Literary opinion

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As a literature review , the designated law in the scientific literature legal positions. These relate, for example, to the interpretation of vague legal terms , criticize the practical application of law by the courts or contain legal-political demands.

meaning

The so-called jurists 'law is one of the legally recognized influences on legal dogmatics, alongside legislation , case law ( judges' law ) and public opinion . Since the reception of Roman law by pandect studies in the 19th century, legal literature has methodically influenced the understanding of what law is. The scientific literary opinions are part of the legal system .

The peculiarity of a legal literary opinion compared to the scientific discussion, especially in the natural sciences, is that it cannot be proven scientifically. Because jurisprudence is not an exact , but a normative science that does not want to recognize truth, but makes political value decisions. The legal norms adopted in the legislative process are subject to constant change due to changing majorities and the so-called changed legal views .

content

The literary opinion , also referred to as the conception or view of the literature , results - as the largely congruent term of the doctrine also suggests - mainly from what legal scholars or legal practitioners such as judges and lawyers publish in the specialist press. The literary opinion can be read in essays, comments on court decisions , doctoral theses, habilitation theses, textbooks, monographs , commemorative publications , lecture transcripts or comments .

Terminology

In legal jargon , certain formulations and abbreviations are used to indicate how strongly a particular view is supported. Depending on the acceptance in professional circles, a literary opinion can be general , dominant , predominant or a minor opinion . In the course of time, a minor opinion can develop into the dominant or even completely dominant opinion (h. M.). It should not be overlooked that for certain legal questions an “h. M. “can be based on well-organized lobbying such as a so-called citation cartel instead of scientific persuasiveness.

  • By (h. M.) prevailing opinion can thereby correctly only speak when they not only by several well-known authors (not necessarily a majority) in the relevant literature, but also by the competent supreme federal court, such as the Federal Court , the Supreme Court of Justice or the Swiss Federal Supreme Court .
  • On the other hand, one speaks of the prevailing teaching / literature view (h. L.) if the overwhelming number of published literature voices support this view. A corresponding majority is therefore required. The designation h. L. is mainly used to distinguish it from the view of case law and other approaches in the literature. So it is not contradictory if, on the one hand, a prevailing opinion of the higher courts and parts of the literature stands alongside a prevailing view of literature. But it would actually be wrong, given a completely dominant literary conception of “h. M. “to speak if the competent higher court does not agree.
  • Opinions that are seldom represented in the literature are usually referred to as minority opinion or, more neutral, as “minority opinion” as long as and insofar as they have not (so far) found a majority.
  • If a question is still very controversial, one usually speaks only of “one view” (a . A. ) and the “ other view ” ( a. A. ). The unsolved problem is "in dispute" or "in dispute" ( str. ).

Instead of “prevailing view”, the predominant view is often used . Common are also ameliorative attributes such as "view located in progress", or pejorative compositions like "a different view, but not convincing". A neutral comparison, on the other hand, would be "according to a different opinion" or "according to a different opinion".

If, with a few exceptions, only one solution to a question is represented in legal publications, one speaks of the very dominant view . If there have not been any dissenting voices for a long time, one speaks of a unanimous opinion .

The terms “opinion”, “opinion” and “opinion” are (with the above-mentioned restriction to h. M. and h. L.) equal and synonymous.

According to the jurisprudence of the Federal Constitutional Court, a minor opinion represented in academia may not be assessed as "wrong" if it is correctly reproduced by the candidate and consistently applied.

Practical use

Judges in Germany are only on law and right bound. This is determined by the Basic Law for the Federal Republic of Germany (GG) in Articles Art. 20, Paragraph 3 and Art. 97, Paragraph 1. From this position it follows that every judge is fundamentally free to decide within the framework of the law according to his or her own convictions.

Legislation, jurisprudence and scientific discourse mutually influence each other in the process of finding the law, for example courts adopting or expressly rejecting certain literary opinions in their decisions. The legislature, in turn, occasionally takes up judgments from the highest court and adapts its legislation accordingly. A court ruling or an amendment to the law are in turn discussed in the scientific literature.

literature

  • Hans Schumann: Finding the Law and Applying Law , in: Introduction to Law . Wiesbaden 1959, pp. 101-115.
  • Uwe Wesel : hM . In: Kursbuch 56 (1979), pp. 88-109.
  • Thomas Drosdeck: The prevailing opinion - authority as a legal source: functions of a legal argumentative figure , Berlin 1989.
  • Bernadette Tuschak: The prevailing opinion as an indicator of European legal culture. A comparative legal study of sources and producers of prevailing opinion in England and Germany using the example of European law . Publishing house Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-4434-5 .
  • Thomas Fischer : The other view - decline or victory of the rule of law? , Column about the minority opinion in the ZEIT .

Individual evidence

  1. ^ Klaus Adomeit : Legal Theory for Students. UTB , 3rd ed. 1990, p. 12.
  2. ^ Klaus Adomeit: Legal Theory for Students. UTB, 3rd ed. 1990, p. 9.
  3. ↑ BVerfGE 84, 34
  4. ↑ See only income qualification in profit assessment notice without a complaint : "The decision of the tax court deviates from the constant jurisprudence of the BFH and the literary opinion." Haufe.de, accessed on May 17, 2018; Christine Maurer: Handover of the residential unit by way of an injunction? : "The Court of Appeal contradicts the opposite literature opinion (break, property developer purchase and construction models, 5th edition, marginal number 441), according to which ...", accessed on May 17, 2018.
  5. ↑ See, for example, Carten Lange: Amendment of the law on contestation of intent: What will change? , March 29, 2017.
  6. ↑ See, for example, Klaus Ferdinand Gärditz: The constitutional subsistence level in the "Hartz IV" judgment of the Federal Constitutional Court , BJR 2010, pp. 4-11.
  7. ↑ See for example Franz Josef Lindner: The new Bavarian police law. An overview of the »Act on the More Effective Monitoring of Dangerous Persons« , publicus-boorberg 2017/08.