Legal philosophy

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The philosophy of law is a branch of the philosophy and basic discipline of jurisprudence , which deals with the constitutive questions of law . Questions of legal philosophy are, for example:

  • What is right
  • What is the relationship between “ justice ” and “law”?
  • How do legal norms relate to other social norms , especially morality ?
  • What (material) content should the right have?
  • How do (formally) legal norms arise ?
  • What is the reason for the validity of the law ? (Liability)
  • What is the relationship between “ sense of right ” and “right”?

At least some of these questions - in particular the connection between law and morality, the general structure of legal norms and the legally binding nature  - arises in addition to the legal philosophy as well as the so-called legal theory , which has been known since the middle of the 19th century, initially under the name of “general legal theory “(In English: [ analytical ] jurisprudence ), as a discipline independent of the philosophy of law. The exact relationship between legal philosophy and legal theory is controversial in detail.

The article introduces the legal philosophy of the western legal system (European legal systems , Anglo-American law ). Other legal circles are not taken into account (see in particular the article on Islamic and Chinese law ).

Subject matter and delimitation

The philosophy of law applies the knowledge and methods of general philosophy, in particular the theory of science , logic , but also linguistics and semiotics to law and jurisprudence. A recent example is the application of discourse theory to legal argumentation by Jürgen Habermas and Robert Alexy . For some time now there has also been talk of legal theory , the relationship between which and legal philosophy is difficult to define.

The subject of legal philosophy is neither the application of law itself, i.e. legal methodology , nor the study of the social practice of law ( i.e. legal sociology ). The legal history (ie, its "Evolution") examines the evolution of the law from a historical perspective. The legal doctrine other hand, describes the structure and elements of the currently applicable positive law.

Rather, the central themes of legal philosophy are:

  • The concept of law ,
  • the importance of law for society,
  • the substantive criticism of the law (finding the "right law" in the sense of Rudolf Stammler ),
  • whether and under what conditions legal norms are binding ( validity of the law),
  • what consequences are linked to the binding nature or the non-binding nature of legal norms.

In particular, arguments and considerations from other areas and fundamental legal subjects are always included in the discussions on the legal term. A sharp distinction to the rest of philosophy or to the law or social sciences is therefore not possible.

A sub-area of ​​both legal philosophy and political science is state theory (also: state philosophy, political philosophy). The philosophy of law goes further than the philosophy of the state because it, especially as a legal theory, examines law itself in general, not only in its relation to the state. On the other hand, every legal philosophy and every legal theory is always based on certain basic assumptions about the state (e.g. the form of the state , the government or the legislative procedure ) that have an effect on the validity and function of the law. The law has a completely different function in a totalitarian state than in a democratic state , and it comes into being formally and materially in completely different ways.

Basic directions in legal philosophy

Natural law

Thinking about natural law has existed in different ways across the centuries. It has gained particular importance since the beginning of the Age of Enlightenment .

An argument based on natural law is always backed up empirically. The basis is a social anthropology that makes statements about “the essence of man”. This image of man can either be optimistic ( John Locke in: “Two Treatises on Government” , German: “Two treatises on government” , Jean-Jacques Rousseau in: “Du contrat social” , German: “ From the social contract ” [ “ Man is born free… ” ]) or pessimistic ( Thomas Hobbes , Charles de Montesquieu ). In any case, in the natural law of the Enlightenment it is not willed by God or equal to God, but is reasonably recognized.

  • In the first case one will - optimistically - start out from people who are thought of as free and equal and look for a reason for how this "natural" state can be consolidated and secured. Rousseau saw the validity of all state order and the validity of the law in the “common will” , which was to be distinguished from the will of the majority of citizens. In this conception, the law supports freedom in the service of the common good against the arbitrariness of the state. Citizens sign a social contract to secure their innate, “natural” freedom. The turning away from the form of rule of absolutism is then consistent.
  • In the second case the person is seen - pessimistically - as hostile to his own kind. He naturally harms other people. Therefore, he must be protected from them. From this point of view, the state and the law serve to secure the living conditions in society by preventively limiting the freedom of evil people, namely - as before - in the service of the general public, but in this case for the repression of the individual, because only in this way his freedom could be secured. This way of thinking is therefore not devoid of a certain paradox , which is inevitable in view of the premises . It is a basic form of conservative thinking.

