The
volume, published by West University Press in 2024, is entitled "Legal Reasoning and Argument. A Handbook" and focuses on
interpretation methods from the German space.
(...)
My
approach to legal methods
(...)
In
the following sequence, I would present less of the content and more
of the approach I took to legal methods of Interpretation in general.
I went to France to pursue a DEA, which would lead to a master's
degree in Law. I completed a DEA in the field of EU Court procedure
at the time (1999-2000), and upon finishing, I realized that I didn't
have much to contribute in this direction. I became interested in
pursuing a doctorate in the field of EU Court interpretation methods.
I
addressed the person who became my thesis supervisor, Professor Jean
Dennis Mouton, and he emphasized that the methods of the Court had
already been explored. I had as examples some remarkable theses on the legal methods of the Court, in vast volumes of about
2,000-3,000 pages, elaborated at the University of Caen. He suggested
that I work on comparison as an interpretative method of the European
judge. The topic was complicated because I didn't know where to
start, and I had to do extensive reading to understand the legal
methods in general.
One
of the significant developments that occurred was a discovery I made
in 2004, approximately four years after I began my thesis. I had the
extraordinary surprise of discovering a great German author,
Professor Eberhard Dorndorf, who you see above on the screen.
Mr.
Dorndorf offered a course on legal methods, titled "Grundriss
der Methodenlehre," on his website between 2000 and 2017, which
included examples, theoretical expositions, corrected exams, and
additional materials. It was something extraordinary. How many people
do this to offer the world, including exams with students and corrections? So, Eberhard Dorndorf, do you see him? Here is a photo
of him.
He
is a civil lawyer by profession, specifically in labor law. With
methodological skills, as he has written extensively about the
outstanding German methodologists. The meeting with this site and its
contents allowed me to find my direction in the thesis, which
advanced relatively easily from that moment on.
And
a second fundamental encounter, this time provoked, so the encounter
I sought is with one of the outstanding German methodologists,
perhaps the greatest, little known outside Germany, it is Philipp von
Heck, the creator of the Doctrine of Interests
(Interessenjurisprudenz). I had the encounter with him through the
discovery in 2008 of the only translation into a language other than
German (into English), made by Magdalena Schoch in 1946.
Thus,
it was the discovery of an author who found a method for developing
decisions in difficult situations (situations that Hart referred to
as "hard cases") by emulating the interests that the
legislator initially determined and evaluated. To apply a new
problem, one must determine the interests considered by the
legislator, and the judge will apply them to the case before them. So
this was the second essential meeting.
I
published an article about Heck based on that work, and I was still
in contact with both authors. As a visiting professor in Bosnia and
Herzegovina, I taught a course on comparative legal methods, where I
compared English and American (United States) methods (especially
those of the US Supreme Court). For Germany, I used the website of
Professor Eberhard Dorndorf.
Furthermore,
during my 12-year tenure as a professor in South Korea, I taught a
course titled initially "Great Court Decisions," where I
compared the legal methods of the US Supreme Court with those of the
German courts. In recent years, the course evolved into a course on
Legal Reasoning and Argument (the final title of this book), as I
realized that a comparison with American Law was no longer relevant
and focused solely on the German side.
And
the result of these courses and seminars is part of the present
volume, to which I added other research that I have undertaken over
the years. I have recently discovered another Spanish author,
Selgado, who has developed a comprehensive thesis that is very
interesting from a philosophical perspective, particularly about
Heck. This thesis enabled me to approach Heck more closely and delve
deeper into other aspects that have also become part of the present
volume.
Why
is Heck so important? And why is he not known, not even in the German
space? Precisely because he is everywhere and nowhere. He is no
longer relevant because everyone in Germany always applies a doctrine
of interests in a simplified form. However, a constitutional
methodologist like Bernd Ruthers considers that one of Heck's
excellent books, on the Interpretation of the Law, written in 1914,
is still, to this day, "state of the art," so unsurpassed
in this matter.
Book
structure
I
will briefly present the topics covered in the book, and then I will
devote part of it to some historical aspects. I have here an excerpt
from the book (an extract of the table of contents).
