Interpretation (law)

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The interpretation , exegesis or interpretation of texts means the clarification of their meaning , in jurisprudence the determination of the meaning of a legal norm , a contract or other declarations of intent .

Interpretation is one of the methods of rational consensus building in law and is therefore an object of legal theory . In this it describes as legal hermeneutics the art of understanding a law or other legal text. As legal methodology , it describes the intellectual path ( Greek méthodos ) that leads to the correct meaning of the text.

Basics

Legal norms are abstract and need to be specified . This is the goal of the interpretation, as part of an application of law.

The term “interpretation” in itself means: “dismantling”, “expanding” and explaining the meaning decided in a text, but still veiled. The term therefore designates an “activity”, a “process” through which the meaning of a text is “expressed more clearly and precisely and made communicable”. The aim of this process is therefore to make a concrete statement about how the text is to be understood.

The term "interpretation" is used differently in law:

  • On the one hand, it is the name for the process of interpreting with the aim of specifying a standard.
  • It is also a name for the result of this process, i.e. H. the concrete interpretation obtained "by way of the" interpretation (statement of how the norm is to be concretely understood).
  • It has meaning in connection with the (different) methods of interpretation (grammatical interpretation, systematic interpretation, teleological interpretation and so on).
  • In addition, the term interpretation also denotes the so-called first stage of the application of the law (application of state-issued legal provisions, i.e. positive legal provisions), as opposed to the so-called second stage of the application of the law (application of law that has been trained under judicial law or newly created law).

When it comes to “the / an interpretation” as “part of an application of the law ”, this primarily refers to the process that aims to concretize a legal provision, i. H. to determine the concrete meaning of abstract legal terms.

A law to be interpreted is to determine the exact meaning of the words law. The meaning of words is introduced operationally (e.g. by counting) or exemplarily by reference ("interpreting") to empirical data (e.g. there is a deer there at the edge of the forest). Once this association has been established, the word calls to mind the content of experience or meaning that it “means” and “denotes” (for which it stands as a sign). The scope of meaning of empirical terms is usually not introduced exactly, but with a margin of meaning (from how many trees is a tree population a "forest"?). The selection of the correct word meaning and thus the concretization and development of the law are carried out - often in a comparative manner - argumentatively , i. H. by considering reasons that guide this choice.

Which interpretative arguments one ultimately has to follow is not always a question of unambiguous knowledge. Rather, different interpretations can be "justifiable" , among other things because considerations of justice also regularly play a role in the interpretation of the law , but we do not have a complete and consistent understanding of justice, but only incomplete sets of different ideas of justice that are capable of consensus for different majorities. If, nevertheless, a court can base its decision on one of several justifiable interpretations as legally binding, this is justified not in the "sole correctness" of this interpretation, but in the fact that the court has final authority in this case, which is about legal certainty and the definitive dispute resolution is required.

The role of the judge , his (prior) knowledge and his prior understanding of the texts, is therefore of great importance for the law alongside that of the legislature . This can also lead to a hermeneutical circle . But the law itself contains rules to make the decision to objectify the judge and the proportion of subjective ratings ( Dezisionen to keep) as low as possible: As the case law is "law and justice bound" ( Article 20. Para. 3 GG ). When interpreting laws, the jurisprudence must therefore not exceed its powers to the detriment of the legislature ( separation of powers , see also the limits of interpretation). Nevertheless, their competence in legal training is generally recognized.

In particular, indeterminate legal terms and general clauses require interpretation. Their contents are to be determined according to the rules of interpretation based on the specific facts. A court can and must - especially in the review of official action - concretize a vague legal concept itself and must - unlike the review of discretionary decisions - the administration no discretion, but only one on arbitrary verifiable discretionary grant.

The court may have to determine ex officio the standard facts required for the interpretation ( Section 293 ZPO ).

history

Enlightenment and natural law

The demand for an understandable law goes back to the time of the Enlightenment and natural law . The enlightened absolutism would only allow the word of the monarch as a source of law. The leeway for interpretation of the laws (of the monarch) by the judiciary and science has been reduced accordingly. The role of the judge has been reduced to being “the mouth” of the law, albeit with an early rule of law intention. The law was the means to limit power in absolutism. In addition, there were legal bans on interpretation, restrictions on interpretation, obligations to submit documents and bans on comment. There have been repeated attempts to transfer the interpretation to bodies other than the judge by law. Legal hermeneutics thus soon differed from general hermeneutics.

Whether it is even possible to formulate rules for the application of rules was already rejected by Kant as a regressus ad infinitum .

Historical school of law

Since the 19th century, there has been a "prohibition of denial of rights" in European legal systems . H. an obligation of the judges to decide cases before them, and thus also an obligation to interpret and fill gaps in the law.

Over the question of whether it is advisable to codify civil law in Germany, a scientific controversy arose between Thibaut on the one hand and Savigny on the other ( codification dispute ). Savigny set himself apart from the natural law-philosophical theory of the social contract and dealt with the historical legal development, especially Roman law . As a naturally grown right, it is rooted in the “people's spirit”:

“Positive law lives in the common consciousness of the people, and we must therefore also call it popular law. [...] By assuming an invisible emergence of positive law, we have to forego any documentary evidence of it. "

The content of a legal source has to be recreated again and again by the legal decision maker, the meaning has to be redefined:

“ Reconstruction of the thought which is expressed in the law insofar as it is recognizable from the law. "

Instead of criteria of interpretation, he therefore speaks of "means of determining meaning ". There are four means of determining meaning: the grammatical, the logical, the systematic and the historical element. As a matter of principle, Savigny did not want to recognize the purpose of the law as an interpretative point of view, provided that - as the current teleological interpretation assumes - it is determined by points of view other than the four recognized by him (for example, the living conditions). On the other hand, Savigny felt bound by the law itself; otherwise he feared arbitrariness on the part of the interpreter. The relationship between the methods of interpretation, which is widely discussed today, could not pose a problem for Savigny: According to him, the four elements are not different methods or different interpretations, but elements of the one method, of which one or the other for the individual problem of interpretation others may have greater knowledge value.

Between "term jurisprudence" and "interest jurisprudence"

In the 19th century, following Savigny's pupils, Puchta and Windscheid, the idea was widespread that there should be no contradictions, no open legal questions between the legal norms. A closed legal system was assumed and the inversion method was developed to deal with it . Opponents of this view parodically referred to representatives of this approach as term lawyers . After a recent presentation, the law has not been derived from the law or the legal doctrine, but in the first place by the judge created ( Free School of Law ).

The fact that legal norms are to be understood as decisions on conflicts of interest , whose similarity to the specific case of the judge has to be assessed, then again emphasized the role of the legislature ( interest jurisprudence ).

Recent developments

Karl Larenz's methodology was influential after 1945 . He consistently ignores the legal-political function of the interpretation method he advocates in the system changes of the 20th century. The basic positions of his methodology have been adopted by the highest federal courts ( Federal Constitutional Court , Federal Court of Justice , Federal Labor Court ).

Most recently, Alexy , Koch , Rüßmann and Zippelius have adopted suggestions for their legal methodology, partly from language and moral philosophy, partly from the social sciences and partly from critical rationalism .

The legal hermeneutics today still ties in with Friedrich Carl von Savigny .

Comparative law

In the Anglo-American legal community, the Statute Law only serves to supplement and improve common law . This corresponds to the outstanding position of the judges and their precedents in common law . The interpretation of common law coincides with its determination. In practice, however, laws are becoming increasingly important in these legal systems, while - conversely - the decisions of the courts in the continental legal system become more important with increasing abundance.

Design objective

The aim of the design is to determine the meaning and content of the standards. This gives abstract terms a concrete meaning . Norms have to be interpreted, they are neither self-evident nor clear. Even the determination of uniqueness is an act of interpretation (different in absolutism [ In claris non fit interpretatio ] or in Anglo-American and French legal circles [ Sens clair- or Acte-clair-doctrin ] - a supposedly clear and unambiguous legal text was not allowed to be interpreted here become).

