Getting Legal Reason to Speak for Itself: The Legal Form of the Gutachten and Its Affordances

Abstract

Roughly translatable as “expert memorandum,” the term Gutachten and its cognates refer to, at once, a textual format, a problem-solving technique, and a highly distinctive writing style at the heart of German law and legal education. This article is interested in what this format, technique, and style do, and in how they do it. To this end, it invokes the concept of affordances, to study the way the Gutachten’s formal characteristics are implicated in the production of legitimacy effects. The most important of these combine into a dual disappearance of both author and artefact. This leaves the abstract form of the Gutachten as a transparent and fractal rendering of legal reason itself. The article, finally, builds on this case study of a legal form central to German law and legal thought, to offer reflections on method for the comparative study of legal reasoning formats, techniques, and styles. The suggestion will be that grasping legitimacy effects and uncovering how they may help sustain local legal actors’ commitments to their reasoning tools, will require a cultural study of legal form, containing at least some moment during which critique is suspended.