Introduction to the German Legal
System
History
Sources
Institutions
First overview

Germany is a civil law country

The main sources of law:


Basic Law (Grundgesetz) and the states´ constitutions

Federal Statutes, e.g. Civil Code (BGB) or Criminal Code (StGB)

Customary law and judge-laws
Fundamental constitutional provisions of the Basic Law:

Principle of democracy (Art. 20 (2) Grundgesetz)

Rule of law

Federal state principle (Art. 20 (1), 79 (3) Grundgesetz)

Principle of the social state (Sozialstaat)
2
The German Legal History (I)
The way to political and legal unification
(Germany at the end of 18th century)
3
The German Legal History (II)
The way to political and legal unification
First codifications

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Free cities and numerous princedoms which partially had invented
codified law (Bavarian Code, 1756 and Prussian Code, 1794)
Napoleon invented even earlier the French Code Civil (1804) in
those german princedoms, that had already been under french
protection

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The admiration of the written civil law in France led to longing for a
national codification of civil law
Dispute about codification of civil law in national civil code arose,
represented by Thibaut (1772 – 1840), who was member of the socalled School of Nature Law, and Savigny (1779 – 1861), the most
famous member of the so-called Historical School of Law (with its
offschoot Pandestic School)
4
The German Legal History (III)
The way to political and legal unification

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German Federation, that had been established to liberate the German states,
defeated Napoleon and, afterwards, fell apart because of the rivalty of the most
important federal states, Prussia and Austria
Creation of loose association of German states and free cities (German
Confederation) at the Congress of Vienna (1815) – initially 41 and ultimately (1871)
33 members
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The German Legal History (IV)
The way to political and legal unification
Codification and Unification

Revolution of 1848 – first freely elected National Assembly (so-called Paulskirchenversammlung)

German Empire (1871 - 1918) was established after Prussia defeated Austria (1866) and France
(1870/71) – political unification

drafted – as a further evidence of the growing will to unification – a constitution, that, due to its
rejection by the prussian king, never came into force

Commercial requirements dictated the move to legal codification on a national level

Many statutes – that, of course with various amendments and modifications, are still applicable today –
were enacted during the period before World War I, e.g.:

1871 - Criminal Code (Strafgesetzbuch)

1877 – Code of Criminal Procedure (Strafprozessordnung) and Code of Civil Procedure (Zivilprozessordnung)

1879 – Commercial Code (Handelsgesetzbuch)

1900 – Civil Code (Bürgerliches Gesetzbuch)
The highly detailed, technical and clearly defined codes implied that courts and the state
administration were from then on expected merely to apply and not to interpret them
6
The German Legal History (V)
The way to political and legal unification
7
The German Legal History (VI)
The 20th century

The Weimar Republic (1919 – 1933) – as successor of the German Empire – was
established after the First World War


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First Constitution with clear principles of republicanism and democracy as well as a
catalogue of basic rights, that were, however, expressed merely in terms of principles, not as
inviolable rights
Although the Weimar Republic was a federal state, the state power was fairly centered on
the Federal President (Reichspräsident), who took over the position of the former emperor;
the Reichspräsident was enabled to dissolve the parliament and announce new elections,
whereas in the meantime he governed the country
The necessities related to increasing social problems (e.g. depression, hyperinflation) in the
1920s and 30s induced a change in the judiciary´s attitude not to interpret, but to merely
execute the statutes, especially in regard of the general paragraphs of the Civil Code

Judge found law (Richterrecht) helped to outset the harshness of contracts and to push customary
law further to the background

Reform of labour law and setting of a seperate hierarchy of labour courts (Specialisation of the
Judiciary)
8
The German Legal History (VII)
The 20th century

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During the course of the Third Reich (1933 – 1945) – the period
when Hitler and his National Socialists Party (Nazis) governed the
country –, law was conceived no longer in terms of individual rights
but only as the rights of the people determined by the state

Main changes in criminal law, administrative law and constitutional law

Law and justice as a cruel weapon in the state's hands against all parts
of society it found undesirable
Thorough centralization of all state power to Hitler and, thus,
complete unification

No real federal elements any more
9
The German Legal History (VIII)
The 20th century

In the period following the Second World War (1945 – 1949), the legal system was, rather than
entirely reshaped, adjusted as corresponding to the following principles:


All Nazi laws were repealed and all other laws were subject to the no discrimation rule, which was a rule of
interpretation to the courts that required that no rule of law should cause injustice or discrimination by
favouring the Nazis or discrimination against any others
In 1949 the Grundgesetz, the written constitution of the Western German state, the German
Federal Republic, was enacted

Emphasis was laid onto the prevention not to repeat failed provisions of the Weimar Constitution, thus:


Basic rights are stated as unavoidable rights
The Federal President (Bundespräsident) plays only a nominal role in german government; he is not enabled to dissolve
the parliament on his own any more (approval of the Federal Chancellor ( Bundeskanzler) and, somehow, of the Federal
Parliament (Bundestag) itself is needed)

