scholarly journals Legal Methodology in the German Dictatorships

2017 ◽  
Vol 26 ◽  
pp. 16
Author(s):  
Jan Schröder
Keyword(s):  
German Democratic Republic ◽  
Democratic Republic ◽  
Customary Law ◽  
National Socialist ◽  
Historical Interpretation ◽  
National Socialist State ◽  
Communist Ideology ◽  
The Will ◽  
The Law ◽  
Legal Methodology

The article compares the legal methodologies in the National Socialist State (NS, 1933–1945) and in the German Democratic Republic (GDR, 1949–1990). Their concept of law differed in a significant way from the preceding periods. Law was no longer regarded as the will of the community but as the will of the dictator (the ‘leader’ or the party) and at the same time as the utterance of the official ideology. This antinomy between voluntaristic and ideological principle characterises the legal methodology in both dictatorships. The theories of the sources of law are dominated by the voluntaristic, authoritative element. Therefore, the will of the ‘leader’ or the party, i.e., the statute, is the only real source of law. Customary law is negligible, judge-made law is not approved, a court’s right of inspection doesn’t exist. The ideological principle gains much greater importance in the interpretation of the law. In the NS, the law must be interpreted in accordance with the ‘National Socialist ideology’, in the GDR, which is ‘partially’ socialist, according to the communist ideology. The former voluntaristic ‘subjective-historical’ interpretation is abandoned. Jurisprudence in the NS and GDR also demanded ideological, ‘essential’ concepts, whereas the precedent ‘bourgeois’ theory preferred ‘functional’ concepts according to the specific purpose of a statute. The formation of systems failed in both dictatorships, probably because of the ideological setting.

The office of qāḍī in Dār Fūr: a preliminary inquiry

1977 ◽  
Vol 40 (1) ◽  
pp. 110-124 ◽  
Author(s):  
R. S. O'Fahey
Keyword(s):  
Seventeenth Century ◽  
Democratic Republic ◽  
Customary Law ◽  
Independent Judiciary ◽  
History Of ◽  
The Law ◽  
Written Law

A written law and a separate if not independent judiciary were among the most distinctive innovations brought by Islam to the Sudanic region. The history of the reception of the sharī'a and the institutions associated with it, of its modifications of the local customary law and of the changes wrought upon it by the same customary law may help to provide a framework for more general discussions of the process of islamization within Africa. The main purpose of this paper is to describe the history of the office of qāḍī, or judicial official, in the Dār Fūr sultanate, which occupied what is now the westernmost province of the Democratic Republic of the Sudan between the mid-seventeenth century and 1916. Thus I am not so much concerned with the content of the law, whether customary or Islamic, administered within the sultanate as with who administered it.

On the German History of Method in Civil Law in Five Systems

2016 ◽  
Vol 17 (4) ◽  
pp. 543-578
Author(s):  
Hans-Peter Haferkamp
Keyword(s):  
Real Life ◽  
Civil Code ◽  
Constitutional Court ◽  
National Socialist ◽  
German Empire ◽  
Political Ideas ◽  
Federal Constitutional ◽  
History Of ◽  
The Law ◽  
Legal Methodology

AbstractGermany is the country of legal methodology. No other country saw such an intense academic discourse on the question of what jurists are able, allowed, and supposed to do when interpreting and applying the law. This German peculiarity is tightly linked to the history of the German Civil Code (BGB). Carefully worded and systematically precise, this codification had the potential to significantly limit judicial freedom; thus, its advent marked the beginning of the German methodological debates. The following Article examines this relationship, starting with the year 1874 (when preliminary work on the Civil Code began) and continuing with an analysis of the five political systems during which the BGB was in force: the German Empire (1900–1914), the Weimar Republic (1918–1933), the National Socialist period (1933–1945), the GDR (1949–1989), and the Federal Republic (1949–today). With the exception of the GDR, the methodological debates consistently show attempts to enable judges to adapt the law to real life conditions, or to political ideas in conflict with the BGB, without formally moving beyond extant law. At the roots of 20thcentury methodological debates, one can thus discern a profound mistrust of German legal academia with regard to both the legislature and the judiciary. Jurists had no confidence in the BGB, which was criticized for being inflexible, outdated, and politically unsound. They did not trust in the freedom of judges either, trying instead to somehow bind them, be it to “life,” “reality,” “justice,” “sense of justice,” “national order,” or “Christian Natural Law.” It was not until 1958 that the Federal Constitutional Court was entrusted with the task of dynamically shaping the guiding values of society, thus forcing both the legislator and the courts to adapt the BGB to these principles. As a consequence, the heyday of German methodological debates surrounding the BGB slowly came to an end.

