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Seven Role Models of Legal Scholars

Published online by Cambridge University Press:  06 March 2019

András Jakab

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In the following Article I will develop seven ideal-typical role models for (or caricatures of) legal scholars: the Oracle Scientist, the Prophet, the Law Reformer, the Humble Clerk, the Wise Pragmatist, the Self-Reflective, and the Media Star. Ten features will be used to characterize the ideal for each model: primary audience, ideal function, perverted form, influence on the law, prestige, measure of success, time scale, use of non-legal (moral or social/economic) arguments, precondition of existence, typical countries, and famous lawyers (representing themselves or at least proposing to other legal scholars to follow that specific role model).

Type
Research Article
Information
German Law Journal , Volume 12 , Issue 2: Special Issue - The Many Fates of Legal Positivism , 01 February 2011 , pp. 757 - 784
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 The Article is also a comment on Alexander Somek's The Spirit of Legal Positivism published in this volume of the German Law Journal. For useful remarks and critical observations I am grateful to Mátyás Bódig, Lisa Giles, Tamás Gy˝rfi, Gábor Hamza, Béla Pokol, and Alexander Somek; further to the participants of the research seminar held at the Pázmány Péter Catholic University Budapest on the 4th of October 2010, especially to Péter Cserne and Miklós Szabó.Google Scholar

2 The expressions “role” and “role model” in this Article are not used in their specific and precise social-psychological or anthropological senses, but only in their everyday meaning.Google Scholar

3 See generally Kirchmann, Julius von, Die Werthlosigkeit der Jurisprudenz als Wissenschaft (1848), available at http://fama2.us.es/fde/ocr/2006/werthlosigkeitDerJurisprudenz.pdf; András Sajó, Kritikai értekezés a jogtudományról (1983).Google Scholar

4 See generally Neumann, Ulfrid, Wissenschaftstheorie der Rechtswissenschaft, in Einführung in die Rechtsphilosophie der Gegenwart 385–400 (Arthur Kaufmann et al. eds., 2004) (providing an overview of the literature).Google Scholar

5 See Berman, Harold J., Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition 143 (2003) (including further references to specific provisions of contemporary procedural norms); see also Gerhard Köbler, Deutsche Rechtsgeschichte 156 (1996). Similar practice existed in ancient Roman law, when the praetor (an elected lay politician serving also as pre-trial judge) and the judex (the actual judge, equally a layman, appointed ad hoc by the praetor) asked the jurists (iuris consulti, called also men experienced in law, or iuris prudentes) about how to solve the case. Randall Lesaffer, European Legal History 92–93 (2009). Gaius lists scholarly opinion (responsa prudentium, “answers of the learned”) as a source of law. See Gaius, Institutes 1.2.Google Scholar

6 Twining, William et al., The Role of Academics in the Legal System, in The Oxford Handbook of Legal Studies 938 (Peter Cane & Mark Tushnet eds., 2003).Google Scholar

7 Id. at 940.Google Scholar

8 For the legitimacy problem of influencing the content of law, see Matthias Jestaedt, Das mag in der Theorie richtig sein … 83–85 (2006).Google Scholar

9 You can become a member of the Order of Oracle Scientists if you get accepted in a long ritual by current members. The ritual includes the defense of a doctoral dissertation, the submission of a Habilitationsschrift, and finally the appointment as full professor. Without having fulfilled these steps of the ritual, whatever you say will count less—independently from the content of what you say—than what the very last member of the Order says.Google Scholar

10 In the 6th century AD, Justinian made it obligatory to follow the opinions of some (mostly then dead) scholars by codifying them—basically he made obligatory to follow his own code which happened to be based partly on scholarly opinions—but forbade any new commentaries on it: “We command that our complete work, which is to be composed by you with God's approval, is to bear the name of Digesta or Pandects. No skilled lawyers are to presume in the future to supply any commentaries thereon and confuse with their own verbosity the brevity of the aforesaid work … .” Constitutio Deo auctore 12. With an even more radical solution, French revolutionaries simply closed law faculties in 1793. Raoul C. van Caenegem, Judges, Legislators, and Professors 156 (1987).Google Scholar

