German Legal System Shaped by Legal Practice on Jurisdiction

German legal culture Specially Shaped by Legal Practice on jurisdiction in Germany

German Legal Practice on Jurisdiction

German Legal Practice on Jurisdiction

Nevertheless, I think that the German legal system has been especially shaped by legal dogmatics. This can be supported by adducing a symptom and a historical reason.

The symptom consists in an almost exceptional influence exercised by legal science on jurisdiction in Germany. It happens more than once that the stable direction of jurisdiction adopted by the Supreme Federal Court is altered due to the pressure of the criticism on the part of jurisprudence. Even when the above is not the case, the judicial decisions of the Supreme Court regularly take into account the jurisprudential opinions concerning legal problems relevant for the judicial decision. On the other hand, legal science provides not only a systematic interpretation of statutes in the form of law commentaries and textbooks, but also a continuous discussion of the recent judicial decisions in professional legal periodicals. Such an intensive dialogue between legal science and jurisdiction is possible only on the basis of the well–elaborated legal dogmatics, which places the respective patterns of arguments for all legal problems at their disposal.

The historical reason for the particular significance of legal dogmatics in the German legal culture relates to the still active influence of the so-called “Historical Law School” (Historische Rechtsschule), which dominated the German legal culture in the 19th century.

The core thesis of the “Historical Law School” and of its pivotal figure Savigny was a claim that not state institutions, but legal scientists are competent to establish legal rules. The “Volksgeist”, which Savigny had referred to, was not the spirit of the nation, but the spirit of academic jurisprudence. Such claim to superiority of legal science over legislation continues to be functioning still today in the form of the claim to superiority of legal science over jurisdiction. Within legal education, the “real” legal stand (“wirkliche” Rechtslage) is by no means identified with the jurisdiction of the Supreme Court. The “real” normative situation is rather understood as a fact, the establishment of which is the task of legal dogmatics, and which could, or could not be properly recognised by the courts.

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