The German legal system@German Legal System@(BE)@freigabe

Demarcation of legal systems

The theory of legal systems¹ developed by comparative law contrasts the Anglo-American legal system with continental European law, which is characteristically codified law. The continental European legal system is in turn subdivided into the Roman legal system, dominated by Napoleonic legislation, the Nordic or Scandinavian legal system, and the German legal system. Although the criterion of the law as the most important legal source applies in principle to all branches of law, private law is considered especially significant. The German-speaking legal group is dominated by the private law codifications of Austria (ABGB), Germany (BGB), and Switzerland (ZGB), between which there have been and remain numerous forms of interaction. Their scope is extended by the influence that these three legal codes have had on the legal systems of other countries. They have served, and continue to serve, as a foundations or models for independent codification efforts. In addition to private law, the codification movement also covered the other parts of the judicial legal system, namely criminal law and criminal procedure law as well as civil procedure law and, as special private law, commercial law. Constitutional law, in contrast, only sporadically provides a criterion for demarcation, as numerous relations exist here, such as fundamental rights, that transcend the legal systems.

The roots of German law

The national European legal systems are the result of the so-called "reception" of Roman canon law, whose main sources were the Corpus iuris civilis as well as the Corpus iuris canonici.² From the 13th century onwards, the learned "secular and ecclesiastical laws," i.e. legistics and canonistics, which were taught mainly at the universities in Northern Italy, were also spread in Germany through the teaching of law. The political ties of Germany and Italy in the Holy Roman Empire caused Roman law to be regarded as imperial law, which increased its level of acceptance. The reception concerned mainly criminal law, civil procedural law, and especially private law. For the latter, canon law gained prominence above all in marriage law. Roman law, appeared in the form of "Gemeines Rechts" or ius commune, which was further developed by the legists, alongside and in interaction with native “Gewohnheitsrecht” (customary law). Some of this had been recorded in law books such as the Sachsenspiegel or the Schwabenspiegel. Thus, the reception did not lead to a complete displacement of national law, but rather to its supplementation, specification, and concretization. The courts thus used the legal principles of the ius commune wherever there were gaps in the domestic law.

In the 16th century, the reception of learned law (gelehrten Rechts) in the Holy Roman Empire reached its peak, aided by the establishment of the Länder as institutional territorial states and the associated legal reforms. In the pan-European context, reception is now understood as the scientification of legal culture, which resulted from the influence of common law on jurisprudence, legislation, and legal practice. A key factor in this regard in the German territorial states was the increasing employment of learned jurists. They had been educated in common law at the universities and therefore regarded this as the law par excellence. At the same time, their knowledge of domestic law was rudimentary at best. As political-legal advisers at the princely courts, as well as through their activities in tribunals, administrative authorities, and universities, they ensured the dissemination of common law, which was subsequently interfused to varying degrees with national law.³

Among the common law-national legal systems that emerged in this way was Roman-German law (Ius Romano-Germanicum). However, the coexistence and combination of common law with various particular laws (Partikularrechte) resulted in an almost unmanageable body of legal matter. To make the law workable once again, German jurisprudence developed a relatively new and independent scholarly approach, the so-called usus modernus, which owes its name to the textbook Usus modernus Pandectarum (1690)⁴ written by Samuel Stryk (1640–1710)⁵. The goal of this new practice-oriented school of thought was the creation of a law that was suitable for judicial use, consisting of the scholarly elaborated domestic law in close connection with the common law. The usus modernus reached its heyday in the 18th century, and it ceased to take effect where natural law codifications existed. Where the latter were absent, usus modernus was supplanted in the course of the 19th century by the currents of Germanic law and pandectics discussed below.

