Legal Cultures in England and Germany - Essay Example

? Legal Cultures in England and Germany Legal Cultures in England and Germany A legal culture is a system withvery many rules, regulations and practices that a particular country uses in practicing law (Zeigert, 2008, 448). Different countries have different legal cultures and their judicial system is responsible for carrying out rulings depending on various factors as stipulated by their laws (Ziegert, 2008, 450). Germany and England have two very different legal systems provided their vast historical and judicial differences and thus the case proceedings in different law settings vary and may at times present opposing outcomes. In the cases provided, it is imperative to understand case proceedings depending on the legal culture of the land and identify the various means used by the courtroom in the identification of the respective rulings The first case is that involving Lord Bernstein against Mr. Ashby in court. The plaintiff, Lord Bernstein, states that the defendant, Mr. Ashby failed to observe Mr. Bernstein’s right to privacy when he flew around his house taking photographs of the premises without his consent. In this case, there is the protection of the plaintiff’s privacy by the laws of the land through the fact that the owner has a right over the immediate air space above his land. This makes sure that he has some authority over the activities that take place above that area. This protection of privacy is accorded directly referring to Winfield on Tort (Frank, 2010, 25). Winfield on Tort is one reputable source of enactments provided by the British constitution, it is clear that the plaintiff in this case had protection of privacy as it stated that the activities carried out were an act of trespass. This information is cited from the constitution through which England is run. Chapter 2 in the bill of rights after the fourth amendment in 1996 also provides for this (Steinfield, 2010, 77). It is important to understand that the judge was fast to dismiss any claims stating that the defendant had committed a criminal activity by disturbing the plaintiff’s peace. This is from the fact that for someone to provide a case stating any form nuisance the airplane had to have been flying at a certain height and this was not clearly stated (Baron, 1978, 484). It is from this that the judge found it rather excessive to go for the nuisance charges on top of the trespass ones already provided. The judge was also clear to identify the Air Navigation Act 1920, Section 9 replaced by the Civil Aviation Act 1949 which states that the claims to both nuisance and trespass are excessive and should not hold up in any legal process (Lemmings, 2011, 167) This was the point where there is the identification that the judge did not have the ability to make a decision based on his views but rather had to refer to the act. Despite this being the law that governed his decision, it is important to note that the judge had the ability to express his views in that he stated that going for the nuisance charge was rather outrageous. This independence was rather clear and concise in that he also had the ability to fully follow the act and go for both charges but after looking at the facts of the case, there was the identification of various issues allowing a much lesser charge (Baron, 1978, 486). The issues identified in the case that had the judge extend his independence as to not follow the act entirely are such as the level at which the airplane was flying. The defendant had not gone around the premises enough times for the plaintiff to state that there was disturbance. This is from the fact that the plaintiff stated that he had not noticed the airplane circling around his house all through until it came to his attention that the defendant had photographed the premises (Baron, 1978, 488). According to the Civil Aviation Act of 1949 trespassing is identified when the defendant flies as low as getting in contact with private material on the premises of the plaintiff such as trees and other erected material (Frank, 2010, 106) In the judgment of this case, the judge with reference to the amended Air navigation Act of 1972 stated that it was important to note that the defendant had not flown low enough to gain trespass charges. However, from the fact that the airplane had circulated the area several times meant that the defendant’s conscience was clear on what he wanted with the specific area and thus faced the charges of intrusion. The judge however in the case exercised his duty of reasoning in that he identified the free will that the defendant had by having offered the plaintiff the photographs of the premises prior to the lawsuit. This not only revealed that that the defendant did not have any sinister motive, but also the innocence conscience that the defendant had when taking the photographs and thus one of the factors that led to the lower charge as opposed to having both the trespass and nuisance charges (Baron, 1978, 486). The second case is in a German court where there is a case involving a landowner and a journalist who took photographs of his premises. In this case, the court processes completely varies from that of England. This is from the fact that the court system in Germany also seeks to uphold the rights of the defendant and view the case in question from both perspectives. This is rather important to understand the facts of the case further in an attempt to reach the most appropriate judgment (Aziz, 2009, 167). This is completely different from the England means of courtroom processes where the opinions provided in the case were completely one sided and there was not clear expression of the defendant’s rights. In the case in question, the plaintiff states that owner of the premise had filed for an injunction barring her from further publication of photographs that she had taken of the land. The defendant had earlier on claimed that the taking of the photographs was an invasion of his privacy and further on infringed this right by the journalism going ahead and printing these photographs and posting them in magazines and books (Eric, 2012, 5). As opposed to England’s Common Law, the German law states that the rights of an individual extend only to a point where there is an obstruction or rather hidden premise (Fletcher, 2009, 63). However, if the premise is visible from definite points regardless of aerial view, then the rights to privacy become rather inadmissible in court. In the case of the German court proceeding, there is completely no