1. Comparative Law – Continental Law
Prof. Giorgio F. COLOMBO

2. The German System
Lesson n.9

3. Western Europe after 476

4. 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

5. The Treaty of Verdun (843 AD)

6. The Holy Roman Empire

7. 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

8. 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 ( )
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»

9. The Holy Roman Empire (of the German Nation)

10. 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)

11. 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»)

12. German Confederation (1815)

13. Towards the German Code

14. 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

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

16. 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

17. Franco-Prussian War (1870-1871)

18. Uniforms

19. The German Empire ( )

20. 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

21. 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.

22. 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

23. 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

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

25. Austria

26. Austrian Empire

27. 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.)

28. Switzerland

29. 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)

30. Greece

31. Kingdom of Greece (1832)
Otto Friedrich Ludwig of Bavaria