The Defence of Superior Order: a comparison of the legal situation in Germany, the United States of America and South Africa

Ertner, Ralph M

The Defence of Superior Order: a comparison of the legal situation in Germany, the United States of America and South Africa

Master Thesis

1998

Abstract

In most of the situations where is more than one person involved one person is superior to the other. The father is superior to his child, the employer is superior to the employees, the captain is superior to his team or the general is superior to his soldiers. If there is a task to be carried out, any person may carry this task out on grounds of free will. But if the person does not want to carry out this task, then the superior may order him to do so. But what happens if the task carried out after such an order been given proves to be wrong? What if it even fulfils the definition of the crime? The ordered person may be accused of committing a crime and then may say: "But I was ordered to do so. Blame my superior but not me!" This dissertation will deal with the legal background of this "defence" raised by the accused. It will compare the three different legal systems of Germany, the United States of America and South Africa to determine on which grounds a superior order given prior to the act can serve as a basis for a defence. The three legal systems, the history, the acceptance by the courts and all the prerequisites established in the course of decades of jurisprudence will be analysed in order to establish a scheme under which these countries deal with superior orders being involved prior to a crime or offence committed by the receiving inferior.

Keywords

Private Law

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