11 Mastronardi, Philippe A., Juristisches Denken 264–76 (2001).Google Scholar

12 Pöcker, Markus, Unaufgelöste Spannungen und blockierte Veränderungsmöglichkeiten im Selbstbild der juristischen Dogmatik, 37 Rechtstheorie 157–60 (2006).Google Scholar

13 See Jakab, András, What Makes a Good Lawyer?, 62 Zeitschrift für öffentliches Recht 275–87 (2007) (discussing two-level thinking).Google Scholar

14 Contradictions have to be eliminated by way of interpretation, otherwise one cannot contribute to the solution of future problems. If contradictions are merely highlighted, those applying the law will stare puzzled at the two passages, then decide by tossing a coin. The Oracle Scientist's task is to help avoiding this, thus making a calculable functioning of the system possible. Eike von Savigny, Die Rolle der Dogmatik— Wissenschaftstheoretisch Gesehen, in Juristische Dogmatik und Wissenschaftstheorie 104 (Ulfrid Neumann et al. eds., 1976).Google Scholar

15 Lepsius, Oliver, Themen einer Rechtswissenschaftstheorie, in Rechtswissenschaftstheorie 3 (Matthias Jestaedt & Oliver Lepsius eds., 2008).Google Scholar

16 Vorwort, in Das Proprium der Rechtswissenschaft XII (Christoph Engel & Wolfgang Schön eds., 2007).Google Scholar

17 Jhering, Rudolf von, Scherz und Ernst in der Jurisprudenz 252–53, 258, 274, 287, 288 (1884).Google Scholar

18 Lawyers necessarily work with abstract concepts. Eugen Bucher, Was ist »Begriffsjurisprudenz«?, in Theorie und Technik der Begriffsjurisprudenz 389 (Werner Krawietz ed., 1976).Google Scholar

19 This is well shown by the fact that the four traditional methods of Savigny (grammatical, logical, systemic, and historical) are not replaced by the teleological (or purposive) interpretation of which Jhering is thought to be the inventor; rather, it is added to them as a fifth method. The opposite of Begriffsjurisprudenz is the “School of Free Law” (Freirechtsschule). Id. at 372–73.Google Scholar

20 See Heck, Philipp, Was Ist Die Begriffsjurisprudenz, Die Wir Bekämpfen?, 14 Deutsche Juristenzeitung 1456–61 (1909).Google Scholar

21 It does so openly and explicitly in the tradition of Begriffsjurisprudenz today. Robert Alexy, Theorie der Grundrechte 38 (2001). While rejecting mere logical inference, Alexy still thinks the elaboration of the conceptual system to be the primary goal of jurisprudence, and in this aspect he explicitly sides with the tradition of Begriffsjurisprudenz. Another remarkable contemporary advocate of this approach is Armin von Bogdandy, The Past and Promise of Doctrinal Constructivism, 7 Int'l J. Const. L. 364–400 (2009).Google Scholar

22 Only concrete logical faults have to be shown, but conceptualism as such should not be criticized. Bucher, supra note 18, at 388; Horst-Eberhard Henke, Wie tot ist die Begriffsjurisprudenz?, in Theorie und Technik der Begriffsjurisprudenz 415 (Werner Krawietz ed., 1976).Google Scholar

23 Andreas Voßkuhle, Neue Verwaltungsrechtswissenschaft, in 1 Grundlagen des Verwaltungsrechts § 1 n.6 (Wolfgang Hoffmann-Riem et al. eds., 2006).Google Scholar

24 Building a conceptual system instead of reproductivity is advocated also by Henke, supra note 22, at 414.Google Scholar

25 The ideal of gaplessness is characteristic not only of Begriffsjurisprudenz, but also of the rationalist natural-law tradition. Gustav Boehmer, Grundlagen der bürgerlichen Rechtsordnung 2.1: Dogmengeschichtliche Grundlagen des bürgerlichen Rechtes 63 (1951). For reference to Christian Wolff, see Begriffsjurisprudenz, in Theorie und Technik der Begriffsjurisprudenz 432–37 (Werner Krawietz ed., 1976), especially page 436. The beginnings of conceptual system-building in law are traced back to scholastics—or its reflections in the works of the glossators and commentators—by Berman. Harold J. Berman, The Origins of Western Legal Science, in The Western Idea of Law, 399–413 (1983). Special note should be taken of pages 401 and 405.Google Scholar

