Legal training

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Under legal training one on is statutory interpretation beyond the form of applied jurisprudence refers to the applicable law is created. The courts regularly provide legal training so that the legal term is closely linked to that of judicial law . The judicial legal training stands in the area of ​​tension between legal activism and judicial self-restraint .

Example case of legal training

A popular example of judicial training is the so-called chicken plague case . A vaccine plant was sued there for producing a contaminated vaccine that resulted in the death of the chickens that were vaccinated. A claim for damages could only exist if the vaccine plant could be proven to be at fault with regard to the contamination. According to the legal requirements, the plaintiff would have had to prove his fault, but he was unable to do so. The Federal Court of Justice reversed the burden of proof without a legal basis , i.e. H. the defendant vaccine manufacturer had to prove that he was not at fault.

Application of general clauses

With the legal training, results are found in the decision-making of legal cases that have no direct basis in written law. The case law often invokes general clauses , such as the principle of good faith ( § 242 BGB ), and in this way finds a basis for decision-making for case types that are not specified by law. Often the case law also tries to find the basis for the legal development in other value decisions of the legislature.

The principle of equality as a guide to legal training

Legal training is largely carried out on the basis of the principle of equality ; this, it has been said, is, as it were, the “soul of legal hermeneutics ”. In principle, equal evaluation leads to a generalization at the normative level, and unequal evaluation leads to a differentiation of legal principles. The concrete development of legal terms such as “good faith” and “ good morals ” takes place in comparative steps. Comparative thinking can also be found beyond the interpretation of the law. Roman case law developed through equal evaluation “ad similia procedens” ( Digest 1, 3, 12), in that the solution of a legal problem was transferred to the solution of a case that was to be evaluated equally; Likewise, the Anglo-Saxon common law developed through “reasoning from case to case”. The continental legal law knows a legal development through analogy , thus also through case comparison. The legislature is subject to system-compatible legislation, in which “the principle of equality speaks primarily as a requirement for the consistency of the regulations, measured against the pivotal points of the legal evaluations”. Even the subsumption of problematic cases under the law takes place in fallvergleichendem thinking. "Where legislators and judges decide the questions of equal treatment that are left open for them, they take part in it, ... to further develop the lively legal culture of this community."

See also

literature

  • Hans-Rudolf Horn: Judges versus legislators. Lines of development of judicial constitutional control in different legal systems. In: Yearbook of Public Law of the Present . NF 55, 2007, pp. 275-302.
  • Alfred Schramm: "Judge Law" and Statutory Law. A comparative law analysis based on Merkl's doctrine of legal norms. In: Legal Theory. Journal for logic and legal methodology, legal informatics, communication research, norms and action theory, sociology and philosophy of law. 36, 2005, ISSN  0034-1398 , pp. 185-208.
  • Reiner Schulze , Ulrike Seif (Hrsg.): Judicial law and legal training in the European legal community. Mohr Siebeck, Tübingen 2003, ISBN 3-16-148206-9 .
  • Stephan Pötters, Ralph Christensen: Directive- compliant legal training and wording limit . In: JuristenZeitung . No. 8 , 2011, p. 387-394 .
  • Reinhold Zippelius : Problems of legal training. In: Festschrift for Thomas Würtenberger, Duncker & Humblot, Berlin 2013, ISBN 978-3-428-13918-7 , p. 137 ff.

Individual evidence

  1. ↑ Karl Larenz : Methods of Law , 6., revised. Edition, Berlin / Heidelberg 1991, p. 367 ff.
  2. ↑ BGH , judgment of November 26, 1968, Az. VI ZR 212/66, full text = BGHZ 51, 91 ff. = NJW 1969, 269.
  3. ↑ See Munich Commentary on the BGB / Roth, 5th edition 2007, § 242 BGB, Rn. 27 ff.
  4. ↑ See Karl Larenz: Methods of Law , 6th Edition 1991, p. 367 ff.
  5. ↑ Reinhold Zippelius : Legal methodology , 11th edition, § 12 I b.
  6. ↑ Reinhold Zippelius: Legal Methodology , 11th edition 2012, §§ 11 II; 12 I c.
  7. ↑ Reinhold Zippelius: Philosophy of Law , 6th edition, § 18 II.
  8. ↑ BVerfG , judgment of February 9, 1982, Az. 2 BvL 6/78, 2 BvL 8/79, guiding principle = BVerfGE 60, 16, 40.
  9. ^ Karl Engisch : Introduction to Legal Thought , 11th Edition. Edited by Thomas Würtenberger and Dirk Otto , Stuttgart 2010, p. 105.
  10. ↑ Reinhold Zippelius: Law and Justice in the Open Society , 2nd edition, 1996, p. 327.