[author]Philip Black

[content]

From Interest Law to Evaluation Law

 

*Author Philip Black (1858-1943)

Four German Jurists

 

  *Translator Fu GuangyuW

Associate Professor, School of Law, University of International Business and Economics

 

 1. Outline

Dear classmates, respected listeners!

Compared to other topics, the topic of today's guest speech holds special significance for me. It involves not only one of the many issues studied by a university teacher, but also the focus of my lifelong work. Since writing my professorship thesis, I have been a supporter of the interest law approach, whether in the classroom, in theoretical debates, or in practice. Regarding practice, it is particularly important to mention my two "Introduction" books on debt law and property law. Being able to discuss this method in front of a new audience is a joy for me. However, first of all, I must impose certain restrictions on the content of my speech to avoid disappointing everyone later.

Interest law is a methodology of practical law. What it needs to determine is the principle that judges should follow when making judgments. These principles are of great significance not only for judges, but also for scholars who want to provide assistance to judges. But interest law is not a philosophy of life, nor is it a branch of philosophy known as legal philosophy. Our theory is sometimes criticized for not providing legislators with any general standards or hierarchy of life interests (Rangordnung) from which the legal system arises, despite our emphasis on measuring interests. Indeed, we have never given such a level, and even today, you have not heard of such a level. Because we never set such high goals for ourselves. We want to provide some assistance to the judge. The duty of a judge is not to freely create new legal systems, but to participate in the implementation of recognized concepts within the existing legal system. Therefore, the goal of our method is limited, although it is still very important.

In terms of methodology, due to time constraints, I can only limit the discussion to basic concepts. To discuss methodology, just one hour is not enough. I have to ask everyone to read the literature on the details themselves, but there should be enough time to discuss the basic issues today, because what I want to talk about is not a special and difficult to grasp art theory, but rather some very simple basic concepts. This is the first point I want to emphasize. What we are going to talk about today are some very easy to understand, even basic concepts. The possible exceptions are just a more empirical principle, which I will explore later as the "principle of interest division" or "conflict theory". After my speech, some listeners may think that there is no need to come specifically to listen to a guest speaker for such self-evident reasons. But these basic concepts have not been correctly understood for a long time, and they still remain so today. It is necessary for us to clarify these concepts in order to liberate them from an artificial theory, namely the old conceptual jurisprudence and its influence. This kind of liberation should also be the focus of our investigation today.

Another limitation of the speech content is that I am only prepared to discuss private law and contemporary German law. Some basic issues also arise in other departmental laws, and in recent years, discussions on public law have been particularly in-depth. But due to time constraints, I have to make this restriction.

As mentioned above, the main content of my speech is to compare old research methods (i.e. conceptual jurisprudence) with new theories. The old research methods focused on general academic concepts. These concepts were once the foundation of legal norms and the main subject of academic research. This research method has been replaced by some new ideas today. The commonality of these new ideas lies in their greater emphasis on the impact of law on life. The names of these concepts vary, some are called teleological methods, while others are called realist law or social law, or interest law. One branch that should be abandoned is the doctrine of liberal law. This doctrine advocates that judges' judgments are not subject to the constraints of statutory law. The new concept that places special emphasis on the principles of interest division or conflict theory mentioned above can be called narrow interest law. Although the old conceptual jurisprudence has been replaced by new ideas, attempts at revival have not been completely abandoned. Hans Kelsen's methodology can be partially attributed to this attempt. The same goes for some other theories. More importantly, the influence of old theories still exists today. We can see this influence in academic research, court rulings, and to some extent in legislation. Only by understanding this old theory can one avoid being influenced by it. Therefore, in my speech today, the comparison between new and old theories is also in an important position.

I want to examine this comparison between old and new theories from three aspects, focusing on three main issues. The first main issue is the causal relationship between various legal elements; The second main issue is the judge's adjudicative activities; The third main issue is the structure of law. I will discuss these three issues one by one. For every problem, I first examine the solution of the old theory and then compare it with the solution of the new theory.

 

 

 

2. The causal relationship between various legal elements

 

The first main issue I want to discuss, which is the causal relationship between various legal elements, refers to the interrelationship between various legal orders, life interests, and the concept of scientific order (wissenschaftliche Ordnungsbergiffe).

In the legal sense, law belongs to the consciousness content (Bewusstseinsinhalt), especially to the command concept (Gebotsvorstellungen), similar to customs and morality. But if we examine specific legal provisions or legal provisions individually, we will see that most of the legal provisions are not orders, but statements. But these statements are also statements about commands, and only through the actual commands they explain can these statements gain legal meaning. Therefore, defining "fruits" in Article 99 of the German Civil Code is meaningful only because the orders specified in the code mention "fruits". As a whole, the legal system is composed of commands.