The Bundestag is the most important democratic institution

Very powerful Constitutional Court (Bundesverfassungsgericht) as “guard of the Grundgesetz” that is able to declare every
act of the other federal institutions as null and void
10
The German Legal History (IX)
The 20th century

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Instead of “Constitution”, the name Grundgesetz was chosen to express its
provisional character, because of the division of Germany in 1949 in two
separate states
It should have been replaced by a new constitution after the reunification,
that was expected or hoped for
Due to the fact, that the east-german GDR (German Democratic Republic)
completely acceded to the west-german FRG (Federal Republic of Germany)
in 1990 the name Grundgesetz was kept

Even though the Grundgesetz itself stated the necessity to enforce a new
constitution, the peoples´ confidence and faith in it forbade such action

Just few amendments to the Grundgesetz were inserted then
11
The German Legal History (X)
The 20th century
12
The German Legal History (XI)
Reunification of Germany (1990) – GDR acceded to the FRG
13
The German Legal Sources (I)
Controlling principles
Which legal source applies to an individual case depends on the following controlling principles:


Supremacy of application of European Law over German Law, in particular of the European
Treaties (primary community legislation) and secondary community legislation (acc. to Art. 249
EC Treaty)
Within German Law

priority of the federal law over state (Bundesland) law (Acc. to Art. 31 GG)

Higher-ranking provision prevails a lower-ranking one

Among legal provisions of equal rank:

Later provisions prevail over older ones (lex posterior derogat lex priori)

More specific provisions prevail over more general ones (lex specialis derogat legi generali)
14
The German Legal Sources (II) –
Hierarchie of the legal provisions
EC
Law
Federal
Law
State
Law
15
The German Legal Sources (III) –
Hierarchie of the legal provisions
EC
Law
Constitution (Basic Law)
General Provisions
of International Law
Ordinary statutes
Bye-laws
Administrative rules or orders
Customary law and judicial law-making
16
The German Legal Sources (IV)
The fundamental principles and contents of the Basic Law

Principle of democracy (Art. 20 (2) GG)

Rule of law

Federal state principle (Art. 20 (1), 79 (3) GG)

Principle of a social state

Catalogue of basic subjective rights (acc. Art. 1 – 19 GG)

Alterations of the Grundgesetz demand a two-third majority of the
members of the Bundestag as well as the Bundesrat (acc. Art. 79
(2) GG), whereas the above mentioned fundamental constitutional
principles are not subject to any alteration (acc. Art. 79 (3) GG)
17
The German Legal Sources (V)
Principle of Democracy
„All state authority is derived from the people“ (acc. Art. 20 (2) GG)

In form of representative government, i.e. the people’s authority mainly is
performed through elections; no significant elements of direct democracy

Other democratic elements are guaranteed by basic rights of democratic
participation and other constitutional provisions, e.g.,

Free speech, press and opinion (acc. Art. 5 GG)

Freedom of assembly (acc. Art. 8 GG)

Freedom of association (acc. Art. 9 GG)

Political parties (acc. Art. 21 GG)

Election principles (acc. Art. 38 GG) – free, even. secret, direct and common elections
18
The German Legal Sources (VI)
Rule of Law

Since not explained in a single provision, the Rule of Law is derived from several fundamental
ones, e.g. Art. 23 and 28 GG

Supremacy of law within the state (core of the formal rule of law)

Parliament is bound by the constitution, especially by basic rights (acc. Art. 20 (3), 1 (3)
GG)

Judiciary and executive are not only bound by acts of parliament but also by
fundamental constitutional values, such as the basic rights, acc. Art. 1 (3) GG (substantial
element of the rule of law)

Separation and mutual control of powers (acc. Art. 20 (2) 2 GG)

Guarantee of legal protection by the court (acc. Art. 19 (4) GG)

Procedural basic rights (acc. Art. 101 – 104 GG)

Principle of proprotionality
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The German Legal Sources (VII)
Principles of the social state and the federal state

Principle of the social state
(Art.20 (1) and 28 (1) GG):
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No demand for a certain economical
(e.g. Socialist) state form
Supports the provisions of social laws
and social welfare as correction of
unfortunate effects of a market
economy
Principle does, however, not provide
the individual with subjective rights

Principle of the federal state
(Art. 20 (1) GG):


Distribution of state power between
federation and states
Constitutional order of the states has
to conform to the leading principles of
the Basic Law (acc. Art. 28 (1) GG)
A subjective right on social welfare by
the state is derived from the sancity
and protection of the dignity of man
(Art. 1 (1) GG)
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The German Legal Institutions (I)
Overview (I)

Federal legal institutions:
(as stated in the Basic Law)

Legislative

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State legal institutions:
(as stated in the state constitutions)

Federal Parliament (Bundestag)
Federal Council (Bundesrat)

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Federal Government
(Bundesregierung)

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Federal Chancellor
(Bundeskanzler)
Federal Ministers
(Bundesminister)
Federal President
(Bundespräsident)
State Parliament (Landtag)
Executive

Executive

Legislative
State Government
(Landesregierung)

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
Prime minister
(Ministerpräsident)
State secretaries
(Landesminister)
Judiciary


