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German Law

German Law

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Published by Adam 'Fez' Ferris
Thank you Rachel Powell
Thank you Rachel Powell

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Published by: Adam 'Fez' Ferris on Apr 15, 2010
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08/16/2010

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WLO
The German Legal System
y
 
Wasn¶t ³Germany´ as such in Middle Ages ± Bavaria, Prussia etc. Individual regionsstrong. Federalism with strong regional rulers and a weak central imperial power.
y
 
Local rulers had a privilegium de non evocando ± privilege that imperial could not onits own accord claim jurisdiction over a case before the courts of the regional ruler.
y
 
Still; have fairly strong federalism in Germany compared to other countries.
y
 
eception of the
oman Law ± Germanic customary law didn¶t suit the needs of increasing trade. Increase in universities ± 
L taught in Italian universities and then inGerman ones.
y
 
Germanic legal system was not really a ³legal system´.
y
 
D
evelopment of usu modernus pandectarum 16
th
-18
th
century ± tried to modify
L tomeet the needs of society.
y
 
Age of Enlightenment ± theoretical search for a logically coherent system from basic premises on the other hand. Trying to create a code.
y
 
18
th
/early 19
th
century: Codes of Enlightenment. Usually issued by paternalistic benevolent rulers. 1756, in Bavaria ± written in understandable language. GeneralPrussian Land Law 1794 ± Frederik II, wanted his subjects to know what their rightswere. What is remarkable about it, is it¶s extremely casuistic. Approx 17,000 sections.Law was supposed to be all comprehensive. He said it was an offense to try tointerpret this code ± he had covered everything.
y
 
Early/mid 19
th
Century ± different laws prevailing in several regions in Germany.
o
 
Prussia, Austria & Bavaria had their respective codes.
o
 
Some regions, especially those close to French border had adopted some formor another of the French Civil Code. Eg, the
hine region.
o
 
Other regions had adopted a system based on the
oman Law and the ususmodernus pandectarum.
A mess ± no one legal system in Germany.1814 ± in opposition to Napoleon, ³German´ patriotism developed. 19
th
Cdevelopment of the nation state ± nationalism, calls for a German nation.
 
 
Thibault¶s call for a German Civil Code similar to France ± would unify Germany.Free trade throughout the country.
D
idn¶t go down well with the regional rulers ± Germany as a unity would reduce their regional power.General reaction: Savigny (v influential legal scholar) ± his idea was the foundation of a historical school of law. Ostensively looked at what society really needed. Whatthey really wanted was to go back to a pure
oman law, untainted by usus modernus pandectarum developments. Said it was not the time for codification, in an articlewhich he published in response to Thibault. Time not right, or we don;t want aGerman Civil Code?1848 ± examples of unified German law. German Law on Negotiable Instruments.1861 ± German Commercial Law ± for free trade you need to have unifiedcommercial law. Preliminary works on a General Civil Code.1871 ± German unification. First time a strong central power had taken hold of Germany1873 German Parliament got the competence to legislate. First Commissionappointed in 1874.First
D
raft presented in 1887. Problem, though, was that it was very much based onthe
L system. Criticised for being too ³
omanistic´ and lacks ³a drop of social oil´ ± taking too little account of social needs. Industrialisation, workers who wereexploited (according to Marx, but often were), so this code was too formalistic.Conflicts between workers, attempts to establish trade unions. What the new systemdid was look back to
L & past century ± not going to help present problems.Second Commission appointed. Made modifications, but didn¶t really change thestructure or address the basic problems.1896 ± German Parliament adopted the second draft. 1900 ± German Civil Code cameinto effect. Criticisms ± similar to those of first draft. Backward looking to 19
th
 century ± an agricultural society. Needs of 20
th
century were those of an industrialsociety. Too paternalistic.Changes in 20
th
century ± tried to address parts of questions lacking in first drafts.Introduced protection of the ³weaker party´ ± presumed weaker party ± eg, landlord-tenant law. Couldn¶t be as easily evicted.1960s/70s ± consumer protection legislation.After WW2 Germany wanted to prevent such horrors again. Introduced a constitution ± not only a formal constitution but also gives courts the power to declare void Actsof Parliament.
D
eclaration which declares a law void from its beginning. Unthinkablehere ± Parliamentary Supremacy. In Germany ± they had seen what Parliament coulddo. Legislation which took away rights (from Jews, homosexuals, for example). Mustmake sure that it couldn¶t happen again. Fundamental rights protected against both theexecutive and against Parliament.
German Legal Sources Today:
The approach to the code is different from the interpretation we see in the UK. Welook at the wording, if it doesn¶t quite fit, we don¶t apply it. In Germany, you of coursehave to start with the wording of the code. One way to interpret is to go to legislativehistory. UK ± Pepper v Hart gives a limited access to Hansard. No such restriction inGermany. Legislative materials are not really comparable to Hansard (debates inParliament). You go to the explanatory memoranda ± extensive in Germany, deal with
 
each individual provision in detail. Eg, First Commission ± submitted their draft, but alsotheir motives, their reasoning behind the rules.Purposive interpretation ± what do you look at? The purpose of the law. Sometimes itsays in the recital (introduction?).In which section of the General Code is this law contained?Interpretation is fairly liberal ± doesn¶t necessarily pay very close attention to what thewording is.Literal interpretation as the starting point, historical/subjective interpretation, systematicinterpretation (statutory context).
Wh
at are t
h
e adv/dangers?
 Lack of certainty
. English statute ± the courts will apply it. However, makescircumvention of the law easier. Of supreme importance in the civil law to extendthings...if you want to apply a code which is supposed to be comprehensive to all thedifferent contingencies in life, then you need to have a liberal approach to interpretation.
 
H
A 1998 ± as far as possible legislation to be interpreted in line with H
A.
Case Law
y
 
Case law of higher courts is not legally (de iure) binding for lower courts.EXCEPTION: where the constitutional court has declared legislation to be void,this declaration has the force of law.
y
 
However, judges on the lower courts will de facto not usually depart from adecision by a higher court (esp not from a decision by the Federal Court of Justiceor the Higher 
egional Court in its own jurisdiction). Why not?
o
 
Fear of being ³reversed´ in appeal ± often taken to be close to a personalaffront. Judges are independent, so content of judgments don¶t affect their career, however constant reversal of judgements can¶t be good.
o
 
A consistent body of case law is recognised to be a value in itself. Partiesadapt to judgments; they draft their contracts on the basis that case lawwill not change abruptly. These are the same consideration which you canfind in the House of Lord¶s Practice Statement 1966.
y
 
In Germany, nothing illegal about a judge applying his/her own form of the law ±  perfectly legitimate. In UK, a judge could not do that. Would have to register that,in their own view, it is wrong, but bound by precedent. If a judge rebels here, itdoesn¶t have any major implications, however. There is a difference in legalterms, but in actual practice, there is not a lot of difference.
J
udicial Style
y
 
In France, Private Law judgments are very terse: judge is the only mouthpiece of the legislation, their function is merely to state what the solution under thelegislation is, rather than discuss different viewpoints on the law. Facts, then theresult.

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