In addition to legal orders, there are also concepts about the impact of these orders on life. These concepts are a functional examination, like legal physiology. Legal orders affect life, and this is also their goal. They do not affect a static world, but a dynamic, challenging, and constantly demanding life. Various life interests are in competition with each other. In 13 common phrases, we refer to various life demands as interests. This word not only means the protection of material interests. The term 'benefit' in everyday language implies the highest interests of humanity as well as moral and religious interests. Only in the broadest sense, involving all interests and life ideals, is the term 'interest' useful for law. This term is only used in the field of law in this sense.

The third group of legal elements is academic concepts. For the purpose of overall understanding, scholars classify various command concepts and interest concepts, especially by constructing group concepts (generalized groups) for classification. As long as the classification results in command concepts, people tend to refer to them as general concept groups, or more precisely, as order concepts. Some of these concepts are connected to legal provisions and sentences, while others are connected to newly coined words (such as formation rights, abstract legal acts, etc.). This concept of order includes subjective rights, various specific subjective rights, legal acts and their types. The formation of these concepts is not closed, and academic progress will always bring new concepts of order and new forms of concepts.

The fundamental opposition between new and old theories is reflected in the causal relationship between the three legal elements mentioned above.

Conceptual jurisprudence holds that general legal concepts are fundamental and causal concepts of law, which generate legal norms and indirectly influence daily life. This theory about the causal status of general legal concepts gained dominance through the historical legal school. The historical legal school believes that the formation of law is through the beliefs of the people, and that progressive culture, legal professionals, and jurisprudence are representatives of the people. As a result of national spirit, it not only includes various value judgments and values, but also directly includes general concepts shaped by academia. The general concept is the source of legal norms. For example, starting from the concept that debt is a constraint between specific individuals, it can be inferred that debt cannot be transferred; Starting from the definition of legal acts (using theories of intention and expression), legal norms regarding defects in intention can be clarified; Starting from the concept of whether the debt formed in instructed securities and bearer securities is a contract or a unilateral promise, the legal status of the securities acquirer can be inferred; Starting from whether land burden is a concept of property rights or creditor's rights, its legal consequences can be inferred. This old theory of cause has been abandoned today. In various new theories, regardless of the differing opinions on the formation of law, there is a consensus among all parties that historically, legal orders emerged before general concepts. The formation of various legal orders is based on the actual needs and evaluations of life, rather than on general concepts designed. This applies to both customary law and statutory law. For example, the land burden system in German law is based on the need to guarantee the repeated payments of ongoing debts, rather than considering the creditor's or property rights attributes of land burdens. Because at the time of the formation of this system, the distinction between creditor's rights and property rights had not yet been established in German law. Another example: The provisions on anonymous securities in the German Civil Code are designed to protect the interests of all parties involved. Legislators did not consider the existing theoretical controversy regarding the nature of debt in anonymous securities at that time. The same situation also occurs in the handling of defects in the intention of legal acts. Generally speaking, the history of the formation of modern law is very clear, and we can also recognize the driving forces behind the formation of these legal provisions. The struggle in legislation is not to accurately define concepts or consistently apply established definitions, but to protect various interests. The exceptions that sometimes arise due to the influence of old theories are generally considered incorrect. The widely accepted view today is that, from a historical perspective, law is a product of interests.

This viewpoint is widely circulated today, mainly attributed to the great Roman jurist Rudolf von Yelin. He was originally a conceptual jurist, but later changed from 'Saulus' to' Paulus'. Yelin proposed a principle and proved it: the creators of law are not concepts, but interests and purposes. In this sense, Yelin can be considered as a teleological research method and also the founder of interest law. But Yelin did not fully implement his theoretical propositions. There are two main objections to his theory. Firstly, Yelin did not come to the correct conclusion regarding legal discovery (Rechtsfindung). The same Yelin, on the one hand, destroyed the foundation of the old method of legal discovery, but on the other hand, was an outstanding representative of this method. In addition to this widely recognized opposition, another opposition should also be mentioned, that is, although Yelin recognized the extremely important impact of law on life, he did not fully divide this impact. Yelin emphasized the protection of interests and regarded it as the purpose of enacting laws. One of his later representative works is titled 'Zweck in Recht'. But the book's consideration of the purpose of enacting laws is not sufficient.

