AN ANALYSIS OF SOURCES OF LAW IN GERMANY

2.5. Comparative Legal System

Submitted by

Lidia K. Kharmih

SF0115023

1st year, IInd semester

National Law University, Assam

 Content

1. Introduction

1.1. Aim and Objectives

1.2. Scope and Limitations

1.3. Review of Literature

1.4. Research Questions

2. Historical Sources

2.1. Early History

The Salic Frank period (Frnkisch-deutsche Reich)

Charlemagne

2.2. The Middle Ages

2.3. The Modern Ages

Renaissance and Reformation Era

Unification

Post World War I

Nazi Germany

Post World War II

3. Current Sources of Law

3.1. The Constitution (Grundgesetz)

3.2. Statutes (Gesetz)

3.3. Customary Law (Gewohnheitsrecht)

3.4. Judicial Lawmaking (Richterrecht)

3.5. European Community Law

3.6. International Law

4. Conclusion

5. Bibliography
 1. Introduction

Sources of law in the context of its historical development refers to the initiators, the
influences that instituted and laid down the foundation for the law, and the same expression
could also refer to the sources from where law is presently derived, i.e., the current sources.

Historically, the German legal system has made a significant transformation from the
primitive system of nomadic tribes and unwritten customary laws, to the codified German
constitution that it has today. There were many wars that were fought, from the time when the
tribals were seeking territories to settle in, to the two major World Wars, and these and many
other factors have gone on to shape the German legal system that we witness today. There are
also various schools of law that have influenced German law- Customary law, Roman law,
Canon law, French law, as well as a disregard for the law, as seen during the rule of the Nazi.
Germany as a country and people were not always united, and what was in the beginning a
fragmented Germany, has evolved into the united Germany that we see today.

The Basic Law of Germany is of federal character and it entails strict codification of
law on which the German Civil Code (BGB) has been developed. Among the current sources,
German law derives its authority from its constitution (Grundgesetz), statutes (Gesetz),
customary law (Gewohnheitsrecht), judicial lawmaking (Richterrecht), European Community
law and international law.
1.1. Aim and Objectives

To study the historical sources that have influenced the German legal system
To study from which sources does the German legal system currently derives its
authority from
 1.2. Scope and Limitations

The scope of this paper is limited to the development of German legal system from the
historical perspective, and a discussion on where the authority for the current laws is derived
from.

1. Approach to research
In this paper, the researcher has adopted a doctrinal type of research.
Doctrinal research is essentially a library-based study, which means that the
materials needed by a researcher may be available in libraries, archives and other
data-bases.

2. Sources of data collection

All the data has been collected from secondary sources such as, books, web
sources, etc. No primary sources of survey data or field data was collected by the
researcher.
 1.3. Literature Review

K. Zweigert and H. Ktz, AN INTRODUCTION TO COMPARATIVE LAW (Tony

Weir tr.), 1998, Oxford University Press, New York City

Originally written by Tony Weir, K. Zweigert and H. Kotz translated his work on
comparative law to English. The book contains various discussions on the different aspects of
comparative law- from its aim to the methods incorporated in the study- as well as
explanations of different legal families and the institutions present in some countries.

This book was helpful in understanding the development of the German legal system,
and the German Civil Code (BGB)

Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4th Edition,
2010, Oxford University Press

This book is an in-depth study on the German legal system, discussing everything from
its historical background, its evolution, it application, and the various schools of law under
the German legal system.

This book was helpful for gaining an insight about the historical development, as well
as the political backgrounds on which German law was founded and the current sources of
German law.
 1.4. Research Questions

1. What are the historical sources that contributed to the development of the German
legal system?

2. What are the current sources of law in Germany and what hierarchy are they placed
in?
 2. Historical Sources

2.1. Early History

Germanic culture, from its language to its customary law, was initially spoken rather
than written. Therefore there is little evidence of where it actually originated, and to whom or
to what do we owe its existence. The first initiatives to record Germanic laws were taken by
Roman authors, in particular Caesar and Tacitus.

Most authors have found it to be difficult and have even regarded it rather unnecessary
to attempt an approach to the legal history of Germany on the premise that there was a united
German identity. The Germanic tribes were travelling tribes, and therefore had no fixed
territory or settlement; instead the tribes migrated continuously and carried their respective
laws along with them. The migration is also seen by some as a pursuit for a common identity
by the Germanic tribes, and this desire can be perceived in the laws of the time.

A form of customary law was followed by the Germanic tribes; it was not written, but
rather communally established in a democratic manner by a general open-air assembly of the
freemen of the tribe.1 There were different forms of proceedings for when and how disputes
were resolved among the different tribes, and also varying degrees of democracy and
participation.

