Politics and Government in Germany, 1944-1994: Basic Documents

By Carl-Christoph Schweitzer; Detlev Karsten et al. | Go to book overview

10
The Judiciary

Donald P. Kommers

G erman legal scholars often describe the Federal Republic as a Rechtsstaat, literally translated as a 'law state' or a state based on law. The notion of a state based on law clearly finds its most significant manifestation in the German judiciary whose structure and jurisdiction offer the most extensive legal protection of any judicial system in the world.

Before discussing the judicial system as such, more needs to be said about the tradition of German law associated with the idea of the Rechtsstaat.1* By the end of the nineteenth century German law had been systematically arranged and unified in several codes which still exist. Criminal law was codified in 1871; civil and criminal procedure in 1877; general private law in 1896; commercial law in 1897. These codifications followed Germany's political unification in 1871, facilitating in turn the unification of the judicial system in 1877. As Fritz Baur has pointed out, codification reflected 'the optimistic belief that all legally relevant human relations could be thus rationally comprehended and constructed'. The codification drive and the nationalistic feeling that propelled it placed a high premium upon the importance of the state in Germany's legal order. Unlike the Anglo-American or common law tradition that emphasized the importance of natural rights possessed by the individual against the state, the German tradition assumed that law and justice could be achieved only within and under the protection of the state.

The primacy of the state in German jurisprudence influenced attitudes toward the traditional role of the courts. This role is suggested by the following propositions which at one time fairly well summarized the German, and largely continental European, theory of law and judicial authority: that the state is the source of all law; that the locus of all lawmaking authority within the state is the sovereign legislature; that law is a closed system of logically arranged and internally coherent rules; that all legal disputes must be resolved by reference to such laws; that courts of law, independent of the legisla-

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*
Notes for this chapter begin on p. 293.

-272-

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Politics and Government in Germany, 1944-1994: Basic Documents
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface to the First Edition xv
  • Preface to the Second Edition xvii
  • Introduction xix
  • 1 - The Origins of The Federal Republic Of Germany, 1944-1949 1
  • 2 - Berlin 29
  • 3 - The Two Germanies 48
  • 4 - Germany Reunited 1989--Her First Successful Revolution, And a Peaceful One 76
  • 5 - Foreign Policy 108
  • 6 - Defence Policy and the Armed Forces 150
  • 7 - Parliamentary Democracy: The Bundestag 175
  • 8 - Political Parties 201
  • 9 - Chancellor, Cabinet, and President 239
  • 10 - The Judiciary 272
  • 11 - Basic Rights And Constitutional Review 297
  • 12 - Federalism: Bund and Länder 325
  • 13 - Public Opinion: Interest Groups and the Media 371
  • 14 - Economic and Social Policy 401
  • Statistical Tables 432
  • Glossary 446
  • Select Bibliography 449
  • Notes on the Editors 458
  • Index 460
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