German legal doctrine is almost like German cars. Fine product, best manufacturing. Skilled manpower behind it. Why is it then that this doctrine “sells” only regionally, not globally (although it is not expensive)? Of course, there is always the case of people preferring other brands, for example, local French or American intellectual goods. But this explanation is not sufficient.
The heart of the matter lies in what we may think of as the markets of legal doctrine, that is, the systems of politics (defined as having power or not) and law (based on the distinction of legal vs. illegal) and the legal systems. There are quite a few of these legal systems around the world not predicated on a philosophically coherent doctrine even with regard to jurisprudence, but instead responsive to the decisions of a sovereign legislator, to a professional administration, or to powerful courts such as common law courts.
The Circumcision of Jesus, Master of St. Severin, ca 1490
Law and science
Mostly as a result of late nation-building, the German system of law established science as a ground of validity whereas other countries – like France – were born juridically out of a political revolution. The drive to establish a philosophically coherent legal corpus governed by doctrine (in German: “Dogmatik”) and grounded in science was nourished by the system-building philosophy that characterizes Kant and Hegel. This drive was and is, in many ways, the “salt” or essence of the German legal system.
When after World War II, the Allies forced Germany to introduce a powerful Supreme Court, this drive was systematically embedded in German jurisprudence. Now, even our fellow Europeans can hardly grasp why the German Supreme Court takes an inordinate amount of time (about two months for a so-called “speedy” decision, which, in itself, is a novelty in the court’s tradition) to come to terms with elementary political measures involving the German Constitution that are generally deemed essential to save Euro-Land.
The Supreme Court in Washington would not even consider such a case – the preservation of the Union, say – as a matter to be resolved by abstract political doctrine. The high reputation of Supreme Court judges in Germany regarding their attention to social justice is among the best in the world, and that is surely primarily not merely a matter of the court’s power, since there are other powerful people and government agencies in the German republic that do not share this exalted standing.
A stellar reputation
The stellar reputation of the German legal system derives largely from the reliable neutrality and academic professionalism of the judges themselves, many of whom are outstanding and even world renowned professors. Thus, in legal and jurisprudential respects, continental Europe is quite different from the US, and the German legal system is even strikingly different from some other European legal systems – causing more and more often jurisdictional conflicts between, say, the court in Karlsruhe and the European courts as in Luxemburg (for the EU countries) and in Strasbourg (for the many more members of the Council of Europe).
Let us turn to view Germany’s Rhineland, cradle of Yiddish and once home to an enormous and influential Jewish community. Currently we have a curious decision by a rather ordinary court in Cologne (Landgericht Köln). You may think the crisis of the euro, possibly leading into more European integration, is quite enough for the public to discuss.
But here we are: This summer of 2012 was not a summer of love as in 2006, when Germany hosted the Soccer World Championship, but, for the first time, it turned out to be the summer of circumcision! What a thrill for an historian of ideas! In medieval theology, Christian scholastics seriously discussed how many angels could gather on the point of a pin, and Talmudic discussion was already famous for hairsplitting.
Now, for lack of a more serious topic, we are consumed by an open and fierce discussion of man’s foreskin. What a thrilling mixture of rational, emotional, and sexual strands presents itself as a candidate for serious jurisprudential analysis by the learned sages.