However, if the content or the meaning of a standard is doubtful, interpretation and interpretation are always required. Then the question arises as to whether the subjectively intended or objectively pursued meaning (what is "said") by the normative body must be determined. In addition to this factual difference, there is also a temporal difference. Should the historical point in time at which the standard was set or the current point in time at which the standard was interpreted be used as a basis? If you combine these two questions, there are four possibilities to determine the goal of the design:

  1. subjective-time-of-origin
  2. objective-time-of-origin
  3. subjective-time of interpretation
  4. objective-design-time

Interpretative theories

Opinions 1 and 4 are of practical relevance , although it has not yet been clarified whether a legal provision is to be “interpreted” (interpreted) “subjectively in terms of time of origin” or objectively. There are two “theories” (“interpretation theories”) behind these two views.

  • According to the “subjective theory” (also called “will theory”), the aim of the interpretation is to determine the “historical-psychological will of the legislature”.
  • According to the “objective theory” (also “theory of the immanent interpretation of the law”) it is a matter of determining the meaning inherent in the law itself.

There are good arguments for both theories.

  • For the "subjective theory" (and thus a "subjective") interpretation speaks that laws are made "by people for people". Every legal provision is based on a certain “regulatory will” of the legislature. For the “subjective theory”, this means that the “will” of the legislature must be determined within the framework of the interpretation of the legal provisions. The decisive factor is how the legislature wanted to know the legal terms “understood”, or what “sense” a norm should have according to its “will” - as the basis for the interpretation of a provision.
  • The "objective theory" assumes that laws are created for diverse and changing living conditions or "for the future" and that the legislature was not (yet) able to overlook the changing living conditions at the time the norm was enacted. The starting point of the objective theory is therefore the consideration that the law gives and must give answers to questions that the legislature has not yet asked. Against this background, according to the “objective theory”, a legal provision should be interpreted “in terms of the time of interpretation”, i. H. as it applies today.

There is criticism of objective theory because it favors arbitrary interpretations (decisionism). But there is also criticism of the subjective theory because it overlooks the fact that the meaning of the norm can be detached from the original author (change in the actual circumstances). Arguments for the subjective theory are legal certainty and separation of powers. The argument in favor of the objective theory is the idea that the interpretation must also do justice to the changing circumstances.

At the core of the "controversy" of the two theories is a central constitutional question: It arises from the fact that in the rule-of-law state that divides powers, the legislature (the parliamentary legislature) is called upon to create laws (to "legislate"), and all other state functions ( Executive , judiciary ) are bound by “law and order” in accordance with Article 20, Paragraph 3 of the Basic Law. The crucial question is why and with what severity the principle of binding law claims validity in the relationship between legislative and law-enforcing powers. Ultimately, it depends on the underlying state theory .

The Federal Constitutional Court usually determines the objective will of the legislature:

“Decisive for the interpretation of a legal provision is the objectified will of the legislature expressed in it, as it results from the wording of the legal provision and the context in which it is placed. What is not decisive, however, is the subjective perception of the organs involved in the legislative process or individual members of theirs about the significance of the provision. The history of the origins of a regulation is only relevant for its interpretation insofar as it confirms the correctness of an interpretation determined according to the stated principles or removes doubts that cannot be resolved in the stated way alone. "

Delimitation of interpretation and legal training

The limit of the possible sense of the word, i.e. the scope of the meaning of the legal words (see above paragraph 1), is also the limit of the interpretation. However, reasons of appropriate equal or unequal treatment can justify deviating from the literal meaning. If you want to reach out beyond this, it requires a similar application of the rule of law could you fall behind him, a restrictive application of the law (teleological reduction), in both cases, one based on the direct or unequal evaluation of the legal user rights training (see loopholes / close the gaps ).

Design methods

The interpretation of the law mainly serves to determine the concrete meaning of the legal terms. The aim is to determine the "correct" meaning of the legal words.

“Applicable” in this context means the following: It is characteristic of an interpretation that the interpreter “only makes the text itself speak”; H. makes the text message “understandable” without adding or leaving out any “sense” or “meaning”, d. H. without “putting anything into” the text. Interpretation is thus to be distinguished from an "insert". In a sense, laws are the regulatory instruments in the rule of law. Most laws regulate what should apply “in general”, “should be law”, for “everyone”. Therefore, the "interpretation" of the law is not left to the "discretion" of the interpreter, but must be "methodically guided" in order to determine the "appropriate" understanding that should apply "in general" to "everyone".

In order to “discipline” the “interpretation”, there are various “ways” or “methods” of interpretation in jurisprudence. These are “means of determining meaning”, that is to say “instruments” for an interpretation of a legal provision in order to grasp its “goal”, the will of the legislature objectified in the law.

The canons to Savigny

The following four modes of interpretation (so-called "canones") were distinguished from Savigny :

  • "The grammatical element of the interpretation" (or also "interpretation from the wording")
  • "The logical element of interpretation" (refers to the internal structure of the parts of a law)
  • "The historical element of the interpretation" (or "interpretation from the history of origin")
  • "The systematic element of interpretation" (or also "interpretation from the context" in which a legal provision stands)

In today's jurisprudence, a distinction is made between the four canons supplemented by the teleological interpretation:

  • "Grammatical interpretation" (or "interpretation from the wording")
  • "Systematic interpretation" (or also "interpretation from the context" in which a legal provision stands)
  • "Historical interpretation" (or also "interpretation from the history of origin")
  • "Teleological interpretation" (or also "interpretation according to the meaning and purpose of a legal provision")

This catalog of designs is not exhaustive.

Grammatical interpretation

The "grammatical" or "grammatical" interpretation is based on the idea that every interpretation of a text must begin with the meaning of the word. In the context of the interpretation according to the wording, the main aim is to determine the general usage of the language, or to determine whether there is a binding definition of terms ( legal definition ) in the law itself for the understanding of individual legal terms .

Literal sense

The grammatical interpretation therefore requires that the meaning of a legal norm be as close as possible to its literal meaning. The general usage does not have to be decisive. It can also be based on a special technical language.

Grammatical interpretation plays a special role in criminal law. Here it is constitutionally inadmissible (cf. Art. 103 (2) GG) to extend the scope of a norm beyond its actual literal sense to the detriment of the perpetrator (prohibition of penalizing and aggravating analogy - short but imprecise: prohibition of analogy ). The same applies if the legislature has indicated by means of an enumerative list that it does not allow the scope of application to be extended to similar, not mentioned cases ( enumeratio ergo limitatio ).

Example: T hits O in the face with his fist. This constitutes a simple bodily harm , § 223 StGB . In addition, he would also have fulfilled the offense of dangerous bodily harm , § 224 StGB, if he had committed the bodily harm using a "dangerous tool". To do this, the fist would have to be a tool. According to common usage, a “tool” is understood to mean a movable object that a person uses, but not a part of that person. Accordingly, the grammatical interpretation speaks against seeing the fist as a tool. In addition, if one takes the view that the Faust is no longer covered even with the most extensive interpretation of the word “tool”, there is no longer any room for the application of other methods of interpretation because of the prohibition of analogy under criminal law. According to this, T would only have committed a simple, but not dangerous, bodily harm .

Suitability

The grammatical interpretation is only suitable to a limited extent to determine the meaning of the word (precisely in the sense of the "subjective theory" intended by the legislature). Often the meaning of the word determined solely from grammatical aspects still leaves various possible interpretations open without it being possible to answer which of the possible interpretations is the one that corresponds to the objective will of the legislature. The sense of the word, which can be taken from general (or special legal) language usage, serves to a certain extent as an initial orientation.

In jurisprudence it is often assumed that the linguistically determined literal sense defines the limits of an interpretation. So what lies beyond the linguistically possible sense of the word, what is clearly excluded by it, can no longer be determined by way of interpretation.

This is countered by the fact that every method of interpretation pursues the goal of determining the “objective will of the legislature”, which is decisive for the application of a standard and expressed in a legal provision. Sometimes it can be stated that the legislature had the idea that a certain legal term should also include a certain understanding that - according to grammatical aspects - is excluded per se. Since every text formulation has “weaknesses”, what is “linguistically possible” cannot mean the limit for (further) interpretation or, as a result, conflict with the application of the law.

