Free Trade in Legal Scholarship?

I want to decline Rob Howse’s invitation to talk about my own residual anxieties, because he introduces another more interesting theme into the debate: whether scholarship can actually be traded between countries. He suggests that such trade exists, though apparently only in one direction: “It is not as if Americans are going to buy their doctrinal scholarship from Germany […]; on the other hand, some forms of interdisciplinary scholarship from the US may well be exportable to Germany.”

But it was not always so. There was a time, prior to World War I, when many Americans were indeed eager to “buy” their doctrinal scholarship from Germany. The influence of 19th century German legal science on what has come to be called “classical legal thought” in the United States can hardly be overestimated. It can be found in the work of US luminaries like Holmes, Pound, Fuller/Purdue, Llewellyn, and many others. And it can be seen in the history of American legal education in the 19th century. Duncan Kennedy has described this German influence as the first of his three globalizations of legal thought

That influence decreased when Germany became the enemy in World War I (symbolized most perfectly perhaps in Karl Llewellyn, who fought this war first in the German and later in the US army). And the fruits of the influence were all but eradicated when legal realism (which, itself, found influences from Germany, especially the late Jhering) rejected the “legal science” borrowed from German formalism that had become untenable, and replaced it with a new scientific approach that sought objectivity in disciplines other than law—economics, psychology, political science, a science of values, etc. The interdisciplinary strength was born and grew strong. After World War II, when German law was thoroughly discarded, “the wind changed”—US law became dominant and began to influence the law, both in Europe and elsewhere ...

Zum vollständigen Artikel

Cookies helfen bei der Bereitstellung unserer Dienste. Durch die Nutzung erklären Sie sich mit der Cookie-Setzung einverstanden. Mehr OK