FüR EUROPäISCHES PRIVATRECHT (ZEUP) 992 (2007); S. Masucci, La famiglia e la successione ereditaria [Family and Hereditary Succession], in TRATTATO DI dIRITTO pRIVATO eUROPEO 413 (N. Lipari ed., 2003); MIGUEL ÁNGEL PRESNO LINERA, DERECHO eUROPEO DE fAMILIA [European Family Law] (2008).

18

FERNANDO GASCóN INCHAUSTI & ANDRéS DE LA OLIVA SANTOS, DERECHO pROCESAL cIVIL eUROPEO, cOMPETENCIA jUDICIAL iNTERNACIONAL, rECONOCIMIENTO Y eJECUCIóN DE rESOLUCIONES eXTRANJERAS EN LA UNIóN EUROPEA [European Civil Procedural Law, International Judicial Competence, Recognition and Execution of Foreign Decisions in the European Union] 2011; BURKHARD HESS, EUROPäISCHES ZIVILPROZESSRECHT 2010.

19

ULRICH BECKER, WINFRIED BOECKEN, ANGELIKA NUßBERGER, & HEINZ-DIETRICH STEINMEYEREDS., REFORMEN DES dEUTSCHEN SOZIAL- UND ARBEITSRECHTS IM LICHTE SUPRA- UND iNTERNATIONALER VORGABEN [Reforms in German Social and Labor Law in the Light of Supranational and International Requirements], 2005.

20

Ulrich Sieber, Die Zukunft des Europäischen Strafrechts [The Future of European Criminal Law], 122 ZEITSCHRIFT Für die gESAMTE STRAFRECHTSWISSENSCHAFT (ZSTW) 1 (2009).

21

Guglielmo Maisto, Le interrelazioni tra “diritto tributario comunitario” e “diritto tributario internazionale” [The Interconnections between “European Community Tax Law” and “International Tax Law”], 11 RIVISTA DI dIRITTO tRIBUTARIO 865 (2006); Wolfgang Schön, Die Auswirkungen des gemeinschaftsrechtlichen Beihilferechts auf das Steuerrecht [The Effects of European Community Law on Subsidies on Tax Law], in VERHANDLUNGEN DES SIEBZEHNTEN ÖSTERREICHISCHEN JURISTENTAGES WIEN 2009, vol. 4:2, 21 (Österreichischer Juristentag ed., 2010); Wolfgang Schön, Europarechtliche Grundlagen für Gesellschafts- und Steuerrecht [The Legal Basis in European Law for Corporate Law and Tax Law], 1 DER GMBH-STEUER-BERATER 9 (2006).

22

Armin von Bogdandy, Zweierlei Verfassungsrecht [Two kinds of Constitutional Law], 39 DER STAAT 163 (2000).

23

Regarding the extension of European foreign affairs, see Daniel Thym, Foreign Affairs, in PRINCIPLES OF EUROPEAN CONSITUTIONAL LAW 309 (Armin von Bogdandy & Jürgen Bast eds., 2010).

24

Rainer Wahl, Europäisierung: Die miteinander verbundene Entwicklung von Rechtsordnungen als ganzen [Europeanization: The Interconnected Development of Legal Orders as a Whole], in ALLGEMEINES VERWALTUNGSRECHT—ZUR TRAGFäHIGKEIT EINES KONZEPTS 869 (Hans-Heinrich Trute, Thomas Groß, Hans Christian Röhl, & Christoph Möllers eds., 2008).

25

Art. 3(2) TEU: “The Union shall offer … an area of freedom, security and peace… .” The term “area” reappears in several other key provisions, for example in the definition of the internal market in the Single European Act, now Art. 26 (2) TFEU.

26

Stefan Leible, Europäisches Privatrecht am Scheideweg [European Private Law at the Crossroads], 61(35) NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 2558 (2008). The term was coined in this context by Hein Kötz, Rechtsvereinheitlichung—Nutzen, Kosten, Methoden, Ziele [Legal Harmonization: Benefits, Costs, Methods, Goals], 50 RABELS ZEITSCHRIFT (RABELSZ) 1, 5 (1986).

27

For more details, see LUCA DE LUCIA, AMMINISTRAZIONE tRANSNAZIONALE E oRDINAMENTO eUROPEO [Transnational Administration and the European Legal Order] (2009).

28

For greater detail, see Christoph Schönberger, Verfassungsvergleichung heute: Der schwierige Abschied vom ptolemäischen Weltbild [Comparative Constitutional Law Today: The Hard Farewell to a Ptolemaic Image of the World], 43 VERFASSUNG UND RECHT IN ÜBERSEE (VRÜ) 6 (2010).

