Is there a law on addressing judges?

The Federal Court of Justice

Address by the President of the Federal Court of Justice
Prof. Dr. Günter Hirsch
at the ceremony on the occasion of the 10th day of the foundation
of the Brandenburg Higher Regional Court
on December 3, 2003

Let me take the occasion to celebrate the 10th anniversary of the Brandenburg Higher Regional Court as an opportunity to address a topic that is always - and currently particularly - topical: the tension between first and third violence.

I. On the way to becoming a judicial state?

The third power, the judiciary, has come under fire in Germany. The accusation is raised that judges refuse to obey the law and replace what the legislature wanted to determine by way of extensive interpretation of the law. Is Germany, as Bernd Rüthers insinuates, on the way from a democratic constitutional state to an oligarchic judicial state?

We must take these allegations seriously because they give voice to a widespread unease - especially in legal and political circles - about shifts in power in the armed state based on the rule of law, and because the warning of the march into the judiciary state is not only heard occasionally.

We have to take this criticism seriously for another reason. Because the more territory judges take away from the legislature, the greater the interest of politics in filling high judicial posts. Let me quote Rüthers again: "The dogged power struggle of the party chairmen over the parties' monopoly of power in the election of judges is further, unmistakable evidence of how much the Federal Republic has already mutated from a constitutional state to a judicial state."

II. From the prohibition of interpretation to the requirement of interpretation

  1. The fear of the rulers that judges not only apply but also interpret their law is old and connects kings with communists and the Enlightenment with the present day. King Frederick II, for example, wrote a cabinet order in 1780 with the concise instruction: "On the other hand, we will not allow any judge to interpret, expand or restrict our laws, or to come up with much fewer new laws." Montesquieu saw the prohibition of judges' interpretation of the law as an inevitable consequence of the separation of powers. His sentence that the judge should not be more than the mouth of the law - "la bouche, qui prononce les paroles de la loi" - is famous. Cesare Beccaria, a contemporary of Montesquieu, who also paved the way for the Great Revolution, even said that it was better to have an absolute ruler than for the citizen, as the slave of judges who were raving to interpret, to be at the mercy of a multitude of "petty tyrants and subordinates". It is the legislature, not the judge, that has to remove ambiguities in the wording of a law.

    This view was the consequence of an absolutely understood separation of powers. The legislature should be largely beyond the control and completely removed from correction by the third party. In order to ensure this, the judiciary was marginalized, in fact described by Montesquieu as "en quelque facon nulle", that is, declared to be non-existent as its own violence. As Montesquieu explains, judges are "beings without souls, as it were, who cannot moderate neither the strength nor the severity of the law."

    No sooner was the case law elevated to the status of its own state authority through the Enlightenment than its important instrument of action and power, the interpretation of the law, was taken away from it in the name of the same state doctrine.

  2. This is more than history. The reservations against an authority that - institutionally and personally independently of the legislature - has the power to interpret laws and thus ultimately determine their specific regulatory content continue to have an effect, especially in totalitarian states. The Constitution of the Soviet Union of 1977, for example, succinctly stipulated that the Presidium of the Supreme Soviet of the USSR should interpret the laws.

  3. Our understanding of the separation of powers, on the other hand, corresponds to the fact that the legislature sets norms with abstract general content, but places the further fate and in particular the concrete effects of its law in the hands of the judges. The judge gives life to the dead letter of the law in legal reality. He not only applies the law - that is what the administration does too - but gives him concrete and individual ultimate authority; he helps the ought to be.

    In doing so, he is bound by statute and law in accordance with Article 20, Paragraph 3 of the Basic Law. This obligation of the third power to "law and justice" is not a mere tautology. It frees the judge from unconditional obedience to the legislature and thus rejects pure legal positivism. As the Federal Constitutional Court found, this formula "maintains the awareness that law and justice are factually in general, but not necessarily and always coincident."

    What conclusions can be drawn from the fact that a positive legal order and legal idea can diverge? The legal theoretical and legal philosophical statements on this fill libraries. Ultimately, it is about the insoluble tension between the phenomena law, law and justice, with which all great philosophers of mankind have dealt.

    The dilemma that Article 20.3 of the Basic Law does not create in the first place with the equal, cumulative naming of law and justice, but only puts it into words, can be summed up for the judge as follows: On the one hand, he must not deal with it to be satisfied that a possible physical violation of the idea of ​​justice is permitted or prescribed in a law. On the other hand, however, he cannot simply leave the path of obedience to the law on the grounds that the idea of ​​justice demands something else.

    This sounds like Scylla and Charybdis. The starting point for resolving this dilemma is the determination that no judge can be compelled to apply a law which he perceives to be contrary to the law. If he considers the law to be unconstitutional, he must refer this question to the Federal Constitutional Court, as this has the monopoly on the rejection of norms in Germany. If, on the other hand, the precise application of the norm would lead to unfair or inappropriate results, the field is open for the establishment of judicial law.

    But where are the limits of judicial law and how does the judge find them?

III. Legal finding methodology

Jurisprudence and jurisprudence have developed methods of finding the law, which in turn are part of the legal system and are therefore binding for the judge. The legal methodology thus serves a double purpose: to ensure the correct application of the law and to determine the limits of judicial law.

The instruments with which these goals are to be achieved are interpretation and legal training.

  1. interpretation

    It is the task of the judge, within the framework of the interpretation of the legislature's intention, to give effect to legal reality, insofar as this intention is reflected in the law. The linguistically possible sense of the word limits the interpretation. Interpretation presupposes ambiguity in the law - a loophole in the law, for example, cannot be interpreted, only filled.