The reason for the legitimacy of state power and thus for the validity of the law established by the organs of this state, and furthermore for all state action, follows directly from social anthropology. The law applies because the conditions of society and human nature so require. A normative ought is derived from empirical being .

This basic structure of natural law thinking has essentially been preserved over the centuries. The images of people on which they are based are variable. In addition to optimistic and pessimistic perspectives, there are also mixed forms in which both traits are combined with one another (as with Jean-Jacques Rousseau ).

Other important representatives of this direction are Christian Thomasius , Christian Wolff and Samuel von Pufendorf . From a Marxist point of view, Ernst Bloch has opposed the view of natural law and human dignity in particular against the view that man is "free and equal from birth ... There are no innate rights, they are all acquired or have to be acquired in battle."

Natural law appears in different forms over time. After the Second World War there was a renaissance of natural law, on the one hand in the form of Radbruch's formula , on the other hand in the case law of the Federal Court of Justice on family law. In BGHZ 11, 65, the court justifies a rather strongly conservative family image, which is attributed to the “natural” differences between men and women, which “must be strictly expressed in all law”.

Kant

Immanuel Kant's philosophy of law, presented in his late work Metaphysik der Sitten (1797), differs from the natural law approaches of the Enlightenment insofar as he does not derive any conclusions from the social anthropology - also developed by him - for the content and validity of law.

Just as for David Hume, there is also a categorical difference between "being and ought" for Kant, which is why no legal or moral commandments (i.e. no ought ) can follow from the empirically given nature of man (his being ) (cf.: Hume's Law ) . This is the difference to natural law . Rather, the right can be recognized from (practical) reason. In his legal philosophy, empiricism and metaphysics are therefore strictly separated from one another.

What Kant has in common with natural law is the rejection of (political, physical) power as a ground for the validity of law. For Kant, the law has no accidental or - in this sense - political content (but so does legal realism ). Not every right is legitimate, it must have a specific content. This content can only be determined epistemologically in accordance with the categorical imperative of law ( Otfried Höffe ).

The law is a system of rational order of freedom or, as Kant says, "the epitome of the conditions under which the arbitrariness of one can be combined with the arbitrariness of the other according to a general law of freedom." The freedom of action guaranteed by law So in relation to one another: the freedoms of each find their limits in the freedoms of others. In addition to the formal limitations of freedom described by Kant, a reasonable order of freedom also has material components, namely an appropriate distribution of real development opportunities, especially educational opportunities. So, says Fichte , who himself was the son of a bandmaker, everyone should be given the chance to acquire something through personal achievement, and it should “only be up to them if someone lives more unpleasant”.

Moral judgments are judgments of conscience. On the basis of this, one can understand the sense of right as a rational, generalizable judgment of the conscience about what is right.

Hegel

Georg Wilhelm Friedrich Hegel in his "Philosophy of Law" sets the idea of ​​freedom with the concept of "objective spirit" in a holistic way and means the realization of free will in the area of ​​the social ( basic lines of the philosophy of law ). Hegel's legal doctrine of mutual recognition as an autonomous subject is taken up in different ways by a number of today's legal philosophers ( Norbert Hoerster , Günther Jakobs , Kurt Seelmann and others). Hegel's interpretation of the law belongs to the traditions of the powerful idea of ​​the rule of law .

Broken wheel

Gustav Radbruch's "Philosophy of Law" (from 1932) is the model for the subject of legal philosophy, as it is taught in the context of German jurisprudence within a democratic constitutional system.

