German Courts Research Articles

Should German Courts Prosecute Syrian International Crimes? Revisiting the “Dual Foundation” Thesis

AbstractShould Germany be prosecuting crimes committed in Syria pursuant to universal jurisdiction (UJ)? This article revisits the normative questions raised by UJ—the principle that a state can prosecute serious international crimes such as genocide, crimes against humanity, and war crimes committed by foreigners outside of its territories—against the backdrop of increasing European UJ proceedings regarding Syrian conflict–related crimes, focusing on Germany as an illustrative example. While existing literature justifies UJ on the basis of universal prohibition of certain atrocities, this creates residual normative issues. Alternatively, this article applies the “two-tiered test” derived from the “dual foundation” thesis of the Eichmann judgment, in which the normative appropriateness of UJ is evaluated against both accounts of universal prohibition and the specific politics surrounding the prosecution. It contends that the large number of Syrian refugees in Germany means that Germany, in particular, should initiate Syrian conflict–related UJ proceedings to prevent continued harm and recognize the political agency of refugees. Ultimately, the article suggests UJ should normatively be thought of as a domestic, rather than international, political event.

OUP accepted manuscript

According to Art 56 of the European Patent Convention (EPC) (and equivalent national provisions), an invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art. There are different tests for inventive step. The European Patent Office (EPO) uses the problem–solution approach, which comprises three main stages: The English Pozzoli test (Pozzoli v BDMO [2007] EWCA Civ 588; [2007] FSR 37) and the German test for inventive step (reviewed by Gröning, GRUR 2021, 206) do not necessarily require that the starting point be ‘closest’ (if they consider a single starting point at all), and they define the problem more broadly (Germany) or not at all (UK). Another difference is the approach to the statutory question of obviousness: English and German courts adhere more strictly to the wording of the statutes, focusing on the question whether the features distinguishing...

Uwarunkowania prawne odpowiedzialności za odesłania internetowe w Niemczech

This article attempts to present the legal framework of liability for Hyperlinks in the German legal system. With the 1997 Teleservices act, this country was Europe’s first to adopt a complex regulation of electronic communication, including a special liability regime for Intermediary Service Providers, applicable horizontally to all types of legal claims. Still, even after a total revision of the law in 2001, required by the process of implementation of the 2000/31/ EC E-commerce Directive, and after a, maybe less revolutionary, transformation of the Teleservices act into the Telemedia act in 2007, which left the ISP liability section of the law unchanged, the problem of liability for hyperlinks has not been regulated directly. This doesn’t mean however, that the issue of liability of persons inserting hyperlinks into their web services poses a problem for German courts. This may have been the case under the original 1997 Teleservices act, when sometimes even very similar cases have been adjudicated differently by different courts. Paradoxically during that time the special ISP liability regime of the law was widely believed to be applicable to hyperlinks. The situation changed significantly after the revision in 2001, as the lawmaker, the doctrine and the judiciary unanimously stated the revised wording of the law, leaves no room for its direct application to hyperlinks. Worth mentioning here is the minority opinion, represented a.o. by Ulrich Sieber, claiming that, for certain types of hyperlinks (especially deep links provided automatically by search engines), an per anlogiam application of the Teleservices act may be possible. Nevertheless, with the new law the question as how to handle cases of alleged liability of hyperlink providers was entirely up to the court’s interpretation of general legal provisions. The practice of legal assessment hyperlinks, or the practice of inserting thereof into web services, has been widely developed and confirmed especially by German jurisprudence. The Federal Supreme Tribunal in its 2003 “Paperboy” ruling confirmed the general admissibility of linking as such, both in form of simple links and deep-links. Later on, in 2004, its “Schöner Wetten“ judgment the Tribunal introduced a procedure for testing particular cases of linking. According to the Tribunal, when assessing the legality of hyperlinks, first to consider is the possibility of so called “appropriation” (sich–zu–eigen–machen) of 3rd party information. Originating from press law, this legal institute was incorporated into the 1997 Teleservices act. After revision of the law in 2001 the institute of appropriation wasn’t transferred into the new wording of the law, nevertheless it continued to be applied by courts. With regard to hyperlinks, such “appropriation” of third party information may by assumed in situations when the ISP designs a hiperlink in a manner which may cause the average user to wrongly believe the information, the user is being directed to, was provided by the same ISP. This may often be the cas, when ISP’s own information is visually combined with 3rd party information, accessible by link (e.g. by using frames or in-line links). In such cases the ISP should be subject to liability just as if he were the content provider of such information. In cases of civil liability, when the test for “appropriation” of information falls out negative, courts should continue the assessment with regard to the possibility of “disturber liability” (Störerhaftung) of the ISP, according to section 1004 of the German Civil Code. According to the Federal Supreme Tribunal this type of liability prerequisites the existence of ISP’s obligation to monitor the information. By assessing if such obligation exists, the Tribunal noted, several factors need to be considered, which are: (a) the general context in which the hyperlink is used; (b) the purpose of the link, (c) the awareness of the ISP as to the illegality of the information directed to; and (d) if the ISP can be reasonably expected to recognize such illegality. The Tribunal also emphasized the importance of the time of linking, noting, that the ISP isn’t obliged to monitor a hyperlink once inserted, thus he can’t be made liable if a previously legal information (targeted by the link) has afterwards been changed.

