4 ms·

I am not German, but as part of my degree I went over to Germany and did a course on the philosophy of law. From the perspective of Anglo-American common law, I

by troad 3y ago

I am not German, but as part of my degree I went over to Germany and did a course on the philosophy of law. From the perspective of Anglo-American common law, I can confirm it is indeed quite strange. German written law tries to be all-encompassing, which tends to make it fairly contorted and hopelessly vague. German judges are often surprisingly young and inexperienced, since they get on the judge career track straight out of university (rather than being appointed after decades in legal practice). German courts at all levels seem to do an awful lot of pontificating, rather than striving to apply the law to the facts. Despite this, court decisions tend to be brief, and do not generally explain the judges' reasoning in any great detail. They are also not binding precedent, so the actual state of the law at any given time can be harder to discern. The net effect was of a system that felt somewhat arbitrary, with broad-ranging but unexplained decisions made by relatively inexperienced people, often well outside any area with which they could reasonably be expected to be familiar. In general, there was much less legal certainty than I would be comfortable with. I should note that these are fairly fine-grained critiques; it's important to keep them in context. There are far more capricious legal systems out there than this.

usrusr 3y ago
German, but not much knowledge of all things judicial: I believe that the German system might suffer a little from being torn between the Roman law tradition (via Code Napoleon) where the code is undisputed authority on one side, and common law tradition on the other, where consistency with precedence is considered very important.
- amadeuspagel 3y ago
  There's no common law tradition in germany. Courts are not required to follow precedents.[1] [1]: https://en.wikipedia.org/wiki/Law_of_Germany#Comparative_law https://en.wikipedia.org/wiki/Law_of_Germany#Comparative_law
  - mschuster91 3y ago
    That's ... a bit shortening reality. They are not required to follow precedents from the same level of courts (lower, upper, state court, federal/supreme court), but in practice they do so, particularly if there have been multiple similar cases. Federal and supreme court rulings are effectively binding for lower courts. Notable disagreements exist as well, for example the Landgericht Berlin who routinely ignores even Supreme Court judgements [1], or the Landgericht Hamburg which is infamous for happily providing c&d orders to a degree other Landgerichte do not [2]. [1] https://www.lto.de/recht/nachrichten/n/lg-berlin-geruegt-von-bverfg-verstoss-prozessuale-waffengleichheit-bild-boris-becker/ https://www.lto.de/recht/nachrichten/n/lg-berlin-geruegt-von... [2] https://www.lawblog.de/archives/2016/05/18/das-hamburger-monopol/ https://www.lawblog.de/archives/2016/05/18/das-hamburger-mon...
LeanderK 3y ago
German, but have not studies law: Interesting, because as a german the common law approach is equally weird. I see judges as only interpreter of law but they wield so much power in the common law system. In my perspective the only source where the decisions should be derived from is the law and not some precedent. Lawmakers are the representative democracy in action but judges are not, way more arbitrary. So the law is the only source of truth which we learn to read (amateurish) in school, so I feel a bit comfortable in reading it and have some idea what's going on when I talk with law-school friends. In contrast, the respect for precedents results in a system that's not "derived from first principles". It has a certain elegance because you have a book where the law is written and you can just follow. It feels way more arbitrary and wrong to refer to some case years ago, undemocratic I would say and also inaccessible besides for the professionals who know how to find these. Not that you as an amateur should defend yourself but for small disputes you can still look at the law and ask someone more familiar to give you the right paragraphs before turning to a professional lawyer and a legal dispute. Of course it has its own disadvantages and the laws get hugely complicated in effort to regulate everything. Maybe because I've grown up here, but to me Common law feels "medieval" and I do not want to switch to a system where judges posses so much power. Ideally, in my POV, decisions should be almost algorithmic from a source of truth, comparable to computer code, specifying rules on how to arrive at results. > The net effect was of a system that felt somewhat arbitrary, with broad-ranging but unexplained decisions made by relatively inexperienced people, often well outside any area with which they could reasonably be expected to be familiar. In general, there was much less legal certainty than I would be comfortable with. Some perspective on this, since I know a judge. In germany, it is common to rotate the judges every few years to new positions (e.g. from traffic to financial cases). They get a refresher in the specific laws relevant for the area, but they also have a "group" they divide the cases with. The group also acts as professional support to each other so if there's uncertainty then there's always the colleagues.
pasabagi 3y ago
> They are also not binding precedent, so the actual state of the law at any given time can be harder to discern. This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel. Secondly, precedent is a pretty good guideline to what will actually happen. Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system?
- LeanderK 3y ago
  > Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system? It is also not the correct institution to "make law" I think. It does not represent the population in some way as in a representative democracy should be. It was not debated in the parliament and it was not campaigned on. It is in some way a rule of experts.
- troad 3y ago
  >> This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel. This is typically the case in common law systems with a written constitution as well (the US, Australia, India, etc). Laws not consistent with the constitution generally get stuck down as invalid to the extent of any inconsistency. In practice, of course, most day-to-day cases do not engage with constitutional principles in either system. If you're facing a criminal charge of larceny, and you're searching the Constitution / Basic Law for your defence, I might diplomatically call your approach... bold. >> Secondly, precedent is a pretty good guideline to what will actually happen. >> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system? This is a great question! Precedents can and are overturned in several ways in common law systems. A higher court can overturn a lower precedent, and generally also its own previous precedents. A lower court is more restricted, but perhaps the most common way to avoid a precedent is to "distinguish" it - this means to basically claim that the two cases are not alike, and so the precedent ought not apply. (Very loosely speaking, precedent is only binding on alike cases - this is the basic theory of precedent, that the case has already, in fact, been decided before. The Latin term you often hear for this is stare decisis.) This is tricky, and higher courts will rap lower courts on the knuckles if they're not obeying precedent that binds them without good cause. But more broadly it's important to remember that precedent ("common law") is subordinate to written law ("statute law"). So if the legislature passes a law, and the judiciary interprets it in a way that the legislature doesn't like, the legislature is entirely free to amend that law to correct the court's understanding, which renders the precedent moot. The one exception is constitutional law, which might be more complicated to amend (referenda may be required), so courts have to tread carefully. (None of the above is legal advice.)

