Comparative Law – Continental Law Prof. Giorgio F. COLOMBO

The German System Lesson n.9

Western Europe after 476

The German Area From one side, the German area was not influenced by Roman Law From the other, the Holy Roman (German) Empire claimed to be the successor of the Western Roman Empire This dualism between Roman heritage and German identity will mark German law until today

The Treaty of Verdun (843 AD)

The Holy Roman Empire

Translatio Imperii Althought the definition of «Holy Roman Empire» was not used until the XIV century, the Empire relied on the idea that it inherited the power from the (Western) Roman Empire It never reached the political unity of the French Kindgom and was composed by a number of independent territorial entities The nobles «elected» their leader who was then crowned Emperor by the Pope «Holy» because of the closeness to the Christian Church

Law in the Holy Roman Empire Roman law is not very used or widespread Since the XIII century, the Imperial power was rather weak compared to that of local nobles The Sachsenspiegel (1220-1235) A treatise on procedural rules and legal solution of the Saxons The Schwabenspiegel (1257) A similar collection for Swabia, but with the intention of being used as «law»

The Holy Roman Empire (of the German Nation)

The restoration of Roman Law In 1495, the Reichskammergericht (Imperial Tribunal) is created in Franfkurt, under the authority of the Emperor It is composed by 15 judges, and they have to apply: Roman law Imperial laws Customs (parties need to prove their validity) Usus modernus Pandectarum (modern use of Pandectae)

The first codifications Under the influence of the Enlightment, several territorial entities in the German- speaking world embrace the idea of a codification 1756 Codex Maximilianeus Bavaricus civilis (after the Istitutionaes) 1794 Allgemeines Landrecht für die Preussischen Staaten (ALR) (incredibly detailed and «paternalistic»)

German Confederation (1815)

Towards the German Code

Towards the German Code Romanticism and Volksgeist (National spirit) Thibaut vs. Savigny Thibaut → it is necessary to have a modern, National code Savigny → Yes, but it must be based on German history Savigny founded the «Historical School», divided in Germanisten and Romanisten

Germanisten The Grimm Brothers (real) The Grimm Brothers (Hollywood version)

Romanisten They stick to the study of Roman Law, and specifically of the Pandectae They seek to identify principles and rules still valid for the XIX century’s Germany However, differently from the French Illuminist thinkers, they do not think those principles are valid in se, but because they were enacted by the State

Franco-Prussian War (1870-1871)

Uniforms

The German Empire (1871-1918)

Towards the German Code In the late XIX Century, in the II German Empire becomes very influential the positivism Law as acts of the legislator 1873: a commission is entrusted with the drafting of the Civil Code

The Bürgerliches Gesetzbuch (BGB) Finished in 1896 – entered into force in 1900 Composed of four books Book I: general part Legal persons, individuals, juristic act Book II: obligations Obligations, contracts, torts Book III: real and personal property Real estate, ownership, guarantees Book IV: family law Marriage, etc.

Key Features of the BGB A «conservative» code A «postivisit» code It «closes» the XIX century rather than «opening» the XX century A «postivisit» code Rights do not «pre-exist», they are created by the legislator Historical, national code (not rational nor universal) Very refined philosophical structure Complex, technical (scientific) language General concepts

Key Features of the German System The Codes Separation between Public Law and Private Law Specialized systems of justice (civil/criminal – administrative) Lawyers and Judges have to acquire the same qualification: then their careers are separated

Diffusion of the German model Austria Switzerland Greece Japan (China - Korea – Taiwan)

Austria

Austrian Empire

Austria First codifications based on Enlightment 1811 Allgemeines Bürgerliches Gesetzbuch «Short» code (1502 articles) Modelled on the Istitutionaes Very «Natural law» approach (rights exist, etc.)

Switzerland

Switzerland Three codes before the unified code of 1912 French, Austrian, and German influences 1912 Zivilgesetzbuch (ZGB) Four books (no general part) Quite simple, easy to read Not detailed (judges may integrate that)

Greece

Kingdom of Greece (1832) Otto Friedrich Ludwig of Bavaria