It is amazing how diverse the world we live in really is. Everything has so many variations and quirks that it is almost unbelievable that it works together as a whole. One complex system that keeps society together is the legal system. Yet, even the legal systems all over the world vary immensely. In this short essay I would like to highlight some major points of divergence between the German and the US legal systems.
In the United States we use the common law system, which originated in England and is customary in Anglo-Saxon countries. It is based on precedent – legal principles derived from previous legal cases. There is no codified law. We have judges and juries who interpret the case at hand and base their decision on similar previous cases and on the case as presented by the lawyers. The decision either falls in line with analogous past judgments or itself sets a precedent.
In contrast, Germans use civil law. It originated in the Roman Empire and is based on a code – a collection of laws – which is developed by legislators. An interesting fact is that civil law is much more common around the world than common law, as can be seen from the picture.
A major point of divergence is the role of the jury. In the US, we have the right to be judged by a jury of our peers. The jurors take the backseat while the lawyers develop the case with the mediation of the judge. The jury observes the trial, processes the information and passes judgment on the guilt or innocence of the defendant. “There is no such thing as a jury trial in Germany” (HowToGermany.com, 2011). Usually there is just the judge presiding. Only in very severe cases a couple of jurors may sit in conjunction with judges.
Furthermore, German judges are limited to interpreting the law and cannot really add much to it unlike US judges whose pronouncements can set precedents and thus become part of the legal body of knowledge. This makes the German law system more rigid than ours. Written laws are difficult to change and require involvement of large parts of the legislative branch. I consider this a disadvantage of the German system, although some may argue that rules “set in stone” are better than rules that are easy to change.
Another sharp contrast in relation to this is in the decision-making process. Since the laws in Germany are codified and the judges are only interpreting these laws, the process is deductive – from the law to the specific case. This top-down approach is the opposite of what we have here. Our system has an inductive, bottom-up approach, which goes from the specific case to the general principle – principles are derived based on prior decisions. This is, of course, due to the fact that there is no codified law, but rather a collection of legal precedents.
A very interesting observation I came across on the website of Axel Boldt is that:
Only about 4 percent of criminal cases reach a jury trial in the US: most cases are resolved during "plea bargaining" between defense and prosecution, where the prosecutor threatens with harsh sentences in order to get the defendant to plead guilty to a lesser crime. The outcomes of jury trials are considered to be volatile and are avoided by both parties if possible.
The idea behind plea bargaining is to get the most information from the defendant that would hopefully lead to the prosecution of more criminals. It is an incentive of sorts that offers lenience in exchange for cooperation and I believe it has served the US system very well through the years. Germans, it seems, have a negative perception of this type of bargaining and see the outcomes as “dirty deals,” in the words of the author, who, by the way, is German. Eventually, Germany stopped using this measure on the grounds that defendants should be treated equally and those that don’t have important information should not be judged more harshly than those that do. I agree with the author that, in this sense, Americans are more pragmatic.
Yet another peculiarity of the German law system is that even when the defendant pleads guilty, there would be a full-blown trial. Mr. Boldt clarifies that in German law “a confession counts only as one piece of evidence during trial; the case still has to be proven.” At first, I considered this a waste of time and resources. However, upon further reflection, having a trial even when the defendant confesses makes sense, because he might have confessed under duress or might purposefully be covering the real perpetrator. Thus, it is in the interest of truth to have trials even in these cases, even though it will put more strain on courts.
In summary, I covered the following differences between the German and the US law systems: they are based on different traditions; they originated in different countries; juries are not used in the German system; the respective bodies of laws, or precedents in the case of the US, are formed in different ways; decisions are reached through different processes; in Germany they don’t use the plea bargaining method and they have trials even when the defendant confesses. Despite their dissimilarities, both systems are used successfully and serve their citizens well. I don’t think either the USA or Germany has any serious problems serving justice. They just have different approaches. As the saying goes: “There is more than one way to skin a cat.”
Boldt, Axel. A subjective comparison of Germany and the United States. Uni-Padeborn.de, 1 Dec. 2010. Web. 2 Nov. 2011.
"civil law." Encyclopædia Britannica. Encyclopædia Britannica Online. Encyclopædia Britannica Inc., 2011. Web. 29 Oct. 2011.
“German Law and the German Legal System.” HowToGermany.com. Chuck Emerson Media Services. Web. 2 Nov. 2011.
Javitomad. Legal Systems of the World Map. 29 Oct. 2011.