Alongside the doctrine of common law, the teachings of secularized natural law⁶ prevailed throughout Europe since the early modern period. It rested on the idea of a natural and rational law that can be derived from human nature and that consists of true and therefore eternally valid legal principles or legal tenets. The Enlightenment of the 17th and 18th centuries focused on man as a rational individual. Law and justice thus found their basis in the so-called law of reason (Vernunftrecht), which was characterized by the rejection of outdated claims to power and similar kinds of allegiances. Instead, it gave priority to "innate rights" such as the legal personhood of man and freedom of contract and property.⁷ In private jurisprudence, the law of reason mainly had an organizing, cataloging, and systematizing effect, simplifying common law and giving preference to domestic law as actually practiced and hence natural law. With the systematics and terminology conceived by the natural jurists, it was possible to reduce the enormous mass of the Ius Romano-Germanicum and to conceive an overall system of rational law.⁸ This paved the way for the codification idea and simultaneously initiated the renewal of continental European jurisprudence.

The first codification wave: the natural law codifications

As a product of rationalist natural law philosophy, the concept of codification⁹ differed from the hitherto conventional record of law primarily in providing a complete system of simple and rational legal propositions that are to be applied to all existing legal problems. Here, the guiding principle was to be able to establish eternally valid "legal truths" as a result of their logical foundation. The result was the idea of codification. Its claim to comprehensively regulate an area of law with the help of systematically arranged legal principles was intended to have a preclusive effect. The purpose was to put an end to the legal pluralism that had existed until then and to create legal clarity and certitude. In particular, criminal law and criminal procedure law as well as civil law and civil procedure law appeared to be codifiable. Since private law affects all persons, private law codifications have always been the focus of interest and thus help to characterize the corresponding era. In the wake of the French Revolution and the American independence movement, the codification idea also took hold of constitutional law. As the basic order of the state, it was likewise to be fully codified, in particular with the effect of excluding monarchical privileges and establishing a catalog of basic rights for the protection of citizens.

The enlightened-absolutist state of the 18th century provided the necessary political conditions for the codification idea. Due to the monarch's commitment to the common good, he claimed to be able to determine the rights and duties of his subjects by means of a monopolistic legal system. A particular need for such generally binding laws was felt by states consisting of several countries with different rights such as Prussia and the Habsburg monarchy.¹⁰

The Codex Maximilianeus Bavaricus Civilis of 1756, drafted by Wiguläus Xaver Alois von Kreittmayr (1705–1790),¹¹ which was one of several parts of an all-Bavarian code of laws, served as a precursor.¹² The Bavarian Civil Code, which was not concerned with enlightened legal reform but with the unification of territorial law, did not, however, preclude the continued validity of local rights and the subsidiary application of common law. Therefore, even if the Civil Code did not meet the demands of the Enlightenment for codification under natural law, it remained in force, along with a large number of later amendments, as a Bavarian variant of the usus modernus in large parts of Bavaria until the introduction of the German Civil Code (BGB) (1900).¹³

The Prussian Civil Code of 1794

In Prussia, efforts to codify the law for the entire state began around the middle of the 18th century. The draft for a general code presented in 1788 came into force in 1794 with modifications as "Allgemeines Landrecht für die Preußischen Staaten" (ALR).¹⁴ The ALR, which was closely tied to the social order of the estates, regulated not only private law but also criminal law and important areas of public law. This explains the total volume of almost 20,000 articles as well as its claim to decide all legal questions in a binding manner in order to eliminate any arbitrary judicial decisions. The ALR was based on the Ius Romano-Germanicum, but also took local law into account. The detailed provisions, which refer to concrete aspects of everyday life, resulted in a high degree of casuistry. This, together with its descriptive and vernacular language, gave the ALR remarkable popularity among the citizenry.

In academic circles, by contrast, the code, which was written for an enlightened-absolutist state, was already outdated when it came into force. It thus met with opposition, which delayed its teaching and elaboration at the universities and inhibited its wider impact. In the territories on the left bank of the Rhine, the Code Civil BILD: Code Civil, BnF, Gallica ended the validity of the ALR already around 1810. However, it was not fully abolished until the introduction of the BGB.

