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.
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My approach to legal methods
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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.
