Exploring the German legal culture

Held March 4th 2019

By Prof. Dr. jur. Sören Koch, PhD Bergen
Outline of the lecture
• Is there one German legal culture and if so what defines its
boundaries?
• Insight into the German legal system and its institutions
• But, also learn about the specific way Germans understand and
apply the law
• You will understand why the intellectual preconditions for the
German legal culture are decisive for the contemporary shape
and structure of the German legal system.
What constitutes the German legal culture?
Discuss the following question in your groups :
Why is it problematic to speak about one German Legal Culture
taking in account:
- Geography
- History
- The federal structure of Germany
- The impact of the European Union
Why is it still possible to maintain there is a German legal Culture?
Two central feature of the German legal
culture:

• The idea of law as a coherent system of

norms, contributing to an ideal of justice that
focuses on outcome-predictability
• As a result, one can observe an exceptionally
strong focus on legal science, its logic,
purpose and methods in the German legal
culture.
Conflict resolution
Conflict resolution in Norway:
• Norway – one court hierarchy with one Supreme Court on top
based on courts with general competences in all fields of law –
requires a general education of lawyers and a universally
applicable approach to legal method.
=> Low degree of specialisation – focus on legal unity though
case-law due to fragmented legislation
• No constitutional court. Constitutional review part of the task of
ordinary courts
The Norwegian Court-system
ECHR ECJ

The
Supreme
Court

The second level courts

(Lagmannsretten)

General competence except facts in

land dispute cases

The first level courts (tingretten)

General competence to deal with alle cases (civil, criminal,

administraive and constitutional cases) except labour and land
dispute cases. Also deals with appeals from adminsitrative
dispute organs
Conflict resolution
Comparing the court structure of Norway and Germany – why
does the German court system suit to a lesser extent to provide for
binding precedents than the Norwegian counterpart?
 Conflict resolution

An overview over the main institutions

– 5 court hierarchies with first and second level courts on the state-level and
supreme courts on the federal level:
• Civil and Criminal law – including commercial law
• Finance
• Labour
• Social
• Administrative
Þ A high degree of specialisation on all fields of law and further
specialisation inside the courts on all levels (Senates, Chambers
and Divisions)
 Conflict resolution - some
questions

Specialisation is regarded a safeguard of legal

certainty and legal unity. Why may specialisation
nevertheless contribute to the opposite outcome?

What kind of counter- measures one can find in the

German Court System to prevent such an outcome?
 Conflict resolution
The role of the Constitutional Courts
They are no courts of appeal – but their
competence is limited to constitutional review.

– Why is the FCC nevertheless very important today?

– Constitutional courts have been recently introduced to

the German legal Culture – when were they
established and why?

– What was the role-model for the Federal

Constitutional Court – and where do we still find
traces of the foreign impact when comparing the
FCC’s rulings to other Supreme Courts rulings?
Conclusion
In Germany legal conflicts are resolved by a highly professional and specialized
judiciary. Especially important 5 hierarchical structures of the courts with manifesting a
functional separation between different fields of law.
We have a distinction between state and federal courts,
and constitutional courts on both state and federal level.
We have seen that the complex interrelation of the courts, the hierarchical order
and the constitutional review are important preconditions for both the courts’
methodological approach, the role of case law as an element of legal method, the
leading idea of justice and the expectation towards the degree of specialization by the
different actors in the legal system.