HERMANN DAUBENSPECK’S RELATIONAL TECHNOLOGY AND THE BASIC FORMS OF LAW ENFORCEMENT

Abstract

The article under studies deals with the new educational interdisciplinary method of approaching a legal proceeding (relational technology), which was first mentioned in the manual by Hermann Daubenspeck (1831–1915) “Referat, Votum und Urtheil: eine Anleitung für praktische Juristen im Vorbereitungsdienst”. The first edition of the latter manual was published in Berlin, in 1884 by the publishing house Vahlen. It had 154 pages, whereas the last edition (along with changes and supplements, as well as continued by other editors) was released in 2013 and contained 514 pages. The objective of the article is to describe and critically analyze relational technology within the two major (according to Robert Alexy) forms of law enforcement – subsumption and balancing. The paper under discussion considers three issues: firstly, the prehistory and history of publishing H. Daubenspeck’s work, its structure and certain peculiarities. Particular emphasis is laid on the fact that relational technology has been in the judiciary since about 1500, and in the last 14 decades, it has been relevant in the Kaiser’s Germany, the Weimar Republic, during the National Socialist and postwar periods, as well as preserves its significance today, within the two-level legal education of Germany. Secondly, the article points out the philological and subsumption nature of H. Daubenspeck’s relational technology. To be more specific, it states that expert and judicial styles of considering the legal proceeding (as the methodological and substantive aspects of relational technology) are the possible ways of legal and logical analysis of the application of norms that are properly expressed in current legislation. Thirdly, the paper dwells on a deliberative potential of relational technology. It covers the problems that cannot be solved on the basis of subsumption, but by means of balancing the open legal norms. In conclusion, the article under studies claims that relational technology may be reciprocated in the legal educational practice of Ukraine (with appropriate adaptation and development, which are directly related to the main forms of law enforcement). Its best developed aspects rely on the logical structure of subsumption, whereby the fact is brought under the norm. On the other hand, this technology is not capable of answering numerous questions related to such a form of law enforcement as balancing. The development of the latter aspect can give new life to relational technology in both Germany and Ukraine.