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The German Legal System

This paper explores the German legal system and discusses the ramifications of the dissolution of the East German organization THA, and the transfer of its assets to the West. (9 pages; 4 sources; MLA citation style)

Introduction

The German legal system is one of the oldest codified sets of laws in the world. I chose to examine it because of the nation’s troubled and bitter history; its division and subsequent reunification, and its rise to become one of the powerhouse economies of the globe. In short, German history is fascinating.

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In this paper, I examine the German legal system and argue that its structure directly influences its decisions.

In the first paragraph, I introduce Germany as it is today; subsequent paragraphs in the section entitled “History” trace the development of the German legal system over the centuries, particularly the fact that there is no jury trial in Germany. The section entitled “The Courts and Policymaking” considers some of the ramifications of the German legal system and the relationship between the courts and public policy, as illustrated by a scholarly paper by Mark Cassell entitled “Privatization and the Courts.“ The conclusion briefly recaps some of the main points of the paper.

History

Germany today is a nation of over 85 million people. It has a bicameral Parliament comprised of the Federal Assembly (Bundestag) and the Federal Council (Bundesrat); the chief of state is President Johannes Rau and the Head of Government is the Chancellor, Gerhard Schroeder. Both are elected by the votes of a Federal convention. The Parliament has 603 seats, and its members are elected by popular vote, in a system that combines both direct and proportional representation. Judges are elected by the Parliament; half by the Bundestag and half by the Bundesrat. (“Germany,” PG).

Early German history takes us to a world of unsettled, nomadic tribes; a loose collection of fierce warriors that seems to be an unlikely candidate to develop the kind of organization and power we associate with modern Germany. However, by about 500-888 AD, the “nation’s migration” ended. (Freckmann, p. 2). At the time, Germanic tribes had been gradually unified under the power of the König der Franken (Salic-Frank king)…” (Freckmann, p. 2). “During the Salic-Frank period … law produced by a legislator appeared. It was the first time that legal rules had been recorded and intentionally produced by the people.” (Freckmann, p. 3).

Thus the concept of law and its codification have been part of Germanic history for nearly 1,500 years, though of course it didn’t spring to life in 500 AD fully developed; it has changed, grown and evolved in the centuries since then. Let’s move ahead, then, to consider what the rise of National Socialism meant to German law; then jump again to consider the practice of law today.

There is one thing I learned that would appear to set the German justice system apart from others with which we’re familiar: there is no such thing as a jury trial. I found this statement: “…judicial power is entirely trusted to judges and is exercised by federal courts, courts of the Länder and Bundesverfassungsgericht (Federal constitutional court).” (Freckmann, p. 85). That led me to wonder if judges were the only ones hearing trials, and I found: “Like the Germanic Concilium and the English jury, Schwurgerichte (criminal chamber of courts0 had been set up consisting of judges and Geschworene (jurors). These … were later replaced by the Schöftengerichte (criminal courts with professional judges and lay assistants) in order to save expenses (“Ermmingersche Justizreform”) in 1924.” (Freckmann, p. 23)

There are no references anywhere to juries, jurors, voir dire, jury selection, etc., which leads to the conclusion that in Germany, all sentences are handed down by judges. This in turn has the potential to make the German judicial system vulnerable to influence, political pressure and corruption; indeed, corruption rose to its height under the Nazis, when German judges routinely found even the most heinous crimes legal. They often supported laws that had been passed specifically to bolster the ideology of the new regime; perhaps the most egregious of these were the Nuremberg Laws. The Nuremberg Laws were passed at the Nazi Party Congress in Nuremberg in 1935, and, among other things, made marriages between Jews and Germans illegal; sexual relations were also forbidden. Although the laws were passed to support the idea of the “purity” of German blood, many courts of the time upheld them. The idea of basing a law on racial discrimination is disgusting, and we have to wonder what might have happened if Germany had a jury system.

After the war, of course, Germany was divided into East and West, with the Grundgesetz der Bundesrepublik Deutschland (Constitution of the Federal Republic of Germany; i.e., West Germany) coming into force on March 23, 1949. The Constitution of East Germany (the country was known as Deutsche Demokratische Republik or GDR) came into existence on November 7, 1949, and was very different from that of the West. For example, “… the Sozialistische Einheitspartei Deutschlands (SED) [the Socialist Unity Party] governed the country, not the people of the DDR, and the property was nationalized. For four decades the GDR existed as a socialist state which was strongly influenced by the former Soviet Union.” (Freckmann, p. 27).

