How the German Civil Code was made

When it comes to the German Civil Code, one cannot help but compare it with the French Civil Code. Like the French Civil Code, the German Civil Code inherited elements of Roman law. These two representative codes of the civil law system have a lot of similarities with each other, but each has its own unique characteristics.

▲German Civil Code

From the time the Germanic people conquered the Western Roman Empire in 476 A.D. and built a relatively backward society on the ruins of the empire, the society, politics, economy and culture of this nation have been inexorably linked with the Roman civilization, and in the second half of the 15th century, the German state launched the inheritance of the Roman law in full swing. On the one hand, the Germanic customary law and its corresponding forms and systems provided a ready model for the Germanic society in the late Middle Ages; on the other hand, Germany had not really established a centralized imperial judiciary and system at that time, and a legal professional class, which represented the legal culture of the German nation, had not yet been formed. As a result, Roman law, with its complete system, entered the legal life of the Germans without any difficulty.

The establishment of the Reichsgerichtshof in 1495 also provided a practical guarantee of the succession to Roman law. The first question facing the Imperial Court was what law should be applied as the common private law of Germany as a whole. Neither the creation of a new law nor the adoption of customary law was necessarily appropriate, so they chose to utilize the existing Roman law. The attitude of legal scholars to Roman law then became popular among the judiciary. Since all judges became Roman jurists, the wholesale adoption of Roman law became a matter of course.

In 1871, Germany was unified. Previously, Germany was in a state of fragmentation, and there were three main types of civil legislation implemented in different parts of the country: the common law, which was formed on the basis of the inheritance of Roman and ecclesiastical law and Germanic customary law; the kingdoms' own local laws; and the Napoleonic Code and the Austrian Civil Code of 1811, which were implemented in specific regions. After the unification of Germany, capitalist relations of production were established and consolidated, however, the lack of uniformity in law affected the development of the economy, and the demand for uniform legal norms became increasingly strong. In this respect, the background of Germany and France in the formulation of the civil code is also similar.

However, the German Civil Code was unique. The French Civil Code, which was drafted in four months, is full of the passion of the French people, while the German Civil Code, which took more than twenty years to develop, embodies the spirit of the German people's rigorous and profound rationality.

II

Before all the conditions for the development of the German Civil Code were in place, there was a long and heated debate between the different schools of German jurisprudence. This debate, which centered around the desirability of a unified civil code, first began in 1814 with the victory of the German people in their war of national liberation against Napoleon.

In 1814, Thiebaud, a professor at the University of Heidelberg and a leading representative of the German school of natural law, proposed the formulation of a unified civil code in his thesis On the Importance of a Uniform Civil Code. He believed that the unity of the German nation must rely on the unity of the law, and the codification of a unified civil code became the basis for German independence and revival.

In opposition to this is the historical school of law, whose representative, Savigny, then rector of the University of Berlin, published in the same year the book On the Mission of Contemporary Legislation and Jurisprudence, which expounded the views of the historical school of law. He believed that the conditions were not yet ripe for the immediate formulation of a code in line with the spirit of the German nation, and that an in-depth and comprehensive study of the historical development of German law should be carried out in order to create the conditions for the legislation before talking about the codification of a unified civil code.

The two sides thus engaged in a heated polemic.

The background of the different positions of these two representatives is in fact the different understanding of the "natural law" and "customary law" trends that prevailed in continental Europe after the 18th century. Thiebaud stood in the position of Enlightenment, advocating the formulation of a "rational law code"; Savigny believes that the law is a product of the national spirit, the written law and customary law, compared with the actual secondary position, so that the German nation's unification of the civil code should be based on the customary law and the compilation.

Germany at that time did not have the political basis for a unified civil code, and Savigny's view was supported by the majority of the people. The idea of "rational law" advocated by Thiebaud did not disappear from German jurisprudence; in fact, it merged with Feuerbach's criminal law and Hegel's philosophy of law, and ultimately led to the formation of the philosophical school of law.

▲Savigny's victory in the polemics delayed the introduction of the German Civil Code for almost a century

Savigny's victory in the polemics delayed the introduction of the German Civil Code for almost a century. The original school of historical law consisted of the "Roman School" represented by Savigny, Puchta and Jelling, and the "Germanic School" represented by Kielke. However, as the inquiry into the history of law deepened, the rift between these two schools deepened, and they finally went their separate ways. This was the inevitable course of development of the dual structure of Germanic law and Roman law, which was formed after the succession of Roman law in the 15th century.

In the "outside" and Hegel as the representative of the philosophical school of law struggle, "inside" and Germanic law against each other in the polemics, the Roman law school finally developed into the 19th century, the mainstream of German jurisprudence. It is self-evident that the greatest achievement of the Roman law school was to initiate and engage in the movement of codification of the German civil code. Also as a result of Savigny's views and this polemic, German jurisprudence in the 19th century gained a great deal of development and provided a solid theoretical foundation for the subsequent codification. The different schools of German jurisprudence that followed centered for decades on the debate over whether and how Germany needed and could develop a unified civil code.

