The German BGB. 10 November Comparative Legal Systems University of Florence, School of Law

Transcription

1 The German BGB 10 November 2017 Comparative Legal Systems University of Florence, School of Law

2 ORIGINS 1815: Congress of Vienna redrawing the Continent s map: still 39 states in the German speaking area dissolution of the Holy Roman Empire LACK OF AN EFFECTIVE CENTRAL GOVERNMENT the unifying function is performed by the LEGAL SCIENCE 2

3 Cultural context: crisis of Enlightenment and rationalism the new intellectual movement: ROMANTICISM it uncovered the elemental irrational powers in human life (in literature, poetry, music, and arts) development of a unifying sense of nationalism cultural manifestations (like poetry and language) are not produced by abstract reason but evolve historically the law is not viewed as the product of a rational legislator, but as the product of the people and of its representatives, the jurists 3

4 The 1814 codification debate Anton Friedrich Justus Thibaut ( ) - professor of law in Heidelberg Friedrich Carl von Savigny ( ) - professor of law in Berlin Thibaut IN FAVOR of codification: following the French model means of furthering the process of political unification of Germany Savigny AGAINST codification: the law is not the product of abstract principles of natural law, but, like language, is part of the culture of a people it is dangerous the law needs historical context to be understood it is premature 4

5 Law is the expression of the genius of a people, in the same manner as language, customs and practices Volksgeist Enlightenment The legal system is a deliberately planned and purposive creation of an official legislator guided by reason. Historical School Law is a historically determined product of civilization, having its roots deep in the spirit of the people and maturing there in long processes. Legal science, not legislation, has the task of unifying German law 5

6 The Historical School A new school of jurists led by Friedrich Carl von Savigny Germanists Two different branches Romanists Medieval German law is the expression of the German Volksgeist. The primary source of law is customary law study of Germanic customs Von Gierke The spirit of the people is expressed by its cultural elite. The Volksgeist springs from the reception of Roman law study of Roman law Savigny 6

7 The Pandectist School Founder: Georg Friedrich Puchta ( ) - pupil of Savigny Goal: the systematic and dogmatic ordering of the legal material construction of a new methodology The task of a jurist is not to create legal rules (in order to fill in the gaps of German law), but to offer the instruments of knowledge = define legal concepts BEGRIFFSJURISPRUDENZ «the doctrine of concepts» 7

8 The Pandectist method CONCEPTUAL DOGMATIC purpose: identifying the constituent element of a concept e.g. legal transaction (Rechtsgeschäft) => concepts do not allow exceptions SYSTEMATIC => in the case of more definitions (proposed by different jurists) the correct one is the definition which harmonizes with the other elements of the system (principle of coherence) 8

9 1871: Political Unification of the Reich 9

10 THE DRAFTING OF THE BGB in the mid-19th century: the first laws unifying German law: 1848: Wechselordnung (on credit instruments) 1861: Deutsches Handelsgesetzbuch (commercial code) 1873: constitutional amendment lawmaking in private law matters to the Emperor First committee among the members: Gottlieb Planck (judge of the Supreme Court) and Bernhard Windscheid (Pandectist scholar) 1896 promulgation 1 January 1900 in force 10

11 IDEOLOGY AND STYLE it closes the era of the victory of liberalism a CONSERVATIVE code: it does not confer any social task to law it proposes a CLOSED SYSTEM characterized by: finality completeness exclusivity the safety valve of this system are the GENERAL CLAUSES (Generalklausen) - e.g. public morals (gute Sitten), good faith (Treu und Glauben) the BGB is not ADDRESSED to the citizen at all, but rather to the professional lawyer [ France] 11

12 General Part (Allgemeiner Teil) Law of Obligations Property Law Family Law Law of Succession STRUCTURE general clauses and definitions (= the concepts elaborated by the Pandectists) contracts and torts possession, property, other rights persons have relating to property (movable property and real estate), and how those rights can be transferred conservative and patriarchal conception of family: subordination of the woman, discrimination of illegitimate children (2385 articles) 12

13 THE SUBSEQUENT DEVELOPMENTS Until the end of WWI fall of the Hohenzollern dynasty (William II) and proclamation of the Republic positivism, pure theory of law, strict adhesion to the text Weimar Republic considerable interventions by the legislator and by the judiciary 1923: economic crisis and inflation the Deutsche Mark collapses the Supreme Court (Reichsgericht) overthrows the nominalist principle (with reference to good faith ) reforms in labour law and property law 13

14 German law during the Nazi period 30 January 1933: Hitler appointed as Chancellor the beginning of National Socialism: a totalitarian and racist regime National Socialist ideas affecting the legal system: the law is a means of safeguarding the racial community a new theory of sources of law = refusal of the primacy of legislation the primary source of law is the race Führerprinzip: the person who proclaims the law deriving from this source is the Führer (= Hitler) denigration campaign against the BGB to replace it with a popular civil code BUT SURVIVAL 14

15 German law after the end of WW II Constitution of 1949: Grundgesetz (Fundamental Law) decisive role of the Federal Constitutional Court (Bundesverfassungsgericht) in the German legal system interventions by the legislator: social legislation, egalitarian spirit (e.g. family law), humanitarian spirit (e.g. criminal law) the last big reform: Act on the Modernization of the Law of Obligations, in force since 1 January 2002 reorganization of the rules and introduction of new ones Eastern Germany (DDR): the BGB remained in force until 1976 when it was replaced by a socialist civil code BGB reinstated in

16 THE SUCCESS OF THE GERMAN MODEL prestige and influence of the Pandectist School and its method all over world, even in England John Austin about German legal science: a world that seems the region of order and light a more limited circulation of its product, the BGB only auctoritate rationis: Brasil Portugal Central Europe Japan Greece (1940) 16