    The limitation of the interpretation by the literal sense leads to the fundamental question of every legal interpretation: Is the interpretation goal the will of the historical legislature or the normative legal sense? This dichotomy of subjective and objective theory shaped the relevant legal philosophical and methodological literature of the 19th and 20th centuries.

    According to established case law, the will of the legislature is to be taken into account as an essential aspect in the interpretation, but has to give way to objective-teleological criteria in the event of a conflict. Decisive for the interpretation of a law is the objectified will of the legislature expressed in it. Savigny's classic definition still applies, according to which it is "the reconstruction of the thought inherent in the law", whereby he was not concerned with the subjective ideas of those involved in the legislative process, but with what they had to think in the general interest. So it's not about what the "legislator" - whoever that may be - "thought" when the law was passed, but about what he should have reasonably wanted.

    If the legislature has not succeeded in correctly formulating what was intended, if it was subject to errors or misconceptions, or if the aging process of a law has led to it no longer conforming to current values ​​or the needs of today's legal relations, then the objective theory opens up the judges Possibility to deviate from the subjective will of the historical legislator. In this respect, the saying goes that the law is sometimes smarter than the legislature.
  2. Legal training

    The judge's interpretation of the law rests on a solid foundation. On the other hand, the training of the law raises fundamental questions. Here you enter the border zone that separates the third power from the first.

    What to do if, for example, a law expressly requires written form, but legal transactions have long been carried out electronically? Are provisions of the Civil Code of 1896 for spouses also applicable to illegitimate partners? What to do when medical technology blurs the formerly clear line between life and death?

    The competence of judges to train the law in the event of gaps in the law has long been undisputed. The judge's duty to decide the case forbids any denial of justice with reference to a loophole in the law.

    But when is there a loophole in the law? An "eloquent silence" by the legislature, for example, constitutes a material regulation. The fact that, for example, the BGB in its original form did not contain any regulation on home ownership was a conscious rejection of such a special right to parts of buildings. Such a deliberate silence by the legislature must be respected by the courts.

    In addition, a loophole presupposes that what is unregulated is in need of legal regulation. Fortunately, there are still large areas of legal vacuum in our society. The legalization of many areas of life is advancing; the catchphrases of the legalization of medicine, technology, sport, education and even ethics are well known. Many areas of private life and social interaction, however, evade sovereign regulation in accordance with our basic system of values ​​and may therefore not be "legalized" by the judge under the aspect of a regulatory loophole.

    The Federal Constitutional Court has affirmed the competence of the judges to "creative law finding". "The judge cannot avoid a possible conflict of the norm with the material concept of justice of a changed society by referring to the unchanged wording of the law; he is forced to freely handle the legal norm if he does not fulfill his task of" speaking right ", want to miss ".

    In exceptional cases, this competence of the judge can also justify legal training contra legem.

    The obvious method for filling a loophole in the law is the analogy, i.e. the transfer of a regulation made for a comparable situation to the case, or the appeal to a "general legal principle" expressed in other legal provisions.

IV. The art of finding the law

The definition of the judge's task as "finding the right law" is based on the idea that the legislature, with its abstract, general rules, has given how a concrete life issue is to be legally decided. The judge's task is to find this solution in individual cases (not to "invent") - he just has to search thoroughly and intelligently enough.

This picture does not fully do justice to the position of the judge in the rule of law. He is subject to the law, but with the separation of powers is a division of responsibility and task, so a division of labor between the first and third power. The interpretation and further development of the law is the household property of the third power.

This competence is strictly limited. On the one hand, he may only be guided by material ideas of justice, not by his own legal or socio-political convictions that deviate from the ideas of the legislature. It is true that voluntary elements may also be immanent in the judge's act of judgment. However, their legitimacy is limited; It is obvious that a legal decision must not become a decision of will. The sometimes expressed expectation that the "critical, emancipatory" judge could, as a "social engineer", form a welcome counterweight to conservative incrustations in the political landscape, clearly violates the constitutional primal of the legislature for political decisions.

The second limitation of the judicial leeway in the interpretation and further development of the law consists in the fact that they must be carried out according to recognized rules of interpretation of legal hermeneutics. The established methodology, i.e. the formal correctness of the legal finding process, offers a certain degree of guarantee for the material correctness of the decision and prevents arbitrariness.

Finding the right balance between obeying the law and correcting the law for the sake of justice is the true art of the judge. Savigny already pointed out that this art - like any other - ultimately cannot be communicated or acquired through rules. Too much "artistic freedom" in the interpretation and further development of the law, however, very quickly comes up against constitutional limits. That is why Goethe - whose profession was jurisprudence - is to be understood more ironically than appreciatively when he advises lawyers in the tame Xenien:

"Be fresh and lively when laying out!
If you don't interpret it, put something under it. "

I do not want to close without, as President of the Federal Court of Justice, the Brandenburg Higher Regional Court, its President Dr. Macke and the judges and all employees to express my respect. In the ten years of its existence, the Higher Regional Court has earned a high reputation among the German Higher Regional Courts.

On its 10th birthday, I wish the Brandenburg Higher Regional Court that it will continue to justify and strengthen the trust that citizens have in the third power as the highest instance of the ordinary jurisdiction in Brandenburg, and that it will work together with the other higher regional courts and the Federal Court of Justice actively contributes to the safeguarding and further development of our law.