I. Introduction 1
II. An historical overview on law, jurisdiction and jurisprudence in
„Germany“ in the 19th century
- The historical situation and the fragmentation of law
III. The Thibaut-Savigny Controversy, 1814
1. The disputing parties
a) Anthon Justus Friedrich Thibaut
b) Friedrich Carl von Savigny
2. The different approaches on the controversy
a) „On the necessity of a General Civil Law in Germany“
- Thibaut’s demand
b) „On the Vocation of our Age for Legislation and Jurisprudence"
- Savignys scathing criticism
c) Savigny and the historical school of law
3. Critics on Savigny’s historical school of law
4. The practical and economic need for general civil law code
IV. „Das Bürgerliche Gesetzbuch“ - the final realization of the legal unification
1. Savigny’s pandectistic and its influence in the subsequent time
2. The first draft and the first commission
3. The work of the second commission
4. The third draft and the proclamation
V. The essence of the „BGB“ and a brief judgement
List of literature
Abbildung in dieser Leseprobe nicht enthalten
Thibaut and Savigny - this line up has been adopted in the historical books as one oft he most re- marquable and pathbreaking academical disputes in the history of Germany’s jurisprudence. These two highly respected and famous jurists fought about the necessity of a general civil law for the German Empire. Thibaut published his ideas on this matter of dispute in his pamphlet „On the necessity of a General Civil Law in Germany“ in 1814 on which Savigny responded in the very same year putting his outstanding argumentation against the need of a general civil law in his pamphlet „On the Vocation of our Age for Legislation and Jurisprudence". Such being the case will make it also necessary to review the proceedings in the deepness of the 19th century to be aware of the importance of the controversy for the legal development in Germany. Regarding the fact that a general civil code in Germany wasn’t published until 1900 Savigny might be seen as the winner of the dispute since he achieved to delay the unification for more than 80 years alt- hough the number of supporters on Thibaut’s opinion was noticeably larger. A more particular investigation on this shall follow later.
The controversy was also the initial point for theories and doctrines that manifestly influenced the jurisprudence in the 19th century and in this way also the legislation of the private law codification in Germany.1 On this occasion the following term paper will also enlighten the complex ideas of both sides under consideration of the relevant indicents in jurisprudence, history and the political situation of Germany in the 19th century. The author will then give a comprehensive overview of the progresses in the subsequent time of the controversy and resume the given information in a final judgement on the final realization of the German Civil Code.
II. An historical overview on law, jurisdiction and jurisprudence in „Germany“ in the 19th century - The historical situation and the fragmentation of law
In order to understand the necessity of the controversy it is important to give a brief overview of the historical situation in Germany in the beginning of the 19th century because the controversy has a fundamental historical background.
For the past centuries the jurisdiction in Germany was Roman-Common Law - a combination of the genuine and unique Roman Empires’ Law and the common law that was established by the society and its driving forces over the years. With France establishing its very own „code civil“ Germany’s ever existing national pride and the fact that the roman law - as outstanding and ingi- neuos it was - didn’t adapt to all the new law issues that arised as a side effect of the process of modernization in society and industry. So there was the deep desire for an own codification in the territorials. In a short series many civil codes were published in the big european territorial states2 The first codification that fully replaced the roman-common law was established by the n lawgi- vers in 17943. The „General Law for the Prussian states“ was then the groundwork for the first works on the Code Civil in France that was eventually established by Napol é on Bonaparte on the 21st March of 1804. Finally, Austria4 established its own „General Civil Law Code“ on the 1st June of 1811. Especially the french code civil was gaining more influence. It was adopted by most of Europe's countries - partly voluntarily but primarily as a consequence of militarily defeat. In Germany the code civil 5 was adopted mostly in the west bank of the Rhine as well in a translated version in Baden's civil law in southwest Germany. Until 1808 several other principalities follo- wed: Kingdom of Westfalia, the duchies of Lippe, Arenberg, Berg and and Anhalt-Köthen as well as in the big duchy of Frankfurt.6
Furthermore it is no coincidence that the controversy started in 1814. Napoleons destructive conquers through Europe had come to an end which led Germany in a devastated circumstance - not only political and geographical but also and especially in its jurisdiction. Though, strictly speaking „Germany“ wasn’t the correct political term for that time - to be fully correct you would have to say „Holy Roman Empire of the German Nation“. The political unified Germany in that sense was published in 1871. Despite all whereever in the following pages the term „Germany“ is used it is related to „Holy Roman Empire of the German Nation“.
