Jan Schapp

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Jan Schapp (* 1940 in Aurich ) is a German legal scholar , legal philosopher and emeritus professor at the Justus Liebig University in Giessen . The focus of Schapp's life's work lies in the development of the basic lines of law, namely in the form of a conception of the claims of civil law in the Roman legal tradition and in the elucidation of the problem of freedom from the constitution against the background of theological and philosophical concepts of freedom.

Life

From 1959, Schapp studied law and philosophy at the Universities of Göttingen and Münster . In 1960 he became a member of the Corps Bremensia Göttingen . In 1964 he passed his first state examination in law. At the University of Bochum doctorate Schapp 1966 at Hermann Luebbe Dr. phil. In 1970 he passed his second state examination in law and then worked as a lawyer before he devoted himself to his legal academic career as Harry Westermann's research assistant . Under Westermann's supervision, Schapp completed his habilitation process at the University of Münster in 1977. He received the Venia legendi for the subjects civil law and legal philosophy. From the winter semester 1978/79 he held the chair for civil law and legal philosophy at the University of Giessen , where he taught and researched until his retirement in 2006.

Jan Schapp is a son of Wilhelm Schapp (1884–1965) and his wife Luise geb. Groeneveld (1912-2016). He is a nephew of Theodor Schapp (1877–1959).

Scientific work

On the relationship between private law and neighboring public law

Schapp goes into the much discussed problem of the relationship between private law and neighboring public law . In both areas of law, the term neighboring law was understood as the protection of a property from the immissions of another property. While in private law a static delimitation concept of the local custom prevails, in public law the planning decision which was related to the spatial development is decisive . The law did not provide standards for delimiting these two decisions. Schapp addresses the relationship between these two decisions. He deals with the conflict of several properties over the permissible use of space in legal theory and in practical application to private and public law.

Schapp makes it clear here that for the same conflict, the competition of decisions with different standards is not compatible with the concept of law, since only one decision can be decisive. He decides in favor of the public law decision, as this can take a more comprehensive view of the conflict. This consequently leads to an upgrading of the legal protection granted under public law ( neighbor protection under public law ). Schapp's two works on subjective law from 1977 and neighboring law from 1978 laid the foundations for environmental protection law, which was in its infancy at the time .

For Schapp, the legal norm or the law is not the last resort to establish subjective rights. Rather, according to Schapp, the law does not justify a claim in an "empty space", but in a structured factual context "economy and personality" in which conflicts arise from conflicting interests, which the law decides. With this, Schapp created a starting point for the discussion and understanding of the phenomenon of " subjective law " that was missing until then, beyond the positive law of the law and yet in the full reality of the lifeworld . According to Schapp, the recognition of the claim as a right does not happen arbitrarily or merely factually by the legislature. It is based on the circumstances of the life situation, but cannot be read from it, but must be carried out through “legal work”, through “finding” the prerequisites, as a conflict solution, i.e. H. as a “just decision”. According to this basic line of law developed by Schapp, the decisive bearer of public law can no longer be the superordinate / subordinate relationship between the state and the citizen, but a legal relationship between the state and the citizen in which both face each other at the same level.

Freedom, morality and law

In his work on subjective law, Schapp presents a collection of property and law that is free from the problem of the metaphysics of freedom. In the 1990s, Schapp then tried to clarify the question of placing a Christian-theologically conceived concept of freedom in relation to a more technical-functional conception of law. To this end, he understands the metaphysics of freedom as an expression of the solution to a human conflict in order to find a connection to the law. This interpretation of metaphysics by Schapp, based on the Christian history of salvation , distinguishes between two concepts of freedom: man is free in the decision to fall away from God, and he is free in the faith in God given to him who overcomes this falling away. One freedom is the problem, the other the solution. It is only in salvation history that these two freedoms can be linked. It is this interpretation of salvation history as a conflict resolution that has not been seen before and that opens up the relationship between the concepts of freedom and morality and law.

Schapp also puts his findings in connection with Western philosophy. According to Schapp, Plato's Dialogue The State is structurally similar to Christian salvation history. Desires and reason face one another as a conflict in the human soul. Desires tend to excess, and it is the task of reason to moderate that excess. In Plato, the bond with God is replaced by the vision of the idea of ​​the good . In this way, Schapp opens up an alternative view of the connection between law, freedom and morality in addition to the Christian doctrine of salvation.

