CHAPTER I General Introduction

Author:E. J. Cohn

1. 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. German law does not recognise the binding force of precedents. Gray's famous saying 'Law is what the Courts decide' does not apply to the Continental laws. Law is what the legislator and general custom prescribe. That does not mean that a judge in deciding a case will completely disregard any former decision. On the contrary very great attention will be given to precedents, especially to those of the Reichsgericht. A whole series of decisions of the Reichsgericht agreeing on a given point of law can nearly always be expected to be followed.

The lower courts can also be expected to pay a very high degree of attention and respect to judgments of superior courts, especially of the superior court of their own district. The principle that judgments have no binding effect is therefore of practical importance in those cases mainly in which an old precedent unsupported by more recent decisions would require the courts to decide in a manner which does not correspond to the ethical, social or economic views of more modern times. It follows that the persuasive force of German precedents is the greater, the more recent the precedent is-a remarkable difference from the law of this country.

7. There are several rules of statutory law which contain exceptions from the rule that precedents have no binding effect. The first two rules applied formerly to the Reichsgericht and have been revived in the British Zone where an Oberster Gerichtshof (Supreme Court) for the entire zone has been created at Cologne.

(a) The Supreme Court of Germany, the Reichsgericht, which is at present not operating, sat in divisions referred to as Senates. An individual Senate desiring to deviate from a view adopted in a former decision by another Senate of the Reichsgericht had to lay the matter before the so-called Great Senate of the Reichsgericht (until 1935: before all the judges of the Reichsgericht, the so-called Plenum) for decision and to abide by the view then adopted by the Great Senate. Every individual Senate was, however, free to deviate from a view adopted by itself and the Great Senate could deviate even from its own decision on a former occasion. The same rule now

applies to the Supreme Court of the British Zone, see Decree of 17th November, 1947, sect. 12 (Verordnungsblatt fiir die brit. Zone, p. 149).

(b) In the field of what is generally referred to as non-contentious jurisdiction (i.e., mainly, though not exclusively what an English lawyer would refer to as Chancery matters and matters relating to the land register, probate, guardian and ward, etc.), an Appeal Court (Oberlandesgericht) desirous of deviating from a view adopted on a former occasion by another Oberlandesgericht had to refer the matter for its decision on the disputed point to the Reichsgericht and to abide by the view adopted by the Reichsgericht. In the British Zone the Supreme Court at Cologne now takes the place of the Reichsgericht, see sect. 33 Decree of November 17, 1947 (see (a) above).

(c) In a large number of criminal matters no further appeal lies against judgments of the Oberlandesgerichte. Sect. 35 of the Decree of November 17, 1947, provides therefore that within the British Zone any Oberlandesgericht wishing to deviate from a judgment of another Oberlandesgericht (presumably within the British Zone only) after October 1, 1945, or from a judgment of the Supreme Court for the British Zone on a point of law must submit the point to the Supreme Court for the British Zone for its decision.

(d) Certain judgments of the German High Court for the Combined Economic Area, a court formed by Military Government in 1948, have the force of law, see Mil. Gov. Ord. No. 127 Art. IX.

8. Writings of jurists-no matter whether dead or alive-are not a source of law, but can be quoted in court, where they enjoy a considerable persuasive authority, especially in those cases where precedents are not available or where the interpretation of precedents is doubtful. In the case of older and isolated precedents the opinion of the majority of legal writers if directed against the precedents, will sometimes be permitted to override the precedent. In general the German lawyer is accustomed to be influenced less by individual opinions of courts or jurists, but by what is called the ' governing opinion ' (herrschende Meinung). This is formed by the majority of both decisions of courts and legal writings. Textbooks and commentaries as a rule point out what the governing opinion is, in addition to stating the author's own views.

9. The preparatory work done by parliaments, committees and other bodies engaged in the preparation of the law may, if published, be used for the purpose of ascertaining the intention of the legislator, which is an important factor in the interpretation of any law. On the other hand any intention that has not found some form of expression in the text of the law, including its preamble (if any), must be disregarded in interpreting a legal provision.

10. The best-known systematic division of German law is that into public and private law. This division is...

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