“Further Development of Law by Judges” – A Comparative Study of dynamic interpretation and related concepts in Germany, France, the EU and the USA

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The research project is concerned with the analysis and discussion of the German debate on the concept of “richterliche Rechtsfortbildung” (“further development of law by judges”). It pursues the goal of revealing the prior assumptions underlying this concept and, on this basis, of redefining the lines of conflict within the debate with two different approaches. The combination of these two approaches will enable the prior assumptions underlying the concept of “richterliche Rechtsfortbildung” to be comprehensively considered: both in terms of substance and epistemology. The first approach entails a basis- and context-oriented comparative law study with the aim of reflecting the German concept of “richterliche Rechtsfortbildung” from the perspectives of the debates on French, US and EU law. This comparison is intended to show that the actual core of the German debate is not the concept of “richterliche Rechtsfortbildung” as such, but (unexpressed) prior assumptions regarding the evolution of law through judicial lawmaking, which as a result of the comparison become particularly open to scrutiny and discussion. In addition, the comparison is intended to check the hypothesis that the combination of prior assumptions and the actual concept as well as the focus on “richterliche Rechtsfortbildung” as only one way of law being evolved through judicial lawmaking constitute particularities of the German debate. The second approach, which is based on epistemological insights, is designed to enable a sophisticated transfer of the findings of the first approach into the German debate. For this purpose, the German debate is to be structured from an epistemological perspective. The aim is to demonstrate that the German debate on “richterliche Rechtsfortbildung” is, in addition to the substantial prior assumptions on the evolution of law through judicial lawmaking, characterized by (unexpressed or unconsidered) epistemological assumptions. The hypothesis to be examined here is that, given different epistemological assumptions, the term “richterliche Rechtsfortbildung” is used to describe, explain or criticize different phenomena constituting not one discourse only, but several discourses in respect of epistemology.