Demarcation of legal systems
The theory of legal systems1 developed by comparative law contrasts the Anglo-American legal system with continental European law, which is characteristically codified law. The continental European legal system is in turn subdivided into the Roman legal system, dominated by Napoleonic legislation, the Nordic or Scandinavian legal system, and the German legal system. Although the criterion of the law as the most important legal source applies in principle to all branches of law, private law is considered especially significant. The German-speaking legal group is dominated by the private law codifications of Austria (ABGB), Germany (BGB), and Switzerland (ZGB), between which there have been and remain numerous forms of interaction. Their scope is extended by the influence that these three legal codes have had on the legal systems of other countries. They have served, and continue to serve, as a foundations or models for independent codification efforts. In addition to private law, the codification movement also covered the other parts of the judicial legal system, namely criminal law and criminal procedure law as well as civil procedure law and, as special private law, commercial law. Constitutional law, in contrast, only sporadically provides a criterion for demarcation, as numerous relations exist here, such as fundamental rights, that transcend the legal systems.
The roots of German law
The national European legal systems are the result of the so-called "reception" of Roman canon law, whose main sources were the Corpus iuris civilis as well as the Corpus iuris canonici.2 From the 13th century onwards, the learned "secular and ecclesiastical laws," i.e. legistics and canonistics, which were taught mainly at the universities in Northern Italy, were also spread in Germany through the teaching of law. The political ties of Germany and in the Holy Roman Empire caused Roman law to be regarded as imperial law, which increased its level of acceptance. The reception concerned mainly criminal law, civil procedural law, and especially private law. For the latter, canon law gained prominence above all in marriage law. Roman law, appeared in the form of "Gemeines Rechts" or ius commune, which was further developed by the legists, alongside and in interaction with native “Gewohnheitsrecht” (customary law). Some of this had been recorded in law books such as the Sachsenspiegel or the Schwabenspiegel. Thus, the reception did not lead to a complete displacement of national law, but rather to its supplementation, specification, and concretization. The courts thus used the legal principles of the ius commune wherever there were gaps in the domestic law.
In the 16th century, the reception of learned law (gelehrten Rechts) in the Holy Roman Empire reached its peak, aided by the establishment of the Länder as institutional territorial states and the associated legal reforms. In the pan-European context, reception is now understood as the scientification of legal culture, which resulted from the influence of common law on jurisprudence, legislation, and legal practice. A key factor in this regard in the German territorial states was the increasing employment of learned jurists. They had been educated in common law at the universities and therefore regarded this as the law par excellence. At the same time, their knowledge of domestic law was rudimentary at best. As political-legal advisers at the princely courts, as well as through their activities in tribunals, administrative authorities, and universities, they ensured the dissemination of common law, which was subsequently interfused to varying degrees with national law.3
Among the common law-national legal systems that emerged in this way was Roman-German law (Ius Romano-Germanicum). However, the coexistence and combination of common law with various particular laws (Partikularrechte) resulted in an almost unmanageable body of legal matter. To make the law workable once again, German jurisprudence developed a relatively new and independent scholarly approach, the so-called usus modernus, which owes its name to the textbook Usus modernus Pandectarum (1690)4 written by Samuel Stryk (1640–1710)5. The goal of this new practice-oriented school of thought was the creation of a law that was suitable for judicial use, consisting of the scholarly elaborated domestic law in close connection with the common law. The usus modernus reached its heyday in the 18th century, and it ceased to take effect where natural law codifications existed. Where the latter were absent, usus modernus was supplanted in the course of the 19th century by the currents of Germanic law and pandectics discussed below.