Historical interpretation

The historical interpretation can be carried out in two different directions (depending on the design goal). It serves to determine what has been said or wanted by the legislature.

According to the dogma-historical interpretation , overarching ideas of previous norms and other norm texts are taken into account when determining the meaning and lines of development of the previous regulations are traced. The limit marks the entry into force of the applicable standard. "New" standards may not be taken into account, just as the later application practice by the norm addressees.

A special case is the so-called genetic interpretation ( Friedrich Müller ). Here are materials other than standard text used to determine the meaning of the norm to be interpreted. Official justifications and parliamentary consultations ( legal materials ) play an important role.

For the Federal Constitutional Court, the historical interpretation is of "special" importance when interpreting the competence titles of the Basic Law. State practice should also be taken into account in these .

The problem, however, is that a uniform legislative will is mere fiction . Whose behavior is (still) attributable to “the” legislature? Hundreds of members of parliament, various parties and parliamentary groups, ministries and, in a federal state, also representatives from all federal states are involved in the legislative process. In addition, decisions by the European Court of Human Rights (ECHR) or the European Court of Justice (ECJ) must also be taken into account.

In general, it can also be said that the historical interpretation becomes less important as a standard ages.

Example: Rider R wants to ride around in the forest. He is forbidden to do so. Has his fundamental right under Article 2, Paragraph 1 of the Basic Law been violated? The standard text reads: "Everyone has the right to the free development of his personality [...]." According to the wording, one could argue that only the core of the personality is protected ("personality core theory"). Riding around in the forest does not affect the core of the personality, so R would not be violated in his basic right. The Federal Constitutional Court decided otherwise. The constitutional giver originally wanted to give the basic right the wording "Everyone can do what he wants [...]", but then chose the linguistically more elegant formulation of Article 2, Paragraph 1 of the Basic Law. In terms of content, he didn't want to say anything else. So the fundamental right does not protect the core of the personality, but the general freedom of action , which always intervenes if no more specific fundamental right is relevant. So the basic right also protects riding in the forest. R was adversely affected in the exercise of his fundamental rights, but this interference was constitutionally justified, as there was a legal and constitutional basis for the ban in the North Rhine-Westphalian Landscape Protection Act.

Systematic interpretation

The systematic interpretation is based on the idea that the legal system as a whole must be structured free of contradictions and therefore no standard in it can contradict another standard. In this sense, the systematic design is not a real design method, but only a design principle. In some cases, the systematic interpretation is given the additional aspect that a legal norm is to be interpreted according to the system of the regulations associated with it. This is where the rule of interpretation, which goes back to Roman law, that exceptional provisions are to be interpreted narrowly, has its home. Against the systematic interpretation understood in this way, it is often argued that the essential step is not to draw the conclusions from a recognized system, but to recognize a system, which is only possible with the other interpretation methods.

Example: According to Section 823 (1) BGB , compensation must be paid “who intentionally or negligently violates the life, body, health, freedom, property or any other right of another”. Is a claim, such as the employee's wage claim against the employer, or the property as a whole, such an “other right”? The listed rights and legal interests (freedom, property, ...) are absolutely protected and must be observed by everyone. From this system it follows that “other law” must be an equally absolutely protected right if the aforementioned restrictions are not to be circumvented. Consequently, neither the property nor an individual claim is “other right” within the meaning of Section 823 (1) BGB.

Teleological interpretation

The teleological interpretation is now often seen as the core of the interpretation method, which is decisive in case of doubt. It requires determining the meaning of the law according to what kind of goal ( Greek τέλος telos , also: ' purpose ') is to be achieved with this legal norm (i.e. the meaning and purpose of the norm).

Example: A instigates T to beat up O. In addition to the undoubtedly completed bodily harm ( Section 223 (1) StGB), did T also commit dangerous bodily harm ( Section 224 (1) No. 4 StGB) because he “acted jointly with another party”? The wording and systematics do not help, and even lead to contradicting results: the law only understands “jointly” to mean accomplices ( Section 25 (2) StGB), while “participants” are also so-called participants, i.e. instigators and assistants ( Section 28 ( 2) of the Criminal Code) . 2 StGB). It is no longer possible to explain what the legislator was thinking. The sense and purpose of the offense dangerous bodily harm is to punish the increased danger more severely. An instigator who does not appear at the scene of the crime does not make the bodily harm more dangerous. Accordingly, it is not sufficient in terms of meaning and purpose. So T did not commit any dangerous bodily harm.

According to the prevailing opinion, the will of the (historical) legislature is not taken into account (in the sense of a subjective interpretation), but rather the objective expressed in the standard. This may have changed over time with older standards. The Federal Court of Justice assumes that no law is limited in its area of ​​application to the cases envisaged by the legislature, "because it is not a dead letter, but a lively developing spirit that wants to progress with the living conditions and continue to apply in a meaningful way, adapted to them this does not break the form in which it is cast ”( BGHSt 10, 157, 159 f.). Against this kind of teleological interpretation it is argued that the establishment of the objectified purpose is more or less arbitrary by the law enforcer; only what he had initially read into the law by setting the purpose, he could also read out again within the framework of the teleological interpretation. It is also criticized that such deviations from the determinable purpose of the historical legislature are necessary, but not to be called an interpretation.

When interpreting facts of antitrust law, an "antitrust-functional" interpretation is used, geared towards the meaning and purpose of antitrust law . The interpretation can protect competition: If the interpretation or the application practice of the antitrust authorities and courts give rise to multiple interpretations, the interpretation that leads to a violation of Article 101 (1) TFEU or Section 1 GWB is assumed . It takes compliance considerations into account and ultimately has the most beneficial effect on protecting competition .

Further means of interpretation

For the interpretation of German laws, jurisprudence has developed additional or more specific methods of interpretation that complement the "classic" means of interpretation. The constitutional and European law-compliant interpretation are often viewed as special cases of systematic interpretation; this is sometimes denied because the validity and not just the interpretation of the standard is affected.

Constitutional interpretation

The Basic Law is the highest legal norm of the German state. The tiered structure of the legal system means that subordinate norms that are incompatible with the higher-ranking Basic Law (e.g. a simple law) are invalid. When they are checked, however, not only is the law to which the standard of the constitution is applied, but also this standard itself is not an exactly determined, but rather a norm that can be interpreted and needs to be interpreted. For each of these standards there are often several reasonable interpretations. If the law to be reviewed is compatible with the constitutional interpretation of the legislature, but not with the deviating constitutional interpretation of the constitutional court, the question arises as to how the interpretative powers of the legislature and the constitutional court are to be distinguished from one another. In the constitutional interpretation (with which the law to be checked must be compatible) the constitutional court has the last word in procedural terms. Section 31 (1 ) BVerfGG also leads to the same result ; According to this, the decisions of the Federal Constitutional Court are binding on “the constitutional organs of the Federation and the Länder as well as all courts and authorities”. In addition, the decision in the cases of Section 31 (2) sentence 1 BVerfGG has the force of law and can therefore correct the legislation. In short, for legal norms, if possible, a constitutional interpretation should be chosen, because only then can they endure. In terms of legal policy, however, the question of a reasonable judicial self restraint arises : If the Constitutional Court, in questions of constitutional interpretation that are seriously doubtful, “makes its own interpretation the binding standard and rejects that of the legislature, then it abandons the unassailable position of an instance, its Authority in confrontation with the legislature [...] is based above all on the fact that one cannot reasonably argue about its decisions ”. If it overstretched its authority to reject, it will "hardly be able to avoid being drawn into the political struggle of the day, questioned about its primary democratic legitimacy and socio-ethical judgment and overall more politicized".

The possibility of interpreting a norm in conformity with the constitution and thus saving it from being invalid ends where the interpretation contradicts the wording and the clearly identifiable will of the legislature: the constitutional court must not anticipate or undermine the legal-political decision of the democratically legitimized legislature. The result of a constitutional interpretation must not only be covered by the wording of the law, but must also preserve the basic objectives of the legislature. The legislative goal must not be missed or falsified on one essential point.

