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Judicial Style and Judicial Reasoning in England and Germany

Published online by Cambridge University Press:  03 October 2000

Basil Markesinis
Basil Markesinis*
Affiliation:
University of Oxford, Jamail Regents Chair of Law, University of Texas at Austin
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Abstract

The author finds the English judicial style and technique more informative than the German and argues that German jurists, be they academic or practitioners, would derive some benefit by studying how the English judges craft their judgments. However, English judges would stand to benefit by looking at German substantive law and its techniques of keeping litigation under control.

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Articles
Information
The Cambridge Law Journal , Volume 59 , Issue 2 , 29 June 2000 , pp. 294 - 309
Copyright
Copyright © Cambridge Law Journal and Contributors 2000

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References

1 Namely, Professor Dagmar Coester-Waltjen of the University of Munich, Professor Jean Bernard Auby of the University of Paris II and Dr Simon Deakin of the University of Cambridge.

2 Published by Hart Publishing in 1999.

3 Mainly as a result of its decision in Osman v. UK No 87/1997/871/1083, recently increased by two Reports of the Commission in Z and Others v. the United Kingdom and T.P. and K.M. v. the United Kingdom, both adopted on 10 September 1999.

4 This is the theme of a book I edited in 1994. Its full title is: The Gradual Convergence. Foreign Ideas, Foreign Influences and English Law on the Eve of the 21st Century.

5 For instance in “Learning from Europe and Learning in Europe” in The Gradual Convergence, op. cit. above, pp. 1-32.

6 For instance Weiterfresserschaden or, insidious spreading loss—a concept which, in the context of damage caused to the product, has allowed the courts to resort to tort rules and by-pass contract law. Another such notion is that of Drittschadensliquidation or Schadensverlagerung, which, in recent times has entered into English law under the term of “transferred loss”. Lord Goff, the creator of the English concept, though keenly interested in German law, has maintained that he created the notion independently from German law and later discovered the similarity. See: “Comparative law: the Challenge to Judges” in Law Making, Law Finding, and Law Shaping: The Diverse Influences (ed. by Basil S. Markesinis) (1997) pp. 37 ff.

7 Right of established and operating business: das Recht am eingerichteten und ausgeübten Gewerbebetrieb.

8 The notion of contract with protective effects towards a third party—Vertrag mit Schutzwirkung zugunsten Dritter—is an obvious example.

9 They were Hill v. Chief Constable of West Yorkshire [1989] A.C. 53; X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633; Stovin v. Wise [1996] A.C. 923; Elguzouli-Daff v. Commissioner of Police of the Metropolis [1995] Q.B. 335; W v. Essex County Council [1999] Fam. 90.

10 For references to this case law see our Tortious Liability of Statutory Bodies (1999).

11 [1989] A.C. 53.

12 Alexandrou v. Oxford [1993] 4 All E.R. 328; Ancell v. McDermott [1993] 4 All E.R. 355; Osman v. Ferguson [1993] 4 All E.R. 344. Cf. Swinney v. Chief Constable of Northumbria [1997] Q.B. 464—all dealing with the possible liability of the police towards victims of crimes which they failed to prevent.

13 [1996] A.C. 923.

14 Subject to one difference which is mentioned below and which distinguishes Stovin from its German counterpart.

15 Hill can be compared with BGH LM § 839 [Fg] BGB no. 5; Stovin with BGH NJW1980, 2194.

16 I shall not repeat here comments about the abstract nature of the judicial language, the judges’ courage to innovate, which is greater than it is often believed to be, and the way the collegiate nature of a German court, found even at first instance, manifests itself in the judgment. On these points see my observations in “Conceptualism, pragmatism and courage: A Common Lawyer looks at some Judgements of the German Federal Court”. in P. Wallington and Merkin, R.M. (eds.) Essays in Memory of Professor F.H. Lawson (London 1985)Google Scholar.

17 The English figures are, in fact, greater if one includes in the count the further cases cited to their lordships by counsel.

18 Matters are, arguably, different where the judges are faced with a court-developed right such as the personality rights shaped from the mid 1950s onwards.

19 I have, however, argued elsewhere that there is a danger of exaggerating the differences produced by the civilian deductive method and the Common law inductive approach. See; “Reading Through a Foreign Judgement”, in Cane, P. and Stapleton, Jane (eds.) The Law of Obligations, Essays in Celebration of John Fleming (1998), pp. 261 ffGoogle Scholar.

