SOURCES OF LAW IN GERMANY
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00083.x |
| Author | C. P. Harvey |
| Date | 01 April 1948 |
| Published date | 01 April 1948 |
SOURCES
OF
LAW
IN
GERMANY
Tius
article will be more than a year out of date by the time it
appears in print and cannot, therefore, purport to
k
a reliable
staterilelit of the situation as it now is.
I
spent a yenr
in
Germany
ending on July
81,
1946,
and
I
propose to describe some of the
problems which
I
encountered.
I
do not know whether all of
these problcms still exist
or
whether any of them haw been solved;
I
do know, however, that new problems have arisen-for instance,
the Liinder have been given some degree
of
legislative power
of
their own and
I
gather that a certain amount of alarm and
despondency in the Legal Division of the
C.C.G.
has arisen them-
from. But even if
I
am out of date, my experiences may
be
of
some interest since they show the kind
of
difhulties that arise
out
of
the occupation of Germany and rue likely, in my opinion,
to
go on arising.
Military Government throws a
flood
of light upon the difference
between theory and practice. In the urgency of the occasion all
sorts of things get done without any particular regard ‘to the
precise authority under which they are done, and not infrequently
the law has
to
be
rigged up afterwards to
fit
the facts. The question
then arises
:
Where is the law to come froni
?
and we at once find
ourselves in the field which has been
so
well watered by the tears
of students of jurisprudence.
For
such a student thc situation will
appear, according to his tcmpcramcnt, at the worst as a nightmare
nnd at the bcst as a sort of crossword puzzle.
I
was drawn with some reluctance into this study by the
nature of my
job.
I
was in command of a small branch of the
Legal Division which, from the theorctical point
of
view, was of
huge importance, since we were concerned (among other things)
with the re-shaping
of
the system of governnient in the British
zone at all levels from thc Gcmeinde to the Land. This task had
been laid down
for
us by the Potsdam Agreement.
It
was one
which, considered soberly, should have engaged staff of about
fifty first-class experts.
I
had
a staff which, on paper, amounted
to six and
in
fact, for the greater part of my time
in
Germany,
amounted to one.
I
do not pretend, therefore, that our researches
were profound-they were as deep as we had the time to make
them.
It
was
our
business to lay down the law, which involved,
in thc first plncc, the ascertainment
of
the pre-existing German
law,
secondly,
the
determination of the extent to which that law
was still to be deemed
RS
being
in
force, and thirdly, the making
of
such a new law as we thought appropriate.
All
of
these tasks
190
Am]:.
1948
SOURCEY
OF
LAW
IN
GERMANY
197
were at once fascinating and difficult, but none was more tantalising
than the second, which closely resembled the Hunting
of
the Snark.
You
start with the Declaration
on
the Defeat
of
Germany which
was signed by the four Commanders-in-Chief on June
5,
1945.
This, at any rate, is what
I
treated as the starting
point.
It
recited that the German armed forces
had
unconditionally
surrendered but that
no
government was left in Germany capable
of
accepting responsibility for maintaining order or for complying
with the requirements
of
the victorious powers.
It
went on
to
say that
‘
the Governments
of
the United Kingdom, the U.S.A.
and the U.S.S.R. and the Provisional Government
of
the French
Republic hereby assume supreme authority‘ with respect
to
Germany, including all the powers possessed by the German
Government, the High Command,
nnd
any State, municipal or
local Government or authority
’.
On
the same day there, was
signed in Berlin, the Agreement on Control Machinery which
provided that the supreme authority above mentioned ‘will
be
exercised, on instructions from their Governments, by the British,
U.S., Soviet and French Commanders-in-Chief, each in
hie
own
zone of occupation, and also jointly in matters affecting Germany
as
a
whole.
The
four Commanders-in-Chief will together constitute
the Control Council.
.
.’.
Here
we
have, ready made, two sources
of
law, one for matters
affecting Germany as
a
whole and
one
for
each zone. During the
early part
of
the occupation the latter was by
far
the more
important since the Control Council did not begin
to
operate
effectively until the end of August,
1045.
Meanwhile, many things
had
been
done in the zones and
a
number of laws had been
published. The most important
of
these, indeed, were issued as
soon
as the AngleAmerican Forces had occupied any substantial
part of German territory, that is
to
say,
w
early as September
18,
1944.
It
was not necessary, however,
to
consider the juristic basis
for
these laws since by Mil. Gov. Ordinance No.
4,
dated July
14,
1945,
‘
all Military Government Proclamations, Ordinnnces, Laws,
Notices, Regulations, and other enactments and orders
and
all
amendments and modifications thereof issued by or under the
authority
of
the Supreme Commander Allied Expcditionnry Force
and effective within the British Zone
of
control
on
July
14, 1945
’,
were confirmed and continued in force until repealed or -ended.
The language
of
this Ordinance plainly implies that the
Supreme Commander had power
to
delegate his legislative
functions, and this was mndc even clearer by Mil. Gov. Law
NO.
4,
which established the Military Government Gazette and
provided that all Proclamations, Laws, Ordinances, Notices and
other regulations issued by Military Government, should
be
published in it, and also gave power to Military Government
Headquarters in different districts within the zone,
to
publish
their own local legislation in their own local Gazettcs. The exact
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