What has fundamental significance is rather the understanding that every legal order determines a conflict of interest, based on the interaction between various opposing interests, as if it were the result of these opposing forces. The protection of interests through statutory law is never in a vacuum, but always in a world full of interests. All interests in this world are advocated by someone, so the realization of one interest always comes at the cost of other interests. This is without exception. For example, if the copyright of a work is recognized and a new invention is granted a patent, the interests of competitors and subsequent inventors will be suppressed as a result. The purpose of enacting laws is only to demonstrate the benefits of victory. However, the specific content and degree of satisfaction of legal norms depend on the weight of the failed benefits. For example, the purpose of all tax laws is to gather wealth for the community, but the characteristics of a specific tax law are determined by how the interests of taxpayers are considered. Therefore, Yelin's teleological approach is still insufficient. She must deepen it through the principle of division of interests, which can also be called conflict theory. Analyze the conflicts of interest determined by each legal norm. Of course, this can only be achieved when the regulation is a legal order. The interpretation of legal orders must be translated into the legal order to be interpreted, in order to recognize the conflicting content determined by the legal provisions. This principle of dividing interests is also an element in our theory, which I just referred to as a 'not self-evident' element. We must get used to this principle. Applying this principle requires self-discipline. This is not easy to understand because in many cases, a rough concept of purpose is already sufficient for us. However, every more in-depth exploration requires a division of interests. The division of interests is like a legal microscope. This principle has not been universally recognized. It distinguishes narrow interest law from other similar research methods. Many representatives of teleological research methods have consistently placed the concept of purpose in a prominent position. However, the correct understanding is also increasingly accepted by people.

In a principal speech given to Max Rumelin a few years ago, my colleague August Hegler in T ü bingen preferred to use purpose as his work concept and expressed skepticism about the significance of interest measurement given by representatives of interest law. However, in the second principal's speech on criminal justice a few weeks ago, Heigler was discussing conflicts of interest throughout the entire speech. The practical attempt dispelled his theoretical doubts. I believe that everyone who conscientiously implements the principle of dividing interests will have the same experience. This principle may seem insignificant, but it has been proven to be extremely beneficial in practical applications. Practicing this principle requires self-discipline, but it is also worth it.

The value of finely dividing work concepts has also been proven in other disciplines. Only after the theory of dividing materials in atoms, known as atomic theory, was widely accepted, did chemistry achieve its current development. Further dividing atoms into electrons makes new progress possible. Of course, I am by no means claiming that conflict theory or division of interests has the same significance for law as atomic theory does for chemistry. But the ways in which the two work can be compared. Based on years of experience, I am convinced that conflict theory is also of great significance for our tasks.

 

 

3. Judge's verdict

 

The second main issue I want to discuss is the judge's verdict. For private law, the judge's judgment is at the center of every methodology. The law affects life first through the judge's judgment. The law in the judge's judgment is the truly living law. Anyone who wants to become a thoughtful legal person must be clear about the methods used by judges when deciding cases.

The old theory holds a very definite viewpoint, which we can call cognitive dogma. It limits judges to an interpretive activity. Judges must understand legal norms and logically incorporate the facts of the case into the norms. He must apply the law according to the rules of cognitive logic, but should not make evaluations, let alone create norms on his own. The typical term for this activity is' using conceptual calculations'. Calculation is a pure cognition without any emotional factors. Therefore, judges are seen as machines that can give judgments by putting facts into them, and although they are not based on mechanical rules, they are also based on equally objective logical rules. As for whether the judgment is correct in daily life, judges do not need to consider it and therefore do not need to be held responsible.

 

 

 

Limiting judges to cognition also applies when legal loopholes may arise. By constructing concepts as a special method, legal loopholes can be filled. From the perspective of the old causal theory, this method is logically correct. If the existing legal orders are derived from a basic concept, then the understanding of the concept of cause will inevitably generate new norms. Although the old causal theory has been abandoned and the academic concept of order is no longer seen as the cause of legal orders, but as a subsequent summary of legal orders, the old methods are still retained. In the naive conceptual realism, creating legal norms by constructing concepts is a theory of legal art. This particular method is called 'filling gaps through conceptual construction or system based filling'. Its opponents refer to it as "true formula application" or "reversed method". According to this method, first summarize a concept from existing legal norms, and then deduce new norms from that concept.

In Yelin's "The Spirit of Roman Law" Volume 2, page 357 and below, you can find the classic expression of this method. I would like to recommend this passage to every law student to read. Yelin distinguished between two stages of jurisprudence, namely the lower stage and the higher stage.

In Yelin's view, the focus of low-level legal studies is to interpret statutory law, clarify its content, improve its uncertainties and contradictions, and integrate (legal) materials through the concept of order. He believes that logically speaking, this type of thinking activity is no different from other sciences dedicated to explaining human expression.