Subordinate courts are only exempt from their submission obligation under Article 100.1 of the Basic Law through their own constitutional interpretation if this follows the recognized methods of interpretation. If the wording, the genesis, the overall context of the relevant regulation and its meaning and purpose permit several interpretations, one of which leads to a constitutional result, this is required.

According to the case law of the Federal Constitutional Court z. B. in compensation lawsuits against the tabloid press and their paparazzi, the rights of photographed children of prominent parents from Article 1, Paragraph 1, Article 2, Paragraph 1 of the Basic Law (general personal rights) and of Article 6, Paragraph 1 of the Basic Law (protection of Marriage and family) to be weighed against the individual guarantee of press freedom of a magazine publisher under Article 5, Paragraph 1, Sentence 2 of the Basic Law; the damage compensation norm of the BGB, here the term “other law” in Section 823 (1) BGB, is therefore to be interpreted as being “in conformity” with the Basic Law.

Interpretation in accordance with Union law or directives

The EU law takes precedence over national law of the Member States . This priority is recognized by the European Court of Justice in customary law. The obligation of all organs of the member states follows from the primacy of supranational Union law, i.e. H. above all the courts and authorities to interpret national law in accordance with the requirements of EU law, i.e. in conformity with the Union . Since most of the EU legal requirements are to be found in directives of the European Community and its legal successor, the European Union , the expression “ directive-compliant interpretation” can also be used. Examples: German courts have to interpret German consumer and employee protection laws in such a way that the sense and purpose of the EU directives in these areas are implemented. - For criticism of this method, see section European law .

Comparative law interpretation (cultural conformity)

In addition to these four classic interpretation methods, Peter Häberle advocated comparative law as the fifth method. It does not belong to the classic interpretation criteria, but can, in the context of teleological interpretation, promote reflection on the meaning and purpose of norms.

Authentic interpretation

This is the interpretation of a text passage by the author or the legislature itself. It differs from the legal definition in that the explanation takes place there using the same text. Authentic interpretation is not a method of interpretation . It is particularly important in international law.

Administrative regulations for the interpretation of standards are also and especially examples of authentic interpretation. A supreme authority lays down the general or technical interpretation of laws so that uniform administrative action is carried out in accordance with the principle of equality. The enforcement of norms is thus authentically specified through the obligation of employees to follow instructions.

key terms

The interpretation of the law, i.e. the argumentative search for the meaning of the words used by a law, is guided by the above-mentioned criteria of the interpretation of the law, primarily by the "historical" interpretation (which sense arises from the history of its origin?) Or the "teleological" interpretation (Development of the meaning and purpose of the standard). These ways of interpretation serve to specify the interpretation. Such “key terms” are ways of thinking that “open up a problem by reducing it to terms in which it can be discussed in a comprehensible manner - but without completely solving it”. The search for the meaning of the legal words can not only be structured conceptually by the "classic" ("Savigny") interpretation criteria, but also by the questions presented as to whether a certain interpretation is compatible with higher-ranking norms (constitutional conformity) and whether it is comparable Solutions to problems from the same cultural area match (cultural conformity, comparative law interpretation). These interpretation arguments, however, especially when different interpretation criteria compete with each other, "often leave a decision-making leeway, i.e. a choice and evaluation option open", in which the weight of the individual arguments has to be decided and in particular the question of their ranking is mostly not strictly rational and exact to answer is.

Even beyond the interpretation of the law, legal thought makes use of problem-solving terms. These include, in particular, the weighing of interests or interests . This, in turn , can be structured rationally through the principle of proportionality , the prohibition of excess and more subtle consideration patterns, but in the end it comes down to evaluations that cannot be strictly calculated.

The principle of equality should also be mentioned . This is not only an independent “key concept” of legal considerations, but also plays a supplementary role when other interpretation criteria are used. It also makes a limited contribution to the rationality of legal decisions by highlighting the similarities and differences that are significant for the legal assessment (as is also the case with the "distinguishing" of Anglo-Saxon case law ). But even about what such relevant characteristics are, and especially about whether and why they are decisive for the final equal or unequal evaluation, no completely rational, non-judgmental discourse is possible.

In short, key terms are methodological instruments that open up the way (méthodos) to solve a problem by structuring this way conceptually. In this way, problems of interpretation and other questions of justice (for example through the principles of balancing interests, proportionality and the prohibition of excess) can be brought to the decisive valuation question for the respective case and thus brought closer to a solution.

However, an insight has also emerged that goes beyond the actual problems of interpretation: the search for just decisions in the end repeatedly encounters elements of uncertainty that cannot be resolved rationally. These form an insurmountable limit of rational knowledge, as it (in a different way) even physics has in an "uncertainty relation". In short, questions of justice can be structured rationally with the help of key terms, but they cannot be solved with complete accuracy.

Relationship between the design methods

The interpretation from the wording of a standard (grammatical interpretation) and from its context (systematic interpretation) usually only lead to a preliminary result; because the possibilities of expressing the “will” of a law by means of a text (in laws with concise, abstract formulations) are “limited”: the more concise the legal words, the more difficult it is to include what the law wants just a few words to explain fully and precisely. Therefore, the other interpretation criteria must always be taken into account in order to "secure" the understanding of the legal terms gained for the time being. The interpreter must, in particular, sift through and evaluate the legal materials in order to check whether the result determined from the wording and the context also corresponds to the meaning and purpose of a standard. The Federal Court of Justice said: "The decisive factor for the interpretation of a legal provision is the will expressed in it [...]. The aim of capturing the will of the legislature objectified in the law is served by the mutually permissible, mutually complementary methods of interpretation from the Wording of the standard, from its context, from its purpose as well as from the legal materials and the history of its creation. As a rule, [...] the interpretation must begin with the wording ".

However, the relationship between the design methods has not been clearly clarified. According to the prevailing view, there is no clear hierarchy between the individual design criteria. However, this does not mean that the choice of arguments for interpretation should be aimless. Rather, “when different arguments of interpretation compete with one another, it corresponds to the fundamental task of law [...] to prefer those arguments that lead to the fairest possible result. This anticipation of the desirable result should give the decision goal and direction. "

However, all these interpretative considerations usually do not lead to a single correct decision, but often only to various justifiable decisions (if only because the included considerations of justice and other evaluations are not based on exact knowledge)

According to a controversial opinion, priority should be given to the interpretation of laws in conformity with EU law, provided that the provisions of EC law exist at all. This view is supported by the fact that German courts of last instance have to refer preliminary EC-law questions of a national procedure to the European Court of Justice for a preliminary ruling ( Art. 267 TFEU) and that Germany would violate its duty of loyalty under Art. 4 (3) TEU if its organs were in conformity with the Union Failure to interpret national standards or even disregard the binding interpretation of EC law by the European Court of Justice.

With the choice of the design method, the design result can be predetermined. At the same time, it defines the scope and limits of the constitutional binding of the law enforcer. Questions of interpretation are therefore constitutional questions. This has become particularly evident in Germany after the “constitutional changes” in 1919, 1933, 1945/49 and 1989/90. The major codifications (BGB, HGB , StGB, GewO, ZPO, StPO etc.) have, largely unchanged, often led to opposing interpretative results in the different political systems by the judiciary and jurisprudence. The tools for reinterpreting the entire legal system were the promulgation of new legal ideas, new legal sources, new basic legal concepts and new methods of interpretation.

Subject of interpretation

The method of interpretation is also based on its subject, the standards and declarations of intent. The goal of interpretation is the - however - objectified will of an author. Norms and declarations of intent often have different authors. Therefore, the hierarchy of standards or the respective legal source must be taken into account when interpreting .

