“Law as the Study of Norms” – Foundational Subjects and Interdisciplinarity in Germany and the United States

In my view, the Wissenschaftsrat’s report hits almost all the right notes. One could wish for it to be bolder. But that would come with its own risks.

This is true in particular for one of its core points—the role of foundational subjects and of interdisciplinarity. At first, the report appears strangely ambivalent. On the one hand, the strengthening of foundational subjects and interdisciplinarity mean a turnaround from reforms in the 1980s. Legal scholarship and education should include “historical, philosophical, sociological, political, psychological, economic and criminological foundations of law.” On the other hand, the role given to such approaches and the underlying disciplines is clearly only a subordinate one: other subjects are relevant only insofar as they help to understand legal doctrine. Independent analysis or critique of law apparently has no place, it seems, in law departments.

This subordinate role for interdisciplinarity results from what looks at first like a rather narrow understanding of law, and of legal research and education, that emerges from the report. We learn that “the discipline of law is concerned with the study of norms,” that law is a “hermeneutic discipline”, and that the task of law as a discipline is “to understand and analyse the body of legal norms.” Is this all? Is law really just the interpretation of texts? What about unwritten law? Are we not also interested in the impact that the law has on society? The role of institutions for economic progress and political stability? The ideological tendencies of judges? The correlation between prison rates and crime rates? Etc.

Whoever criticizes the implied hierarchy between doctrine and other subjects may want to look toe the United States for guidance. Here, faith in legal doctrine as a sufficiently exact tool to deal with social issues has been destroyed ...

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