TABLE OF CONTENTS
Foreword / 11
I. The Application of Legal Norms
1. The structure of legal norms / 15
2. Expanding the legal norm / 17
3. Applying the norm to a case / 19
4. The Subsumption / 21
5. The judicial syllogism as an expression of the subsumption / 23
6. Grounding the premises of a judicial syllogism / 24
Annex 1. Establishing the complete norm for a given case / 26
Annex 2.The translation of a judicial syllogism as predicate logic / 29
II. History of Legal Interpretation in Germany
1. A required vocabulary: rules or arguments, methods, and systems (or schools) of interpretation / 43
2. Friedrich Carl von Savigny and the first canon of methods of interpretation / 45
3. The conceptual doctrine (Begriffsjurisprudenz) / 47
4. The School of Objective Interpretation / 49
5. The crisis of Begriffsjurisprudenz / 50
6. The Free Law School / 51
7. The doctrine of interests-Interessenjurisprudenz / 53
Annex 1. An example of crypto-sociological reasoning criticized by Freirecht Schule's representatives / 57
Annex 2. A case about third-party gifts concurring with inheritance solved by conceptual jurisprudence arguments (Begriffsjurisprudenz) vs. Interessenjurisprudenz / 61
The
first chapter is related to the application of norms based on the
structure adopted by the German space, explicitly addressing the
structure of legal norms, the judicial syllogism, and the problem of
subsuming facts under a norm. The judicial syllogism should not be
confused with Aristotle's categorical syllogism, because the former
is a hypothetical syllogism, in which we have the facts in the norm
(the factual hypothesis of the norm) on the one hand. Then we have
the legal consequences (the conclusion).
The
book also includes a chapter on the history of Interpretation in
Germany. Such a structure was inevitable because the emergence of
several methodological concepts can only be explained historically.
Therefore, I have introduced a chapter on the history of
Interpretation in Germany, followed by another on a methodological
aspect specific to Germany, the difference between methods and
systems of Interpretation. There are, therefore, two floors, which
you will not find anywhere, neither in France nor among the
Americans.
The
methods of Interpretation are those paths to the legal meaning
originally established by Savigny, with later additions. So Savigny
spoke of the literary method, of the logical method, which today
would be partially joined to systematic Interpretation and partially
also to the grammatical method. He defined a historical or genetic
method as the occasion of the Law (occasio legis), and his last
method was the systematic method proper, which appears to have no
counterpart today.
Savigny
is the creator, we all know, of the Historical School, the Pandects,
and so on. And all German doctrine has continued to be related to
him. The Germans, however, have an approach that differs
significantly from the American one. So, each level builds on the
other levels. There is continuity of doctrine, and each generation
relates to and builds upon the previous generations. Nothing is
entirely new, but each one adds to and reinterprets it continuously.
I'll
give you a picture; I'm not sure how much detail I should go into
regarding the history of Germany.
It's the era of the Empire,
specifically the Holy Roman Empire of the German Nation, which
received the civil corpus (Corpus Juris Civilis) of Roman Law.
Following the Napoleonic Wars and the Congress of Vienna, the Empire
began to decline. We have a situation in Germany where, on the one
hand, we have several codes, including the Bavarian Code and the
Saxon Code. Additionally, we have the Landrecht in Prussia, and in
areas bordering France, the Napoleonic Code was considered the Law of
the land. Additionally, we have local customs.
In
the interior space, therefore, Roman Law is applied. Applying
Justinian's Digests or Justinian's Institutions, a four-thousand-page
legal monument of Roman casuistry, to the German realities of the era
required an extraordinary effort of Interpretation. So, this is where
the method comes in, the development of the technique in the German
space.
And,
therefore, he (Savigny) is the coryphaeus of the Historical School,
after him follows Puchta, who continues in the same direction of
acclimatizing the Roman Law in the German space and introduces some
aspects of logic. All the disparate decisions that exist in the
Digests or those institutions that appear in the Institutions of
Justinian are now organized in a logical pyramid of concepts, where
the highest level is based on a principle of freedom derived from
Kant, and all these legal concepts develop vertically.
This concept originated with Ihering, known as the Doctrine of
Concepts (Begriffsjurisprudenz). So, Ihering defined
Begriffsjurisprudenz, where jurisprudenz means doctrine.
The
most crucial element in this doctrine is the concept. And certain
concepts are normative, so they intervene; they are related to
aspects that exist in the Corpus Juris Civilis, through abstraction.