Legal transactions

Legal transactions , more precisely, the information contained in them declarations of intent are of interpretation capable of when they are ambiguous and of interpretation in need if the declarant require different understandings for themselves, for example, issuing a " general acknowledgment ". If the meaning is clear or the understanding of the contract agrees, there is no room for interpretation. The German Civil Code (BGB) regulates the interpretation mainly in:

§ 133 BGB - Interpretation of a declaration of intent
When interpreting a declaration of will, the real will is to be explored and not to be attached to the literal sense of the expression.
§ 157 BGB - Interpretation of contracts
Contracts are to be construed as good faith with regard to the prevailing practice require. Commercial custom is an indefinite legal term and includes the practice actually prevailing in the dealings of the circles involved , which must have acquired a certain stability over a longer period of time, whereby it is not necessary that it is known to the parties involved in the contract or viewed by them as binding becomes. It is not a legal norm , but a factual factor that helps determine the interpretation.

There are two - sometimes contradicting - maxims: The interpretation according to the real will ( natural interpretation ), as described in § 133 BGB, realizes the private autonomy . The interpretation according to how the declared will must be understood in general ( normative interpretation ), § 157 BGB, protects legal transactions. The declaration of intent is then to be understood as an objective third party in the position of the recipient (objective recipient horizon) would have to understand it. When legal transactions are worthy of protection in this way, Section 157 of the German Civil Code (BGB) specifies with contracts: there are two parties involved who rely on what has been declared by the opposite party. But a comparable interests also exists in many unilateral acts, namely, when the declaration of intent is to be made to other, that is according to § 130 1 para. 1 BGB receiving in need and go needs. This is the case with all design rights : for example, when declaring a termination, contesting and so on.

This results in the following scheme:

  • Declarations of intent that do not need to be received (e.g. in the will , the foundation business , the claim ) are in accordance with To understand § 133 BGB according to the real will (natural interpretation), something completely different may have been explained.
  • Declarations of intent that require receipt, in particular design declarations as well as application and acceptance, are to be accepted in accordance with § 133 , § 157 BGB to be interpreted normatively. In the case of declarations that require a formal form , the case law uses the hinting formula to determine the legal will, insofar as circumstances of this will should manifest themselves outside the document, but are indicated in the document. Exception: the parties unanimously meant something different from what they said. Then no one is worth protecting, what is really wanted applies ( falsa demonstratio non nocet  - the (matching) misnomer does not harm). The Haakjöringsköd case is a prime example of such an insignificant falsa demonstratio .

Laws

Words of the law usually have a range of different meanings. A specific design variant must be selected from these. This selection has to be made within the possible sense of the word, and indeed in an argumentative way: in considering reasons that justify ascribing the chosen meaning to the legal words. Such reasons can be inferred from the purpose of the law (which can result in particular from the history of the law's history and history), also from the legal context (to which the chosen interpretation must fit without contradiction), and last but not least from considerations of justice. The interpretation thus has "the character of a discourse in which, even with methodologically impeccable work, absolutely correct ... statements are not presented, but reasons are asserted, other reasons are opposed and ultimately the better reasons should be decisive".

If important reasons make it necessary to deviate from the wording of the law, this cannot be done through interpretation, but only in such a way that a legal loophole is identified and filled.

Savigny had developed his rules of interpretation for civil law and criminal law. As a rule, today's laws do not contain any provisions on the method of their interpretation. The jurisprudential methodology expressly ties in with Savigny's teaching for the interpretation of today's laws. The highest court rulings also apply these criteria in practice, especially in the case of editorial errors by the legislature. However, there are some deviations from Savigny, both in terms of the goal of interpretation (will of the legislature instead of "Volksgeist"; see, however, Zeitgeist ) and in terms of means (teleological instead of "logical" interpretation).

Constitutional law

The methodology developed for the constitutional law specific criteria of interpretation. Different directions face each other. A method specially developed for constitutional law is the structuring legal theory by Friedrich Müller.

The Federal Constitutional Court has not expressly endorsed any of these teachings. It largely applies Savigny's criteria without referring to them. It has also gone beyond that, e.g. B. resorted to events further back than the immediate history of the norm's origins. Finally, it has drawn on factual principles of a functional or substantive nature. It also "attached importance to the matter to be regulated". With this, however, the rules of Savignys are definitely left. For Savigny, the separation between the “content of legal sources” and their “transition into life” was always necessary, the separation of case and norm.

European law

In the opinion of the European Court of Justice , autonomous principles of interpretation apply to Union law , which are essentially in line with the above.

In general, the interpretation that conforms to European law (also: integration-friendly interpretation) ensures compliance of the national standards with European law . Special mention should be made of the guideline-compliant interpretation, which ensures the conformity of national standards with the content of the (European law) guidelines on which they are based. The directive-compliant interpretation is problematic because directives do not have direct effect, but only bind the member states and must be transformed into national law by them. As a result of this transformation, the regulatory complex will be adapted to the national legal system. This act of transformation becomes almost superfluous if the directive is used whenever there is a deviation between national law and directive law. The guideline-compliant interpretation can lead to a quasi-immediate effect of guidelines, which is constitutionally questionable with regard to the democratic deficit when norms are issued. (Basically Di Fabio , NJW 1990, 947 ff.) - In addition to the usual methods of interpretation, there is also interpretation with regard to effet utile (the actual enforcement of norms) and the uniformity of European law in all member states.

international law

The law follows its own rules of interpretation (see. Art. 31 Vienna Convention ). As a rule, the parties to a contract interpret it themselves (see the interpretation of legal transactions).

Supplementary interpretation and legal training

The standard can be interpreted narrowly or broadly within the limits specified by the wording of a standard. If the broadest possible wording is exceeded, there is an analogy . If the interpretation falls below the narrowest possible wording of the standard, one speaks of teleological reduction .

The simple interpretation of a norm is mostly differentiated from its analogous application and its teleological reduction (which, however, belong to the interpretation in the broader sense , the "presentation of the content of the law" ( Windscheid )). In this respect, one speaks of a supplementary interpretation, sometimes also of legal training .

This is about the correction of unjustified inequalities in the law that arise because the legislature has not considered certain groups of cases and its regulation has therefore become incomplete. A distinction is made between primary and secondary gaps. In the first case the legislature did not consider the case in question from the outset, in the second it did consider it, but in the meantime the actual (e.g. emergence of road traffic, development of radio and television) or legal (e.g. . Entry into force of the Basic Law) Framework conditions changed in such a way that a gap "has arisen" in the meantime.

The (fluid) boundaries between interpretation, (supplementary) interpretation and legal development are disputed in detail. A common delimitation criterion is the possible literal meaning of a standard. In practice, jurisprudence avoids assigning its interpretation and legal development to certain categories formed by science ( e.g. intra legem = interpretation or interpretation within the context of the possible literal sense, praeter legem = legal development within the framework of what is legally intended, contra legem = legal development that goes beyond the law) .

The analogy is an example of a law-based legal training. Legal training that goes beyond the law is generally not permitted. Exceptions are possible in the event of a serious change in social conditions, in the case of unavoidable needs for legal relations or to implement a constitutional principle.

The Federal Constitutional Court has generally affirmed the competence of the judges to "creative law finding", that is to say contra legem even to further legal training:

“ This is especially true when, between the creation and application of a law, living conditions and legal views have changed as profoundly as they did in this century. The judge cannot avoid a possible conflict between the norm and the material ideas of justice of a changed society by referring to the unchanged wording of the law; he is forced to use the legal norms more freely if he does not want to miss his task of speaking 'law'. "

The Federal Constitutional Court leaves it up to the specialized courts to decide which method they use for “creative legal finding”, provided that the result “was obtained in a way that is at least debatable under civil law and at least not obviously contradicting the rules of civil law hermeneutics”.

The legislature itself has expressly assigned the task of “further training of the law” to the major senates of the highest federal courts of justice (cf. Section 132 (4) GVG , formerly Section 137 GVG). The system and methodology of the legal training has been expressly mentioned as the task of the appeal courts since the reform of the civil procedure code in § 543 ZPO. In some areas of law, for example labor law, it has gained particular importance as legislation has lagged behind the flow of social development.

analogy

As analogy is called the extension of the legal consequences of a norm to a situation which is no longer covered by their constituent from the lexical meaning. The analogy assumes that the law, according to its broadest possible linguistic understanding, does not cover the facts in question (incomplete), that this loophole is unplanned, that the legislature, if the case had been in mind, would have regulated it and that the Similarity of interests justifies the application of the legal consequence of the norm to be applied analogously ( argumentum lege non distinguente ). The technical term gap is sometimes used in such a way that it only records incompleteness that is not planned from the outset.

