Verfahrensrechtliche Aspekte der richterlichen Rechtsfortbildung in Deutschland

Procedural Aspects Regarding the Development of Judge-Made Law in GermanyThe paper presents the procedural framework for the development of judge-made law in Germany. In the absence of specific instruments such as amicus curiae briefs, advocate general's opinions or interpretative guidelines issued by the Supreme Court, the article examines how German procedural rules may nevertheless support the process of judicial lawmaking. In particular, three different elements are considered: (i) ensuring a sufficient factual basis for courts to further develop the law; (ii) limitations on the parties' control of the dispute so as to facilitate the development of judge-made rules; and (iii) the potential participation of third parties in the proceedings.