And beyond them are concepts of the doctrine. Thus, this is how the
concept, for example, of a legal act or a subjective right, emerged.
The latter is the highest abstraction, as the final concept of
rights.
That
was the aspect that Ihering emphasized, and he says even more than
that. If we have a situation that was not foreseen, based on this
articulation of abstractions (concepts), the new case could be
solved. And he said that these concepts are like chemical bodies that
combine and create new substances or new mixtures. That was his idea.
Ihering
experiences a moment of awakening, sometime after the 1860s-70s, when
he is invited to provide answers to practical cases and discovers the
difficulty of the practical. With everything he knew about Roman Law,
he could not answer or answered with great difficulty, to practical
cases. And then he has a kind of enlightenment. Then he said that he
stopped being a conceptualist and adopted other positions.
So,
he discovers the interests that lie behind the Law, in a struggle
with each other at the social level, and thus he finds the social.
Here, he has a conversion by which he abandons concepts and the
combination of concepts to discover the social. He is also the one
who inaugurates teleology; the idea of telos would also come from
Ihering. Unfortunately, Ihering was not able to find a practical
solution for the judges. So he formulates a purely abstract doctrine,
saying interesting things, but without giving solutions.
And
the one who will provide practical solutions will be Heck himself.
I'll also show you this picture of him.
So,
he is a fascinating figure. Heck was a student of Mathematics, and he
had friends in Law. And they invited him to discussions and
experimented on him, because he had no legal knowledge, but he had
legal common sense, and they confronted him with various cases. There
were many such cases in which the respective parties agreed with the
common-sense solution formulated by Heck. However, they recognized
that they could not adopt it because they were unable to build it
following the concepts. Heck was amazed by such a situation and later
decided to give up studying Mathematics and enroll in Law. And here
he discovered Ihering, with his book on the Spirit of Roman Law and
other works by him.
By
the way, I read Ihering's book in the French version, and it doesn't
say much (from a practical point of view). In The Spirit of Roman
Law, Ihering aims to encompass all of Roman Law; however, after a few
hundred pages, he stops at the first actions, following the 12
Tables. So, he didn't even get to the formulary actions, and he
didn't cover the development of imperial Law either.
Heck's
contact with Ihering will allow the former to elaborate and deepen
this Doctrine of Interests (Interessenjurisprudenz).
Heck's
movement is simultaneous with the Free Right movement. Free Right,
which we know was represented in France by François Gény. I studied
in François Gény's amphitheater in Nancy, as that's where he's
from. François Gény was a French scholar who knew German and
studied the German doctrines of the era.
According
to Free Law, the judge is free to decide when faced with a complex
case, based on the assessment they make in social reality. For a long
time, the Doctrine of Interests was often confused, and still is
sometimes confused, with the doctrine of Free Law. Free Law, or
FreieRecht Schule, says that in social reality lies the solution to
new cases, because each case has its own Law, its own justice.
And there is the famous
example that François Gény gives with the good judge Magnion, who
decided all the cases in equity, beyond the letter of the Law,
although all of them were overturned on appeal. He provided the
parties with a good solution as a "good judge". And Gény said
that he didn't represent his approach.
So,
this doctrine of Free Law created a great stir in Germany. But it
failed to impose a method. When, finally, each judge decides as he
wants, we no longer have legal certainty. And legal certainty is
sometimes more important than substantive justice.
The
only one, therefore, who proposes something concrete is Heck with
Interessenjurisprudenz, which slowly, gradually, is becoming
established. Somewhere around the 20s-30s, German decisions began to
adopt the Doctrine of Interests. For example, one of the judges of
the Reichsgericht, the German Supreme Court of the time, stated that
Heck's method is complicated, but it is the only possible one.
It
is challenging because in the German space, all these methods are
normative; professors proposed them. In the German space, the typical
figure is the professor. In the French space, the typical figure is
the lawyer. In the Anglo-Saxon space, the typical figure is the
judge. Therefore, the method proposed by a (German) professor who
has all the time in the world may not be effective for a judge who
does not have the same luxury of time to address a case.
Therefore,
one must identify the interests that exist in the Law and see how the
legislator measured and weighed them, and then apply these interests
to the case that the judge was facing. These are complex things.
