Interest jurisprudence

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The interest jurisprudence is a legal methodology of jurisprudence . It developed in the 1920s from the approach that the aim of law must be to resolve conflicts of interest peacefully.

history

The jurisprudence of interests was largely developed by Philipp Heck and Rudolf Müller-Erzbach . It is based on the ethics of Jeremy Bentham and Rudolf von Jhering . Following Jhering, interest jurisprudence understands every legal norm as a decision of the legislature to pacify certain social conflicts of interest . The person who interprets a law has to keep these conflicts in mind, as it were “reconstructing” them in order to correctly capture the decision of the legislature when the norm was issued. According to Heck, the user of the law should recognize the intention with which the legislature preferentially dealt with certain interests or why he ensured a legislative balance if the conflict of interests had to persist. The judge must therefore determine which interests are opposed in the case to be judged and check whether and, if so, how the law has decided this conflict of interests. Since the method of interest jurisprudence, according to Heck's view, is committed to “life research” and “life evaluation”, the judge is able to interpret the law correctly on the basis of the knowledge he has gained and, if necessary, take action. The jurisprudence of interests was taken up by Max Weber in his legal sociology .

Interest jurisprudence can be understood as a further development of Ihering's term jurisprudence . After his original efforts to establish a law that was methodically freed from subjective influences and which was also based on Savigny's legal historical awareness , he finally moved away from defining law through the mere abstraction of terminology. This with the success that in his unfinished work The Purpose in Law (1877/83) he anticipated the first legal-sociological components of law. Franz von Liszt then transferred Heck's fundamental considerations and the still tentative approaches of Jhering to criminal law ( Der Zweckgedanke im Strafrecht 1882).

Content-related meaning

The jurisprudence of interests is based on two central premises : firstly, the judge's commitment to the law, and secondly, the inadequacy and gaps in legal norms (so-called “gap theory”). In order to fill in the identified loopholes in the law, the decisions on conflicts of interest set out in the law are to be used. If there is no relevant norm that decides the conflict of interest to be assessed, the judge is called upon to act creatively . He must base his decision on how the law has weighed the conflicting interests against each other in similar cases. The judge is therefore not required to obey the law to the letter, but rather to obey the law in accordance with his interests. Although this procedure had long been known as a legal analogy, it was given a new methodological justification by tracing it back to the interests of the parties.

In the case of intended loopholes in the law, namely due to judicial discretion on the legal side or indefinite legal terms on the offense side , the judge should decide as he would in the role of the legislator. This request has been standardized , for example, in Art. 1 of the Swiss Civil Code.

In the Third Reich , interest jurisprudence was rejected as too individualistic. The National Socialist legal philosophy criticized the fact that interest jurisprudence placed national and community interests on a level with individual material interests and neglected the unity of community and special interests.

The so-called valuation jurisprudence is based on the jurisprudence of interests : the law is based on an assessment by the legislature. These evaluated interests become the content of legal norms.

literature

Web links

Individual evidence

  1. ↑ Helmut Coing : Legal Philosophy , pp. 136, 48 f.
  2. ↑ Philipp Heck : Legislative Interpretation and Jurisprudence of Interests , AcP 112 (1914), 1 ff.
  3. ↑ Philipp Heck: Concept formation and interest jurisprudence. 1932. p. 17 ( "Primacy of life research and life evaluation." )
  4. ↑ Jens Petersen : Max Weber's legal sociology and legal methodology . 3rd edition, Mohr Siebeck 2020. ISBN 978-3-16-159120-4 . P. 4 f.
  5. ^ Heinrich Schoppmeyer : Legal method as a life's work: Life, work and history of Philipp Heck's impact. Dissertation, 2001. p. 162.
  6. ↑ Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Marg. 293.
  7. ↑ Art. 1 ZGB, accessed on July 17, 2018.
  8. ^ Karl Larenz : Legal and State Philosophy , p. 23.