Law of Germany
The law of Germany, that being the modern German legal system, is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code were developed prior to the 1949 constitution. It is composed of public law, which regulates the relations between a citizen/person and the state or two bodies of the state, and the private law, which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Justinian Code the Corpus Juris Civilis, and to a lesser extent the Napoleonic Code.
History
German law has been subject to many influences over the centuries. Until Medieval times the Early Germanic Law, derived from the Salic Law of the Salian Franks and other tribes, was common. With the arrival of the Renaissance, Roman law again began to play a strong role, and later on legal scholars known as the Pandectists revived the formalities of Roman law as set by Justinian in the Corpus iuris civilis. It became common law ' in large parts of the German-speaking world and prevailed far into the 19th century. As the Holy Roman Empire was composed of countless minor territorial entities, the laws varied very much, according to local traditions and religions. These laws were codified in about 3,000 local Weistümer, collections of rural laws.Only in relation to the Imperial superior Court of Justice, the Reichskammergericht, there existed codes of procedure. In addition to these the Corpus Iuris Canonici, the source of the better organized ecclesiastical judicature and the old Corpus Iuris Civilis. Both bodies of law were a central part of the education of jurists and therefore generally known among them.
Prussia made an effort to bring in an all-new set of laws with the Allgemeines Landrecht für die preußischen Staaten, a system of codification containing laws in relation to the whole spectrum of legal divisions, in the 18th century, which had a great influence on later works.
After the French July Revolution of 1830, revolutionary ideas of the French Revolution and Napoleon's laws as the Code civil the Code pénal and the Code d'instruction criminelle strongly influenced the German legal tradition, especially in the Grand Duchy of Baden, which sometimes only translated codifications of France for its own use.
With the forming of the Deutsches Reich in 1871, a major process of legal standardization ensued, beginning with criminal law and procedural law and culminating in the Bürgerliches Gesetzbuch after over twenty years of creative process. Important parts of German legislation still contain regulations of these laws. However, the various states always maintained their own laws to an extent, and still do so in modern federal Germany.
In 1919 in Weimar the Weimarer Verfassung was created: the first democratic constitution of Germany. This was a very liberal and democratic constitution, but it did not include any basic ethical or political principles. It allowed unlimited changes, the only requirement of any legal decision was a formally correct decision of the appropriate legal institution.
After the war, the two newly emerged German states adopted two different legal systems.
The socialist–communist East Germany tried to install new laws strongly influenced by communist and socialist ideology.
The democratic state of West Germany built on existing law. Most of the legal changes of National Socialism were reversed, especially those with ethical criminal content. A new feature was the treatment of the constitution. This constitution was intended to avoid the mistakes of the Weimar Constitution. With the reunification of the two states, West German law was set in force for the most part. A fairly recent development is the influence of European law which aims to harmonize laws in the various states of the European Union, so that many legal developments are taken out of the hand of the federal government and are decided in Brussels instead, where Germany has its own influence on the process along with the other members. German law is still strongly influenced by federalism, and the individual states ' each have their own responsibilities and particular laws, which can be seen as inefficient, but allows for regional variation and promotes meaningful regional democratic responsibility.
German legal tradition has in turn influenced many other countries. For example, the legal systems of Japan, the Republic of Korea, United States of America and the Republic of China are to some extent based on German law.
Public law
Public law rules the relations between a citizen or private person and an official entity or between two official entities. E.g., a law which determines taxes is always part of the public law, just like the relations between a public authority of the Federation and a public authority of a state.Public law was formerly based on the so-called "Über-Unterordnungs-Verhältnis". That means that a public authority may define what is to be done, without the consent of the citizen. In return, the authority has to abide by the law and may only order if empowered by a law.
The newer and now most acknowledged theory to determine whether a regulation is public or civil law is the "modifizierte Subjektstheorie". A codified regulation is public law, if at least one of the subjects is part of the state or is legally empowered to act on behalf of any part of the state. This Theory was necessary, because the Theory of "Über-Unterordnungs-Verhältnis" failed in certain situations, e.g.: A parent is legally superior to a minor. The minor cannot sign any contract without a parent's consent. Following the old theory, this would be a case of "Überordnung", which would qualify these regulations as public law. The newer theory qualifies these regulations as private law, because though the parents are superior, they are not part of the state nor acting on behalf of any.
A subject in the sense of the Modifizierte Subjektstheorie is the addressee, that might be entitled or obligated to do or to forbear something; e.g.: Tax Laws entitle the state to collect taxes, criminal law entitles the state to imprison criminals and also obligates the state to resolve crimes.
Constitutional law
The constitution is called the Grundgesetz because the drafters saw this legal "corpus" as a provisional document, to be replaced by the constitution of a future united Germany. In reaction to National Socialism, the Grundgesetz shows mistrust towards its own people and its own government and was created as a reaction to the problems of the Weimar Constitution. Where the Weimar Constitution was weak, this constitution, the Basic Law was strong, where the Weimar Constitution left every decision to the free will of the legislator, the basic law defines the boundaries that nobody is allowed to cross. Wherever possible, powers are limited and controlled.The constitutional law ' deals, of course, mostly with Germany's constitution and the rights and duties of the various institutions. A major part are the Civil rights which are first in the basic law ' and from which everything else derives. As usual in western democracies, the three powers are separated: the executive is taken care of by the government, the judicative by the courts and judges, and the legislative is managed by the federal and state parliaments. The most important principles, apart from that, are Democracy, Federalism and Rechtsstaatsprinzip, meaning that the whole of the state must be based on laws. These parts of the Grundgesetz are forbidden to be changed.
Decisions may be made according to the definition of these regulations, but the essential content has to be unaffected. The highest authority in constitutional law, and to some extent in German law as a whole, is the Federal Constitutional Court. The Bundesverfassungsgericht is no Supreme Court. It is not a court of last instance. Its only purpose is the protection of the constitution, by control of the actions of government, judicative and legislative according to constitutional procedures and the ensuring of constitutional rights and duties. Here, the various parts of the state can dispute about the extent of their authority, but it is also the place to appeal to when a citizen feels that he is being deprived of his civil rights.
This particular matter takes up a lot of the court's work and often reshapes the legal process itself if the court finds that a certain law does in fact interfere with civil rights. Decisions of other courts are varied only with regard to violations of the constitution. Other mistakes are not relevant. Again, European law has a certain influence here as the Grundgesetz is no longer the sole source of law, instead it is joined by the treaties and laws of the European Union. Apart from the constitution of the Federal Republic, each state has its own constitution and, necessarily, its own constitutional law and court. Nonetheless the Grundgesetz and the Bundesverfassungsgericht are appropriate to actions of the states and their branches.