The Austrian General Civil Code of 1811

When the ALR came into force in Prussia in 1794, concrete steps had already been taken in the Habsburg monarchy to meet the need for legal unification and renewal by drafting codifications. Unlike in Prussia, however, individual parts of the legal system were to be recorded in several codes, as in Bavaria.¹⁵ While already in 1768 the "Allgemeine peinliche Gerichtsordnung" came into force as a codification of criminal law and criminal procedure, in civil law the Codex Theresianus of 1766 largely failed to meet expectations and therefore remained a draft. The civil procedure law, originally planned as its fourth part, was detached and enacted as the "Allgemeine Gerichtsordnung" (General Judicial Code) in 1781. Of the three remaining parts of substantive law, the first part of a "General Civil Code" entered into force after revisions in 1787.¹⁶ Together with the succession patent (Erbfolgepatent) of 1786 this so-called "Teil-ABGB" (partial ABGB) helped the German hereditary lands and Galicia – i.e. not the Hungarian lands - to a uniform personal, family, matrimonial property and (legal) inheritance law. Extended by heretofore still pending matters, the first complete European private law codification,¹⁷ strongly influenced by Karl Anton von Martini (1726–1800)¹⁸ came into force in 1798 with the "Civil Code for Galicia." It was, however, for the time being, only applicable in a part of the whole state.¹⁹ As an "Urentwurf" (original draft), it formed the basis for the further codification work. The result was the promulgation of the General Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB) on June 1, 1811. From January 1, 1812 onwards, a formally uniform private law was in force in the Habsburg lands, with the exception of Hungary. In the multinational Habsburg monarchy, this was only possible through the independence of different national laws and national peculiarities, which therefore - contrary to older legends - were virtually absent from the code. In order to allow all nationals to be familiar with the text of the law, a number of official translations were required, e.g. into Polish, Czech, and Italian. In the course of the unification of the law in the entire Austrian Empire from 1849 and the extension of the scope of the ABGB in 1852/1853 to Hungary and its neighboring countries,²⁰ translations into Hungarian, Serbian and Croatian followed.²¹

Compared to the other natural law codifications - the conservative, estates-oriented ALR of 1794 and the liberal Code Civil of 1804 - the ABGB occupied a kind of intermediate position. Although the estates-based social and state order during its period of origin had manifested in a number of legal institutes (e.g. the noble fideicommissum²²),²³ the neutrality and elasticity of its provisions ensured the potential for adaptation and further development. Unlike the ALR, it was distinguished by its concise style which avoided any casuistry; similar to the ALR, it used language that was generally understandable. Another reason for the Code’s accessibility was its rational and therefore logical construction, which was mainly due to the influence of Franz von Zeiller (1751–1828)²⁴. Scholars immediately took up the new civil law with the aid of the exegetical method, which had been enshrined in law in the application rules of §§ 6 and 7 ABGB. It provided legal practitioners with commentaries and in-depth literature that also drew on foreign law, such as the ALR,²⁵ for clarification.

The ABGB had the most direct influence on the principality of Liechtenstein, which belonged to the Rhine Confederation at that time. It was enacted in February 1812 (and remained in force until 1846, however, with the exception of the law of succession).²⁶ Despite Liechtenstein's turn towards Switzerland in the wake of the First World War and the partial drafting of a "Liechtenstein Civil Code" subsequently based on the model of Swiss law (only its first part, the property law of 1923, and its third part, the personal and company law of 1926, were realized), essential parts of the ABGB remain valid in Liechtenstein to this day. The reflection on legal tradition and legal continuity in the course of the reform of the judicial system, which began in 1970, meant that there is still a close connection between the two legal systems, partly in the law of obligations, but above all in marriage, family and inheritance law. As a consequence, Austrian legal developments are closely observed and largely followed in Liechtenstein. Moreover, the close cooperation in the judicial sphere, which has occurred in various ways since 1818, helps to preserve the traditional proximity of Liechtenstein to Austrian private law.²⁷

In the course of the 19th century, the ABGB served as a template for the codifications of a number of individual monarchical states of the German Confederation, such as Bavaria and Saxony, but also for some republican Swiss cantons, such as Bern and Lucerne. In a version considerably revised by the "Teilnovellen” (partial amendments) of 1914, 1915, and 1916,²⁸ it continued to apply after 1918 in some successor states of the Habsburg monarchy such as in Poland, Czechoslovakia, and Yugoslavia.

