Legal Dogmatics & Characteristic Features in German Legal Culture

The Significance of Legal Dogmatics in German Legal System

Legal Dogmatics in German Legal System

When we look for the characteristic features of the German legal culture, we encounter in the first place the qualities which it shares with other legal cultures of continental Europe.

First of all, the principle of codified law has to be mentioned here. According to it, basically only statutory law (Gesetz), but not judges’ rulings, is recognised as the source of law. Two further characteristic features are connected with that.

On the one hand, there exists the fundamental separation between Law and Morality, that is, a positivistic concept of law. The law is recognised as valid exclusively on the basis of its origin, and not on account of its content.

On the other hand, there is the idea of determining the judges’ rulings through the statutory law. Within the legal systems of continental Europe, the legitimacy of judges’ decisions is not founded on the authority of judges, but on that of legislators. In the classical model, a judge is nothing more than the “voice” of the statutes – in Montesquieu’s classical formulation: „La bouche, qui prononce les paroles de la loi“.

However, the model of determining the judges’ rulings through the statutory law cannot clearly be upheld when one limits it to the relationship between rulings and the texts of statutes together with their directly accessible semantic content. Since the statutory law is out of necessity formulated in general terms, therefore it does not by itself solve a particular case to be decided on.

Nevertheless, if the commitment of the judge to legal rules is to be guaranteed, then the judge should be provided, apart from the statutes, with additional and more concrete legal rules. It is the task of legal dogmatics to provide such rules. Legal dogmatics is thus an indispensable component of legal cultures, which are founded on the principle of strict commitment of the judges to the established legal rules. In this respect legal dogmatics is also a common component of the entire legal culture of continental Europe.