Feministische Rechtswissenschaft

Foljanty, Lena; Lembke, Ulrike

doi:10.5771/9783845262833

Cited by 7 publications

(2 citation statements)

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“…According to Esser, the judge identified principles by critically examining the facts of a case, the norms, and the social reality, on a case-by-case basis. In the contemporary discussion, 248 the judge as a law-making factor shifted into the foreground. It was now no longer philosophy's claim to truth that was decisive, but institutional efficacy and aptness for consensus in judicial discussion.…”

Section: F 1970: Josef Esser Vorverständnis Und Methodenwahl In Dermentioning

confidence: 99%

On the German History of Method in Civil Law in Five Systems

Haferkamp¹

2016

Ger. law j.

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Germany is the country of legal methodology. No other country saw such an intense academic discourse on the question of what jurists are able, allowed, and supposed to do when interpreting and applying the law. This German peculiarity is tightly linked to the history of the German Civil Code (BGB). Carefully worded and systematically precise, this codification had the potential to significantly limit judicial freedom; thus, its advent marked the beginning of the German methodological debates. The following Article examines this relationship, starting with the year 1874 (when preliminary work on the Civil Code began) and continuing with an analysis of the five political systems during which the BGB was in force: the German Empire (1900–1914), the Weimar Republic (1918–1933), the National Socialist period (1933–1945), the GDR (1949–1989), and the Federal Republic (1949–today). With the exception of the GDR, the methodological debates consistently show attempts to enable judges to adapt the law to real life conditions, or to political ideas in conflict with the BGB, without formally moving beyond extant law. At the roots of 20thcentury methodological debates, one can thus discern a profound mistrust of German legal academia with regard to both the legislature and the judiciary. Jurists had no confidence in the BGB, which was criticized for being inflexible, outdated, and politically unsound. They did not trust in the freedom of judges either, trying instead to somehow bind them, be it to “life,” “reality,” “justice,” “sense of justice,” “national order,” or “Christian Natural Law.” It was not until 1958 that the Federal Constitutional Court was entrusted with the task of dynamically shaping the guiding values of society, thus forcing both the legislator and the courts to adapt the BGB to these principles. As a consequence, the heyday of German methodological debates surrounding the BGB slowly came to an end.

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Section: F 1970: Josef Esser Vorverständnis Und Methodenwahl In Dermentioning

confidence: 99%

On the German History of Method in Civil Law in Five Systems

Haferkamp¹

2016

Ger. law j.

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show abstract

“…251 | Such as i.e. the German debates on equality ("Gleichheit") and difference ("Differenz"), where gender equality can have three different connotations: equality before the law ("Gleichberechtigung"), de facto equality ("Gleichstellung") and equal treatment ("Gleichbehandlung")(Färber 2005;Foljanty/Lembke 2006;Knapp 2011). As Susanne Baer demonstrated for the European context alone, these are all embedded concepts, inseparable from and mutually influenced by the various national feminist and legal trajectories(Baer…”

mentioning

confidence: 99%