Advanced law is a method that is entirely unique to the field of law. Yelin believes that the uniqueness of advanced jurisprudence lies in its view of general concepts of order as independent entities and its treatment of these concepts as (legal) bodies with definite shapes, just like natural bodies. Therefore, Yelin also referred to this method as the method of natural science. He believes that the concepts obtained through summarization should be precisely determined structurally. For example, for each subjective right, its subject, content, and object must be determined. For example, some structural issues include: What is the property, rights, or value divided among individuals in joint ownership? Is the joint and several debt in Roman law multiple debts with the same content, or a single debt of multiple subjects? Yelin believes that the results of structural research should be determined in a formula, that is, a definition. In this way, the concept is' constructed '. Once the definition is determined, it should be firmly maintained and made the basis for obtaining new norms, that is, as the basis for judging cases where the concepts were not considered at the time of determination. Yelin believes that the independence of concepts must be taken seriously. The value of conceptual construction lies precisely in the infinite availability of concepts. Therefore, the sum of those defined concepts, namely the system, was praised by Yelin as an inexhaustible source of new materials.

Yelin's description of the method of legal discovery in conceptual law is largely correct in his era. But this method has never been in an absolute dominant position. The methods of legal analogy and statutory analogy have always played a complementary role in determining the correctness of judgments in daily life, even if the reasoning used in these supplementary methods is incorrect. The pursuit of the right judgment in life also affects the method of filling loopholes through conceptual construction itself. If there are many possibilities for constructing concepts, priority should be given to the one that can yield the correct results in daily life. This is the form of Scheinbergruendung in conceptual jurisprudence, also known as Kryptosoziologie, which is precisely the method favored by Yelin himself.

 

 

 

Constructing concepts to fill gaps is an unreasonable approach. From a formula that summarizes some existing legal orders, no new legal orders can be derived. For example, if a legal scholar refers to certain legal acts as "abstract" because certain legal norms apply to certain legal acts, he cannot insist on the existence of new legal norms, simply because these so-called new norms can also be called "abstract". Otherwise, people can always obtain new norms by using very uncertain terms. The attempt at this method is not only seen in law. The phenomenon of a principle being proposed in one sense and then used in another sense is not uncommon in academic discussions. But this method is incorrect, it is a famous argument error, known as "quatelanio terminorum", which translates to "concept substitution". In fact, Yelin's advanced jurisprudence is just a systematic substitution of concepts. Its uniqueness lies only in the fact that such a well-known argumentative error has been elevated to the status of an academic method. I don't want to discuss the historical explanation of this method today. I firmly believe that it is the characteristics of scholars who compile theories that fundamentally drive the development of this method. This method makes no logical sense and has little value in practical life. Because the factor of appropriateness was not taken into account in the process of obtaining norms, the results obtained cannot guarantee correctness in daily life. The need for determinacy in law also cannot justify the results of this method, as evidenced by experience and extensive debates on conceptual construction. The judge's belief in the objectivity of their own judgment may be considered an advantage of this method, since the judge believes that they are applying existing laws. But this belief is just an illusion. This illusion only exists among those who have not yet recognized the erroneous features of conceptual construction methods. The true application of formulas is a spell that can only help those who believe in witchcraft.

The second method I mentioned earlier, namely the surface evidence of conceptual jurisprudence, may be more in line with the needs of life, but its effectiveness is still limited because the possibility of conceptual construction is limited. At the same time, this method also violates the obligation of reasoning based on facts that is consistent with the judge's identity. In addition, the true application of formulas also weakens the judge's sense of self responsibility. Even if there are extremely obvious loopholes in the legislation, even if legislators clearly do not formulate norms constructed by judges through concepts, and even if the norms would seriously harm the interests of life, judges can still escape any kind of responsibility. He can wash his hands like Pilate and calmly say, 'Sin is not in me,' 'Sin is in concepts.'.

The new research method refuses to limit judges to purely cognitive activities, and also refuses to fill legal loopholes by constructing the concept of order. The correctness of the conclusion is placed in a prominent position in daily life. This applies particularly to the rulings of imperial courts, even though we sometimes feel some regression in these rulings. There is sometimes a lack of in-depth discussion on the interpretation of statutory laws and the specific circumstances of legal discoveries, and there are also many divergent views. I only want to discuss narrow interest law here.

The starting point of interest law is twofold: firstly, according to our constitution, judges should be bound by the law. Judges should also define interests like legislators and make judgments on conflicts of interest. The dispute between the two parties in the lawsuit forces him to face conflicts of interest. However, the balancing of interests made by legislators takes precedence over the personal evaluation of judges and also has binding force on judges; Secondly, compared to the many problems that arise in daily life, our legislative approach is flawed. They are not complete enough, nor are they completely contradictory. Modern legislators are aware of this flaw in the law and therefore expect judges to obey the law not in accordance with words, but in accordance with their interests; They not only need to logically classify under existing legal orders, but also supplement missing orders and correct flawed orders. In other words, judges not only need to apply specific legal orders, but also need to protect the overall interests deemed worthy of protection by statutory law.

