Rechtswissenschaft

Jürgen Basedow

Der verfahrensrechtliche Rahmen richterlicher Rechtsfortbildung – Einführender Überblick

Jahrgang 80 () / Heft 2, S. 237-253 (17)

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The Procedural Framework for Judge-Made Law – An IntroductionDiscussions surrounding judge-made law generally look at the topic in terms of legal theory and its constitutional validity. Accepting the existence of case law fashioned by judges, such discussions are no doubt of value. Yet the reality of the practice leads to another question: How should court proceedings be arranged so as to improve the quality of judge-made law and maximize the knowledge of courts in respect of those interests and areas of life that are impacted by precedential rulings? Answering this question requires an appreciation of the significant institutions, the intended proceedings and the manner in which relevant information is collected, all with an eye toward the optimization of judge-made rules; in this regard, comparative law can make a valuable contribution. Finally, the legal culture in which practice and scholarship operate has to be borne in mind. Whereas »Western« countries are now quite accustomed to the notion of law being created by the judiciary, a gap exists in many parts of the world. Thus in many countries one still encounters the belief that there is no such thing as judgemade law, despite its existence being anchored – there as well – in the practice of high courts.
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Jürgen Basedow is Director em. of the Max Planck Institute for Comparative and International Private Law and Professor of Law, University of Hamburg.