Therefore, his method was integrated into the German system. Today,
it is outdated because, for example, the presence of the
Constitutional Court is also now taken into consideration. The
Constitutional Court in Germany, for instance, can intervene in
contracts based on general clauses.
There
is another aspect that is specific to the German world, two. So I
have already mentioned the methods of Interpretation. We discussed strategies, and now we are examining systems, or Schools of Interpretation (see another extract from the table of matters below).
III. Subjective and objective systems of Interpretation
1. History of the debate between subjective vs objective theories of interpretation / 75
A. The subjective theory / 75
B. The objective theory / 76
C. Early objections to the subjective theory / 77
2. The actual situation in the debate / 78
A. Objective theory seems too win / 78
B. Later criticism of the objective theory / 79
3. The proposed articulation of the two systems with a strong emphasis on the Subjective interpretation / 81
A. The direction of the solution / 81
B. The normative theory of Koch and Russmann / 81
There are two essential Schools: the subjective
School and the objective School. School here refers to a specific
vision of the location of legal truth.
So,
one, the subjective School is the one that considers the legal truth
to lie in the person of the legislator behind the Law. For example,
when interpreting a book, you can begin by considering the author's
intentions, starting from their point of view—the same approach
applies to the legislator.
The
objective of the School considers not the author but the text itself. The
Law is like a ship that leaves the port, goes to sea, and has its own
life. And it no longer matters what the author of the Law wanted.
Like in Umberto Eco's "Opera aperta," you find the meaning
(in a freer way), starting from the work itself, not from the author.
So
these are the two Schools of Interpretation. Heck falls into a
subjective interpretation, yet it incorporates elements of
objectivity. And between these two elements, in Germany today, the
objective School is defeated in the sense that the Interpretation of
the Constitutional Court in Karlsruhe is objective. And, when they
interpret the Law, they have extraordinary power, as I told you,
since there are situations in which they can intervene in contracts
through general causes (such as good faith, good morals, etc.).
Interpretation
can be both subjective and objective, but the subjective aspect has
disappeared. The subjective still exists in the civil space.
So
we have two groups of methodologists. Methodologists who come from
constitutional Law are few, and the outstanding methodologists are
primarily civil law scholars. So Heck is a civilian, Larentz is a
civilian, and all the others are civilians except for Bern Ruthers,
who is a constitutionalist.
One
of the outstanding methodologists and practically the established
methodologist of Germany today, Karl Larenz, who was sometimes
criticized on ideological grounds, I believe that during Nazism, he
was part of the Kiel school, a neo-Hegelian movement, and
is still considered the greatest methodologist. He is an objectivist
with subjectivist tendencies, so he combines elements of both.
And
much more recently, we have the impulse created by Koch and Russman,
the two authors whom Eberhard Dorndorf follows in his Grundriss der
Methodenlehre. They believe that we must return to the subjective
because the method considered objective hides the subjectivity of the
interpreter. You, the interpreter, are the one who puts meaning into
the Law, because the Law has no will of its own. The Law is an
object, and objects do not have a will. Only Aristotle considered
that objects have a tendency, a will, and a final goal.
And
then, Koch and Rusman propose a sequence of Interpretation, an order
of Interpretation. It begins, as always, with (the method of)
grammatical or literal Interpretation, as of today. So, the moment is
today, the moment of Interpretation, not the moment in the past
(because if you look at the American legal world, you will see that
originalists look back in time).
And
in a later phase, there is subjective Interpretation, so the search
for the subjectivity of the legislator, but not all subjectivity. Not
everything the legislator wanted is essential—only certain things,
along the lines of Heck.
Heck
considered that I should not look for the psychological will of the
legislator, but for his normative will. What did he want to do? What
did he want to protect? And you have to find that by doing a specific
purification of what is provided, for example, by the preparatory
works and, especially, by history. The historical question, when you
go back in time, is "ocazio legis". Why was this Law adopted, and
what was in place before it? And that allows you to understand the
reason, the real impetus, and the purpose of the Law. So what did the
legislator want to change?
And
only later does this objective Interpretation follow. It intervenes
at the limit, and cannot go against the goals identified by the
subjective Interpretation. Subjective in the sense that I have
presented, and which aligns with Heck.
