THE CONTINENTAL PROFESSOR IS PARAMOUNT
In civil-law countries the �makers of the law’ have for centuries been the learned jurists led by the professors in the Law Faculties. The academic writer is the senior, the judge the junior partner in the life of the law.
The authors of the great Treatises are the teachers, and all barristers and judges once sat at their feet. Legal wisdom spoke from the pages of the commentaries of Troplong, Aubry and Rau, Demolombe, Laurent and Le Page in France and Belgium, and from the Lehrbuch des Pandektenrechts of Wind- scheid in Germany. In that country the leadership of the Faculty reached its zenith with the practice known as Akdenversendung, in which a law court faced with a difficult question of law consulted the professors of a Law School, sent them the â€?acts’ of the suit and was given a binding advice. That the Bench should be told what judgement to give by a group of professors is hard to imagine in common-law lands, but on the Continent the Aktenversendung descended from the medieval practice of lower courts consultÂing a superior jurisdiction (â€?appeal before judgement’), as judges nowadays can pose prejudicial questions to the European courts. That, however, was consultation within the judicial system, but after the Rezeption German courts began to consult the law professors, whose advice eventually became binding. The most famous example was the Spruchkollegium of the Berlin Faculty when Savigny taught there, from 1810 onwards. The practice was terminated after 1877 —9, when new laws on procedure and court organization were introduced.[52] In common-law lands the judges are the â€?oracles of the law’. As to the professors, this is what Harold Laski, writing to Oliver Wendell Holmes in 1929, had to say: â€?Outside one or two posts like the Vinerian professorship the law teachers are a very inferior set of people who mainly teach because they cannot make a success of the bar.’[53] One obvious reason for this state of affairs was that around the middle of the nineteenth century there was no organized teaching of English law: there were no Law Faculties. There was some teaching of Roman law through the old Regius Chairs of Civil Law, but that had no bearing on everyday life, and the old Inns of Court, where teaching had flourished in the past, had turned into cosy gentlemen’s clubs. The vacuum was so glaring that something had to be done about it. But what? Several possibilities were discussed. England could, of course, organize Law Faculties in her universities and issue degrees in English law. This was the continental way, but not necessarily the best English way. Why, for example, could the old and venerable Inns of Court not be revived and invited to organize both the teaching of law and the training of practitioners? And what about the third possibility, that the profession should take in hand this teaching and training, and found something like what the Ecole de Magistrature was to beÂcome in twentieth-century France — with a School for Barristers and Solicitors? There is no cogent reason why lawyers had to be taught in a studium generale instead of some sort of technical high school for judges and barristers (as was Napoleon’s ideal, who distrusted the universities and their â€?ideologues’). It strikes the present-day reader as comical that the aforementioned Professor Dicey chose as the title of his inaugural lecture in Oxford â€?Can English law be taught at the Universities?’ (his reassuring answer was positive) - this was in ι 882! Even in the twentieth century some leading lights on the Bench advised young people who had a legal career in mind to go indeed to university, but not to obtain a degree in law.17 History, political science, philosophy, even mathematics were suitable scientific fields, but the law was no science, it was a craft which one learnt through training and practice.Eventually the debate was settled in favour of the universities: Oxford created a School of Jurisprudence and Modern History in 1850, followed by an autonomous School of Jurisprudence in i 871.
Nowadays Law Faculties are omnipresent and almost all young people who want a career as solicitor, barrister or judge obtain a law degree in a university.18 The poverty of English jurisprudence around the middle of the nineteenth century was all the more distressing as the country could be proud of an17 Thus, for example, Lord Shawcross, �Is Justice Being Done?’, Sunday Telegraph (27 October 1963), quoted by Abel-Smith and Stevens, Lawyers and the courts, 369.
18 See C.H.S. Fifoot, Judgeandjuristin the reign of Victoria (London, 1959); P Stein, �Legal theory and the reform of legal education in mid-nineteenth century England’, in A. Giuliani and N. Picardi (eds.) Leducazionegiuridica, II: Profili storici (Perugia, i 979), i 85-206.
48 Common law and civil law: Neighboursyet strangers imposing line of learned lawyers stretching from Bracton in the thirteenth to Blackstone in the eighteenth century.[54]