Legal Methods
How to work with legal arguments
Zusammenfassung
Möllers
Legal Methods Legal decisions are accepted if they are well reasoned. German law is exemplary for its technique of legal interpretation and legal construction. This landmark book provides lawyers with more than a hundred legal argumentation figures that are used by lawyers across Europe and the world to justify their legal decisions. It aims to put lawyers in a position to develop legal solutions step by step, and to increase the cogency of their argumentation. Using an interdisciplinary and legal-doctrinal context, it looks at legal sources, traditional and modern concepts of argumentation, the challenging substantiation and construction of law, the influence of the constitution and European law as a higher-ranking law, determination of the limits of permissible further development of the law and – very relevant for legal practice – the hermeneutics of facts.
Abstract
Möllers
Legal Methods Legal decisions are accepted if they are well reasoned. German law is exemplary for its technique of legal interpretation and legal construction. This landmark book provides lawyers with more than a hundred legal argumentation figures that are used by lawyers across Europe and the world to justify their legal decisions. It aims to put lawyers in a position to develop legal solutions step by step, and to increase the cogency of their argumentation. Using an interdisciplinary and legal-doctrinal context, it looks at legal sources, traditional and modern concepts of argumentation, the challenging substantiation and construction of law, the influence of the constitution and European law as a higher-ranking law, determination of the limits of permissible further development of the law and – very relevant for legal practice – the hermeneutics of facts.
- I–XL Titelei/Inhaltsverzeichnis I–XL
- XLI–XLIII Databases for German, European and foreign legislative acts XLI–XLIII
- XLIII–1 Principal Works Cited XLIII–1
- 2–109 Part 1: The basics – sources of law 2–109
- 2–40 Chapter 1. Legal methodology as a theory of legitimacy and justification 2–40
- 2–10 I. The purpose of legal methodology 2–10
- 1. Determining the meaning of a legal text
- 2. Legal methodology as a postmodern methodology – content of this book
- 3. The influence of European law on discovering the law
- 4. The worldwide relevance of figures of argumentation in the justification of legal decisions
- 10–21 II. Legal methodology as a theory of legitimacy 10–21
- 1. Constitutional requirements for a judicial decision
- 2. Methodology as theory of legitimacy to limit the judge’s power
- 3. The style of reasoning and citation practice of courts in Europe
- 21–33 III. Legal methodology as a theory of argumentation 21–33
- 1. The claim to truth and contentious lawyers
- 2. The purpose of the theory of argumentation
- 3. Legal figures of argumentation
- 4. Weighting of argumentation concepts
- 33–38 IV. The claim to justice of legal methodology 33–38
- 1. Legal methodology and the claim to justice
- 2. Legal methodology as a value-based theory of legitimacy and argumentation
- 3. Legal certainty and justice as legal concepts
- 38–40 V. Summary of chapter 1 38–40
- 41–76 Chapter 2. Sources of law 41–76
- 41–48 I. Law and sources of law 41–48
- 1. Criteria for describing law
- 2. Differentiating law from morality, ethics and political correctness
- 48–55 II. Hierarchy of legal sources in Germany 48–55
- 1. Statutes as a source of law in Germany
- 2. Higher-ranking law: The hierarchy of the law and the lex superior rule as a conflict-of-law rule
- 3. The hierarchy of German law
- 4. Amendments, legal certainty, and protection of legitimate expectation
- 55–67 III. The hierarchy of law in Germany today, including European law 55–67
- 1. European law as supranational law
- 2. The autonomous interpretation of European law
- 3. The principle of conferral
- 4. Higher-ranking law: The supremacy of Union law over national law
- 67–71 IV. The hierarchy of law in Germany today, including international law 67–71
- 1. Sources of law at the international level
- 2. The autonomous interpretation of international agreements
- 3. The hierarchy of international law
- 4. International law and national law
- 71–75 V. Natural law 71–75
- 1. The relevance of natural law
- 2. Primacy of natural law over the unambiguous law of injustice (Radbruch formula)
- 3. Positive forms of natural law
- 75–76 VI. Summary of chapter 2 75–76
- 77–109 Chapter 3. Secondary sources of law and sources of legal knowledge 77–109
- 77–84 I. Problems: Sources of legal knowledge alongside primary sources of law? 77–84
- 1. The previous dualistic approach: restricted definition of sources of law, and sources of legal knowledge
- 2. The broad definition of legal sources – linked legal structures as an alternative to the hierarchy of law
- 3. Mediating perspective: The theory of secondary sources of law
