The German legal system, with its overattachment to dogma, doorstop legal codes, and obsession with the rulebook, is inevitably far more inflexible than the pragmatic and time honoured tradition of English Common Law, right? Opinions like these have been kicking around since at least the First International Congress of Comparative Law in Paris 1900, and probably a lot longer than that. The narrative of Civil Law rigidity is woven into the nationalist DNA of the UK’s legal identity. While the French at the 1900 Congress were boasting about their Code’s “logic,” ¹ English contemporaries like Pollock (in his 1911 lectures The Genius of the Common Law) were, unsurprisingly given the title, singing the praises of “Our Lady” (the common law) —a system that was superior because it was not “frozen” in a code but lived in the “fearless and independent” minds of judges. ²

These kinds of jingoistic takes on comparative law still make for entertaining discussions when lawyers from different countries get together and start poking fun at each other. Comparative law scholarship today, has thankfully moved beyond the headstrong days of the Paris congress. It is nevertheless occasionally worth taking a closer look at some of these antiquated charaterisations of foreign legal systems. If anything because it can deepen our grasp of the underlying style of legal reasoning that these kinds of nationalistic tropes - clumsy as they are - originally sought to explain.

A classic case study of the ‘Civil Law rigidity vs Common Law pragmatism’ myth can be done by comparing the legal systems of Germany and the United Kingdom. Germany undertook one of the most ambitions projects of legal rationalisation at the beginning of the 20th century with the famous Civil Code (the Bürgerliche Gesetzbuch or BGB) coming into force on the 1st of January 1900. ³ The codification of German Law nationally was a great undertaking and symbolic of Germany’s unification in 1871. ⁴ This philosophy of legal rationalisation can take on almost poetic dimensions. The BGB quite literally starts at the beginning of life (the legal capacity of a human starting with birth under § 1) and ends with death (the last part of the BGB being inheritance law starting at § 1922 ). ⁵

German legal reform of this era was all about consistency across the newly unified empire and public trust - or more specifically business confidence - in the legal system. This was achieved by doing away with regional differences and ensuring commercial disputes could be settled though a comprehensive, consistently applied, and non arbitrary framework. Max Weber famous described the German Legal System of the time as one possessing a “logically formal rationality.” As Trubek explains, this highlights how the specialised analysis of abstract legal rules used in legal decision making creates a high degree of predictability important to the emerging industrial capitalism of the period. ⁶ To a jurist trained in the common law system however, a comprehensive Civil Law code like the BGB essentially amounts to a great big rule book which impossibly attempts to account for every conceivable contingency. The connotation might be negative, but this basic idea of German law is actually a good starting point. The crucial caveat however, is in understanding how German jurists are trained and the unique legal methodology they employ to apply the legal code to a given case.

This methodology, known as the Gutachtenstil mandates the following steps: A: Obersatz (introductory sentence) B: Definition (abstractly defining the applicable legal requirement) C: Subsumtion (applying the law to the given facts, where the law is ‘argued’ and ‘interpreted’) and D: Konklusion (conclusion, final answer to the legal problem). ⁷ This methodology could be subject to an entire blogpost by itself, but a few things to keep in mind are that it employs a logical flow from the abstract to the concrete facts, and that it is completely granular. Granular here means that the Gutachtenstil is not only used for the whole overarching case, but also applied to any necessary sub-headings. The four step process is recursively employed for every constituent legal requirement implicated in the case until eventually a final verdict is reached.⁸

Now all this might sound like more dogma piled onto an already rigid system, however German Law does still allow for flexibility in interpreting the law. Let’s explore some examples which will hopefully combat a few old legal myths.

