System-Contextual Argument

Abstract

Abstract This chapter treats four system-contextual arguments: constitutional conformity, Drittwirkung, Treu und Glauben, and analogies, chosen because of their importance in civil-law jurisdictions like Germany and because three—Drittwirkung, Treu und Glauben, and analogies—are poorly understood in the English-speaking legal world. In Germany, the Federal Constitutional Court mostly only has jurisdiction over controversies involving constitutional issues. As demonstrated in Herrenreiter, if the Federal Constitutional Court discerns a constitutional issue in a controversy otherwise outside its jurisdiction, the Court can substitute itself as the last appellate instance in place of, for example, the Federal Supreme Court. Drittwirkung is translated into English as the ‘third-party effect’ or the ‘horizontal effect’ of constitutional rights. In practice, Drittwirkung is an argument for bending the law in the direction that the judges see fit, illustrated by the examples of Lüth and the familial guaranties case. Treu und Glauben (‘good faith’) in Germany has a longer history than constitutional conformity but works in a similar way, except that it does not confer jurisdiction on the Federal Constitutional Court, as illustrated by the cases in this chapter. Finally, this chapter addresses statutory analogies as understood in the civil-law world: the technique of legal argument, in which judges borrow policies from other statutes to justify a decision that cannot readily be justified by textual, historical, or purposeful arguments. Statutory analogies are hidden behind fictional gaps in the statutory scheme; unlike Treu und Glauben, the doctrine of statutory analogies can be employed to create new causes of action.