Alongside the doctrine of common law, the teachings of secularized natural law6 prevailed throughout Europe since the early modern period. It rested on the idea of a natural and rational law that can be derived from human nature and that consists of true and therefore eternally valid legal principles or legal tenets. The Enlightenment of the 17th and 18th centuries focused on man as a rational individual. Law and justice thus found their basis in the so-called law of reason (Vernunftrecht), which was characterized by the rejection of outdated claims to power and similar kinds of allegiances. Instead, it gave priority to "innate rights" such as the legal personhood of man and freedom of contract and property.7 In private jurisprudence, the law of reason mainly had an organizing, cataloging, and systematizing effect, simplifying common law and giving preference to domestic law as actually practiced and hence natural law. With the systematics and terminology conceived by the natural jurists, it was possible to reduce the enormous mass of the Ius Romano-Germanicum and to conceive an overall system of rational law.8 This paved the way for the codification idea and simultaneously initiated the renewal of continental European jurisprudence.
The first codification wave: the natural law codifications
As a product of rationalist natural law philosophy, the concept of codification9 differed from the hitherto conventional record of law primarily in providing a complete system of simple and rational legal propositions that are to be applied to all existing legal problems. Here, the guiding principle was to be able to establish eternally valid "legal truths" as a result of their logical foundation. The result was the idea of codification. Its claim to comprehensively regulate an area of law with the help of systematically arranged legal principles was intended to have a preclusive effect. The purpose was to put an end to the legal pluralism that had existed until then and to create legal clarity and certitude. In particular, criminal law and criminal procedure law as well as civil law and civil procedure law appeared to be codifiable. Since private law affects all persons, private law codifications have always been the focus of interest and thus help to characterize the corresponding era. In the wake of the French Revolution and the American independence movement, the codification idea also took hold of constitutional law. As the basic order of the state, it was likewise to be fully codified, in particular with the effect of excluding monarchical privileges and establishing a catalog of basic rights for the protection of citizens.
The enlightened-absolutist state of the 18th century provided the necessary political conditions for the codification idea. Due to the monarch's commitment to the common good, he claimed to be able to determine the rights and duties of his subjects by means of a monopolistic legal system. A particular need for such generally binding laws was felt by states consisting of several countries with different rights such as 10and the monarchy.
The Codex Maximilianeus Bavaricus Civilis of 1756, drafted by Wiguläus Xaver Alois von Kreittmayr (1705–1790),11 which was one of several parts of an all-Bavarian code of laws, served as a precursor.12 The Bavarian Civil Code, which was not concerned with enlightened legal reform but with the unification of territorial law, did not, however, preclude the continued validity of local rights and the subsidiary application of common law. Therefore, even if the Civil Code did not meet the demands of the Enlightenment for codification under natural law, it remained in force, along with a large number of later amendments, as a Bavarian variant of the usus modernus in large parts of until the introduction of the German Civil Code (BGB) (1900).13
The Prussian Civil Code of 1794
In Prussia, efforts to codify the law for the entire state began around the middle of the 18th century. The draft for a general code presented in 1788 came into force in 1794 with modifications as "Allgemeines Landrecht für die Preußischen Staaten" (ALR).14 The ALR, which was closely tied to the social order of the estates, regulated not only private law but also criminal law and important areas of public law. This explains the total volume of almost 20,000 articles as well as its claim to decide all legal questions in a binding manner in order to eliminate any arbitrary judicial decisions. The ALR was based on the Ius Romano-Germanicum, but also took local law into account. The detailed provisions, which refer to concrete aspects of everyday life, resulted in a high degree of casuistry. This, together with its descriptive and vernacular language, gave the ALR remarkable popularity among the citizenry.
In academic circles, by contrast, the code, which was written for an enlightened-absolutist state, was already outdated when it came into force. It thus met with opposition, which delayed its teaching and elaboration at the universities and inhibited its wider impact. In the territories on the left bank of the Rhine, the Code Civil BILD: Code Civil, BnF, Gallica ended the validity of the ALR already around 1810. However, it was not fully abolished until the introduction of the BGB.
