European Legal Methodology – Current Position and Future Perspectives Europäische Methodenlehre: Stand und Perspektiven - 10.1628/003372511797638242 - Mohr Siebeck
Rechtswissenschaft

Holger Fleischer

European Legal Methodology – Current Position and Future Perspectives Europäische Methodenlehre: Stand und Perspektiven

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This article begins with an examination of three common misconceptions voiced against judicial interpretation, emphasising in the process that research into legal methods in Europe is not solely the responsibility of legal theorists but is rather a common task shared by all those active in the legal field. Those looking to advance towards a true European legal methodology must first shed their national feathers. This does not mean underplaying the tremendous intellectual contributions made by German legal methodology; however, one cannot anticipate that all its finely-chiselled concepts and categories will fit into the architecture of the European legal methodology currently under construction. Conceptually, it makes sense to use the dual theoretical systems of EU private law and European ius commune employed with such success in substantive law to equally benefit the development of legal methodology. The article identifies problems specific to methodology in EU private law, including constitutional, systematic, linguistic and gapfilling questions, as well as issues dealing with comparative case law analysis. For the European ius commune, on the other hand, the discussion focuses on the phenomenon of methodological convergence in different jurisdictions by exploring selected issues (significance of legislative history, weighing of interpretation methods, and limitations on judge-made law). Finally, the article raises some broader methodological questions, ranging from specific methods used in certain areas of the law, across the plethora of legal sources and consequentialism, and on to the integration of extra-legal arguments into the legal discourse as well as techniques for legislative drafting.
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Holger Fleischer ist Direktor am Max-Planck-Institut für ausländisches und internationales Privatrecht in Hamburg.