The quest for middle-range theories in German public law

Abstract

Scholarship in public law in Germany tends to either concentrate on legal doctrine (Dogmatik, as the Germans call it) or on legal theory. Both ways to conduct legal scholarship are skillfully developed. Especially the German Dogmatik is highly appreciated in other civil law jurisdictions. The deliberate distinction between practical and theoretical approaches to law, however, has some shortcomings. There is no clear place for interdisciplinary research with practical outcomes beyond theory; one rather distinguishes a discourse on the law as it is (Dogmatik) from a discourse on the law how it became (legal history) or on the law how it should become (legal philosophy). Nor is there is a clear place for policy considerations in legal scholarship. Dogmatik pretends to be non-political, and theory must be differentiated from politics in order to be recognized as theory. This article advocates a different general approach to legal scholarship. When it calls for middle-range theories, it wants to integrate practical and theoretical views on the law. The general idea is that both will benefit from the other in order to avoid both uniformed theory and theory-less doctrine. This claim is evidenced with examples from legal theory as well as with a pluralistic democratic underpinning. The arguments from legal theory focus on the hierarchy of norms, different "states of aggregation of a norm"-a new idea outlined here, and the problem of time. Democratic concerns derive from the attribution of jurisdiction to separated powers, pluralism, and the change of majority opinion within the democratic process.