Eine andere Geschichte der Begründungspflicht

Although written and published reasons for court decisions are an essential
part of modern German legal literature, they have only been around since the
late eighteenth and early nineteenth centuries. Starting from this astonishing
fact, the study focuses on how contemporary jurists thought about this new
obligation.
Firstly, the thesis reevaluates the legal obligations to state reasons to the
parties in German territories and states (B.). The different rules show that
establishing this obligation was not a clear cut but a slow process lasting over
one hundred years. Against this background the discussions took place.
The following chapter C. addresses the “Läuterung” (leuteration). This
old Saxon legal remedy enabled the parties to ask for an explanation of their
verdict. In comparing legal textbooks and encyclopedia articles the study
demonstrates that the “Läuterung” probably fulfilled similar functions as the
obligation to state reasons. Both coexisted for about a century.
Chapter D. presents three proposals for reform and a regulation from
1803 to 1813 that explicitly demanded respectively defended an obligation to
give reasoned judgments. All sources assumed positive effects of this obli-
gation on the judges as insiders as well as the parties and the whole “nation”.
On the one hand, the judges should be encouraged to think carefully about
the verdict. On the other hand, the reasons were meant to convince every
possible reader that the law had been applied justly. In these sources the
obligation to give reasoned judgments is named as a clear improvement.
Chapter E. focuses on the later perception of the obligation to state
reasons. It is structured by topics and reconstructs the discussions and casual
remarks scholars made about the still new obligation. Surprisingly, different
opinions about the origin of the obligation existed (E. I.). Rarely scholars
wrote about which readers should be addressed by the reasons (E. II.).
However, they discussed whether the obligation made public trials obsolete
since after a trial finished the official reasons were accessible to anyone in-
terested (E. III.). The reasons were even used as an argument in the dispute
whether a codification in civil law was necessary (Kodifikationsstreit)
(E. IV.). Few authors gave clear guidelines regarding style and structure of
the reasons leaving this issue to local customs in every court (E. V.). Wher-
ever the obligation to state reasons existed in a territory, scholars around
1800 animated young judges to evade it by using an empty phrase instead of a
full motivation. However, scholars in the 1820s and 1830s did not accept this
practice any longer (E. VI.). The legal force of the reasons was an important
doctrinal discussion until the code of civil procedure came into force in 1879
(E. VII.). Finally, the study presents authors emphasizing that the reasons
would require the judges to be trained scholars themselves (E. VIII).