The Culture of German Tort Law

Abstract

Important tributaries that feed into the culture of German tort law go back to the values of the late 19th century, lessons drawn from the catastrophe of the Third Reich, and core principles of the constitutional regime that was created in 1949. The single most relevant influence today – despite the economic pressures that have led to substantial cuts in many areas – may be the social security system, which has roots both in the reforms initiated by Otto von Bismarck and the social state principle of the German Basic Law. Other issues explored by the author in this very modest attempt to map new trends and identify some of the many cultural factors that in their sum determine how contemporary German tort law plays out in daily practice include the rate of litigation, the willingness of parties to adopt alternative approaches to the resolution of their disputes, the influence of legal expenses insurance, and the level of damages awarded by German courts. The common thread through all of these topics is the role that judges play in the development of the law not only in tort but in just about every part of the German legal system. The true oracle of German law today is not the legislator but the judge.