Standard Relational Technique Yesterday, Today, and Tomorrow

Abstract

The article under studies deals with the issue of the evolution of the so-called standard relational technique, which was introduced by H. Daubenspeck at the turn of the XIX and XX centuries. However, this idea was included into the manual, which was published only in 2023 (after a very long break), in the 36th edition, under the title “Civil-Legal Working Technique at the Assessor’s Examination.Votum, Judgement, Presentation of Documents, Attorney’s Opinion”. The purpose of the article is to outline the basic trends of the development of standard relational technique. In order to achieve the above goal, it is necessary to regard the following issues: what standard relational technology used to be before 2013, in 2013 and 2023, or may be later. The article takes into account and continues the analysis of the history of relational technique from 1884 to 2008, carried out by L. Gusseck in 2010. In other words, it traces up the evolution of relational technique from the very first edition by H. Daubenspeck and up to the 34th edition. It is important to take into consideration the fact that H. Daubenspeck has laid the foundations for combining relational technique and philology. P. Sattelmacher has developed relational technique in terms of the civil-legal working method. W. Sirp has reintroduced the subsumption and syllogism to the presentation of a judge’s decision, whereas W. Schuschke has extended relational technique to the profession of an attorney. In addition, particular emphasis has been laid on the following features of relational technique: H. Daubenspeck’s introduction into relational technique of the substantive-legal division of legal norms into basic and auxiliary ones, as well as their doctrinal and / or legal division into law-justifying and 2 types of law-negating norms; P. Sattelmacher’s relying his approach to relational technique on the concept of the so-called “Schlüssigkeit”, i.e., the requirement to consider separately and sequentially first the positive grounds of a claim, and then the negative grounds of a claim (the positive grounds of objections). The 35th edition of H. Daubenspeck’s manual (published in 2013) highlights a quite new structure of relational technique. Hereby, it focuses not so much on the standard division (abstract - expertise opinion (votum) – judgment), but on the preparation of a relation according to a plan: analysis of the circumstances of the case (formerly abstract), general rules of law, civil-legal working technique (votum), and elaboration of a draft judgment. In the latest, 36th edition of 2023 (today), the outlined structure is directly based on the publication plan, with the novelty of this edition being the focus on the law of enforcement of a court decision. As for the future (the tomorrow of relational technique), the article predicts the prospect of combining relational technique and R. Alexy’s theory of legal argumentation. This combination is supposed to manifest itself particularly within general rules of law. Besides, such a combination is possible in terms of, on the one hand, involving in relational technique not only rules as definitive (final) norms, but also principles as optimization imperatives, i.e., norms which have a prima facie character. On the other hand, it is argued that relational technique should be based not only on such a form of application of law as subsumption, but also on the theory of weighing principles.