Zur Reform des juristischen Unterrichtes (1873)

This review article, signed “M.” and attributed to Carl Menger, presents Theodor Muther’s proposals for reforming legal education, published in his inaugural lecture at Jena. Its Austrian perspective matters: German university arrangements provide a respected model, but some of Muther’s proposed improvements have already been realized in Austria. The reviewer explicitly limits his role:

Die Fragen, um die es sich in den nachfolgenden Darlegungen handelt, sind, wie wir nur noch bemerken möchten, so vielfach ventilirte, daß wir von jeder Kritik der gemachten Vorschläge absehen und uns lediglich referirend verhalten.

English translation: The questions with which the following expositions are concerned are, as we should merely add, such often ventilated ones that we refrain from any criticism of the proposals that have been made and confine ourselves merely to reporting.

The article therefore conveys Muther’s reform programme without making its proposals unqualified statements of Menger’s own position. Its governing concern is reform within the established university system: legal education should unite scientific understanding with practice grounded in that understanding. The exposition moves through the organization of subjects, teaching methods, and examinations.

The first conceptual move distinguishes a subject’s systematic organization from the historical origins of its materials. Muther accepts the separation of legal history from instruction in current law, and the division of current law into public and private law. He objects, however, to dividing private law between Pandects and German law merely according to their sources. This arrangement duplicates some topics, neglects others, and leaves students without a coherent account of applicable law:

Der Lernende erhalte die Kenntniß zweier Rechtssysteme, aber nirgends einen Ueberblick über das System des gesammten, heutzutage anwendbaren Privatrechtes.

English translation: The learner acquires a knowledge of two systems of law, but nowhere an overview of the system of the entire body of private law applicable today.

Muther proposes a single principal course in practical civil law, drawing together materials from their diverse historical sources. Roman law remains indispensable, but its historical study must be distinguished from the systematic presentation of contemporary law. A detailed course on classical Roman law would replace the existing mixture of ancient doctrine and later additions; introductory material would be redistributed among legal history, legal encyclopaedia, and exercises. Eliminating overlapping courses would offset the resulting teaching demands. Extending study from three years to four would chiefly create room for the political sciences.

The second move shifts the purpose of teaching from transmitting knowledge to cultivating independent inquiry. Muther recognizes the advantages of lectures over solitary reading, yet insists that they cannot by themselves accomplish the university’s central educational task:

Aber der Studirende lerne in denselben nicht das, was als Hauptzweck des akademischen Studiums erscheint: das selbstständige methodische Arbeiten in seinem Fach.

English translation: But in them the student does not learn that which appears to be the chief purpose of academic study: independent methodical work in his field.

The remedy is a coordinated system of theoretical and practical exercises alongside the main lectures. Close reading of Roman legal cases, followed by whole titles and books, would teach interpretation and show how source analysis yields both historical findings and doctrinal results. Comparable exercises would address Germanic and canon-law sources. Practical courses would include procedural work and oral advocacy, particularly in criminal proceedings. Their aim is not routine proficiency alone: students should become conscious of the intellectual operations involved in legal practice and capable of explaining them clearly. Scientific education and professional preparation thus converge in reflective judgment rather than mechanical technique.

The examination proposals carry this contrast into institutional design. Professional cramming exploits permanent examining commissions and predictable questions, substituting memorized, examiner-specific answers for understanding. Muther would postpone the state examination until after practical preparatory service, while reserving university examinations for theoretical competence. Frequently changing commissions, drawn from all university teachers regardless of rank, would test more than recall:

Diese Commissionen hätten nicht bloß das positive Wissen, sondern auch die Fertigkeit der Examinaten in Handhabung des Gelernten zu erproben.

English translation: These commissions would have to test not merely the positive knowledge of the examinees, but also their proficiency in handling what they have learned.

Supervised general revision in the final semesters would counter narrow preparation without surrendering it to professional crammers. The closing preference for take-home written work with access to scholarly resources, rather than supervised examination essays, reinforces the same principle: assessment should reveal the ability to work with knowledge. The article’s significance lies in linking curricular coherence, active learning, and examination reform into a single account of scientific professional education, while making that German reform discussion available for Austrian comparison.