The Salic Frank period (Frnkisch-deutsche Reich)

Although often described as an era of absolute disorder and chaos, this period however,
did not actually see any more than conflicts and battles that were an outcome of a clash
between the migrating tribes that were now beginning to settle and the Roman legions that
were withdrawing. Along with the entry of the tribes, also came their customary laws and
their method of administering justice, which was far more informal than the prevailing
Roman law and Roman form of administration of the people who were occupying Southern
Germany at the time.

Migration from the north by the different Germanic tribe had been going on for many
centuries, but it became evident in the second to the fifth centuries AD, because they started

1
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4th Edition, 2010, p. 10
settling in the territories that were then inhabited by the Romans. There was of-course some
conflict caused due to the fact that the old inhabitants were familiar with the Roman law,
while the new settlers were governed by their own customary law that again varied from tribe
to tribe, but the tribes did not attempt to abolish the old system and allowed for the
employment of Roman law for the local native people-who were the Romans and Gallo-
Roman inhabitants- while they sometimes retained their own customary law, and at other
times, allowed that the Roman law influence their customary laws, such that we find a mix of
both. However this meant that there was still no fixed system of administration that governed
the people, but the some of the Germanic tribes did begin to write down their own laws- a
move that was clearly inspired, either directly or indirectly, by the Romans- so as to protect
their owns law from being lost to the Roman laws, and also to make it easier for clarification;
for example: the Visigoth customs (Codex Euricianus) was codified by Euric the West Goth
in 480 AD, the Salic laws (Lex Salica) were codified during the reign of Clovis from 482-511
AD, the Burgundian customs (Lex Babara Burgundionum) by Gundobd from 474-516 AD,
and the Edict of Theodore the Ostrogoth (Edictum Theodorici).2

Charlemagne

The Merovingian dynasty of the Franks was ceded by the Carolingian dynasty3; with
the papal acknowledgement and inauguration of Charles the Great (Charlemagne) as
Emperor of the Romans4 by Pope Leo III in 800 AD brought back the authority of the
Western Roman Empire.

During his reign Charlemagne tried to establish the superiority of the Imperial law over
that of the customary law of the tribes, and this led to a conflict because the Imperial law was
predominantly founded on Roman law and Canon law. Charlemagne was a powerful king,
and in his lifetime he did manage to ensure that the customary laws of the people were
hindered, as he tried to restrain such laws from being written down and he also imposed the
territorial law over the personal laws. However, this was discontinued after his death as his
successors did not possess the competency or authority of Charlemagne.

2
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 11
3
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 12
4
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 13
 The process of legal development therefore remained fragmented, and the kings never
truly ruled a unified realm, but instead they could only control areas of the realm.

2.2. The Middle Ages

After the demise of the Carolingian dynasty, the transition of the East Franconia to the
German Reich began in 911 AD.5 In the middle ages, we find that the customary laws of the
Germanic tribes had mostly been written down in the various legesbarbarorum.6 Central
power became weak during this period, and consequently allowed for the local law to grow,
and therefore, this period saw the development and administration of customary laws.
Another development seen during this age that strongly signified the importance of the
regional laws was the development of the medieval towns, which gave to the inhabitants of
such towns many individual rights.

As time proceeded we do come across a period within the middle ages during which we
see a comeback of Romanian law; this was brought about by the universities that were being
founded at the time all over Europe. Roman law was being taught in these universities, and
other schools of law were also being taught in comparison to Roman law. With a large
number of students from across Europe studying in these universities and with the huge
compilation of literature on Roman law that resulted from that allowed for Roman law and
Canon law to gain back the authority it had previously.

German kings preferred the Roman law and the Canon law, as their power was derived
from the Papal, but Germany remained fragmented without an efficient central legal
authority, and so, the customary law was also still widely employed across Germany, and
since each tribe had a different approach, the law-finders7 (Schffen) of the German courts,
found it difficult to cope with the varying changes in customary law and the influence of
Roman law that was continuously increasing.

2.3. The Modern Ages

5
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 14
6
Walther Hug, The History of Comparative Law, Harvard Law Review, 1932, Vo. 45, No. 6 (April), p. 1034.
7
Ibid, p. 19-20.
 Renaissance and Reformation Era

With the advent of the new world order, the local laws and the commercial laws
continued to be widely for a while, till about 1500, after which Roman law adopted to a very
great and rapid extent in Germany.8

The factors and agents of Roman law, that led to its acceptance in Germany were- The
Church and the Holy Roman Empire, the Universities, the lack of central legal authority, the
new world order and the changes brought about by it that made it increasingly difficult to
apply customary law, and the courts that began adopting Roman law and Canon law.

