Roland Dürre
Wednesday February 4th, 2015

Defunct Legislation – Good-Bye Rule of Law?

Through Twitter, Google+ and Facebook, people constantly send me important articles. Sources are the SZ, the NZZ, the “Spiegel” and many more, also the humorous: Postillon. Especially good articles can often be found in the “Zeit”. A short time ago, one of them was about sexual offenses and the sexual crime legislation.

Justitia (Maarten van Heemskerck, 1556)

Justitia (Maarten van Heemskerck, 1556)

The author is Thomas Fischer. He is a federal judge in Karlsruhe and often writes about legal problems in the ZEIT and ZEIT ONLINE. For more articles of his column, click here –  and more additional information, click on his website (Sexualstrafrecht).

The afore mentioned article on sexual crime legislation is an absolute must read. I used to believe that it is a nice concept for citizens to voluntarily subjugate themselves under the laws because they see that these laws are good for everyone.

The article showed me that this is a nice utopia which, however, cannot be realized in our country. Actually we are quite some way from reaching it and continue to move even further away.

In his article, Thomas Fischer describes why and how laws are made. He shows that your common citizen cannot really understand them anymore. Except that we citizens are those who – when all is said and done – should (and perhaps even want to) decide upon them?

Another thing the article shows is that the goals of the legislative have become completely remote from social necessity. And that is probably why the results are so devastating. Let me cite Thomas Fischer:

The most beautiful sentence was spoken by the chairperson of the committee, Renate Künast: “We”, she said (not verbatim), “have met in order to create a conclusive system of criminal legislation. We are not responsible for its practical application.”

Do we really have a system where the “legislative power” no longer cares what the “judicative power” needs, thereby leaving it in the lurch when it comes to dealing with their daily mess of contradictory and conflicting laws? The same is true for all parties concerned – us citizens?

Remembering my “entrepreneurial” past, I certainly recall how much of what was written in such bills as the Works Constitution Act, Industrial Premises Law, Workforce Supply Law, Working Hours Act and many more was contradictory and impracticable. You could truly despair. The reasons why existing legislation is amended and new laws are introduced, too, get stranger and stranger.

The article by Thomas Fischer is about sexual offense criminal law. Here is a citation:

“Paragraph number 36 of the Council of Europe Convention for the prevention of violence against women and domestic violence demands from the (58) members under the heading ‘sexual violence’ to punish all sorts of sexual behaviour “against the desires of a person”. Germany signed the convention, but so far it has not been ratified and made federal law.

After ten countries ratified it in 2014, it became European law. Ever since then, German legislators dispute whether our criminal law is already sufficient to meet the criteria of the convention or if it should again be extended …

Of those experts who already voiced their opinion, the majority believes the latter. There are legal holes. A minority (including myself) believes that our laws as they are actually should suffice.

Incidentally, the terms “majority” and “minority” in this context mean a microscopically small group of persons professionally concerned with sexual crimes legislation. Even they cannot agree what is already covered by the law in this country and what is not. Most people in Germany have no idea what this is all about.

And now they want to introduce a totally new, powerful law because of such a decree. Most likely, it will be even harder to interpret than its predecessor. And – frustrating as it is – nothing will change as far as facts are concerned.”

When I read this article, it became quite clear to me that this is how being fed up with the government will increase more and more. Laws and abiding by them will consequently lose their high social value. I understand better and better why ever more persons no longer trust in politics and remain at home on election day.

But this is not all. I assume that the sexual crimes legislation is something the actual legislators, i.e. the powerful lobbyists, could not care less about. The only groups that come to mind as being concerned are the Christian Churches, Islamic interest groups and perhaps women’s rights groups. Let us hope that at least some lawyers who want the best for humans in this sense are part of those who make the new law.

However, when thinking of laws with economic impact, matters are even worse. Formally, they are just as bad and contradictory, but additionally, most of these laws originated to a huge extend with lawyers and lobbyists. As Richard Gutjahr showed with his Lobbyplag  (Richard Gutjahr mit Lobbyplag).

Our former Federal President Roman Herzog comes to mind. He is said to have proposed that, first and foremost, all laws with uneven numbers should be abolished. If then people actually miss something, you could introduce a new, minimal law. And later on, you could try the even numbers.

Well, maybe the marginalization of the legislative process is now under way in an evolutionary sense. Except totally different from what Roman Herzog proposed. The motto might be: the more terabytes full of laws we produce, the less people care.

(Translated by EG)


Incidentally, I had to learn that many young persons no longer even know the meaning of the terms “executive”, “legislative” and “judicative”. Good-bye democracy?
I took the picture from Wipedia – „Iustitia van Heemskerck“ by Maarten van Heemskerck.

1 Kommentar zu “Defunct Legislation – Good-Bye Rule of Law?”

  1. Joachim Schnurrer (Thursday February 5th, 2015)

    Der Abgeordnete (Politiker) schwört:
    „Ich schwöre, dass ich meine Kraft dem Wohle des deutschen Volkes widmen, seinen Nutzen mehren, Schaden von ihm wenden etc……
    „deutschen Volkes“ muss natürlich durch Lobbyisten ausgetauscht werden,
    dann versteht man das gleich viel besser.
    Einfach mal für sich selbst laut vorlesen, das beeindruckt gleich ganz anders.

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