Legal Methodology in Germany

“Method” means the way to reach a certain goal, and that goal, in the field of law, is the determination, the correct understanding, and the application of the law.¹ As with all academic disciplines, the existence of a method is a central feature of the character of law as a “scholarly”, or “scientific”, endeavour.² Jan Schröder has, therefore, given the title Recht als Wissenschaft (Law as Science) to his book on the history of legal methodology.³ Law is, at least according to the prevailing opinion in Germany, the object of an autonomous body of scholarship with a normative claim (as from the early nineteenth century we thus refer to a “legal science” [Rechtswissenschaft] in Germany) and its own characteristic canon of methods.⁴ That canon of methods is itself the object of academic scholarship; we thus refer to a legal methodology.⁵ According to § 5a of the German Act on the Judiciary (Deutsches Richtergesetz) the “methods of legal science” (rechtswissenschaftliche Methoden) are among the obligatory subjects within the legal curriculum and, as a result, are also part of what students are required to know when they sit for the first legal examination (Erste juristische Prüfung).⁶ Corresponding provisions can be found in the statutes and regulations of the individual German Länder concerning legal training. Most German law faculties (around two-thirds of them) therefore offer special courses on legal methodology; occasionally, legal methodology is part and parcel of a course on legal theory. The existence of this academic discipline, taught by law faculties, is reflected in a rich body of textbook literature. – That, in rough outline, is the point of departure for Germany.

In other legal systems⁷ it can be difficult to find a linguistic equivalent even for a concept as basic and as obvious in Germany as the term Rechtswissenschaft. Thus, in England “legal science” is an artificial term which would not normally be used to describe what a legal academic does. That does not mean that something akin to Rechtswissenschaft would not exist in England (or, for that matter, other common law jurisdictions),⁸ or that there would be no awareness of a methodical way of proceeding. But we do not find an independent discipline entitled “legal methodology”. English lawyers rather devote their attention to the two central sources of law, and they thus deal with the doctrine of judicial precedent on the one hand,⁹ and statutory interpretation on the other.¹⁰ The situation seems to be similar in Scotland.¹¹ The late Günter Hager subdivided his comparative discussion entitled Rechtsmethoden in Europa (Legal Methods in Europe) along the same lines;¹² the “Bielefeld Circle”, too, published, first, a volume dealing with the interpretation of statutes, and subsequently another one on judicial precedent.¹³ In the United States not only faith in “legal science” but also the appreciation for a canon of legal methods appears to have been lost. Even the term “legal method” or “legal methodology” is regarded as ambiguous and laden with inappropriate connotations: the lack of a legal method (and consequently of a legal methodology) is, according to Aditi Bagchi, characteristic of US law, thus reflecting two peculiar elements of US legal culture: its pragmatism and its plurality.¹⁴ In France, too, where there definitely is a “legal science” (la doctrine), it is reduced to a comparatively subordinate position. It reflects the significance of the case law of the highest courts in the country, and of their specific style of legal reasoning, that law students in France are trained (or perhaps rather: drilled) in the art of writing commentaires d’arrêt. An independent discipline of legal methodology does not exist.¹⁵ Thus, until about twenty years ago, there was only one pertinent textbook; it appeared in 2001 and has, for quite some time, not seen a second edition.¹⁶ Not until 2014 was it joined by the publication of a further work.¹⁷

Whereas codified civilian law systems traditionally have greater experience than common law jurisdictions when it comes to matters of statutory interpretation, common law systems have tended to generate a more developed and refined approach to the handling of precedent, for example via the distinction drawn between a case’s ratio decidendi and obiter dictum, and judicial methods of “avoiding” precedents, such as overruling and distinguishing.¹⁸ In both civilian and common law legal systems there is of course a need for a scholarly approach based on a refined methodology. Statutes are an increasing source of law in common law legal systems.¹⁹ Meanwhile in German law today there are a range of areas strongly rooted in case law²⁰ that could arguably benefit from a reflection on the approaches to precedent developed by common law jurisdictions.

The existence of these kinds of differences makes it appear appealing to devote some attention to the comparative examination of the topic of “legal methodology”. That happened at a symposium organized by the Hamburg Max Planck Institute. Papers were devoted to Italian and Dutch law (two legal systems occupying an interesting position in between the German and French traditions of legal thinking), and to legal systems representing the “Anglo-American”, Nordic and Far Eastern legal families.²¹ In view of the fact that “legal methodology” seems to be, above all, a German topic, the present article will be devoted to an overview of the pertinent discussion in Germany.²² However, six more general, initial observations appear to be in order.