26 Even authors outside of the Begriffsjurisprudenz tradition often assume non-contradiction in the case of a legal system. J.W. Harris: Law and Legal Science, An Inquiry into the Concepts “Legal Rule” and “Legal System” 11, 81–83 (1979).Google Scholar

27 Twining, et al., supra note 6, at 937.Google Scholar

28 “Rechtswissenschaft ist systematisch oder sie ist nicht” (“Legal scholarship is either systematic, or it is not legal scholarship”). Lepsius, supra note 15, at 16.Google Scholar

29 “Rechtswissenschaft scheint das Recht nicht nur zu beschreiben, sondern auch zu vertreten.” Christoph Möllers, Vorüberlegungen zu einer Wissenschaftstheorie des öffentlichen Rechts, in Rechtswissenschaftstheorie 167 (Matthias Jestaedt & Oliver Lepsius eds., 2008).Google Scholar

30 Renowned German law firms expect their applicants to hold a doctorate.Google Scholar

31 In lack of potential practicability, the Oracle Scientist does not build grand theories, but only middle-level theories—for example, the theory on proportionality—which can be used to sophisticate the conceptual system designed to solve cases. Lepsius, supra note 15, at 26.Google Scholar

32 In this sense Rechtsdogmatik is conservative. Id. at 19. Similarly, see the Hungarian concept of the “invisible Constitution” as developed by the then president of the Hungarian Constitutional Court László Sólyom in his concurring opinion in 23 December 1990. (X.31.) AB, ABH 1990, 88, 97–98. Sólyom famously said in different interviews that even if there will be a new Constitution, the “invisible Constitution” consisting of the conceptual system, remains the same—not even the constitution maker could change it. The plausibility of such opinions is limited though, if positive law is changing so much, that there is no time to adjust the system to the new legal situation. The Oracle Scientist thus struggles, if the legislator or the constituent power are too active. Möllers, supra note 29, at 165; Vorwort, in Das Proprium der Rechtswissenschaft XI (Christoph Engel & Wolfgang Schön eds., 2007).Google Scholar

33 Hohfeld, Wesley Newcomb, Some Fundamental Legal Conceptions as Applied in Legal Reasoning, 23 Yale L.J. 16 (1913).Google Scholar

34 On Langdell's vision of law, see John Chipman Gray, Langdell's Orthodoxy, 45 U. Pitt L. Rev. 1 (1983). Only his teaching method (case method) survived, but not his approach to legal scholarship. William P. LaPiana, Logic and Experience: The Origin of Modern Legal Education 148–70 (1994); Stevens, Robert, Law School: Legal Education in America from the 1850s to the 1980s 35–72 (1983).Google Scholar

35 As Somek points out: “The common law tradition remains at odds with the constructive legal scholarship. A new case changes everything.”Google Scholar

36 For Dogmatik as the “core discipline of legal scholarship” (Kerndisziplin der Rechtswissenschaft), see Ralf Dreier, Rechtstheorie und Rechtsgeschichte, in 2 Recht-Staat—Vernunft: Studien zur Rechtstheorie 217 (Ralf Dreier ed., 1991).Google Scholar

37 Judges are thus young, inexperienced, and receive only a modest salary. Their social standing is also modest. In most cases, they cannot submit dissenting opinions, so they cannot make names and they remain unknown in the legal community. Twining et al., supra note 6, at 939.Google Scholar

38 If judges disagree with the Prophet, then they are evil and cynical betrayers of their profession. Cf. Ronald Dworkin, The Decision that Threatens Democracy, The New Review of Books, 13 May 2010. Note that this type of criticism—as opposed to the criticism by an Oracle Scientist—is not about the judges’ intellectual capacity.Google Scholar

39 See generally Bogdandy, Armin von, Prinzipien der Rechtsfortbildung im Europäischen Rechtsraum: Überlegungen zum Lissabon-Urteil des BVerfG, Neue Juristische Wochenschrift 1 (2010).Google Scholar

40 Merryman, John Henry, The Italian Style III: Interpretation, 18 Stan. L. R. 583, 586 (1966).Google Scholar

41 See Friedrich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814).Google Scholar

42 Italian legal scholarship with its abstract conceptualism seems similar in many respects to the German one— though without Savigny's conscious and explicit program. John Henry Merryman, The Italian Style I: Doctrine, 18 Stan. L. R. 39, 45–48 (1965).Google Scholar