Trials of Members of Einsatzkommando 8 in West Germany: Gaswagen and the Holocaust in Mogilev

In 1942, in order to execute the genocide of Jews in Belarus, along with carrying out mass executions, the Nazis began to use gaswagens. In June 1942, a «special vehicle» appeared at the disposal of Einsatzkommando 8 in Mogilev. Based on the trials’ recordings and protocols, it can be assumed that at least 2,500 Jews of the Mogilev region were poisoned in gas vans (gaswagens). Details of the crimes committed by the Nazis with the use of gas vans became known in the 1960s, when lawsuits were held in the Federative Republic of Germany against former members of Einsatzkommando 8: A. Garnishmacher, G. Richter, G. Haase, G. Schlechte, K. Strohammer. The paper sets the goal, using the example of trials against the members of Einsatzkommando 8, to determine what legal assessment West Germany justice gave to the Nazi atrocities associated with the extermination of Jews in gaswagens. On the one hand, the trials against former members of Einsatzkommando 8 testified to the desire of German justice to critically rethink Germany’s recent past, to ensure the principle of inevitability of criminal responsibility for Nazi criminals. On the other hand, the outcomes of the trials under consideration indicated that West German Themis, as well as the overwhelming majority of the citizens of the Federal Republic of Germany, refused to treat the former members of Einsatzkommando as criminals. In German society, the prevailing opinion was that the blame for the Holocaust and other crimes of National Socialism lay exclusively with A. Hitler and his entourage (G. Himmler, R. Heydrich, etc.). The rest of the Germans were only «hostages of the regime» who «due to special life circumstances» were forced to perform the criminal orders of the Fuehrer. In juridical practice, that approach took shape in the theory of complicity, based on which the German courts assigned minimal punishments to Nazi criminals, and often the courts completely exempted them from criminal liability.

On sovereign bonds and marijuana: Comparing supremacy limits in the US and the EU

Against the background of the PSPP judgement, the article conducts an under-researched comparison of the German Court's recent judgement with incidents of defiance from American states’ legislatures. Particularly, it highlights the example of marijuana laws in the US where a handful of states managed to legislate de facto governing norms contrary to the federal ones. The article then examines the German Court's last decision on sovereign bonds to compare the underlying factors that facilitates European judicial defiance with those contributing to occasional state legislator resistance in the US. Comparison to the highly centralized US shows that defiance of supremacy cannot be eliminated, but its conducive factors can be controlled to ensure a functioning constitutional system. To do so, attention must be paid to popular, fiscal and political factors, rather than to exclusively legalistic ones.

Postdejtonsko traganje za pravdom: Suđenja za ratne zločine u Bosni i Hercegovini pred nadležnim sudovima