Moving Beyond Imaginary Walls: FIT's Handbook Women in European Theatre Today

1999 ◽  
Vol 24 (3) ◽  
pp. 259-263
Author(s):  
Angelika Czekay
Keyword(s):  
German Democratic Republic ◽  
Day Care ◽  
Democratic Republic ◽  
Social Benefits ◽  
German Reunification ◽  
West Berlin ◽  
East German ◽  
The Law ◽  
European Theatre ◽  
Materialist Feminist

As a materialist feminist from the former West Berlin I have always been in support of the German Democratic Republic as a system that granted womenextensive social benefits through the law. Before German reunification, rights to apprenticeship, employment, day care, and abortion were secured for East German women. Thus, in my imagination, the German Democratic Republic (GDR) occupied a space where gender and class equality were guaranteed—at least on paper.

The Honecker Trial: The East German Past and the German Future

1996 ◽  
Vol 58 (1) ◽  
pp. 53-80 ◽  
Author(s):  
A. James McAdams
Keyword(s):  
Rule Of Law ◽  
German Democratic Republic ◽  
Democratic Republic ◽  
German Law ◽  
Arbitrary Form ◽  
The Rule Of Law ◽  
Important Message ◽  
East German ◽  
The Law ◽  
Full Protection

Fifty years after the Nuremberg tribunals, Germany is once again caught up in a series of controversial trials involving former dictators. This time, officials of the former German Democratic Republic (GDR) sit in the docks. Some observers have criticized these proceedings, maintaining that they will result in the imposition of an arbitrary form of “victor's justice.” Others have claimed, in contrast, that the cumbersome German Rechtsstaat (“state under the law”) will prove incapable of responding to public demands for retribution. In this article, the author maintains that Germany's courts have not been at a loss in answering these complaints. By grounding their judgments in preexisting East German law, the courts have managed to bring some of the GDR's former leaders to justice while at the same time guaranteeing most defendants the full protection of the rule of law. In the process, the courts have even conveyed an important message about the terms under which both German populations will be brought back together again.

Bahnhofsmission in Deutschland. Im Kontext der Epochen der Wohlfahrtspflege

2021 ◽  
Vol 81 (4) ◽  
pp. 248-257
Author(s):  
Bruno W. Nikles
Keyword(s):  
German Democratic Republic ◽  
Democratic Republic ◽  
German Society ◽  
National Socialist ◽  
Dominant Position ◽  
Non Profit ◽  
The Public ◽  
Welfare Work ◽  
Financial Conditions ◽  
National Socialist Era

Abstract The ›Bahnhofsmissionen‹ developed in the context of the tradition of Christian non-profit welfare work in Germany. Through their supporting organisations, they belong to the associations of the Protestant Diakonie and the Catholic Caritas, which have held a dominant position in social work in German society for many decades. The ›Bahnhofsmissionen‹ are highly respected by the public but nontheless work under permanently precarious financial conditions. Without the large number of volunteers, the persistence of their work would not be safeguarded. This makes their 125-year history all the more astonishing, interrupted only by bans during the National Socialist era (between 1939-1945) and the German Democratic Republic (between 1956 and 1990).

Without the Power to Drink or Contract

2020 ◽  
Vol 24 (1) ◽  
pp. 26-48
Author(s):  
Warren Swain
Keyword(s):  
Alcohol Consumption ◽  
Social Activity ◽  
Individual Responsibility ◽  
Roman Law ◽  
Current Position ◽  
Modern Times ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Over Time

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

Pembagian Harta Waris dalam Tradisi Masyarakat Muslim di Gorontalo

2019 ◽  
Vol 13 (2) ◽  
pp. 187-202
Author(s):  
Hamid Pongoliu
Keyword(s):  
Islamic Law ◽  
Sharia Law ◽  
The Will ◽  
The Law

Gorontalo has a customary principle derived from sharia law, and the sharia law is sourced from the Qur'an, hadith, ijmak and qiyas (adati-hula'a to syara'a, syara'a hula'a to Kitabi), which should reflect the existence of the implementation of the distribution of inheritance in Islam in the Gorontalo community. This customary principle can be a source of law if it is a rational act, not immorality, done always repeatedly, does not bring harm and does not conflict with the law of sharak. But in reality there is the implementation of inheritance that violates Islamic law, namely the distribution by way of deliberation, the determination of the amount of heirs equally, the delay in the distribution of inheritance, wills with houses given to girls, wills not to distribute inheritance, distribution of assets it depends on the will of the heir and the delay in the distribution of inheritance on the grounds that one of the parents is still alive. The distribution by deliberation and determination of the amount of the portion for each heir are equally acceptable as long as they follow the guidelines of the Compilation of Islamic Law article 183 and the concept of takharruj which was previously preceded by the Shari'a division. After the heirs know the size of the portion, then they may agree to share it in their own way or leave the inheritance according to Shari'a and agree to give to each other with other heirs.

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