The Austrian General Civil Code of 1811
When the ALR came into force in Prussia in 1794, concrete steps had already been taken in the Habsburg monarchy to meet the need for legal unification and renewal by drafting codifications. Unlike in Prussia, however, individual parts of the legal system were to be recorded in several codes, as in Bavaria.15 While already in 1768 the "Allgemeine peinliche Gerichtsordnung" came into force as a codification of criminal law and criminal procedure, in civil law the Codex Theresianus of 1766 largely failed to meet expectations and therefore remained a draft. The civil procedure law, originally planned as its fourth part, was detached and enacted as the "Allgemeine Gerichtsordnung" (General Judicial Code) in 1781. Of the three remaining parts of substantive law, the first part of a "General Civil Code" entered into force after revisions in 1787.16 Together with the succession patent (Erbfolgepatent) of 1786 this so-called "Teil-ABGB" (partial ABGB) helped the German hereditary lands and – i.e. not the Hungarian lands - to a uniform personal, family, matrimonial property and (legal) inheritance law. Extended by heretofore still pending matters, the first complete European private law codification,17 strongly influenced by Karl Anton von Martini (1726–1800)18 came into force in 1798 with the "Civil Code for Galicia." It was, however, for the time being, only applicable in a part of the whole state.19 As an "Urentwurf" (original draft), it formed the basis for the further codification work. The result was the promulgation of the General Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB) on June 1, 1811. From January 1, 1812 onwards, a formally uniform private law was in force in the Habsburg lands, with the exception of . In the multinational Habsburg monarchy, this was only possible through the independence of different national laws and national peculiarities, which therefore - contrary to older legends - were virtually absent from the code. In order to allow all nationals to be familiar with the text of the law, a number of official translations were required, e.g. into Polish, Czech, and Italian. In the course of the unification of the law in the entire Austrian Empire from 1849 and the extension of the scope of the ABGB in 1852/1853 to Hungary and its neighboring countries,20 translations into Hungarian, Serbian and Croatian followed.21
Compared to the other natural law codifications - the conservative, estates-oriented ALR of 1794 and the liberal Code Civil of 1804 - the ABGB occupied a kind of intermediate position. Although the estates-based social and state order during its period of origin had manifested in a number of legal institutes (e.g. the noble fideicommissum22),23 the neutrality and elasticity of its provisions ensured the potential for adaptation and further development. Unlike the ALR, it was distinguished by its concise style which avoided any casuistry; similar to the ALR, it used language that was generally understandable. Another reason for the Code’s accessibility was its rational and therefore logical construction, which was mainly due to the influence of Franz von Zeiller (1751–1828)24. Scholars immediately took up the new civil law with the aid of the exegetical method, which had been enshrined in law in the application rules of §§ 6 and 7 ABGB. It provided legal practitioners with commentaries and in-depth literature that also drew on foreign law, such as the ALR,25 for clarification.
The ABGB had the most direct influence on the principality of 26 Despite Liechtenstein's turn towards in the wake of the First World War and the partial drafting of a "Liechtenstein Civil Code" subsequently based on the model of Swiss law (only its first part, the property law of 1923, and its third part, the personal and company law of 1926, were realized), essential parts of the ABGB remain valid in Liechtenstein to this day. The reflection on legal tradition and legal continuity in the course of the reform of the judicial system, which began in 1970, meant that there is still a close connection between the two legal systems, partly in the law of obligations, but above all in marriage, family and inheritance law. As a consequence, Austrian legal developments are closely observed and largely followed in Liechtenstein. Moreover, the close cooperation in the judicial sphere, which has occurred in various ways since 1818, helps to preserve the traditional proximity of Liechtenstein to Austrian private law.27, which belonged to the at that time. It was enacted in February 1812 (and remained in force until 1846, however, with the exception of the law of succession).
