CIVIL CODE OR THE PEOPLE’S LAWBOOK?

Criticism of the new Code did not disappear with the passing of the century, but continued in the next, not only in academic circles, but also in the party political arena. Here the Code and its Roman orientation became the object of virulent rejection at the hands of the National Socialist Party, which undertook — but never achieved — the elaboration of a new code, to be known as the Volksgesetzbuch, or �?people’s lawbook’.

As early as i 92o the tone was set in art. i 9 of the programme of the National Socialist German Workers’ Party, which said: �?We demand the replacement of the Roman law, which serves the materialistic world order, by a German community law.’¹⁵ When, thirteen years later, the NSDAP, or Nazi Party, came to power, it lost no time in trying to implement this legal aspect of its ideology, and work was taken in hand to replace the Roman- inspired BUrgerliches Gesetzbuch, which could mean a �?bourgeois’ code as well as a �?civil’ code, by a �?people’s code’ or �?people’s lawbook’. The drafting of this Volksgesetzbuch was entrusted to the Academy for German Law, founded on 26 June i 933 and manned by academic jurists.¹⁶ It worked under the guidance of Dr Hans Frank, who afterwards became notorious as the ruler of German-occupied Poland.¹⁷ The new code never saw the light of day, but the reports and projects drafted by the Academy

decades: M. John, Politics and the law in late nineteenth-century Germany The origin of the Civil Code (Oxford, i 989).

¹⁵ See the detailed analysis in P. Landau, �?Romisches Recht und deutsches Gemeinrecht. Zur rechtspolitischen Zielsetzung im nationalsozialistischen Parteiprogramm’, in M. Stolleis and D. Simon (eds.), Rechtsgeschichte im Nationalsozialismus (Ttibingen, i989), 11 —24. The German text reads as follows: �?Wir fordern Ersatz fur das der material- istischen Weltordnung dienende romische Recht durch ein deutsches Gemeinrecht.’ It should be noted that Gemeinrecht has nothing to do with the historic gemeines Recht, or ius commune, but can best be rendered as �?community law’.

¹⁶ H.-R. Pichinot, Die Akademie fur Deutsches Recht. Aufbau und Entwicklung einer offentlich- rechtlichen Korperschaft des Dritten Reiches (Kiel, 198i ; D. L. Anderson, �?The Academy for German Law i 933—i 944’, 2 vols. (Michigan, 1982, Diss.).

¹⁷ C. Schudnagies, Hans Frank. Aufstieg und Fall des NS-Juristen und Generalgouverneurs (Frankfurt, Bern, i989); D. Willoweit, �?Deutsche Rechtsgeschichte und “national- sozialistische Weltanschauung”: das Beispiel Hans Frank’, in Stolleis and Simon (eds.), Rechtsgeschichte im Nationalsozialismus, 2 5—42. have survived and are being edited so that they can be studied.^[125] Public opinion was left in no doubt about the importance of this legal revolution. The German Lawyers’ Conference, or Deutscher Juristentag, in Leipzig in ι 933, which attracted some 20,000 par­ticipants, had chosen as its theme �?German law and its struggle against foreign law’ — the latter being, of course, Roman law. In this conflict between �?lawyers’ law’ and �?people’s law’ the idea of fundamental rights of the individual was rejected and the general good was given precedence over individual inter­ests. The impact of Hitler’s becoming Chancellor on 30 January ¹ 933 was quickly visible, as the membership of the League of National Socialist Lawyers rose from 1,374 on ι January ι 933 to almost 30,000 in October of that year. The congress at Leipzig witnessed the proclamation of Hans Frank as Reichsrechtsfuhrer. There was a march with torches, an address by Frank devoted to the impact of�?Nordic man’ in China and Persia, and a speech by Hitler himself.^[126] This, however, did not mean that the Ftihrer had given up his old mistrust of lawyers. As his regime became ever more dictatorial, respect for legal norms came to reach an all-time low so that, in the summer of ι 942, even Frank became worried and gave lectures in the universities of Berlin, Vienna, Munich and Heidelberg protesting against the arbitrary exercise of power: he rejected the fashionable criticism of lawyers and ex­claimed that �?without the law society was impossible’.

The plebeian Nazis were not alone in their onslaught on Roman law. Respectable academics also voiced criticism in the twentieth century, as they had done in the nineteenth. In their ranks we find cultural historians such as the famous Oswald Spengler, who criticized the Civil Code of i 900 and deplored the rediscovery of the Corpus iuris, and leading legal historians such as Heinrich Mitteis. This internationally known specialist in feudalism and the comparative study of medieval political institutions was also an authority on the history of German private law. He did not sympathize with the Nazis, who cold­shouldered him and thwarted his professorial career,^[129] but he was a German patriot, who had studied under Gierke in Berlin and believed in the values of the Germanic past as a source of inspiration for twentieth-century Germany: legal history had to illustrate the great deeds of the German nation and to make youth proud of its exalted past. Mitteis consequently was criti­cal of the Corpus iuris and the Rezeption, even though his father, Professor Ludwig Mitteis, was a renowned student of Roman law. Heinrich Mitteis reproached the ius commune with �?partly destroying’ the flourishing German community law:^[130] because of the Rezeption �?modern German law was no more a possession of the people, but an esoteric science in the hands ofbureaucrats’.

The present-day observer is amazed that Roman law was blamed for the triumph of capitalism and anti-social Iaissezfaire, for the demonstration of the falsehood of this idea was easy to make. One had only to consider the case of nineteenth-century England, where freedom of contract and laissez-faire liberal­ism triumphed as nowhere else, and it all happened under the aegis of that most un-Roman of legal systems, the English com­mon law!^[133] But how could such a �?cold’, �?Roman’ counterproof prevail against deep-seated political convictions?