Judicial law

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Judicial law is not set by the legislature ( parliamentary law ) or the executive ( statutory ordinance , autonomous statute ), but arises in the case law . Whether this is objective law or just a source of legal knowledge depends on the respective legal system and is individually controversial.

The oldest known form of independent legal education are the Irish Brehon Laws , for which law schools (including the O'Davorens in Cahermacnaghten, Burren) existed.

Roman-Germanic legal system

term

Of judge-made law is when the courts develop matching and settled case by way of judicial training abstract legal principles and take them into account in their decision making on a regular basis (with). Its recognition is in principle no longer in dispute today, but its scope and limits are.

Validity

A strict distinction must be made between the factual, sociological validity and power of case law on the one hand and the validity of judicial law as a source of law .

The factual validity of case law

In practice, decisions made by the highest court , such as those of the German Federal Court of Justice or the Supreme Court in Austria, have a trend-setting significance for lower-level courts: These will not deviate from them without good reason. It is the custom of the lower courts to orientate themselves on the case law of their higher courts in comparable cases. This prevents the repeal of one's own decisions, avoids unnecessary costs for those involved in the process and gives the citizen a necessary piece of legal security .

The legal validity of case law

If a certain jurisprudence is recognized as legitimate and has a general chance of enforcement, it thus fulfills the general criteria of (customary) legal validity .

Normative non-binding nature of court decisions

In all other cases, judicial law is not recognized as a source of law in the Roman-Germanic legal system , so the principle of the normative non-binding nature of court decisions applies. In Germany, every court can in principle deviate from the decisions of other, including higher courts. Supreme court judgments are also not statutory law and do not create a legal obligation comparable to this. The only source of law is statutory law , possibly also lawfully established customary law . The main difference between statutory law and case law is that statutory law arises on the basis of the formally expressed will of the legislature in a formal legislative process and has normative binding effect on its own: everyone is obliged to follow the law and apply it. This is not the case with case law. It has to assert itself because of its content-related persuasive power and through the allegiance of the courts, so it has no normative, but only factual effect. It is not generally binding; any legal practitioner can question or ignore them in a new process. In short, the legal effect of court decisions beyond the individual case is based solely on the persuasiveness of their reasons and the authority of the court.

Exceptions
Legal obligation by law

Judges are legally bound only to decisions of the Federal Constitutional Court ( § 31 BVerfGG ), to referral decisions according to § 17a para. 2 sentence 3 GVG , as well as the courts concerned to the legal assessment of the referring court (cf. § 563 para. 2 ZPO ) and the calling Senate to decisions of the Joint Senate or the Grand Senate.

In addition, there is the EU legal obligation to decisions of the ECJ .

Legal binding as common law

A permanent supreme court case law can establish customary law "if it is based on an actual exercise with broad acceptance in the relevant public".

  • Example: The recognition of security property (against the will of the historical legislature)
Legal binding in the case of (required) legal training

The competence of the highest federal courts to provide legal training is also recognized by law (see, for example, Section 132 (4) GVG). In this way, judicial law can develop: through the constant jurisdiction of the higher courts, which in turn is used by the (lower) courts.

  • Example: The case law of the Federal Labor Court and the Federal Constitutional Court on industrial action law.

Principle of the normative non-binding nature of court decisions

In Germany, every court can in principle deviate from the decisions of other, including higher courts. Jurisprudence is constitutionally inconsistent.

In the Roman-Germanic legal system, judicial law is accordingly not recognized as a source of law. The only source of law is statutory law, possibly also lawfully established customary law. The main difference between statutory law and judicial law is that statutory law arises on the basis of the formally expressed will of the legislature in a specially stipulated procedure and by itself has normative binding effect. Everyone is obliged to obey and apply the law. This is not the case with judicial law. Judicial law first has to assert itself due to its persuasive power of content and the allegiance of the courts and has no normative, but only factual effect. Judges' law is not generally binding; every user of the law can question and ignore it in a new process. Supreme court judgments are also not statutory law and do not create a comparable legal obligation. The validity of judicial decisions beyond the individual case is based solely on the persuasiveness of their reasons as well as the authority and competences of the court.

Four types of judicial law

Typologically, a distinction is made between four different types of judicial law : law-specifying , gap-filling , legal representative and law- correcting judicial law .

The law-making and the gap-filling judge law are unproblematic . It complements and completes deficit laws, but does not replace them. One of the tasks of the courts is to specify indefinite legal terms and general clauses by means of interpretation and to apply them to the present case. In principle, the judges' authority to fill unintended gaps in the system of norms by means of analogy is also undisputed . At most in individual cases, there are uncertainties about the scope of a loophole and its non-planarity. The limits of analogous application result from the clear wording and meaning of a regulation; An analogous application of criminal law to the detriment of the person concerned is strictly prohibited.

The right of the judge to regulate areas of life which the legislature has left unregulated, but which nevertheless require regulation, is also largely recognized by means of statutory judicial law . This happens through the development of judicial principles and institutes with recourse to general legal bases and constitutional value decisions. Mention should be made of the area of ​​collective labor law , but also general administrative law up to the enactment of the Administrative Procedure Act 1976. Limits arise where legal regulations are indispensable and the constitution reserves provisions restricting fundamental rights to the legislature (e.g. in juvenile prison systems) Legal judges' right in criminal law to the detriment of the person concerned ( Article 103, Paragraph 2, Basic Law ).

