Newly Published: Miller on An Introduction to German Law and Legal Culture (Cambridge) @CambridgeUP

Newly published: 

Russell A. Miller, An Introduction to German Law and Legal Culture: Text and Materials (Cambridge University Press, 2024). Here from the publisher's website is a description of the book's contents. 

An Introduction to German Law and Legal Culture offers students, comparative law scholars, and practitioners an insightful and innovative survey of the German legal system. While recognizing the significant influence of the Civil Law tradition in the German legal culture, the book also considers other legal traditions – Common Law, Socialist Law, Islamic Law, Adversarial Law, European Law – that are woven into the varied and colorful fabric of the German legal culture. The book provides an informed yet accessible introduction to the foundations of German law as well as to the theory and doctrine of some of the most relevant fields of law: Private Law, Constitutional Law, Administrative Law, Criminal Law, Procedural Law, and European Law. It is an engaging and pluralistic portrayal of one of the world's most interesting, important, and frequently modelled legal systems.

More information about the book here.  

Habermas on the Making of the German Legal System: A New Book from Cambridge University Press

Rebekka Habermas, Georg-Augst-Universitaet, Goettingen, has published Thieves in Court: The Making of the German Legal System in the Nineteenth Century (Cambridge University Press, 2016) (Publications of the German Historical Institute). Here from the publisher's website is a description of the contents.

From the seemingly insignificant theft of some bread and a dozen apples in nineteenth century rural Germany, to the high courts and modern-day property laws, this English-language translation of Habermas' Diebe vor Gericht explores how everyday incidents of petty stealing and the ordinary people involved in these cases came to shape the current legal system. Habermas draws from an unusual cache of archival documents of theft cases, tracing the evolution and practice of the legal system of Germany through the nineteenth century. This close reading, relying on approaches of legal anthropology, challenges long-standing narratives of legal development, state building, and modern notions of the rule of law. Ideal for legal historians and scholars of modern German and nineteenth-century European history, this innovative volume steps outside the classic narratives of legal history and gives an insight into the interconnectedness of social, legal and criminal history.

Proposes a new understanding of legal systems providing readers an alternative to classic narratives of legal development, state building, and modern notions of the rule of law

Offers a transdisciplinary approach by combining legal, criminal, and media history, and history of knowledge

The focus on case-studies in nineteenth-century rural Germany gives an innovative insight into how ordinary people and events influence large scale legal structures

German Constitutionalism

Michaela Hailbronner, Institute for Comparative and International Law in Africa, is publishing Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, November 2015). Here is the abstract.

German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive conception of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in one of two ways: as a story of change in reaction to National Socialism, or as the continuation of an older nineteenth-century line of constitutional thought that emphasizes the function of constitutional law as a constraint on state power. But while both narratives account for some important features, their explanatory value is ultimately overrated. This book adopts a broader comparative perspective to understand the rise of the German Constitutional Court. It interprets the particular features of German constitutional jurisprudence and the Court's strength as a reconciliation of two different legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaska, building on Max Weber, as opposed to a more co-ordinate understanding of legal authority such as prevails in the United States, and secondly, the turn towards a transformative understanding of constitutionalism, as it is today most often associated with countries such as South Africa and India. Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German constitutionalism has harmonized the frequently conflicting demands of these two legal paradigms, resulting in a distinctive type of constitutional reasoning, at once open, pragmatic, formalist, and technical, which this book labels Value Formalism. Value Formalism, however, also comes with serious drawbacks, such as a lack of institutional self-reflection in the Court's jurisprudence and a closure of constitutional discourse to laymen, whom it excludes from the realm of legitimate interpreters.

Michael Kohlhaas and the German Legal System

Heike Jung, Saarland University, has published Michael Kohlhaas or the Germans and Their Law in the Oñati Socio-Legal Series, Vol. 4, No. 6, 2014. Here is the abstract. 

English Abstract: Asked to pick a single representative ‘German’ piece for a discourse on ‘Law and Literature’ one almost inevitably ends up with Kleist’s tale Michael Kohlhaas. It seems to be the literary incarnation of the German stance vis-à-vis the law. It is all about horses; it could just as well be about dogs. Kohlhaas fights a devastating battle, using legal means and outright violence, even warfare, for their recovery in good shape. Victorious eventually with his legal actions, he is happy to trade in his own life for this victory, thus giving an extreme example for the nice line between being in the right and pursuing this position with disproportionate rigour. Of course, the interpretations of Michael Kohlhaas (which, in its complete version, dates of 1810) have varied from epoch to epoch as well as from reader to reader. It is not possible to rehearse the bulk of ‘Kohlhaas literature’. In comparing legal cultures, it might be of interest to look into the question why such a somber story on the law forms part and will continue to form part of the German cultural heritage. Spanish Abstract: Si se tiene que elegir un único representante “alemán” para una ponencia sobre “derecho y literatura”, es inevitable optar por la obra de Kleist, Michael Kohlhaas. Parece la encarnación literaria de la posición alemana hacia el derecho. El libro trata de caballos; también podría tratar sobre perros. Kohlhaas libra una batalla devastadora usando medios legales y la violencia pura y dura, incluso la guerra, para que se recuperen en buena forma. Finalmente resulta ganador mediante acciones legales, está contento de dedicar su propia vida para conseguir esta victoria, dando así un ejemplo extremo de la línea que existe entre tener la razón y seguir esta posición con un rigor desproporcionado.

Por supuesto, las interpretaciones de Michael Kohlhaas (publicado en 1810) han variado de una época a otra, y de un lector a otro. No es posible revisar el grueso de la “literatura sobre Kohlhaas”. Al comparar las culturas legales, podría ser interesante estudiar la razón por la que una historia tan sombría sobre el derecho forma parte y va a continuar formando parte del patrimonio cultural alemán.

Download the essay from SSRN at the link. 

History of Some Principles of the German Criminal Law

Markus D. Dubber, University of Toronto, Faculty of Law, has published Ultima Ratio as Caveat Dominus: Legal Principles, Police Maxims, and the Critical Analysis of Law. Here is the abstract.

A comparative and historical analysis of the so-called ultima ratio principle reveals that, despite its Latinate veneer, it is neither ancient nor universal, but a recent addition to the German criminal law canon. Upon further inquiry, ultima ratio also turns out to be ill-defined, undermotivated, and toothless, a fundamental legal principle and distinctive feature of criminal law honored in its ubiquitous breach. In the end, the iron legal principle of ultima ratio may appear more like the flexible police maxim of caveat dominus. Its frequent invocation suggests the need to reconceive legal science as a critical analysis of law in general, and of law's supposed principles in particular. 

Download the full text of the paper from SSRN at the link. 

Influences on German Law

Andre Janssen, University of Muenster Faculty of Law; Centre for European Private Law, and Reiner Schulze have published Legal Cultures and Legal Transplants in Germany  at 2 European Review of Private Law 225 (2011). Here is the abstract.

At first glance, many jurists often perceive their own (Private) law to be somewhat hermetic in nature. Their law exists in its own self-contained cosmos, independent from others in the legal universe, yet its atmosphere is sometimes breached by the ‘meteorites’ of international and European law. The reasons for this perception are clear: it is often difficult to ascertain in ones own legal system the influences from foreign (or supranational) law and from foreign legal cultures. This is impeded further by most universities failing to approach this topic, except briefly in the context of international and European law. The following therefore shall attempt to at least attenuate this deficit by providing a ‘birds-eye view’ of German law. In doing so, not only shall the clear marks left in each legal area by foreign and supranational law be shown, but also how they continue to considerably impact upon the German legal landscape and legal culture.

Download the article from SSRN at the link.