I only intend to talk about the procedure for judges to fill legal loopholes here. When filling loopholes, the principle of division of interests, or conflict theory, should also be applied. If the facts of a case do not meet the legal requirements for factual composition, the judge must first understand what conflicts of interest exist in the disputed case. Next, he will investigate whether the law determines the same conflict of interest in the form of other facts. If the answer is affirmative, he must apply the legal value judgment of ubertragen and make the same judgment for the same conflict of interest. This method has always been used as a statutory analogy and legal analogy, but only through interest law can it be correctly explained and more clearly defined, and it is also safer to apply.

Judges need to apply legal value judgments when filling loopholes, but they can also judge conflicts based on their own evaluation of life interests. This first occurs in situations where laws allow judges to make personal evaluations: either through explicit authorization (judge's discretion) or through the use of uncertain, value filled terms in legal provisions (such as "significant reasons"). In addition, if judges must make judgments based on the law as a whole, and various statutory value judgments are contradictory or ineffective, they also need to make personal evaluations. In these cases, the judge must make the judgment that he may suggest as a legislator. This requirement is reflected in the famous Article 1 of the Swiss Civil Code. This provision also applies to German judges in essence.

If we want to logically describe the characteristics of the judge's judgment made in accordance with the above basic principles, we cannot simply call it a cognitive activity, that is, the understanding of legal norms and logical reasoning. Judges not only need to apply existing legal norms, but also need to create their own norms. He should also take action in the field of law making. However, the norms created by judges do not have the effect of formulating legal norms and do not have binding force on other judges. Especially judges are not as free as legislators. He must follow the legal value judgment, and personal evaluation can only be in a subordinate position. This modern judge is by no means a legal machine, but largely serves as an assistant to legislators, with higher freedom but correspondingly heavier responsibilities. The specific issues that are of great significance to our methods, such as the historical interpretation of statutory law, the issue of outdated laws, and the relationship between judges and statutory law, cannot be discussed one by one today. You have to read the previous research results by yourself. A more appropriate approach may be to illustrate the opposition between the two methods mentioned above in terms of vulnerability filling through examples.

 

 

I would like to take the altruistic contract of cause of death as an example. The most common form of this contract is the altruistic life insurance contract. To avoid complicating the issue, I do not intend to discuss insurance law here, but only examine a very simple factual composition.

A retired person has multiple nieces. In his will, he gifted equal shares of property to his nieces, but inadvertently omitted one niece. He did not change his will to include this niece, but instead deposited a considerable amount of money in a bank and agreed with the bank that he could dispose of the money freely and exclusively during his lifetime. If the funds are not disposed of, they will belong to the niece after his death. Before the retiree's death, the legal status of the niece was very clear: she had not yet obtained the right to money, but only had an unprotected expectation against her uncle (heir) (Article 331 of the German Civil Code). Assuming that my uncle dies and his estate is insufficient to pay off his debts, bankruptcy proceedings will be initiated. Who can claim rights to the funds deposited in the bank? Is it the niece or the inheritance creditor? There are no directly applicable legal norms here. We are facing a legal loophole and need to use the two methods described above to fill it. Firstly, let's take a look at the method of interest law using conflict studies.

According to this method, we need to ask whether similar conflicts of interest have been identified in the law. I believe the answer is undoubtedly yes. Whether it is the niece who obtained the estate through a contract or other nieces who obtained the estate through a will, there is the same conflict of interest between them and the estate creditors. The interests of nieces are not protected until their uncle's death. The nieces have not yet obtained their rights, while the creditors of the estate have already obtained their rights and their interests have been protected. There are clear provisions in the statutory law regarding conflicts between creditors and legatees: estate creditors have priority rights. This is a mandatory norm, not a speculation about the will of the deceased. The law does not allow the deceased to place the testator before the creditors. The same conflict of interest requires the same handling, which means that the niece who obtained property through the contract must also be ranked after the estate creditor.

If another norm is applied, namely Article 2301 of the German Civil Code regarding gifts due to death, the same conclusion will be drawn. The deceased must ensure the interests of the missing niece. In addition to changing the will or entering into an altruistic contract, there is a third method, which is to give her the asset through a death cause gift. Assuming that the deceased only made a promise of a gift, the niece who received the gift still enjoys a higher status before the deceased's life than she did through an altruistic contract. In the case of altruistic contracts, the niece did not receive any rights before her uncle's death, while the niece who received the gift already had rights, even if it was just a debt. However, according to Article 2301 of the German Civil Code, a promise of death gift is treated as a death penalty. Therefore, the niece who received the gift also holds a secondary position compared to the estate creditors, just like those nieces who received the gift through a will. This legal value judgment must be applied to the niece who has not yet obtained any rights due to the altruistic contract of donation. The correctness of treating the donee and the testator in altruistic contracts in the same way can also be further proven through the historical development of altruistic contracts and the fact that opposite judgments may lead people to try to circumvent the law. The testator cannot prioritize the protection of the testator over the priority of the estate creditors through typical testamentary actions. As mentioned above, altruistic contracts do not impose any greater burden on the deceased than wills. If altruistic contracts have stronger legal effects than wills, the deceased may undermine the protection of inheritance creditors in this way, and the latter will not be able to realize their rights. In fact, this motivation plays a very important role in life insurance. People's attempts to circumvent the law generally indicate that the law treats the same conflict of interest differently. It is precisely because of this situation that the Inheritance Tax Law treats the benefits obtained through altruistic contracts due to death as benefits obtained through inheritance.