The armed conflicts in Bosnia and Herzegovina in the period from 1992 to 1995, which ended with the conclusion of the so-called The Dayton Peace Agreement was marked by serious violations of fundamental human rights and freedoms and the commission of horrific war crimes. Prosecution of defendants for these crimes takes place at several levels, ie before: a) the International Criminal Tribunal for the Former Yugoslavia (ICTY), b) domestic courts and c) courts of certain foreign states. The paper analyzes certain indicators related to the prosecution of these crimes, their scope and structure, as well as the ratio of convictions and acquittals for certain war crimes, the scope of application of conventional and summary forms of ending criminal cases and court policy of sanctioning perpetrators. It was learned that by the end of 2020, hundreds of criminal proceedings against approximately a thousand defendants had been completed. Most of the accused were prosecuted before the Court of Bosnia and Herzegovina (Court of B&H), followed by the ICTY, and a slightly smaller number before the courts of the former SFRY and some Western European countries. The research established that before the ICTY, out of the total number of accused for war crimes committed in Bosnia and Herzegovina, as many as 90.2% were convicted of some of these crimes, while the rate of convicted in relation to accused before the Court of B&H was 67.2% , and before the courts in the Republic of Serbia 70.2%. It is interesting that before the ICTY as many as 24.3% of the accused were convicted in summary proceedings on the basis of a plea agreement, while before the Court of B&H 13,3% of the accused were convicted using a plea bargaining as a consensual model for ending criminal cases. So far, 22 people have been convicted of the crime of genocide as the most serious crime before the ICTY, the Court of B&H and German courts, and all convictions related to the activities of the Army of Republika Srpska during the war in Bosnia and Herzegovina. Court of B&H, inherited a relatively mild policy of punishing war crimes. Finally, it was found that certain courts, especially Court of B&H, inherited a relatively mild policy of punishing war crimes.

Judgment on Foreign Soldiers' Immunity for War Crimes Committed Abroad (BGH)

On January 28, 2021, the German Federal Court of Justice, or Bundesgerichtshof (BGH), Germany's highest court of ordinary jurisdiction, delivered its judgment in Case 3 StR 564/19 pertaining to questions of universal jurisdiction over international crimes and the extent to which foreign soldiers would be barred from prosecution in Germany based on claims of (functional) immunity for war crimes committed abroad. The decision strikes at the heart of a debate where such exceptions to immunity (ratione materiae) are yet to be uniformly agreed upon at an international level; it also comes on the verge of a number of related judgments that are pending both in German and other European courts. In the present case, the BGH held that according to the general rules of international law, criminal prosecution in Germany for war crimes committed abroad would not be precluded based on the notion of functional immunity, “when the acts have been committed by a foreign, lower-ranking defendant in the exercise of foreign sovereign activity.” Neither the BGH nor Germany's supreme guardian of the “Basic Law,” the Federal Constitutional Court, or Bundesverfassungsgericht (BVerfG), has previously pronounced itself on questions of functional immunity in criminal proceedings.

The German Penal catalogue for fan misbehaviour in football: a model for other countries?

ABSTRACT Clubs, fans and especially the active fan scene in Europe have criticised the penalties given by sports courts for fan misbehaviour as they perceive a lack of transparency and uniformity. The German Football Association (DFB) accepted the protests and criticisms as in 2018 they introduced sentencing guidelines that determine exact penalties for certain offences. In order to examine whether this approach could serve as a role model for other European countries, this paper investigates the fines and changes in transparency and uniformity. Three different studies are conducted. They include an analysis of 981 hand-collected past sentences imposed by the German courts; 26 expert interviews with representatives of the association, courts, clubs, sponsors, police, active fan scenes and ultra-groups; and 127 interviews with stadium visitors. The paper shows that the sentencing guidelines were able to increase the transparency and uniformity as perceived by nearly all interview participants, while the respondents clearly criticised the practice prior to the reform. The analysis additionally reveals a significant enhancement in provable uniformity since sentences are no longer bundled. Given the effects, the guidelines could serve as a role model for other countries. The findings also indicate the importance of raising awareness of the guidelines, introducing some modifications and continuously focusing on dialogue.

Ein Scharnier zwischen Eugenik und Recht\xa0\u2013 der \u201emedizinisch-juristische\u201c Kommentar im \u201eDritten Reich\u201c