Radbruch's legal philosophy stems first of all from neo-Kantianism, which assumes that there is a categorical gap between what is and what should be. As a result, values ​​cannot be recognized, one can only acknowledge them. But Radbruch also advocates a methodical centrism. In addition to the empirical sciences of nature and the idealistic value doctrines, the cultural sciences are added, to which law belongs. Legal philosophy is a form of cultural philosophy .

For Radbruch, the idea of ​​law forms justice . This includes equality , expediency and legal certainty .

Radbruch's famous formula reads: “The conflict between justice and legal certainty should be resolved in such a way that positive law takes precedence even if its content is unfair and inexpedient. Unless the contradiction to justice has reached such an unbearable level that the law as “incorrect law” has to give way to justice. ”The“ ethical minimum ”of law is also mentioned.

Legal positivism

Legal positivism is the positivistic confrontation with the law. According to this view, only the positively posited norms are regarded as an object , but not metaphysically based ought. There is no right outside the law set by state (or other) organs. Legal norms thus arise in a certain procedure. Legal positivism is thus diametrically opposed to natural law , although this does not necessarily mean a " tertium non datur ".

Known representatives of legal positivism are Jeremy Bentham , John Austin , HLA Hart ( "The Concept of Law" , "The concept of law" ), Joseph Raz , Norbert Hoerster and Hans Kelsen ( " Pure Theory of Law " ).

According to Hart, there are two types of legal norms: primary, which contain the actual substantive law, and secondary, which regulate how primary norms are to be set. Primary standards are only valid to the extent that they have been set in accordance with the secondary standards. This creates the problem of the reason for the validity of the secondary norms. There is a recourse to the justifying norms. Hans Kelsen solves the question of the ultimate reason for validity with the so-called basic norm .

Legal positivism has recently been exposed to not inconsiderable criticism. It is particularly prevalent in the Anglo-Saxon region. Shortly after the Second World War, Gustav Radbruch , a Neo-Kantian, had blamed positivism for the crimes of the National Socialists (Radbruch's formula; against this: HLA Hart, Positivism and the Separation of Law and Morals , 71 Harvard Law Review 593 [1958 ]), was also the constitution is not of a purely positivistic right term of (rejection of the legal positivism ). Jurisdiction and administration have accordingly in Art. 20 para. 3 GG "law and justice" bound, not only by the law. Since the 1970s, have especially in America Ronald Dworkin ( "Taking Rights Seriously" , dt .: "civil rights taken seriously" ) and in Germany Robert Alexy ( "concept and validity of law" ) against pure (applicable laws) positivist approaches eloquently and took the view that in addition to "rules" there are also "rights" that citizens can invoke against the state, also to justify resistance to state law. In part, however, this argues past the statements of legal positivism , since most positivist theories only make an epistemological claim, but do not want to answer the question of the “ right law ”.

Legal realism

As Legal Realism is called a view that sees the law as a means of exercising political power. The law is therefore necessarily positively set and - depending on expediency - changeable. The goal is not justice or “correctness”, but solely the suitability of the law to bring about a specific (political) goal.

Typical representatives of this direction are Niccolò Machiavelli ( "The Prince" ) and Thomas Hobbes ( " The Leviathan " ), both of whom assume a pessimistic view of man.

  • The phrase “Auctoritas, non veritas facit legem” (authority, not truth, creates law) comes from Hobbes's work . The - absolutist - state must unite all power in order to protect people in the community from themselves: " Homo homini lupus est" (man is man's wolf). Only the state determines which law should apply. There can be no other right besides positive law.
  • Man is bad. Therefore, according to Machiavelli, the law must - and may - be cunning and ruthless in order to secure the prince's power.

A more recent position is that of the American constitutional judge Oliver Wendell Holmes, jr. , who in the essay The Path of the Law starts out from the bad person who is less interested in what the content of the law is than in how the court would decide the legal questions in question in the event of a dispute. This is consistent with his legal term: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” (“The assessments of what the courts will actually do, and nothing else, denote me as 'right'. ")

It is typical that Holmes expressly does not consider his point of view to be cynical, but rather realistic. The law is arbitrary, it differs depending on which state you are in. Therefore, one can only focus on legal practice to determine the legal term .

