Monday, April 4, 2011

A Little Comparative Legal History

This afternoon I had the pleasure of attending talks by two German Academic Exchange Service (DAAD) Fellows. The first was a very engaging discussion about theories of criminal punishment and the use of preventative detention in the German penal system. The second was an historical perspective on the development of abortion law, with a comparison between the US development leading up to and surrounding Roe v. Wade and German jurisprudence around the same time.

The speaker, Felix Lange, remarked that it was a striking contrast in the jurisprudence of otherwise similar Western democracies. Obviously, in Roe the Supreme Court ruled that, as a matter of right to privacy, women in America have the right to an abortion. The German Constitutional Court took a different view, it ruled that the right to life in the German constitution extended to protect the unborn.

Why the dichotomy? The proposal that the Courts were merely responding to the social conscience of the people was held up as a major reason for the opposing rulings. The German people still had the memory of the policies and horrors of the National Socialist movement fresh in the collective conscience. The desire to distance themselves from that history may have influenced the Court toward a ruling that came down firmly on the side making a clear statement for the sanctity of life.

An interesting proposition, don't you think?

1 comment:

  1. Quite possible. The same motivations seem to have influenced German law elsewhere. I recall preacher Ravi Zacharias commenting how it was interesting that the Germans had completely banned human cloning while the Brits had allowed research to proceed with hardly any restrictions. Sounds like the Germans were hoping to discourage any would-be Josef Mengels.