Subsumption (law)

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The subsumption (of lat. Sub , under, and sumere , take, past participle sumptum ), occasionally subsumption written, is the process in which a concept under a different assigns. In jurisprudence , the term is understood as the application of a legal norm to a situation in life ("case"), that is, as the subordination of the situation to the requirements of the standard.

Legal norms regularly have an if-then structure. They are divided into a fact (if part) and a legal consequence (then part). The offense is usually made up of several criteria (e.g. "foreign", "property"). If the necessary facts are available, the corresponding element of the offense is fulfilled. If all the constituent elements are given, the legal consequence occurs.

In its shortest and idealized simplified form, the subsumption is tripartite and consists of a major clause, the abstractly formulated fact of the claim basis, a minor clause, the comparison of the concrete life circumstances with the constituent element, and a final clause, the information on the existence or non-existence of a legal consequence (i.e. whether facts and circumstances coincide or not). It has the structure of a syllogism of Aristotelian logic in the Barbara mode ( if A = B and B = C then A = C).

Example: Is car A a thing within the meaning of Section 90 BGB ?
Introduction: ( Hypothesis ): The car A could be a thing within the meaning of § 90 BGB.
1st step ( major clause = definition ): things are in accordance with § 90 BGB only physical objects.
Step 2 ( stand ): The car A is a physical object.
3rd step ( final sentence ): So car A is one thing.

If an offense - as is the case on a regular basis - has several cumulative offense features, the subsumption is required for each offense. Sometimes there are unwritten factual features that must also be met. If an element is problematic, it has to be defined . This is done through the interpretation of the legal text and, in terms of subsumption, through a conceptual development of the elements of the major clause.

The subsumption scheme can, in principle, be as complex and nested as desired, since the claim bases refer to other auxiliary norms or contain problematic facts.

If the case question is answered as a result of a case processing , this indicates an expert opinion . In judgmental style , the author answers the case question first and then justifies his answer. The difference between expert opinion and judgment style is therefore the order in which the reasoning and the result are presented; the process of subsumption is identical in both cases.

The logical structure of the subsumption of a concrete case under the terms of a legal norm is not without problems. Because in the strictly logical sense only one concept can be subsumed under one concept. According to Karl Engisch , the subsumption of a concrete state of affairs under a term can only be interpreted as a classification of the state of affairs in the class of cases designated by the legal principle. It is about equating the case with those cases whose membership of the class has already been established. According to Zippelius , questions of doubt about the subsumability of a case must be clarified in advance when interpreting the relevant legal term: It is to be checked whether a case of the present type (according to its type) is to be included in the scope of this term. This applies if it is to be evaluated in the same way as the cases for which it is clear from the start (or has already been clarified) that they are identified by the standard.

literature

  • Karl Engisch : Logical studies on the application of the law (=  session reports of the Heidelberg Academy of Sciences. Philosophical-Historical Class. 1960, 1, ISSN  0933-6613 ). 3rd, supplemented edition, Winter, Heidelberg 1963.
  • Karl Engisch: Introduction to legal thinking (=  Kohlhammer-Urban pocket books. Vol. 20). 11th edition, edited and edited by Thomas Würtenberger and Dirk Otto. Kohlhammer, Stuttgart [a. a.] 2010, ISBN 978-3-17-021414-9 , chap. IV and V.
  • Karl Larenz : methodology of jurisprudence. 6th, revised edition, Springer, Berlin [u. a.] 1991, ISBN 3-540-52872-5 , II chap. 2 section 5.
  • Reinhold Zippelius : Legal methodology (=  series of publications of legal training. Vol. 93). 11th edition, CH Beck, Munich 2012, ISBN 978-3-406-63668-4 , § 16.

Individual evidence

  1. ↑ The notation subsumption is also used by well-known legal scholars. In its 24th edition, the Duden still listed the word as a subsumption . The online Duden, on the other hand, lists both spellings.
  2. ↑ English: Introduction to Legal Thought. 2010, p. 104 f.
  3. ^ Zippelius: Legal methodology. 2012, § 16 I, II.