In addition to legal positivism, this view is a mainstream of Anglo-Saxon legal philosophy ( legal realism ).

Current directions in legal theory

Based on legal positivism and analytical philosophy , an independent, interdisciplinary legal theory has recently developed that is so diverse that it cannot be reduced to a common denominator. What all legal theoretical approaches have in common is that they fundamentally discuss and examine the law as an independent system of norms that have been set in a certain way and that are detached from social conditions. Discourse theory and systems theory of law are therefore also included here (see below).

The starting point is dealing with norms and their interpretation using the means of language philosophy and semantics or semiotics . This opens up access to law through epistemology and formal logic . In their “Legal Justification Doctrine”, Hans-Joachim Koch and Helmut Rüßmann developed legal theoretical approaches for legal methodology.

While legal philosophy primarily poses the question of justice, legal theory is not concerned with questions of the correctness of the content of law. This cannot be recognized (according to legal positivism). Only the logical structure of legal concepts and legal propositions and their axiomatic derivability and systematic order can be scientifically researched . Mention should be made of Jürgen Rödig , Eike von Savigny , Norbert Hoerster , Jan Schapp and Robert Alexy . From this also is law doctrine emerged.

Deviating from this, according to Schapp, the law does not establish a legal 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 creates 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 state and citizen, but a legal relationship of the fundamental equality between state and citizen.

This does not mean that the subject is fixed once and for all. Rather, it is open to new developments and can, for example, also take up approaches from the natural sciences or medicine, insofar as they are of importance for the law.

Discourse Theory of Law

The discourse theory of law is a more recent approach that builds on the general discourse theory that was developed by Jürgen Habermas in his “Theory of Communicative Action” and further expanded in “Facticity and Validity”, especially with a view to the law.

The core of discourse theory is the so-called “ideal speech situation” , in which all those involved communicate with each other in an exclusively factually oriented and equal manner in order to achieve a common result that is shared by all and that “applies” to all equally because it is in one A certain procedure - the discourse - has been developed, in which nobody was disadvantaged and in which only objective arguments counted.

The validity of the law therefore lies in the consensus of those involved based on a discourse.

Discourse theory is a theory of the validity of social norms that was specially designed for modern, pluralistic societies in which there are no longer any material models that are binding for all cases, but rather all those affected have to discuss which solution should apply on a case-by-case basis.

This approach cannot simply be transferred to the law. The judicial procedure is just as little as an out-of-court dispute, which is settled by an amicable agreement, a so-called “settlement” between the parties involved, an “ideal speech situation” in the sense of discourse theory. There are other problems for legislation.

Robert Alexy therefore restricts the requirements for legal discourse in his “Theory of Legal Argumentation” to the effect that a legal decision must in any case be factually and correctly justified. But he, too, at least demands that not only the legislation but also a judicial decision be made as a - pluralistic - discourse.

Law as an autopoietic system

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Another new direction in legal theory is the conception of law as an "autopoietic system" ( systems theory of law ), which is based on the general sociological systems theory of Niklas Luhmann . Luhmann developed it in his work “The Law of Society” . It is a genuinely legal sociological theory, which in turn shows the close connection between legal theory and the neighboring basic subjects.

Luhmann's sociological view of law “as a system” initially ignores the actual actors (those affected, legal scholars, lawyers, judges) as carriers of actions. His theory leads to a high level of abstraction that maintains a certain distance from the everyday view of legal practice. Rather, the system in this sense only includes “communication” between the subjects. To this end, Luhmann is one of the "System Law" binary distinction between "lawful" vs. "Not lawful".

After its creation, the system (that is, the communication between the actors involved) constantly reproduces itself . The system sustains and reinvents itself constantly. Legal norms are set and applied, they are valid or not, they are changed, judgments are announced, administrative acts are issued. This process - a further abstraction - has been referred to as constant "autocatalysis" or as the autopoiesis of law.