- 4. Beyond legal positivism and natural law
- 84–92 II. The importance of case law in the determination of law 84–92
- 1. The role of customary law
- 2. The doctrine of secondary sources of law
- 3. Strictly binding precedent as an exception in German legal circles
- 92–99 III. Administrative regulations, private rule-setting, and European recommendations 92–99
- 1. Administrative regulations
- 2. Private rule-setting and the demarcation to standard terms and conditions, contracts and soft law
- 3. Legal consequences
- 4. Recommendations and administrative provisions under EU law
- 99–106 IV. The importance of foreign judgments in the determination of law 99–106
- 1. The obligation to take account of comparative law during interpretation under European law, uniform international law, and international law
- 2. Case groups using non-binding comparative law
- 3. The legal quality of foreign judgments: Between persuasive authority and mere source of legal knowledge
- 4. The importance of comparative law for the ECJ and the ECtHR
- 106–107 V. Academic legal literature 106–107
- 107–109 VI. Summary of chapter 3 107–109
- 110–259 Part 2: Interpretation 110–259
- 110–162 Chapter 4. Wording, systematics and history as traditional methods of interpretation 110–162
- 110–121 I. Interpretation and subsumption 110–121
- 1. Deductive syllogism and subsumption
- 2. The four traditional canons of interpretation
- 3. Criticism of the four interpretation methods and the subsumption model
- 4. Interpretation, substantiation and development of the law
- 121–137 II. Grammatical interpretation 121–137
- 1. Grammatical interpretation as the start of the interpretation process
- 2. Tools to determine clear or ambiguous wording
- 3. The clarity rule of the wording (acte clair doctrine, literal rule, textualism) as an interpretation concept
- 4. Limits of the wording and the prohibition of analogy
- 5. The importance of the wording for the ECJ
- 137–151 III. Systematic interpretation 137–151
- 1. Meaning
- 2. Individual systematic interpretation concepts
- 3. Conflict-of-law rules
- 4. Systematic interpretation by the ECJ
- 151–161 IV. Historical interpretation 151–161
- 1. Historical interpretation in the broad and narrow sense
- 2. Legislative intent in the materials of the concrete norm
- 3. The meaning of the history of the legislation for the ECJ
- 161–162 V. Summary of chapter 4 161–162
- 163–208 Chapter 5. Telos, logic and impact-oriented interpretation 163–208
- 163–171 I. The purpose of the law as teleological interpretation 163–171
- 1. On telos, the ratio legis
- 2. Determining the purpose of the law
- 3. The jurisprudence of interests and the jurisprudence of values
- 171–178 II. Individual logical figures of argumentation 171–178
- 1. Contravention of the general rules of logic
- 2. Circular argument (petitio principii)
- 3. Leap in conclusion (saltus in concludendo)
- 4. Avoiding circumvention of the law
- 5. Avoidance of rule contradictions, approximation of norms and maintaining the scope of a norm
- 6. Individual figures of argumentation of the ECJ
- 178–196 III. Impact-oriented interpretation 178–196
- 1. Terminology, and relevance for impact-oriented interpretation
- 2. The limits of impact-oriented interpretation
- 3. Individual figures of argumentation
- 4. Impact-oriented argumentation at the ECJ
- 196–207 IV. The economic analysis of law 196–207
- 1. Aims and methods of the law and economics approach
- 2. The limits of the economic approach
- 3. The importance for legal methodology
- 4. Economic considerations of the ECJ
- 207–208 V. Summary of chapter 5 207–208
- 209–259 Chapter 6. Teleological counter concepts and simple forms of development of the law 209–259
- 209–225 I. Teleological counter concepts to formal arguments 209–225
- 1. Wording
- 2. System
- 3. Historical interpretation
- 4. Telos, impact-oriented and economic analysis
- 225–234 II. Subjective versus objective theory 225–234
- 1. The dispute as a long-running issue in legal methodology
- 2. Subjective theory
- 3. Objective theory
- 4. The subjective-objective theory as a unified theory
- 5. Subjective and objective interpretation
- 234–254 III. Ordinary forms of development of the law 234–254
- 1. Teleological reduction
- 2. The dispute about the definition of an omission
- 3. Individual analogy (statutory analogy)
- 4. General analogy (legal analogy)
- 5. Ordinary forms of development of the law at the European level
- 254–257 IV. The difficult search for telos 254–257
- 1. Missing link to a constituent element
- 2. Multiple regulatory purposes
- 257–259 V. Summary of chapter 6 257–259
- 259–373 Part 3: Substantiation 259–373
- 259–289 Chapter 7. Substantiation of law by the legislature, the administration and the courts 259–289
- 259–264 I. Substantiation of the law 259–264
- 1. Interpretation versus substantiation
- 2. General clauses – curse or blessing?
