LEGAL METHODOLOGY IN GERMANY

The existence of a method, and thus also of a methodology, is very widely regarded as essential for an academic discipline. In Germany, law is, and has always been, an academic discipline. It is the object of what is referred to as Rechtswissenschaft (literally: legal "science"; less literally: scholarship relating to the law), characterized by a specifically legal methodology. Legal methodology is a foundational subject taught in German law faculties and set out in a rich body of legal literature. The present essay attempts to assess, on the basis of that literature, how lawyers are conceived (or perhaps rather: supposed) to operate in Germany. A specificity of the German discourse is the conceptual distinction between statutory interpretation and judicial development of the law. The essay provides an analysis of the various factors relevant within the enterprise of statutory interpretation, and of the prerequisites, the different levels, and the legitimacy of judicial development of the law. It also alerts the reader to the political experiences overshadowing the methodological discourse in Germany. The essay starts with five observations of a more general nature focusing on (i) methodological commonalities in Germany, Switzerland, and Austria; (ii) the normative character of the methodological discourse; (iii) (emerging) methodological differences between different fields of law; (iv) the place of Rechtsdogmatik (legal doctrine and the scholarship associated with its creation); and (v) the historical background of the German discourse.