29

With regard to their exemplary function, see Oliver Lepsius, Was kann die deutsche Staatsrechtslehre von der amerikanischen Rechtswissenschaft lernen? [What Can German State Law Doctrine Learn from American Legal Scholarship?], DIE VERWALTUNG, SUPPLEMENT 7: STAATSRECHTSLEHRE ALS WISSENSCHAFT 319, 348 (2007).

30

On the general phenomenon, see William M. Johnston, How Higher Education in the United States Challenges Universities in Europe and the United Kingdom, in PHäNOMENOLOGIE DES europäISCHEN WISSENSCHAFTSSYSTEMS, supra note 11, 145.

31

Many contributions in the German Law Journal are of particular importance for this issue; with respect to its role, see the contributions on the occasion of its tenth anniversary in the special double issue Following the Call of the Wild: The Promises and Perils of Transnationalizing Legal Education, 10 GERMAN L.J. 1291 (2009).

32

For further detail, see Michael Hartmann, Die Exzellenzinitiative—ein Paradigmenwechsel in der deutschen Hochschulpolitik [The Excellence Initiative: A Paradigm Shift in German Higher Educational Politics], 34 LEVIATHAN 447 (2006).

33

With regard to the causes in the US, see Richard A. Posner, The Decline of Law as an Autonomous Discipline, 100 HARV. L. REV. 761 (1987). Kumm, supra note 2, at 410 et seq., challenges this assertion. Any overview over the bulk of academic publication, not just in Germany, but in most other countries proves, however, my point, as do the contributions in HANDBUCH IUS PUBLICUM EUROPAEUM (IPE) II (Armin von Bogdandy, Pedro Cruz Villalón, & Peter M. Huber eds., 2008), for constitutional scholarship; and inHANDBUCH IUS PUBLICUM EUROPAEUM (IPE) iv (Armin von Bogdandy, Sabino Cassese, & Peter M. Huber eds., 2011), for administrative law scholarship, both in great detail. Current discussions about reforming legal scholarship in Germany convene on the diagnosis that far too many chairs at German law faculties for legal philosophy, legal history, and sociology of law have been transformed over the past two decades into chairs with a doctrinal orientation. For a short but helpful comparative perspective on the two types of constitutional scholarship, see Michel Rosenfeld, The Role of Constitutional Scholarship in Comparative Perspective, 7 INT’L J. CONST. L (I·CON). 362 (2009); Napolitano, supra note 3.

34

Post, supra note 2, at 421.

35

Kumm, supra note 2, at 411.

36

Pointedly, Lepsius, supra note 29, at 340.

37

Post, supra note 2, at 421.

38

For a masterly elaboration, see Somek, supra note 2, at 431 et seq.; accord. Napolitano, supra note 3; and see, most influential recently, MARTTI A. KOSKENNIEMI’s plea for formalism in THE GENTLE CIVILIZER OF NATIONS (2001).

39

Often, those law schools are accused of neglecting such doctrinal work. See Harry T. Edwards, The Growing Disjunction between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1993). For a comparative view see Somek, supra note 2, at 424.

40

Sabino Cassese, La storia, compagna necessaria del diritto [History, the Necessary Companion of Law], 2 LE CARTE E LA STORIA. RIVISTA DI sTORIA dELLE iSTITUZIONI 5 (2009); Reinhard Zimmermann, Comparative Law and the Europeanization of Private Law, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 539 (Mathias Reimann & Reinhard Zimmermann eds., 2008).

41

For further detail, see SUSANA DE LA SIERRA, UNA METODOLOGIA pARA EL DERECHO COMPARADO eUROPEO. DERECHO PúBLICO COMPARADO Y DERECHO ADMINSTRATIVO EUROPEO [A Methodology of European Comparative Law. Comparative Public Law and European Administrative Law] 67 (2004).

42

GERTRUDE LüBBE-WOLFF, RECHTSFOLGEN UND REALFOLGEN [Legal Effects and Real Effects] 139 (1981). Cf. ROLF WANK, GRENZEN rICHTERLICHER RECHTSFORTBILDUNG [Limits of Judicial Law-Making] 46 (1978).

43

IMMANUEL KANT, GRUNDLEGUNG ZUR METAPHYSIK DER SITTEN [The Groundwork of the Metaphysics of Morals] 51 (Wilhelm Weischedel ed., Suhrkamp Werkausgabe Band VII [1785]) (my translation).

44

Lübbe-Wolff, supra note 42, at 156.

