The Codification of Civil Law in Germany

In Germany, the French Civil Code attracted a great deal of attention and parts of the country adopted this law as Napoleon extended his rule over Europe.

However, the rise of German nationalism during the wars of independence compelled many scholars to express the need for the introduction of one uniform code for Germany to unite the country under one modern system of law and precipitate the process of its political unification. In 1814, A. F. J. Thibaut (1772-1840), a professor of Roman law at Heidelberg University, declared this view in a pamphlet entitled ‘On the Necessity for a General Civil Code for Germany’.^{^[823]} Thibaut, a representative of the natural law movement, claimed that the existing French, Prussian and Austrian civil codes could serve as useful models for the German draftsmen. Thibaut’s proposals encountered strong opposition from the members of the Historical School,^{^[824]} headed by the influential jurist Friedrich Carl von Savigny (17791861).^{^[825]} Savigny elaborated his thesis in a pamphlet entitled ‘On the Vocation of our Times for Legislation and Legal Science’.^{^[826]} He asserted that law was similar to language, ethics and literature in that it was a product of the history and culture of a people, and existed as a manifestation of national consciousness (Volksgeist)—it could not be derived from abstract principles of natural law by logical means alone.^{^[827]} From this point of view, Savigny argued that the introduction of a German Code should be postponed until both the historical circumstances that moulded the law in Germany were fully understood and the needs of the present environment were properly assessed. A perplexing question that Savigny had to answer was how to reconcile the idea that the law emanated from the people with the fact that the Roman law operating in Germany was an alien importation.

Savigny responded in the following manner: at a certain stage in a nation’s development, the creation of law by the people became an overly complex and technical process and further development necessitated the establishment of a professionally trained class of lawyers and jurists. In Germany, this stage was reached in the fifteenth century and the jurists who were responsible for the reception of Roman law during that period were true exponents of the German national spirit. Thus, Roman law, as organically received law, is part of German legal history and contemporary legal life; at the same time, it supplies the connecting link between German law and European legal culture in general.

The early proposals for codification were abandoned due to the influence of the Historical School and, perhaps more importantly, the lack of an effective central government. At the same time, scholarly attention shifted from the largely ahistorical natural law approach to the historical examination of the two main sources of the law that applied in Germany, namely Roman law and Germanic law, in order to develop a true science of law. A group of scholars focused on the study of Germanic law, whilst others (including Savigny) concentrated on the study of Roman law and explored beyond the ius commune into the Corpus Iuris Civilis and other ancient sources. The latter jurists set themselves the task of studying Roman law to expose its ‘latent system’, which could be adapted to the needs and conditions of their own society. In executing this task, these jurists (designated Pandectists) elevated the study of the Corpus Iuris Civilis and especially the Digest to its highest level and produced an elaborate and highly systematic body of law (Pandektenrecht) for nineteenth century Germany. Leading representatives of the Pandectists were Georg Puchta, Adolf Friedrich Rudorff, Ernst Immanuel Bekker, Alois Brinz, Heinrich Dernburg, Rudolf von Ihering and Bernhard Windscheid.15 They produced an elaborate and highly systematic body of law (Pandektenrecht) for nineteenth century Germany.

Although the Pandectist movement emerged from the Historical School, it ultimately adopted a rather ahistorical and primarily doctrinaire approach to law.

The Pandectists adopted this approach believing in the superiority and eternal validity of Roman law. Their chief objective was to construct a legal system where all particular rules could be derived from and classified under a set of clearly formulated juridical categories and abstract propositions. In this respect, law is approached as a form of logic, a coherent assembly where everything can be reduced to general principles, concepts and conceptual categories. Extra-legal ^{^[828]} evaluations do not matter, as propositions of law cannot be considered, let alone justified, from an extra-legal point of view. The Pandectists’ conception of law as a logical system (sistema iuris), distinct from the social, religious, political and economic domains, had a strong impact not only on legal theorists but also on judges: it gave social, ethical, political and economic neutrality to the logical processes that led to specific judicial decisions. In the area of legislation, this approach to law has entailed the use of a technical and abstract language. It also led to a high level of precision in selecting the relevant terms and phrases whose meaning remains fixed throughout the text of the law.

The process of abstraction and generalization is natural and indeed inevitable, if the law is to consist in anything other than a collection of practical rules and solutions to actual problems. However, it involves the danger that once a general rule is formulated it tends to dominate legal life rather than adapt itself to it. The legal genius of the Romans was displayed in their ability not only to create abstract propositions through an analysis of their law, but also to create sufficient flexibility in the abstractions to enable their synthesis into new rules and principles when change was needed. The Roman jurists never made the mistake of over-valuing their abstractions. In contrast, the German jurists became fascinated with the concepts themselves and came to reject as logically unthinkable any change that involved a conflict with the concepts they had formulated.

This attitude was particularly dangerous, since the Roman abstractions were formulated as summaries of their own development whilst the German Romanist scholars wished to transpose them to the completely different context of nineteenth century Germany. It was unavoidable that the Pandectists, consciously or unconsciously, considerably distorted the Roman law concepts they revised. Above all, their master concept that law exists to further the realization of the individual will was derived from Hegelian philosophy rather than Roman jurisprudence. The most rigorous attack on the methods of the German legal scholars came from the ranks of the Pandectists themselves in the person of R. Ihering.^{^[829]} Ihering asserted that “our Romanistic theory must abandon the delusion that it is a system of legal mathematics, without any higher aim than a correct reckoning with conceptions.”^{^[830]} Nevertheless, the preoccupation of the Pandectists with the formulation of abstract concepts continued throughout the nineteenth century and their approach played an important part in the process towards the codification of the civil law in Germany.

