Procedural Law Theory - An inquiry into the different approaches to analyse legal rules of preocedure

• Applicant: Professor Dr. Philipp Reimer
• Subject Area: Principles of Law and Jurisprudence
• Term: from 2015 to 2016
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 282333498

(1) The book falls into two parts, the first of which deals with philosophy of science as it relates to the study of procedural law. It analyses what different research questions can be pursued in this regard. Besides (procedural-)legal dogmatics, which can be defined as the study of law from the perspective of courts and other practical lawyers with a view to applying legal rules to individual cases, other research questions are also possible, and indeed to be found in academia. For these other questions, the term "Procedural Law Theory" (Verfahrenstheorie) is coined. Those questions within Procedural Law Theory that aim at legal norms rather than at empirical facts are described here as a distinguishable field of study, to be called "juridical Procedural Law Theory". These questions deserve additional studying. It is Juridical Theory when norms are put into contexts and interpreted as to their meaning; that way, Juridical Theory arrives at horizons of meaning and valuations that legal dogmatics can neither perceive nor discuss as it does not look beyond the applicative dimension of norms. Within the study of procedural law, therefore, Juridical Theory can function as a discipline of reflection as well as a discipline-relay because it provides opportunities to connect to related but distinct academic fields. This concept can help answer the much-discussed question if, and to what extent, interdisciplinarity is possible in legal scholarship. (2) The second part of the book dives into the substance of Juridical Procedural Law Theory and attempts to chart the issues that any non-dogmatical approach to procedural norms might want to study. This attempt does not directly pick up the traditional theoretical concepts describing procedural rule-sets as a whole (like "principles of procedure" [Verfahrensmaximen], "purposes of procedure"); rather, the charting follows the different aspects of procedure that such rule-sets would normally be about. The proceeding bodies (such as courts) and their internal structure, the sequence of events within a procedure, and the role of participants therein are the three main topics addressed here.Within these three fields, the potential of juridical Procedural Law Theory as a discipline of reflection and as a discipline-relay is exemplified by a plurality of issues normally regulated by procedural law. Here it can be specifically noted that procedural-law requirements for the actual decision-making (e.g., with a juridical or non-juridical standard; with or without discretion) are closely connected to central concepts of legal theory. With another example, oral hearings with their typical imagery and symbolism (like the strict arrangement of seating in a courtroom, the gowns, the formalised speech) can be related to interpretations they have been given by cultural studies.

• DFG Programme: Publication Grants