I have published an article about Interessenjurisprudenz in Germany (available at http://ssrn.com/abstract=2011479).
The paper focuses on a methodological approach based on the balance of proportionality (rationality of conflicting consideration), which is our time's dominant legal reasoning.
The significant thinkers responsible for creating it were Oliver Wendell Holmes, in the United States, René Demogue, in France, and Philipp von Heck, in Germany.
There were specific influences between Continental Europe and the United States, which seem to have been forgotten today. While the technique of conflicting considerations has an abundant European genealogy, it has received its most elaborate form in the United States between 1940 and 1970.
In the early fifties, the Constitutional Court of Germany adopted this technique too. More recently, the European authorities such as the European Court of Justice or the European Court of Human Rights took proportionality as a usual instrument.
The first part of the paper evaluates Interessenjurisprudenz within the great methodological debate (Methodenstreit) on the role of judge, which emerged at the beginning of the twentieth century in Germany.
The paper focuses on a methodological approach based on the balance of proportionality (rationality of conflicting consideration), which is our time's dominant legal reasoning.
The significant thinkers responsible for creating it were Oliver Wendell Holmes, in the United States, René Demogue, in France, and Philipp von Heck, in Germany.
There were specific influences between Continental Europe and the United States, which seem to have been forgotten today. While the technique of conflicting considerations has an abundant European genealogy, it has received its most elaborate form in the United States between 1940 and 1970.
In the early fifties, the Constitutional Court of Germany adopted this technique too. More recently, the European authorities such as the European Court of Justice or the European Court of Human Rights took proportionality as a usual instrument.
The first part of the paper evaluates Interessenjurisprudenz within the great methodological debate (Methodenstreit) on the role of judge, which emerged at the beginning of the twentieth century in Germany.
The ancient conceptual methodology (Begriffsjurisprudenz) came under siege from methodological orientations like the “Free Law School” and the “School of Objective Interpretation.” The most effective challenger and winner of the debate was the Interessenjurisprudenz, developed by Von Heck at Tübingen.
The second part of the paper articulates the main contributions and the specific vision of Interessenjurisprudentz regarding the judge's method.
The last part briefly assesses this school's actual significance for German legal space and other legal cultures (Anglo-Saxon and French).
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