ZusammenfassungAb 1934 traten vermehrt Wissenschaftler unterschiedlicher Disziplinen, insbesondere Mediziner, als Autoren einer vormals rein rechtswissenschaftlichen Fachtextgattung auf, nämlich des juristischen Kommentars. Der folgende Text geht am Beispiel des maßgeblichen, von zwei Ärzten und einem Juristen verfassten Rechtskommentars zum Blutschutz- und Ehegesundheitsgesetz von 1935 der Frage nach, wie sich dadurch die Gesetzeserläuterung veränderte. Hintergrund ist eine ab 1934 in den juristischen Fachzeitschriften geführte Debatte um eine Reform des Genres Gesetzeskommentar, das in seiner herkömmlichen Anlage als inkompatibel mit dem nationalsozialistischen Rechtsdenken galt.Der Aufsatz versucht diesen Prozess in Ausweitung des Theorieansatzes Mitchell G. Ashs als „Verflechtung“ des Rechts mit anderen Wissenschaften zu begreifen, die zu beiderseitigem „Vorteil“ war: Auf der einen Seite konnte sich die Jurisprudenz auf vorgeblich „wissenschaftlich-objektive“ Befunde berufen, die, anders als juristische Abwägungen – so die Suggestion –, als „nicht hinterfragbar“ angesehen wurden. Andererseits verlieh die unmittelbare Rechtsrelevanz bestimmter Befunde aus den betreffenden Wissenschaften diesen Disziplinen insgesamt einen höheren gesellschaftlichen Stellenwert, der wiederum die Erschließung neuer Forschungsfelder ermöglichte.Geprüft wird außerdem ein möglicher Zusammenhang mit einer partiellen Veränderung der Gerichtslandschaft: Mit der verstärkten Gesetzeskommentierung durch Nicht-Juristen erweiterte sich schließlich auch der Adressatenkreis der betreffenden Schriften. Auf Grundlage vieler ab 1933 geschaffener Gesetze wurden neue Gerichte ins Leben gerufen, an denen sogenannte sachkundige Laienrichter mitentschieden – „Fachleute“ aus den Disziplinen, auf die sich die Gesetzgebung nun berief.

Historia lokalna czy międzynarodowe sieci kontaktów – na marginesie pracy Berndta Strobacha Der Hofjude Berend Lehmann (1661–1730). Eine Biografie

The article presents the latest biography of the German court Jew Berend Lehmann. A critical analysis of the publication made it possible to formulate a proposal to look at the biography of the main protagonist in a network perspective.

Greek Debt Restructuring Case

Two complainants brought a constitutional complaint before the German Constitutional Court. The complaint was directed against a judgement of the Federal Court of Justice (Bundesgerichtshof) that dismissed their action because the Hellenic Republic enjoyed state immunity before the German courts. in February 2012, Greece restructured its debts through a bond exchange in response to its major debt crisis. In this exchange, Greece offered its bondholders new bonds with a 53.5% percent reduction in the nominal value compared to the old bonds. The bond exchange was conditional on bondholders representing 2/3 of the aggregate principal voting in favour of the exchange, and subject to a quorum of 50% of bondholders. The complainants brought claims against the Hellenic Republic before the Regional Court of Osnabruck for the repayment of the funds that they originally paid to acquire the bonds, or alternatively, for the loss in value suffered due to deliberate immoral damage, unlawful expropriation, or unlawful interference equivalent to expropriation. In their constitutional complaints, the complainants invoked breaches of their right to a lawful judge based on Article 101(1) 1 Sentence 2, Article 100(2) and Article 25, first Sentence 1 of the German Basic Law. They also argued that the Federal Court of Justice unlawfully ruled on the scope of state immunity and failed to consult the Federal Constitution Court through the norm verification procedure. The German Constitutional Court did not accept the constitutional complaint for decision.

Nondiscrimination in Standard Essential Patents; ND Prong V. Art. 102(C) TFEU

Abstract The article analyses the meaning of the nondiscriminatory principle in disputes concerning Standard Essential Patents (SEPs) under EU competition and contract law (that is, ND prong). The article reviews the economics literature, looking at the welfare effect of price discrimination and the interpretation of the ND prong provided by a number of economists. Secondly, the article analyses the case law of the EU Court of Justice on Art. 102(c) TFEU and recent rulings by the German and British courts concerning the scope of the application of the ND prong. A strategy of discrimination in regard to royalty rates may be sanctioned, both under competition and contract law. However, Art. 102(c) requires a higher burden of proof than contract law. As a consequence, it is unsurprising that no case of royalty rate discrimination has ever been sanctioned in Europe as an abuse of dominance. While courts and economists generally agree that the ND prong is applicable only when licensees are “similarly situated,” to date, there is no common understanding of the meaning of this expression. In particular, it is unclear whether, and to what extent, licensees are “similarly situated” if they are not competitors in the downstream market.