Luhmann uses both conceptually and conceptually on cybernetic models, which had previously been used to describe biological systems , among other things , and which were primarily used for the abstract description of " life ", of the steady state in metabolism or in ecological models . Already the view of the automatic and self-referential (“self-referential”) reproduction of “life” - and thus only indirectly: of the individual “living beings” - fades out the individual and focuses attention on the “communication” between the living beings or the river and the Recombination of chemical substances.

Therefore, a frequently mentioned point of criticism is that such a picture must necessarily be incomplete. The system-theoretical legal theory easily reduces the law to an end in itself by ignoring the individual affected / actor / legal practitioner. Relevant norms such as the principle of human dignity contain not only abstract principles, but values ​​that have to prove themselves in practice and in individual cases, i.e. for the benefit of the individual. This problem becomes clear, for example, when examining fundamental rights.

Theories of justice

Over the centuries, there have been very different approaches to the fairness of legal regulations, court decisions or administrative decisions.

The distinction between iustitia commutativa and iustitia distributiva goes back to Aristotle ( Nicomachean Ethics , Book V) :

  • The iustitia commutativa focuses on situations of equality between legal subjects, typically in private law , in contracts , but also in the case of offenses or unjust enrichment . What is required are contractual fairness in the sense of mutual compliance with contracts ( " pacta sunt servanda " ), the equivalence of the services to be exchanged or the appropriate compensation for damage between legal entities of equal rank.
  • The iustitia distributiva, on the other hand, focuses on situations of superiority and subordination, which are typical for public law , i.e. for the relationship between citizen and state. The distribution of goods and burdens in the community should meet certain solidarity justice requirements. Practical problems are, for example, the burden on citizens and companies with taxes and other public charges according to performance - and how this should be measured in individual cases. These are all problems of the general principle of equality .

The procedural justice is to be mentioned here. The judicial decision should be “fair”; it should “do justice” to the interests and situation of those involved. The state may only pursue permissible goals and use only permissible means. This applies not only to the public sector, but also in other areas where private individuals - even only factual - exercise power over other private individuals. In current law, this aspect is referred to as proportionality .

In recent times, the theory of justice ( A Theory of Justice ) by John Rawls has attracted attention, who - in contrast to the utilitarianism prevailing in the Anglo-Saxon world - regards justice as fairness .

His starting point is a purely hypothetical original position ("original position") in which there is complete equality between people. In this state the articles of association are concluded. Aspects that are constitutive for inequality remain invisible behind a “veil of ignorance”.

Rawls formulates two principles of justice:

  • Everyone must have as many civil rights and freedoms as possible. This principle applies absolutely, it must never be violated.
  • Any social and economic inequality is only justified if it benefits everyone. The yardstick here is not the utilitarian "greatest happiness of the greatest number", but the well-being of every member of society. Social inequality must be able to justify itself especially to the weakest. It must not harm them. The privilege of individuals is only fair if it also benefits the weakest and promotes their welfare. Equal access for all citizens to socially privileged positions is therefore essential.

Critical Rationalism

Karl Popper initially developed the method of critical rationalism on the basis of scientific questions, but did not limit it to these. While according to the traditional view theories are developed inductively, Popper denied that this was possible. General scientific theories arise through " trial and error " from hypotheses: namely from preliminary (experimental) assumptions that are to be subjected to critical examination. If they were found to be false ("falsified"), they would have to be changed or abandoned entirely. You can tell whether a theory is correct not by “verifying” it, but by critically examining it. One learns something new when one recognizes errors in previous assumptions. In this way it becomes possible to improve the original theories - in order to then test them again against reality.

For the interpretation of the constitution, Bernhard Schlink has proposed that this approach be adopted in law. By way of a critical “ trial and error ”, theories about the meaning of the law should be derived from the standard and premises that should be tested should be derived from the theories. The method is particularly suitable for the interpretation of general clauses and fundamental rights , which are only vaguely described in the standard text.

