A state based on the rule of law : Germany

German law goes back partly to Roman law and partly to numerous other legal sources in the German regions. In the 19th century, a uniform system of private law was created for the first time. It applied to the entire German Empire. The Civil Code and Commercial Code to this day preserve the liberal spirit of those times. Their underlying principle is freedom of contract.

The guarantees afforded by a democratic state are manifest above all in substantive and procedural law. Criminal law proceeds from the constitutional premise that no act is punishable unless declared so by law before it was committed. Thus judges may not make UP for gaps in penal law by applying legal provisions which cover similar cases, nor may they apply laws retroactively. Another principle embedded in the constitution is that no one may be punished more than once for the same offense. Personal liberty may not be restricted except on the basis of a formal law. Only a judge may determine whether a person’s imprisonment is justified, and only he can decide for how long. Whenever a person is detained without a judicial warrant, the matter must be brought before a judge for decision without delay.

Although the police may hold someone in temporary custody, they may not detain him any longer than the end of the day following the arrest. Everyone has a right to a court hearing - that, too, is guaranteed by the constitution and is a fundamental principle of the rule of law. The administration of justice is entrusted to judges who are independent and answerable to the law only. They may not be dismissed from office nor transferred against their will. Special tribunals are banned.

Nearly all of these fundamental principles had already been established by the judiciary laws of the 19th century. They include the Courts Constitution Act, which governs the structure, organization and jurisdiction of the courts, the Code of Civil Procedure and the Code of Criminal Procedure.

The Civil Code, which entered into force in 1900, and the Codes of Civil and Criminal Procedure were wrested by liberal and democratic forces from the imperial government towards the end of the last century after a long drawn-out struggle in parliament.German codified laws have found their way into foreign legal systems as well. The Civil Code, for instance, was the model for its Japanese and Greek counterparts.