The Judicial System of the German Empire With Reference to Ordinary

Jurisdiction*

(Copyright, 1914, by F. K. Krüger.)

The Making of the German Civil Code. Up to the first of January 1900, there existed in Germany an antiquated and completely confused situation in regard to the civil law.

In Prussia three different civil codes were in force: the Allgemeines Landrecht of 1794 in the old Prussian territories of 1815, in some parts the Gemeines Deutsches Recht, a mixture of Roman, Germanic, and Canon Law, and in the territory west of the Rhine the French Civil Code. Baden had her Landrecht, which was mainly the same as the French Civil Code; the Kingdom of Saxony had its own code of 1863. In Schleswig-Holstein the Danish law of Christian V of 1683 was law; a small part of Bavaria was under the Austrian Code of 1811; the major portion of the empire, Central Germany, was under the Roman law as "received" and modified by ancient Germanic customs. All these laws were modified by local customs and statutes to such an extent that different systems of law were administered in the same political units, even in the same city.

This terrible confusion had, long before the foundation of the new German Empire, awakened the desire of greater unity among the systematic German jurists. But before the political union of Germany, no attempt had reached a goal. The history of the German civil code is the history of German political unity. The desire for legal unity began with the longing for political unity, i. e. after the Napoleonic wars at the beginning of the 19th century.

*From a forthcoming work on the "Government of Germany," by the author. The article is published by the courtesy of the World Book Company.

It was in the year 1814 that a German professor of jurisprudence, Thibaut, wrote: "I am of the opinion, that our law * * needs a complete and quick change, and that the Germans cannot be content in their civil relations, unless all German governments try to bring into effect with united strength, the publication of a Code for all Germany, which is removed from the arbitrariness of the several states."

Thibaut, the patriotic politician, was opposed by the famous founder of the historical school of law, Savigny, who denied the necessity as well as the possibility of creating a common Code for the German Empire at that time. He expected a unity of law from the very gradual organic development of the science of jurisprudence. The universities were, in his opinion, the uniting force for a common German Code.

The great theoretical dispute which arose between these two jurists furnished the arguments for and against the legal unity of Germany in all future discussions. Looking back, after the work is now completed, we may say that right and wrong was on both sides. Thibaut, as an ardent progressive reformer, had overestimated the popular desire for German legal unity. One swallow does not bring about the summer. He was right in the emphasis on the national and practical necessity of a Code. Savigny, on the other hand, relied too much on the power of his historical method and the uniting power of the science of jurisprudence. He did not recognize the power of national feeling in creating legal reforms. However he was right, when he said that the time. was not ripe for legal unity.

The German Confederation did not pay any attention to Thibaut's suggestions and was hardly the appropriate State to take a unification of the German law into its hands, since it had no general legislative power. How deeply however the necessity for a common law of Germany was felt can be seen by the repeated attempts to create common codes even with these imperfect means. In fact two attempts led to a practical result. In 1847, a Code on Bills of Exchange, and in

1 The project for an Imperial Constitution of 1849 provides in Art. XIII, § 59, for a common Code in civil and criminal law and procedure, in bills of exchange and commercial law.

1859, a Commercial Code went into effect for the whole Confederation. The draft of a Code of Obligations, prepared without the participation of Prussia, was never enacted, since the Austro-Prussian War of 1866 broke out on the same day on which it was finished.

The idea of a common German law had now gradually attracted a number of warm friends, who time and again proposed a general common codification of all law for the North German Federation. However for the time, only criminal law, legal procedure, bills of exchange, and commercial law were left to the legislation of the North German Federation. The representative Lasker in the Reichstag, was especially active in bringing in bills for a common codification of the civil law.

Finally, in the year 1873, a bill of Lasker's to amend Art. IV no. 13 of the Constitution so as to include the whole civil law, was made a law of the Empire. The amendment, made on the 20th of December, was a most precious Christmas present to the German people.

The Bundesrat or Federal Council then appointed a Commission of five prominent practical jurists for the settling of some preliminary matters necessary for the preparation of the draft, and for laying down the principles for the work of the general commission.3

This general Commission consisted of 11 members, leading professors of jurisprudence and judges, representing the different systems of law in existence at that time. The drafting of the different parts of the Civil Code was given to five members as "redactors" or editors. After seven years of individual work, the commission came together as a body and discussed the drafts. In the year 1887, a project was transmitted to the Chancellor and published by him in 1888 together with a summary of the existing situation and reasons for the changes recommended by the commission.

