Weighing the benefits of Karl Larenz

Abstract

The article “Weighing the benefits of Karl Larenz” speaks about – in the terminology of the analytical philosopherW. Stegmüller – the direct interpretation and rational reconstruction of the idea of weighing the benefits in the legal methodology ofthe German professor K. Larenz (1903-1993). In the first case it is a description and statement of what the author mentioned in the titleof the article really had in mind when analyzing the weighing in law, and in the second about the implementation of the followingrequirements: the theory of weighing benefits should be presented in such a way that the presentation remains in agreement with themain ideas of K. Larenz; it should be set out to the extent possible with precise concepts, and also developed as a consistent (coherent)theory if possible.It was initially taken into account that the “legal career” of the concept of weighing in German (Federal German Republic)jurisprudence begins – according to H. Rückert – began in the middle of the last century, ie after 1950 and continues to the present.
 This almost coincides with the beginning of the publication of K. Larenz’s “Methodology of Jurisprudence”, which took place in 1960.In six editions of “Methodology”, “weighing of benefits” appeared as a heading only in the third edition, which was published in 1975and did not leave it in the subsequent 4-6 editions (the sixth was published in 1991), although lapidary analysis of weighing as suchhas place in the first edition. In general, Larenz’s concept of weighing was built within the neo-Hegelian direction in philosophy togetherwith philosophical hermeneutics, ie not with the help of analytical (in the sense of analytical philosophy) method, and therefore necessarilyrequires a rational, or rather analytical reconstruction.Rational reconstruction is carried out on the basis of, firstly, such a precise concept as “semantic rules” (R. Carnap), which meansinterpretive (in a broad sense) provisions, which together with the provisions on the norm and the fact, play the role of justifying thelegal decision.Secondly, such a reconstruction was carried out on the basis of three approaches proposed by such authors as: R. Aleksi,H.-J. Koch, H. Rüßmann and H. Rückert, namely: a) on the basis of the formulation of a new (the approach of R. Alexi) or b) the developmentof an old norm (the approach of H.-J. Koch (and H. Rüßmann) and c) without the formulation norms (the approach of H. Rückert),which in the first and second cases would have, and in the third could be a large (normative) basis within the framework of the socalled“internal justification” of a legal decision in the terminology of R. Alexi or within the framework of called the “main scheme”H.-J. Koch (and H. Rüßmann).As a result, it is shown that K. Larenz’s understanding of weighing properly is reconstructed with the help of H. Rückert’sapproach, that is, without the judge creating a new one and without developing the old norm.