Structuring legal theory

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The structuring legal theory is a branch of law linguistics . It is largely based on the work "Structuring Legal Theory" by Friedrich Müller.

Basics

Legal linguistics is a hybrid fusion of law and linguistics , as the name suggests . It is understood by Ekkehard Felder as a "conflict of the polarity of legal norm and judicial judgment". The judge is therefore bound by the codification of the legal norm; what matters, however, is how binding he finds this standard. This is where the Structuring Legal Doctrine comes in: It claims to adapt legal agitations to constitutional norms, or in other words, to compare the former with the latter. Structuring legal theory sees the language of law as a natural language that contains technical language elements. However, there are limits to the comprehensibility of technical language, which is often forgotten in case law; Jurisprudence decides inherently in the text about right and wrong and at the same time claims to be scientific. Structuring Legal Doctrine perceives this fact as problematic and tries to improve it by means of linguistic work. It deals with open questions in linguistics and law and sees language as a process of action that is accompanied by situational rules of behavior. Structuring legal theory also examines:

  • Linguistic acts by acting lawyers who decide legal cases
  • The extent to which legal texts dictate legal decisions
  • The regularities and structures of legal work
  • Manner of text work by legal actors, as well as the
  • Development of legal issues from everyday language descriptions.

Working method

The working method of structuring legal theory is called pragmatic, among other things, because it prefers the observation of real situations to abstract theory formation. The structuring legal theory works descriptively and generates prototypical routines of the legislative process . It is not deductive, i.e. it does not draw conclusions from the theory on a particular phenomenon, but empirically investigates and observes faulty phenomena or phenomena in need of processing, and on this basis draws up theories. In doing so, she examines which “stations” lie between the recording of the standard text and the pronouncement of the judgment . Instead of referring to abstract concepts, she only sees the meaning of the standard text in its situational context of action and emphasizes the text work that is necessary to interpret it according to the situation.

Points of contact with pragmatics

Structuring legal theory also has theories related to pragmatics and often refers to them. In particular, speech act theory is addressed. This means that an individual ("speaker") always acts when he uses language. A distinction is made between an illocutionary act and the propositional content of a statement. The illocutionary act describes the actual intention of the speaker in sending the message, while the propositional content means the verbal expression. With regard to the sentence “Will you pass me the salt, please”, the illocutionary act is of a directive character, while the propositional content is merely interrogative . Speech act theory says that a speaker acts without exception, regardless of whether he does it intentionally or consciously. Ekkehard Felder explains this fact with Jeand'Heur as follows:

“ The practically active lawyer [...] becomes a speaker who, by giving a lecture, shapes the way the signs are used according to his motifs. Neither language nor world (objects) guarantee direct reference relations in terms of semantic characteristics. It should be remembered once again: Not an ostensibly existing and cognitively recognizable, ready-to-use term of the language sign, but rather only the speaker / user of the law refers to features that he defines as relevant, which he transforms from their contingent existence into a form that persists in the individual decision . "(Jeand'Heur (1989), p. 55)"

Structuring legal theory (Friedrich Müller)

Together with other linguists, lawyers and his students, Friedrich Müller founded Structuring Legal Doctrine in the 1960s; Ralph Christensen, Bernd Jeand'Heur, Dietrich Busse, Michael Sokolowski and Rainer Wimmer were involved in the research work. The knowledge and theories of this discipline manifest themselves primarily in the book of the same name and some scientific articles. Gast summarizes the work as follows:

  • In the introduction, the difficulties in merging law and linguistics are presented, since jurisprudence underestimated the role of linguistics in optimizing legal work, especially at that time, but also today
  • According to the guest, the main part is divided into four different individual studies that cover the

a) points of contact between practical semantics and legal framework,
b) criticism of legal positivism
c) a linguistic investigation of the meaning of a legal text and
d)
examine / deal with the relationship between Nortmext and the facts .