Going much further, Reinhold Zippelius is of the opinion that many advances in law, in particular the knowledge of justice and legal thinking, are carried out according to the method of critical rationalism, that is, experimenting through “trial and error”: According to him, even the history of ideas has Justice develops in this way, in a falsifying way forward: For specific situations, fair decisions are often to be found in lively learning processes through "trial and error". Here, the legal development often proceeds step by step in comparative considerations. In this way, in particular, the ancient Roman and Anglo-Saxon case law developed from reality in rationally structured considerations, ad similia procedens (Digest, 1, 3, 12). In legislation, too, one learns by experimenting. In the legal training , the jurisprudence feels its way step by step towards fair, “correct” solutions to legal questions: For example, the concrete development of legal terms such as “good faith” and “good morals” (as recorded in jurisprudence comments) is largely by comparing cases . The conclusion by analogy follows the same recital . And even the subordination of concrete facts to legal terms is carried out in a comparative case.

According to Zippelius, the “key concepts” to be presented elsewhere are important rational instruments of experimental thinking . For all the steps of experimental legal development and application of the law mentioned, traditional law and the zeitgeist would provide the horizon of understanding. Here, too, the law has its ultimate basis of legitimacy in reason-based, law-related conscience (in the so-called “ sense of right ”). Even if only a majority consensus can often be established in this way, in the course of legal history, notions of justice capable of supporting the majority could have developed into tradition and become part of the culture.

The goal of such experimental thinking is not to find “eternal truths”, but - according to the pragmatic approach represented here - to find temporarily the best solutions to problems.

Economic analysis of law

Under the name “Economic Analysis of Law” or “Economic Theory of Law”, a new direction in legal theory has established itself, which is particularly widespread in the USA. It is known there under the name "Law and Economics". Its object is the application of economic theory to law. In the last 10-15 years in particular, the number of publications on this subject in German has increased significantly, particularly in business law.

The theory was founded by the American economists Ronald Coase ( "The Problem of Social Costs" , Journal of Law and Economics 3 [1960], p. 1 ff) and Richard Posner ( "Economic Analysis of Law" , 1973, 1st ed. , Boston: Little Brown).

According to this, legal decisions - analogous to economic decisions - are subjected to a rational cost-benefit calculation . At the center of the theory is the purely rational acting Homo oeconomicus , who optimizes his utility on the basis of a consistent set of preferences of which he is aware. To this end, he has a more or less comprehensive knowledge of the circumstances under which he makes his decision. The more he knows, the “safer” he is, the less he knows, the more he acts “under uncertainty”.

Such a rational person will also subordinate decisions in the legal area to a strict cost-benefit principle. For example, he will only lead a process if he cannot achieve the goal he is pursuing with it in a more efficient way. “ Efficiency ” here means the ratio of the means (resources, factors) used to the specific intended success. If it is cheaper, for example, to protect a field from grazing by sheep that are kept on the neighboring pasture by putting up a fence than to bring a lawsuit against the neighbor for this purpose, the economically rational person will put up the fence.

The economic analysis can also be used, for example, to check whether a legislative measure will be efficient, i. H. whether it is suitable to achieve its goal. In environmental law z. B. polluters who (with a view to balance sheets or account balance) calculate purely economically, should be brought to change their behavior. The economic analysis would ask the question of an environmental norm: Are the total costs for the polluter in the event of non-compliance, multiplied by the probability of being held accountable, significantly higher than the total costs of following the norm, i.e. H. to keep the environment clean? If not, the economic faulty construction of the standard can be seen in the poor quality of the environment.

From a normative point of view, the economic theory of law calls for an increase in general welfare through the means of law. Only that legal system is legitimate and “right” that is beneficial to general welfare. The starting point is the welfare economics of the so-called " Chicago School ". In this respect, “efficiency” is understood beyond the individual case “as a legal principle ” (as the title of a monograph by Eidenmüller , 1995). Efficiency in the economic sense is the most important requirement of the entire legal system. Accordingly, the law has a very specific social purpose, namely to be economically useful. Consequently, Posner only considers such a property system legitimate that ensures that the allocation of economic goods benefits those who can derive the greatest economic benefit from them from an economic point of view - in particular regardless of the social need of the individual.

