The German Constitution (a brief introduction) - more lessons from a different month in Germany

Having only observed the German legal system when Mrs Merkel has rung a British Prime Minister asking him to stand and deliver for Northern Ireland, I was something of a novice on the subject. What I have learned from my short time here so far, such a perspective is only a narrow window into what is a dynamic system. I felt, therefore, it would be useful to those maybe considering Germany as an option for studying to have a crash course in what the German constitution is and how it works. The fundamentals of this area are, on the face of it, very well organised and thought out. However, upon closer inspection, you will find artefacts from the Romans and bits of Napoleon, as well as post war western democratic influence. What follows is a discussion of constitutional origins of a legal system, partially in a language I don’t fully understand. However, do try and stick with it as German sources of law genuinely throw up some interesting quirks through the veritable mush of 6-8 syllable words and drizzle of Latin. 

It seems most appropriate to begin with the mass of books the Germans love to call a constitution. I’m sure you’re of civil law countries obsession with writing everything on one place, given its origin in Roman Law it’s no surprise that the Bürgerliches Gesetzbuch (German Civil Code) is a vast composition of all of the most fundamental Laws to the German way of living. It is fittingly divided into five books, each individually enormous and containing all of the laws required for a German to uphold their rights, from Basic Law, though obligations, property, family and the law of succession. 

Those of you from a more sporadic, Common Law jurisdiction may at this point be asking, what function does this system perform over my system? The major justification for the civil law system is that it lacks micro systemic law, meaning simply that it unifies the law of a jurisdiction which allows for more efficient access to law. You must admit, simply knowing that everything you are likely to ever need is five thick books is comforting, it’s a wonder encyclopaedias haven’t been more successful.

The internals of each book are extremely detailed running into the thousands of statutes. Consequently, there is simply not the time or space on this blog to give you an analysis of the whole collection, though do spare a thought for me in my exam next week desperately flicking through these wafer-thin pages.

You may now be questioning the onerous mention of Napoleon. With his conquering of much of Europe during his reign, he left much of his countries procedural law behind.This includes the civil marriage code. Initially this was a measure to prevent the institution of marriage falling apart with ‘mariage religieux’ being the accepted norm in France. It has since developed in both France and Germany into now being a contract which may only be entered into with the consent of both parties (§1310 German Civil Code). What this showed me while researching this is that German law has often developed in parallel to that of France, likely due to this historical influence.

However, a more significant development of German law in my view, is that which happened in the late 1940’s. Not coincidentally coinciding with the removal of one moustachioed dictator from the position of power in Germany, Western influence swamped the German legal system, moulding it to a more liberal based criterion. However, the structure of basic law was only meant to be a temporary framework, made easily malleable to change or formalisation as the country developed. Of course, this could have been seen as a bad as not long previous, Germany being allowed to mould its own way in the world resulted in the tragic loss of millions. Perhaps this is a reason why the country has stuck with basic law as a framework for tis constitution. Alternatively, it could just be because it is a very simple, fair and just collection of basic human rights. 

What studying the German constitution has taught me so far is the value of codification and the utilitarian simplicity of the German legal system as a whole. I would encourage anyone wishing to study within Germany to look into its fascinating principles. I shall continue to use these lessons from Germany to give you, the reader, some further insight into the German legal system as a whole, I hope you find these useful. Please do comment if you have any queries on what you’ve read here, see you in my next post!