Keith Mack
German laws differ from US laws in several ways. Germany's criminal legal system is inquisitorial, with judges having more control over trials and taking on the role of questioning witnesses and interrogating suspects. In the US, judges act more like referees, and the fact-finder, either a jury or judge, decides between the two versions presented by each party. German employment law requires companies to provide workers with a written summary of their employment relationship, unlike in the US where employment contracts are not mandatory. German labor laws also differ in that they do not recognize at-will employment and protect both employees and employers. German marriage laws require a couple to be separated for at least one year before filing for divorce, or three years if the divorce is contested.
| Characteristics | Values |
|---|---|
| German legal system | Civil law system |
| US legal system | Accusatorial system |
| German criminal legal system | Inquisitorial system |
| German law | Based on the principles laid out by the Basic Law for the Federal Republic of Germany |
| US law | Based on the Constitution |
| Changes in German Basic Law | A new clause replaces a previous formulation |
| Changes in the US Constitution | Amendments are attached and numbered without altering the original text |
| German law | No trial by jury |
| US law | Trial by jury |
| German law | No pleas |
| US law | Pleas |
| German law | Minors under 14 cannot be held liable for crimes in court |
| US law | No similar provision for minors |
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What You'll Learn
Germany's Basic Law vs. the US Constitution
Germany's Basic Law and the US Constitution are both important documents that outline the fundamental rights and principles of their respective nations. However, there are several key differences between the two documents and the ways in which they have been interpreted and amended over time.
One notable difference lies in the frequency of amendments. The US Constitution has been changed relatively infrequently, with only 27 amendments in over 200 years. In contrast, Germany's Basic Law has been amended numerous times, with over 50 changes made since its inception in 1949. This is partly due to the fact that the Basic Law was designed as a provisional constitution, pending the reunification of Germany, which occurred in 1990. The Basic Law has since been retained as the definitive constitution of reunified Germany and continues to be amended in response to shifting political and economic developments.
Another difference lies in the interpretation of the documents. The US Constitution has been treated as a sacred text, with amendments being made carefully and infrequently. In contrast, Germans have not treated their Basic Law as untouchable, continuously rewriting it to adapt to changing circumstances. This flexibility has allowed Germany to address various challenges, such as terrorist threats, waves of refugees, global pandemics, and environmental concerns.
The Basic Law and the US Constitution also differ in their approaches to power distribution. The US Constitution, with its intricate amendment process, has faced criticism for its structural problems regarding the separation of powers. On the other hand, Germany's Basic Law establishes a strong chancellor, strong federal representation, a strong Federal Constitutional Court, and a weak federal president. This distribution of powers aims to prevent the concentration of authority and protect against the recurrence of dictatorship, as addressed in Article 1 of the Basic Law, which states that "human dignity is inviolable."
Additionally, the Basic Law and the US Constitution differ in their approaches to emergency powers. The US Constitution does not explicitly outline emergency powers, while the Basic Law was amended in 1968 to address national emergencies. This amendment was controversial but highlighted the express definition of executive powers in the Basic Law, providing a clear framework for managing crises.
In conclusion, while both Germany's Basic Law and the US Constitution serve as foundational documents for their nations, they differ significantly in their approaches to amendment frequency, interpretation, power distribution, and emergency powers. These differences reflect the unique historical and political contexts in which each document was created and evolved.
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Germany's inquisitorial system vs. the US accusatorial system
Germany's inquisitorial system and the US accusatorial system are two distinct legal frameworks with different approaches to justice. The inquisitorial system, used in Germany, is characterised by the active involvement of the judge in investigating the facts of the case and gathering evidence. The judge takes on the role of an investigator, questioning witnesses, and even ordering arrests. The system is based on the idea that the court, rather than the parties involved, should be responsible for discovering the truth. In Germany, the prosecution also participates in the investigation.
On the other hand, the accusatorial system, commonly used in common-law countries like the United States, is a legal framework where the judge remains a neutral party and does not actively investigate the case. Instead, the prosecution and defence present their respective cases, and the court acts as an impartial referee between the two sides. The burden of proof lies with the prosecution, and the defence has the right to cross-examine witnesses and present their own evidence. Plea bargaining is a common practice in the US accusatorial system, where the defendant may plead "guilty" or "no contest" in exchange for a reduced sentence.
The inquisitorial system in Germany has a different trial process compared to the adversarial model of the US. In Germany, the process begins with a pre-trial investigation led by an investigating judge or magistrate, who assesses the material presented by the police and consults with the prosecutor. The accused is not required to speak during this stage, but if they do, they are not put under oath. The entire dossier of the pre-trial proceedings is made available to the defence. During the trial, the judge assumes a direct role, examining witnesses and questioning the accused. The decision in a criminal trial is made by a collective vote of professional judges and a small group of lay assessors.
In contrast, the US accusatorial system follows an adversarial principle that a person cannot be tried until formally accused. During the trial, the prosecution and defence present their cases, including evidence and arguments, to the judge or jury, who are impartial decision-makers. The defendant in a criminal trial is not required to testify and is presumed innocent until proven guilty. The role of the judge is primarily to ensure a fair hearing for both sides, and they do not actively gather evidence or question witnesses.