- 264–270 II. Substantiation by the legislature 264–270
- 1. General clauses and rule examples in German law
- 2. General clauses and rule examples in criminal law
- 3. Substantiation of general clauses by the European legislature
- 270–272 III. Substantiation by the administration or private regulatory systems 270–272
- 1. German law
- 2. European law
- 272–288 IV. The comparative case method as substantiation by the courts 272–288
- 1. The similarity between individual analogy and the comparative case method
- 2. The binding nature of court decisions
- 3. The comparative case method of the ECJ
- 4. Individual arguments in case law
- 5. The legal comparative method: the ‘how’
- 288–289 V. Summary of chapter 7 288–289
- 290–306 Chapter 8. The Bewegliche System, case groups and comparative case group as substantiation methods 290–306
- 290–297 I. The Bewegliche System (flexible system) 290–297
- 1. The basics
- 2. Application in German law
- 3. Application in European law
- 297–300 II. Case groups to substantiate general clauses 297–300
- 1. Case groups
- 2. Case groups in European law
- 300–305 III. The structuring of several attribution criteria of different case groups 300–305
- 1. Attribution criteria of different case groups as a Bewegliche System
- 2. Developing new case groups – a flux
- 3. Establishing a new case group under European law
- 305–306 IV. Summary of chapter 8 305–306
- 307–337 Chapter 9. Legal doctrine and general legal principles 307–337
- 307–315 I. General legal principles and legal doctrine 307–315
- 1. The use of legal doctrine for legal methodology
- 2. Legal doctrine and legal methodology
- 3. Differentiating legal ideas, legal principles and legal concepts
- 315–319 II. Using legal principles in cases: justification and construction of the legal principle 315–319
- 1. The justification of the legal principle as a first step: recourse to statute or induction
- 2. The substantiation of legal principles as a necessary second step
- 319–324 III. Legal principles in private law: derivation and substantiation of private autonomy 319–324
- 1. Inductive derivation of pacta sunt servanda
- 2. Freedom of contract and apparently contradictory legal principles
- 324–332 IV. The right to self-determination as justification of various legal concepts 324–332
- 1. Approaches in the academic literature
- 2. Private autonomy as self-determination for both parties
- 3. The legal-doctrinal justification of the various legal concepts with a lack of the right to self-determination
- 4. The substantiation and establishment of legal concepts through the principle of self-determination
- 332–336 V. Legal principles at the European level 332–336
- 1. Challenges in deriving principles at the European level
- 2. General legal principles in European law
- 336–337 VI. Summary of chapter 9 336–337
- 338–373 Chapter 10. Balancing as construction 338–373
- 338–348 I. Balancing in public law 338–348
- 1. Balancing as construction
- 2. The structure of balancing
- 3. Legal doctrinal conclusions from the balancing
- 4. The examination of fundamental rights as a successful construction of law
- 348–357 II. Balancing of fundamental rights 348–357
- 1. The objective scope of protection of fundamental rights
- 2. Interference and restrictions
- 3. Justifying the interference (Schranken or restrictions)
- 4. Limits of restrictability (Schranken-Schranke), in particular proportionality
- 357–363 III. Balancing European fundamental rights and freedoms 357–363
- 1. Comparison of the substantiation of fundamental rights and freedoms
- 2. European fundamental rights
- 3. European fundamental freedoms – differences to German law
- 363–372 IV. Balancing conflicting legal principles in private law 363–372
- 1. Conflicting principles in private law
- 2. Balancing legal principles using the example of the contract with protective effect in favour of third parties as a legal concept of conflicting legal principles
- 3. The principle of proportionality in private law
- 372–373 V. Summary of chapter 10 372–373
- 374–447 Part 4: Primacy of constitutional and European law 374–447
- 374–406 Chapter 11. The Constitution as higher-ranking law 374–406