protection of privacy for the defendant as opposed to the extended rights of privacy expressed in England. In this case, the privacy rights are rather compressed to a point where the defendant stands to lose. The fact that a journalist carried out the activity of taking the photographs makes the situation much complicated. This is from the fact that journalists in Germany have the rights to take photographs of different premises as long as there is no direct contact with the material that they are taking photograph (Eric, 2012, 7). This is the case witnessed here as the journalist took the photographs from an aerial view and did not have any direct contact with the premises and thus his constitutional right as a journalist allowed him to carry out the activities as he did. This goes further to show how privacy lacks protection in this case. Civil law as witnessed in this case of the German court process shows that the rights of Journalists carry more weight when compared to those of privacy. This is from the fact that the judge, citing his judgment under article 823 of the German Civil Code offers guidelines protecting journalists from all form of mistreatment and allegations provided the means through which the information obtained is clear and precise supported by the civil laws of the country (Ziegert, 2008, 121). The judge in this case does not have the right to allow the injunction to go through as the journalist presented clear evidence of the photographs taken and stated that they had all been taken through aerial photography and that there was no point at which the journalist came into contact with the land. This civil law is completely different from common law in that it does not support the idea of owning the air space above the premises. If this case came up in England, the injunction would have had a greater chance of going through provided the defendant in this case would refer to the Air Navigation act of 1920 (Aziz, 2009, 87). This is where he would have stated that the journalist had trespassed by taking photograph and that the publishing of the photographs was an infringement of his right to privacy. However, in the case of Germany and civil law, getting the injunction seemed rather difficult given that the law on air space did not have great vigor as compared to the journalist’s rights. The judge in declaring the ruling in this case does not have much of a personal obligation or rather does not exercise the duty of administering his personal views in the judgment of the case as opposed to the common law system where the judge extended his judgment with reference to common reasoning. In the case of the judgment carried out, the judge’s reasoning came directly from the civil law act (Eric, 2012, 11). The judge also went through the Plaintiff’s ground for review where he was able to establish that the private sphere was intact and that it was right to take the pictures. However, the issue in question was whether it was legal to publish the photographs as opposed to privacy. In the two cases, the general roles played by the principles differ. In the first case through the common law, the facts take lead in that there was upholding of the privacy of the individual in question and the judge was able to identify the violation of this privacy. This is from the fact that taking of the photographs without the permission of the owner of the land was an infringement of his rights (Eric, 2012, 10). These were the facts provided in the case and the principles were not followed completely given the fact that the judge did not charge the defendant on the grounds of nuisance. In the second case, principles took the upper hand in the case in that the judge followed the civil laws and stated that there was no precise widespread violation of privacy and that the little amount of privacy violated could not hold up in court. There was the accountability of the rights of the journalist in the case and when compared to the little amount of innocent violation carried out, it was strong enough as to have the injunction proved inadmissible (Eric, 2012, 14). This was clear to show that the principles in this case took the bigger role in the judgment as opposed to the facts provided. Moreover, it is important to note that the judge in this case is extensively constrained in his reasoning as opposed to the English trial. It is important to understand that observing both principles and going through facts is vital in the ruling of any case. This is from the notion that principles assist the judge carry out the ruling with accordance to the laws through which there is governing of the land. On the other hand, facts are also necessary in that the judge has the ability to use personal knowledge in the law arena to make decisions in the case while also viewing the issue in question from an ethical perspective. It thus makes it very necessary for both facts and principle to uphold when a judge makes his decision (Fletcher, 2009, 38). In the cases above, facts and principles were administered separately, which was not very appropriate. The legal cultures in England and Germany vary excessively. This can be noted from the manner in which the given cases were ruled and how the court proceeding were. In England, the legal culture is rather moderate in that the judge has the ability to exercise his will of reasoning and applying it when reaching the judgment to the cases. On the other hand, Germany is rather uptight from the fact that the judges rule the cases by the book and do not have as much freedom to make rulings from a personal perspective. Despite the differences, both cultures ensure that the decisions made are upright and with accordance to the law of the land which is the responsibility of every country. References Aziz, M. (2009). The Impact of European Rights on National Legal Cultures. New York: McGraw Hill Publishers. Baron Bernstein of Leigh v. Skyviews & General Ltd., [1978]Q.B.479 BGH, VI ZR 373/02 (Dec.3,2003), Gundlach (Germany) (translation c Eric H. Reiter 2012) Fletcher, G. (2009). Basic Concepts of Criminal Law. London: Oxford University Press. Frank, C. (2010). Law Literature and the Transmission of Culture in England. New York: McGraw Hill Publishers. Lemmings, D. (2011). Professors of the Law: Barristers and English Legal Cultures. New York: Cengage Learning. Steinfield, R. (2010). Legal Cultures in the Early Mideval West. London: Oxford University Press. Ziegert, K. (2008). Law and Legal Cultures in Comparative Perspective. Virginia: Press of Case Western Reserve University. Read More