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| The systems of law in England and Germany
The systems of law in England and Germany
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.[1] Certain
written laws were sometimes issued by the king with the help of his bishops,
perhaps for the general guidance of all
courts.[2] 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.[3]
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 17th century on the division between
advocate and attorney became
rigid.[6] 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.[7] 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[11] 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.[12]
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
~~
benotet wurde es mit : upper second class, was etwa 1,7 oder
2,0 entspricht
[1] Trevelyan, G.M., History of England,
Longman, London 1973, P.99
[2] Trevelyan, G.M., London 1973, P.
99
[3] Trevelyan, G.M.,London 1973, P.
100
[4] Trevelyan, G.M.,London, 1973, P.100
[5] Trevelyan, G.M., London 1972,
P.111
[6] The New Encyclopaedia Britannica,
15 th Edition, 1986, The New Encyclopaedia Britannica Inc.,
P.860
[7] The New Encyclopaedia Britannica,
15 th Editon, 1986, P.
[8] The New Encyclopaedia Britannica,
15 th Edition, 1986, P. 19?
[9] The New Encyclopaedia Britannica,
15 th Edition, 1986, P. 115
[10] Bertelsmann Universal Lexikon, Band
4, Bertelsmann Lexikon Verlag, Gütersloh 1993, P. 228
[11] The New Encyclopaedia Britannica,
15 th Edition, 1986, P. 481
[12] The New Encyclopaedia Britannica,
15 th Edition, 1986, P.115
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