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Wolff, L-C --- "Structured Problem Solving: German Methodology from a Comparative Perspective" [2004] LegEdDig 46; (2004) 13(1) Legal Education Digest 19

Structured Problem Solving: German Methodology from a Comparative Perspective

L-C Wolff

[2004] LegEdDig 46; (2004) 13(1) Legal Education Digest 19

[2003] LegEdRev 2; 14 Legal Educ Rev 1, 2003–4, pp 19–51

German legal education and practice in the area of private law is dominated by a specific problem solving methodology. This article introduces the German problem solving model and discusses its significance. It further tries to examine whether other jurisdictions have developed similar methodological tools. In particular, the difference between civil law and common law seems to suggest that different methodological approaches must be taken in related jurisdictions so far as the handling of private law problems is concerned.

Legal education in common law systems normally refers to ‘problem solving’ when it comes to ask students to analyse disputes, that is to decide how a specific dispute should be resolved on the basis of the applicable law. The methodological devices, which are of relevance in this context, are of direct practical importance for any type of legal work in the area of private law. It is, therefore, the ultimate goal of this article to identify and explain these devices and thus facilitate their application in practice.

Continental European law, especially German law, has developed in a very different way from common law. Consequently, it has been argued that it comes as no surprise that the techniques of discovering and applying the law, indeed the typical methods of legal thought as a whole, have developed very differently. According to this methodological approach, private law problems in Germany are to be solved on a step-by-step basis as follows: Step 1: Analysis of the facts of a problem in order to determine and identify claim relationships between different parties; Step 2: Identification of a legal rule as the hypothetical basis of a specific claim; Step 3: Identification of the preconditions for the application of such a legal rule and examination whether these preconditions have been fulfilled, that is that the claim has been established; Step 4: Verification that the original claim is still with the claimant; Step 5: Examination of the enforceability of the claim.

In order to be able to identify the legal questions that are to be answered as an initial step, the facts of a given problem/dispute must be analysed. The next step in the legal analysis of a problem is the identification of a hypothetical legal basis for a specific claim of each party against another party. A claim only exists if it is acknowledged by the law, that is, if it can be based on a legal rule. The second aspect that needs to be considered for the identification of a legal rule as the basis of a claim comes into play where the claimant requires a specific legal consequence.

Step 2 aims at the identification of the basis of a claim hypothetically. Whether or not such a basis can in fact support a claim in a given situation is subject to the fulfillment of the preconditions for the application of the related legal rule, which are, in the case of statutory law, normally set forth by the related stipulation itself in theoretical terms. For the purpose of examining whether or not the preconditions for the application of a certain rule to serve as the basis of a claim have been fulfilled, again a two-step examination is necessary.

If the examination in Step 3 has led to the result that the claim has been established, then further legal analysis is necessary. This is because the fact that the claim has been established does not necessarily mean that the claimant is still holding this claim. Even if — as a result of the examination in Steps 2 to 4 — the claimant still holds the original claim, it must finally be analysed if the claim is enforceable. A claim is only enforceable if it is not permanently or temporarily blocked by defences. The unenforceability of a claim would not affect its existence as such, but would block its realisation for reasons set forth by substantive law.

The legal language should always correspond with the contents discussed. As suggested by the above step-by-step method, the legal analysis of a problem can never start out with the final result. On the contrary, the final result must be developed step-by-step. German legal education emphasises that the language used by law students should reflect such step-by-step verification of an initial hypothesis by using the conditional form. Such language is supposed to correctly reflect the real sequence of examination in order to provide the reader with an understandable, comprehensive and thus convincing answer to the related legal questions.

Despite its enormous importance in Germany, few legal writers have worked on the theoretical background of the step-by-step method. Therefore, it is worthwhile discussing the theoretical justification of the step-by-step method and how it fits into the private law system. It has been observed that the step-by-step method anticipates legal proceedings where the claimant presents his claim and the defendant tries to prove that such a claim does not exist, or at least is not enforceable.

One might further assume that any superiority of the step-by-step method is based on the fact that it allows for appropriate conclusions. However, since misleading methodology would be useless, the outcome of a problem solving process would thus also not serve as a criterion to evaluate different problem solving methodology. Problem solving methodology only provides the framework which enables the most appropriate outcome to be reached, but should not affect it and must therefore be regarded as outcome-neutral.

The conflict of different interests, therefore, is the presupposition for the existence of private law. Consequently, the contradictory nature of the claim approach is justified by the nature and function of private law itself. Of course, there is broad common law literature on legal reasoning. If one regards legal reasoning as the process through which the correct solution to a legal problem can be found, then the step-by-step method as it was introduced above must be regarded as addressing one aspect of legal reasoning. However, the discussion regarding legal reasoning generally focuses on the approach to be taken in order to solve specific legal problems, rather than providing a pattern for the efficient legal analysis of a set of facts and the sequential analysis of related problems.

With regard to the question as to whether the step-by-step method can also be applied in common law systems, first of all a distinction must be drawn within the common law between statutory law and case law. As far as statutory law is concerned, there are in principle no obstacles for the application of the step-by-step method. If the legal rules which support a specific claim are to be derived from case law, then obviously the legal technique for the identification of those rules and the related preconditions are different from those which would be applied under civil law or with respect to statutory law within common law jurisdictions.

One may further ask if the historical development of the common law, in particular the significance of the principles of equity, requires a different approach towards the application of the step-by-step method in the common law context. While statutory rules in civil law jurisdictions have general clauses to correct clearly inappropriate results, these provisions can hardly rival the discretionary power of a judge applying the principles of equity.

Solving private law problems means analysing and deciding claim relationships between different parties. An optimum problem solving method should provide for the most efficient work order in this context. As was demonstrated in this article, however, the above step-by-step method is neither a product of any specific country or culture nor is its application limited to any single jurisdiction. It rather gives expression to the logical sequence a lawyer would always follow when analysing claim relationships in the most efficient way. The step-by-step method is therefore a logical result of efficient problem solving and applicable and inherent in any private law system. Acknowledging the significance of the step-by-step method facilitates the utilisation of this methodological tool, which guarantees efficient problem solving.


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