In the course of the 19th century, the ABGB served as a template for the codifications of a number of individual monarchical states of the German Confederation, such as Bavaria and 28 it continued to apply after 1918 in some successor states of the Habsburg monarchy such as in , , and ., but also for some republican Swiss cantons, such as and . In a version considerably revised by the "Teilnovellen” (partial amendments) of 1914, 1915, and 1916,
Jurisprudence in the 19th century
Around 1815, under the influence of the contemporary trends of historicism and romanticism, German jurisprudence increasingly turned away from the logical-constructive reason-based law of the Enlightenment. In connection with the demand for legal unification through the creation of a general private law code for the German Confederation (Deutscher Bund), the codification idea came under criticism. The so-called “Kodifikationsstreit" (codification dispute) was fought out in a literary-scientific way between Anton Friedrich Justus Thibaut (1772–1840)29 in the role of the "advocate" and Friedrich Carl von Savigny (1779–1861)30 in the role of the "opponent".31 Savigny, however, was not against a unification of private law per se, but rather doubted the method. He therefore countered what he saw as the codification movement's unhistorical striving for expediency by reflecting on the historical foundations of the applicable law, which he identified above all in ancient Roman law and in common law. Law, in Savigny's view, emerges and develops in the common legal consciousness of the people; the legislator can only supplement this living law engendered by the "popular consciousness" (Volksgeist) or cast it in certain forms. Since the codification of law by the legislator prevented the organic growth of the legal order, he opposed the codifications of natural law. Together with Karl Friedrich Eichhorn (1781–1854),32 Savigny became the founder of a new scholarly method, the Historical School of Jurisprudence,33 which split into two directions: pandectics and German studies.
Pandectics, whose name derives from the central part of the Corpus iuris civilis, the pandecs or digests, was the Romanist branch that took its cue from classical Roman law. It regarded jurists trained in Roman law as being the representatives of the popular consciousness. On this foundation, pandectics sought to form a dogmatically contradiction-free, positive legal system through the systematic-historical method. It was further developed by Savigny's student, Georg Friedrich Puchta (1798–1846),34 who recognized the importance of the formal-conceptual method in making the so derived law applicable. He developed a system of genealogically and hierarchically connected legal concepts, from which new rules of law and principles, and, in a further step of abstraction, general doctrines, could be obtained by means of logical and deductive reasoning or by analogy. This made him the founder of classical conceptual jurisprudence, which had a lasting impact on civil law dogmatics in the second half of the 19th century.
The second branch of the Historical School of Jurisprudence, Germanic law, took up domestic law as actually practiced popular law and rejected Roman law as artificial jurisprudence. The Germanists were concerned with the scientific comprehension of the wealth of German particular law and, at the same time, with its systematic historical development. On the basis of the earliest German legal sources, which, however, first had to be compiled and edited, an attempt was made to identify fundamental legal ideas and institutions in the particular laws in order to form from them a general German system of private law. In contrast to pandectics, the Germanists were positively disposed towards a codification of law and thus also towards an all-German civil code.
Gradually, both tendencies of the Historical School of Jurisprudence not only covered all states in the German Confederation, but went far beyond it. They consolidated the German legal system, with the inclusion of Switzerland, thanks to an almost uniform scholarly approach. Organizational factors contributing to this were the "Deutscher Juristentag" (German jurists’ conference), founded in 1860 as a scholarly showcase for German-speaking lawyers, and the appointment policy of the law faculties, which disregarded national borders. Finally, the Historical School of Jurisprudence had a significant influence on the emergence of the unity of private law in Germany and Switzerland, as well as on the renewal of private law in Austria.