The first myth is that UK judges with their ability to ‘make law’ through precedent, are able to flexibly react to new circumstances and are therefore far less constrained than their German counterparts. Nevertheless, the power of precedent should not be understated. A classic example demonstrating its reach is the case of Donoghue v Stevenson [1932]. This case is the cornerstone of modern negligence law in the UK and concerned a Mrs Donoghue who fell ill after drinking a bottle of ginger beer which contained the decomposing remains of a snail, invisible until most of the bottle was drunk. ⁹ Because there was no direct contract between Mrs Donoghue and the manufacturer (a friend had purchased the drink), tort law as it then existed seemed insufficient as it relied on a contract between the plaintiff and defendant. The House of Lords (now known as the Supreme Court) in its ruling found that a manufacturer “owes a general duty of care to the ultimate consumer” and this established the tort of negligence. ¹⁰ Here is an example of the common law working flexibly, there was a public interest in ensuring the consumers had a legal remedy against manufacturers who in turn now had a clear duty of care towards consumers. On the other hand, precedent can be incredibly inflexible. The principle of stare decisis requires lower courts to follow principles established by a higher court for cases with similar facts. If a ‘bad’ decision is entrenched by the highest court, lower courts have no possibility to overturn such a precedent. An example of where this demonstrated inflexibility was case of Priestley v Fowler [1837] which, if it were ever a reasonable decision, stuck around as precedent for far longer than it perhaps ought to have. This case established that an employer is not responsible for an injury caused by one employee to another, thereby establishing the ‘common employment’ doctrine by which workers are understood to take on an implicit risk of being injured by their co-workers. ¹¹ The facts concerned a wagon which was overloaded by a colleague and collapsed on Mr Priestley a servant of Mr Fowler. The court found that Mr Fowler was not liable and that a worker should practice diligence and caution in the duties he performs in service of his master. ¹² This case was inappropriate in the industrial age and served as a barrier to worker compensation in many cases, until it was eventually overturned by parliament in the Law Reform (Personal Injuries) Act 1948. ¹³

Having established that precedent can be as much a straightjacket as it can be an area for judicial innovation, let us look at the some examples in Germany which might confound expectations. German judges, especially in the higher courts, do not adjust to new circumstances by setting a new precedent, but though dogmatic innovation, in essence updating the highly developed system of legal reasoning used to interpret the codified law and apply it to a given situation. Where a common law judge might look for a new duty of care, the German Federal Constitutional Court (BVerfG) in the Neubauer case of 2021 significantly extended the responsibility of the State to adhere to emissions reduction targets through dogmatic innovation. In an action bought by a group of young activists and NGOs the BVerfG reasoned that if the state did not update climate reduction targets the effects of climate change would be so profound so to endanger the claimants fundamental rights at a future date. ¹⁴ The court innovated by reinterpreting the so called Vorsorgeprinzip (precautionary principle) by way of Article 20a GG (Grundgesetz Germany’s Basic Law or Constitution). In effect the court said that because Article 20a contains a ‘state objective’ to protect the natural foundations of life and animals ¹⁵ the State has to take the necessary precautions to protect the future rights of German citizens though emissions reductions. As I argued in my analysis of German and Chinese environmental litigation, this so called ‘Intertemporal Guarantee of freedom’ expanded the interaction of Article 20a with the state’s duties and therefore is a clear example of German judges acting ‘flexibly’ when confronted with new circumstances such as climate change. ¹⁶ The style of legal reasoning may be different to that of a common law judge, however functionally this ‘dogmatic innovation’ has parallels to a Supreme Court judge in the UK overturning an outdated precedent.

Another myth is that unlike case law in the UK, German judgments have no effect on the law whatsoever. While the principle of stare decisis does not exist in Germany, in practice for many day-to-day legal issues previous judgments highly important and de-facto authoritative. A good example with which I have personal experience is the amount of time someone is allowed to play a musical instrument in their flat . The rules governing this kind of nuisance law are found § 906 BGB amongst other sources, however there is no law which explicitly states how long someone is allowed to play a musical instrument in their flat. Previous rulings on the matter are clear however, and it is close to common knowledge that someone can play an instrument like the guitar or violin in their flat for up to two hours before 10PM and after 8AM excluding national holidays and Sundays.¹⁷ Here previous decisions are in essence authoritative, another parallel to UK law which can be easily overlooked. As a final point, let’s not forget that UK law is becoming ever more codified. A clear example of this trend is The Companies Act 2006 which contains 1300 sections!¹⁸

One of the blessings of a blog as opposed to an academic article is that I neither have to give a firm position, nor try to persuade anyone that I am correct. This is without a doubt the case here. It could very well be that German Law is far more inflexible and rigid than the UK’s Common Law. On the other hand, the idea of rigidity is quite subjective, and can be examined in different contexts. Consider also that German and UK law was developed in two western european countries with similarities in how the state functions and how justice is generally perceived. Legal concepts around property, statehood, commerce, family and anything else you care to mention, which have for better or worse, traveled to other parts of the world, take on entire new dimensions depending on what specific historical, cultural and economic conditions are present. I hope this blog has provided an interesting exploration of Germany’s unique mode of legal reasoning, confounded some expectations around German and UK legal stereotypes, and demonstrated that comparative law is a great and even fun tool for better understanding diverse legal systems.