Das Verhältnis von Rechtswissenschaft und Rechtspraxis im Verwaltungsrecht. Vergleichende Betrachtungen zu Deutschland und Frankreich

Abstract

The Relationship between Legal Science and Law Practice in Administrative Law – Comparative Perspectives from Germany and France

Legal scholarship is essentially an application-oriented, in particular decision-oriented discipline. As such, it exerts considerable influence on legal practice, but is, in turn, also strongly shaped by it. In the legal literature of both France and Germany, descriptive-analytical approaches can be distinguished from dogmatic-systemic and critical-analytical approaches. In Germany, the systematic commentaries on leading laws are, alongside textbooks, characteristic for the descriptive-analytical literature, although they occasionally include some critical-analytical elements. Often written by academics and practitioners in cooperation, they provide for a stock-taking and analysis of the case law. In France so-called commentaires d’arrêt, which are already part of legal exercises at universities, occupy special importance as a category of scientific literature. They contextualize and interpret the individual judgements, thus trying to explain the reasoning behind traditionally taciturn and apodictic decisions. In Germany, the concrete influence of the science of administrative law upon the practice of jurisprudence can be shown more easily than in France, because the judgements provide detailed reasons, often with references to publications. Nevertheless, such references can increasingly be seen also in France, although not in the judgements themselves, but in the conclusions of the rapporteur public. In Germany, law faculties still possess the monopoly for the academic legal education, while in France the administrative judges are recruited from the former students of the École nationale d’administration and from practitioners of public administration. In both countries, the contribution of the courts to the further development of doctrine and system-building in administrative law should not be underestimated. Examples include the case law of the French courts concerning the service public or the structuring of the balancing process in planning law by the German Federal Administrative Court. As far as legislative reforms are concerned, studies of comparative law play an increasingly important role. Overall, the discourse on new orientations for administrative law in both countries has arisen from a fruitful exchange between science and practice.