The second wave of codification: the pandectist codifications
In the Vormärz (1815–1847) the unification of law had become a symbol of German national unity. Accordingly, this epoch was dominated by the demand for all-German codifications of civil, commercial, criminal and procedural law as well as of public law.35 While the project of an imperial constitution failed, the realization of legal unity on the level of the German Confederation succeeded in the field of commercial law, namely thanks to the Allgemeine Deutsche Wechselordnung (ADWO) of 184836 and to the Allgemeine Deutsche Handelsgesetzbuch (German commercial code) of 1861.37 In the individual states of the German Confederation, constitutions, i.e., codifications of constitutional law, had been realized almost everywhere by 1848, accompanied by particular codifications and individual laws in other legal matters.38
In the private law of the individual German states, such as in Prussia (1841/1842), 39 with the exception of the Kingdom of Saxony.40 In 1852, closely following the Austrian ABGB, Gustav Friedrich Held (1804–1857) worked out a draft law, structured for the first time according to the pandectic (five-book) system which was intended to end the fragmentation of Saxon private law - state laws applied alongside common Saxon law and common Roman law. Due to massive criticism (especially from Carl Georg von Wächter (1797–1880)), which chiefly referred to unnecessary changes vis-à-vis the existing Saxon law as well as to omissions, linguistic ambiguities, and internal contradictions, the draft was subjected to a thorough revision.41 This resulted in an independent codification of private law comprising 2620 paragraphs, which, after being amended several times, came into force in 1865 as the Bürgerliches Gesetzbuch für das Königreich Sachsen (Saxon BGB). The Saxon BGB, the first pandectist codification and at the same time the only completed particular private law system in the 19th century, met with wide criticism among experts. Nonetheless, it was recognized in practice and also had great significance as a model law system.42 The same applied to the BGB, whose entry into force on January 1, 1900, ended the validity of the Saxon BGB.(1842/1847), and Bavaria (1861/1864), the planned codifications did not get beyond the draft stage,
The German Civil Code (BGB) of 1896
Although the Constitution of the German Empire of 1871 established the political unity of Germany (in the Kleindeutschland sense), it limited the Empire's legislative power to individual matters. In civil law, there was initially only the authority to standardize the law of obligations;43 an amendment to the constitution in 1873 extended it to the entire civil law and at the same time also transferred to the Empire the right to legislate in criminal law and procedural law.44 Shortly thereafter, preliminary work began on a codification of civil law. More than 20 years would pass before its adoption by the Reichstag on July 1, 1896. In the report of the so-called "Vorkommission" (preliminary commission) of 1874, it was proposed to dispense with the existing codifications or drafts and instead to base the content on the principles of common German law and to follow the systematics of the pandect scheme. The latter, in addition to a general section, provided for a division into property law (i.e. the law of obligations and property law), family law, and inheritance law. The draft law prepared on the basis of these guidelines was published in August 1896 and came into force on January 1, 1900 as the Bürgerliches Gesetzbuch (BGB).45
In its outward form, the BGB was a "legal code” that presented a clear system and used a sober, precise, and often very abstract technical language that lacked any descriptive vernacular. Abroad, within and outside the German legal system, German civil law codification had an exemplary function; its dogmatic principles and theories were transferred to national legal systems.46
The BGB was based on the liberal ideas of the 19th century about the state and law and thus reflected, like every codification, the political, social and economic conditions of its time. These basic principles were also reflected in the general clauses enshrined in the BGB, which were intended to give the court the option of resorting to general aspects of justice in individual cases, e.g. the prohibition of abuse of rights. At the same time, this ensured the openness of the legal system to changing values and requirements.
The communist part of Germany had its own valid civil code from 1976 until it was reunited with the 47 Work on the Zivilgesetzbuch der DDR (civil code of the GDR) was interrupted several times because of changes in political direction and ideological objectives. In the codification, which consists of seven parts, the pandect scheme was deliberately avoided, as was a uniform order of private law. The focus was on regulating the affairs of citizens' lives according to ideological guidelines and in the interest of a classless society.48in 1990. Even before it entered into force, the BGB had been replaced by individual laws in those areas where it was incompatible with the socialist ideology of the , especially in labor and family law.