20 And, indeed, one encounters nowadays an ever-growing number of casebooks that approximate in appearance to their common law equivalents. See, for instance, Professor Haimo Schack and Dr. Hans-Peter Ackmann, Höchstrichterliche Rechtsprechung zum Bürgerlichen Recht. 100 Entsheidungen für Studium und Examen, 4th ed. (1997). But the casebook is not entirely a novel teaching tool, even in Germany. Indeed, in the hands of a grand master such as Rudolf von Jhering, it proved its success both in academic and commercial terms. Thus, his Civilrechtsfälle ohne Entscheidungen had, by 1901, reached its ninth edition. The casebook method is now also used in Germany by those scholars who teach Common law and its methodology to German students. A good illustration is Professor Thomas Landmark's Juristische Technik und Methodik des Common Law (1998) (written with J. Jones) and his Common Law Tort and Contract, Juristische Arbeitsbücher I, Münsterner Einführungen (1998).

21 For figures and an interesting discussion see Kötz, “Scholarship and the Courts: A Comparative Survey” in Essays in Honour of Henry Merryman on his Seventieth Birthday (1990) pp. 190 ff.

22 BGH 10 July 1963, BGHZ 40, 91 at 103-104, is, to my knowledge, one of the rarer cases which has referred to the wider questions of insurability and, somewhat indirectly, to the floodgates argument.

23 Though many illustrations could be given no case brings home these points more clearly than the decision of the Canadian Supreme Court in Norsk Pacific Co. Ltd. v. Canadian National Railway [1992] 1 S.C.R. 1021.

24 Such as that of Weiterfresserschaden or Drittschadensliquidation. It should be noted, however, that Drittschadensliquidation is one of the rare instances where the legislator left it to, or even encouraged the courts to fill the gap, see Mugdan, , Materialien zum BGB, vol. 2, (1899) reprinted 1979, 517-18Google Scholar.

25 See, for instance, the reaction that followed BGH of 24.11.1976, BGHZ 67, 359. Thus, Hager, “Zum Schutzbereich der Produzentenhaftung”, AcP 184 (1984), 413. But cf. Steffen, “Die Bedeutung der “Stoffgleichheit” mit dem ‘Mangelunwert’ für die Herstellerhaftung aus Weiterfresserschäden”, VersR 1988, 977; Kullmann, “Die Rechtsprechung des BGH zum Produkthaftpfiichtrecht in den Jahren 1989/90”, NJW 1991, 675.

26 Thus in Konigsberg v. State Bar—366 US 36, 61 (1961) Mr. Justice Black said: “I believe that the First Amendment's unequivocal command that there shall be no abridgement of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field… ” (Italics added).

27 For instance, Protokolle, vol. II, at p. 662, about the value of the “economic-consequences argument” as a reason for not imposing liability. I am grateful to Professor Coester-Waltjen for this and the following reference.

28 Zur Reform des Staatshaftungsrechts (1976), pp. 5, 71.

29 [1996] A.C. 23, at p. 944.

30 However, in BGH 10.7.1980, NJW 1980, 2194 (2196) the judges seem to have dedicated at least some thought to the economic consequences of imposing an obligation to act on the council: “This relatively simple and cheap measure was to be expected of the defendant” (emphasis added). By comparing the cost of improving visibility to the costs resulting from accidents, the court was asking the right question from the point of view of economic efficiency.

31 [1996] A.C. 923 at p. 958.

32 [1988] Q.B. 60, at p. 75. In the House of Lords, [1989] A.C. 53, at p. 63, Lord Keith echoed the same view when he said “In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind.” In X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, at p. 750, we again see this argument resurfacing in Lord Browne-Wilkinson's judgment. He thus stated that “if a liability were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure first to investigate the allegation) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such a delay: the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.”

33 That divides common law and civil law on this point. This is discussed in a comparative way by Lawson, F.H. and Markesinis, B.S. in Tortious Liability for Unintentional Harm in the Common Law and the Civil Law, vol. I (1982), pp. 71–80Google Scholar.

34 [1967] 1 W.L.R. 645.

35 [1996] A.C. 923, at p. 936.

36 Dewees, Duff and Trebilcock, Taking the Facts Seriously. Exploring the Domain of Accident Law (1996), ch. 5, review this evidence.

