German Law System

Abstract

The following entry provides an overview of some elected aspects of the German law system. From different points of view, the German system has been deeply influenced by the ordoliberal ideas developed within the Freiburg School in the early 1930s of the twentieth century. One of the core ordoliberal concepts that have to be discussed within the constitutional framework is that of a social market economy. Social market economy became the interpretive framework for the economic and social order of Western Germany in the aftermath of World War II, and today, it represents not only a key concept at national level but also within the European Union. No less important is the role of the so-called Private Law Society, another key concept of ordoliberal thinking. Its main elements are clearly reflected in the Bürgerliches Gesetzbuch (BGB) of 1900 which is based on the idea of the citizen as a homo oeconomicus. Notwithstanding its traditional approach – libertarian, unsocial, and individualistic – the BGB, a child of the abstract conceptualism of the Pandectist school, has been able to survive till today. This is the merit of judge-made law and, in particular, of the theory of the indirect horizontal effect of fundamental rights in relations governed by private law. In recent times, the BGB has even assumed a highly visible role as a possible model within the harmonization of European contract law. The entry finishes with a description of the German system of legal education, a state-oriented and judge-centered bureaucratic model which is still embedded in the model of a “uniform jurist,” the so-called Einheitsjurist.