Conversely
The reverse or opposite conclusion ( Latin argumentum e contrario " argument from the opposite") is a legal method for the interpretation of a legal norm , which is usually drawn from another legal norm with the help of the logical contraposition .
method
The legal reverse method proceeds as follows: From a presumably planned legal loophole, it is concluded that the unregulated issue may not be regulated by analogy with the legal consequence of an existing standard. The planned awareness of loophole can be checked by judicial interpretation. It could arise, for example, from the parliamentary contributions at the time the law came into being or from the fact that the legislature wanted specific individual cases of an overarching topic to be regulated, but not others that were also possible.
In criminal law
§ 248b German Criminal Code (Criminal Code) provides, for example, unauthorized use and subsequent resetting or returning a vehicle (car, bicycle) expressly punishment . The postulate of consistency applies according to the principle "a special law supersedes general laws" (Latin lex specialis derogat legi generali ). From this follows the interpretation for teleological reasons - which initiallyhave nothing to dowith the argumentum e contrario - that this presumption of use (Latin: furtum usus ) cannot be theft within the meaning of Section 242 of the Criminal Code, because otherwise the criminal offense would be unauthorized use of a vehicle empty, as this behavior is already punishable as theft. The legislature has apparently seen the special problem of presumption.
From this, in turn, one can deduce, by way of an argumentum e contrario , that presumption of use is unpunished in all cases that do not involve vehicles. Accordingly, z. For example, in the absence of a relevant offense, there is no punishable presumption of use if a CD is stolen from someone without their knowledge, it is listened to and is secretly returned to them two days later and this was also intended from the beginning. For the teleological reasons mentioned above, however, this behavior is also not punishable as theft. (Incidentally, this example only serves to clarify, the impunity already results from the principle “no punishment without law” and the prohibition of analogy , standardized in § 1 StGB and Art. 103 (2) GG , and not just from argumentum e contrario .)
In other areas of law
In this respect, there is a prohibition of analogy in criminal law , that is, a legal regulation may not be applied accordingly to a situation that is similar but not covered by the wording of the law. Civil law is different . There is the possibility of a conclusion by analogy. For example, if there is a sign in front of a butcher's shop that says “Dogs are not allowed”, then this regulation can also be applied to leopards and cats in accordance with its purpose ( hygiene ). Nevertheless, there is also the possibility of a legal conclusion in civil law by means of an argumentum e contrario . However, the purpose of the regulation must first be determined through a teleological interpretation. If the sign says “Dogs without a muzzle are not allowed”, then, conversely, dogs wear a muzzle when they have access.
The conclusion was summarized in the Latin phrase “exceptio probat regulam (in casibus non exceptis)” , whose abbreviated German form “Exceptions confirm the rule” is often used incorrectly today.
See also
literature
- Claus-Wilhelm Canaris , Karl Larenz : Methodology of jurisprudence. 3rd edition, Springer, Berlin 1999, ISBN 3-540-59086-2 .
- Helmut Coing : Basic features of the legal philosophy. 5th edition, Berlin 1993.
- Ulrich Klug : The reverse conclusion (argumentum e contrario). In: Legal Logic. Berlin and Heidelberg 1982, p. 137 ff.
- Bernd Rüthers : Legal Theory. 4th edition. Munich 2008
- Reinhold Zippelius : Legal methodology. 11th edition. Munich 2012
Web links
- Eberhard Dorndorf: Outline of the Methodology 2001
- Georg Bitter: Principles of Civil Law Methodology 2008, p. 28
