Legal History
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 x-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 r�gime 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 f�r 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 Napol�on) 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
B�rgerliches 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, findsx-large ly
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 L�nder, 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.