43 See Posner, Richard A., The Problematics of Moral and Legal Theory IX (2002) (using the expression “moral entrepreneurs” for these (partly legal) scholars). However, I prefer the word “Prophet” as it rather expresses the need for followers.Google Scholar

44 Those who do not like this approach might consider the Prophet as a religious fanatic. For example, the description of Dworkin as “the Taliban of the Western legal thought … .” Richard A. Posner, The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. 1637, 1695 (1998).Google Scholar

45 Dworkin, Ronald, Law's Empire 90 (1986).Google Scholar

46 See id. at 239 (presenting the concept of the Judge as Hercules).Google Scholar

47 Dworkin, Ronald, Life's Dominion 3–29, 118–47 (1993).Google Scholar

48 See Dworkin, , supra note 45, at 225–28, 254–58 (basing “law as integrity” on a coherent moral vision).Google Scholar

49 Cf. Dworkin, , supra note 38. Some Oracle Scientists—following a Weberian view of science—plainly despise the Prophet as un-scientific. Cf. Max Weber, Wissenschaft als Beruf 25 (1996) (“weil der Prophet und der Demagoge nicht auf den Katheder eines Hörsaals gehören.”) (“because the prophet and the demagogue do not belong to the lectern of a lecture hall.”). Weber himself rather belongs to the Self-Reflective category, but his quoted text makes explicit some presuppositions shared by most of the Oracle Scientists.Google Scholar

50 See Simmonds, Nigel E., Central Issues in Jurisprudence: Justice, Law and Rights 217 (2002) (including a list of further references).Google Scholar

51 Cf. Legrand, Pierre, European Legal Systems are not Converging, 42 Int'l & Comp. L.Q. 52, 74–75 (1996) (covering the difference between common law and civil law countries). He explains that in the common law perception the court's power is original—it stems from the common law and not from statutes—as opposed to civil law countries where it stems from the legislator. See also Stephen Sedley, Human Rights: a Twenty-First Century Agenda, Pub. L. 386 (1995) (discussing “bi-polar sovereignty of the Crown in Parliament and the Crown in its courts”).Google Scholar

52 Unfortunately (for the Prophet), the constitutional court judges in civil law countries are often members of the Order of Oracle Scientists, and they are not particularly impressed by the emotional parvenu Prophet. They prefer to follow their centuries old traditions of (seemingly) value-neutral scientific approach to law.Google Scholar

53 Atiyah, Patrick S. & Summers, Robert S., Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions 230–31 (1987) (conceptualizing the Declaration of Independence and the right to rebellion—which is very difficult to do without natural law arguments).Google Scholar

54 Bentham, Jeremy, Truth Versus Asshurst, in 5 The Works of Jeremy Bentham 233–37, 235 (W. Tait ed., 1843).Google Scholar

55 See Jakab, András, Surviving Socialist Legal Concepts and Methods, in The Transformation of the Hungarian Legal Order 1985–2005 606–19 (András Jakab et al. eds., 2007).Google Scholar

56 At this point, the Westminster system and the socialist countries were very similar.Google Scholar

57 The real task of legal scholarship is preparing proposals for new laws; otherwise legal scholarship is just “useless theorizing.” János Beér et al., Magyar államjog 16, 18 (1972).Google Scholar

58 The fact that judicial decisions are published or even systematized, and the fact that the legislator can change the statute as easily as the judges their case law, do not seem to disturb the proponents of this approach.Google Scholar

59 Similarly, please see the interview with Ferenc Petrik former Supreme Court judge in Hungary about the scholarly value of codification, available at http://www.jogiforum.hu/interju/66. For a rebuttal by the present author, see http://www.jogiforum.hu/interju/69.Google Scholar

60 Dicey, Albert Venn, Can English Law be Taught at the Universities? Inaugural Lecture, 21 April 1883 13 (1883). As a matter of fact, a real Oracle Scientist would consider Dicey's works (for example, An Introduction to the Study of the Constitution (1959)) exactly as primitive and unsystematic as he does his contract lawyer colleague's book.Google Scholar

