The concept of the prevailing opinion becomes significant in jurisprudence when several viable approaches to a solution are offered to a specific question. It describes the view that is held by the majority of lawyers dealing with this problem and is therefore used as the predominant opinion to solve a legal question (→ legal jargon ). It is usually abbreviated as hM or hM . If a solution is almost or completely undisputed, the terms “completely prevailing opinion” ( completely hM ) or “general opinion” ( general ) are often used to clarify .
The term is imprecise insofar as jurisprudence usually differentiates between the legal conceptions of jurisprudence ( case law ) and literary opinions . Since a view contrary to current case law can hardly be enforced in practice, i.e. in court, it cannot be considered the dominant opinion even if it is represented by the majority of lawyers. Under no circumstances can there be a dominant opinion in the event of a different case law of the competent highest federal court (e.g. the Federal Court of Justice ). In this respect, the term is often only used in relation to case law or teaching. It is therefore more precise to only use the term hM if the relevant view is represented by both case law and the vast majority of literature. If, on the other hand, jurisprudence and predominant literature fall apart, one should simply speak of “jurisprudence” or “ permanent jurisprudence ” (st. Rspr.) On the one hand and “prevailing teaching” ( hL ) on the other.
A definition of when an opinion is prevalent cannot, however, be given clearly in argumentative science. For an even more precise distinction, therefore, the prevailing opinion , the partially represented view or another view or the “fresh” opinion that is advancing is cited.
Appeal to prevailing opinion is not always considered a valid argument in scientific texts . As a legitimate rhetorical figure , it is particularly accepted where it is used as an additional , merely supporting argument. It is also widespread practice in scientific literature to use an abbreviated argumentation procedure to refer to a chain of arguments assumed to be known by another author or to the prevailing opinion, without repeating it in great detail. In practice, however , judges often replace their own legal considerations by invoking the authority of the prevailing opinion.
If, however, there is no general dogmatic consensus, from a scientific point of view the mere authority of a “ruling opinion” cannot replace a substantive discussion of the factual arguments of one or other opinions. Such an approach is seen as a “sign of a certain decline in legal culture”, since it makes the “ability to develop one's own thoughts at all” weaken and, ultimately, threatens to “freeze the law”.
- Bernadette Tuschak: The prevailing opinion as an indicator of European legal culture. A comparative legal study of sources of supply and producers of prevailing opinion in England and Germany using the example of European law (= series of publications on uniform international law and comparative law, vol. 8 ). Kovač, Hamburg 2009, ISBN 978-3-8300-4434-5 (also Diss. Univ. Münster (Westf.), 2009).
- Christian Djeffal: The prevailing opinion as an argument - a didactic contribution from a historical and theoretical perspective. In: ZJS 2013, p. 463 ( PDF ; 72 kB).
- End the debate with two letters: “This is hM and cannot be doubted” , Legal Tribune Online , 23 October 2011
- Cf. Arne Pilniok, “hM” is not an argument - considerations on legal arguments for students in the beginning semesters , Juristische Schulung 2009, p. 394 ff., Fn 2.
- Ekkehart Reinelt , Judicial independence and protection of trust , in: ZAP, 2000, p. 969.
- Roman Schnur, The concept of "ruling opinion" , in: Karl Doehring (Hrsg.), Festgabe für Ernst Forsthoff, Munich 1967, p. 46.