Being a German intern in a U.S. law firm, many people have asked me about the differences between German and American law. I would say the main difference is that Germany has a civil law system, whereas the U.S has a common law system. In contrast to common law, civil law is codified, meaning we have updated legal codes which cover all matters that are capable of being brought to court, the applicable procedure and the appropriate punishment for each offense.
In a civil law system, the judge has an inquisitorial role. It is his or her job to establish the facts of the case and to apply the statutes of the applicable code. The judge will question the witnesses, interrogate suspects, reach a verdict and decide on a penalty. There are no pleas in the German legal system, so even if the defendant does plead guilty the case will still go to trial and the judge may declare the defendant not guilty if he or she believes there is evidence to indicate that the defendant is innocent.
Due to the fact that a judge or a panel of judges will decide all cases that come to court, there is no use for juries in the German legal system. In some cases (usually medium size cases) a judge will be assisted by two lay people whose votes do count just as much as the judge’s vote. The lay people will consult with the judge after the trial and the judge will inform them about the legal aspects of the case, before they make their decision.
Although the civil law system does seem to be more structured and stable, because laws are codified, the flexibility of the common law system is a big advantage since it can quickly adapt to current situations without Parliament having to pass a law.