Dialogue between Legal Scholarship and the Courts: Germany Dialog zwischen Rechtswissenschaft und Rechtsprechung in Deutschland am Beispiel des Gesellschaftsrechts

This contribution examines the dialogue between theory and practice that has been a characteristic of German legal culture. By way of example, the development of certain features of company law are discussed. The essay describes the forms as well as the results of this extremely successful dialogue, and it leads to the following conclusions: Judgments should be persuasive. Naturally, this applies first and foremost to the parties, especially the losing parties. But the highest level judicial opinions should also encourage observance by judges of lower courts and legal practice, which live by these decisions. This can only happen if one does not just trust in the »blue sky over the appeal court« but if one instead relies on balanced arguments for the decision that are embedded in a coherent reasoning that fits seamlessly into the overall legal system. Only under these circumstances will a decision be able to develop an impact beyond the individual case. This attentive, content-focused and discursive treatment of problems can only succeed if judges do not merely reprise similes of their own legal rulings, but instead enter into a critical and self-critical dialogue with legal scholarship, acknowledge the lessons developed there and weigh up the advantages and disadvantages of the arguments. Conversely, legal scholars are challenged to address judicial rulings with respect for the different nature of the judicial task. This culture has been evident in company law in Germany for many years – if it did not exist, it would have to be invented as quickly as possible – and everyone who, like Savigny, values the »natural unity« of legal scholarship and legal practice is called upon valiantly to defend this achievement.