The fundamental difference between the two systems lies in the role of the judge and the approach to truth-seeking. The German inquisitorial system empowers the judge to take charge of the investigation and gather evidence, while the US accusatorial system positions the judge as a neutral referee, ensuring a fair trial for both sides. The inquisitorial system prioritises the search for truth, while the accusatorial system emphasises the rights of the accused and the competition between the prosecution and defence.
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Juvenile courts in Germany
Germany’s criminal legal system is inquisitorial rather than accusatorial, as in the US. German judges are allowed much more leeway to control aspects of a trial, and advocates assist the judge, whose role is considered secondary. In the US, the judge is more of a referee, ensuring a fair playing field, and the fact-finder (the jury or judge) decides between the two versions.
The German system emphasizes therapy and eschews the retributive impulse that has defined American justice. For example, Neustrelitz Prison, a juvenile facility in Germany, houses young men and women who have committed serious, often violent, crimes. However, the prison offers animal therapy, with horses for prisoners to ride and rabbits that have won national competitions.
In the US, the word “juvenile” usually refers to those under 18. However, in Germany, the definition of juvenile is different, and Neustrelitz Prison's inmates are almost all between 19 and 25.
Germany's Basic Law has been described as a hybrid between a constitutional and a legal code, and it has been amended to a greater degree than the US Constitution. Germany's Basic Law has been described as a "model for democratic constitutions" by Donald Kommers, a Professor of Law at the University of Notre Dame Law School in Indiana, USA.
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Germany's civil law system
Germany's legal system is a civil law system founded on the principles laid out by the Basic Law for the Federal Republic of Germany. The Basic Law has been described as a hybrid between a constitutional and a legal code, regulating many more details than the US Constitution. It is composed of public law, which regulates relations between a citizen/private person and the state, and private law, which regulates relations between two people or companies.
The German civil law system is more driven by formal rules than common law systems, such as English law, where arguments can be made on the basis of common sense. German law is based on a comprehensive compendium of statutes, with the most important source of law being the German Civil Code (Bürgerliches Gesetzbuch, or BGB) of 1896. The civil code is divided into five books: the general part, obligations, property, family, and inheritance.
German law has been influenced by Roman law, such as the Justinian Code and the Corpus Juris Civilis, and to a lesser extent, the Napoleonic Code. It has also been influenced by the legal traditions and religions of the countless minor territorial entities that once comprised the Holy Roman Empire. These laws were codified in about 3,000 local Weistümer, or collections of rural laws.
Germany's procedural system is based on a highly active role for judges, who take evidence themselves, with assistance from the parties or their lawyers. In court, both parties have the same rights and duties, and each side must present facts and evidence for their version of the case without the help of the judge, who then makes an independent judgement. In criminal and administrative law, Germany uses an inquisitorial system, where judges are actively involved in investigating the facts of the case, as opposed to an adversarial system, where the judge acts as an impartial referee.
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European laws' influence on German law
German law has been influenced by a variety of legal traditions over the centuries, including Roman law and Napoleonic Code. The country's modern legal system is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, which includes the commitment to establishing a united Europe. This has resulted in Germany surrendering some of its sovereignty in certain policy areas to the EU, with the Federal Government deciding on matters that were previously assigned to the Länder (federal states).
European law has had a significant influence on German law, with the aim of harmonizing the laws of the various states within the European Union. This has resulted in legal developments being decided in Brussels, where Germany has its own influence on the process alongside other member states. Germany is subject to the directives and regulations adopted by the EU, which are binding and must be immediately applied. These include the protection of human rights and fundamental freedoms, as outlined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Vienna Convention on Consular Protections, which affords international protection to foreign citizens detained in another country.
The Basic Law for the Federal Republic of Germany outlines the commitment to a united Europe, stating that Germany "shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law and to the principle of subsidiarity and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law." The Bundestag and the Bundesrat have the right to challenge a legislative act of the European Union if it infringes on the principle of subsidiarity.
While the influence of European law has impacted Germany's legal system, German law still strongly reflects the country's federal structure, with individual states (Länder) retaining their own responsibilities and particular laws. This allows for regional variation and promotes meaningful regional democratic representation.
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Frequently asked questions
Yes, there are quite a few cultural differences between the two countries. For example, Americans tend to be louder in public spaces than Germans, who generally only speak loudly when necessary. Older people in Germany also tend to dress more conservatively than those in the US.
Yes, in Germany, it is illegal to address a police officer without using the formal "Sie" form.
Yes, Germany uses the Euro currency, which uses coins for the €1 and €2 denominations. In the US, change is often unused, whereas in Germany and the rest of Europe, coins are used frequently.
The US legal system uses juries, whereas Germany does not. The German system is led by judges who take an active role in the process, narrowing issues in dispute from the beginning.
Yes, the US uses a winner-takes-all or majority system, meaning that the candidate with the most votes wins. Germany, on the other hand, uses a mixed system of proportional and majority voting to ensure that the proportion of parliamentary seats a party receives is the same as the proportion of voters favouring that party.