Three

In the second half of the 19th century, in the tradition of the Roman law succession, Savigny's successors established the Pendleton School of Law. It was the first branch of the historical school of law, named after the intensive study and reorganization of the Codification of Doctrines, the German translation of which is "Pendekton". This school created a new five-part theoretical system, consisting of five sections: General Law, Law of Debt, Law of Property, Law of Relatives, and Law of Inheritance. On the basis of succeeding the Doctrinal Compendium, the law of debt was put into a superior position to the law of property, reflecting the development of German capitalism and the maturity of the theory of debt law at that time.

With the establishment of the German empire, the formulation of a unified civil code finally had a reliable political foundation. 1873, the German constitution was amended to make it clear that the legislative power of the unified civil code was vested in the center of the empire. After careful preparation, Germany in 1881 for the codification of the civil code and set up the first committee. The actual leader of this commission was Windschat, an important representative of the late historical school of law.

The drafting committee was composed not only of representatives of the civic class and judges, but also of officials and professors. The serious nature of the Germans gave them the mission of studying all the norms of private law, in order to produce a civil code that would be compatible with the national sentiment and at the same time solve the complex relations of the growing society. Thus, it was not until 1887 that the first draft of the German Civil Code was presented to the people, a full thirteen years and four months after the preparations for the code had begun.

Despite this, the draft was criticized from various quarters because it emphasized liberal views and was somewhat out of touch with German tradition and reality, and in 1890 the Bundestag had to reappoint a drafting committee to rewrite the code. The second draft had basically the same framework as the first, but incorporated some of the objections, and the anachronistic liberalism was repeatedly modified over a period of five years. 1896, the draft was considered by the Bundestag to become the third draft, which was submitted to the Reichstag for consideration and adoption, and approved by the Emperor, and was formally published in August, 1896

The second draft of the Civil Code was the first to be published in Germany, and the third was the third to be published in Germany.

The German Civil Code*** has 5 books, 35 chapters, and 2385 articles, 103 more than the French Civil Code, and is the largest civil code compiled by a bourgeois country in the late 19th century. Its basic content reflects that it is still a traditional civil code, inheriting the basic principles and spirit of civil law since the enactment of the French Civil Code.

But the German Civil Code also has some of its own characteristics:

First of all, the codification of the code has a strong academic color. A large number of rigorous and abstract legal terms, such as "legal power", "legal action", etc., as well as strict logic, only specially educated people can accurately understand its meaning, so the German Civil Code is more like a jurist's code, is a tool for legal experts, the German Civil Code has some characteristics of its own:

But the German Civil Code also has some characteristics of its own:

First, the code has a strong academic color. The German Civil Code is more of a jurist's code, a tool book for legal experts than a bible of rights for the general public. This is the most obvious difference between the German Civil Code and the French Civil Code, which has a simple language.

Secondly, from the content point of view, the German Civil Code is y influenced by rationalism. The German Civil Code was born at a time when rationalism had been perfected, but the Germans, adhering to conservative traditions, did not explode into political action directly under the influence of rationalist ideas as in France. The influence of rationalism on Germany in jurisprudence is manifested in a variety of private law principles toward the systematic direction. Savigny was even more y influenced by rationalism, and his late monumental work "The System of Modern Roman Law" opened the way to systematic principle jurisprudence, a model that was the prototype of the later Pendleton system. The systemic and legislative technical aspects of the German Civil Code are entirely a product of Pendletonian jurisprudence. The five-volume system of Pendletonian jurisprudence brought a touch of vigor to the development of traditional civil law.

The German Civil Code is still the centerpiece of German civil law and is a milestone in the development of civil law after the French Civil Code. It is a milestone in the development of civil law after the French Civil Code. It has a far-reaching impact on the codification of civil law in the 20th century, and marks the formation of a new style of civil law that is different from that of the French Civil Code. This school of civil law is known for its rigor, abstraction, and logic, and has influenced the development of civil law in many countries, and the civil law system has since been established by France and Germany, each with its own strengths.

The German Civil Code was enacted in the century after the German society experienced great changes, such social changes directly affect the implementation of the Civil Code. Through the First World War, the post-war economic hyperinflation, the Weimar **** and the state's intervention in social and economic life, Nazi Germany and the post-war confrontation between East and West Germany, and the unification of Germany in the 1990s, the German Civil Code is constantly being influenced from all sides. Judicial officials and scholars have constantly enriched the Code with case law and doctrine in an effort to harmonize it with the development of society. It is interesting to note that although the actual number of articles in the German Civil Code has changed over the past century due to more than 140 amendments and deletions, it has remained in the form of 2,385 articles. The German Civil Code we see today is not the same one that came into force on January 1, 1900, and although there is much controversy over the latest changes to the German Civil Code, it is undeniable that the German Civil Code has always deserved a high degree of attention as a cultural monument that emphasizes freedom and independence.