State Constitutional Court
State courts
Judiciary


Federal Constitutional Court
(Bundesverfassungsgericht)
Federal Courts
21
The German Legal Institutions (II)
Checks and balances
Federal Constitutional
Court
(Bundesverfassungsgericht)
Federal President
(Bundespräsident)
Federal Chancellor
(Bundeskanzler)
Federal Assembly
(Bundesversammlung)
Federal Council
(Bundesrat)
Federal Parliament
(Bundestag)
22
The German Legal Institutions (III)
The Federal Legislation (acc. Art. 70 – 82 GG)
Applicable
Statute
Signature and Promulgation
In case of formal faults
Formal review
Federal President
Federal Parliament
Bundestag
Approval of absolute
majority
Approval needed in
stated cases only
Federal Council
Bundesrat
Bill
(Gesetzesentwurf)
Introduction of a bill
At least 5 % of the
Federal Parliament
(Bundestag)
Federal Government
(Bundesregierung)
Absolute majority
of the
Federal Council (Bundesrat)
23
The German Legal Institutions (IV)
The Federal Legislative
Federal Council
(Bundesrat)
Federal Parliament
(Bundestag)
Representatives are sent
Government
A
Government
B
Government
C
State
Parliament
A
State
Parliament
B
State
Parliament
C
Election
Election
All citizens of the federal state
Citizens of state
(Land) A
Citizens of state
(Land) B
Citizens of state
(Land) C
24
The German Legal Institutions (V)
The Federal Executive
Federal Parliament
(Bundestag)
Election
Federal Chancellor
(Bundeskanzler)
Proposal to the Federal President who appoints and releases the Ministers
Federal Minister
(Bundesminister)
A
Federal Administration
A
Federal Minister
(Bundesminister)
B
Federal Administration
B
Federal Minister
(Bundesminister)
C
Federal Administration
C
Federal Minister
(Bundesminister)
D
Federal Administration
D
25
The German Judiciary (I)
Principles in the ordering of the court system

Specialization

Different hierarchies of courts with their own specific jurisdiction have been established:

Courts of ordinary or regular jurisdiction

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Civil matters
Criminal matters
Administrative courts
Labour courts
Social courts
Revenue or financial courts
The Bundesverfassungsgericht and the states´ constitutional courts neither represent any hierarchy nor are part of any
Decentralization

Division between federal and state courts acc. to Art. 92 GG, which states that judicial power is exercised only by judiciary of the
Bundesverfassungsgericht, the federal courts and the courts of the states

Acc. to Art. 95 GG at the head of each of the five named judicial branches, the Federation is responsible for the highest courts, the federal
courts of last instance:

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
Federal
Federal
Federal
Federal
Federal
Court of Justice (Bundesgerichtshof)
Administrative Court (Bundesverwaltungsgericht)
Labour Court (Bundesarbeitsgericht)
Social Court (Bundessozialgericht)
Tax Court (Bundesfinanzhof)
The states´ courts conform to the same court structure
26
The German Judiciary (II)
Constitutional Courts

Federal Constitutional Court (Bundesverfassungsgericht)




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State institution, which is independent from other state organs and other courts (whereas the decisons are
binding on all lower courts and government agencies)
Consists of two senates of eight judges which have different jurisdictions
Decisions are basically made on basis of simple majority (two-thirds majority e.g. required to forbid a
political party)
„ Guard of the Grundgesetz“, i.e.:

Jurisdiction over all disputes concerning the authority and obligations of the various constitutional bodies arising under the
Basic Law, the disputes between Federation and states and between states themselves

Can review the legislation of the federation and the states and can overrule legislation if found to be unconstitutional (yield
that it is not entitled to conduct any alterations of the reviewed bill)

Upholds and protects basic rights and can hear directly complaints of individuals

Only state organ that can declare political parties unconstitutional (only on basis of two-thirds majority)

Control jurisdiction over questions decided by states´ constitutional courts
States´ constitutional courts
27
The German Judiciary (III)
Hierarchy of the ordinary jurisdiction
Federal Court of Justice
(Bundesgerichtshof)
Federal Court
Appeal
Higher Regional Courts
(Oberlandesgericht)
District Courts
(Landgericht)
States courts
Local Courts
(Amtsgericht)
28
The German Judiciary (IV)
Hierarchy of the administrative courts
Federal Administrative Court
(Bundesverwaltungsgericht)
Higher Administrative District Court
(Oberverwaltungsgericht)
Appeal
Federal Court
States courts
Administrative Court
(Verwaltungsgericht)
29
The German Judiciary (V)
Hierarchy of the labour, social and fiscal courts
Federal Labour Court
(Bundesarbeitsgericht)
Federal Social Court
(Bundessozialgericht)
Federal Fiscal Court
(Bundesfinanzhof)
Federal Courts
Appeal
States courts
Labour Court of Appeal
(Landesarbeitsgericht)
Social Court of Appeal
(Landessozialgericht)
Labour Court
(Arbeitsgericht)
Social Court
(Sozialgericht)
Tax Court
(Finanzgericht)
30