Jurisprudence in the 19th century

Around 1815, under the influence of the contemporary trends of historicism and romanticism, German jurisprudence increasingly turned away from the logical-constructive reason-based law of the Enlightenment. In connection with the demand for legal unification through the creation of a general private law code for the German Confederation (Deutscher Bund), the codification idea came under criticism. The so-called “Kodifikationsstreit" (codification dispute) was fought out in a literary-scientific way between Anton Friedrich Justus Thibaut (1772–1840)²⁹ in the role of the "advocate" and Friedrich Carl von Savigny (1779–1861)³⁰ in the role of the "opponent".³¹ Savigny, however, was not against a unification of private law per se, but rather doubted the method. He therefore countered what he saw as the codification movement's unhistorical striving for expediency by reflecting on the historical foundations of the applicable law, which he identified above all in ancient Roman law and in common law. Law, in Savigny's view, emerges and develops in the common legal consciousness of the people; the legislator can only supplement this living law engendered by the "popular consciousness" (Volksgeist) or cast it in certain forms. Since the codification of law by the legislator prevented the organic growth of the legal order, he opposed the codifications of natural law. Together with Karl Friedrich Eichhorn (1781–1854),³² Savigny became the founder of a new scholarly method, the Historical School of Jurisprudence,³³ which split into two directions: pandectics and German studies.

Pandectics, whose name derives from the central part of the Corpus iuris civilis, the pandecs or digests, was the Romanist branch that took its cue from classical Roman law. It regarded jurists trained in Roman law as being the representatives of the popular consciousness. On this foundation, pandectics sought to form a dogmatically contradiction-free, positive legal system through the systematic-historical method. It was further developed by Savigny's student, Georg Friedrich Puchta (1798–1846),³⁴ who recognized the importance of the formal-conceptual method in making the so derived law applicable. He developed a system of genealogically and hierarchically connected legal concepts, from which new rules of law and principles, and, in a further step of abstraction, general doctrines, could be obtained by means of logical and deductive reasoning or by analogy. This made him the founder of classical conceptual jurisprudence, which had a lasting impact on civil law dogmatics in the second half of the 19th century.

The second branch of the Historical School of Jurisprudence, Germanic law, took up domestic law as actually practiced popular law and rejected Roman law as artificial jurisprudence. The Germanists were concerned with the scientific comprehension of the wealth of German particular law and, at the same time, with its systematic historical development. On the basis of the earliest German legal sources, which, however, first had to be compiled and edited, an attempt was made to identify fundamental legal ideas and institutions in the particular laws in order to form from them a general German system of private law. In contrast to pandectics, the Germanists were positively disposed towards a codification of law and thus also towards an all-German civil code.

Gradually, both tendencies of the Historical School of Jurisprudence not only covered all states in the German Confederation, but went far beyond it. They consolidated the German legal system, with the inclusion of Switzerland, thanks to an almost uniform scholarly approach. Organizational factors contributing to this were the "Deutscher Juristentag" (German jurists’ conference), founded in 1860 as a scholarly showcase for German-speaking lawyers, and the appointment policy of the law faculties, which disregarded national borders. Finally, the Historical School of Jurisprudence had a significant influence on the emergence of the unity of private law in Germany and Switzerland, as well as on the renewal of private law in Austria.