The reunification of the two nations took place on November 3, 1990, with the signing of the Einigungsvertrag (Treaty of Re-Unification) and the East joined the West under Article 23 of its Constitution. (Freckmann, p. 28). The Constitution of former West Germany is the one that is largely followed now, though apparently there were some amendments to the Constitution of East Germany that were adopted when the countries were reunited.

The Courts and Policymaking

The Cassell article discusses the ways in which court decisions allowed the transfer of the assets of one of the largest East German government agencies into private hands in the West. That is, the organization went from being state-owned to privatized.

I don’t believe Cassell is suggesting that any of the decision were illegal, but that the structure of the judicial system facilitated the transaction. What he is saying is that the courts involved in the process of decision making with regard to the assets of the agency (Treuhandanstalt, called “THA” ) interpreted the law in a narrow and specific way that probably could not have occurred elsewhere.

Cassell tells us that German judges do not make law; they function more as fact-finders than anything else. And yet in this case the administrative law courts were extremely active and “extraordinarily important.” (Cassell, p. 432).

The heart of this matter appears to lie in the way in which the courts defined THA. “Specifically, the agency’s legal status as defined and interpreted by the courts successfully circumvented a number of traditional forms of control that exist in both public and private organizations in Germany. … The following shows how the courts were crucial in ensuring that Germany adhered to a very narrow notion of privatization, despite a great deal of pressure from opposition leaders … and the East German public at large.” (Cassell, p. 432).

Cassell’s article is detailed and complex, but it seems to indicate that there were basically two sides in the discussion of the privatizing of these assets: the West German government of Helmut Kohl, which looked to a “business” model for the organization rather than a “government” one. The suggestion here was that it should be market-driven and controlled by a fairly small number of persons. (Cassell, p. 433).

On the other side of the question, not surprisingly, were people like the trade unionists, who felt that the organization should use its capital to help the reinvigoration of the East German economy as it began its transition into the West. Here the suggestion was that market was influenced by “societal actors” and should benefit everyone. (Cassell, p. 434).
The ultimate fate of THA was to become privatized and have its assets transferred to the West: the capitalist, free-market model. The victory of the capitalists over the socialists was fueled largely by the courts, which defined the company in such a way as to make it possible for the assets to flow out of the country.

“In sum … the THA evolved dramatically from an agency charged with administering East German assets in the interest of East Germans … to an agency with a set of mandates that included privatization, liquidation and reconstruction, placed squarely under the control of the Kohl government and Western business leaders.” (Cassell, p. 437).

The instrument of this dramatic evolution was the court and the way in which it passed laws to redefine THA so that its assets could be privatized and finally sent West.
Could anything have been done? Let’s look very briefly at the judicial review process. The German legal system is not only complex, it is extremely rigid, with each person knowing his place and certain procedures following others without fail.

Judicial review, as far as I could discover, seems to apply mainly to the constitutionality of the law. But suppose someone challenged the court on its decision about THA on those grounds?
The proceedings for a judicial review can be set in motion by anyone by filing an application, but the application has to show his Antragsbefugnis (legal ability to institute proceedings). This ability “requires that the application (a human being, legal entity or public authority) has suffered or soon expects to suffer a disadvantage under the legal source under appeal.” (Freckmann, p. 239).

It would seem, then, that a judicial review of the privatization of THA might well be brought by those East Germans who could show they would be harmed by losing the assets to a global marketplace rather than having them reinvested in East Germany and used for the good of the people. But even if such a request for review were brought, the court obviously ruled against it: THA was dissolved and the funds went to enrich Westerners, not to help the East Germans.

Conclusion

Germany is a fascinating study in jurisprudence. With one of the oldest legal systems in the world, it nevertheless succumbed to the perversion of the Nazis, and for over a decade, struggled to survive.

After the war, the nation was divided, and both East and West Germany adopted Constitutions; upon reunification, the West’s model prevailed.
Finally, we saw that in the East, a vast national organization was privatized and its assets transferred to the West, mostly because of the judicial decisions that accompanied the reorganization.

References

Cassell, Mark. “Privatization and the Courts: How Judicial Structures Shaped German Privatization.” Governance 14 (2001): 429-456.

Freckmann, Anne and Thomas Wegerich. The German Legal System. London: Sweet-Maxwell, 1999.

“Germany.” The CIA World Factbook [Web site]. 19 Mar 2003. Accessed: 28 May 2003. http://www.cia.gov/cia/publications/factbook/geos/gm.html

“Nazi Racial Legislation: The Nuremberg Laws.” [Web page]. Undated. Accessed: 28 May 2003. http://web.jjay.cuny.edu/~jobrien/reference/ob14.html

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