Referat The systems of law in England and Germany - English law

The systems of law in England and Germany

English law

The history of the English law did not go in one straight line, just as much as England was invaded over the centuries, the system of law received many changes.

The Common Law as it is known today was built up in Plantagenet times by the professional lawyers of the kings courts, but in Anglo - Saxon times there was no such body of men and no body of case law for the whole nation. Certain written laws were sometimes issued by the king with the help of his bishops, perhaps for the general guidance of all courts. But it is sure, that all the courts had own laws which developed in their region based on the local custom as well.

After the Danes had invaded England law received changes again, the word law itself is Danish; the Scandinavians had no professional lawyers, but many of their farmer - warriors were learned in folk custom and its practical procedure.

The Danes maybe made the ground for a jury system in England as they introduced the habit of making committees  among the freeman in the court.

The concept of justice in the Anglo - Danish period consists out of of three different concepts first the old idea, common to Saxon and Scandinavian was the compensation for a crime, to be paid to the injured party or his family to prevent a feud, the new doctrine of the church that crimes also had the aspect of sin or moral wrong.

And thirdly the special Scandinavian view that certain acts were dishonourable, to be punished as unworthy to the free warrior.[4]

From King Alfred on we find special penalties and a special procedure for the crime of treason to the king or to a man's lord.

In the communal courts of Shire and Hundred the law of the district was administered by the freeman suitors of the court as judges, presided over by the Ealdorman. There was yet no common law of all England, no courts, no judges[5] as we know it today.

In the years after the Norman Conquest England was influenced by the Roman Law as well, as the time went by, the native, common law was developed not longer by the communal courts, instead the Inns of Court in London men acquired admission to practice before royal courts. This system faced many changes, and from the 17^th century on the division between advocate and attorney became rigid. The common law was preferred to statute law and its system of application by locally appointed part-time magistrates or justices of the peace, locally chosen juries and travelling judges.

The Anglo - Saxon system was retained but formalised; for example by the recording of case law to provide uniform precedents. In modern times there has been a greater reliance upon the statue law contained in about 3000 acts of parliament; but there are over 300 000 recorded cases to turn for precedent. Other aspects of the English law are the fundamental assumption that an accused person is deemed innocent until proved guilty and the independence of the judiciary from intervention by crown or government in the judicial process.

Today Judges in the United Kingdom are irremovable and appointed, the courts alone declare the law, but any act of parliament is accepted by the courts as part of the law; no court can declare a statute invalid. An accused person is presumed to be innocent until proved guilty; about 90 percent of criminal cases are tried and determined by justices of the peace, who act as unpaid magistrates, or in towns and some other places by stipendiary magistrates who are trained lawyers. Magistrates court s sit in about 700 places in England and Wales the remaining 10 percent of more serious crimes also come in the first place before a magistrate court, there the criminal is committed after the trial by the jury and a judge.

The majority of civil actions are tried in local county courts before paid judges their jurisdiction is limited by the nature of action and by the amount of money at stake. In 1971 the higher courts were reorganised, the Supreme court of Judicature now consist of the Appeal court, the High court of justice with civil jurisdiction, and the crown court for criminal work above the level handled by the magistrates´s courts. The High court hears the most important and difficult criminal and civil cases; criminal cases of less importance are tried by the crown court.

Appeals in civil and criminal matters lie from the High court to the appeal court. This court can give leave, in cases of great legal importance, for a final appeal to the judges in the House of lords.[8]

Justice in Germany

Due to the different History, the system of justice differs from the one in England; judges play a more prominent and active role in all stages of legal proceedings, but this is usual for a civil - law country.

Proceedings in Germany courts tend to be less controlled by prosecutors and defence attorneys. There is less emphasis on formal rules of evidence, which, in the common law countries, is largely a by - product of the jury system, and more stress on letting all the facts speak foe what they may be worth in the individual case.[9]

In Germany the system of law is based partly on the old "Volksrecht" of the tribes, but during the times the roman law was overtaken and it modified the system of law.[10]

As England is called a common - law country, German has to be called a civil - law country ; the civil law is orientated on the roman law. Theoretically al judicial decisions are based on legislative enactment's, and the doctrine of judicial predescent does not apply. But this works a bit different in practice, the legislative codes cover almost every aspect of human conduct and supply answers for all problems, in fact many of the provisions are vague or maybe do not fit to the special situation of a cases, so these gaps in the legislative schemes are filled by judicial decisions; but these decisions are not considered binding and this is one of the major differences to the system of law in England.

Several elements which are common in common - law countries are missing in Germany, but even if some people from these countries find the lack of certain elements of the adversarial process, particularly in criminal trials, difficult to reconcile with their notion of fairness.

While the codes and statutes are viewed as the primary source of law in Germany, the role of precedent is of great importance in the interpretation of legal rules. Administrative law, for example is case law in the same sense that there exists no codification of the principles relied upon in the process of reviewing administrative action. These principles are mostly judge - made law. This system of judicial review of administrative actions are an implementation of the rule of law; in this context the emphasis is on the availability of judicial remedies.

References

Bertelsmann Universallexikon, Bertelsmann Lexikon Verlag, Gütersloh 1993/4

Planitz, Hand, Deutsche Rechtsgeschichte, Böhlau Verlag, Köln/Wien, 1981

The New Encyclopaedia Britannica, Encyclopaedia Britannica Inc, 1986

Trevelyan, G.M., History of England -New illustrated edition, Longman, London 1973