And,
of course, there is another aspect specific to the German world,
which, interestingly, does not exist in the French world, even though
the French are the closest to German thinking. Why? Because they
borrowed from the Germans. But they borrowed in a different era. In
Germany, there is a distinction between the Interpretation of the Law
and Rechtsfortbildung, which refers to the development of the Law. In
the development of the Law, you have to go in the direction wanted by
the legislator, so you don't create freely, so you don't do what the
Free Law School did.
But
how? What would these methods be? They are the methods mentioned in
the book, such as analogy, a fortiori, a contrario, teleological
reduction, and reductio ad absurdum, all of which are relevant to the
development of Law in the German context. In France, if you look at
the French doctrine, they are all part of the Interpretation. Please
also note that I introduced the development of the Law between
subjective and objective interpretations in the structure of the
work (see below another extract of the table of matters).
IV. Literal Interpretation
1. General aspects about methodology / 87
A. The foursome canon / 87
B. Differentiating the origins of the rules for methodology / 88
2. Literal (grammatical) interpretation / 90
A. Interpretation within the limits of the possible meaning of the word / 93
B. Interpretation of the words clarifying the requirements for development of law / 94
Example: BGH JZ 1961, 494 ff (window) / 94
Addendum. German Civil Code about the Interpretation of contracts / 97
V. Subjective Interpretation
1. Aim and problems / 101
A. Problem of the "will of the legislature" / 101
B. Change in the actual circumstances; factual mistake / 103
2. Structure of subjective-teleological interpretation / 103
Addendum. Illustrating the principle of proportionality / 105
Example: BGHZ 46, 74 (June 30, 1966) Gramophone case / 106
VI. Development of Law
1. Interpretation of Law and development of law / 113
A. Interpretation of the word clarifying the requirements for the development of law / 114
B. The consequences of these distinctions vary depending on the legal field / 115
2. The gap in the Law as a preliminary requirement for the development of the law / 115
A. Are gaps real? / 115
B. Typology of gaps / 116
3. Specific arguments for the development of Law (and filling gaps in Law) / 120
A. Argument a fortiori / 120
B. Analogy / 121
C. Converse argument, argumentum ad contrario, argumentum ad silentio / 123
D. Restrictive interpretation and teleological reduction / 124
E. The formal aspect of all these arguments / 126
Case 1 / 126
Case 2:BGHZ 4, 153 59, 59, 115 / 127
Case 3: BGHZ 112, 122 / 127
Reexamination of case 3 from the perspective of gaps / 130
VII. Objective Interpretation
1. Terms and goals of Objective interpretation / 135
2. Systematic argumentation in general / 136
3. The systematic arguments in detail / 136
A. Conceptually dogmatic arguments / 136
B. Arguments of interest / 137
C. Arguments from principles / 138
D. Constitutional arguments: Interpretation according to constitutional law / 140
E. Interpretation in conformity with European law / 140
F. Specific legal arguments / 141
4. Objective-teleological argumentation / 141
A. Ethical reasoning / 142
B. Deontological arguments / 142
C. Objective-teleological or consequentialist arguments / 142
5. The connection of the objective Interpretation to the subjective interpretation / 143
Annex. Example of deontological and consequentialist (objective-teleological) argumentation / 144
As
you can see in the book, there are numerous cases. I was amazed to
see that many books on legal methods lack practical case studies.
Method is the theory of a practice. If you do not offer anything
useful, what is the advantage? Here I am, in the line of Professor
Eberhard Dorndorf, and the line of Koch and Russman. I have also
attached the research I conducted on Heck, as well as that on Free
Law, two large and complex decisions that I do not recommend anyone
read immediately. They can be understood on a second reading of the
book, as they are somewhat complicated for a textbook intended for
students. But they can be an opening for the future.
Questions
and answers
--Is
methodology, and to what extent, a constitutional issue?
Eberhard
Dorndorf demonstrates that an article of the German Constitution
states that judges decide in the name of the Law and justice. So
there is an article that says that. There is another article, Article
20 of the Constitution, which discusses equality. In similar cases,
they must decide the same, similarly. It has implications for the
judge. Similar cases must be decided similarly. And then there are
other things. So, the non-activity of the plenary king, etc. But
these specifically constitutional aspects of a methodological nature
are few. Methodology is not defined in the Law. Methodology is a
matter of rationality, encompassing principles of rationality and
argumentative reasoning. So, this is how I answer this question.