In this way, the method of interest law fills the legal loophole by transferring the priority rights of inheritance creditors in inheritance law. The opposite approach, which involves filling loopholes by constructing concepts, is clearly described in the Imperial Court's judgment. In the past judicial practice, the judgments made by the Imperial Court on the same conflict of interest are completely different from what we just made. The result is that third parties who receive gifts through altruistic contracts have priority over inheritance creditors. Why did the Imperial Court make such a judgment? It is not based on another measurement of conflicts of interest or another judgment of whether the judgment is correct in daily life. On the contrary, the Imperial Court itself is not without doubt about its verdict. But it follows another approach in its judgment, constraining itself to the characteristics of the concept of 'acquisition'. The Imperial Court held that the provision of Article 328 of the German Civil Code is decisive, which states: "It can be agreed through a contract that a payment made to a third party has the effect that the third party directly acquires the right to request payment." Therefore, in the case we are discussing, the niece who obtained property as a third party directly acquired the right from the contract. The Imperial Court also concluded that this right does not belong to the inheritance used to repay debts. As a result, the acquisition of property by the third party as a recipient means the loss of rights for the estate creditors (and the testator). The third party who received the gift, in our case, is the niece who received the gift due to the contract, and her rights must be given priority consideration. What the Imperial Court did not discuss in its judgment was whether the judge, based on their own imagination, believed that the concept of "direct" in Article 328 could be applied to this case, or whether this concept was a summary of another legal norm. Once this question is raised, the history of the formation of Article 328, the wording of the clause, and its relationship with other clauses will all give a positive answer. The word 'direct' in Article 328 only indicates that the acceptance or other forms of cooperation by a third party are unnecessary. What is considered here is only the interest relationship between the third party who received the gift and the contracting party, and there is no mention of the relationship between the third party who received the gift and the contracting party's estate creditors. 'Direct' means' without the cooperation of others'. But it is clear that the necessity of cooperation from others does not provide any substantive reason for prioritizing the interests of the third party over those of the testator. Because the testator also does not need the cooperation of others to receive the inheritance. Therefore, what the Imperial Court did was to summarize the strictly defined content in the legal order into a conceptual formula, and derive a completely new legal norm from this formula. This is a typical formula application and a method of conceptual substitution, which L ü merlin referred to as a sin against the Holy Spirit. What's even more serious is that it involves not individual erroneous judgments, but the practice of following each other in judicial practice. The judgments of the three levels of judgment committees are all based on the same mistake! In addition, the Imperial Court has recently. From the same formula of 'direct acquisition', another norm is derived: it places the third party who received the gift before the person who obtained the right through transfer before the life of the deceased, as long as the agreement favorable to that third party is not explicitly cancelled. Returning to our case, assuming that the deceased transferred their (bank's) debt to x as collateral before their death, but did not cancel the agreement with the bank that the funds would belong to their niece after their death, the niece's rights would take precedence over the transferee x, who would lose the security rights they had obtained and receive no compensation. The new result obtained by using the old method is more contrary to the needs and concepts of general life than the previous judgment. Of course, we should happily admit that in most cases, imperial courts are pursuing the right judgments in life rather than using formulas. However, pursuing correctness in life is ultimately a highly uncertain process. Only by fundamentally examining the state of interests can we truly shake off the influence of conceptual jurisprudence.

 

4. The Structure of Law

 

The third major area where the fundamental opposition between new and old legal studies is of great significance is the structure of legal studies. Like medicine, law is a practical science. What it needs to do is prepare for the judge to make a judgment on the case. To achieve this goal, the first step is to propose norms that can solve various conflicts through suggestions, that is, through "Norm Acquisition" (Normgwinnung), and the second step is to classify and organize normative materials for easy overview. The change in fundamental legal concepts has also altered the relationship between these two tasks.

