Case law
Case law ( English case law ) is a legal system that their primary source of law is not in general laws has, but in the adjudication of specific cases ( case report ). It is widely used in the Anglo-American legal community . In case law, the legal finding is primarily based on previous case law on previous comparable cases ( precedents ).
Basics
In Anglo-American law, comparable, already decided cases are used for the legal solution of a case in order to derive judgment maxims for the current case. For example, if someone promised a service that they clearly could not perform, one looked for earlier judgments in comparable cases in the process and then judged analogously to the appropriate earlier case.
This so-called inductive method ensures that the law spoken within a legal community always remains in the tradition of earlier legal judgments (principle of stare decisis ) . Behind this stands the endeavor to maintain legal certainty and trust in the proven legal experience that has been handed down, and less often also the legal philosophical conviction that justice exists as a natural law .
method
In case law, the main task of the lawyer is to find precedent judgments (there are extensive libraries of judgments on precedent cases for this purpose ), then to see whether and in what way the specific case to be re-assessed deviates from the precedent cases ("distinguishing") and weigh up whether it should be valued equally and therefore treated equally . If this is not the case, it must be explained why and in what respect the deviation of the current specific case from the precedent must lead to a different decision. If one wishes to deviate from a previously established assessment (and thus from the previous law), this “overruling” needs a justification. This must prove why the reasons for deviating from the previous law outweigh the interests of continuity.
Case law in the German legal community
In the “ applicable law ” of the German legal circle , primarily laws and ordinances, i.e. general (set) standards, are to be used as a source of law. In addition, it now largely consists of the case law principles developed by case law, the judge's law .
Case law arises in German law primarily through judicial development of the law. One speaks of the actual case right when a prejudicial practice has solidified into customary law that has broken away from concrete precedents. Case law is found above all in very dynamic areas of life, in which the law often lags behind the development, such as tenancy law , media law , internet law and labor law , i.e. in areas of law in which there is a rapidly advancing development that sometimes no longer does justice to the outdated laws become.
Case law is often cited not only with the source of pioneering decisions, but also with their names (e.g. as a " power theft case " by the Reich Court or as a " pharmacy judgment " by the Federal Constitutional Court ), similar to the Anglo-Saxon case law .
literature
- Stefan Vogenauer : On the history of prejudice law in England . In: ZNR 28 (2006), pp. 48-78.
- Mathias Reimann : The erosion of classical forms. Legal and cultural changes in civil law in Europe in the 19th and 20th centuries . In: ZNR 28 (2006), pp. 209-243.
- Mathias Reimann: Case law . In: Albrecht Cordes , Heiner Lück , Dieter Werkmüller , Ruth Schmidt-Wiegand (eds.): Concise dictionary on German legal history. Volume I: Aachen-Geistliche Bank. 2nd, completely revised and enlarged edition. Erich Schmidt Verlag, Berlin 2008, ISBN 978-3-503-07912-4 , Sp. 1482-1489.
Individual evidence
- ↑ Reinhold Zippelius , Philosophy of Law, 6th edition. 2011, §§ 18 II, 40 II
- ↑ Reinhold Zippelius, Philosophy of Law, 6th edition. 2011, § 23 IV
- ↑ Bernd Rüthers : Legal dogmatics and legal policy under the influence of judicial law, Institute for Legal Policy at the University of Trier , lecture, June 30, 2003
