Blindfolded Justice never cracks a smile. Laws don't joke around. In Bertolt Brecht's The Caucasian Chalk Circle, People's Judge Azdak instructs us that “the law must always be dispensed with complete seriousness.” “Because it's such a serious matter,” Solomon would have said. “Because it's so stupid,” Azdak explains, “and gone before you know it.”

I develop my picture of contemporary legal scholarship in two broad strokes. In the first section, I focus on the relationship between legal scholarship and the traditions of theory, philosophy, and the human sciences, arguing that the interdisciplinary work of contemporary legal scholarship expresses legal culture's uneasiness about intellection. In the second section, I focus on the relationship between legal scholarship and political engagement, arguing that the programatic or exhortatory tone, structure and context of contemporary legal scholarship expresses legal culture's uneasiness about what it thinks of as “politics”.

The Talmud tells us how once during a heated halachic discussion, when no agreement could be reached, Rabbi Eliezer, whose detailed, elegantly justified legal opinion was not shared by the majority, said that if he were right, a carob tree outside would move to prove it. When it did move, the other rabbis remained unimpressed. Eliezer claimed that if he were right, a nearby stream would flow backwards - and it did; he claimed that the schoolhouse walls would bend - and they did. But the rabbis were not impressed by these wonders either. Finally he said heaven itself would prove him right. Thereupon a Heavenly Voice confirmed Eliezer's position. Yet the rabbis disagreed even with this voice, saying: “We pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, after the majority must one incline”. And God laughed, saying “My sons have defeated Me, My sons have defeated Me.”

Durkheim considered the existence of indeterminate norms to be a characteristic of modern societies organized according to the division of labor. Contrary to what one might readily assume, he did not see the increasing complexity of the matter regulated as the sole reason for this. Rather, he regarded the indeterminacy of norms to be a phenomenon, which complemented the individual autonomy of that society's members - however unusual this may sound. The determinacy of the rules diminishes to the same extent that the networks of societalization become increasingly dense: rule application becomes “free.” It is assumed that the addressees of indeterminate norms can make use of their autonomy instead of merely exhibiting mechanical obedience. It is hardly compatible with the ideal of individual autonomy that a society only deploys such rules as prescribe every single action in every situation down to the last detail, until they could be applied just as unconsciously as the highway code.

For a brief period - during the first half of the 1970s - it appeared as though the fundamental debate concerning the function of basic rights (to a certain extent an individual-oriented reprise of the Rechtsstaat-social state controversy of the 1950s and 1960s was coming down to the alternatives “Basic Rights: (only) Defensive Rights” or “Basic Rights: (also) Rights to Participation and Claims to Performance” Peter Häberle's demand (made at the 1971 Constitutional Law Teachers' Conference) that the base-line substantive legal status of basic rights be supplemented by a “status activus processualis” (in the sense of a “government-performative due process”), and the Federal Constitutional Court's (FCC's) first Numerus-Clausus decision (of 18 July 1972) and its Term Abortion decision (of 25 February 1975), with its recognition of the state's “comprehensive” duty to protect (and promote!) unborn life, all mark advanced positions in theory and judicial decision-making. At the same time, new life was given to the discussion concerning “basic social rights” (such as the “right to work”, “to shelter”, “to education”, “to social security”, etc.), and new and expanded forms of social protection, in short: concerning the concretization of the social state principle. Yet the welfare-state, “social-liberal” reform impulse soon ran up against political-economic limits: the “feasibility proviso” allowed the merely “ideal standard” character of subjective performance rights to become all too quickly apparent.

Claims of “rights” involve abstraction - to some extent anyway - from immediate social and political context. Academic discussion of the topic very often magnifies the abstraction. At the same time, abstraction is itself sometimes identified as the central “problem” in rights theory - and so becomes the focus of discussion of the topic. It is the focus of Professor Denninger's paper. It is also the focus of mine.

Preliminary Remark: The observations below are to be understood more as a draft than as theses. They refer to and continue a series of earlier considerations, most recently in two papers: Social Science Models in Economic Law, in Contract and Organisation, 52-67 (T. Daintith/G. Teubner eds., 1986) and Materialization and Proceduralization in Modern Law, in Dilemmas of Law in the Welfare State 221-248 (G. Teubner ed. 1986); both papers are also to be found (in German) in the following documentation: G. Brüggemeier, Workshop zu Konzepten des postinterventionistischen Rechts, Materialien des Zentrums für Europäische Rechtspolitik, 2-24, 25-64 (Ch. Joerges eds., Heft 4, 1984).

It is hardly controversial that the modern law is a pivotal element in the process of societal rationalization. But the concept of rationality (or rationalization) is rather vague and ambiguous; even beginning to clarify it requires elements of a social theory. The law is not a quasi-technical, neutral “instrument” which can be applied in any society for any purpose. Rather, as an element of a society's structure it not only codetermines its specific mode of reproduction but informs us about the standard of civilization a society has attained. Throughout this essay I shall take the position that, for reasons of politics, morality, and what I understand to be ongoing requirements of justification in stable societies, we wish to privilege law in some way. This position is closely connected with the quest for legal rationality.

Preuss' paper significantly advances the critical theory of law. As a side benefit, he provides English-speakers with an excellent introduction to the work of two leading West German participants in the debate, Jürgen Habermas and Gunther Teubner. Preuss' paper reveals considerable common ground between critical legal theorists in Germany and the United States, but also important differences of perspective and concern. I suspect that many American legal critics will think that Preuss' criticisms of Habermas and Teubner do not go far enough, that his criticisms raise a fundamental challenge to the current emphasis on structure and system in the German debate. In any event, Preuss' paper suggests the usefulness of a greater German “reception” of the American emphasis on agency and social construction. No doubt American legal criticism would likewise be enriched by entering into a more sustained dialogue with structuralist and systems theory.

The practical principle of legal certainty, in the sense of a regularity and calculability of legal practice, has a “deep structure”, which can be found in Kant's attempt at a new foundation of morality through universalistic formality. In both cases the concern is identical: to break with the dispersed local practices used to integrate norm and facts, and to execute a break which would at last give normativity a systematic independence. The existence and continuity of substantial tradition, of particular customs, should be interrupted by the pre-supposition of a law distinguished by its pure, universalistic form. The unified life-world (Lebenswelt) would thus be split into norm and norm-application, thereby founding a new meaning-giving deduction of practice. Action could find normative meaning only through the fracturing of the continuity of life-contexts in the mirror of the generalized other.

Where do American and German critiques of their respective “mainstream” legal traditions converge, and where do they diverge? When can the convergences be interpreted as common learning experiences with modern law, as insights into the futility of critical efforts, as indications for their correction? Which divergences are due to differences between the legal cultures and philosophical traditions? Where are they reactions to more specific socio-political constellations and particular structurings of the respective academic systems? From which projects can the “other side” gain new insights, or perhaps entirely new perspectives? Such questions inevitably arise from a volume devoted to German and American critical and socio-theoretical contributions to the discussion of legal theoretical fundamentals. Yet they demand too much from an individual author (at least this one), and their enumeration is intended to make clear the sort of difficulties they occasion and suggest how they might be fruitfully dealt with.