If there were an extra-scientific body which could make a decision at the end of the day on who is right in the scientific dispute and who is wrong, then it would certainly affect the culture of debate within science. That is the case for law. After all, the core activity of German law professors is still to “research” which interpretation of a particular legal norm is “correct” by means of hermeneutic methods. The task of the courts is also exactly that. Legal research is thus – in contrast to many other humanities – directly applicable in practice. That said, it may also be a case of a little less science and a little more about knowing your craft compared to the others.

And a craft must work, first and foremost. If legal scholars disagree with other legal scholars about a question of interpretation, they are at the same time keeping an eye out on whether their arguments are accepted by the Federal Constitutional Court, the Federal Supreme Court or the Federal Fiscal Court. After all, it is the highlight of every researcher’s career to be quoted in the ruling of a supreme court. This ensures that the argument is disciplined. This constant side glance to Karlsruhe, Munich or Leipzig (not really to Luxembourg, since the EU Court of Justice does not listen anyway) forces the clear articulation of thought processes.

For and against must be set out and be intersubjectively comprehensible if you want to convince others, because no judge has the time nor desire to unravel a tangled web of complex sentences with unclear references, which are sometimes common in other sciences. On the other hand, this culture also slightly restricts the audacity to think and express theses which are entirely off the beaten path of the courts. Stubborn insistence on, let’s say, dubious legal positions can be wonderfully sold as “legal certainty”.

Timo Rademacher

Disputes in Law

JAM #26 — DISSENT!

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Lukas Haffert, Oliver Rymek, Erik Schilling, Ricarda Winkelmann

Daring Dissent!
Lukas Haffert, Oliver Rymek, Erik Schilling, Ricarda Winkelmann

Successful Arguments — A Plea for Diversity
Astrid Eichhorn

Stop shouting like a lunatic, we’re having an academic debate
Nausikaä El-Mecky

Fight Back or Go Unheard: The Public Dispute over Islam
Simon Wolfgang Fuchs

How Digitisation affects the Culture of Debate
Dirk Pflüger

Disputes in Law
Timo Rademacher

The Value of Rule-Based Confrontation
Michael Saliba und Lukas Haffert

 

There are now jurists who do not wish to play along and do not want to be hermeneutic craftsmen; they turn to the neighbouring sciences and pursue sociology of law, philosophy of law or administrative sciences. This has somewhat of an influence on their culture of debate. However, a complete takeover of the “foreign” form of the argument effectively precludes this; these topics or subjects are not relevant to the exam. And from the fourth semester at the latest, law students no longer want to hear that which is not relevant to the exam. And so the non-craftsmen among us are repeatedly forced to teach scientific arguments on the basis of classical legal patterns. The culture of craftsmanship thus remains an integral part of our research and consequently of our debate.


Timo Rademacher, member of Die Junge Akademie since 2018, conducts research at the Institute of Media and Information Law at Albert-Ludwigs-Universität in Freiburg..