Corrective judicial law is fundamentally inadmissible . Where a standard has made a final regulation, i.e. does not have any regulatory loophole that can be filled by judge law, there is no room for corrective judge law. An interpretation contra legem violates the legal binding of the judge ( Art. 20 Abs. 3 GG) and violates the principle of the separation of powers ( Art. 20 Abs. 2 Satz 2 GG).

However, in two decisions ( Soraya decision 1973 and on illegitimate unions in tenancy law, 1990) relating to older legal regulations , the Federal Constitutional Court saw judges entitled to "more freely handle legal norms" if the written law fulfills its function with a literal interpretation no longer fulfilled. With the "aging of the codification," that is, with the increasing distance between the legal order and the judicial decision, the judge's freedom to creatively develop the law grows. A norm is constantly in the context of the social conditions and the socio-political views on which it is supposed to act; their content can and must change with them under certain circumstances. The actual or legal development could make a hitherto unambiguous and complete regulation incomplete, in need of supplementation and at the same time capable of supplementation, since laws are in an environment of social conditions and socio-political views, with the change of which the norm content can also change.

The BVerfG itself has not assigned this to the area of ​​corrective judicial law, but speaks (belittling) of analogous application of the law, although the limits of permissible analogy have been exceeded here. As a result, in cases of changed living conditions, this jurisprudence could lead to a legal interpretation contra legem and thus apparently justify judicial law that corrects the law. This would be constitutionally inadmissible. At most, in the case of pre - constitutional law, i.e. laws that were enacted before the first meeting of the Bundestag in 1949 and therefore cannot be submitted to the Federal Constitutional Court for specific review of norms under Article 100 of the Basic Law and can be reviewed by it, judges may decide contra legem, i.e. to correct the law . In addition, it is incompatible with the principle of democracy and the principle of the separation of powers if a judge who was not legitimized to legislate wanted to replace the values ​​taken by him from the Basic Law in place of the evaluations of the legislature and thereby correct a clear legal decision. In the case of post-constitutional laws, the blocking effect of the principle of separation of powers applies in favor of the legislature. Its sole task is to observe the obsolescence of "its" laws and, if necessary, to take corrective action. For post-constitutional law, the statements of the Federal Constitutional Court that a judge may not change the decisions of the legislature on the basis of their own legal-political ideas and may not move from the role of the user of the standard to the role of the standard-maker apply without restriction.

Anglo-American legal family

In the areas for which the legislature has not yet established a law - in English statute law - law arises through judicial acquisition of law - in English case law - which then sets law as a precedent decision for similar future cases. As the density of statutory regulations increases, the scope for judicial law decreases. In the United States, the US Supreme Court has been criticized for its sometimes broad interpretation of constitutional rules for its legal activism .

literature

See also

Individual evidence

  1. ↑ Axel Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92, para. 27.
  2. ↑ BVerfGE 78, 123 [126]; BVerfGE 87, 273 [278]; Hopfauf in: Schmid.t-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92 marginal number 26.
  3. ↑ BVerfGE 84, 212 [227]; BVerfGE 122, 248 [277]; Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92, marginal number 18.
  4. ↑ Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92 para. 26.
  5. ↑ Kühl / Reichold / Ronellenfitsch: Introduction to Law , Beck, Munich 2011, § 6 Rn 19.
  6. ↑ Kühl / Reichold / Ronellenfitsch: Introduction to Law , Beck, Munich 2011, § 6 Rn 19 with further references
  7. ↑ BVerfGE 78, 123 [126]; BVerfGE 87, 273 [278]; Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92 marginal number 26.
  8. ↑ BVerfGE 84, 212 [227]; BVerfGE 122, 248 [277]; Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92, marginal number 18.
  9. ↑ See in summary Ossenbühl in: Isensee / Kirchhoff (Hrsg.), HStR, Vol. V, 3rd edition, 2007, § 100 Rn 50 ff .; Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, preparation before Art 92 marginal numbers 13-18.
  10. ↑ Jarass in: Pieroth / Jarass, GG Commentary, 11th edition., 2011, Art. 20 marginal number 43; Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92 marginal number 15.
  11. ↑ Kirchhoff NJW 1986, 2280 mwN
  12. ↑ BVerfGE 116, 69
  13. ↑ Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92 marginal number 16.
  14. ↑ Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92, marginal number 17.
  15. ↑ BVerfGE 34, 269
  16. ↑ BVerfGE 82, 6
  17. ↑ BVerfGE 82, 6
  18. ↑ Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, preparation before Art. 92, marginal number 17.
  19. ↑ Hopfauf in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the GG., 12th edition, 2011, preparation before Art. 92 Rd 17.
  20. ↑ BVerfGE 87, 273 [280]; BVerfGE 96, 375 [394].
  21. ↑ Jens Eisfeld: Liberalism and Conservatism. The US discussion of legalizing same-sex marriages through court rulings . Mohr Siebeck, 2006, ISBN 3-16-148996-9 , p. 149.