-Free
or restrictive Interpretation?
For
Interpretation in Law, by the nature of things, we are in modern
states where the Law is the basis. So you are constrained by the Law.
The judge is not invited to override the separation of powers; he is
not a legislator; instead, he applies the Law as it stands. In the
name of the Law, the Court decides. So he is not invited to invent or
create the Law. What Umberto Eco and postmodernism did is something
else. Therefore, you cannot escape the specific (in this case, legal)
framework.
---What
are the limits for the judge in relation to the Law?
You
have to qualify the methods you use, clarify what you do, outline
your assumptions, and disclose the legal basis. So the method is
essential here. The moment you become a decisionist, you no longer
have a process. I decide because that's how I want it, according to my
will. Many times, a decisionist doesn't say it directly, but does it
implicitly.
Speaking
of Ruthers. I also included a photo of him, as it would be interesting to recognize him in the future.
He says that judges are not called to enact or create
Law. Historically, there have been moments in history, such as in
1923, when the German Supreme Court rebelled against the Legislature.
It's the only moment when it did so explicitly and clearly, related
to the issues of reparations and the revaluation of debts secured by
mortgages. But the judge can also do it indirectly, hidden. How?
Using the objective Interpretation. Why? Because the objective
Interpretation is, in fact, subjective.
Subjective
Interpretation means going back in time to see what the legislator's
will was, whereas the objective Interpretation states that there is
no will of the legislator; what is essential is what the interpreter
sees in the Law. So here, what matters is the subjectivity of the
interpreter. In fact, the objective Interpretation is very
subjective.
And
hiding here, for example, are the objective Schools, which do not
consider the loophole in the Law. How can you identify the gap in the
Law? How can you know that something is missing in the Law if you
don't go back in time to see what the legislator wanted to do? Well,
as an objectivist, you don't care. Well, no, because I (the judge)
decide.
Therefore,
you must go back in time, examine the text, and discern the purpose
and telos that the legislator originally intended. And then you can
relate to it. Therefore, you require a subjective interpretation.
Aha, there are situations when you can't find an answer. That's true.
However, you must say it clearly. I was there, I searched, and I didn't
find an answer, so I'll do it myself. However, you don't go directly
to the objective Interpretation; instead, you elaborate and explain
it.
If
you hide that, you become a legislator, a hidden one. And Ruthers was
clearly saying that this way we end up in a society of aristocratic
robes. He (Ruthers) has some exciting books. One of the degenerations
of Law, considering the Nazi Law as a degenerate form. It was
translated into Romanian. He wrote a book about the Law of the GDR,
which was not translated for us. Why? We deal with Nazism, but
communism does not interest us much, right? And then he wrote a last
book where he discussed the fact that today's lawyers and judges
often allow themselves to do things. So he says, we have replaced one
form of aristocracy with another aristocracy, an aristocracy of
robes.
He
(the judge) is not elected; he is appointed for life, he has an
excellent salary, and he can afford to change the entire legal
landscape. That's why we see the great convulsions today. Speaking of
the Romanian Constitutional Court, we can come closer to home to see
some problems.
---
Is legal
certainty necessary? Is it possible? Is it possible, especially in
the complex cases?
It's
the problem of the Cadi judge. Well, this is where the methodological
aspect comes in. In complicated cases, you don't go to places like
Freie Recht Schule or the Realist School; that is, you don't come and
create something new. You try to find support somewhere. You have to
make the maxim of your action a general law. In the Swiss Code of
Obligations, adopted at the beginning of the 20th century, Article 1
states that when the Law is insufficient and cannot be applied, the
judge can act as a legislator.
But
what does that mean? You (the judge) adopt a case, and you have to
put yourself in the position of the legislator, so that your case
becomes general. Could it be something like that in general?
Thus, judicial certainty is an essential value in
judicial commerce. If I go to a judge and I'm unsure how he will
decide, I don't see how it will be; it means there is no judicial
certainty. But then, you enter the Cadi system, the Muslim law
system, where the Cadi decides as he feels. However, even among them,
the Handbalites and all the other interpretative Muslim Schools have
developed a jurisprudence. Similar cases are linked, much like in
Common Law, where they are grouped because legal certainty is
essential. Material justice, justice, and equity are here and now,
and certainty is what makes a legal order a system. Otherwise, there
is chaos.
