Beyond the Law

(Last modified September 2007)

The aim of this doctoral research is to contribute to empirical work on the application of law by examining the practice of legal decision-making by judges within the space defined by existing laws; in the study, this framework will be elucidated with the help of legal theory and methodology.

Whenever scholars address questions pertinent to the administration of justice, both the sphere of "what should be" and that of "what is" are inevitably also scrutinized. This simultaneous consideration of the normative and the factual leads to a variety of problems that are associated with the application of law and are the focus of work in various academic subdisciplines.
Within this study on legal decision-making by judges, this aspect of legal practice is approached primarily—with respect to the scope of normative options in this realm of administering justice—as a discipline aimed at "what is". The starting point of this research project is the theoretical idea that every decision reached by a judge fills a space that is opened for interpretation, at the same time it is also limited by law. Judges reach decisions in each individual case on the basis of abstract, general rules and in doing so apply the law (by interpreting it) but also create law. They create an individual, single-case norm and thereby change the legal relationship between the parties. This process, which goes beyond executing the law, is formative in nature. Adolf Merkl, a scholar of constitutional and administrative law, referred to this dual character of the process with the term "double countenance of the law" ("doppeltes Rechtsantlitz"), as an expression of the fact that, due to the tiered structure of the legal order, (almost) all applications of the law are both execution of legal norms and creation of them ["Rechtsvollzug" and "Rechtsschöpfung"].

To date, relatively little use has been made of empirical approaches in studying judicial decision-making. Classic legal methodology centers predominantly on normative questions and does not focus specifically on the aspect of creating the law. This study, in contrast, will center on the application of law that is not legally pre-determined and will highlight the practical work of judges, since they are the only actors in this sphere who reach decisions within the framework set out by laws.

Using empirical research to address issues of judicial methods would seem to be especially promising as an approach to the sphere of labor law and labor law courts. German labor law is characterized by its many gaps and numerous general clauses. Moreover, like work-oriented society, labor law is currently in the midst of a process of transformation that began a few years ago; the erosion of normal employment and the loosening of collective wage agreements between unions and employers are only two examples. Labor law courts have been instrumental in developing new legal norms and have been referred to as so-called "substitute legislators". Presumably, judges in these courts are especially engaged with issues pertaining to the role of their profession in creating law and have also focused on questions of extra-judiciary criteria in legal decision-making; thus, we can assume that they are relatively cognizant of these problems when acting in a professional capacity within the framework allowed by existing legal norms.

Furthermore, the institutional specificities of labor law also speak in favor of empirical study of this sector of the judiciary. Judges in labor law courts always preside as the sole professional judge and work together with lay judges; the latter are knowledgeable about relevant workplace issues, among other things, and can thus contribute to decision-making with respect to pragmatic, extra-legal aspects. Finally, conciliation proceedings are a significant element, with more than fifty percent of labor court cases ending with an amicable settlement in which the judge mediates, rather than reaching a decision. This unique feature means that exploration of factors outside the realm defined by legislation that influence judges’ actions is of special interest here.

In this study, guideline-based interviews will be conducted with judges working at lower and appellate labor courts and will focus on these and other issues:
* legal options and decision-making criteria beyond the framework of the law;
* standards for the quality of judges’ decisions;
* the process of judicial decision-making, including judges’ daily routines and cooperation with lay judges;
* categories employed by individual judges to define the skills and characteristics of good judges.

It is hoped that this empirical study on the application of law and judicial decision-making beyond the realm of existing law will stimulate further methodological work. Focusing on judges’ practice work should aid in elucidating the real challenges involved in applying law as well as current decision-making processes. By highlighting the realities of judicial work, this study also aims to facilitate a dialogue between theory and practice.