- 374–384 I. The different functions of the Constitution 374–384
- 1. Fundamental rights and the Basic Law as an objective set of values
- 2. The effect of fundamental rights on private individuals
- 3. The effect of the Constitution on case law
- 384–387 II. Unconstitutionality and constitutional law arguments 384–387
- 1. Invalidity of an unconstitutional law
- 2. Exceptions from invalidity
- 3. Disputed arguments in constitutional law
- 387–390 III. Constitutionally-oriented interpretation 387–390
- 1. Constitutionally-oriented interpretation as an interpretation concept
- 2. Constitutionally-oriented interpretation as a simple balancing rule in private law
- 390–395 IV. Interpretation in conformity with the Constitution 390–395
- 1. Fundamental issues regarding interpretation in conformity with the Constitution
- 2. Interpretation in conformity with the Constitution in public law
- 3. Interpretation in conformity with the Constitution in private law
- 395–404 V. Development of the law in conformity with the Constitution 395–404
- 1. The contradictory case law of the Federal Constitutional Court
- 2. Development of the law in conformity with the Constitution as a legal concept
- 3. Case groups of permissible development of the law in conformity with the Constitution
- 4. Limits to development of the law in conformity with the Constitution in the case of infringements of fundamental rights by third parties – the dispute of the constitutional Senates
- 404–406 VI. Summary of chapter 11 404–406
- 407–447 Chapter 12. The primacy of European law and international law 407–447
- 407–411 I. Direct applicability as a prerequisite for primacy of application 407–411
- 1. The relationship between direct applicability, primacy of application, and interpretation in conformity with European law
- 2. Direct applicability or direct effect of European law
- 3. Third-party effect of primary law on private individuals
- 411–416 II. Primacy of application and the obligation to interpret in conformity with Union law 411–416
- 1. European terminology
- 2. The two-step interpretation in conformity with primary law
- 3. The relationship between primacy of application and interpretation in conformity with Union law
- 416–437 III. Secondary law: regulations, directives, recommendations 416–437
- 1. Primacy effect of regulations and interpretation in conformity with regulations
- 2. Primacy effect of directives and broad interpretation in conformity with the directive
- 3. Narrow horizontal interpretation in conformity with the directive
- 4. Development of the law in conformity with the directive
- 5. Further questions on the implementation of directives
- 6. Duty of referral and subsidiary duty of compliance with recommendations
- 7. Summary
- 437–442 IV. Further means of enforcing European law 437–442
- 1. The obligation to clearly transpose European law
- 2. Preliminary ruling procedure and obligation to refer a preliminary ruling according to Article 267 of the TFEU
- 3. The state liability claim under EU law
- 4. Recovery of subsidy unlawful under EU law
- 442–444 V. International law 442–444
- 1. Principle of interpretation in conformity with international law
- 2. Similarities and differences
- 3. Appraisal
- 444–447 VI. Summary of chapter 12 444–447
- 449–551 Part 5: Peace under the law and legal certainty as objectives of legal methodology 449–551
- 449–489 Chapter 13. Limits to development of the law 449–489
- 449–455 I. The uncertain boundaries of permissible development of the law 449–455
- 1. The boundaries of permissible development of the law as a permanent dispute in legal methodology
- 2. The consequences of permissible or improper development of the law
- 3. Methodological blindfold
- 4. Definitions of the limits of permissible development of the law
- 5. Arguments to avoid improper development of the law
- 455–461 II. First step: traditional arguments 455–461
- 1. Clarity and openness of the wording
- 2. Working on the system – omissions and the closed system
- 3. The intent of the legislature and the change in life circumstances reflected in the law (objective interpretation)