-
What is the relation between telos (purpose) and interests?
I
didn't go into these aspects because I would have had to teach an
actual course on Interessenjurisprudenz. So, he, Heck, fits his
direction in the theological aspect. That is, the idea of the
importance of the legislator's purpose. However, he says that the
legislator's purpose is the result of a vector calculation between
the two interests that have come into conflict.
Therefore,
when drafting the Law, the legislator is attentive to the conflicts
that exist in society. And he finds the solution favoring a specific
interest. And that is the purpose, that is the telos. It does not
mean that the other interest is not essential. And here lies a
significant difference, and this is the subtlety of the Doctrine of
Interests. Here, one interest was not strong, but another time it
might be. You (the interpreter) have to see them all. In this sense,
intentionality is crucial, and the telos matters. To honestly
evaluate what the legislator intended, you must consider all the
interests that are behind it. How? That is a tough job. You must
refer to the text of the Law, and then check the discussions that
took place in Parliament and determine the occasion for the Law. And
then search for the unwritten element that was not mentioned in the
debates. There are also situations when something important is not
mentioned.
There
is a famous example, when Germany entered the First World War and
adopted by Law that a gold mark was equal to a paper mark. And it
imposed the official circulation of banknotes. There was
virtually no discussion in Parliament. Because if they had held a
debate in Parliament, they would have informed their opponents that a
crisis existed. Therefore, if you interpret, you cannot rely solely on the
discussions in Parliament. You also need to consider the
unwritten.
Hence,
we are moving in the direction of intentionality today. Still,
intentionality viewed from this perspective means that we must
examine the interests that underlie it, including material interests,
ideal interests, legal certainty, predictability, and justice.
-What
is the relationship of juridical legal reasoning with the rhetorical
and neo-rhetorical schools in the philosophical field, or, for
example, with Jürgen Habermas?
The
best example is Robert Alexy. Robert Alexy draws from discourse
theory and the work of Habermas. He believes that rational discourse
rules can help to find a solution. He is the renowned
constitutionalist methodologist from Kiel, whose work has been
partially translated into Romanian.
To
discuss Robert Alexy, I would need hours, many hours. Robert Alexy
talks about principles. And he makes a distinction between principles
and norms. For collisions between norms, various rules apply, such as
lex posteriori and lex posterior derogat priori, whereby only one
norm prevails in the conflict. Principles, if they collide with each
other, one will prevail and the other will be defeated, on a
case-by-case basis. And he says that this is also the essence of
principles.
And
fundamental rights are principles. Because when fundamental rights
collide with each other, in some situations one prevails, while in
others another prevails. And that is his essential contribution.
Which,
somewhere, continues. Heck, who was talking about interests and the
collision of interests? He wasn't talking about fundamental rights.
Heck is more applied; he's a civilian. But he announces Alexy. He
announces everything that happens in the German space. That's why
Heck is fascinating. Nobody in Germany talks about him. So it's
omnipresent; he's everywhere. So he's part of the system. Everybody
applies it, for example, in analogy. If an analogy is made, it is not
one of concepts; rather, it is an analogy of interests. You have a
situation involving conflicting interests, and you observe another
new situation to determine if the interests are similar, requiring an
assessment. Because, as Heck says, legal thinking is an evaluative,
emotional type of thinking. It's an axiological thinking, it's not
mathematical-logical, as the conceptualists believed.
So,
Alexy continues also Habermas, of course, because he comes from
discourse theory, but he builds upon everything achieved in the
Frankfurt School.
-
Is Alexy continuing Heck? Since Alexy adopted his ideas from Dworkin,
who probably wasn't aware of Heck?
The
fact that we use the idea of interests does not mean that it is
Interessenjurisprudenz. The School of Free Law also spoke of interests. Smed, one of the leaders of the School, mentioned interests. I
also have a case in the book (Annex 1) where I expose the so-called
crypto-sociology, the fact that sometimes the judge weighs interests.
But what is the difference between Interessenjurisprudenz and such a
case? Interessenjurisprudenz seeks interests in the Law, and in the
other case, the judge seeks interests in social reality as they see
it.