2 It might be noted that the first attempts toward an International Private Law began with a common codification of Bills of Exchange.

3 For the work of the Commission in detail, see: "Die Ausarbeitung des Entwurfes eines bürgerlichen Gesetzbuches." "Herausgegeben von der Redaktion des Deutschen Reichs-und Königlich Preussischen Staats-Anzeigers." Berlin, 1877, pp. 1-11.

The publication had the purpose of eliciting suggestions and criticisms from all parts and all classes of the German Empire, so as to bring the work of the experts into harmony with general public opinion. And indeed the literature produced was tremendous. The strongest opposition came from the Germanistic School led by the distinguished Berlin Professor, Gierke, who wished a fuller recognition of the German Customary Law.

As a result of these criticisms a new commission of 22 members, representing all interests in the land, was appointed. Each draft of the Code was published, and after the criticism of the public, thoroughly revised by still another commis

sion.

In January 1896, the draft of the Code and the Introductory Law was completed and placed on the table of the Reichstag together with an official memorandum, called Denkschrift zum Entwurf eines bürgerlichen Gesetzbuches, or memorandum for the project of a Civil Code.

By the Reichstag the project was, after the first reading, transmitted to a committee of twenty-one members from the different parties. In June, the committee reported to the House. The discussions in it were characteristized by the dignified attitude of cool critics aside from all considerations of party politics. July 1, 1896 the bill was passed by a very large majority with only one amendment.

The Federal Council adopted the Code on July 4th and the law was published on August 18th.

It went into effect January 1, 1900 together with an Introductory Law, a Law on Judicial Organization, and a Law on Civil Procedure.

The making of the German Civil Code is perhaps the most remarkable example of brilliant, thorough, constructive legislation in existence. It was rendered possible by the high idealism of the mass of the German people, their patience and confidence in their jurists. It was the work of highly trained experts, subjecting themselves to general public opinion for the welfare of their fatherland. The German Civil Code is truly a child of all united Germany, a striking illustration of the effect of idealism in politics. It serves, as an English writer observes, as a standing object-lesson to all states that

are looking forward in the future to a scheme of codification, and the Germans may well be proud of the labours which for twenty-two years were devoted to its consideration.* Outline of the Civil Code. The German Civil Code is generally recognized by foreign jurists as a masterpiece in jurisprudence if not the greatest Code since Justinian. Thus Professor Maitland, the eminent English jurist, says: "The German people have brought that law up to date and are facing modern times with modern ideas, modern machinery, modern weapons." "It is the most carefully considered statement of a nation's laws that the world has ever seen." And E. M. Borchard, an American specialist on German law, praises the German Civil Code with the following words: "German codification truly exemplifies a power of legal expression with which Bryce credits the Roman jurists-the power of so framing general rules as to make them the expression of legal principles, and of working out these rules into their details so as to keep the details in harmony with the principles."

It is impossible and not essential in a brief article to give a detailed account of the contents of the Civil Code. A systematic outline is considered sufficient to give the foreign student a general idea of the great German Code.

The 2385 paragraphs of the B. G. B. (the official abbreviation for Bürgerliches Gesetzbuch) are grouped into five books, of which the first contains general principles and rules, (Allgemeiner Teil, 1-240), while the second book deals with the "law of obligations," (Recht der Schuldverhältnisse, 241-304), the third with the "law of things," (Sachenrecht, 854-1296),

4 A. P. Higgins, "The Making of the German Civil Code," in "Journal of the Society of Comparative Legislation." New Series No. XIII.

5 Independent Review, 1906, p. 219.

Maitland in the introduction to his translation of Gierke's "Political Theories of the Middle Ages."

7 Guide to the Law and Legal Literature of Germany, by Edwin M. Borchard. Government Printing Office, 1912.

8 The best English translation of the Civil Code is that of Chung Hui Wang. The German Civil Code. Translated and Annotated with an Historical Introduction and Appendix. London, 1907. The best treatise in English is that by E. J. Schuster. The Principles of German Civil Law. Oxford, 1907.