Copyright and fundamental rights to freedom of the information, the press: EU judicial practice

Trotska V. Copyright and fundamental rights to freedom of the information, the press: EU judicial practice. The author in the article explores the issue of practical application of legal norms that cross two rights: copyright and the right to freedom of information, and press. The court decisions were analyzed in detail:«Spiegel Online GmbH v. Volker Bec» and others. Disputes were heard by German courts as well as by the Court of Justice of the EU (decision of July 29, 2019). The court's explanation of the application of European and German copyright law in the context of exceptions and limitations to these rights for informational purposes has been researched.The main questions were answered by the Court of Justice of the EU and the German Court has been considered:Was the use of the work a notification of current events?What is a citation of the work?Is a hyperlink to his work considered as citation?
 How to find a balance between copyright and fundamental rights to freedom of the information and the press?Attention is drawn to the recommendations of the Court of Justice of the EU to the national court in finding a balance between the exclusive rights of the copyright subject, on the one hand, and the rights of users, on the other hand; taking into account all the circumstances of the case, based on fundamental rights are provided in the Charter of Fundamental Rights of the European Union, and the norms of copyright law.Resolving such disputes requires: take into account the character of the information; to decide whether the information is a notification of current events, even in cases where the event occurred much earlier, but at the time of the dispute considered as public interest; establish the purpose and scope of citation of the work, whether the citation goes beyond what is necessary to achieve the information goal; consider thatcitations can be made, via hyperlinking to the work.A comparison is made between the norms of the legislation of Ukraine on copyright about the free use of works and the corresponding the norms of the European and German legislation.Judicial decisions are interesting, and their consideration is useful, for several reasons.Firstly, the court provided detailed explanations on the conditions of free use of the works of the Media for information purposes.Secondly, recommendations are provided to ensure the balance of these rights.Third, the conditions under which the use of the works (their fragments) will be considered a citation by means of a hyperlink, are determined.Fourth, explanations of the norms of Directive 2001/29/EU of the European Parliament and of the Council on the harmonization of certain aspects of copyright and related rights in the information society, are provided.Therefore, familiarization with these cases and their analysis conducted by the author in the article will be useful for judges, lawyers, jurists, scholars and other stakeholders.

The Criminal Registry in the German Empire: The ‘Cult of Previous Convictions’ and the Offender’s Right to Be Forgotten

Abstract In 1882 the criminal registry, a bureaucratic tool used to assemble information about the criminal biographies of German citizens, was implemented in all territories of the German Empire. This article demonstrates that the registry, evidence that states were accumulating ever more knowledge about the population, was from the beginning surrounded by critical reflection on its functioning. Worried about the scale of the work involved, in the interests of administrative efficiency bureaucrats wished the use of the registry to be curtailed. Prussian officials stressed that private parties should be denied access to the registry, while scholars pointed out that the registry was not intended to support forensic investigation. Journalists and worried citizens argued that the use of the registry in German courts was responsible for a culture of excessive suspicion. By portraying the emotional effects of the registry on German citizens, critics therefore sought to mobilize empathy for the ‘victims’ of the registry and started to demand a ‘right to be forgotten’. The Expungement Law of 1920 was designed as a solution to many of these problems and can be viewed as the endpoint of an important liberalizing process in German society. Yet, for many contemporaries the law was largely ineffective, for it did not combat social prejudices against citizens with a criminal record.

When and how to legally challenge economic globalization: A comment on the German Constitutional Court’s false promise

Abstract The German Constitutional Court’s recent challenge to European law supremacy, and European lawyers’ strident critique of it, divert us from the conversation we need to have. The German Federal Constitutional Court wants us to focus on a surplus of European Union power, the European Court of Justice’s refusal to constrain it, the legal strategy of proportionality, and the goal of protecting national democracy. I defend national judicial pushback that is used to protect individual rights, democracy, and the national constitutional order. But demanding a German right to proportionality review of European Central Bank (ECB) monetary policy does not further these goals. Judicial review of monetary policy, especially in a context of radical uncertainty, makes little sense. Nor is the German Court’s doctrinal focus helpful as a way to address globalization. We need a new and different conversation focused on when and how constitutional review can effectively and helpfully push back against the adverse impacts that economic globalization is creating.