And
in this sense, Alexy does not continue Heck's line of thought. Alexy
belongs, in a way, to the Freie Recht Schule. Heck is very careful to
respect the Law and the weighing of interests by the Legislature.
Alexy is closer to the other approach. Fewer and fewer are following
Interessenjurisprudenz, because no one likes to be constrained.
Everyone wants freedom and the ability to decide as they please.
Yes,
but methodologically, the method frees you, because discipline is,
according to Ihering, the twin sister of liberty.
-Is
Begriffsjurisprudenz the way of everyday juridical reasoning?
Yes,
we are all conceptualists. In everyday life, we are all
conceptualists. Heck admits it. So, Heck had one of his disciples,
Stoll, who died at a very young age (37), and he wrote his funeral
oration. And he says, I thought he would write it to me, and I wrote
it to him with great regret, (because Stoll was very gifted and
creative).
And
Stoll wrote that the method of the master from Thubingen (Heck)
intervenes only when the situation is complicated. And he, Heck,
agrees. Typically, in everyday situations, you place the elements in
your case under the factual part of the norm by subsumption, and
then resolve the case by acting following the relevant concepts. However, Heck said,
even then, unconscious assessment of interests still exists. The judge
has an intuition and feels who could win, but the situation is not
difficult, so he doesn't need to weigh the interests. Heck recognizes
that.
Hence,
in everyday cases, we are conceptualists, often without realizing it
or even being aware of it. Like Mr. Jordan, who wrote prose without
knowing it.
-When
is Interessenjurisprudenz properly applicable?
The
moment when the judge's instincts tell him that something is wrong,
he intervenes and must weigh the interests. These are complex cases.
In
the book, I provide an example, as the American doctrine (Duncan
Kennedy) has criticized Heck for not providing examples. I initially
embraced his ideas in my first article 12 years ago. And in the
meantime, I read some more of Heck, and I realize that his examples
exist. Kennedy said that Heck does not formulate anything because,
according to Magdalena Schoch's book, there is only one example
there. In that example, Heck describes how an uncle would act who
makes bequests to his nieces and forgets one of them, and then makes
a kind of deposit in the bank that he will not touch until he dies.
When he dies, she will be able to get the deposit. The question
arises as to what the creditors of the uncle will do after his death.
The creditors may or may not attend regarding all the nieces. And
then he (Heck) solved the case based on interests. His case is
explained in three pages in Magdalena Schoch's book, and it is almost
hermetic.
However,
the case is very well-built (see Annex 2). One can obtain help by
examining the literature that Heck developed around 1890, before the
BGB, in an article on the topic of life insurance (life insurance
involving a contract in favor of a third party). The answer is there.
I'm not a civil law scholar; I'm a public law specialist, and I had
to dig deeper to understand what Heck did. And the answer is very,
very clear and very correct. And it goes against what the German
Reichsgericht decided in 1917, applying a conceptual reasoning.
His
interest doctrine approach is complex, but it can provide an
answer in cases of complexity. But there are situations in which it
cannot. However, one can then resort to what the Constitution says,
to the values enshrined within it.
-How
can the text of the Law, which is inert, an object, show the
interests?
You
don't stick to the text. You go back in time to see the Legislature's
intention. You look for 'occasio legis', the opportunity of the Law.
What Law was there before? What Law was there after? What changed? If
it changed, what is the reason behind it? What necessity did exist?
What necessity does the new Law respond to?
And
then you go to the preparatory works. And in the preparatory works,
not everything is essential. You look for the intentions. And which
intention? In this book, I explain everything. The basic intention of
the legislator. This is not what someone said in Parliament, as stated in a
specific line of the draft text. Why? Because those who vote in
Parliament do not agree on the details of the Law, but they agree on
the broad goals that were usually formulated by the government
project. In parliamentary democracies, 90% of legislative initiatives
come from the executive. So, the executive formulates them, and if
they are endorsed in the plenary and passed by the majority, those
telos, those general goals, become those of the Law.
Another
thing to note. Heck is a historian of Law. He wrote about
Saxenspiegel. When he provides examples of various aspects, he also
consults Roman Law, German Law, and German custom, and examines the
interests involved. I mean, he has this dimension. After all, he had
started practicing before the adoption of the BGB (under Roman Law).
And in 1894, he got his doctorate in Commercial Law.