For example, in the event of a threat to property, according to Section 1004 of the German Civil Code (BGB), the offender can be sued for an injunction. Even if one understands "property" so far, one will no longer be able to understand physical integrity under it. Life and limb, like property, is absolutely protected ( Section 823 (1) BGB). Accordingly, § 1004 BGB will apply analogously to this case.

Teleological reduction

The opposite of analogy is called teleological reduction . Here - also based on the idea that the law pursues a specific purpose with a regulation - the legal consequence of a norm is not applied, although the literal sense of the norm would undoubtedly capture the facts (hidden loophole). The wording of the law is not too narrow, but has gone too far, contrary to plan.

For example , "who kills a person" is punished under Section 212 of the Criminal Code. No matter how narrowly interpreted the term “human”, anyone who kills himself still falls under the wording. The (attempted) suicide should not be punishable according to the meaning and purpose of § 212 StGB - therefore the norm is to be reduced teleologically to the extent that only the killing of another person is recorded.

Both - analogy and teleological reduction - have in common with the interpretation in the narrower sense that they are based on the core of the methods of interpretation, the knowledge of the goal pursued by the law (teleological interpretation). However, they either go beyond the widest possible linguistic understanding (analogy) or fall short of the narrowest possible sense of the word (teleological reduction). However, this gap filling is not a creative, free law-making by the legal practitioner. Rather, the requirement of non-planarity ensures that the historical legislative will (principle of democracy) is observed. The gap is not filled by any regulation that appears favorable to the user, but by correspondingly applied legal regulations - the basis is still the law in this respect.

In German criminal law analogy and teleological reduction is prohibited at the expense of the offender: nullum crimen, nulla poena sine lege (no crime, no punishment without law analogy prohibition of Article 103 of. Para 2 GG, word, according to the same. § 1 of the Criminal Code).

Examples

(Example) "I make my descendants inheritors" (or: "My descendants are to inherit me.")

For legal hermeneutics the question arises: Who is meant by “descendants”?

A legal term can be understood "directly", that is, in accordance with common usage (declaratory interpretation) :

  • (Example) The legitimate and illegitimate descendants are meant.

The design can be extended (extensive design) :

  • (Example) The grandchildren and great-grandchildren are also meant.

Or it can be restricted (restrictive interpretation) :

  • (Example) Only legitimate offspring are meant.

Limits of interpretation

There have always been unsuccessful attempts to set absolute limits on interpretation, be it by law or by decree. Today one makes do with the idea of relative limits and the like. a. through the separation of powers . While the application of the law (first interpretation) is clearly a matter for the executive branch, a division of competences in the interpretation (control) is necessary, especially between the legislative branch and the judiciary branch.

For the judge

The judge is first obliged to make a decision (prohibition of legal refusal). The judge is “independent and only subject to the law” ( Article 97, Paragraph 1 of the Basic Law) and “bound by law and justice” ( Article 20, Paragraph 3 of the Basic Law). On the other hand, he enjoys “independence” and the institutional trust of the legal system, the jurisdiction is “entrusted” to him. The existing legal system and the legal idea can fall apart in one case. No judge can be forced to apply a “law” that he perceives as a contradiction to the “law” (see also Radbruch's formula in this respect ). If he considers a law to be unconstitutional, he has to submit it to the Federal Constitutional Court ( norm rejection monopoly ). Exception: The judge can omit the application of a law without calling the court if it is a pre-constitutional law or a statutory ordinance or statute. Should the literal application of the law lead to “unbearable” results, then the judge can, as an exception, take legal action himself: He creates judicial law. It is limited by the general rules of interpretation. The “essential decisions” must be made by the legislature itself. In addition, it is bound by the principle of equality ( Article 3, Paragraph 1, Basic Law). If the judge deliberately applies the law incorrectly, then it is a punishable violation of the law .

For the legislator

The legislature makes “essential” decisions. However, there is no authentic interpretation in the technical sense, at most there are legal definitions. The legislature is prohibited from arbitrarily picking one out of a series of similar cases. The situation is different in Austria, where the legislature is explicitly allowed to make an authentic interpretation according to § 8 ABGB . The legislature is bound by the fundamental rights and the “constitutional order”, but not by simple laws (cf. Art. 1 Para. 3 GG, Art. 20 Para. 3 GG). Whether and how the decisions of the Federal Constitutional Court bind the legislature is a matter of dispute. A core of the constitution is also withdrawn from amendment by law ( Article 79.3 of the Basic Law).

See also

literature

  • Robert Alexy : Theory of legal argumentation , 3rd edition, Suhrkamp, ​​Frankfurt am Main 1996, reprint 2001.
  • Klaus Adomeit : Legal Theory for Students , 4th Edition, Heidelberg 1998.
  • Horst Bartholomeyczik , The Art of Legal Interpretation , Frankfurt a. M. 1971.
  • Manlio Bellomo (Ed.): The Art of Disputation. Problems of legal interpretation and application of the law in the 13th and 14th centuries (= writings of the Historisches Kolleg. Colloquia 38). Munich 1997, ISBN 978-3-486-56258-3 ( digitized ).
  • Dietrich Busse : Law as Text , Max Niemeyer Verlag, Tübingen 1992, ISBN 3-484-31131-2 .
  • Franz Bydlinski : Legal Methodology and Legal Concept , 2nd edition 1991.
  • 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.
  • Karl Engisch : Logical studies on the application of the law , 3rd edition, Heidelberg 1963.
  • Karl Engisch: Introduction to legal thinking. 11th edition, Stuttgart 2010.
  • Josef Esser , Prior Understanding and Choice of Methods in Finding Law , 2nd edition, Frankfurt 1972.
  • Wolfgang Fikentscher : Methods of Law in the Comparative Representation , Tübingen.
Vol. 1: Early and religious rights - Romanic legal circle , 1975
Vol. 2: Anglo-American Legal System , 1975
Vol. 3: Central European Legal Circle , 1976
Vol. 4: Dogmatic Part , Appendix, 1977
Vol. 5: Supplements - Register , 1977

Items:

