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Maxeiner on Zippelius on Legal Method in Germany

By Lawrence Solum

James R. Maxeiner (University of Baltimore - School of Law) has posted Do the Right Thing: Reform Legal Reasoning on SSRN. Here is the abstract:

Two newly published introductions to legal reasoning judge legal methods differently. According to Frederick Schauer, rule-based decision making often requires ?legal decision-makers to do something other than the right thing ....? According to Reinhold Zippelius, on the other hand, rule-based decision making helps assure that legal decision makers resolve legal problems ?in a just and equitable manner.? Why are their views so different? Because they are judging different systems of legal methods. Schauer writes about American legal methods for American law students; Zippelius writes about German legal methods for German law students. The latter?s book has now been translated into English.

This article introduces Zippelius? book to Americans. Since Zippelius wrote his book for German law students, it is not so easily understood by Americans, even when translated into English. This article elucidates four of Zippelius? themes as presented by him: I. law is a body of rules intended to produce justice; II. good rules are drafted to facilitate their effective application; III. rules are interpreted to produce just results; and, IV. rules are applied to determine rights and duties justly and accurately according to law. This article contends that these four themes characterize American as well as German legal methods, but are less well realized here. This article is intended to encourage the study of Zippelius? book in particular and foreign legal methods in general with the goal that Americans work to improve their legal methods.

Full post as published by Legal Theory Blog on July 19, 2010 (boomark / email).