Judikative Rechtserzeugung. Theorie, Dogmatik und Methodik der Wirkungen von Präjudizien

• Applicant: Professor Dr. Mehrdad Payandeh
• Subject Area: Public Law
• Term: from 2016 to 2017
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 332211801

The book deals with the phenomenon of judicial lawmaking (or precedents), meaning the contribution of courts to the interpretation, concretion and development of law. It analyzes this judicial function and its legal implications. From an institutional perspective, judicial lawmaking is construes as a genuine function of the judicial branch. With regard to its interplay with the legislature, this judicial function is integrated into a coherent system of the production of normativity. The first four chapters lay the foundations: First it is analyzed how precedents work in practice (chapter 1), and the requirements and terminology of judicial lawmaking are conceptualized (chapter 2). Then the historical context of judicial lawmaking is examined (chapter 3), and a legal concept of the operation of precedents is developed (chapter 4). In chapter 5, the centerpiece of the book, a constitutional theory of judicial lawmaking is developed. Building upon the rule of law principle it is explained how precedents can contribute to the binding force of law. A legally recognized effect of precedents can compensate the deficient binding force of statutes and thereby stabilize the normative force of the law. From an institutional perspective the judicial branch seems adequately equipped to fulfill this function. With regard to the institutional setting of the judicial branch as well as its interplay with the legislature, it is further argued that the recognition of a lawmaking function of the judiciary does not contravene the principle of democracy. On the contrary: Judicial lawmaking can enhance the democratic legitimacy of the legal process. Building upon the constitutional principles of the rule of law as well as democracy a constitutional obligation to take precedents into account is therefore developed and its legal contours are outlined. Within the two following two chapters the doctrinal content of this constitutional theory is explored. Chapter 6 analyzes how the jurisprudence of the highest courts confirm this approach. Moreover, classical doctrinal problems which bear a connection to the question of precedent are reconstructed in light of the constitutional approach developed in chapter 5. Chapter 7 then turns to the specific functioning of precedents by the Federal Constitutional Court and reexamines the jurisprudence of the Constitutional Court as well as the accompanying constitutional discourse. The final chapter 8 draws the conclusions of these theoretical and doctrinal considerations for the methodological approach towards precedents. Normative guidelines for dealing with precedents are developed as are normative rules for distinguishing and overruling precedents. In doing so, the main features of a general theory of precedents are outlined.

• DFG Programme: Publication Grants