For old theories, there is no reason to completely separate these two tasks. The main task of law is considered to be to precisely determine academic concepts. These concepts serve to make the law easy to understand, but at the same time provide explanatory reasons for norms and provide a solid foundation for the filling of norms. In other words, academic concepts serve both to interpret existing legal norms and to acquire new ones. The purpose of law is considered to be to accurately determine concepts and integrate them into a unified inference system, namely a conceptual pyramid. Due to the influence of this viewpoint, there is a significant amount of research on concepts in German law, which is particularly noteworthy and unusual for legal professionals in other countries. Defining concepts is considered a cognitive problem, which is the questioning of objective facts. Therefore, there can only be one correct concept. The discussion about various definitions, or as someone has said, about the "legal essence" of legal things, is therefore very heated. The concepts of subjective rights and legal entities have been repeatedly studied. There are numerous special issues on the legal essence of land burden, and discussions on whether the debt relationship in indicative securities and bearer securities belongs to a contract or a unilateral promise, or an intermediate form, are even more numerous. The most famous controversial issue in the field of legal studies in the old era was precisely the debate about conceptual construction. There was a kind of 'concept worship' at that time. But all of these studies are ultimately aimed at pursuing practical purposes, as a correct definition may enable all legal issues to be resolved. From the concept of land burden, all norms can be derived, including norms applicable to issues that cannot be adjudicated by existing laws.

 

 

 

Compared to the study of these concepts, the research on life relationships and needs is not as important. Life is considered to be only a place where legal concepts apply rather than their source. Comparing with foreign laws is meaningless for current laws. The views on 'how the law should be' (de lega ferenda) are even more outside the scope of jurisprudence. If we examine the culmination of common law classics, Wende Scheit's textbook, we will find a concept system that has been finely crafted. But what surprised us today is that Wende Shait had so little exploration of real life and its needs! The core of his textbook is the conceptual system, not life and its order.

I believe that new research methods should distinguish the dual tasks of law, namely obtaining norms and organizing norms. The acquisition of norms is based on research on life and its needs. These studies must occupy an important position today. People refer to it as interest research, legal sociology, and legal fact research. The new method questions about life and the order that meets the requirements of life. Various legal orders should be interpreted based on living needs and interests, and supplemented according to the requirements of interests. The formation of commands should start from concrete and real-life concepts, ultimately in order to continue shaping concrete life through judgments. Textbooks written using this new method bear a distinct imprint from Wende Scheit's textbooks. Their research object is not the system of legal concepts or the exploration of practical applications of concepts, but rather life itself and its needs and problems. As for legal orders and the value judgments of the legal community contained within them, they are only means used to solve these problems. To achieve the arduous goal of legal continuity, comparative law research and exploration of how law should be approached have become important auxiliary tools.

Of course, the new method also requires overview and order. The concept of academic order is an essential tool for legal scholars, and representatives of interest law have not ignored the processing of the concept. Organizing these concepts into a legal system is also important for overview and explanation. But the formation of these concepts and systems must be determined by the purpose of overview and explanation itself. The issue involved here is expression rather than cognition, a summary of acquired knowledge rather than causal research. Therefore, normative organization is the second task of law, which comes after the acquisition of norms in terms of time. Academic research must first establish norms and supplement them as necessary before summarizing. Organizing concepts into a system should be done at the end of the research rather than the beginning. Concepts such as "subjective rights" and "legal acts" are not fundamental concepts that can be used to explain and supplement legal norms, but rather labels we attach to academic drawers for ease of use. And what we put in the academic drawer are the existing and supplementary norms. This viewpoint has given another characteristic to the old controversial issues regarding conceptual construction. To a large extent, there is a possibility that various definitions may be correct. This also means that considerable conceptual construction is possible. I have already discussed this in depth in my book on concept formation. In many cases, believing that there is only one correct definition has been proven to be incorrect. Many famous debates seem unnecessary as a result. I think some of these debates have already been mentioned in my Introduction, for example, Chapter 105 of Introduction to Debt Law discusses the debate over directive securities and bearer securities, and Chapter 109 of Introduction to Property Law discusses the construction of land burdens and pledges. The same applies to other controversies, such as the concept of subjective rights and legal acts. According to the new method, the legal system has also acquired another characteristic. That is to say, the inductive system has replaced the deductive system.

The new method naturally requires academic research, just like the old method. If someone believes that the law of interests excludes the necessity of academic research, it is a big mistake! On the contrary, the new methods have broadened the scope of academia compared to before. Studying social life and the values to be pursued is almost an endless task. Law still exists, but its structure has changed. The debates about conceptual construction, the debates around correct definitions, and the worship of concepts have lost their meaning, replaced by research and evaluation of life. The changes in the methods I described to you may have been implemented on some basic issues, but not in all aspects. Especially those views on the formation of academic structures, concepts, and systems have not received as much recognition as other theories for a long time. These views are also rejected by scholars who hold different fundamental beliefs. Prominent figures in the field of private law, such as Heinrich Oertmann, recently raised strong doubts about the attitude of interest law towards concepts and systems in his book "Concepts and Interests". In this regard, I would like to refer to my rebuttal in my book on concept formation. Now I just want to discuss a question that is of special significance to all students, that is, whether our method is applicable to legal teaching.

