–Or Bassok, Tikvah Scholar, NYU School of Law
Conferences in the US on German public law often digress into an attempt by Americans scholars to show their German counterparts the scholarly “light.” The recipe has several variations. According to the milder version, German public law scholarship fails to give an adequate account of reality when it comes to issues such as the relationship between courts and other political actors or to judicial motives. German scholarship thus needs to adopt a more realist view, similar to the one characteristic of American scholarship.
According to the harsher line of critique, German public law scholars continue to adhere to an unrealistic view of courts (the first line of critique) and to doctrinal analysis of law since they are not sufficiently aware that legal concepts do not really decide cases (the indeterminacy problem). American public law scholars have seen the legal realist “light” presented by the legal realist movement and thus are not focused anymore on doctrinal analysis. Therefore, German scholars need to be enlightened by American scholarship, or so the claim goes.
The recent workshop “The Changing German Landscape of Theorizing Public Law” held at NYU School of Law symbolized a departure from these lines of critique as all papers presented an Americanized style of analysis written on German public law. Yet one should stop and consider two issues that stand at the core of the harsher line of critique. First, German scholars acknowledged the lessons learned from the legal realist movement earlier than Americans scholars but did not follow them. Second, it is not clear that following the realist “light” will lead to positive consequences. In this brief post I will address these two issues.