English common law versus German &lt;em&gt;Systemdenken?&lt;/em&gt;&lt;br&gt;Internal versus external approaches

Karl Riesenhuber

doi:10.18352/ulr.150

Abstract

This article compares the 'systematic method' of continental German private law with the common law method. It starts out by discussing the characteristics of a systematic approach, its application to European private law as well as its methodological tools. The author submits that the systematic approach is not inherently different but, on the contrary, is rather similar to the common law approach, irrespective of a difference in the (major) sources of law (statutes vs case law). What both approaches have in common is, in particular, that they take an internal perspective on the law rather than the external perspective that characterises the 'law and ...' approaches. The latter can inform the interpretation and application of the law only to a limited extent.

Highlights

When Professor Hondius asked me to participate in this conference focussing on the methods of the law, I felt especially honoured
The subject assigned to me provides an opportunity to return to the subject of my book on System und Prinzipien des Europäischen Vertragsrechts in 20031 which Ewoud Hondius had kindly mentioned – if with some critical hints – in his survey on publications on European Private Law 2002-2004.2 And it further includes a challenge to go one
It is well known that Professor Hondius has a keen interest in and that much of his research is dedicated to European private law.[7]

Summary

Introduction

When Professor Hondius asked me to participate in this conference focussing on the methods of the law, I felt especially honoured. Following Claus-Wilhelm Canaris we can consider ‘unity’ (Einheit) and ‘order’ (Ordnung), understood as coherence or consistency (wertungsmäßige Folgerichtigkeit), to be the characteristic elements of an inner system.[5] When we speak of law as a system, we consider the legal rules as forming a ‘coherent whole’ (geordnetes Ganzes). Canaris points out that German lawyers consider ‘dogmatic’ work to be inherently linked with a systematic approach: ‘As a consequence, it would seem appropriate to speak of dogmatic theory only where we are concerned ‐ and be it only to a minimum ‐ with the general context and consistency of a decision with a view to other problems. Systematic legal thinking emphasises the generalising tendency of justice according to which like cases should be treated alike and different cases should be treated differently

EU private law as a system

Systematic approach and method

Common law versus Systemdenken?

Internal and external perspectives

Conclusion