Individual evidence

  1. ↑ Reinhold Zippelius : Das Wesen des Rechts , 6th edition 2012, chap. 8th.
  2. ↑ See Martin Kriele : Characteristics of legal hermeneutics , in: Studium Generale 7 (1954), pp. 409–412; Hans-Georg Gadamer: Truth and Method. Basics of a philosophical hermeneutics , 3rd edition, Tübingen 1972; Ernst Forsthoff: Law and Language. Prolegomena to a judicial hermeneutics , writings of the Königsberger Gelehrten Gesellschaft, Darmstadt, reprint of the 1940 edition.
  3. ↑ Reinhold Zippelius: Legal Methodology , 11th edition 2012, before § 1, § 10.
  4. ^ Karl Engisch : The idea of ​​concretization in law and jurisprudence of our time , 2nd edition, Heidelberg 1968.
  5. ↑ a b c d e f Karl Larenz: Methodology , 4th chapter.
  6. ↑ See e.g. B. Karl Larenz: Methodology of Jurisprudence , 1st edition 1960.
  7. ↑ Bernd Rüthers : Methodology , Rn 698: "In the rule of law that divides powers, the application of the law is first of all the interpretation of the existing laws on the respective issue".
  8. ^ Reinhold Zippelius: Legal Methodology , 11th Edition 2012, § 4 I.
  9. ↑ Reinhold Zippelius: Legal Methodology , 11th Edition 2012, § 9 II.
  10. ↑ Reinhold Zippelius: Legal Methodology , 11th Edition 2012, §§ 12 I.
  11. ↑ Reinhold Zippelius: Legal Methodology , 11th edition 2012, § 10.
  12. ^ Anders Ronald Dworkin : Taking Rights Seriously , 1977.
  13. ↑ Reinhold Zippelius: Legal Methodology , 11th Edition 2012, §§ 9 II, 10 I, IV, VII; 16 III.
  14. ↑ See BVerfGE 34, 269 ; BVerfGE 65, 182 ; BVerfGE 69, 188 ; BVerfGE 75, 223 243 f .; on the limits cf. BVerfGE 69, 315 371 f .; BVerfGE 82, 6 ; Bernd Rüthers calls for a limitation to "legal and legal loopholes": Democratic constitutional state or oligarchical judicial state? , JZ  2002, 365 ff.
  15. ↑ Christian Thomasius : Exercise of the Doctrine of Reason , Halle 1691: "The interpretation (interpretatio) here is nothing more than a clear and probable presumption-based explanation of what someone else wanted to understand in his writings and what is difficult or obscure to understand . "
  16. ↑ Cf. previously the prohibition of comment and interpretation in Justinian's introductory constitutions of 530/533 and the early modern imitations, such as the preface to the Nuremberg city law reformation of 1479/1484, or the Ordonnance civile touchant la réformation de la justice of 1667, tit. I: De l'observation des Ordonnances .
  17. ↑ Cf. Montesquieu , De l'esprit des lois , 1748, XI, 6 “ Mais les juges de la nation ne sont que la bouche qui prononce les paroles de la loi: des êtres inanimés qui n'en peuvent modérer ni la force ni la rigueur. "; see. Carl Gottlieb Svarez , To what extent can and must laws be short? , 1788, in: Lectures on Law and State , p. 628: “For then the judge becomes the legislator; and nothing can be more dangerous to civil liberty, especially when the judge is a paid servant of the state and the judge's office is vital. "
  18. ↑ In addition, there was an (alleged) waiver of a ruling on power and its prohibition, cf. on the one hand the Political Testament of Frederick II (1752): “ I have decided never to intervene in the course of the judicial process; because in the courts of justice the laws should speak and the ruler should be silent (...) ”and on the other hand the practice in the Müller-Arnold case (1779).
  19. ↑ Cf. Codex Theresianus , 1758, Part 1, I, 81: “Everyone is bound by the express words of Our Laws in their true and general common sense. No one is therefore permitted to take on a final interpretation of Our Laws, nor to expand or restrict them in any way under the pretext of a difference between the words and the meaning of the Law. "
  20. ↑ Cf. Project des Corporis Juris Fridericiani , 1750, I, Tit. 2, § 7: “ How no judge should be free to interpret this our country law when it seems to be doubtful, or argumento legis of all kinds Exceptiones, Limitationes, and Ampliationes, if you like, and often ex aequitate cerebrina, to be fingered. "
  21. ↑ Cf. Codex Theresianus, 1758, Part 1, I, 84: “ If the judge had any doubts as to whether a case that occurred was included in the law or not, or because the law itself seemed obscure to him, or very special and If there were very serious reservations about observing the law, the relevant explanation of the law should always be requested from us. "
  22. ↑ Cf. Friedrich August I., “der Starke” , order from 1729: “ (...) that no one should write or comment on this Our explained process order without our preconscious and approbation, and should undertake to interpret such . "
  23. ↑ " If the judge finds the real meaning of the law doubtful, he must, without naming the litigating parties, report his doubts to the law commission and apply for its judgment. “(Art. 47 of the introduction to the General Land Law for the Prussian States of February 5, 1794).
  24. ↑ Carl Welcker (1790–1863): Interpretation , in: Staats-Lexikon , ed. v. Carl v. Rotteck and Carl Welcker, 2nd vol., 1835, p. 60: “In order to be able to follow and apply the laws and legal transactions, namely the contracts, correctly, one must above all interpret them correctly, i. H. find out from them and develop their true, legally valid intention. The rules that must guide us in this interpretation form the content and the task of the science or art of interpretation, or hermeneutics, in contrast to the rules of interpretation for non-legal documents, such as B. the scriptures, the old classics, the legal hermeneutics. "
  25. ↑ Cf. Immanuel Kant: Critique of Pure Reason , 2nd edition 1787, B 172.
  26. ↑ Cf. "Le juge qui refusera de juger, sous prétexte du silence, de l'obscurité ou de l'insuffisance de la loi, pourra être poursuivi comme coupable de déni de justice." (Art. 4, Code civil ).
  27. ^ Friedrich Carl von Savigny: System of today's Roman law . First volume, Berlin 1840, p. 14.
  28. ↑ Friedrich Carl von Savigny: System of today's Roman law , 1840, Vol. I, p. 213 ff .; Vol. III, p. 244.
  29. ^ Karl Larenz: Methodology of Jurisprudence. 6th edition, Berlin 1991, p. 21 f.
  30. ^ Karl Larenz: Methodology of Jurisprudence. 6th edition, Berlin 1991, pp. 43-48.
  31. ↑ Representative: E. Ehrlich, GF Kantorowicz, H. Stampe and E. Fuchs: Die Gemeinschädlichkeit der Konstruktiv Jurisprudenz , 1909.
  32. ↑ Philipp Heck : Legislative interpretation and jurisprudence of interests , in: Archive for civilist practice (AcP) 112 (1914), p. 1 ff.
  33. ^ Karl Larenz: Methodology of Jurisprudence , 1st edition 1960.
  34. ^ Karl Larenz: On the subject and method of völkisch legal thought , 1938.
  35. ^ For an introduction, see D. Neil Maccormick, Robert S. Summers: Interpreting Statutes: A Comparative Study , Dartmouth 1991; for South Africa: Lourens Du Plessis: Re-Interpretation of Statutes , Butterworths, Durban 2002.
  36. ↑ See Kent D. Lerch (ed.): The language of law . Studies of the interdisciplinary working group Language of Law of the Berlin-Brandenburg Academy of Sciences, Volume 1: Understanding Law. Understandability, misunderstanding and incomprehensibility of law. Walter de Gruyter, Berlin 2004.
  37. ↑ Karl Larenz: Methodology , chap. 4; Karl Engisch: Introduction to Legal Thought , 11th edition 2010, chap. V, p. 160 ff .; Reinhold Zippelius: Legal Methodology , 11th edition 2012, § 4 II, III; see also Bernd Rüthers: Methods of Jurisprudence , Chapter 4 (“Application of Law”) B (“The purpose of the norm”).
  38. ↑ See Bernd Rüthers: The unlimited interpretation. On the change in the private legal system under National Socialism. 6th edition, Mohr Siebeck, Tübingen 2005, ISBN 3-16-148473-8 .
  39. ↑ See Ekkehart Stein : Textbook des Staatsrechts , Mohr, 19th edition 2004.