The holy Roman empire of German Nation was a very complex construct. There was an emperor who continiuosly lost his powers and got weaker and weaker whereas the rich lords of the several territorials gained more power and influence over the time. So what was it that held these politi- cally deprived territorials together ? Principally the territorials were governed by the same law. But all the territorials had established several laws on their own which coexisted among the roman common law. In 1814 there was no Holy Roman Empire anymore but though the Roman Law still existed it was badly affected in the events of the past few years. This was mainly caused by sever- al individual states of the roman empire that started to politically cooperate with Napoleon. In 1806 16 territorial princes established the "Rheinbund" under the ongoing protection of Napoleon and got out of the Roman Empire. The Emperor of the Holy Roman empire (Franz II. of Austria) retired as a consequence which can be seen as the end of the empire. Napoleon against Prussia, Napolean against Austria, Napoleon against Russia were the subsequent wars. As a consequence of the devastating defeat of Napoleon in Russia the liberation wars in Germany started (1813/1814). Napoleon was exiled to Elba which led to the dissolution of the "Rheinbund". The old empire was gone. Each of the 41 kingdoms and territories of the German state had its own body of law which changed every time you crossed borders. This was obviously not bearable and contraproductive to commerce. The "Vienna Congress" tried to solve this issue but the new order wasn't generally appreciated. Political Germany was totally fragmented and the desire for unifica- tion in law and politics and a new order was bigger than ever7. Especially after the liberation wars that led to a new national spirit in Germany. In the face of this spirit there were still the ruling ter- ritorial princes who were able to stop the movement whenever they wanted. For them the unifica- tion would lead to a huge decrease of there powers and prosperity. Eventually the revolution was never directed against the princes - that wasn't the idea of the revolution.
So the debate on the adoption of the code civil in all the principalities started again. But the french code civil as the driving symbol for the political and legal unification of Germany was never an option for the conservative and national powers of germany. August Wilhelm Rehberg clarifies this attitude in his pamphlet: "About the Code Napoléon and its adoption in Germany" (1814) where he strictly criticises the comparison of Napoleons code civil with the Justinianic Legislation.8 He criticises the unreasonable idea of absolute freedom and equality among the population9 and ac- cording to Rehberg the lawgiver has to see the attempt of legislation under rational principles as a "preposterous" process.10 This disatrous and unsolved political situation was now the basis of the controversy that Thibaut and Savigny held.
1 Wesenberg, p. 171; Meder, Rechtsgeschichte, p. 282.
2 On the history of codification Rüfner in: Examinatorium Rechtsgeschichte, S. 104-105.
2 On the history of codification Rüfner in: Examinatorium Rechtsgeschichte, S. 104-105.
3 On the establishment of Prussian General Law, Luig, Das Privatrecht im Allgemeinen Landrecht für die preußischen staaten von 1794 , S.521-542.
4 On the history of the „ABGB“ in Austria: Schlosser GNP, p. 111ff.
5 On the influence of the code civil on the dispute between Thibaut and Savigny; compare Kry š t u fek Revue Histo- rique, 59 f.
6 Kry š t u fek in: Revue Historique, 59 (62); Gmür/Roth, mn. 353; , Schubert, Französisches Recht in Deutschland, p. 12 ff., 36 ff.
7 Kry š t u fek, RH 44 (1966), 62; see also: Meder, p. 271.
8 Rehberg, p. 10.
9 Rehberg, p. IV.
10 Rehberg, p. 7.
- Quote paper
- Gökhan Kosak (Author), 2013, The formation of legal unification in Germany in the 19th century, Munich, GRIN Verlag, https://www.grin.com/document/269990