Legal Methods

Name: Legal Methods | How to work with legal arguments
Brand: C.H.Beck Digital
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How to work with legal arguments

Thomas M. J. Möllers(Author)

C.H.Beck Digital (Publisher)

1st Edition

Published on 22. March 2022

585 pages

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978-3-406-77930-5 (ISBN)

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Cover
Title
Imprint
Preface
Acknowledgements
Translator's note
Table of contents
Illustrations
List of Abbreviations
Databases for German, European and foreign legislative acts
Principal Works Cited
Part 1: The basics - sources of law
Chapter 1. Legal methodology as a theory of legitimacy and justification
I. The purpose of legal methodology
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
II. Legal methodology as a theory of legitimacy
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
III. Legal methodology as a theory of argumentation
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
IV. The claim to justice of legal methodology
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
V. Summary of chapter 1
Chapter 2. Sources of law
I. Law and sources of law
1. Criteria for describing law
2. Differentiating law from morality, ethics and political correctness
II. Hierarchy of legal sources in Germany
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
III. The hierarchy of law in Germany today, including European law
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
IV. The hierarchy of law in Germany today, including international law
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
V. Natural law
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
VI. Summary of chapter 2
Chapter 3. Secondary sources of law and sources of legal knowledge
I. Problems: Sources of legal knowledge alongside primary sources of law?
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
II. The importance of case law in the determination of law
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
III. Administrative regulations, private rule-setting, and European recommendations
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
IV. The importance of foreign judgments in the determination of law
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
V. Academic legal literature
VI. Summary of chapter 3
Part 2: Interpretation
Chapter 4. Wording, systematics and history as traditional methods of interpretation
I. Interpretation and subsumption
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
II. Grammatical interpretation
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
III. Systematic interpretation
1. Meaning
2. Individual systematic interpretation concepts
3. Conflict-of-law rules
4. Systematic interpretation by the ECJ
IV. Historical interpretation
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
V. Summary of chapter 4
Chapter 5. Telos, logic and impact-oriented interpretation
I. The purpose of the law as teleological interpretation
1. On telos, the ratio legis
2. Determining the purpose of the law
3. The jurisprudence of interests and the jurisprudence of values
II. Individual logical figures of argumentation
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
III. Impact-oriented interpretation
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
IV. The economic analysis of law
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
V. Summary of chapter 5
Chapter 6. Teleological counter concepts and simple forms of development of the law
I. Teleological counter concepts to formal arguments
1. Wording
2. System
3. Historical interpretation
4. Telos, impact-oriented and economic analysis
II. Subjective versus objective theory
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
III. Ordinary forms of development of the law
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
IV. The difficult search for telos
1. Missing link to a constituent element
2. Multiple regulatory purposes
V. Summary of chapter 6
Part 3: Substantiation
Chapter 7. Substantiation of law by the legislature, the administration and the courts
I. Substantiation of the law
1. Interpretation versus substantiation
2. General clauses - curse or blessing?
II. Substantiation by the legislature
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
III. Substantiation by the administration or private regulatory systems
1. German law
2. European law
IV. The comparative case method as substantiation by the courts
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'
V. Summary of chapter 7
Chapter 8. The Bewegliche System, case groups and comparative case group as substantiation methods
I. The Bewegliche System (flexible system)
1. The basics
2. Application in German law
3. Application in European law
II. Case groups to substantiate general clauses
1. Case groups
2. Case groups in European law
III. The structuring of several attribution criteria of different case groups
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
IV. Summary of chapter 8
Chapter 9. Legal doctrine and general legal principles
I. General legal principles and legal doctrine
1. The use of legal doctrine for legal methodology
2. Legal doctrine and legal methodology
3. Differentiating legal ideas, legal principles and legal concepts
II. Using legal principles in cases: justification and construction of the legal principle
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
III. Legal principles in private law: derivation and substantiation of private autonomy
1. Inductive derivation of pacta sunt servanda
2. Freedom of contract and apparently contradictory legal principles
IV. The right to self-determination as justification of various legal concepts
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
V. Legal principles at the European level
1. Challenges in deriving principles at the European level
2. General legal principles in European law
VI. Summary of chapter 9
Chapter 10. Balancing as construction
I. Balancing in public law
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
II. Balancing of fundamental rights
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
III. Balancing European fundamental rights and freedoms
1. Comparison of the substantiation of fundamental rights and freedoms
2. European fundamental rights
3. European fundamental freedoms - differences to German law
IV. Balancing conflicting legal principles in private law
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
V. Summary of chapter 10
Part 4: Primacy of constitutional and European law
Chapter 11. The Constitution as higher-ranking law
I. The different functions of the Constitution
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
II. Unconstitutionality and constitutional law arguments
1. Invalidity of an unconstitutional law
2. Exceptions from invalidity
3. Disputed arguments in constitutional law
III. Constitutionally-oriented interpretation
1. Constitutionally-oriented interpretation as an interpretation concept
2. Constitutionally-oriented interpretation as a simple balancing rule in private law
IV. Interpretation in conformity with the Constitution
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
V. Development of the law in conformity with the Constitution
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
VI. Summary of chapter 11
Chapter 12. The primacy of European law and international law
I. Direct applicability as a prerequisite for primacy of application
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
II. Primacy of application and the obligation to interpret in conformity with Union law
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
III. Secondary law: regulations, directives, recommendations
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
IV. Further means of enforcing European law
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
V. International law
1. Principle of interpretation in conformity with international law
2. Similarities and differences
3. Appraisal
VI. Summary of chapter 12
Part 5: Peace under the law and legal certainty as objectives of legal methodology
Chapter 13. Limits to development of the law
I. The uncertain boundaries of permissible development of the law
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
II. First step: traditional arguments
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
III. Second step: A glimpse of the legal consequences
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
IV. Third step: The Constitution as higher-ranking law
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
V. Fourth step: Higher-ranking European law and international law
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
VI. Fifth step: Limits to competences
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
VII. Balancing and weighting of various arguments in the context of development of the law
1. Rules of precedence, presumption and burden of argumentation
2. Balancing rules
3. The relationship between the five-step system and the balancing rules
VIII. Summary of chapter 13
Chapter 14. A modern legal methodology
I. The path to a modern methodology
1. Traditional versus postmodern methodology
2. A modern methodology
II. Extension of legal methodology by case hermeneutics
1. The interaction of facts and legal norms
2. Hermeneutics of the facts for determining the case area
3. The norm range
III. Legal creativity and legal thinking
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
IV. Sources of legal methodology
1. The basics as neighbouring disciplines
2. State theory, legal doctrine and philosophy of law
V. Examination sequence and ranking of argumentation concepts as building blocks of a metamethodology
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
VI. Summary of chapter 14
VII. The value of judicial methodology - a final word
Chapter 15. Cases in greater depth
I. Legal methodology as a theory of legitimacy and justification
II. Sources of law
III. Secondary sources of law and sources of legal knowledge
IV. Wording, systematics and history as traditional methods of interpretation
V. Telos, logic and impact-oriented interpretation
VI. Teleological counter concepts and simple forms of legal development
VII. Substantiation of the law by the legislature, the administration and the courts
VIII. The Bewegliche System, case groups and case group comparison as substantiation methods
IX. Legal doctrine and general legal principles
X. Balancing as substantiation
XI. The Constitution as higher-ranking law
XII. The primacy of European law and international law
XIII. Limits to development of the law
XIV. A modern legal methodology
Appendix. Selected figures of argumentation
Table of Cases
Databases for German, European and foreign cases
Index

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