Enlightenment Period to the Nineteenth Century

In this period, the Holy Roman Empire within Germany disintegrated and importance
of the individual states was seen as they continued to gain power and influence. The Empire
was officially dissolved in 1806.

Two schools of law greatly influenced the German system in this era; they were- the
school of natural law and the historical school of law. The school of natural law had many
aspects similar to the codified law of France, from which it took influence at the time, and
since the German territories were now claimed and appropriated by France, it is apparent why
the German system of law was influenced by this school. The historical school of law
however, strengthened the tenets of Roman law and Canon law in the German legal system,
as that was the main topic of discussion in legal history of the time, especially for Germany.

Unification

It was only during the unification of Germany, that a strong central authority was
established and the process of codification of law was started by the first German Chancellor,
Otto von Bismarck.9 German law therefore evolved out the two aforementioned schools, with
codification taking a greater share of influence. The most important development was that of
the Civil Code that replaced the local laws and therefore was significant in the unification of

8
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 18
9
Ibid, Note 9.
Germany; the most important enactments of the time were- the Penal Code, 1871
(Reichsstraafgeesetzbuch: StGB), the Code of Criminal Procedure, 1877 (StPO), the Code of
Civil Procedure, 1877 (ZPO), the Organisation of the Courts Act (GVG), the Law on
Attorneys, 1879 (BRAO), the Commercial Codes, 1879 (HGB), and the Competition Code,
1879 (KO).10

Post World War I

The codification of laws that occurred in the nineteenth century was carried on to the
twentieth century, yet it was made possible for regional variations to be employed. There
were now clearly defined codes to be used in the court proceedings and therefore we find that
is a large growth in legislation during this period.

The First World War prompted for this willingness to accept change as the
circumstances of the war made it necessary to curtail the individuals rights. Adaptation of
the laws had to be forced on the courts as a result of the radical changes that were taking
place in Germany, during and after the war.11

Following the war, all military, political and constitutional institutions seem to collapse
in Germany, and there rose a parliamentary democracy know as the Weimar Republic that
lived for as long as fourteen years, and that produced as many as twenty governments in
those fourteen years. The chaos and depression that resulted as a consequence of the defeat in
the war caused for the Weimar Republic to come into being in the hope that with the
establishment of a democratic federal republic, circumstances such as war can be avoided in
the future. However, this new constitutional framework did not ensure any significant shifts
of power from the pre-war system, and the governments that were established from it could
hardly maintain any stability, due to opposition from both within and outside the Parliament.

Nazi Germany

The problems that the Weimar Republic caused eventually allowed for Hitlers rise to
power. During Hitlers time there was no enactment of a new constitution as such, just the

10
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 31
11
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 35
mere reorganisation of the one that was already in place and often that too was just simply
ignored to make way for the totalitarian aim of the Nazi regime; everything, even the basic
rights of the people granted by the constitution could be ignored under Hitlers order. Many
lawyers were forced to emigrate out of Germany to continue their profession elsewhere. Still,
many regard that the abuse of power with regards to the legal system and administration of
justice is still a lesser evil when compared to the other inhumane atrocities that was carried
out during the Nazi regime.12

Post World War II

By the end of the Second World War, the territories of Germany had become divided
and some were even ceded to other countries. Since prior to the Second World War, i.e.,
during the rule of the Nazi, there was no actual changes made to the constitution, and the
totalitarianism was just from the abuse of authority and arbitrary application of the laws to
suit the needs of those in power, there was no need to revise the entire body of laws. All the
Nazi rules were repealed, and there after began a no-discrimination policy on the rules that
remained in force.

However, the experience under the Nazi rule and the enforcement of military laws
greatly influenced the provinces of Germany, with the formation of a Federal republic of
Germany in the western provinces and a socialist regime n support of the Soviet Union in the
eastern provinces.

The Federal Constitutional Court was established with the authority to overrule all
other laws that breach the basic laws. Membership of European Communities was allowed,
that transferred some sovereign rights to international organisations. Other public aspects,
such as, the economic affairs of the state, the environment, were also now within the purview
of the law.

12
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 44
 3. Current Sources of law

Conventionally, there are only two sources of law that are recognised in the German
legal system, the first being statutes- known in German as Gesetz, and the other are the
customary laws- known in German as Gewohnheitsrecht. If we were, however, to view the
present German legal system in all its practicality, we would find contributions from other
sources as well, and so, to say that statutes and customary laws are the only two influences
that impact the legal system of Germany.