Areas of application of economic analysis

In this respect, economic theory can serve as a prescriptive / normative decision-making aid in individual decisions, both for the person concerned (should he / she bring a lawsuit / be sued ?, should he commit a criminal offense?) As well as for the judge's decisions (should he or she allow the lawsuit reject?) or the administration. The "benefit" is also discussed in Koch / Rüßmann's legal theory of justification for choosing between alternative decision-making.

The economic aspect is particularly important for the legislature , who wants to set a general rule that will affect society as a whole .

The "benefit" of the distribution of risk in liability law (in particular in the case of accidental damage in tort law , strict liability , purchase in good faith or service disruptions in contract law ) is easier to examine - and to justify the relevant regulations accordingly - than the "benefit" of a divorce, independently whether you look at them from the perspective of a spouse or from the perspective of the judge. The economic theory of law has consequently found application primarily in business law . Known is about the investigation of the law of general terms and conditions by Michael Adams (Betriebsberater [BB], 1989, 781), of the AGB-law information available in terms of the parties 'asymmetric' distributed / studied the contract.

Recently, public law has also been included in the economic analysis, in particular administrative law .

Criticism of the economic analysis

The economic theory of law is subject to considerable criticism - also in the USA.

It is countered that it overlooks the fact that people also act according to non-economic rationality calculations. They ignore important aspects by limiting themselves to economic aspects as the only sensible or recommended motivation for action. It is a sensitive shortening of the matter to want to reduce the content of the law and the legitimacy of its validity solely to the aspect of economic efficiency. Aspects that cannot be represented in this model are, for example, the sense of justice (from which Ernst Bloch's legal philosophy is based) or the desire for an increase in (political, economic, interpersonal) power through the creation of legal relationships or through the conduct of proceedings. A religious person, on the other hand, is not concerned with maximizing his economic benefit, but with the godliness of his actions. Proponents of the economic analysis of law counter that ends-means calculations in other areas of society are similar to economic ones. The critics deny that these calculations, like the economic one, can be represented mathematically because they lack a countable medium comparable to money.

It also remains open, whose “benefit” should serve as a yardstick and in which way it should be measured.

See also

literature

Philosophy Bibliography : Legal Philosophy - Additional references on the topic

Introductions, aids

Classical works

Influential recent treatises

Current discussion

  • Winfried Brugger , Ulfrid Neumann, Stephan Kirste (eds.): Philosophy of law in the 21st century . Frankfurt a. M. 2008, ISBN 978-3-518-29494-9 .
  • Thomas Kupka: Constitutional nominalism: Hermeneutic considerations on the problem of linguistic names in law. In: Archive for Legal and Social Philosophy 97. 2011, pp. 44–77, ssrn.com
  • Reinhold Zippelius : Law and Justice in the Open Society, 2nd edition. Duncker & Humblot, Berlin 1996, ISBN 3-428-08661-9 .
  • Reinhold Zippelius : Behavior control through law and central cultural ideas . Duncker & Humblot, Berlin 2003, ISBN 3-428-11456-6 .
  • K. Grechenig, M. Gelter: Divergent evolution of legal thought - From American legal economy and German dogmatics . In: Rabel's Journal for Foreign and International Private Law (RabelsZ), 2008, pp. 513–561, ssrn.com