While the Pandectists conceded a central role to the free will of the individual as a participant in law, the jurists of the Germanistic branch of the Historical School emphasized the social aspects of law, giving primacy to collectivism and cooperativism over individualism. This approach was most distinctly represented by Otto von Gierke (1841-1921), who was appointed professor in Berlin in 1887. Other leading exponents of the Germanistic branch were Karl Friedrich Eichhorn, Jakob Grimm, Georg Beseler and Emil Brunner. These jurists erected from the scattered and fragmentary expressions of Germanic legal thought embodied in the legislation and judicial decisions of the German states, and from the history of Germanic legal institutions, a distinct system of law, and strongly championed its principles against those of the Pandectists.

While these historical and theoretical controversies were raging, the political unification of Germany occurred under Chancellor Bismarck and the Second Reich was founded in 1871.

However, legal unity did not immediately follow political unity. Throughout the nineteenth century, Germany remained divided into three major areas with respect to private law. The left bank of the river Rhine had been annexed by France in 1794. In this part of the country and other territories under French control, the French Civil Code was in force. Despite the theories of the Historical School, this Code was well received and successfully applied. Prussia and Saxony were territories with codified law, the latter having adopted a Code in 1863. The remainder of Germany was the land of the Roman-canonical law of the Pandectists, modified by particular regional and municipal statutes and customs. But these divisions were clearly no longer tolerable and a commission of 11 members was appointed in 1874 to draft a civil code for the whole of Germany.^{^[831]} The code emerged from a 20-year process that involved two drafts.^{^[832]} The first draft was published in 1887 and it provoked strong criticism from Germanist scholars who objected to the fact that the work was composed almost entirely from the Roman element of the law. The critics also denounced the abstruse language of the work and its remoteness from everyday social and economic life.^{^[833]} In response to these criticisms, a second commission composed of ten permanent members (university professors, lawyers, state officials and professional experts from commerce and industry) and 12 non-permanent ones was appointed by the government to redraft the code in 1890. This second draft, as modified by the Council of State (Bundesrat) and a commission of 21 members of the parliament (Reichstag), became law on 14th July 1896 with effect from 1st January 1900.

The German Civil Code, the Bürgerliches Gesetzbuch or BGB., is marked by two outstanding characteristics: its highly systematic structure and its conceptualism.

In both these respects, it owes a great deal to the work of the German Pandectists of the nineteenth century. The Code is divided into five books. The first book contains the general principles of the entire civil law, i.e. the principles that have general application to all legal relations except when special rules are provided. It includes provisions relating to persons (both natural and legal); the nature and classification of things and juristic acts; acting capacity; offer and acceptance; agency and ratification; limitation and prescription; and private means of redressing wrongs and securing rights. The second book is devoted to the law of obligations (Schuldrecht), which is concerned with the legal relation between particular subjects of rights. The third book contains the law of property (Sachenrecht) that addresses the rights of persons over things by describing the content, acquisition, loss and protection of real rights. The fourth book covers family law (Familienrecht) and is divided into two parts: the first part regulates personal relationships in the family; the second regulates the property relationships of family members. Finally, the fifth book deals with the law of succession (Erbrecht) that regulates the succession to the rights and liabilities of a deceased person. As already noted, the influence of the Pandectists is reflected in the Code’s systematic consistency, succinctness and conceptual clarity. However, the work is not designed to be intelligible to the layman; it is codified jurists’ law for jurists, only to be read and understood by them. This did not pose a problem for judges and legal practitioners, who were familiar with the style and methods of the Pandectists through their university legal training.

Notwithstanding their important differences with respect to style and structure, the German and French Civil Codes have a great deal in common. Both codes drew heavily on common sources of law—the ius commune and their respective national laws. The influence of the ius commune derived from Roman law is particularly evident in the field of the law of obligations, as well as in the way the materials are structured and systematized. On the other hand, native sources of law appear to have exercised a considerable influence in the areas of family law and the law of succession. Moreover, the two codes have a common ideological basis as both are grounded on nineteenth century liberalism and are permeated by the notions of individual autonomy, freedom of contract and private property. As many changes in society transpired during the period of a hundred years that separates the two codes, the German Civil Code is in some respects more advanced or up-to-date than the French one. For example, several important provisions of the German Code recognize that certain private rights are related to certain social obligations and that a subjective right can be misused or abused. In the field of family law, the authority of husbands and fathers is less absolute than in the French Code and the definition of family is not as broad as that adopted by the latter code. Moreover, women have more power in relation to their own property matters. Certain aspects of contract and tort law reflect the effects of the increasing complexity of commercial relationships as well as the advances of industrialization.

In the period following the enactment of the Civil Code, German scholars focused mainly on the task of rendering the Code applicable in practice. This entailed explaining its difficult text, and elucidating and developing its concepts and principles. During the same period, the reaction against the excessive formalism and conceptualism of the Pandectists grew stronger. After the First World War, German legal science began to discard the methods of the Pandectists. While preserving the Pandectists’ genius in formulating general concepts, German jurists started to place more emphasis on the examination of detailed facts and the operation of legal principles in concrete factual situations. This process was interrupted, however, by the rise of National Socialism in the post-WWI period and the decline of liberal democratic ideas in Germany. Nevertheless, these new ways to conceptualize the law—associated with legal realism and the sociology of law—entered legal thinking in America and other countries, and exercised a strong influence on the development of legal thought in the twentieth century.

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

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