37 I stress current for in England at any rate the court never has the benefit of the kind of empirical information that can be provided by an amicus curiae or a Brandeis Brief.

38 Mugdan, Materialen zum BGB, vol II, 1305; Protokolle, vol I, 609, 611, 622 where the legislator considered whether the imposition of liablity might make civil servants too cautious and/or provoke “an unfortunate high burden on the state”.

39 Zur Reform des Staatshafungsrechts (1976) 5, 71.

40 For instance, OLG Hamm, FamRZ 1993, 704 (factually quite similar to our W v. Essex County Council [1999] Fam. 90). Likewise, BGH 16 October 1971, NJW 1971, 751 (analogous to our Elguzoli-Daf v. Commissioner of Police of the Metropolis [1995] Q.B.335).

41 See also Ossenbühl, Staatshaftungsrecht, 5th ed. (1998), 57: “Die Drittbezogenheit der verletzten Amtspflicht ist … ein eiges Problem der Staatshaftung.” (The scope of the violated rule, i.e. the extent to which it is meant to protect the particular person and harm suffered, is an everlasting problem of state liability.)

42 A method also used in England where the possibility of a tort action for breach a statute is being considered. For details, see Markensinis and Deakin, Tort Law 4th ed. (1999), pp. 336 ff.

43 FamRZ 1993, 704.

44 [1999] Fam. 90.

45 For present purposes I ignore the fact that the claim by the English parents was further complicated by the restrictive English rules that apply to psychiatric harm.

46 BGM LM § 839 ﹛Fg﹜ BGB no. of 30 April 1953. (Translation by Dr. Raymond Youngs).

47 Tortious Liability of Statutory Bodies (1999), co-authored with Professors Dagmar Coester-Waltjen and Jean-Bernard Auby and Dr. Simon Deakin, passim

48 See also Professor Ossebühl's comments in Staatshaftungsrecht, 5th ed. (1998), 58 59.

49 But not all. English readers must thus note that the immunity that prosecutors enjoy in German law is for the general discharge of their duties which, as stated in the text, above, is deemed to be owed to the community at large. On the other hand, towards the accused, or others involved in the prosecution, prosecutors enjoy no such immunity as a number of litigated instances clearly show. For a recent illustration see: BGH 16.10.1997, NJW 1998, 751.

50 For instance, RG 16.10.1923, RGZ 108, 249; BGH 28.3.1996, NJW 1996, 2376.

51 In addition to the leading case mentioned above, see RG 26.2.1935, RGZ 147, 144; OGH Br. Z. Kln 22.9.1950, NJW 1951, 112.

52 The term belongs to Lord Mustill. See, for instance, his “Negligence in the World of Finance” 5 The Supreme Court [of Malaysia] Journal, pp. 1 ff. (1992). See, also, his “What do Judges Do?”, Särtryck ur Juridisk Tidskrift, 1995-96, Nr. 3, pp. 611 ff. Few judges have in my country been as frank as Lord Mustill in explaining how they think in private but my own hunch is that this does not mean that they reason differently. More interestingly, I suspect that much of what Lord Mustill confesses to doing in private, also applies to the thinking process of civilian judges. But proving the correctness of this personal hunch is almost impossible in the modern civil law setting where the French judge is cryptic by long tradition and the German judge is abstract as a result of a deeply ingrained predilection.

53 [1973] 1 Q.B. 27.

54 I remind readers who have no clear recollection of these cases that the question there raised was whether a third party, who did not own the damaged cable, could claim damages against the tortfeasor for his resulting pure economic loss. Actions under § 823 I BGB having failed, ingenious litigants tried to justify their claims by relying on § 823 II BGB. Such an action would succeed if it could be shown that the violated statute—in these cases local by-laws protecting the integrity of the cables—could be construed as being “protective norms” in favour of not only the public at large but also the individual plaintiffs. As suggested in the text, above, the case law has been contradictory. On this see: Bürge, “Die Kabelbruchfälle”, Juristische Blätter 1981, 57. In the late 1960s even German law dithered as to the right solution to this problem which can only go to prove that the statutory interpretation is, at the end of the day, greatly influenced by policy considerations. On this see: Taupitz, Haftung für Energieleiterstörungen durch Dritte (1981).

55 Spilada Maritime Corp. v. Cansulex Ltd. [1987] 1 A.C. 460, 488.

56 Tortious Liability of Statutory Bodies: An Economic and Comparative Analysis of Five English Cases (1999).