"Legal unity is not the only good thing"
Since June 1, the University of Münster has a Käte Hamburger Kolleg, for the first time. Under the leadership of historian Prof. Ulrike Ludwig and jurist Prof. Peter Oestmann, academics from all over the world will be carrying out research on "Legal Unity and Pluralism". Norbert Robers spoke with Peter Oestmann on the content and the aims of the Kolleg.
No, legal history shows that there have often been different legal systems within a geographical area. A bell founder living in the 16th century, for example, was a member of a guild with its own jurisdiction. He was also a citizen of a town or city and a member of a church parish, with both town and church having their own legal regulations. If this bell founder wanted to buy something, it was Roman law that became applicable. So he was subject to several legal systems – which also partly contradicted one another.
In other words, a muddle – to the detriment of citizens …
… not at all. Although the application of the law was a problem, because there were a multitude of regulations and just as many uncertainties, these problems also entailed benefits for individuals; historians call this an ‘exploitation of justice’. Those who knew which regulations were favourable to them simply picked these out.
But of course that means that you first had to know all about the different legal systems.
That’s right. You took your complaint to the guild court, the ecclesiastical court and the Reich court to get the ruling you wanted. This ‘forum shopping’ still exists today. In international disputes people opt for the jurisdiction which for them as plaintiffs is the best one.
But shouldn’t the aim be legal unity in the sense of equality before the law?
From an historical point of view that’s true. There were long phases in which legal unity was the ideal. The best example of this is the time when Napoleon ruled, when he had the law standardised. The Revolution had already abolished the guilds, and in 1804 the ‘Code civil’ came into force as a standardised code of civil law and it was soon applied in other European countries. This trend was initiated in Germany only after the German Reich was established in 1871. This ideal of pluralism evolving into unity through standardisation crumbles again in the 20th century, though.
Is the legal system in Germany a system marked by unity or pluralism?
There is clearly an attempt to pack the law into one system as this reduces the complexity. It’s difficult, though, because public law for example is superimposed by constitutional law. There is also a large number of European regulations. In a nutshell: there is an ideal in law in which for every legal question there is one correct answer. However, legal unity is not the only good thing. Our population here in Germany is not uniform, when you look at the many nationalities and religions. For that reason, things which differ shouldn’t be treated the same.
But doesn’t that risk an erosion of the principle that everyone is equal before the law?
No, the principle still applies in Germany. There is legal equality, but there is also actual equality. Legal equality ceases to exist when the differences are too great. For example: are the differences between men and women so great that women cannot be allowed to work in mines? Women successfully appealed against this.
Do you too see the European Union as an attempt to superimpose a European legal system on each national legal system?
Only partially. It is at any rate an attempt to restrict the pluralism. What it means in civil law, for example, is that consumer protection is the same throughout Europe – for example as regards internet purchases or holiday trips. In inheritance law, on the other hand, there are still big national differences.
Is, by contrast, the International Court of Justice in The Hague an example of a legal system applicable worldwide for the punishment of war crimes?
Yes and no. The Court of Justice in The Hague shows that there is a global conviction that the violation of certain human rights cannot be tolerated. Many people will take a very positive view of this form of standardisation. On the other hand, membership of the Court is voluntary. If countries such as China, Russia or the USA don’t support the Court, that naturally reduces its effectiveness.
This interview was first published in the University newspaper wissen|leben No. 4, 16 June 2021.
Translation: Ken Ashton