The second wave of codification: the pandectist codifications

In the Vormärz (1815–1847) the unification of law had become a symbol of German national unity. Accordingly, this epoch was dominated by the demand for all-German codifications of civil, commercial, criminal and procedural law as well as of public law.³⁵ While the project of an imperial constitution failed, the realization of legal unity on the level of the German Confederation succeeded in the field of commercial law, namely thanks to the Allgemeine Deutsche Wechselordnung (ADWO) of 1848³⁶ and to the Allgemeine Deutsche Handelsgesetzbuch (German commercial code) of 1861.³⁷ In the individual states of the German Confederation, constitutions, i.e., codifications of constitutional law, had been realized almost everywhere by 1848, accompanied by particular codifications and individual laws in other legal matters.³⁸

In the private law of the individual German states, such as in Prussia (1841/1842), Hesse-Darmstadt (1842/1847), and Bavaria (1861/1864), the planned codifications did not get beyond the draft stage,³⁹ with the exception of the Kingdom of Saxony.⁴⁰ In 1852, closely following the Austrian ABGB, Gustav Friedrich Held (1804–1857) worked out a draft law, structured for the first time according to the pandectic (five-book) system which was intended to end the fragmentation of Saxon private law - state laws applied alongside common Saxon law and common Roman law. Due to massive criticism (especially from Carl Georg von Wächter (1797–1880)), which chiefly referred to unnecessary changes vis-à-vis the existing Saxon law as well as to omissions, linguistic ambiguities, and internal contradictions, the draft was subjected to a thorough revision.⁴¹ This resulted in an independent codification of private law comprising 2620 paragraphs, which, after being amended several times, came into force in 1865 as the Bürgerliches Gesetzbuch für das Königreich Sachsen (Saxon BGB). The Saxon BGB, the first pandectist codification and at the same time the only completed particular private law system in the 19th century, met with wide criticism among experts. Nonetheless, it was recognized in practice and also had great significance as a model law system.⁴² The same applied to the BGB, whose entry into force on January 1, 1900, ended the validity of the Saxon BGB.

The German Civil Code (BGB) of 1896

Although the Constitution of the German Empire of 1871 established the political unity of Germany (in the Kleindeutschland sense), it limited the Empire's legislative power to individual matters. In civil law, there was initially only the authority to standardize the law of obligations;⁴³ an amendment to the constitution in 1873 extended it to the entire civil law and at the same time also transferred to the Empire the right to legislate in criminal law and procedural law.⁴⁴ Shortly thereafter, preliminary work began on a codification of civil law. More than 20 years would pass before its adoption by the Reichstag on July 1, 1896. In the report of the so-called "Vorkommission" (preliminary commission) of 1874, it was proposed to dispense with the existing codifications or drafts and instead to base the content on the principles of common German law and to follow the systematics of the pandect scheme. The latter, in addition to a general section, provided for a division into property law (i.e. the law of obligations and property law), family law, and inheritance law. The draft law prepared on the basis of these guidelines was published in August 1896 and came into force on January 1, 1900 as the Bürgerliches Gesetzbuch (BGB).⁴⁵

In its outward form, the BGB was a "legal code” that presented a clear system and used a sober, precise, and often very abstract technical language that lacked any descriptive vernacular. Abroad, within and outside the German legal system, German civil law codification had an exemplary function; its dogmatic principles and theories were transferred to national legal systems.⁴⁶

The BGB was based on the liberal ideas of the 19th century about the state and law and thus reflected, like every codification, the political, social and economic conditions of its time. These basic principles were also reflected in the general clauses enshrined in the BGB, which were intended to give the court the option of resorting to general aspects of justice in individual cases, e.g. the prohibition of abuse of rights. At the same time, this ensured the openness of the legal system to changing values and requirements.

