The roles of Rule of Law and Judiciary in the German society

author: Reiner Litten, representative of the Minister for social affairs, Mecklenburg-Vorpommern, Germany
published: Jan. 22, 2008,   recorded: December 2007,   views: 3305

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The roots reach to the European tradition, to the English Magna Charta of 1215, to the Act of Settlement of 1701, to the enlightenment of the 18th century and to the liberty movements. The independence of judges is said to be one of the achievements of the Prussian kingdom of Frederick 2nd. When building his castle of Sanssouci he was annoyed by a the rattling of a mill that spoilt the silence of the park in front of his residence.. He tried to buy it from the miller. When the man refused to sell it because he did not want to lose the basis of his living the king angrily threatened him with expropriation.

But the brave man is said to have replied: If it were not for the Kammergericht (Court of Appeal), Your Majesty! The story has always made good public relation for the Rule of Law in Prussia, and the the mill is still to be seen. Unfortunately it is only a legend. The king was entitled to give the judges orders or to make a decision in their place. Frederick did so 33 times. Only in his political testament he recommended to his successors not to do that any more. Even if the judges really were independent in Prussia , another question was what kind of cases belonged to their jurisdiction. Maybe their jurisdiction applied to all civil and all criminal matters. As far as the state was concerned, however, judges were entitled to decide only on its civil (fiscal) matters (the business the monarch had with his subjects, civil contracts etc).. But not on the legality of the administrative procedure or the results of it. Very late in the 19th century they established a court that could deal with these matters which turned out to be a forerunner of our modern administrative judiciary. Much later than that were born the constitutional courts.

The people of the 19th century were preoccupied with getting constitutions from their monarchs; they did not bother so much yet about having it judged by an independent judiciary. As a matter of fact, constitutional matters were not tried earlier than after the foundation of the first German Republic in 1919. A special court for constitutional matters was first established after the 2nd world war in Western Germany with the Federal Constitutional Court in Karlsruhe...

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