CHAPTER I General Introduction
Manual of German Law › Part I General Introduction and Civil Law (2008)
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SECTION I - SOME BASIC CONCEPTIONS
SECTION II - THE SYSTEM OF GERMAN LAW SECTION III - A GLIMPSE AT THE POLITICAL ORGAN...See the full content of this document
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CHAPTER I General Introduction
SECTION I - SOME BASIC CONCEPTIONS1. To the English lawyer, German law presents a picture of bewildering dissimilarity from English law. This dissimilarity is not due to one or a few reasons. It is the result of a great variety of causes. Codification is only one of them, though perhaps the most obvious one. Ideological differences are not always responsible. Historical accidents have played their part. On the other hand, some often alleged differences do not in fact exist. That in German criminal procedure the accused is presumed guilty, belongs to the realm of myth. 2. English lawyers should remember that most of the differences between English and German law are not due to peculiarities of the German legal system or the German mind. German law is a member of a family of laws, which one might well call the European Continental laws, and which may be subdivided into various branches. Notwithstanding many and striking differences between the branches and members of this family the basic structure of all these laws is very similar. Apart from the difference of language a German lawyer, after a little instruction, has little difficulty in understanding French or Italian legal problems and in perusing Spanish or Swedish law books. Just as French law has powerfully influenced the law of many other countries, as, e.g., Belgium, Holland, Italy, etc., German law has been the model for a number of other legal systems such as those of Switzerland, Austria, Czechoslovakia, Poland and others. The common basis of all European Continental laws was laid during the Middle Ages. The differences between the various branches, such as the branch under French and that under German influence developed during the period of the formation of the European national states. 3. German law-like the other Continental laws-knows no parallel to the two distinctions which are of paramount importance in English law, i.e., the distinctions between common law and equity and between case law and statutory law. German law has always been one unified system of law in which there was and is neither need nor room for a separate system of equity. This is due to the fact that the German legal system never acquired that rigidity which in English law rendered necessary the formation of a special system of equity. Similarly German law has never recognised the absolute leadership of the courts in the development of the law, which in English law led to the development of the case law system. The influence of the courts on the development of the law has of course always been profound. But at no time have the courts had a monopoly in the interpretation of the law. The influence of legal theory and private legal research upon legal practice have therefore always remained considerable. 4. In German law two sources of law only are recognised: statute (Gesetz) and custom (Gewohnheitsrecht). The statute need not be a code. There are codifications in most of the more important fields of law, with the exception of administrative law. But the codes are supplemented by a host of other statutes covering a narrower field of law or even an individual legal problem. Gesetz (in the broader sense in which the term is used here) is any legal rule that has been enacted and promulgated by those state authorities which are constitutionally entitled to enact and promulgate laws. In normal times therefore all laws must derive their validity from the constitution which is the ultimate basis of all law. The term ' Gesetz' is also used in a narrower sense, on which see paragraph 47 below. 5. Custom (Gewohnheitsrecht) is defined as the regular and general public practice of law based on the opinion that a binding rule is being put into effect (so-called 'opinio necessitatis '), provided that this opinion is not exclusively due to an error relating to the meaning of a written law. It will be observed that this definition does not include any requirement as to the time during which the custom must have been observed. It is in fact recognised that a revolution can create law by 'custom' in a few days, provided it has actually led to a regular and general practice and moulded public opinion so much that it has become an ' opinio necessitatis.' Custom can abrogate written law. There are, however, hardly any reported cases where that has actually been done. Usages of trade or business (Verkehrssitte, Handelsbrauch) are not custom. They are, nevertheless, very frequently referred to in statutory provisions for the purpose of supplementing statutory rules or facilitating the interpretation of contracts. They are not an independent source of law, but derive their far-reaching effect from those statutory references. 6. Statute and custom are the only two sources of law. Decisions of the courts are binding only upon the parties. Germ...
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