1. Comparative Law Spring 2002 Professor Susanna Fischer CLASS 13 SOURCES OF GERMAN LAW FRENCH CONSTITUTIONAL LAW Feb. 8, 2002

2. Sources of Law: Hierarchy Top: EU Law (as long as ECJ ensures that basic rights are respected – Solange II) – See Art. 23, 24 Next: GG (see Art. 1, Art. 20) Next: General rules of international law (Art. 25) Next: Federal law - in descending order – (i) Gesetze (statute – Federal) (ii) Rechtsverordnungen (statutory instruments), (iii) Satzungen (byelaws/charters of public organs) – collectively: delegated legislation Next: Land law (Art. 31 GG) Customary Law (Gewohnheitsrecht) –vestigial after reception of Roman law. Some doubt about whether it has precedence over Gesetz. Hard to prove.

3. Wrap-Up The German Basic Law is notable for its emphasis on individual liberties. The Basic Rights in the German Constitution has some important differences from the U.S. Bill of Rights 1. Rights cannot be amended (at least not in their essence) 2. The rights support the free democratic state, so if an individual abuses the rights, they could be forfeited. 3. Different historical context: Basic Law is a 20 th century constitution arising out of the historical experience of totalitarianism

4. Wrap-Up Note: Art 20(4) GG, which states: “All Germans shall have the right to resist any person or persons seeking to abolish [the] constitutional order should no other remedy be possible.”

5. Sources of Law: Hierarchy Top: EU Law (as long as ECJ ensures that basic rights are respected – Solange II) – See Art. 23, 24 Next: GG (see Art. 1, Art. 20) Next: General rules of international law (Art. 25) Next: Federal law - in descending order – (i) Gesetze (statute – Federal) (ii) Rechtsverordnungen (statutory instruments), (iii) Satzungen (byelaws/charters of public organs) – collectively: delegated legislation Next: Land law (Art. 31 GG) Customary Law (Gewohnheitsrecht) –vestigial after reception of Roman law. Some doubt about whether it has precedence over Gesetz. Hard to prove.

6. Official Journals All forms of law must be published in an official journal before they take effect. For Gesetze, it is the Federal Law Gazette Bundesgesetzblatt For Land laws, there are similar collections, the names of which vary from Land to Land. There is a collection of both the laws of the Bund and Länder, the Sammelblatt (SaBl)

7. Sources of Law: Hierarchy Are the decisions of courts a formal source of law in the German legal system? If there is any difference in this regard between the German and American systems, what is the reason for the difference?

8. Sources of Law: Hierarchy Theory is that judges simply apply law and should not create it, so case law is not a source of law. This theory has resulted not only the reception of roman law and the 19 th century codification of German law but also from judicial abuses in the Third Reich. However, courts clearly play an important role in interpreting and developing the law. This role is increasing as the Codes get older and older. No rules of precedent in theory. Theory: judicial decisions just bind the parties to the case. An exception: decisions of Federal Constitutional Court have force of statute and bind all other courts as well as legislative and executive authorities. Also, a few areas of divergence from this theory in practice.

9. Statutory Interpretation How should a lawyer interpret an old code, such as the Civil Code?

10. Statutory Interpretation How should a lawyer interpret an old code, such as the Civil Code? Wertungsjurprudenz – take history into account in understanding a rule Methods of interpretation: literal, systematic, historical, and search for ‘ratio legis’