Richterrecht im Diskurs: Zugleich eine Buchbesprechung
Volume 79 (2015) / Issue 1, pp. 142-161 (20)
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A Debate over Judge-Made Law – Book Review »Judge-made law« results when a legal dispute cannot be resolved with reference to existing statutory rules and it falls upon a judge to fill this regulatory gap in the course of exercising jurisdiction over a case. This body of law is steadily growing in all nations featuring a judiciary as a central element of the legal system, and in Germany such law has long since constituted the vast majority of the governing law. The present contribution describes and analyses the findings of a conference held at Bucerius Law School Hamburg on the functions, foundations and limits of judge-made law. The conference saw the issue considered from a variety of perspectives based on the participation of both public and private law jurists, with Christian Bumke (Hamburg), Matthias Jestaedt (Freiburg) and Paul Kirchhof (Heidelberg) representing the former category and Eduard Picker (Tübingen) the latter. At its core, the debate reflects a power struggle being fought at the legal level between the legislative and judicial branches of the government – meaning that it relates to a central facet of the constitutional principle of separation of powers. Independent of the various theoretical, dogmatic and philosophical debates associated with the topic, the author holds judge-made law to play an important and quasi-legislative role in the fashioning of law.