45

Martin Böse, Die Entscheidung des Bundesverfassungsgerichts zum Vertrag von Lissabon und ihre Bedeutung für die Europäisierung des Strafrechts [The Federal Constitutional Court’s Decision on the Lisbon Treaty and Its Significance for the Europeanization of Criminal Law], 4 ZEITSCHRIFT FüR iNTERNATIONALE STRAFRECHTSDOGMATIK 76, 83 (2010); Sabino Cassese, Trattato di Lisbona. La Germania frena [The Lisbon Treaty. Germany Slamming on the Brakes], 15(9) GIORNALE DI dIRITTO aMMINISTRATIVO 1003 (2009).

46

For more detail, see Peter M. Huber, Offene Staatlichkeit: Vergleich [Open Statehood: A Comparison], in HANDBUCH IUS PUBLICUM EUROPAEUM (IPE) ii, supra note 33, at 454 § 26 [margin. no. 104].

47

Regarding the term, see Michael Zürn, Politik in der postnationalen Konstellation [Politics in the Postnational Constellation], in POLITIK IN DER eNTGRENZTEN WELT 181 (Christine Landfried ed., 2001).

48

For sure, doctrinal work, as it is practiced today, allows and even requires functionalist analysis and gives room to broad normative arguments that can translate political positions. For a detailed account, see von Bogdandy, The Past and Promise of Doctrinal Constructivism, supra note 1, at 376, 378. I might not have made this point clear enough: for a critique, see Kumm, supra note 2, at 415.

49

For a detailed account, see Edwards, supra note 39, at 34; Edward L. Rubin, Law and the Methodology of Law, WIS. L. REV. 521 (1997).

50

Cf., e.g., Andreas Voßkuhle, Neue Verwaltungsrechtswissenschaft [New Administrative Law Scholarship], in GRUNDLAGE DES VERWALTUNGSRECHTS, Band I, 1, 2 (Wolfgang Hoffmann-Riehm, Eberhard Schmidt-Aßmann, & Andreas Voßkuhle eds., 2006). But see, in favor of pluralization, Matthias Jestaedt, Perspektiven der Rechtswissenschaftstheorie [Perspectives of Legal Scholarship Theory], in RECHTSWISSENSCHAFTSTHEORIE 186, 195 (Andreas Voßkuhle & Oliver Lepsius eds., 2008).

51

CLAUS-WILHELM CANARIS, VERFASSUNGS- UND eUROPARECHTLICHE ASPEKTE DER VERTRAGSFREIHEIT IN DER PRIVATRECHTSGESELLSCHAFT. FESTSCHRIFT FüR LERCHE [Constitutional and European Law Aspects of Freedom of Contract in Private Law Society. Liber Amicorum Lerche] 873 (1993).

52

Matthias Ruffert, Was kann die deutsche Europarechtslehre von der Europarechtswissenschaft im europäischen Ausland lernen? [What Can German Scholarship of European Law Learn from European Law Scholarship in Other European Countries?], in STAATSRECHTSLEHRE ALS WISSENSCHAFT, DIE VERWALTUNG, Supplement 7, 253, 256 (Helmuth Schulze-Fielitz ed., 2007).

53

Reinhard Zimmermann, Savigny’s Legacy, 42 L. Q. REV. 576 (1996).

54

Leible, supra note 26, at 2562. For an initiative in this context, seewww.europeanlawinstitute.eu.

55

Cf., concerning the central role and the tasks of the American Law Institute, Joachim Zekoll, Das American Law Institute—A Role Model for Europe?, in GLOBALISIERUNG UND ENTSTAATLICHUNG DES RECHTS 101 (Reinhard Zimmermann ed., 2008).

56

This does not seek to merge the different legal systems into one vague global law. For more detail, see Armin von Bogdandy, Prolegomena zu Prinzipien internationalisierter und internationaler Verwaltung [Prolegomena on Principles of Internationalized and International Administration], in ALLGEMEINES VERWALTUNGSRECHT—ZUR TRAGFäHIGKEIT EINES KONZEPTS 683, 684 (Hans-Heinrich Trute, Thomas Groß, Hans Christian Röhl, & Christoph Möllers eds., 2008).

57

Brams Akkermans, Challenges in Legal Education and the Development of a New European Private Law, 10 GERMAN L. J. 803, 813 (2009); accord. Sabino Cassese, La stato presente del diritto amministrativo italiano [The Present State of Italian Administrative Law], 60 RIVISTA tRIMESTRALE DI dIRITTO pUBBLICO 389, 396 et seq.

58

Martijn Hesselink, A European Legal Method? On European Private Law and Scientific Method, 15 EUR. L. J. 20, 45 (2009).

59

Regarding the options, compare the contributions in DAS PROPRIUM DER RECHTSWISSENSCHAFT [The Identity of Legal Scholarship] (Christoph Engel & Wolfgang Schön eds., 2007). For my position, see von Bogdandy, The Past and Promise of Doctrinal Constructivism, supra note 1.