The communist part of Germany had its own valid civil code from 1976 until it was reunited with the FRG in 1990. Even before it entered into force, the BGB had been replaced by individual laws in those areas where it was incompatible with the socialist ideology of the GDR, especially in labor and family law.⁴⁷ Work on the Zivilgesetzbuch der DDR (civil code of the GDR) was interrupted several times because of changes in political direction and ideological objectives. In the codification, which consists of seven parts, the pandect scheme was deliberately avoided, as was a uniform order of private law. The focus was on regulating the affairs of citizens' lives according to ideological guidelines and in the interest of a classless society.⁴⁸

The Swiss Civil Code of 1907/1912

In Switzerland, the codification movement in the 19th century was initially able to gain a foothold only at the level of the cantons, as the regulation of private law fell within their purview. In the elaboration of the cantonal civil laws, the foreign codifications of natural law exercised a great influence alongside the native legal tradition, namely the Code Civil in western and southern Switzerland (e.g. Ticino and Wallis) and the ABGB in central Switzerland (e.g. Bern and Lucerne). The Zürcher Privatrechtliche Gesetzbuch of 1853/1855, was begun by Friedrich Ludwig Keller (1799–1860),⁴⁹ a representative of the Historical School of Jurisprudence, and completed by Johann Caspar Bluntschli (1808–1881).⁵⁰ It represents what is probably the only independent cantonal codification of private law and influenced legislative work in the other cantons (e.g. Schaffhausen and Glarus).⁵¹

In 1874, the era of particular civil laws came to an end. The federal government was given legislative authority, at least in individual areas of private law, by means of constitutional amendment, e.g. in the law of obligations, including commercial law and the law of bills of exchange. With the "Bundesgesetz über das Obligationenrecht" (federal law on the law of obligations) of 1881 - a first step towards the unification of private law - Switzerland opted for a "code unique" by incorporating commercial law matters into general civil law. In order to realize the complete unity of private law, Eugen Huber (1849–1923),⁵² a representative of the Historical School of Jurisprudence, was entrusted in 1884 with the task of a comparative legal presentation of all the cantonal civil law systems in force.⁵³ A codification was elaborated on this basis and with the active participation of Huber.⁵⁴ Adopted in December 1907 as the "Schweizerisches Zivilgesetzbuch" (Swiss Civil Code, ZGB),⁵⁵ it came into force on January 1, 1912.⁵⁶ The revision and adaptation of the law of obligations to the ZGB was carried out by the two federal laws of 1911 and 1937, which together form the "Schweizerische Obligationenrecht" (Swiss Code of Obligations, OR).⁵⁷

As a modern, self-aware (selbstbewusst) codification, the ZGB basically renounced foreign and historical models as well as a strict system of classification. Unlike the German Civil Code, it used generally understandable, descriptive language and presented itself as a popular code, which - without any claim to gap-free perfection – was confined to laying down general rules and guiding legal principles. The often very elastic regulations, supplemented by the gap-filling power enshrined in Article 1 of the introduction, were deliberately designed to strengthen judicial power.

In the German legal system, the ZGB was the most modern, or in any case the most recent, codification of private law. As such, it influenced the private law of its neighboring states: In addition to the close connections to the German Civil Code (BGB), there were effects on the Austrian General Civil Code (ABGB) in the form of the influence on the "partial amendments" 1914–1916. There were also implications for Liechtenstein private law through the reception of the 1923 property law and the 1926/1928 person and company law.

Influences on other legal systems

The Ius Romano-Germanicum already exerted an impact beyond the German legal system and influenced in particular the Scandinavian legal system. Because of the early and repeated consolidation of the domestic law by legislative acts as well as the further development of the law by the courts, the common law had little importance there. Among the legal codes of the German legal system, the ABGB was the first to have a more far-reaching influence, forming the basis for the civil code of the Principality of Moldova of 1817 and the Serbian Civil Code of 1844. The fact that it was also taken into account in the elaboration of civil codes in Spain as well as in some South American states speaks for its universal applicability.⁵⁸ With the fundamental continuation of the ABGB and also of the BGB in the states newly created at the end of the First World War such as Czechoslovakia and Poland in particular, these countries partly remained, at least for the time being, within the German legal system. This did not change until they became part of the socialist legal system after 1945.