According to Gast, the quintessence of the book is, among other things, the realization that legal positivism represents the case law as a specific, static and generally understandable system. In addition, the subjective as well as the objective doctrine of interpretation are obsolete. The subjective doctrine of interpretation tries to fathom the intention of the author of the law; But that is not possible, so it must use other interpretation aids. The objective doctrine of interpretation tries to invoke objective dogmas, which is not possible, since the process of interpretation, by definition, as the name suggests, "interprets" and does not convey general validity. According to Gast (with Müller) it follows from this that the interpretation always consists of a creative part; Structuring jurisprudence tries to determine this and to apply it as a “constitutional procedure”. According to Gast, Müller also emphasizes that an interdisciplinary investigation through linguistics, sociology, philosophy and political science must be carried out between everyday reports and judicial text interpretation. In addition, it is important to understand that the performance of the language is only as great as the understanding of the interpreter, and apart from that, it is limited. Consequently, language cannot constitute laws that go beyond its own inherent possibilities.

Differentiation from legal positivism

The previous chapters already indicate that Structuring Legal Doctrine sees itself as the opposite pole to the positivism theory that dominates jurisprudence. Positivism advocates the following theses:

Norms are given to the judge in order to interpret them. The meaning is already fixed in the text; the judge just has to understand them correctly. Consequently, the legal act is indubitable and legitimate and the language work is no longer necessary, since the relation between language and world is predetermined and unambiguous.

Structuring legal theory answers these theses as follows: First, a significant difference can be seen between the norm and the norm text. Here, Felder compares the relationship between text and text form. A text, like the norm, is only a mental concept; its written form is then called a text form (standard text). The discrepancy between the original intention with which the standard text was written and the mental concept of the author is always there, even if it is almost comparable; To deny them is, according to the Structuring Legal Doctrine, always a gross error, and it is precisely this that the Structuring Legal Doctrine subjects to positivism. So case law is always the case-related interpretation of an individual.

Delimitation of other theories and disciplines

In addition, structuring legal theory by fields must be distinguished from other concepts and disciplines that dominate jurisprudence. On the one hand there is the syllogistic subsumption system, which schematizes fields as follows:

  • Upper sentence: If conditions t1, t2, t3 ... are fulfilled, the legal consequence R.
  • Subsection: The prerequisites t1, t2, t3 .. are realized by the facts s1, s2, s3.
  • So for the concrete facts s1, s2, s3 ... the legal consequence R.

The syllogistic subsumption system also understands language as an image of the world and detached from the world.

Furthermore, the structuring legal doctrine must be distinguished from decisionism, which sees the sole decision-making power with the judge and not with legislation and language work. Further theories against which there are objections on the part of Structuring Legal Doctrine are the instrumentalist theory of language, the understanding of language as a representative without further properties, the atomistic conception of meaning and the assumption of an ontological-essentialist nature of the world (objects), in this case the Assumption that language is just a tool that maps thoughts directly and without comment.

Individual evidence

  1. ↑ a b Ekkehard Felder: Legal text work in the mirror of the public . Walter de Gruyter, 2003, ISBN 3-11-089472-6 ( google.de [accessed on March 30, 2017]).
  2. ↑ Hanjo Hamann: Structuring legal theory as legal language theory . In: Handbook Language in Law . 2015.
  3. ↑ Bernd Jeand'Heur: Linguistic reference behavior in legal decision-making . In: Writings on legal theory . No. 139 . Berlin 1989.
  4. ↑ Dietmar Zaefferer: Speech Act Types in a Montague Grammar A model-theoretical approach to the treatment of illocutionary roles. (PDF) In: Speech Act Theory and Semantics. Günther Grewendorf, 1979, accessed on March 5, 2017 .
  5. ↑ Ekkehard Felder: Finding the right law in the tension between linguistic vagueness and precision . In: Ralph Christensen (Hrsg.): Legal theory with practical legal intent: a gift for the 70th birthday of Friedrich Müller . Duncker & Humblot, 2008, ISBN 978-3-428-12590-6 ( uni-heidelberg.de [PDF; accessed on March 5, 2017]).
  6. ^ Friedrich Müller, Ralph Christensen, Michael Sokolowski: Legal text and text work . In: Writings on legal theory . No. 179 . Berlin 1997.