Guiding Litigation: Applying Law to Facts in Germany
Common Good Forum, The Boundaries of Litigation: A Forum Addressing the Alignment of Civil Justice with Social Goals, Washington DC, April 15, 2008
17 Pages Posted: 19 Aug 2008 Last revised: 19 Sep 2008
Date Written: 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.
Keywords: law applying, legal method, subsumption, Relationstechnik, relationship technique, legal reasoning
Suggested Citation: Suggested Citation