61 Blackstone, William, 1 Commentaries on the Laws of England 69 (1765).Google Scholar

62 Twining, et al., supra note 6, at 937.Google Scholar

63 See generally Smith, John, An Academic Lawyer and Law Reform [Presidential Address, The Society of Public Teachers of Law], 1 Legal Stud. 119 (1981) (providing anecdotes).Google Scholar

64 See Everson, Michelle, Is it just me, or is there an Elephant in the Room?, 13 Eur. L. J. 136, 138 (2007) (criticizing the Oracle Scientists (here, Principles of European Constitutional Law (Jürgen Bast & Armin von Bogdandy eds., 2006)) for seeing a systematic law where it actually does not exist; against the “Germanic obsession” of systematic and elitist authoritative legal doctrine). Everson also considers the object of her criticism the “theory”—or doctrine—built up by German scholars, most of whom, however, would probably not consider themselves as Rechtstheoretiker, but rather as Rechtsdogmatiker. Google Scholar

65 See Cownie, Fiona, Legal Academics: Culture and Identities 69 (2004) (discussing the minority complex of English legal scholars).Google Scholar

66 Cf. Kötz, Hein, Scholarship and the Courts: A Comparative Study, in Comparative and Private International Law: Essays in Honour of John H. Merryman on his Seventieth Birthday 183–195 (D.S. Clarks ed., 1990) (showing that— as opposed to thirteen secondary authority per judgment in Germany, where the academia is dominated by Oracle Scientists—in England, dominated by Humble Clerks, you find only 0,77 in average).Google Scholar

67 Johnson v Agnew [1980] AC 367, 395 per Lord Wilberforce (House of Lords).Google Scholar

68 Atiyah, & Summers, , supra note 53, at 357. Until recently in England, many judges have never been to law school, but after a non-legal university degree went directly to the Bar and qualified there, so academics counted hardly anything for them. Id. at 348.Google Scholar

69 Twining, Willam, Blackstone's Tower: The English Law School 69 (1994).Google Scholar

70 Atiyah, & Summers, , supra note 53, at 386–87.Google Scholar

71 See Glidewell Report (The Review of the Crown Prosecution Service, 1998), Woolf Report (Report on Access to Civil Justice, 1996), Auld Report (Review of the Criminal Courts of England and Wales, 2001). Even if academics write sometimes such official reports, it is not obvious for the English—as opposed to the continental or the US perception—that academics should be the primary authors in such cases.Google Scholar

72 See Kirchmann, , supra note 3, at 17 (“[D]rei berichtigende Worte des Gesetzgebers und ganze Bibliotheken werden zu Makulatur.”) (“Three correcting words of the legislator and whole libraries become waste paper.”). That is the reason why Oracle Scientists often oppose law reforms: it would ruin their oeuvre. Cf. id. at 11. For a powerful response by Karl Larenz, see Karl Larenz, Uber die Unentbehrlichkeit der Jurisprudenz als Wissenschaft, Juristischen Gesellschaft Berlin (2006), availale at http://www.juristische-gesellschaft.de/schriften/26.pdf.Google Scholar

73 Kirchmann, , supra note 3, at 7.Google Scholar

74 An even more despised category of legal scholars are clerks of party politicians in a dictatorship—so not even of judges or of legislators. During the toughest times of socialism, legal scholars did not have the standing of Law Reformers, they were just clerks of communist politicians repeating party resolutions, not proposing law reform. It was (existentially) risky to propose anything new, as communist leaders might have disagreed, so the legal scholar could lose his job or even more. See Michael Stolleis, Sozialistische Gesetzlichkeit: Staats—und Verwaltungsrechtswissenschaft in der DDR (2009) (providing additional details and stories).Google Scholar

75 Holmes, Oliver Wendell, Law in Science and Science in Law, 12 Harv. L. Rev. 443 (1899).Google Scholar

76 Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).Google Scholar

77 See Postema, Gerald J., Bentham and the Common Law Tradition 147–336 (1986) (pointing out that Bentham's legal positivism can be explained by his purpose to reform English law).Google Scholar

78 See Atiyah, & Summers, , supra note 53, at 141, 149 (explaining that Legal change in the UK is rather introduced by legislation, which is prepared by highly educated civil servants and not by legal scholars).Google Scholar

