On the courage to be wrong

The debate on the Wissenschaftsrat-Report has quickly turned into one about the comparative advantages of German doctrinal vs. US interdisciplinary legal scholarship and education. This is not surprising because much of the Report reads like a recommendation to go further down the American path, while at the same time still taking doctrine seriously – very seriously indeed. In taking this ‘middle path’, the authors seek to take the best of what are two very different academic worlds. This effort is admirable, but I am skeptical about its prospects.

The attempt itself stems, I think, from a deeper dilemma that has haunted German-American debates for a while and has been discussed by Or Bassok on the ICON-Blog: While American scholars are interested in ‘external’ forces that drive law, their scholarship can easily become destructive, as Joseph Weiler mentioned at a recent German-American NYU workshop. Ulrich Haltern and Christoph Möllers have addressed this problem as the ‘self-fulfilling prophecy’ of American legal realism: that it destroys trust in law by exposing it as driven by external, non-legal forces. That the US Bar Association is now increasingly protesting the American approach is hence hardly accidental (see Ralf Michael’s posting). The challenge, as many Germans and some American scholars see it, is how to avoid this destruction. Interdisciplinary research, in other words, is only good so long as it is useful to make normative and ultimately legal claims.

This task, however, is not only very difficult, but it also comes with a price to pay. This price is an increased risk of being considered unprofessional for dabbling in a field not your own and of being wrong.

These risks are perhaps lowest for interdisciplinary work involving ethics or political philosophy. Legal terms often refer to ethical and political concepts and it is therefore comparatively easy to frame them as legal arguments ...

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