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There's a Wikipedia article on this: 'The jocular saying is that, in England, "everything which is not forbidden is allowed", while, in Germany, the opposite a

by kszx 12y ago

There's a Wikipedia article on this: 'The jocular saying is that, in England, "everything which is not forbidden is allowed", while, in Germany, the opposite applies, so "everything which is not allowed is forbidden". ... The saying about the Germans is at least partially true. ...' http://en.m.wikipedia.org/wiki/Everything_which_is_not_forbidden_is_allowed http://en.m.wikipedia.org/wiki/Everything_which_is_not_forbi...

pgeorgi 12y ago
And the example isn't about allowed or forbidden, it's if a legal construction holds up in court that implies a further meaning than what it literally in the books. Something that you'll have mixed results with, no matter the jurisdiction. Just that, broadly speaking, absent a clear rule, civil law courts try to derive the intent of the closest law, while common law courts create new law through their decision.
legulere 12y ago
I think this mostly is about what the state is allowed to do, as the state actions are often seen as an infringement to basic rights.
Xylakant 12y ago
The example quoted in the wikipedia is a bit weird, the quoted paragraph deals with the question of under which circumstances you can have owner-like rights from something that you don't actually owned but rented (or was given to you under similar circumstances). There may or may not be a legal edge case involved, but it does not directly deal with "actions permitted or forbidden." The primary difference between common law and civil law is more among the lines that in common law systems each court decision creates a law (or is law-like) while in civil law, the law is created by the legislative. German courts have to follow the civil code and can't change or ignore it. Even the german constitutional court (Bundesverfassungsgericht) can't create a law. It may declare a law unconstitutional, but the burden of drafting a new law falls on the Bundestag. Obviously, there will be loopholes and there's always the question of how a given law applies to the circumstances, but even lower courts are not bound by the decisions of higher courts in similar cases - though usually decisions of other courts get cited in court proceedings. A pretty famous example is the Landgericht Hamburg which is known to decide in ways that the next higher court rejects (Oberlandesgericht Hamburg) on appeal.

by kszx 12y ago

pgeorgi 12y ago

And the example isn't about allowed or forbidden, it's if a legal construction holds up in court that implies a further meaning than what it literally in the books. Something that you'll have mixed results with, no matter the jurisdiction. Just that, broadly speaking, absent a clear rule, civil law courts try to derive the intent of the closest law, while common law courts create new law through their decision.

legulere 12y ago

I think this mostly is about what the state is allowed to do, as the state actions are often seen as an infringement to basic rights.

Xylakant 12y ago

The example quoted in the wikipedia is a bit weird, the quoted paragraph deals with the question of under which circumstances you can have owner-like rights from something that you don't actually owned but rented (or was given to you under similar circumstances). There may or may not be a legal edge case involved, but it does not directly deal with "actions permitted or forbidden." The primary difference between common law and civil law is more among the lines that in common law systems each court decision creates a law (or is law-like) while in civil law, the law is created by the legislative. German courts have to follow the civil code and can't change or ignore it. Even the german constitutional court (Bundesverfassungsgericht) can't create a law. It may declare a law unconstitutional, but the burden of drafting a new law falls on the Bundestag. Obviously, there will be loopholes and there's always the question of how a given law applies to the circumstances, but even lower courts are not bound by the decisions of higher courts in similar cases - though usually decisions of other courts get cited in court proceedings. A pretty famous example is the Landgericht Hamburg which is known to decide in ways that the next higher court rejects (Oberlandesgericht Hamburg) on appeal.