79 Id. at 314.Google Scholar

80 Id. at 37, 334.Google Scholar

81 Id. at 134.Google Scholar

82 See id. at 270 (“[T]here can be little doubt that one of the principal reasons that American courts make so much law is that [by comparison with British Parliament] American legislatures make so little.”).Google Scholar

83 Rosenberg, Maurice, Anything Legislatures Can Do, Courts Can Do Better?, 62 A.B.A. J. 587 (1976).Google Scholar

84 Neely, Richard, How Courts Govern America 30, 71 (1981).Google Scholar

85 See Pound, Roscoe, An Introduction to the Philosophy of Law 47 (1922) (discussing the concept of Judges as “social engineers”).Google Scholar

86 Atiyah, & Summers, , supra note 53, at 118–27. In the UK, higher courts bind themselves (with some exceptions); in the U.S. they can overrule their own past decisions. In the U.S., even a lower court can overrule a past decision of a higher court if it expects the higher court to overrule it (“anticipatory overruling”). The deviation from the stare decisis is partly caused by the size of the U.S.; there are just too many judicial decisions to have a strict stare decisis. Once the stare decisis is loosened up, there is also more room to follow academic opinions. Id. at 32, 128–30, 148.Google Scholar

87 Brandeis, Louis, judge of the Supreme Court between 1916 and 1939, argued as an attorney in the case Muller v. Oregon, 208 U.S. 412 (1908), by delivering a detailed sociological presentation of the social effects long working hours for women.Google Scholar

88 Atiyah, & Summers, , supra note 53, at 342, 344, 350–51, 379. This is very different from both civil law countries and England. For the latter, see Lord Scarman in McLoughlin v. O'Brian [1983] 1 AC at 340 about the necessary abstinence of English judges from policy.Google Scholar

89 In a non-elitist culture, the reasons have to be understandable and acceptable also for the general public. But see Atiyah & Summers, supra note 53, at 38, 225, 232 (contrasting with the U.K.).Google Scholar

90 I am afraid that Professor Somek fights within the same environment as Professor Langdell did more than hundred years ago, and his ambition that the critical edge of legal scholarship should be used in a “constructive” (rather than clerk-wise) manner is similarly doomed to fail. Professor Somek wants to proclaim the power of Oracle Scientists in a country where there is hardly anybody with such an ambition and where the general (practitioner, esp. judicial) mentality simply does not allow it.Google Scholar

91 Dershowitz, Alan, The Best Defence 111 (1982).Google Scholar

92 Atiyah, & Summers, , supra note 53, at 358.Google Scholar

93 Id. at 340, 345.Google Scholar

94 Similarly, see the work of the American Law Institute, available at http://www.ali.org/. In their self-description, “[t]he American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.” The Restatements of Law do not have any formal validity, but are nevertheless very influential with a strong persuasive force.Google Scholar

95 In international law, a well-known example of the Wise Pragmatist approach is the New Haven School. Michael Reisman, The View from the New Haven School of International Law: International Law in Contemporary Perspective (1992). This approach never had any success in the Oracle Scientist dominated German international legal scholarship.Google Scholar

96 Atiyah, & Summers, , supra note 53, at 269.Google Scholar

97 Bernard Schwartz: Constitutional Law, VII (1972) (citing Charles Evans Hughes, Speech at Elmira, May 3, 1907).Google Scholar

98 Atiyah, & Summers, , supra note 53, at 388 n.5.Google Scholar

99 Cass, Ronald A. & Beerman, Jack M., Throwing Stones at the Mudbank: The Impact of Scholarship on Administrative Law, 45 Admin. L. Rev. 1, 8–9 (1993). Law clerks remain only one year at the court, ensuring that new intake always brings fresh academic air to the court.Google Scholar

100 Also, academics belonging to other groups sometimes themselves write Self-Reflective works (e.g., the quoted writings of Jhering), but they do not consider it the primary task of legal scholars. For them, it is rather a methodological pre or meta-work. And on the other hand, Self-Reflectives might make short excursions into other role perceptions.Google Scholar

101 In the present categorization, basically all legal theorists are Self-Reflectives unless they have explicitly proposed another role model for legal scholars (e.g. Bentham).Google Scholar

102 This provocation might consist of destroying or at least pointing out the self-deception of Oracle Scientists about their neutrality and objectivity. Cownie, supra note 65, at 51–53 (discussing Critical Legal Studies from this perspective).Google Scholar

