THE GERMAN CIVIL CODE BASED ON ROMAN LAW
Our third illustration is even more of a paradox, as it concerns the Roman character of the German Civil Code of 1900. If the Germanic customs survived so strongly in (northern) Gaul, they should have totally prevailed in Germany, i.e.
those lands east of the Rhine and north of the Danube that stayed outside the Roman empire. In other words, according to the rules of logic, German civil law ought to be Germanic, just as French civil law should have been Roman, France belonging to the Latin world and being situated on ancient Roman soil. But history does not always - or even usually - listen to the dictates of logic, but follows its own, wayward paths. However strange it may2 J. Hilaire, La Vie du droit. Coutumes et droit ecrit (Paris, ι 994), 44; B. Beignier, â€?Le chene et l’olivier’ in Ecrits en hommage a Jean Foyer (Paris, 1997), 355— 75. The nineteenth century, in fact, witnessed the triumph of the regime de la communaute in the south, to the detriment of the traditional dotal system. Normandy, although situated in the north, also lived according to the latter. SeeJ. Musset, Les regimes des biens entre epoux en droit normand du XIVe siecle a la Revolution Jretneaise (Caen, 1997). seem, it is an incontrovertible fact that the Biirgerliches Gesetzbuch is profoundly marked by Roman law, even though its language is German and its public the German citizenry. This surprising state of affairs can only be explained by the peculiar course of German political history — we refer of course, to the conscious decision taken at the end of the fifteenth century to â€?receive’ the Roman learned law of the medieval universities as the naÂtional law of Germany and to abandon the existing multitude of local and regional customs: a momentous step known as the Rezeption.
Emperor Maximilian and the humanists in his entourage dreamt of a modern German nation state, to replace the diviÂded medieval kingdom.
Germany had missed the boat of centraÂlization and unification because of the involvement of her kings with the Roman empire and Italian politics, but this was going to change and the new German nation state would be provided, inter alia, with one national law, to replace the fragmented cusÂtoms. This new law was to be, not the northern Sachsenspiegel or the southern Schwabenspiegel, but the learned Roman law of the medieval schools. Thus Germany would acquire in one fell swoop one common law (gemeines Recht) and the best Europe had on offer. As this was a legacy from imperial Rome and known as Kaiserrecht, it linked the German empire to the glories of Antiquity. The Rezeption was ordained by the German Estates and a new supreme court, the Reichskammergericht or Imperial Chamber Tribunal, was instituted in 1495 to implement and suÂpervise this momentous â€?legal transplant’. Half the judges were to be learned jurists, graduates in Roman law, and the other half knights, but by the middle of the sixteenth century they were all required to be holders of a law degree. From the sixteenth to the nineteenth century this â€?received’ foreign system was the basis of legal scholarship in Germany and its greatest triumph came in i 896 when the parliament of the German empire promulÂgated a civil code that was fundamentally Roman-based and professor-made (more about this in chapter 6). The decision of 1495 was all the more remarkable as medieval Germany had produced an imposing array of law books of her own and some of her Schoffengerichte or aldermen’s courts, such as Magdeburg and Leipzig, had developed an extensive case law, which was authorÂitative in large areas, particularly in the east. Nevertheless this age-old, well-documented and established tradition was - largely but not completely - jettisoned at the end of the Middle Ages. â€?Receptions’ and â€?legal transplants’3 are not unknown in other places and at other times. One of the most striking examples in our own age was the adoption by Japan, at the time of the Meiji revolution, of the German Civil Code for the modern westernÂized Japanese empire. When the country decided to follow westÂern examples, it first looked to England, which was the leading world power of the time, but the absence of an English civil code proved an insuperable obstacle. So the Japanese turned their attention to France, also a successful colonizing power of world stature and provided with a famous civil code. Preparations were made for the adoption of the Napoleonic lawbook and Professor Boissonnade went to Japan to prepare the way. Students at the old Paris Faculty of Law, near the Pantheon, are reminded of his efforts by a bust of the great jurist on the first floor, with two inscriptions, one reading E. Boissonnade. Conseiller legiste accredite du gouvernement japonais et professeur a l'Universite Imperiale de Tokio 1873 —1893 and the other Au Professeur E. Boissonnade Hommages des Japonais reconnaissants Paris 1934. Politics and military events, however, upset these plans, as the French defeat at the hands of Bismarck in 1870 suggested to the Japanese - by some weird logic - that German might be superior to French law, as German weapons had beaten the French. Hence the Japanese decision to adopt the Burgerliches Gesetzbuch, two years after its promulgaÂtion in Germany (modernization was clearly an urgent business in the land of the rising sun). So the sixth-century lawbook of Justinian first became the leading textbook of western medieval universities, four centuries later the law of modern Germany, after another four centuries the cornerstone of the civil code of3 The phrase is borrowed from A. Watson, Legal transplants. An approach to comparative law (2nd edn, Athens (Ga.), London, ι 993). the Wilhelmine Reich and — for the time being — ended its career as the law of twentieth-century Japan. It had travelled west, then east and then further east again, in a voyage that spanned the world.[2]