Forensic Linguistic Expert Testimony in German court cases. Past and present. A note on range of variation, diversity, heterogeneity

Forensic Linguistic Expert Testimony in German court cases. Past and present. A note on range of variation, diversity, heterogeneity

Institutional Change in the Banking Union: The Case of the Single Supervisory Mechanism

Abstract This article is about institutional change in the Banking Union. It has two related aims. The first is to engage with the law of the Single Supervisory Mechanism (SSM)—the first pillar of the Banking Union—and in this context to discuss tensions that have lately emerged between the case law of the Court of Justice of the European Union (CJEU) and that of the German Federal Constitutional Court. The second, but main, aim of this article is to put the law of the SSM as it was enacted in the SSM Regulation, and as it was interpreted by the CJEU and by the German court, in a broader perspective of institutional change. For this purpose, this article adopts an interdisciplinary approach that seeks insights on institutional change in the political science literature. In particular, the article seeks to shed light on the role played by courts. In short, it argues that whilst the SSM is a story of change following an exogenous shock (ie the sovereign debt crisis), it is also an account of change and contestation between courts made possible by the ambiguities and incompleteness of the SSM rules. It will show that the evolution of the SSM is by no means frictionless and that it is only by tracing change from the point of the enactment of the law to its interpretation by the courts that one gains a real appreciation of the dynamics and salience of change within the SSM.

What Judges Want to Know From Forensic Evaluators in Child Custody and Child Protection Cases: Analyzing Forensic Assignments With Latent Dirichlet Allocation.

This study analyzes the questions on aspects of child custody, visitation rights, or child endangerment that judges pose to forensic psychologists in family law proceedings. Before conducting a psychological evaluation, the legal question in the referral has to be translated into case-specific, forensically relevant issues. The only overarching principle guiding this process is the “best interests of the child” criterion. Literature indicates that judges often struggle to define what variables should be specified for a psychological evaluation in their referral questions. This study aims to contribute to a better understanding of the information judges would like to ascertain from psychological evaluators in child custody and child protection proceedings—an understanding allowing a clearer determination of whether forensic psychologists as experts can deliver this information. Latent Dirichlet allocation (LDA) is used to analyze the referral questions that these judges pose to forensic evaluators in terms of (a) underlying topics (latent dimensions) that can be identified within the referral questions and (b) the probability distributions of legal terms and forensic issues contained in the referral questions. This analysis is based on unclassified text data extracted from German court files. Five topics (latent dimensions) were identified within referral questions resembling cases when the issue was as follows: (a) potential child endangerment in the context of visitation contacts, (b) a possibly limited parenting capacity and its potential effects on child well-being, (c) an impairment of the child has already occurred or could occur, (d) a better option concerning custody and residence, and (e) an unclear topic addressing questions on custody, residence, and visitation in which no specific psychological constructs are involved. In four of the five topics, judges utilize their referral questions to ask for case-group-specific psychological information. In one topic addressing questions on custody, residence, and visitation, judges seem to struggle to define criteria that forensic evaluators should assess. Overall, results help to identify and define more clearly the relevant constructs that forensic experts should examine from the perspective of the courts with the goal of making clearer and more accurate recommendations.

Exploring gender disparities in the prosecution of theft cases: Propensity score matching on data from German court files

This article engages in the discussion about gender disparities in prosecutorial decision-making. Appling propensity score matching after multiple imputation on data drawn from case files, the article examines differences in the prosecutorial treatment of male and female defendants in cases of minor theft in Germany. The matched data reveal significant differences between genders in the prosecutorial conclusion of proceedings: whereas dismissals because of other imposed sentences are more frequently imposed on male defendants, disposals with penalty fees are more common for female defendants. Hence, contrary to existing literature, the present study reveals harsher prosecutorial treatment of women because they have to pay penalty fees more frequently. The findings are contextualized with the focal concern hypothesis, which suggests that stereotypes influence decision-making in criminal proceedings. Together with the determination that women are more likely to pay fines or penalty fees completely and on time, this leads to the assumption that efficiency considerations by prosecutors influence their decision and make the imposition of penalty fees more attractive from an economic point of few.

10 years of the Syrian conflict: a time to act and not merely to remember

10 years of the Syrian conflict: a time to act and not merely to remember