103 Interdisciplinary and multidisciplinary approaches are also used. Gunnar Folke Schuppert, Staatswissenschaft (2003); Schuppert, Gunnar Folke, Verwaltungswissenschaft (2000).Google Scholar

104 Edwards, Harry T., The Growing Disjunction between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34, 34–78 (1992); Twining, et al., supra note 6, at 931. Another reason for the gap in the U.S. is that law schools are rather on the political left, whereas judges are rather conservative. Twining et al., supra note 6, at 935.Google Scholar

105 Merritt, Deborah Jones & Putnam, Melanie, Judges and Scholars: Do Courts and Scholarly Journals Cite the Same Law Review Articles?, 71 Chi.-Kent L. Rev. 871, 871–99 (1996). The answer to the question of their article title according to the authors is a clear no.Google Scholar

106 Louis J. Sirico Jr, The Citing of Law Reviews by the Supreme Court: 1971–99, 75 Ind. L.J. 1009 (2000).Google Scholar

107 Twining, et al., supra note 6, at 940.Google Scholar

108 Since 1986, approximately every five years, the quality of research at UK higher education institutions will be evaluated on behalf of the higher education funding councils. The core of the evaluation is that full-time members of the higher education institutions submit a limited number of writings which will be read by other legal academics and evaluated accordingly. For more information see http://www.rae.ac.uk/. The name of the system is changing, but its relevant content (as to the topic of this paper) remains the same, see http://www.hefce.ac.uk/Research/ref/.Google Scholar

109 Cownie, , supra note 65, at 136; Twining et al., supra note 6, at 925.Google Scholar

110 Twining, et al., supra note 6, at 932.Google Scholar

111 Farber, Daniel A., The Case Against Brilliance, 70 Minn. L. Rev. 917 (1986).Google Scholar

112 Duxbury, Neil, A Century of Legal Studies, in The Oxford Handbook of Legal Studies 957 (Peter Cane & Mark Tushnet eds., 2003).Google Scholar

113 As opposed to Alexander Somek, I do not think that the general belief would be that the “production of law review articles is in some manner, however causally obscure, a way of improving the world.” A considerable portion of U.S. law reviews contain basically either Self-Reflective papers, which are a Selbstzweck with no—not even a pretend—usefulness for the world outside academia. The rest of the papers fit Professor Somek's description, and he is right in the sense that the majority of papers falls into his category.Google Scholar

114 For a similar view, see Edwards, supra note 104, at 36; Kenneth Lason, Scholarship Amok: Excesses in the Pursuit of Truth and Tenure, 103 Harv. L. Rev. 926 (1990).Google Scholar

115 Cass, & Beerman, , supra note 99, at 2–3.Google Scholar

116 Balkin, J.M. & Levinson, Sanford, How to Win Cites and Influence People, 71 Chi.-Kent L. Rev. 843, 845 (1996) (“By gaining an increasing presence in that [discourse] space, the canonical work may create an increasingly hospitable environment for its own reproduction in the minds of future academics.”).Google Scholar

117 Cass, & Beerman, , supra note 99, at 3.Google Scholar

118 Balkin, & Levinson, , supra note 116, at 843–69.Google Scholar

119 Id. at 860.Google Scholar

120 Id. at 855.Google Scholar

121 Id. at 856–57, 859.Google Scholar

122 Id. at 861–62.Google Scholar

123 For a self-promoting account of his media activities, see www.alandershowitz.com.Google Scholar

124 Globalization means that certain legal institutions or rules are borrowed from each other, but basic mentalities (as described in this Article) will continue to differ in different legal cultures. Cf. Legrand, supra note 51, at 52–81.Google Scholar

125 Cf. Lerche, Peter, Maunz/Dürig, Grundgesetz, in Rechtswissenschaft und Rechtsliteratur im 20. Jahrhundert, 1026 (Dietmar Willoweit ed., 2007) (describing “theory based practicality” (theoriegestützte Praxisgewandtheit) as the ideal type of commentary, a typical genre of the Oracle Scientists); Mátyás Bódig, Legal Theory and Legal Doctrinal Scholarship, 23 Can. J.L. & Juris. 483, 494 (2010) (indicating doctrinal legal scholars are the main audience of legal theorists).Google Scholar