Guiding Litigation: Applying Law to Facts in Germany
James R. Maxeiner
University of Baltimore - School of Law
April 15, 2008
Common Good Forum, The Boundaries of Litigation: A Forum Addressing the Alignment of Civil Justice with Social Goals, Washington DC, April 15, 2008
"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a "simple-minded demand" that is "silly and misleading. It is not; it is what the public rightly expects from law. H.L.A. Hart, reminded U.S. jurists that "conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinant existing rules in the settlement of disputes."
This essay discusses the German method of judicial applying of law to facts. called, in German, the "Relationstechnik," that is, in English, literally "relationship technique." This essay shows how it helps make German civil justice work effectively and justly.
Number of Pages in PDF File: 17
Keywords: law applying, legal method, subsumption, Relationstechnik, relationship technique, legal reasoningAccepted Paper Series
Date posted: August 19, 2008 ; Last revised: September 19, 2008
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