  40. ↑ Cf. Reinhold Zippelius: Legal Methodology , § 4 II: "Which interpretation one chooses depends on what kind of state philosophy he has."
  41. ↑ BVerfGE 1, 299 312, st. Rspr , cf. also BVerfGE 62, 1 45 with further references
  42. ↑ BVerfGE 71, 115 ; BVerfGE 87, 224 ; Reinhold Zippelius: Legal methodology , 11th edition, § 9 II.
  43. ↑ Reinhold Zippelius: Legal methodology . 11th edition, 2012, § 11 II.
  44. ↑ See BGHZ 46, 74 ff., 76.
  45. ↑ Friedrich Carl von Savigny: System of today's Roman law , § 33, A: Interpretation of laws; P. 213, f.
  46. ↑ Reinhold Zippelius: Legal methodology , §§ 9 II, 10 VI; BVerfGE 71, 115 ; BVerfGE 87, 224 .
  47. ↑ See e.g. Bernd Rüthers: Methods of Jurisprudence , Chapter 4, D. (interpretation according to the wording)
  48. ↑ Bernd Rüthers: Legal theory. Concept, validity and application of the law . Munich 1999, ISBN 3-406-09484-8 , marginal no. 717 ff. In particular Rn 724: [It is] "a requirement of scientific and judicial honesty and intellectual hygiene, a silence in the law as a loophole and the deviation from the law as a judicial correction of the law based on legal policy."
  49. ^ Michael Kulka, 1953-, Fritz Rittner, 1921-2010 .: Competition and cartel law: a systematic presentation of German and European law; [with 8th GWB amendment] . 9th, completely revised edition. Heidelberg 2016, ISBN 978-3-8114-4271-9 , pp. 243 .
  50. ↑ Stefan Thomas, 1975-: Antitrust Law . 2nd, revised edition. Verlag Franz Vahlen, Munich 2016, ISBN 3-8006-4683-8 , p. 521 .
  51. ↑ Manuel Thomas: Limits of the horizontal exchange of information in German and European cartel law . In: International Göttingen Law Series . 1st edition. tape 83 . Cuivillier Verlag, Göttingen 2018, ISBN 978-3-7369-9866-7 , p. 7 .
  52. ↑ Manuel Thomas: Limits of the horizontal exchange of information in German and European cartel law . In: International Göttingen Law Series . 1st edition. tape 83 . Cuvillier Verlag, Göttingen 2018, ISBN 978-3-7369-9866-7 , p. 7 .
  53. ↑ Rolf Wank : Rank-compliant design and European law. In: Ioannis K. Karakostas, Karl Riesenhuber (Hrsg.): Method and constitutional issues of European legal approximation . Walter de Gruyter, 2011, ISBN 3-11-025809-9 , p. 21.
  54. ↑ Reinhold Zippelius: Legal methodology , 11th edition, §§ 7 g, 10 III b.
  55. ↑ Reinhold Zippelius: Constitutional interpretation of laws , in: Federal Constitutional Court and Basic Law , 1976, Vol. II, p. 108 ff., 115.
  56. ↑ According to the established case law of the Federal Constitutional Court, cf. BVerfGE 119, 247 , 274 mwN and BVerfG, decision of December 16, 2014, Az. 1 BvR 2142/11, full text , Rn 86.
  57. ^ Peter Häberle : The validity of fundamental rights and the interpretation of fundamental rights in the constitutional state. At the same time to comparative law as the “fifth” interpretation method , Juristenteitung (JZ) 1989, p. 913 (916 ff.); also Axel Tschentscher: Dialektische Rechtsvergleichung - On the method of comparative literature in public law , JZ 2007, p. 807 (812 ff.) with further references to sources and reception in fn 81; see. also Reinhold Zippelius: Legal methodology, 11th edition, § 10 IV.
  58. ↑ Reinhold Zippelius: Legal methodology. 11th edition, § 10.
  59. ↑ Reinhold Zippelius: The essence of law. 6th edition, chap. 8 b, cf. ders .: Valuation problems around the system of fundamental rights. 1962, pp. 22, 82.
  60. ↑ Reinhold Zippelius: Legal methodology. 11th edition 2012, § 10 IV.
  61. ↑ Reinhold Zippelius: Legal methodology. 11th edition 2012, § 10 VII.
  62. ↑ Reinhold Zippelius: Valuation problems in the system of basic rights. 1962, pp. 22, 82.
  63. ↑ Reinhold Zippelius: Philosophy of law. 6th edition, § 20 III 4.
  64. ^ Heinrich Hubmann : Valuation and weighing in law , 1977.
  65. ^ Heinrich Hubmann: Evaluation and weighing in the law. 1977, p. 191.
  66. ↑ Reinhold Zippelius: Legal methodology. 11th edition, § 12.
  67. ↑ Reinhold Zippelius: Legal methodology. 11th edition, 2012, §§ 3 I c, 10 III c, VII
  68. ↑ Reinhold Zippelius: Philosophy of law. 6th edition, § 20 III 6; ders .: Legal methodology. 11th edition, §§ 3 I c, 10 VII.
  69. ↑ BGHZ, 46, 74 ff., 76.
  70. ^ Karl Larenz, Claus-Wilhelm Canaris : Methods of Law, Study Edition , 3rd Edition 1995, Chapter 4, No. 2 f; Karl Engisch: Introduction to Legal Thought , 11th Edition, Ed .: Thomas Würtenberger, 2010, pp. 146 ff., 172 ff .; Reinhold Zippelius: Legal methodology , 11th edition, § 10 VI, VII, § 16 III; Hans-Joachim Koch, Helmut Rüßmann: Legal Justification , 1982, p. 176 ff .; Franz Bydlinski : Legal methodology and legal concept , 2nd edition 1991, p. 553 ff .; Arthur Kaufmann : The process of obtaining rights. A rational analysis , 1999, p. 36 ff., 91 ff .; Dirk Looschelders , Wolfgang Roth : Legal methodology in the process of legal application , 1996, p. 192 ff .; Sonja Buckel , Ralph Christensen , Andreas Fischer-Lescano (eds.): New Theories of Law , Stuttgart 2006.
  71. ↑ Reinhold Zippelius: Legal methodology . 11th edition, § 10 IV; in a similar way, Bernd Rüthers takes: Rechtstheorie , Rn. 725 ff. A leading function of the teleological interpretation.
  72. ^ Anders Ronald Dworkin: Taking Rights Seriously , 1977.
  73. ^ Karl Engisch: Introduction to legal thinking . 11th edition, Ed .: Thomas Würtenberger, 2010, p. 204 f. following CH Ule; Reinhold Zippelius: Legal methodology . 11th edition, § 16 III.
  74. ↑ See Bernd Rüthers: Entartetes Recht , dtv-Wissenschaft 1994, p. 22.
  75. ↑ Reinhold Zippelius: Legal Methodology , 11th Edition, § 10.
  76. ↑ BVerfGE 82, 38 f.
  77. ↑ Cf. Karl Larenz: Methods of Law , Heidelberg 1960.
  78. ↑ See Ernst Forsthoff : On the Problem of Constitutional Interpretation , Stuttgart 1961 on the one hand and Alexander Hollerbach : Dissolution of the constitutional constitution? , AöR 85 (1960), p. 241 ff. On the other hand; as well as Peter Schneider and Horst Ehmke : Principles of Constitutional Interpretation, VVdStRL 20, 1963; Dreier / Schwegmann: Problems of the Constitutional Interpretation , 1976; Overviews from: Ernst-Wolfgang Böckenförde : The Methods of Constitutional Interpretation , NJW 76, 2089 ff. And Matthias Herdegen : Constitutional Interpretation as Methodical Discipline , JZ 2004, pp. 873–879.
  79. ^ Friedrich Müller: Structuring legal theory . 2nd edition, Duncker & Humblot, Berlin 1994, ISBN 3-428-07623-0 .
  80. ↑ BVerfGE 12, 105 , 230 ff .; BVerfGE 61, 149 175 ff.
  81. ↑ BVerfGE 3, 225 , 231; BVerfGE 28, 243 , 261; BVerfGE 34, 165 , 183 with further references
  82. ^ Konrad Hesse : Basic features of constitutional law. 20th edition 1999, marginal number 58.
  83. ^ Critical to the applicability of these rules in constitutional law: Friedrich Müller: Structuring Legal Teaching , 2nd edition, Duncker & Humblot, Berlin 1994, ISBN 3-428-07623-0 , passim.
  84. ↑ System of Modern Roman Law, Volume I, 1840, p. 206.
  85. ↑ See Jochen Anweiler: The interpretation methods of the Court of Justice of the European Communities , Frankfurt am Main 1997.
  86. ↑ See on the latter Peter Schwacke: Juristische Methodik , 4th edition 2003, p. 117; In some cases, the permissible legal training that goes beyond the law is also referred to as "extra legem", cf. BGH, NJW 1992, 983.
  87. ↑ BVerfGE 34, 269 , 288 f.
  88. ↑ See the historical examples above.
  89. ↑ See Hans-Joachim Koch , Helmut Rüßmann : Juristische Justification Teaching , 1982, §§ 21–23; In some cases, attempts are being made to redefine the limits of legal training with the proviso of the law, cf. this Roman Herzog : legislators and courts , in: Festschrift for Helmut Simon , 1987, pp 103-112.
  90. ↑ BVerfGE 33, 303  f .; BVerfGE 41, 251 , 260 ff.
  91. ↑ See Section 31 (1) BVerfGG; BVerfGE 96, 260 - Repetition of the norm.