利益法学から評価法学への展開についての覚書

抄録

In the realm of the juristic methodology, the jurisprudence of interest (Interessenjurisprudenz) is newly revalued and from this point of view, there is general tendency to reexamine the development towards the jurisprudence of evaluation (Wertungsjurisprudenz). In this article I focus on three persons, whose methodologies are important with regard to the topic “from the jurisprudence of interest to the jurisprudence of evaluation”. First I consider the opinion of Harry Westermann, who is regarded as a pioneer of the jurisprudence of evaluation. I give an overview on the main theses of his methodology and opinion about the activity of judge. Then by the means of analyzing his opinion about the chattel mortgage (Sicherungsubereignung) and reservation of title (Eigentumsvorbehalt), I want to check through his concrete Discussion. Secondly I look at the methodology of Rudolf Miiller-Erzbach, one of the very few surviving theoreticians of the jurisprudence of interest after the World War II. After World War II he considered the causal thinking of law (Kausales Rechtsdenken) by criticizing the former jurisprudence of interest. With his understanding that the development of law is bound to the power, he tried to grasp rationally the momentum of the evaluation. Thirdly, I give an overview the methodology of Heinrich Hubmann. At first I deal with his thought about “natural law and sense of justice (Rechtsgeflihl) ”, which is developed under a strong influence of the renaissance of natural law. Next I take a look at his “theory of weighing of interests (Theorie der InteressenabwSgung) ” and his criticism of the jurisprudence of interest. Taking opinions of these three persons into consideration, I want to draw conclusions for the development “from the jurisprudence of interest to the jurisprudence of evaluation”.