The Swiss Civil Code of 1907/1912
In Switzerland, the codification movement in the 19th century was initially able to gain a foothold only at the level of the cantons, as the regulation of private law fell within their purview. In the elaboration of the cantonal civil laws, the foreign codifications of natural law exercised a great influence alongside the native legal tradition, namely the Code Civil in western and southern Switzerland (e.g. Friedrich Ludwig Keller (1799–1860),49 a representative of the Historical School of Jurisprudence, and completed by Johann Caspar Bluntschli (1808–1881).50 It represents what is probably the only independent cantonal codification of private law and influenced legislative work in the other cantons (e.g. and ).51and ) and the ABGB in central Switzerland (e.g. Bern and Lucerne). The Zürcher Privatrechtliche Gesetzbuch of 1853/1855, was begun by
In 1874, the era of particular civil laws came to an end. The federal government was given legislative authority, at least in individual areas of private law, by means of constitutional amendment, e.g. in the law of obligations, including commercial law and the law of bills of exchange. With the "Bundesgesetz über das Obligationenrecht" (federal law on the law of obligations) of 1881 - a first step towards the unification of private law - Switzerland opted for a "code unique" by incorporating commercial law matters into general civil law. In order to realize the complete unity of private law, Eugen Huber (1849–1923),52 a representative of the Historical School of Jurisprudence, was entrusted in 1884 with the task of a comparative legal presentation of all the cantonal civil law systems in force.53 A codification was elaborated on this basis and with the active participation of Huber.54 Adopted in December 1907 as the "Schweizerisches Zivilgesetzbuch" (Swiss Civil Code, ZGB),55 it came into force on January 1, 1912.56 The revision and adaptation of the law of obligations to the ZGB was carried out by the two federal laws of 1911 and 1937, which together form the "Schweizerische Obligationenrecht" (Swiss Code of Obligations, OR).57
As a modern, self-aware (selbstbewusst) codification, the ZGB basically renounced foreign and historical models as well as a strict system of classification. Unlike the German Civil Code, it used generally understandable, descriptive language and presented itself as a popular code, which - without any claim to gap-free perfection – was confined to laying down general rules and guiding legal principles. The often very elastic regulations, supplemented by the gap-filling power enshrined in Article 1 of the introduction, were deliberately designed to strengthen judicial power.
In the German legal system, the ZGB was the most modern, or in any case the most recent, codification of private law. As such, it influenced the private law of its neighboring states: In addition to the close connections to the German Civil Code (BGB), there were effects on the Austrian General Civil Code (ABGB) in the form of the influence on the "partial amendments" 1914–1916. There were also implications for Liechtenstein private law through the reception of the 1923 property law and the 1926/1928 person and company law.
Influences on other legal systems
The Ius Romano-Germanicum already exerted an impact beyond the German legal system and influenced in particular the 58 With the fundamental continuation of the ABGB and also of the BGB in the states newly created at the end of the First World War such as Czechoslovakia and Poland in particular, these countries partly remained, at least for the time being, within the German legal system. This did not change until they became part of the socialist legal system after 1945.legal system. Because of the early and repeated consolidation of the domestic law by legislative acts as well as the further development of the law by the courts, the common law had little importance there. Among the legal codes of the German legal system, the ABGB was the first to have a more far-reaching influence, forming the basis for the civil code of the Principality of of 1817 and the Civil Code of 1844. The fact that it was also taken into account in the elaboration of civil codes in as well as in some South American states speaks for its universal applicability.
In the 19th century, it was mostly the Historical School of Jurisprudence that gained in influence beyond South America, China, Japan, and, to a degree, in the . As an extension of this export, the German BGB influenced , Japan,59 ,60 , and , the Swiss ZGB the Italian Codice civile of 1942 as well as the private law codes of Greece, Hungary, Yugoslavia, , Poland and Czechoslovakia. Beyond the borders of Europe, the Swiss codification also came to influence legislation in the as well as in Peru, Thailand, and China.61: in
At the beginning of the 20th century, the reception of Swiss private law by 62 Finally, towards the end of the century, in the 1990s, the and states rejoined continental European jurisprudence after the end of the socialist era by recalling their legal tradition and reviving it on the basis of modern developments in the German legal system.63, where its French version was promulgated in a very free translation as the "Turkish Civil Code" and "Turkish Code of Obligations" in 1926, constituted one of the most remarkable transfer processes.