- 4. The purpose as justification for development of the law
- 461–467 III. Second step: A glimpse of the legal consequences 461–467
- 1. Impact-oriented considerations in development of the law
- 2. Unfair hardship with obvious legal protection gap and inactivity of the legislature
- 3. Consensus, support from comparative law, and increase in legal certainty
- 467–470 IV. Third step: The Constitution as higher-ranking law 467–470
- 1. Protection of fundamental rights of the injured party and impairment of fundamental rights of third parties
- 2. Impairment of fundamental rights and protection of legitimate expectations
- 3. Protection of legitimate expectations where the case law changes
- 4. The principle of legality as an expression of the citizen’s legitimate expectations
- 470–471 V. Fourth step: Higher-ranking European law and international law 470–471
- 1. Development of the law in conformity with primary law and regulations
- 2. Development of national law in conformity with the directive and its limits
- 3. Individual expectations as a limit to permissible development of the law
- 471–486 VI. Fifth step: Limits to competences 471–486
- 1. Separation of powers and the limits of the courts
- 2. Reservation of the power to legislate and the competence of Parliament
- 3. Conflict of jurisdiction between the courts
- 4. Substantiation and development of the law
- 486–488 VII. Balancing and weighting of various arguments in the context of development of the law 486–488
- 1. Rules of precedence, presumption and burden of argumentation
- 2. Balancing rules
- 3. The relationship between the five-step system and the balancing rules
- 488–489 VIII. Summary of chapter 13 488–489
- 490–535 Chapter 14. A modern legal methodology 490–535
- 490–491 I. The path to a modern methodology 490–491
- 1. Traditional versus postmodern methodology
- 2. A modern methodology
- 491–503 II. Extension of legal methodology by case hermeneutics 491–503
- 1. The interaction of facts and legal norms
- 2. Hermeneutics of the facts for determining the case area
- 3. The norm range
- 503–513 III. Legal creativity and legal thinking 503–513
- 1. Postmodern methodology: identifying the law versus creating the law
- 2. Legal creativity – the process of discovery
- 3. Topics doctrine and legal creativity
- 4. Legal thinking as part of modern methodology
- 513–519 IV. Sources of legal methodology 513–519
- 1. The basics as neighbouring disciplines
- 2. State theory, legal doctrine and philosophy of law
- 519–531 V. Examination sequence and ranking of argumentation concepts as building blocks of a metamethodology 519–531
- 1. Method chaos and pluralism of methods
- 2. Six examination steps to determine the legal solution
- 3. The fourfold weighting of the figures of argumentation
- 4. Conclusions
- 531–533 VI. Summary of chapter 14 531–533
- 533–535 VII. The value of judicial methodology – a final word 533–535
- 535–551 Chapter 15. Cases in greater depth 535–551
- 535–535 I. Legal methodology as a theory of legitimacy and justification 535–535
- 535–536 II. Sources of law 535–536
- 536–537 III. Secondary sources of law and sources of legal knowledge 536–537
- 537–538 IV. Wording, systematics and history as traditional methods of interpretation 537–538
- 538–540 V. Telos, logic and impact-oriented interpretation 538–540
- 540–541 VI. Teleological counter concepts and simple forms of legal development 540–541
- 541–542 VII. Substantiation of the law by the legislature, the administration and the courts 541–542
- 542–543 VIII. The Bewegliche System, case groups and case group comparison as substantiation methods 542–543
- 543–544 IX. Legal doctrine and general legal principles 543–544
- 544–545 X. Balancing as substantiation 544–545
- 545–545 XI. The Constitution as higher-ranking law 545–545
- 545–547 XII. The primacy of European law and international law 545–547
- 547–550 XIII. Limits to development of the law 547–550
- 550–551 XIV. A modern legal methodology 550–551
- 551–557 Appendix. Selected figures of argumentation 551–557
- 557–567 Table of Cases 557–567
- 567–569 Databases for German, European and foreign cases 567–569
- 569–586 Index 569–586
