WLO

The German Legal System

 Wasn’t “Germany” as such in Middle Ages – Bavaria, Prussia etc. Individual regions
strong. Federalism with strong regional rulers and a weak central imperial power.
 Local rulers had a privilegium de non evocando – privilege that imperial could not on
its own accord claim jurisdiction over a case before the courts of the regional ruler.
 Still; have fairly strong federalism in Germany compared to other countries.

 Reception of the Roman Law – Germanic customary law didn’t suit the needs of
increasing trade. Increase in universities – RL taught in Italian universities and then in
German ones.
 Germanic legal system was not really a “legal system”.

 Development of usu modernus pandectarum 16th-18th century – tried to modify RL to

meet the needs of society.

 Age of Enlightenment – theoretical search for a logically coherent system from basic
premises on the other hand. Trying to create a code.

 18th/early 19th century: Codes of Enlightenment. Usually issued by paternalistic

benevolent rulers. 1756, in Bavaria – written in understandable language. General
Prussian Land Law 1794 – Frederik II, wanted his subjects to know what their rights
were. 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 to
interpret this code – he had covered everything.

 Early/mid 19th 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 form
or another of the French Civil Code. Eg, the Rhine region.
o Other regions had adopted a system based on the Roman Law and the usus
modernus pandectarum.
A mess – no one legal system in Germany.
1814 – in opposition to Napoleon, “German” patriotism developed. 19th C
development 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.
Didn’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. What
they really wanted was to go back to a pure Roman law, untainted by usus modernus
pandectarum developments. Said it was not the time for codification, in an article
which he published in response to Thibault. Time not right, or we don;t want a
German Civil Code?
1848 – examples of unified German law. German Law on Negotiable Instruments.
1861 – German Commercial Law – for free trade you need to have unified
commercial 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 Commission
appointed in 1874.
First Draft presented in 1887. Problem, though, was that it was very much based on
the RL system. Criticised for being too “Romanistic” and lacks “a drop of social oil”
– taking too little account of social needs. Industrialisation, workers who were
exploited (according to Marx, but often were), so this code was too formalistic.
Conflicts between workers, attempts to establish trade unions. What the new system
did was look back to RL & past century – not going to help present problems.
Second Commission appointed. Made modifications, but didn’t really change the
structure or address the basic problems.
1896 – German Parliament adopted the second draft. 1900 – German Civil Code came
into effect. Criticisms – similar to those of first draft. Backward looking to 19th
century – an agricultural society. Needs of 20th century were those of an industrial
society. Too paternalistic.
Changes in 20th century – tried to address parts of questions lacking in first drafts.
Introduced protection of the “weaker 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 Acts
of Parliament. Declaration which declares a law void from its beginning. Unthinkable
here – Parliamentary Supremacy. In Germany – they had seen what Parliament could
do. Legislation which took away rights (from Jews, homosexuals, for example). Must
make sure that it couldn’t happen again. Fundamental rights protected against both the
executive and against Parliament.

German Legal Sources Today:

The approach to the code is different from the interpretation we see in the UK. We
look at the wording, if it doesn’t quite fit, we don’t apply it. In Germany, you of course
have to start with the wording of the code. One way to interpret is to go to legislative
history. UK – Pepper v Hart gives a limited access to Hansard. No such restriction in
Germany. Legislative materials are not really comparable to Hansard (debates in
Parliament). You go to the explanatory memoranda – extensive in Germany, deal with
 each individual provision in detail. Eg, First Commission – submitted their draft, but also
their motives, their reasoning behind the rules.
Purposive interpretation – what do you look at? The purpose of the law. Sometimes it
says 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 the
wording is.
Literal interpretation as the starting point, historical/subjective interpretation, systematic
interpretation (statutory context).
What are the adv/dangers?
Lack of certainty. English statute – the courts will apply it. However, makes
circumvention of the law easier. Of supreme importance in the civil law to extend
things...if you want to apply a code which is supposed to be comprehensive to all the
different contingencies in life, then you need to have a liberal approach to interpretation.
 HRA 1998 – as far as possible legislation to be interpreted in line with HRA.

Case Law

 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.
 However, judges on the lower courts will de facto not usually depart from a
decision by a higher court (esp not from a decision by the Federal Court of Justice
or the Higher Regional Court in its own jurisdiction). Why not?
o Fear of being “reversed” in appeal – often taken to be close to a personal
affront. 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. Parties
adapt to judgments; they draft their contracts on the basis that case law
will not change abruptly. These are the same consideration which you can
find in the House of Lord’s Practice Statement 1966.
 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, it
doesn’t have any major implications, however. There is a difference in legal
terms, but in actual practice, there is not a lot of difference.
Judicial Style

 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 the
legislation is, rather than discuss different viewpoints on the law. Facts, then the
result.
  As in France, judgments in Germany have a somewhat formalistic, rigid structure;
the court gives ONE opinion; there are (with exception of the Constitutional Court
– at least - no dissenting or concurring opinions. It is not judges’ place to discuss
the law, but just to be the “mouthpiece”. Flexibility in UK in discussing
judgments. But fixed structure in Germany. Uncontroversial facts, then view of
plaintiff given (controversial), then view of defendant, then to the admissibility of
the action, then to the reasoning on the substance.
 Even if it is a collegiate court with, for example 3 or 5 judges, you will only get
one opinion. Judges will have to agree on one, possibly compromised solution.
Where do we see this outside Germany? European Court of Justice – you do not
have dissenting opinions. Adv/disadv? Supposed to give legitimacy, stability, to
the law.
 However, judges in Germany discuss precedents, different possibilities of
interpretation, and views in the academic literature; the judgments are much
longer in France.
The German Constitution

 Post-WWII, drafters of the German Constitution tried to ensure the horrors of the
Nazi period couldn’t be repeated.
 Hence, they tried to ensure that Human Dignity and Fundamental Rights were
protected.
 Extends to the protection of the individual against the legislator – when an Act of the
German Parliament infringes the Constitution (most importantly, an individuals
fundamental rights) it is void (contract s 4 of HRA ’98; comparable to the situation in
the US).
Overview of Fundamental Concepts

 Article 1 – Human Dignity is inviolable.

 Article 2 (1) – unless an action is prohibitied by a legal provision which is
constitutional, it is allowed.
 Article 3 - Equality
 Article 4-19 – specific fundamental rights (eg, freedom of religion and belief;
freedom of speech; freedom of assembly; protection of property etc).
 Article 20 – Principles of democracy; rules of law, federalism, social welfare.
 Article 79(3) – The principles contained in Article 1 & 20 cannot even be changed
by changing the constitution.

Where a person believes that an act of the executive or a judgment is based on a

legal provision which infringes this person’s fundamental rights, the person first
has to appeal to the “regular” (administrative, private or criminal) courts.
Once the appeal process is exhausted, and the person still thinks that the final
judgment infringes his or her constitutional rights, it can bring the case to the
Federal Constitutional Court. Only if it infringes your fundamental rights.
Constitutionalisation of Private Law
This protection is the most important form of human rights. How do HRs have an impact on
private law (between private parties)? Human Rights usually directed at the state.

~Lüth Decision

Even where a judge is adjudicating between private parties, the judge has to take the
constitution into account when interpreting legal provision, especially where “general
clauses” leave the judge scope to take the constitutional interests into account.