U.S. 'Methods Awareness' (Methodenbewusstsein) for German Jurists
20 Pages Posted: 25 Aug 2008 Last revised: 24 Sep 2008
Date Written: July 1, 1998
The purpose of this contribution is to help develop Methods Awareness in German jurists unfamiliar with American law. It shows how distant from German understanding present-day American practice is. It proceeds from Fikentscher's thumbnail sketch of German Prevailing Teaching: "this method starts from norm-thinking, therefore thinks in rules, that are applied to the case at hand." It refers to the core elements of this teaching, namely the place of the legal norm (Rechtssatz) in the legal order (Rechtsordnung) and its application to a particular set of facts (i.e., subsumption), and discusses the significance of these concepts in American law. It leaves unaddressed certain other key elements of Methods Theory, such as differences between case law and statute law, which are much discussed elsewhere in the literature.
Keywords: Legal Methods, Subsumption, Syllogistic, Legal Reasoning, Relationstechnik, Judgments, Law-Making, Legislation, Legal Process, Applying Law, Law-Applying, Law Application, Legal Process, Nightmare Noble Dream, Rule Skepticism, Self-Application
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