Legislating, Decision-Making, Practice and Education
Edited by Mary Hiscock and William van Caenegem
Chapter 13: The Influence of Scholarly Writing Upon the Courts in Europe
Pierre-Yves Gautier* INTRODUCTION The role of legal scholars is the same everywhere, whether it be in Australia, in Europe, Singapore, Sweden or any other country. Legal scholars have two main roles: first, teaching students; and secondly, commenting on legal developments, in particular on judicial decisions and on legislation. As to the first role, innovation in teaching methodology is a pressing topic because the law has become progressively more complex, with a constant increase in regulations, statutes, treaties, jurisprudence and so forth. This is so everywhere, but European law is a particularly apt example of increased complexity. Because of this additional complexity, legal scholars must select the information, must underline what is important, and in particular the underlying principles. Our students should remember our lectures in the future, because of the clarity and focus on principle that we have brought to a given topic. Most important is also to teach law students legal method; in my view, which is a Cartesian view, everything is in the method.1 Thus teaching is a part of the harmonisation of law: sharing culture, methods, principles, and also sharing students. By these means our systems, civil law and common law, become more closely aligned. In our second core role as legal scholars, publishing commentaries on recent decisions of courts, and on statutes, we must use the same tools and methods: to analyse, explain, and criticise. We must endeavour to make and explain connections with other legal texts and writings, scholarly or jurisprudential. In these pursuits, of...
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