On 27 Mar 2008 22:45:29 GMT, Norbert Lieckfeldt
wrote:
>Peter Parry wrote
>> Of course not, why should an unelected small group selected by
>> politicians (half of whom have not themselves been elected) be allowed
>> to subvert the decisions of Parliament for more than a decade each?
>> For fairly obvious reasons it was necessary to force it upon Germany
>> but most countries don't behave as Germany did.
>>
>The question of whether or not a Court should have that right is quite
>another matter. You stated quite categorically that under a codified
>system of law "Courts do not have the power to make or alter codified
>law." and I demonstated that you were wrong.
In most cases they don't, it is one of the defining features of
codified law. In Germany the role of the Constitutional Court is
unusual but other courts in Germany still do not have the same ability
to make law as in a common law system.
>The German Constitution, though worked out under ocupation, was not
>forced upon Germany (or West Germany as it then was).
Quite rightly they were not given much of a choice. The basic elements
of it were dictated by the Allies and It was not until it had been
approved by the military governors that it went to the military
approved Landetage for approval. The German people, probably
fortunately given their recent enthusiasm for National Socialism,
never had a vote on the matter. They certainly would never have
agreed with Article 24. Even in 1949, far from learning from the
recent past, the SPD and the CSDU/CSU were arguing against including
basic rights for citizens in the constitution.
> but flowed from the very personal
>experiences that those people who sat in the Constitutional Assembly
I think you will find It came more from the personal experiences of
the victors.
> To avoid repeating those mistakes was their aim, and they managed quite well.
To prevent Germany ever having a political system which would allow it
to go to on the warpath yet again was a primary goal of the occupying
forces and I would agree with you that so far they have achieved that
aim.
> You can have daft laws both under common law systems and codified systems.
Of course you can, but common law is more responsive to change. Codex
Law requires statutory change and that happens much more slowly.
>But you still haven't told me
>how "anything which isn't specifically allowed is illegal" in France.
Yes I have, it is the basis of Codex law. The classic example of
Codex law is the so called "Human Rights Act". With it the state
tells you what rights as a human being it will _allow_ you. Without
that act or similar in Codex law you have no rights. The state
"gives" you freedom and defines what that freedom will be. As an
individual you have no intrinsic rights, only those the state bestows
upon you. |