Schapp points out that our constitution cannot be understood without this double concept of freedom. The freedom of fundamental rights must be restricted by the freedom of legislation. The freedom of the basic rights itself is twofold in the aforementioned sense: In the basic right, the individual's discretion is limited by the institution within which this discretion can be exercised. Incidentally, in the sense of the Basic Law, all fundamental rights are freedoms. With the concept of fundamental rights, a majority of freedoms is addressed from the outset. Rights are freedoms.

Methodology of Law

Schapp puts the methodology of law on a new basis. The focus is no longer on the question of the one general criteria for the interpretation of the law, but the relationship between case, law and judicial decision . He understands law and judgment as a decision to resolve conflicts in a presupposed reality of life. This conflict decision is based on the doctrine of entitlement , which it develops as a system of civil law. Schapp thus offers a methodology as a concept for teaching and studying law. At the same time it makes clear features of a future European jurisprudence. He moves methodology to the center of law and jurisprudence.

Schapp's teaching in the tradition of phenomenology

Schapp's teaching is to be understood in connection with phenomenology . Schapp stands in the tradition of his father Wilhelm Schapp , who was a student of Edmund Husserl , the founder of phenomenology. From the perspective of phenomenology, science and philosophy do not start from scratch. Rather, the person who runs it always ties in with an already existing world and thus with an existing body of science and philosophy. He sees his teaching in the context of the judicial case , the law and the judicial decision. For Schapp, phenomenology is the attempt to take “the things themselves” instead of scientistic or ideological prejudices as the starting point for reflection and to find solutions. Against this background, on the one hand, “subjective law” is to be understood, as Schapp analyzes it (see Chapter 2.1.). On the other hand, the conflict view of the term freedom and its discussion against the background of the occidental philosophy of Plato (see chapter 2.2.), The Christian history of salvation and the Enlightenment should be understood in a phenomenological framework; Freedom is therefore “a story that has to be told” ( narrative (social sciences) ). The search for the truth leads to many truths with this method.

Publication of the complete works and estate of Wilhelm Schapp

Jan Schapp has been (co-) editor of the complete works and the philosophical legacy of Wilhelm Schapp since 1976 .

Works

Bibliography up to 2010 in: Patrick Gödicke, Horst Hammen, Wolfgang Schur, Wolf-Dietrich Walker (eds.): Festschrift for Jan Schapp on his seventieth birthday . Mohr Siebeck, Tübingen 2010.

