Appraisal style

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In Germany, an expert opinion style is the representation of the legal solution to conceived facts in the form of judicial syllogism . The text genre of the expert opinion plays a dominant role in legal university teaching , in the trainee exam and in the assessor exam .

Method of judicial syllogism

At the outset, the right to answer question posed and in the following by reference to the relevant legal standards by way of subsumption answered. The major sentence is not formulated as a question but as a statement . The most widespread use of the potential is for this purpose , although the indicative with conditional structure is sometimes propagated in the literature .

Example: A major sentence is formed: "If A cut B a cut, he could have committed bodily harm in accordance with Section 223 (1) of the Criminal Code ."

Then the prerequisites are established: "For this A would have to have physically abused B or damaged his health."

It then defines "Physical abuse is evil, inappropriate treatment that has more than just negligible adverse effects on physical wellbeing or physical integrity."

Then it is subsumed, that is, the case is brought under the definition “Here A cut B a cut. As a result, he has impaired physical integrity. "

Then follows the result "Therefore A has committed bodily harm."

The length of the discussion depends on whether and to what extent the subsumption of the individual facts is problematic or not. A successful report is also characterized by an appropriate weighting of the discussions. This means that reports can also be presented in a linguistically appealing manner. That means: problematic long in expert opinion style, unproblematic short in judgment style .

In the practice of jurisprudence and administration, the style of judgment used for decisions and notifications stands in sharp contrast to the expert opinion style. Here a result is put in front and only then systematically justified. In the example: “A has committed bodily harm because he cut B a wound and therefore damaged his physical integrity.” The style of judgment can be recognized by words like because or because. As a rule, student drafts are to be written in an expert report.

history

Relational technique of the imperial courts

The very name of the expert opinion style indicates the situation on which the expert opinion style goes back: the reporting in a collegial court . The university report, which has been taught to the present day, is, for didactic reasons, a version reduced by procedural and legal evidence issues. Since the full procedural appreciation of the practical training is reserved within the framework of the legal clerkship, the facts are always fixed within the framework of the scientific training.

The historical root of the expert opinion style is assumed to be in the relational technique of the Reich Chamber of Commerce and the Reichshofrat . One or two judges, as speakers, had to submit a report to the respective panel that had the following content:

  1. species facti, d. H. a report following the classic rhetoric and
  2. an expert opinion with the following structure - in principle still valid today:
    1. quae sit actio? ,
    2. at sit fundata? (Conclusiveness),
    3. an sit probata? (Proof),
    4. an sit exceptione elisa? (Defense).

After this method had initially developed into an internal court standard, it was soon adopted outside of it. Starting in 1570, the court asked future members of the bank of scholars to practice relations, an example that many other courts soon followed. The published reports of the court as well as numerous instruction books from the 16th century show that these reports still lacked the logical rigor and that they were suitable for numerous scholastic elements, such as the listing of dubia, rationes dubitandi et decidendi and conclusum .

Auscultature and legal clerkship in Prussia in the 18th century

The transition to modern relational technology and especially the detachment of the expert opinion for university use cannot yet be clearly documented in legal history, but the prominent role played by Prussian legal training since the early 18th century can be considered an important factor. The practical training was in two stages and consisted of auscultation and legal clerkship and soon became a prerequisite for admission to every legal profession. The training consisted of civil and criminal law relations exercises; from 1755, trial relations were part of the examination in the second and third state exams. The content and structure of these relations have been based on the General Court Rules since 1781, following the example of the Reich Chamber Court .

Based on the specifications of the appellate courts of Naumburg and Frankfurt an der Oder from 1852 as well as the standard textbook by Daubenspeck (report, vote and judgment) from 1884, it can be proven that the same claims were made on these relations in the expert section as to today's expert reports, ie

  1. comprehensive legal assessment of all relevant legal issues,
  2. comprehensive evaluation of the scientific literature,
  3. Digressions that do not promote the matter are to be avoided.

University case solution in the 19th and 20th centuries

The survey of the solution of cases in the form of an expert opinion as almost the only university examination performance in Germany is a product of the 19th and 20th centuries. If the case solution was actually considered unscientific, it was introduced as a didactic tool in the Prussian timetable from 1788; from 1869 academic exercises were given at all Prussian universities , the attendance of which was compulsory from 1897 for admission to the first exam. The content was initially relatively free. There were still theoretical exercises in the exams as well. As early as 1886, Liszt recommended the case solution as an exam. Since the end of the 19th century, the solution of cases has increasingly found its way into the examination tasks of the state examination offices and thus also influenced the examination practice of the universities. Its undisputed dominance in university examination practice, which continues to this day, was only revealed by the report after the Second World War .

International comparison

The expert opinion style is unique in German legal training. There it is usually neither reflected on historically nor philosophically accepted as “of downright a priori evidence” and, especially in the first semesters, it is taught as “professional art” in exercises and an unmanageable market of educational literature. In contrast, the practical case solution usually plays a secondary or even completely subordinate role in the university education of almost all countries. In France, for example, the commentaire d'arrêt , i.e. H. the judgment annotation, compared to the practical case solution in the form of the cas pratique in travaux dirigés and examination, is far more common. Even the cas pratique in no way corresponds to the - from the French point of view, inelegant - solution in judicial syllogism. American law schools, too, occasionally call for the solution of hypotheticals, i.e. made up cases. However, the required system is very free and does not even come close to the intellectual rigor of the expert opinion; Most closely related to it is the solution in the IRAC formula ( issue, rule, analysis, conclusion ), which is also used in practice .

literature

Web links

Individual evidence

  1. ↑ Volker Mayer, Petra Oesterwinter: The BGB-Klausur, a writing workshop . 2nd Edition. Nomos, Baden-Baden 2018, ISBN 978-3-8487-4333-9 , pp. 30th f. (differentiating and easy to understand) .
  2. ^ A b c d e f Carl-Friedrich Stuckenberg: The legal expert opinion style as a Cartesian method . In: Georg Freund , Uwe Murmann , René Bloy and Walter Perron (eds.): Fundamentals and dogmatics of the entire criminal justice system. FS for Wolfgang Frisch . Duncker & Humblot, Berlin 2013, p. 168-177 .
  3. ↑ Carl-Friedrich Stuckenberg: The legal expert opinion style as a Cartesian method . In: Georg Freund , Uwe Murmann , René Bloy and Walter Perron (eds.): Fundamentals and dogmatics of the entire criminal justice system. FS for Wolfgang Frisch . Duncker & Humblot, Berlin 2013, p. 168 .
  4. ↑ Carl-Friedrich Stuckenberg: The legal expert opinion style as a Cartesian method . In: Georg Freund , Uwe Murmann , René Bloy and Walter Perron (eds.): Fundamentals and dogmatics of the entire criminal justice system. FS for Wolfgang Frisch . Duncker & Humblot, Berlin 2013, p. 164-167 .