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Thread: Differences Between US and French/German Law (Insight to Cultural Differences)

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    Lightbulb Differences Between US and French/German Law (Insight to Cultural Differences)

    Full article, good for understanding the cultural differences between continental Europe (Germany&France particuarly) and the US, and specifically the differences in legal systems. The general theme of the article is to describe European society as a progression from a feudal monarchy, extending the privileges previously reserved for royalty lower and lower on down the social scale. In this light, the National Socialist regime is seen not as an aberration but as a stepping stone from the Imperial to the modern era, pioneering in the extension of rights to ordinary Germans regardless of class, which were later extended to all citizens regardless of race in the post-war period. For the part of the US, society and law evolved on a different course, one concerned with protecting the citizen against the state:


    One of the more interesting sections:

    The German literature routinely declares that personality was only fully protected in the 1950s, as a consequence of the new commitment to freedom and dignity that took hold in the wake of Nazism. Indeed, the protection of personality is widely presented as the core institution of a German private law shaped by the reaction against Nazism—“one of the most essential achievements,” as a standard textbook says, “of the post-war period.”

    This is not, however, correct. With this we come to a delicate point, which I have touched on before and now must touch on again. Here, as elsewhere, contemporary German institutions of dignity have a Nazi history. In point of fact, the Nazis too were committed to the protection of personality. This German form of freedom was one that appealed to the Nazis just as it appealed to the later makers of the twentieth-century social welfare state. The story is entirely typical of the history I have recounted elsewhere.

    The Nazi regime, like other fascist regimes, made great efforts to proclaim the importance of “honor”—and most especially the importance of the honor of low-status persons, as long as they were racially German. This led the regime to insist on norms of respect for workers in the workplace, and in everyday life as well. In just the same way, it led the regime to insist that all Germans, whatever their social station, had a right to the protection of their personality. Otto Palandt’s standard commentary to the Civil Code explained it this way in the early 1940s:

    The “right of personality” did not receive any definitive regulation in the Civil Code. Life, body, health, and freedom are protected through § 823 I, and so is the right to one’s name... A general right of personality is alien to the Civil Code. However, there is nothing in the Code that excludes it.

    National Socialist legal feeling [National-sozialistisches Rechtsempfinden] regards the Volk-comrade as a member of the Volk community, who fulfills the demands of his legal position in the service of the Volk community, and who as such has a claim that the legal position that has been conferred upon him be safeguarded and protected against attacks of any kind. In this sense, it can be said that the Volk-comrade has a general right of personality that ought to be recognized, one whose content extends beyond the above-mentioned personality interests listed [in the Code], including in particular a right to join in the common labor of the community and a right to recognition, respect, and honor...


    The draft Nazi Civil Code, never enacted, was even more assertive in its insistence on a universal German right to protection of personality. The Nazis presented themselves as protecting honor to its fullest extent, in return for the sacrifices demanded of the German Volk. Of course the insistence on honor for Germans was paired with an insistence on the dishonor of others—of persons who were “sick or foreign.” Like all Nazi extensions of “honor” to the lower orders, this too belonged to the politics of the most vicious kind of exclusion. It is for that very reason that the rare historian who deigns even to talk about the Nazi period insists that there is no connection between Nazi ideas and the doctrines of the postwar period.

    Nevertheless, it is much too simple to dismiss the Nazi experience as a rejection of the traditions of German personality law— whether we are talking about the history of legal doctrine, or about the social history of the law. As a matter of doctrine, the Nazis did endorse the general right of personality. As a matter of social history, the Nazis did guarantee, here as elsewhere, the claim to honor of low-status Germans. Ordinary Germans who would come to pride themselves on their “dignity” in the 1950s and 1960s were Germans who had been taught to pride themselves on their “honor” twenty years earlier.

    The consequence, painful as it is to acknowledge, is that Nazi law directly prefigured the law of postwar Germany. By the 1950s and 1960s, to be sure, the standard commentary to the Civil Code was no longer grounding the “general right of personality” in “National Socialist legal community, as it had done in the 1940s. Instead it was (rather reluctantly) grounding it in the constitutional right to “free self-realization.”

    But in both eras, the commentary talked a lot about “honor,” and the net result was that the German civil law acknowledged a “general personality right” in each. In point of fact, the protection of personality is not a product of postwar reforms, as German scholars must have known perfectly well during the 1950s. It has grown in tandem with the German social welfare state, and the downward social extension of a claim to honor, throughout the twentieth century.

    Source: http://yalelawjournal.org/113/6/1151...q_whitman.html
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    The Germans had good laws. American law is a joke. It is too lax, too lenient, it assumes the suspect is innocent instead of guilty.

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    Quote Originally Posted by DriftWood View Post
    The Germans had good laws. American law is a joke. It is too lax, too lenient, it assumes the suspect is innocent instead of guilty.
    The 'presumed innocent' is a factor of the 'citizen against the state' mentality. As to leniency, the average prison sentence in the US is much higher for equivalent crimes than in Europe, as well as the option for the death penalty in many states for the most serious crimes. Also the article discusses this, as part of the extension of 'royal' rights to 'common' citizens as a reason why European prisons are much more pleasant than American ones.
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    Quote Originally Posted by SwordOfTheVistula View Post
    The 'presumed innocent' is a factor of the 'citizen against the state' mentality. As to leniency, the average prison sentence in the US is much higher for equivalent crimes than in Europe, as well as the option for the death penalty in many states for the most serious crimes. Also the article discusses this, as part of the extension of 'royal' rights to 'common' citizens as a reason why European prisons are much more pleasant than American ones.
    America does have stricter laws when compared to Europe. But Europe in many ways is even more liberal than the US. Especially the Scandinavian countries which have become totally degenerate.

    Many illegal immigrants from Africa head to Europe because they know Prison accommodations their are better than life in their home countries.

    What I mean by lenient is that almost all states have abolished the Death penalty. This results in overcrowded prisons and rapists,murders being let out pre-maturely.

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    Quote Originally Posted by DriftWood View Post
    America does have stricter laws when compared to Europe. But Europe in many ways is even more liberal than the US. Especially the Scandinavian countries which have become totally degenerate.

    Many illegal immigrants from Africa head to Europe because they know Prison accommodations their are better than life in their home countries.
    Yeah, the article discusses that, and the European emphasis on protection of 'personhood' including the 'personhood' of criminals and immigrants.

    Quote Originally Posted by DriftWood View Post
    What I mean by lenient is that almost all states have abolished the Death penalty. This results in overcrowded prisons and rapists,murders being let out pre-maturely.
    Most states outside the northeast still have the death penalty. 'Overcrowded' prisons are the result of longer sentences for such things as assault, burglary, and rape, and the release of rapists&murderers is generally the result of sporadic liberal governors such as Mike Huckabee.
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