Error calculus

Error calculus is a term from the legal philosophy and means that the legal system excludes the absolute nullity of illegal legal norms and instead orders the validity of illegal legal norms until they are reviewed and repealed by the responsible legal protection institution ( courts ) ( relative nullity ).

The error calculus describes the possibility of errors accepted by the legal system in the creation of law, both in the making of legislation (laws and ordinances) and in the application of the law in individual cases ( notices ). Despite their illegality , laws, ordinances and notices apply until they are repealed by a court or competent authority.

The term was coined by Hans Kelsen and his student Adolf Julius Merkl , representatives of the pure legal theory .

Austria

The term error calculus is mainly used in Austrian legal language.

In Austria, the constitutional court examines whether a law is unconstitutional . This is to ensure the uniformity of case law. According to Article 140 of the Federal Constitutional Law , the latter is responsible for examining the constitutionality of federal and state laws.

If a law is unconstitutional, it is to be repealed by the Constitutional Court. This repeal is only possible if the unconstitutional law was in force at the time of repeal. Otherwise the Constitutional Court can only determine that the law was unconstitutional.

Germany

In German law, the legal concept of error calculus is expressed without explicit mention, for example when the Administrative Procedure Act distinguishes between (absolutely) void administrative acts ( Section 43 Paragraph 3, Section 44 VwVfG) and those that can be unlawfully canceled ( Section 43 Paragraph 2 , § 48 , § 49 VwVfG). For laws, the constitutional jurisdiction has a monopoly of rejection ( Art. 100 (1) GG, § 13 No. 11, § 80 ff. BVerfGG). Laws may be declared null and void with effect ex tunc ( Section 78 BVerfGG). The decision of the Federal Constitutional Court has the force of law ( Section 31 (2) BVerfGG).

United States

In US law, on the other hand, the laws are absolutely null and void, unconstitutional laws are (absolutely) null and void from the start.

literature

Benjamin Kneihs : announcement, validity, error calculation . Verlag Jan Sramek, 2012 ISBN 978-3-902638-58-8
Johannes Buchheim : Calculating errors as empowerment? Kelsen's theory of the law of final binding decisions against the background of HLA Hart's legal theory . Legal theory Volume 14, pp. 59–78, Berlin 2014
Thomas Olechowski : Legal History. Introduction to the historical foundations of modern law , Vienna 2006
Theo Öhlinger : Constitutional Law . WUV Universitätsverlag, 7th edition, Vienna, 2007

Individual evidence

↑ Example: Decision of the Administrative Court of February 18, 2002, Zl. 99/10/0238
↑ Competences of the Constitutional Court, on the website of the Constitutional Court. Retrieved on January 7, 2017.
^ Bruno Binder : Public Law I, script. 2nd edition, Linz, Manz, 2003, p. 367
^ Roman Seer: The declaration of incompatibility of the BVerfG using the example of its case law on tax law. NJW 1996, p. 285
^ BGH, judgment of April 26, 2006 - IV ZR 26/05
^ Christian Waldhoff : The retroactive effect of ECJ decisions. Financial impact of European jurisprudence as a criterion for a decision impact assessment European law 2006, p. 615

[1] Example: Decision of the Administrative Court of February 18, 2002, Zl. 99/10/0238

[2] Competences of the Constitutional Court, on the website of the Constitutional Court. Retrieved on January 7, 2017.

[3] Bruno Binder : Public Law I, script. 2nd edition, Linz, Manz, 2003, p. 367

[4] Roman Seer: The declaration of incompatibility of the BVerfG using the example of its case law on tax law. NJW 1996, p. 285

[5] BGH, judgment of April 26, 2006 - IV ZR 26/05

[6] Christian Waldhoff : The retroactive effect of ECJ decisions. Financial impact of European jurisprudence as a criterion for a decision impact assessment European law 2006, p. 615