Legal Scholarship Today

Abstract

Academic law is very old. But the earliest recognizably protomodern academic legal scholarship was that of Friedrich Carl von Savigny, who in the early nineteenth century propounded an ambitious theory of law and elaborated it with detailed historical investigations.2 He argued that Roman law, essentially a body of common law principles, should be made the basis for German law because it would provide a better framework for German unity and modernization than a code on the French model. He was a professor; the research into Roman law by which he sought to substantiate his theory was academic; and his research agenda was progressive in the sense of providing plenty of topics for research by other law professors. But it was also very definitely in the service of law and of political governance more broadly. The materials of his research were legal, although obviously they had a decided historical dimension as well as a political and social purpose that was, however, largely implicit rather than explicit. His theory was oriented toward reform. While his intended audience consisted primarily of law professors and law students, he hoped to reach everyone who might help to bring about the legal reforms that he was urging. From Savigny's day to roughly i970, academic legal scholarship (and from here on I confine myself to American academic legal scholarship) generally adhered to the model Savigny had devised. That is, the materials used in the research were legal, extralegal purposes and perspectives were tacit, and the research was oriented toward reform and hence sought its primary audience among those people mainly legal professionals, including other law professors, judges, legislators, and practicing lawyers who were interested in improving law and legal institutions. Some of this scholarship, for example Holmes's The