Foundations of the German legal system: history, sources, the Basic Law, the Civil Code, the hierarchy of norms and the rule of law

In the later Middle Ages the Holy Roman Empire had no unified law: local customs and Germanic law books, such as the *Sachsenspiegel* (about 1230), governed daily life. From the fifteenth century, universities and courts began to receive Roman law (the *Corpus Juris Civilis*), a process called the *Rezeption*, because it was a learned, systematic law that trained jurists could apply. Over the centuries a mixture of Roman and local law developed, called the *usus modernus Pandectarum*. In the eighteenth century, rulers issued codes under the influence of natural law: the Prussian *Allgemeines Landrecht* (1794) and the Austrian ABGB (1811); the French Civil Code applied in the Rhineland until 1900.

In 1814, the question of a single German code was debated between Thibaut, who wanted a code at once to unify Germany, and Savigny, who argued in *The Vocation of Our Age* that the time was not ripe: law grows out of the spirit of the people and should first be studied by science. Savigny’s Historical School led to the Pandectist science of the nineteenth century, which refined the Roman sources into a system of general concepts. After political unification in 1871, two commissions drafted the code over twenty years, and the BGB came into force on 1 January 1900. It has remained the basis of private law, with many amendments.

The Basic Law was drafted in 1948–49 as a provisional constitution for the western zones, and it became the constitution of the whole country with reunification in 1990. It was written in reaction to the failure of the Weimar Republic and to the Nazi regime, and several of its features respond to that experience: Article 1 declares that human dignity is inviolable and binds all state authority; Article 20 defines the basic principles: Germany is a democratic, social and federal state, state authority comes from the people and is separated among legislative, executive and judicial organs, the legislature is bound by the constitutional order and the executive and the judiciary by statute and law, and all Germans have a right of resistance against anyone who seeks to abolish that order. Article 79(3) is the eternity clause: no amendment may touch the division of the Federation into Länder, the participation of the Länder in legislation, or the principles of Articles 1 and 20. Ordinary amendments need a two-thirds majority in both the Bundestag and the Bundesrat (Article 79(2)). The Basic Law also provides for a militant democracy (*streitbare Demokratie*): political parties that seek to undermine the free democratic order may be banned by the Constitutional Court (Article 21), and a person who abuses fundamental rights to fight that order may forfeit them (Article 18).

Treaties. Under Article 59(2), a treaty that affects political relations or legislation takes effect in German law through a statute of assent, and has the rank of an ordinary federal statute. This includes the European Convention on Human Rights, which is not above statutes, but which courts must take into account when interpreting German law, including the case law of the Strasbourg Court (*Görgülü*, 2004). The general rules of international law have a higher rank: they take precedence over statutes and create rights directly for the inhabitants (Article 25). European Union law: Article 23 allows Germany to transfer sovereign powers to the Union. EU law takes priority in application over national law, but the Federal Constitutional Court has reserved the right to review whether EU acts exceed the powers conferred (ultra vires review) and whether they breach the constitutional identity protected by Article 79(3), in a line of decisions from *Solange I* (1974) and *Solange II* (1986) to *Maastricht* (1993), *Lisbon* (2009) and later cases.

The Rechtsstaat. Article 20(3) binds the executive and the judiciary to statute and law (*Gesetz und Recht*). The principle includes the primacy of statute (*Vorrang des Gesetzes*): an administrative act must not contradict a statute, and the reservation of statute (*Vorbehalt des Gesetzes*): interference with freedom and property requires a statutory basis, and, under the essentiality theory (*Wesentlichkeitstheorie*), the legislator itself must decide the essential questions, especially those that affect fundamental rights. Legal certainty requires that law be clear and precise (*Bestimmtheitsgebot*) and protects legitimate expectations (*Vertrauensschutz*): a statute that attaches new legal consequences to events already completed (*echte Rückwirkung*) is in principle forbidden, while statutes that affect continuing situations for the future (*unechte Rückwirkung*) are permitted if the interest in the change outweighs the expectation. Article 19(4) guarantees effective judicial protection against any act of public authority. Article 103 protects the right to a hearing in court and forbids punishment except under a law that existed before the act, and a second prosecution for the same offence.

Proportionality (*Verhältnismäßigkeit*) is the most important method of the German public law. A measure that interferes with a fundamental right is lawful only if it pursues a legitimate aim, is suitable to achieve it, is necessary (no less intrusive means would be equally effective) and is appropriate or proportionate in the narrow sense (*Angemessenheit*): the burden on the individual must not be out of proportion to the benefit. The test governs administrative and constitutional law throughout (Modules 2 and 4).