Ertmann believes that interpreting legal norms from the perspective of benefit effects is too difficult for beginners. Even today, the conceptual system and the derivation of legal norms from general concepts should remain the foundation of the legal classroom as before. The analysis of the situation of interests can only occur in judicial practice at most. I think Ertmann's view is not correct and will have serious consequences. I agree with the opposite viewpoint.

Understanding the relationship between legal norms and daily needs is not particularly difficult, on the contrary, it is quite easy. Of course, there may be some issues with certain specific regulations, but these are relatively few exceptions. Overall, our laws are not like the mysterious prophecies of ancient female prophets and incantations, but rather human decisions. The public can see how these decisions are made, and the various interests involved in the decision-making process are also clear. The law originates from the needs of life, which is natural for every layman, and even beginners who enter university classrooms have this understanding. The same principle applies to the interpretation of existing norms based on daily needs and their supplementation when necessary. This principle also involves a very simple basic idea that is constantly applied in daily life. Is it really that difficult for beginners to understand this kind of thinking? It is completely different from the old conceptual legal theory and its corresponding explanation, which explains legal norms through concepts. The old theory is actually an art theory that is difficult to learn and therefore difficult to understand because it lacks internal reasoning. It is precisely this artistic theory that makes our supposed lively academic pursuits seem dull and disconnected from life for many beginners. The shortcomings of the old methods in teaching can be proven through many examples. Pranitz published a compilation of autobiographies of famous legal figures, which repeatedly mentioned that the author was intimidated by a large amount of discussions on concepts and debates on construction during his first semester, until a certain teacher aroused their interest in learning by exploring the life effects of law. The old methods still scare off some people who later achieved outstanding success, namely those students who were particularly talented in the field of law. Even today, people can see the difference in teaching effectiveness between the old and new methods. My students have repeatedly assured me that they only gained the pleasure of learning after being exposed to interest law. The same situation also happened to the readers of my Introduction. I would suggest that every student try using this method if they have not yet done so.

In terms of the structure of law, the influence of old methods is still clearly visible. To a large extent, there is still liberation work to be done in this regard. This also applies to the correct application of conflict theory in the results. I am fully aware that this new research method urgently needs further development. Old problems have just been solved, and new problems will arise. Life and academia are never-ending. Scholars are like actors, their influence is limited to a very short period of time. Scholars of my age are gradually fading out of the academic stage and taking on the role of spectators. But the outlook is still optimistic. A large number of younger scholars are devoted to methodological research and have achieved remarkable results. They are promoting legal research and exploring new issues. Therefore, I am not worried about the future of our methodology. In judicial practice, the correct views on the tasks of judges are increasingly spreading, although there are still some obstacles. What is particularly pleasing is a paper published by Wachinger, an advisor to the Imperial Court, in the German Judges' Newspaper. The basic principles of interest law advocated by him in this article are exactly what I just talked about to you.

 

5. Conclusion

 

Dear classmates, respected listeners! Our discussion is coming to an end. The changes in academic methods that I have experienced and described to you are of great significance. Today, as an academic institution, only the method that Yelin referred to as low-level jurisprudence in a contemptuous manner during his time is recognized. However, the advanced legal studies highly praised by Yelin are just a mistake for us.

Based on my long-term life experience, this fundamental change signifies a tremendous progress. My deceased friend Max L ü merlin has undergone many legal changes, including the implementation of the German Civil Code. But in his life memoirs, he believed that among all these changes, only the change in methods was the greatest progress.

Among the many advantages of the new method, the most important is its life value. I believe that the method of interest law enables judges to make judgments that are more in line with the needs of life and the sense of right and wrong of our nation than any other method they may obtain. The service to the national community that we are all committed to will be most effectively implemented in this way. There are two other advantages connected to this. Firstly, judges can enjoy a higher level of professional satisfaction. They will no longer see themselves as machines, but as assistants to legislators, shouldering higher responsibilities while also enjoying the pride brought by solving difficult problems; Secondly, the new method can also improve the reputation of the judiciary. Our court rulings have been repeatedly criticized for formalism and detachment from life. Of course, a large part of these accusations are based on the pursuit of specific goals, which in today's eyes are actually unreasonable. But it cannot be denied that the methods of old conceptual jurisprudence should also be criticized for formalism and detachment from life. In my opinion, this is a crime committed by our predecessors, and it is we who are condemned for it. If we recognize these crimes and can avoid them and their impact, we will make a contribution to restoring the partially lost reputation of our profession.