Legal proposition

The legal rule is in law a sentence with legal content , which as a legally binding statement of what ought to be is to be considered. It is a basic element of the legal system .

More specifically, the condensed compilation of essential statements of a court decision in the legal information system of the Republic of Austria is referred to as a legal sentence (see also guiding principle ).

General

The legal system forms the entirety of all applicable legal provisions as norms of conduct for citizens and norms of decision-making for authorities and courts . Legislation is made up of a more or less large number of individual statements, namely linguistic units that are grammatically referred to as sentences. The legal sentence is therefore nothing else than a sentence with a legal statement. Each legal clause can be viewed as its own legal term and each legal term can be broken down into a legal clause. In the case of the former, for example, the legal principle that the will of a legal subject triggers legal consequences for another legal subject under certain conditions results in the legal concept of representation . In the second alternative, the legal concept of inheritance results in the legal principle that when a testator dies, his assets pass to his heirs .

The legal principle is an abstract, general norm of behavior that is applied to the individual-specific case through a legal act and thus brings about law. In Switzerland, a legal definition was contained in Article 5. Paragraph 2 of the Commercial Transaction Act of March 1962, according to which the legal sentence is a regulation “which is aimed at an indefinite number of addressees and covers an indefinite number of cases and which rights and obligations are established for citizens or regulates the organization, responsibility or tasks of the authorities or the procedure. "

history

Georg Jellinek is considered one of the first German-speaking lawyers to deal with the law . For him, in 1887 the generality of the legal proposition "really was one of the most difficult questions in all of jurisprudence". “What distinguishes the legal principle from all other state expressions of power is its generality. But not everything that is general in any point is therefore a legal proposition, and not every legal proposition is general in all points ”. In 1891, Gerhard Anschütz wrote a dissertation on the legal proposition, in which he considered the determination of the legal proposition as the state order to be incorrect and arbitrary "which standardizes abstract facts in advance". Paul Laband saw in the law of 1901 the “delimitation of the powers and duties of individual subjects”. Jellinek's son Walter Jellinek defined the legal principle in 1931 as “an order to an indefinite number of people”. What they all had in common was the equation of material law and legal principle.

species

Conditional legal clauses consist of facts and legal consequences and combine the two. In the case of theft, according to Section 242, Paragraph 1 of the Criminal Code, the offense consists of the wording "whoever takes away a movable property from someone else with the intention of illegally appropriating the thing to himself or a third party ...", while the second half-sentence describes the legal consequence: " ... is punished with imprisonment for up to five years or with a fine ”.

Substantive legal clauses prescribe a certain behavior and say what should or should not be done. For example, according to Section 985 of the German Civil Code, the owner can demand that the owner surrender the item. This claim to surrender is intended to eliminate the damage to property caused by unauthorized third-party ownership, so that the unlawful owner has to do something - namely surrender the thing.

Formal legal clauses determine the legal status, organizational matters or procedures. As the legal status of entities primarily applicable legal capacity , legal capacity , citizenship or residential or office . According to this, the declarations of intent of an incapacitated person according to § 104 Paragraph 1 BGB are void . According to § 6 para. 1 KWG practicing BaFin , the bank supervision over financial institutions , so that this law set contains an organizational control. This also applies to § 115 GVG , according to which the higher regional courts are to be filled with a president as well as presiding judges and other judges. A procedural rule of law contains § 133 GVG, according to which the Federal Court of Justice is responsible in civil matters for the negotiation and decision on the legal remedies of the revision , the jump revision , the legal complaint and the jump right complaint.

Mandatory legal clauses apply regardless of the will of the norm addressees involved , while dispositive only apply if the participants have not made any deviating regulations. If the legal principle indicates that a right “cannot be excluded or limited by a legal transaction ” ( Section 137 BGB), there is a mandatory (indispensable) law. As a rule, however, civil law is dispositive (yielding) law if the legal sentence contains the wording “unless otherwise agreed”. This applies, for example, to the consumer's right of withdrawal under Section 312g (2) BGB. If something else has been agreed, this provision does not apply, it is mandatory.

