Legal dogmatics

The legal doctrine is concerned with the applicable law ( lex lata ) . It is part of law . The legal history , which deals with no longer applicable law, and legal policy , which deals with future law ( lex ferenda ), must be distinguished from it .

Legal dogmatics examines the applicable legal norms ( exegetical jurisprudence ) and develops recognized legal principles ( dogmas ) based on the prevailing legal conceptions . It thus serves to ensure legal certainty and the predictability of court decisions by determining the possibilities and limits of new legal constructions for solving legal problems. Unlike in theology , dogmas in jurisprudence do not form apodictic (irrefutable) tenets. Rather, they remain in constant discussion and limit the term to legal clauses of high dignity (worthiness), such as legal principles. In addition to the knowledge gained from jurisprudence about the legal system, the “applicable law” today consists to a large extent of the legal principles developed by jurisprudence ( judicial law ).

Continental European legal family

The continental European legal system is predominantly shaped by Roman law . He uses legal dogmatics methodically, primarily through the interpretation of laws. For the purposeful functioning of legal dogmatics, a legal methodology and a related, because dogmatically trained legal profession are required . This ensures that the legally prescribed values and assessments are applied within the framework of appropriately structured procedural rules. The advantage of this approach is that the basic valuation questions do not need to be discussed in individual cases. Sometimes it is identified in this that the lawyer applying has a relieving function. Legal dogmatics is limited by the self-commitment to the logical requirements of the conceptual theory. It submits to a uniform use of system-immanent terminology.

Finding the right law is exposed to certain overly positive influences, such as morality ( natural law ) as well as political and economic interests, which do not permit a single, objectively “correct” solution. This has the legal positivism , especially Hans Kelsen with its theory of the Pure Theory of Law in Methodenstreit the Weimar constitutional theory tries to correct.

The legal opinion that is predominantly represented by the federal courts as valid and binding is called the prevailing opinion (h. M.).

Scandinavian and Anglo-American legal family

The case law of the Scandinavian and Anglo-Saxon-American legal circles chooses a different methodological approach . The influence of Roman law is small, general principles and scholarly language are avoided. Here, legal decisions arise on the basis of a judicial decision of specific cases, taking into account previous comparable precedents .

literature

Wolfgang Fikentscher : Methods of law in a comparative presentation . Volume 1–5, Mohr Siebeck, Tübingen 1975–1977.
Fritz von Hippel : legal theory and legal dogmatics. Frankfurt am Main 1964.
Jan C. Schuhr : Legal dogmatics as a science. Legal Theories and Models Writings on Legal Theory (RT), Volume 230, Berlin 2006, ISBN 978-3-428-12079-6 .

Web links

Ingo Schulz-Schaeffer: Legal dogmatics as an object of legal sociology: for a legal sociology “with even more law.” In: Zeitschrift für Rechtsssoziologie 25 (2004), 2, pp. 141–174
Horst Dreier: Reception and role of the pure legal theory. Ceremony on the occasion of the 70th birthday of Robert Walter Vienna, 2001

Individual evidence

^ Carl Creifelds: Legal dictionary . 21st edition 2014, ISBN 978-3-406-63871-8 .
↑ Dieter de Lazzer : Legal dogmatics as a compromise form , in: Dogmatik und Methode, Josef Esser for his 65th birthday , 1975, pp. 85 ff. (87); Franz Wieacker : Privatrechtsgeschichte der Neuzeit , 2nd edition 1967, p. 54: Wieacker formulates: “Fundamental sentences determined in advance by an authority”.
↑ Bernd Rüthers : Legal dogmatics and legal policy under the influence of judicial law, Institute for Legal Policy at the University of Trier , lecture, June 30, 2003
↑ ^a ^b Uwe Diederichsen : On the way to legal dogmatics . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 65-77 (66 and 72).
↑ Claus-Wilhelm Canaris : System Thinking and System Concept in Jurisprudence , developed using the example of German private law, Berlin 1969, 2nd, revised edition 1983, p. 83; Josef Esser : Pre-understanding and choice of method in legal finding , Athenäum-Verlag 1970, p. 88 f .; Winfried Brohm : The Dogmatics of Administrative Law , publications of the Association of German Constitutional Law Teachers 30, 1972, p. 245 fmwN
↑ For example Otto Bachof : Die Dogmatik des Verwaltungsrechts , publications of the Association of German Constitutional Law Teachers 30, 1972, p. 193 ff. (198).
^ Ota Weinberger : Reine Rechtslehre: Pro and Contra 1981

[1] Carl Creifelds: Legal dictionary . 21st edition 2014, ISBN 978-3-406-63871-8 .

[2] Dieter de Lazzer : Legal dogmatics as a compromise form , in: Dogmatik und Methode, Josef Esser for his 65th birthday , 1975, pp. 85 ff. (87); Franz Wieacker : Privatrechtsgeschichte der Neuzeit , 2nd edition 1967, p. 54: Wieacker formulates: “Fundamental sentences determined in advance by an authority”.

[3] Bernd Rüthers : Legal dogmatics and legal policy under the influence of judicial law, Institute for Legal Policy at the University of Trier , lecture, June 30, 2003

[Diederichsen-4] Uwe Diederichsen : On the way to legal dogmatics . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 65-77 (66 and 72).

[5] Claus-Wilhelm Canaris : System Thinking and System Concept in Jurisprudence , developed using the example of German private law, Berlin 1969, 2nd, revised edition 1983, p. 83; Josef Esser : Pre-understanding and choice of method in legal finding , Athenäum-Verlag 1970, p. 88 f .; Winfried Brohm : The Dogmatics of Administrative Law , publications of the Association of German Constitutional Law Teachers 30, 1972, p. 245 fmwN

[6] For example Otto Bachof : Die Dogmatik des Verwaltungsrechts , publications of the Association of German Constitutional Law Teachers 30, 1972, p. 193 ff. (198).

[7] Ota Weinberger : Reine Rechtslehre: Pro and Contra 1981