Doctrinal Work

The role of theory and “armchair analysis” by academics varies greatly from system to system. It is more prestigious to be a Professor in Germany than to be a Judge. Both the French and the German systems have developed symbiotic relationships between the judiciary and academics, but it takes different forms. In France, court judgments can be particularly short and obscure, offering the decision, never offering explanations never referring to their earlier judgments, or to references other than code and statutory provisions. They do this in the knowledge that their judgments of less than a page in length will be expanded, expounded and explained by the academics almost at once. Germany, on the other hand, has a long tradition of a court being able to refer complex points, especially those relating to foreign law to centres of research excellence. At such centres, academics work out answers and send them to the court to be used in that particular case. In both France and Germany, there are examples of where academic writing has been influential in shaping legal development.

The court judgment is then fuller and refers to the work of professors, as well as to the decisions of the courts. In England, the academic profession is more recent. The law was developed for centuries by the judges and Parliament, and the young lawyers trained in the Inns of Court, listening to what the judges and barristers said. As a result, what the judges say has a more decisive place in influencing how the law develops.

It might be said that there are two functions of doctrinal work in legal situations: to control or constrain the outcome on the one hand, and on the other, to provide justification for it.