by troad 3y ago

usrusr 3y ago

German, but not much knowledge of all things judicial: I believe that the German system might suffer a little from being torn between the Roman law tradition (via Code Napoleon) where the code is undisputed authority on one side, and common law tradition on the other, where consistency with precedence is considered very important.

amadeuspagel 3y ago
There's no common law tradition in germany. Courts are not required to follow precedents.[1] [1]: https://en.wikipedia.org/wiki/Law_of_Germany#Comparative_law https://en.wikipedia.org/wiki/Law_of_Germany#Comparative_law
- mschuster91 3y ago
  That's ... a bit shortening reality. They are not required to follow precedents from the same level of courts (lower, upper, state court, federal/supreme court), but in practice they do so, particularly if there have been multiple similar cases. Federal and supreme court rulings are effectively binding for lower courts. Notable disagreements exist as well, for example the Landgericht Berlin who routinely ignores even Supreme Court judgements [1], or the Landgericht Hamburg which is infamous for happily providing c&d orders to a degree other Landgerichte do not [2]. [1] https://www.lto.de/recht/nachrichten/n/lg-berlin-geruegt-von-bverfg-verstoss-prozessuale-waffengleichheit-bild-boris-becker/ https://www.lto.de/recht/nachrichten/n/lg-berlin-geruegt-von... [2] https://www.lawblog.de/archives/2016/05/18/das-hamburger-monopol/ https://www.lawblog.de/archives/2016/05/18/das-hamburger-mon...

LeanderK 3y ago

German, but have not studies law: Interesting, because as a german the common law approach is equally weird. I see judges as only interpreter of law but they wield so much power in the common law system. In my perspective the only source where the decisions should be derived from is the law and not some precedent. Lawmakers are the representative democracy in action but judges are not, way more arbitrary. So the law is the only source of truth which we learn to read (amateurish) in school, so I feel a bit comfortable in reading it and have some idea what's going on when I talk with law-school friends. In contrast, the respect for precedents results in a system that's not "derived from first principles". It has a certain elegance because you have a book where the law is written and you can just follow. It feels way more arbitrary and wrong to refer to some case years ago, undemocratic I would say and also inaccessible besides for the professionals who know how to find these. Not that you as an amateur should defend yourself but for small disputes you can still look at the law and ask someone more familiar to give you the right paragraphs before turning to a professional lawyer and a legal dispute. Of course it has its own disadvantages and the laws get hugely complicated in effort to regulate everything. Maybe because I've grown up here, but to me Common law feels "medieval" and I do not want to switch to a system where judges posses so much power. Ideally, in my POV, decisions should be almost algorithmic from a source of truth, comparable to computer code, specifying rules on how to arrive at results. > The net effect was of a system that felt somewhat arbitrary, with broad-ranging but unexplained decisions made by relatively inexperienced people, often well outside any area with which they could reasonably be expected to be familiar. In general, there was much less legal certainty than I would be comfortable with. Some perspective on this, since I know a judge. In germany, it is common to rotate the judges every few years to new positions (e.g. from traffic to financial cases). They get a refresher in the specific laws relevant for the area, but they also have a "group" they divide the cases with. The group also acts as professional support to each other so if there's uncertainty then there's always the colleagues.

pasabagi 3y ago

> They are also not binding precedent, so the actual state of the law at any given time can be harder to discern. This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel. Secondly, precedent is a pretty good guideline to what will actually happen. Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system?

LeanderK 3y ago
> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system? It is also not the correct institution to "make law" I think. It does not represent the population in some way as in a representative democracy should be. It was not debated in the parliament and it was not campaigned on. It is in some way a rule of experts.
troad 3y ago
>> This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel. This is typically the case in common law systems with a written constitution as well (the US, Australia, India, etc). Laws not consistent with the constitution generally get stuck down as invalid to the extent of any inconsistency. In practice, of course, most day-to-day cases do not engage with constitutional principles in either system. If you're facing a criminal charge of larceny, and you're searching the Constitution / Basic Law for your defence, I might diplomatically call your approach... bold. >> Secondly, precedent is a pretty good guideline to what will actually happen. >> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system? This is a great question! Precedents can and are overturned in several ways in common law systems. A higher court can overturn a lower precedent, and generally also its own previous precedents. A lower court is more restricted, but perhaps the most common way to avoid a precedent is to "distinguish" it - this means to basically claim that the two cases are not alike, and so the precedent ought not apply. (Very loosely speaking, precedent is only binding on alike cases - this is the basic theory of precedent, that the case has already, in fact, been decided before. The Latin term you often hear for this is stare decisis.) This is tricky, and higher courts will rap lower courts on the knuckles if they're not obeying precedent that binds them without good cause. But more broadly it's important to remember that precedent ("common law") is subordinate to written law ("statute law"). So if the legislature passes a law, and the judiciary interprets it in a way that the legislature doesn't like, the legislature is entirely free to amend that law to correct the court's understanding, which renders the precedent moot. The one exception is constitutional law, which might be more complicated to amend (referenda may be required), so courts have to tread carefully. (None of the above is legal advice.)