In the 19th century, it was mostly the Historical School of Jurisprudence that gained in influence beyond Europe: in South America, China, Japan, and, to a degree, in the USA. As an extension of this export, the German BGB influenced Greece, Japan,⁵⁹ China,⁶⁰ Brazil, Thailand and Peru, the Swiss ZGB the Italian Codice civile of 1942 as well as the private law codes of Greece, Hungary, Yugoslavia, Bulgaria, Poland and Czechoslovakia. Beyond the borders of Europe, the Swiss codification also came to influence legislation in the Soviet Union as well as in Peru, Thailand, and China.⁶¹

At the beginning of the 20th century, the reception of Swiss private law by Turkey, where its French version was promulgated in a very free translation as the "Turkish Civil Code" and "Turkish Code of Obligations" in 1926, constituted one of the most remarkable transfer processes.⁶² Finally, towards the end of the century, in the 1990s, the Central and Eastern European states rejoined continental European jurisprudence after the end of the socialist era by recalling their legal tradition and reviving it on the basis of modern developments in the German legal system.⁶³

Elisabeth Berger

Appendix

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Notes

1. ^{^} See Schlosser, Grundzüge 2005, pp. 207–259; Zweigert / Kötz, Einführung 1996, pp. 62–313.
2. ^{^} On the reception of Roman law, see in each case with further references: Ranieri, Römisches Recht 1995; Kiefner, Rezeption 1990. On the reception in Germany: Schlosser, Grundzüge 2005, pp. 59–67; Wieacker, Privatrechtsgeschichte 1996, pp. 124–152.
3. ^{^} Schlosser, Grundzüge 2005, p. 60f.; Wieacker, Privatrechtsgeschichte 1996, pp. 152–169.
4. ^{^} Kleinheyer / Schröder, Juristen 2008, pp. 419–423.
5. ^{^} See Schlosser, Grundzüge 2005, pp. 76–79; Luig, Usus modernus 1998, with further references; Wieacker, Privatrechtsgeschichte 1996, pp. 204–248.
6. ^{^} The Dutchman Hugo Grotius (1583–1645) is considered to be the founder of this movement. Grotius was primarily interested in constitutional and international law, which he decisively modernized with the help of natural law principles. See Kleinheyer / Schröder, Juristen 2008, pp. 183–190; Schlosser, Grundzüge 2005, pp. 95–97.
7. ^{^} Schlosser, Grundzüge 2005, pp. 104–110; Luig, Vernunftrecht 1998, Col. 781–190; Wieacker, Privatrechtsgeschichte 1996, pp. 249–322. The law of reason (Vernunftrecht) had a particularly intensive impact on international law as well as state and constitutional law.
8. ^{^} Here, especially the two philosophers of natural law Christian Thomasius (1655–1728) (Kleinheyer / Schröder, Juristen 2008, pp. 440–447) and Christian Wolff (1679–1754) (ibid., pp. 464–473) played an important role. See also Schlosser, Grundzüge 2005, pp. 106–109.
9. ^{^} Schlosser, Grundzüge 2005, p. 111f.; Caroni, Kodifikation 1978; in each case with further references.
10. ^{^} Brauneder, Verfassungsgeschichte 2009, p. 85f.
11. ^{^} On him, see Kleinheyer / Schröder, Juristen 2008, pp. 244–248; Bauer / Schlosser, Kreittmayr 1991.
12. ^{^} The codification project of a Codex Maximilianeus, based on the model of the Prussian legislative reform under Frederick the Great (1712–1786), produced as further partial results a penal code (Codex juris Bavarici criminalis, 1751) and a code of civil procedure (Codex juris Bavarici judiciarii, 1753).