Legal methodology and legal theory

Web links

Wiktionary: Legal philosophy  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Thomas Vesting : Legal theory . Munich 2007, ISBN 978-3-406-56326-3 , Rn. 1, 2 .
  2. ↑ quoted from: Uwe Wesel : Juristische Weltkunde . 1984, p. 72
  3. ↑ Immanuel Kant: Metaphysik der Sitten , Rechtslehre, 1797, inlet §§ B, C; similar to Kant: Über den Gemeinspruch… , 1793, section II: “the restriction of the freedom of everyone to the condition of their co-ordination with the freedom of everyone, insofar as this is possible according to a general law”. See Reinhold Zippelius : Allgemeine Staatslehre , 16th ed., § 34 I 2; Philosophy of Law , § 26.
  4. ^ Johann Gottlieb Fichte : The closed trading state . 1800, book I, chap. 1 II; Zippelius: Philosophy of Law , § 26 II 2, 3.
  5. ↑ Immanuel Kant, Metaphysik der Sitten , 1797, Introduction to the Doctrine of Virtue, XII b, § 13.
  6. ^ Immanuel Kant, Metaphysik der Sitten , 1797, Introduction to Legal Doctrine, §§ B, C; Zippelius: Das Wesen des Rechts , 6th edition, chap. 7b, 9d.
  7. ↑ a b Oliver Wendell Holmes: The Path of the Law . In: Harvard Law Review . tape 10 , no. 8 , 1897, ISSN  0017-811X , p. 457-478, 461 , doi : 10.2307 / 1322028 , JSTOR : 1322028 (English, also in Wikisource ).
  8. ↑ a b Jan Schapp: The subjective right in the process of obtaining rights. Duncker & Humblot, Berlin 1977, ISBN 978-3-428-03849-7
  9. ↑ Wilhelm Henke . Book review: Jan Schapp, The subjective right in the process of gaining rights in DVBl, June 1, 1978, p. 417
  10. ^ Bryan Magee: Karl Popper . JCB Mohr (Paul Siebeck). Tübingen. 1986. ISBN 3-16-244948-0 . P. 34ff .; Reinhold Zippelius: Basic concepts of legal and state sociology, § 3 (experimental world orientation); 3rd edition Mohr Siebeck. Tübingen. 2012. ISBN 978-3-16-151801-0
  11. ↑ Bernhard Schlink: Comments on the state of the method discussion in constitutional law . In: The State. 1980, 73.
  12. ↑ Zippelius: Das Wesen des Rechts , 4th ed., 1978, chap. 14 c (now similar: 6th edition, 2012, chap. 8 e, 9); ders., Gaining rights through experimental thinking in: Festschrift für Hans Huber, 1981, p. 143 ff., ISBN 3-7272-9204-0 ; basically: The experimental method in law , academy treatise, Mainz, 1991, ISBN 3-515-05901-6 ; (also in: ders., Law and Justice in the Open Society, 2nd Edition, Chapters 1-4, Duncker & Humblot, Berlin, 1996, ISBN 3-428-08661-9 )
  13. ^ Zippelius: Philosophy of Law . 6th edition. 2011. §§ 12 ff.
  14. ^ Zippelius, Philosophy of Law . 6th edition. 2011. Sections 11 III, 18 II, 39 I 1, 40
  15. ^ HH Jakobs, De similibus ad similia in Bracton and Azo . In: Ius commune. Special issue 87, 1996
  16. ↑ (Example for § 138 II BGB in: Zippelius, Juristische Methodelehre, 11th edition, 2012, § 12 I b)
  17. ^ Karl Engisch : Introduction to legal thinking . 11th edition. 2010. p. 104 ff .; Zippelius: Legal methodology , §§ 12 I b, 16 II.
  18. ↑ Reinhold Zippelius: Philosophy of law . 6th edition. 2011. §§ 5 III, 17.
  19. ↑ Reinhold Zippelius: Foundation of justice on conscience and consensus. In: Ders .: Behavior control through law and central cultural ideas. Duncker & Humblot, Berlin. 2004, chap. 4th
  20. ↑ Kristoffel Grechenig, Martin Gelter: Divergent evolution of legal thought - From American legal economy and German dogmatics . In: Rabels Journal for Foreign and International Private Law (RabelsZ) 2008, 513–561.
  21. ↑ Martin Gelter, Kristoffel Grechenig: Legal discourse and legal economy . In: Journal for Legal Policy (JRP) 2007, 30–41.
  22. ↑ Martin Gelter & Kristoffel Grechenig: History of Law and Economics . In: Encyclopedia on Law & Economics. 2014 (forthcoming).