German law has its roots in the feudal and territorial law that emerged in the 11th century with the development and organization of the city-states and principalities of the Hohenstaufen empire. This was, by the 13th century, a legal system of written law in statute books and unwritten customary law coexisting together. During the 13th century, German law followed the movement towards compilation and further refinements of the territorial and feudal law of the region. The seminal work was the Sachsenspiegel of Eike von Repgow, which was composed about 1200–1235 and which became the basis for commentary and later legislation. This was enlarged on by the Deutschenspiegel, an effort at presenting a common law for all of Germany that originated in Augsburg in the mid-13th century. This was then reworked as the Schwabenspiegel. The movement for a general law was shared with an ongoing codification of local laws, applicable throughout large areas, kingdoms and fiefdoms, or very small territories and even manors and abbeys. A parallel development in the 13th–14th centuries (reflecting the increasing importance of urban and trading areas) was the creation of a separate and distinct body of more sophisticated city law that is traced to Saxonian cities from the early years of the 14th century.
During the period of emergent German law (whether written or customary), Roman law, refined and reshaped by late medieval Italian scholarship, was also finding its way to the German lands. The eventual “reception” of Roman law was facilitated by the general application of canon law and also by the continued inability of a fragmented Germanic legal tradition to resist the true jus commune of the more sophisticated Corpus juris civilis. While the reception of medieval Roman law was never total, and often consisted of the grafting of pieces or whole sections of Roman law onto German instruments, it achieved dominance throughout the empire by the end of the 15th century. Even as the Holy Roman Empire was slowly falling into decay from the close of the Middle Ages, and as the various German kingdoms asserted independence in the drafting of legislation, Roman law remained the one constant in the legal tradition of an increasingly feeble and contracted empire.
Modern German law actually begins with the revived interest in natural law combined with a movement for national codification. The most extensive result (outside Austrian/Hapsburg lands) were the Bavarian codes on criminal law and procedure and civil procedure of 1751 and 1753 and the civil procedure code of Frederick of Prussia—the first book of the Corpus juris Fredericianum of 1781.
The final efforts of the ancien régime in all of Germany were overshadowed by the rekindling of a national spirit in Germany after the Napoleonic Wars. The impetus was given by the first major German codification of wide application, the Allgemeines Landrecht für die Preusssischen Staaten, which went into force in Prussia in 1794 and was extended to Westphalia in 1814. This uniquely German natural law codification was a product of the Enlightenment and (as the Code Napoléon) of an absolutist ruler. While the Prussian codification was overly detailed and unappealing to the Romanists and those attracted to the evolving French civil law tradition, it represented an advance in the idea of codification for a German state.
The series of political transformations in Germany after the Napoleonic period centered on the development of national identity which culminated in the defeat of Austria in 1866 and of France in 1870 and the unified empire’s establishment in 1871. For the next 30 years, the drafting of codes based on national needs and culture occupied all of German legal scholarship. The resultant codification was substantially an accomplishment of the “historical school” of German-Roman law scholarship and a reaction to the natural law orientation that influenced the French-controlled civil law tradition. New codes were enacted throughout the Empire for the first time; a commercial code adopted by the German Confederation in 1861 was declared in force for the Empire in 1871, as was the Prussian criminal code of 1851. Codes of civil and criminal procedure were adopted in 1877. The enactment of the German civil code (the Bürgerliches Gesetzbuch), the most sophisticated and original work, was not accomplished until 1896; this major, detailed and innovative body of law came into force on 1 January 1900. Although a monument to German scholarship and the influence of the Pandectists as well as a brilliantly drafted codification and organization of all civil law, the BGB, which came late into the field, has not had much direct influence outside Germany. Its indirect influence is apparent in Switzerland, Greece, Japan and (most recently) Italy.
The BGB is a document that has survived the constraints imposed by its extensive detail and specificity, a survival due as much to the flexible approach taken by contemporary German legislators, as by the general legal tradition at work in present-day Germany.
Admittedly, the German civil code, the foundation of German private law, was a far-from-revolutionary document.
Codes of private law are stamped by the particular historical situation in which they are produced. Many codes consolidate the results of a recent reconstruction of society; their advantage is that the idea of man and the model of society which inspired them may be expected to remain valid for a considerable period. Other codes, by contrast, are created at a time of relative social and political stability; their spirit is often retrospective and reflective, seeking to maintain a situation favourable to the establishment. The German BGB is one of these rather conservative codes.5
The code is not obviously displayed or easy to
work with; nevertheless it continues to function and serve many of the purposes
for which it was designed, a product of the German Pandectist school.
The BGB is not addressed to the citizen at all, but rather the professional lawyer, it deliberately eschews easy comprehensibility and waives all claims to educate its reader; instead of dealing with particular cases in a clear and concrete manner it adopts throughout an abstract conceptual language which the layman, and often enough the foreign lawyer as well, finds largely incomprehensible, but which the trained expert, after many years of familiarity, cannot help admiring for its precision and rigor of thought.6
Clearly then, this splendid document is the exact opposite in design and effect of the Napoleonic codification and even the practical and simple (in language and thought) Austrian and Swiss codes, which were aimed at the ordinary citizen. The foreign user must approach it with caution as quite an unusual document. Its “General part” is, in what has become a not-uncommon feature of German legislative drafting, a collection of rules and principles in a relatively abstract if systematic formulation. These then are to be applied to the other “books” of the code that follow, e.g., persons, principles, property, etc., all treating on the traditional forms of the civil law.
The expansive commercial code of 1871 (actually 1861) was also replaced towards the end of the 19th century by a new Handelsgesetzbuch of 10 May 1897. Both the civil and commercial codes have been extensively revised in part, but the post-war German legislative tradition has been to legislate outside the codes, to draft free-standing laws on labor and the employment relationship and on business associations quite independent of constraints imposed by the structure of the codifications.
Certainly the development of modern German law continues to be shaped into the late 20th century by the achievements of 19th century codifiers and scholars. The earlier codes of the French Revolution also continue to exert some influence, certainly causing the reaction of the German codifiers to the liberal and humanist doctrines, but this approach even extends now into present-day German legislation where purely national concerns are less valued.
German commercial law was reinvigorated, both as a subject of study and a program of legislation, in the late 19th century. During this period major reforms and innovations were introduced; after several decades of near stagnation, post-war Germany has again become the leading force in modernization of commercial legislation. German criminal law, both substantive and procedural, suffered such overlays and alterations during the National Socialist period that major reforms have had to be undertaken during the post-war years. After three decades of careful, scholarly and even polarized analysis, review and study, new editions of the criminal and criminal procedure codes were promulgated in 1987.
The recent German tendency of modernizing legislation by creating new bodies of law—on all subjects, but perhaps especially on civil and commercial matters—has already been mentioned. This process has accelerated with the increased mass of European Union directives to which the German law and rule-making bodies must respond. This new approach has been termed “decodification.” “The German (and the French) legal systems are in the midst of a revolution that vitally affects every aspect of their judiciaries. The main features of the revolution, which began after World War II, can be described under three headings: decodification, constitutionalization and federalization.”7 This observation connects the decline in legislative supremacy with an increase in the practice of executive lawmaking under delegated powers. The German constitution itself plays a role as a source of law, influencing legislation and also fostering increased judicial independence. In Germany the “federalization” refers not only to the federal nature of the relationship with the Länder, but now also to the additional stronger federalization inherent within the European Union and the Member States’ cession of sovereignty to this supra-national body.