Imagine the following scenario: you are at a law library, searching for a German public law journal. You want to use it to marshal an effective argument about the German constitutional court. You start browsing bookshelves. After some minutes, a thought occurs to you that that this library is not located in Germany, but in Rome or Amsterdam. The journal you are looking for is, of course, published in German. Is it available at all? From the corner of your eye, you see German legal journals popping up. All is good.
Now, in contrast, imagine that you are in the German capital, in the library of the famous Humboldt University. You are searching for an Italian or French public law journal (for the sake of the argument, let’s stick to major European legal systems). As you walk along the bookcases, you find dozens of German legal periodicals, but no foreign ones. They simply aren’t there.
Why? Why do scholars in the middle of Berlin need to file a book request to consult foreign legal journals? This policy is not only uncomfortable in practice, but also raises a more principled question. Is the subliminal message that research published in German public law journals is the epitome of quality? Maybe. Law libraries are not neutral; they both foster and serve a (legal) community. They stimulate some academic tribes and territories, while discouraging others, simply by deciding which scholarship is worthy of shelf space. They are the physical representation of what a particular group considers is important literature.
The crucial question is, indeed, this: does it matter? Probably. Notwithstanding the widespread expansion of digitalisation projects and e-journals – resulting in the loss of the serendipity of finding something interesting by browsing through a book shelf – major continental European legal journals are only partially digitized. Libraries still have a role to play and their selection influences the scholarship of legal scholars and students.
Research has already shown that legal education on comparative law fosters the international outlook of future judges. It is probably the case that the ‘availability’ of foreign literature on a law library’s book shelves is increasing a student’s (and future scholar’s) interest in foreign law. That is not without consequences. These foreign examples can help students and scholars move beyond their own national doctrine. They can serve as (alternative) templates for scholarly opinions about the desirability of judicial review, or whether judicial law making is possible and legitimate. If it’s possible in foreign courts, why not here?
Back to Germany. Shouldn’t we be curious to understand the lack of foreign literature in the Humboldt library? Why does the library not offer easy access to foreign debates? Are German academic libraries, perhaps, culturally sensitive? There is no abundance of studies on such ‘cultural’ dimensions, to say the least. In a recently published article that I co-wrote with Elaine Mak and Erin Jackson, we elaborated on a methodology for a more systematic and in-depth analysis of judicial cultures. One dimension of judicial culture is, we believe, the collection(s) of legal ideas that, at a given time and place, shape perceptions of the role of judges. Are they creating law or do they ‘merely’ interpret it? Are judges mandated to carry out some form of judicial review of laws passed by a normal parliamentary majority? The answers to these questions, which are ultimately placed on a law library’s bookshelves, are part of a judicial culture.
This, then, is perhaps why a library in the middle of Berlin does not present foreign legal journals on its book shelves. Without downplaying the effects of the DDR ‘occupation’ of the library – all of a sudden it had to meet the standards of West German scholarship after unification in the 1990s – its book cases resemble the character of German public law scholarship. Traditionally, this field, in the words of Bernhard Schlink “lives in the ghetto of its journals” and is grounded in the German language, literature, and concepts. References to scholarship in English are very rare.
In the past decades, a new grand récit has been stimulating this confinement from another angle. Under the name of ‘Verfassungspatriotism’ (constitutional patriotism) a new kind of nationalism has emerged. Instead of glorifying the German nation, many legal scholars started identifying themselves with the German Basic Law, the German Constitutional Court in Karlsruhe, and in particular its guarantee of basic human rights. This patriotism popular phrases such as a ‘Gang nach Karlsruhe’ (a reference to the Road to Canossa, a historical moment in which a German emperor acknowledged Papal supremacy) or ‘Karlsruhe locuta, causa finita’ (referring to a famous Vatican pronouncement, intended to end a theological debate: ‘Rome has spoken, the case is closed’). This culture in which the German constitutional court became the measure of all things, gave way to a scholarly public law community focusing on the court’s judgments. Until today, these new sources are probably enough to keep alive an introvert German public law scholarship community – and may possibly explain the ‘national’ oriented book display at the Humboldt law library.
It is probably not a bad thing to pay more careful attention to such (institutional) academic contexts in general. On the contrary, a better understanding of them helps scholars to shed light on the waxing and waning of themes in scholarship, and their universality. It helps them also to distinguish legal ideas that are universal from those that are accentuated by a particular culture. To devise and develop such judicial or legal cultural awareness is preeminently a task for future scholarship.
Elaine Mak’s, Erin Jackson’s, and Niels Graaf’s article “The Framework for Judicial Cooperation in the European Union: Unpacking the Ethical, Legal and Institutional Dimensions of ‘Judicial Culture'” has been published in the Utrecht Journal of International and European Law 34, no. 1 (2018): pp. 24-44. Access to the article is available here.