3.1. The Constitution (Grundgesetz)

The constitution (Grundgesetz), or the Basic Law of Germany is the ultimate source
of law for Germany. The structure of the Federal Government and the governments of the
states (Lnder) are defined within it. The foremost authority of this doctrine is made clear in
Article 1 III13, in which it is explicitly stated that all other state authorities are bound by the
basic rights, and Article 20 III brings even the central and state legislatures under the
constitutional order.14 The rights of the people of Germany are guaranteed and protected
under this constitution.15

3.2. Statutes (Gesetz)

As understood in Germany, the term Gesetz refers to all enacted and written rues of law
which in legal systems today are the main source of law, including the comprehensive
legislative codes and amending or additional single enactments from both the federal and
Lander legislatures and their executives endowed with law making powers.16 It seeks to
include both parliamentary law, that requires a particular procedure to be followed, as well
as, other forms of law that have been enacted by a proper authority. However, it is to be noted
that federal laws and regulations on a federal scale are to prevail over lnder laws.17

13
Article 1 III, Grundgesetz
14
Article 20 III, Grundgesetz
15
Article 104, Grundgesetz
16
Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4 th Edition, 2010, p. 44
17
Article 31, Grundgesetz
 3.3. Customary law (Gewohnheitsrecht)

What was earlier the only source of German law, has now lost its authority and is of
little influence today; yet it is generally still practiced as a binding form of law. Customs are
an integral part of the legal history of Germany, and therefore they can still be traced to the
laws that are in force today since it has been recognised by the introductory law to the
German Civil Code, which states that for the purpose of the Civil Code, law is any normative
rule of law. The Federal Constitutional Court has defined customary law as an unwritten rule
or practice, which has arisen as the result of a consistent and constant general application
over many years, and a widespread conviction or recognition that it is a valid and binding
rule of law.18

In the current times however, it would seem that the judge-made law has replaced the
customary laws to a great extent.

3.4. Judicial Lawmaking (Richterrecht)

Whether this can be recognised as a source of law in Germany is debatable as a clear

distinction cannot be made for when courts actually make new laws or merely interpret an old
law in a new light. Three considerations need to be made while deliberating over this- the
historical aspect, the current position of the constitution on the matter, and the effect of the
courts decisions. Lower courts are asked to take into consideration the precedence of the
higher courts, but there have also been exceptions for the same.

3.5. European Community Law

It is understood by the Member States that Community law has superiority over the
national laws that are inconsistent. Therefore, it can be considered that the Community laws
have a higher precedence than even that of the constitution of Germany, however there have
been exceptions where this hierarchy was questioned.

18
BVerfGE 57, 134
 3.6. International Law

International treaties can be converted into national laws or can be directly put into
effect- under clause of Art 25 GG- and they form as part of the federal law, placed above
federal laws and below the constitution.
 4. Conclusion

In conclusion, the history of Germany has come a long way from the splintered
condition that it was in, when recording of the same had only begun; in the course of its
evolution, it has been subjected to various influences, under the regimes of different kings,
and in the endeavour for a united Germany, we find that there has been a gross discrimination
of legal authority.

Yet the picture of the present German legal system is very different from the one it has
started with; customary law no longer bears the same authority that it had during the time of
the nomadic tribes, and Germany now has a codified constitution and is a member state to the
European Community. The modern approach to law that Germany has adopted has even
made it an influencing factor for the legal system other countries, such as that of Japan and
Turkey. As reconciliation for the atrocious crimes committed by its government, Germany
tries to promote democracy, as well as, human rights laws and conventions. Therefore, it is
evident how the history of Germany has affected the laws that are in effect in the country
today.

Although the relation between the supernational laws and the ntional laws remains
ambiguous, it is an accepted convention that the former prevails over the latter, in accordance
to the agreement of the European Community. Therefore, among the current sources of law,
the European Community laws are placed at the top of the hierarchy followed by the national
laws- its constitution, then the federal laws, the federal by-laws, laws of the Lnder, by laws
of the Lnder, and then the customary laws.
5. Bibliography

Books

1. K. Zweigert and H. Ktz, AN INTRODUCTION TO COMPARATIVE LAW

(Tony Weir tr.), 1998, Oxford University Press, New York City
2. Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS, 4th
Edition, 2010, Oxford University Press
3. Hagen Schulze, Germany: A New History (Deborah Lucas Schneider tr.), Harvard
University Press, Cambridge (MA) USA, 1998

Journals

1. Walther Hug, The History of Comparative Law, Harvard Law Review, 1932, Vo.
45, No. 6 (April), pp. 1034
2. Michael J. Bazyler, Contemporary Legal Lessons From the Holocaust, Jewish
Political Studies Review, 2007, Vol. 19, No. (Spring), pp. 15-23