There are also linguistically complete sentences, but these are considered incomplete legal sentences. They are not statements, but parts of regulations such as mere reference to other regulations. These are pure reference norms such as Section 167 (1) Sentence 1 VwGO , which is a grammatically complete sentence, but its content is limited to a reference: “Unless otherwise stated in this law, the eighth book applies to enforcement according to the code of civil procedure . "

context

The legal clauses in a law do not simply stand side by side in isolation, but are related to one another and only result in a legal regulation in their mutual entanglement and interaction. The legal system therefore does not consist of a sum of legal propositions, but of regulations . Between the chained legal clauses there is also a logical priority or posteriority over time, because a legal clause cannot be thought without the previous one.

The legal sentence is sometimes used as a synonym for the legal norm , but the lawyer Hans Kelsen points out that legal sentences are statements that refer to legal norms in terms of content, but are not themselves legal norms. “Every legal proposition contains a norm, but not every norm contains a legal proposition. The law is a norm with certain characteristics ”. The pure reference norm is a norm, but not a legal proposition. All terms used in the legal sentence are legal terms.

Legal sources

Legal sources of the legal clauses are in particular laws and ordinances , international law , customary law , judicial law or public or private statutes . Since many of these legal norms also regulate the same or similar issues , a generally recognized and also legally pursued hierarchy applies :

• the higher-ranking legal clause takes precedence over a lower-ranking law ( Lex superior derogat legi inferiori ),
• The special legal clause ( Latin lex specialis ) takes precedence over a general rule ( Latin lex generalis ) ( Lex specialis derogat legi generali ) and
• the younger legal proposition takes precedence over an older notion of equal rank ( Lex posterior derogat legi priori ).

This ranking is used to avoid conflicting standards .

literature

• Jürgen Rödig: Introduction to an analytical legal theory . Springer, Berlin 1986, ISBN 3-540-16833-8 .
• Bernd Rüthers: Legal Theory . 4th edition, CH Beck, Munich 2008, ISBN 3-406-52311-0 .
• Ota Weinberger : Norm and Institution . Manz, Vienna 1988, ISBN 3-214-06047-3 .
• Sabine Wesser: The legal proposition . In: Legal Theory. Journal for logic and legal methodology, legal informatics, communication research, norms and action theory, sociology and philosophy of law . 37 Vol., 2006, ISSN  0034-1398 , pp. 257-305.

Individual evidence

1. ↑ Rudolf Stammler, Textbook of Legal Philosophy , 1928, p. 261 .
2. ↑ Rudolf Stammler, Textbook of Legal Philosophy , 1928, p. 128.
3. ^ Paul Kirchhof , legal sources and Basic Law , in: Christian Stark, Federal Constitutional Court and Basic Law, Volume II, 1976, p. 55.
4. ↑ Dieter Volkmar, General Law and Individual Act , 1962, p. 34 .
5. ↑ Georg Jellinek, Law and Regulation , 1887, p. 139.
6. ↑ Georg Jellinek, Law and Regulation , 1887, p. 139 ff.
7. ↑ Gerhard Anschütz, Critical Studies on the Doctrine of Legal Statements and Formal Law , 1891, p. 26.
8. ^ Paul Laband, Das Staatsrecht des Deutschen Reiches , 1901, p. 168.
9. ^ Walter Jellinek, Verwaltungsrecht , 1931, p. 8.
10. ^ Karl Larenz , Methods of Law , 1975, p. 237 f.
11. ↑ Ernst Rudolf Bierling, Legal Principles , Volume IV, 1911, p. 222.
12. ↑ Karl Larenz, Methods of Law , 1975, p. 248.
13. ↑ Hans R. Klecatsky / René Marcic / Herbert Schambeck, Die Wiener Rechtsstheoretische Schule: Writings by Hans Kelsen / Adolf Merkl / Alfred Verdross , 2010, p. 1094 .
14. ↑ Karl Larenz, Methods of Law , 1975, p. 232, fn. 1.
15. ↑ Hans Kelsen, Reine Rechtslehre , 2nd edition, 1960, pp. 73 ff.
16. ↑ Gerhard Anschütz, Critical Studies on the Doctrine of Legal Statements and Material Law , 1891, p. 36.
17. ↑ Determination of the legal faculties for the 50th anniversary of the Reichsgericht, Die Reichsgerichtspraxis im deutschen Rechtsleben , Volume V, 1929, p. 68.
18. ↑ Hagen Weiler, Just Benefit of Equal Treatment , 1997, p. 93 .

Please note the information on legal issues!