CHAPTER ONE

INTRODUCTION

GENERAL APPROACH

Selectivity

This book has been necessarily selective in the areas of law covered and the source materials chosen in respect of those areas. The purpose of the book is to introduce the reader to German legal material over a wide area, and this does not permit comprehensive treatment of the categories involved.

As to the areas covered, some themes are developed fairly fully (although even here the material may not represent the full picture) particularly if there is a relevant case included, whilst others are only touched on, or omitted. The wide subject area and the length of some of the source material has necessitated this rather arbitrary treatment. For instance, in the chapter on criminal law only a selection of crimes is included, and in the chapter on contract, there is nothing about special types of contract like contracts of sale or for services.

I have limited these source materials to extracts from the Basic Law and the Civil and Criminal Codes (with amendments), and the judgments in cases heard by the Federal Constitutional Court and the Federal Supreme Court. There would have been a strong case for including extracts from academic writings, in view of their importance in German law, but space does not permit it, and they are in any case referred to extensively in the judgments. I have included the whole of each of the court judgments. The reason for this was that each judgment tells a story, and it is easier to understand the arguments against a complete picture. Sometimes the case will deal with several separate issues which arguably should be physically separated, so that they appear in the parts of the book where those issues are dealt with, but I have refrained from splitting any judgments, as this makes it harder to associate and therefore understand the separate sections.

The cases have been selected partly for their significance in relation to German law, partly because of the contrast they provide to English law, and partly for their political or topical interest.

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Sourcebook on German Law

Translation

The translations are of a fairly basic, inelegant nature, because I have tried to keep as close as possible to the structure of the original material. This original material should, where possible, be used rather than the translation, as no translation can do full justice to the original. To mention just two examples, the use of the subjunctive in German for reported speech ensures that it is apparent how much of a court judgment is merely presenting the arguments of the parties. There are also certain words and expressions, some of which are listed below, which cause particular difficulties when attempting to convey their meaning in English. The literal nature of the translation is intended to assist students, who may only have a smattering of German, to identify words and phrases in the original text.

Professor Markesinis in his article ‘Judge, Jurist and the Study and Use of Foreign Law’1 draws attention to the need to interpret foreign legal material and then appropriately adapt it to make its ‘immigration’ possible into a different legal system, and he gives illustrations of how this can be achieved. In many cases the English translations in this book are a starting point for such an exercise; the original texts will facilitate taking it further.

Particular words and expressions

There are some particular German words and expressions which deserve comment, as they have no simple English equivalent.

Berufung and Revision. These could both be translated as appeal, but this would overlook the fact that a Berufung is a full appeal at a lower level, but a Revision is an appeal to a higher court on the law only. I have therefore translated Revision as ‘appeal in law’.

Gesetz. See below, under Sources of German Law. Since, however, as appears from that section, on a narrow theoretical view, most German law originates from Gesetz in the wide sense, it is sometimes appropriate to translate it as the word ‘law’. I have not found it possible to be consistent here, and I accept that it may be better to opt for the conventional approach and translate Gesetz as ‘law’ in most cases.

Gesellschaft. This does not only mean ‘company’ in the sense of a limited company; a German partnership is a Gesellschaft.

Gläubiger and Schuldner. The temptation is to translate these terms as debtor and creditor respectively, but they have a wider meaning in German

1 (1993) 109 LQR 622 (Markesinis), p 624.

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Chapter One: Introduction

law: they are used for obligations to pay money; but also for other obligations as well. I have therefore translated them respectively as obligee and obligor.

Land and Länder. I have translated these words as State and States respectively, as they are not immediately comprehensible to the English reader, especially the plural Länder. However, I have also had to use the word State when referring to the functions of Government in general, whether of the Federation or of the individual States.

Recht. This can be used in the objective sense, to mean law; or it can be used subjectively, to mean a right.

Rechtsgut. This means the subject matter of a legal right, but I have usually translated it as ‘legal interest’.

Rechtsstaat. This signifies a State which is governed by the rule of law, and also implies such principles as proportionality and legal certainty. Because of the difficulty of incorporating this into the translation each time (especially when it appears in adjectival form: rechtstaatliche) I have simply rendered it as a constitutional State (or, in adjectival form, constitutional).

Rechtsprechung. This has usually been translated as ‘case law’, but the implication is not thereby intended that it is case law in the English sense. The status of the judicial decision as a possible source of law is, however, considered below.

Verbrechen and Vergehen. I have translated these respectively as ‘crimes’ and ‘offences’ since this seems to be the simplest way of conveying the difference in the seriousness; but I have also had to find an English expression to cover both. For this I have used criminal act, or criminal offence. I have used delict where the German word was Delikt, but it needs to be borne in mind that Delikt can also mean a tort.

Verkehr. This is a difficult word, as besides other meanings, it can refer to traffic, business, and the affairs of life in general. I have sometimes translated it as ‘business’ for simplicity when it may in fact carry the wider meaning.

Verkehrsicherheit. This is one of those words which, although it is not immediately apparent, has a specialised legal meaning. It refers to protection from risks in the affairs of life.

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Sourcebook on German Law

SOURCES OF GERMAN LAW

Generally

There are two accepted sources of German law: statute law (Gesetz) and customary law (Gewohnheitsrecht). The second is however now far less important than it was: it is unwritten law based on a long standing practice which has been appropriately recognised. It may be that two further sources have developed: judicial decisions and European Community law.

Gesetz has a wide meaning and a narrow one. In its narrow meaning, it would only cover statutes passed by the German Federal Parliament, ie, the Codes (which are statutory provisions relating to a large area of law, arranged in a logical manner) and other legislation. In its wide meaning, which is the one used in the previous paragraph, it includes any law enacted by a competent authority, and would also cover the Constitution and the legislation passed by the Parliaments of the States.

Hierarchy

Within Gesetz, in its wide meaning, there is a hierarchy of norms, ie, the various types of Gesetz rank differently in priority, and, in the event of an inconsistency, a type with a higher priority will prevail over a type with a lower priority. The inconsistent lower priority norm will be invalid.

The form of Gesetz which ranks highest is the Constitution (the Basic Law). Next comes Gesetz in the narrow sense (but excluding, or course, any of constitutional rank). After this, we have regulations (Rechtsverordnungen). These are norms made by the Executive (which includes the Government, its ministers and administrative authorities) under the authority of a Gesetz or (occasionally) the Basic Law. Finally, there are bye-laws (Satzungen) which are made by public institutions at a lower level than the State within the area of their competence. They may cover matters like parking and refuse disposal.

There is then the relationship between Federal law and State law. Article 31 of the Basic Law provides that Federal law prevails over State law, but for reasons explained in Chapter Two the article is rarely applied.

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Chapter One: Introduction

Judicial decisions and academic writings

The judge’s function is normally merely to interpret the law. However, rules sometimes have to be extended to cover situations not mentioned in them, gaps may need to be filled, and more detailed content given to general rules. Judicial decisions can therefore be, in practice, a source of German law although judges in later cases are not usually bound to follow such decisions as in the English system. The courts have developed concepts like collapse of the foundation of a transaction, positive breach of contract, and the established and exercised pursuit of a business, and they have given content to concepts such as good faith and good morals. The courts are also prepared in some cases to extend statutory provisions by analogy (although this cannot be done in criminal law to the disadvantage of a defendant). However, as will be observed from the cases, German courts quote from academic writings as well as from decisions in past cases. The prevailing judicial opinion and the prevailing academic doctrine may diverge. All these considerations may make for uncertainty in the application of the detail of the law.

European Union law

See Chapter Two, p 12 and onwards.

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