Open lecture «An overview of the German Legal Methodology» (27.09.2018)

The lecture took place on September 27, 2018, 14:30 – 16:30, in the hall number 1, the Central building of Yaroslav the Wise National Law University, Pushkinskaya street 77, with the support of the USAID New Justice Program.

Speaker: Dr. Michael Scholz, Head of the International Relations Division at the Ministry of Justice of North Rhine-Westphalia, and a former Judge of the Regional Court of Düsseldorf, Germany.

 

Moderator: Serhiy Maximov, Doctor of Law, Professor of Theory and Philosophy of Law Department of Yaroslav Mudryi National Law University. 

While opening the event and introducing a speaker, the moderator emphasized the significance of the concept of ‘method’ as a way to rational search for answers to still outstanding issues, including legal issues, a vivid example of perfect ownership of which is the famous image of Judge Hercules.

The lecture gives an introduction to German legal methods and the way of thinking of German judges. While presenting the specifics of the German legal methodology, the lecturer noticed that the German courts strive for the most scientific and methodical approach possible when interpreting the laws. A particularity of the German legal system is the strong position of the Constitutional Court.

From the historical beginnings of legal methodology to the canon of interpretation practiced today, the lecture explained the interpretation and application of law according to German understanding. Numerous spectacular examples were being used to illustrate the influence of the German Constitution on the interpretation of the law and the increasingly strong influences of EU law and international law. The lecture explained the application of syllogism and specific German technique to solve cases.

The lecture raised lively interest among listeners. 13 questions were asked about various aspects of understanding and using the legal method during the interpretation and application of the law by the German courts.

In the order of discussion, the German experience of using the legal methodology to resolve specific cases was compared to the relevant Ukrainian practice in the context of the rule of law requirements.

Yuriy Baulin, Doctor of Law, Professor of Criminal Law Department No.1 of Yaroslav Mudryi National Law University, The Head of the Constitutional Court of Ukraine (2014-2017) expressed understanding of legal methodology as a technique for resolving disputes through the interpretation of the law. He noted many points common for the German approach and Ukrainian approach to the methodology for resolving disputes, while at the same time drew attention to the difference in the requirements for interpretation in criminal and non-criminal cases and the danger of an expanded interpretation of the criminal law.

Alexander Radutny, Ph.D., Associate Professor of Criminal Law Department No.1 of Yaroslav Mudryi National Law University drew attention to the fact that the most accepted form of interpretation of the law, including the law on criminal liability, is a literal one that meets the requirements of the principles of the rule of law and legal certainty, as well as the content of such a mandatory feature of the crime as wrongfulness (clear, understandable and unequivocal prediction in the law), even if it can today lead to a lack of liability and punishment for individuals (a sign of ‘death of people’ or ‘death of a person’ for Articles 110, 236, 286 of the Criminal Code of Ukraine, or, as indicated by Prof. M. Scholz, the identification by the Federal Supreme Court of Germany of mushrooms and plants, a work boot and a special instrument etc.) – a drawback that can always be eliminated by making appropriate changes to the norms of the current legislation.

Vitaliy Yarotsky, Doctor of Law, Professor, Head of Civil Law Department No. 2 of Yaroslav Mudryi National Law University asserted the necessity and importance of the proper application of modern methodology in civil law, law-making and application of law, and illustrated in a few concrete examples the negative effects of ignoring of the latest methodological approaches in science and the legal practice.

Irina Venediktova, Doctor of Law, Professor, Head of the Department of Civil Law Subjects of V.N. Karazin Kharkiv National University analyzed the possibility of using German legal method (legal dogmatics) in the context of globalization and rapprochement with the Anglo-American legal family, especially in the arbitration process and other areas of soft law application.

Victor Smorodinsky, Ph.D., Associate Professor of Theory and Philosophy of Law Department of Yaroslav Mudryi National Law University, Member of the Scientific Advisory Board of the Supreme Court of Ukraine on the example of certain decisions of the German courts, mentioned by the speaker, drew attention to certain differences in the approaches of scholars and lawyers practitioners of Ukraine and Germany to the application of the methods and types of interpretation, the means of legal argumentation and other components of legal methodology.

In the closing remarks, Michael Scholz expressed satisfaction with the high level of discussion and proposed to hold the meetings of scientists interested in this topic in Germany and Ukraine with the aim of scientific exchange of valuable experience in studying, mastering and applying the legal method.