Monographs
  • The Being and Place of Legal Structures - An Inquiry into Property and Contract . Martinus Nijhoff, The Hague 1968 (dissertation).
  • The subjective right in the process of obtaining rights . Duncker & Humblot, Berlin 1977, ISBN 3-428-03849-5 .
  • The relationship between private and public neighboring law . Duncker & Humblot, Berlin 1978, ISBN 3-428-04041-4 (habilitation thesis).
  • Main problems of legal methodology . Mohr Siebeck, Tübingen 1983, ISBN 3-16-644642-7 .
  • Basic questions of legal business theory . Mohr Siebeck, Tübingen 1986, ISBN 3-16-645122-6 .
  • Methodology of civil law . UTB, Stuttgart 1998, ISBN 3-8252-2016-8 .
  • with Wolfgang Schur: Introduction to civil law . 4th edition. Vahlen, Munich 2007, ISBN 978-3-8006-3354-8 .
  • On Freedom and Law - Essays on Legal Philosophy 1992-2007 . Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-155290-8 .
  • Methodology and system of law. Articles 1992-2007. Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150167-8 .
  • with Wolfgang Schur: Property law . 4th edition. Vahlen, Munich 2010, ISBN 978-3-8006-3677-8 .
  • Freedom, morality and law . 2nd Edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155290-8 .
Essays since 2010
  • Entangled in stories - brain research and the philosophy of stories. In: Gießen University Talks and University Sermons of the ESG, XX WS 2010/11. edited by Wolfgang Achtner, u. a. Giessen 2011.
  • The Enthymeme in Legal Methodology. In: The Enthymen To the rhetoric of the juridical founder. (= Legal theory. Volume 42). Issue 4, 2011, pp. 539-552.
  • The case in legal methodology: subsumption, key concept in legal methodology. edited by Gottfried Gabriel and Rolf Gröschner. Tübingen 2012, pp. 227-257.
  • About ethics, freedom and law. In: Ad Legendum . 1/2012, pp. 8-15.
  • Language, law and justice. In: Journal of Legal Philosophy. Issue 1/2013, pp. 60–76.
  • The case - story and narrative. In: Julis Arno u. a. (Ed.): Positivity, Normativity and Institutionality of Law, Festschrift for Werner Krawietz on his 80th birthday. Berlin 2013, pp. 433–446.
  • Nikolaus von Kues and its significance for the present day. In: Wolfgang Achtner u. a. (Ed.): Gießen University Talks and University Sermons of the ESG, XXVII WS 2014/15. Giessen 2015.
  • Real Legal Doctrine - A Key to Understanding Law? In: Horst Hammen (Hrsg.): From an ideal legal philosophy to real legal theory - and where to then? Changes in the legal ontological thinking of Ernst Wolf. Frankfurt am Main 2015, pp. 31–49.
Published works
  • Wilhelm Schapp: Philosophy of Stories. 3rd, revised edition. edited by Karen Joisten and Jan Schapp (with an approach to the philosophy of Karen Joisten's stories and an afterword by the editors). Frankfurt am Main, 2015.
  • Wilhelm Schapp: Works from the estate. edited by Karen Joisten and Jan Schapp. Volumes 1, 2 and 3. On the Path of a Philosophy of Stories, Part I, II and III, edited by Karen Joisten, Jan Schapp and Nicole Thiemer, Freiburg / Munich 2016, 2017, 2018.

literature

  • Patrick Gödicke, Horst Hammen , Wolfgang Schur, Wolf-Dietrich Walker (eds.): Festschrift for Jan Schapp on his seventieth birthday . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150557-7 .
  • Albert Janssen: The endangered statehood in the Federal Republic of Germany. Contributions to the preservation of their constitutional organizational structure. v & r unipress, 2014, ISBN 978-3-8471-0280-9 ; There in particular no. 20: Necessary change in the dogmatics of German constitutional and administrative law in a Europe that is growing together. Reflections on the understanding of the European Community as a legal community. P. 604ff.
  • Albert Janssen: The art of differentiating between law and justice. Studies on a Basic Condition of Finding Law. v & r unipress, 2016, ISBN 978-3-8471-0542-8 .

Web links

See also

Individual evidence

  1. ↑ Kösener Corpslisten 1960, 39 , 1370
  2. ^ Legal dictionary: local custom
  3. ↑ Jan Schapp: The subjective right in the process of obtaining rights. Duncker & Humblot, Berlin 1977, ISBN 3-428-03849-5 .
  4. ^ Jan Schapp: The relationship between private and public neighboring law. Duncker & Humblot, Berlin 1978, ISBN 3-428-04041-4 (habilitation thesis)
  5. ↑ a b c Wilhelm Henke . Book review: Jan Schapp, The subjective right in the process of gaining rights in DVBl, June 1, 1978, p. 417.
  6. ↑ a b Jan Schapp: Methodology of Civil Law. UTB, Stuttgart 1998, ISBN 3-8252-2016-8 .
  7. ↑ a b c d e freedom, morality and law. 2nd Edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155290-8 .
  8. ↑ Methodology and System of Law. Articles 1992-2007 . Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150167-8 .
  9. ^ Wilhelm Schapp: Philosophy of Stories . 3rd revised edition, edited by Karen Joisten and Jan Schapp. Frankfurt on May, 2015.
  10. ^ Wilhelm Schapp: Works from the estate. edited by Karen Joisten and Jan Schapp. Volumes 1, 2 and 3. On the Path of a Philosophy of Stories, Part I, II and III, edited by Karen Joisten , Jan Schapp and Nicole Thiemer, Freiburg / Munich 2016, 2017, 2018.
personal data
SURNAME Schapp, Jan
BRIEF DESCRIPTION German lawyer and university professor
DATE OF BIRTH 1940
PLACE OF BIRTH Aurich