13. ^{^} Schlosser, Grundzüge 2005, pp. 112–116; Wieacker, Privatrechtsgeschichte 1996, p. 326f.
14. ^{^} Wieacker, Privatrechtsgeschichte 1996, pp. 327–335; Dölemeyer / Mohnhaupt, Landrecht 1995. Recently above all: Eckert, Landrecht 2008; Schlosser, Grundzüge 2005, pp. 117–123; in each case with further references.
15. ^{^} See Brauneder, Kodifikationen 2007, p. 116f.
16. ^{^} See on this and the following: Brauneder, Gesetzbuch 1987; Brauneder, Bürgerliches Gesetzbuch 2008; in each case with further references.
17. ^{^} On him, see Kleinheyer / Schröder, Juristen 2008, pp. 277–281; Schlosser, Martini 1987.
18. ^{^} The ALR, in force in Prussia since 1794, contained criminal law and public law in addition to private law.
19. ^{^} Although the Code was in force throughout Galicia, secondary literature usually refers to it as the "West Galician Code." See Brauneder, Privatrechtskodifikation 1999.
20. ^{^} In Hungary, the ABGB expired again in 1861, but it remained in force in the adjacent countries such as Croatia-Slavonia.
21. ^{^} Brauneder, 1987 Gesetzbuch, pp. 234–239.
22. ^{^} This is a special asset created by a disposition, which - for the purpose of undivided preservation of assets in the family - is subject to a fixed order of succession and may not be sold or encumbered.
23. ^{^} Brauneder, ABGB 1992.
24. ^{^} On him, see Kleinheyer / Schröder, Juristen 2008, pp. 477–480; Oberkofler, von Zeiller 1987.
25. ^{^} Brauneder, ALR 1995.
26. ^{^} At the same time, the Austrian General Code of Judicial Procedure of 1781 and the Austrian Code of Crimes and Serious Police Offenses of 1803 came into force in Liechtenstein.
27. ^{^} Brauneder, 175 Jahre 1988; Berger, 190 Jahre 2002. For fundamental aspects of this: Berger, Rezeption 2008.
28. ^{^} Dölemeyer, Teilnovellen 1982.
29. ^{^} See on him Kleinheyer / Schröder, Juristen 2008, pp. 436–439.
30. ^{^} Kleinheyer / Schröder, Juristen 2008, p. 366–375.
31. ^{^} In his writing "Über die Nothwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland" (1814), Thibaut argued for a uniform national legislation on the basis of rational law and thus met fierce resistance from Savigny, who in his refutation "Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft" (1814) rejected codification as unhistorical reason-based law. See on the codification dispute: Schlosser, Grundzüge 2005, pp. 142–145; Schöler, Rechtseinheit 2004, pp. 106–113.
32. ^{^} See on him Kleinheyer / Schröder, Juristen 2008, pp. 124–127.
33. ^{^} On the Historical School of Jurisprudence, see Schlosser, Grundzüge 2005, pp. 144–151; Wieacker, Privatrechtsgeschichte 1996, pp. 348–416; Thieme, Rechtsschule 1978.
34. ^{^} See on him Kleinheyer / Schröder, Juristen 2008, pp. 341–344.
35. ^{^} See Schöler, Rechtseinheit 2004, pp. 225–256, which provides an overview of the legislation of selected German states.
36. ^{^} Schlosser, Grundzüge 2005, p. 173f.; Pannwitz, Entstehung 1999.
37. ^{^} Schlosser, Grundzüge 2005, pp. 175–177. In Liechtenstein, where the ADHGB was introduced in 1865, it is still partially in force today (commentary in Liechtensteinisches Landesgesetzblatt 1997 no. 193).
38. ^{^} Still essential here: Huber, Verfassungsgeschichte 1988. From recent literature: Brauneder, Verfassungsgeschichte 2009, pp. 109–111, pp. 131–133.
39. ^{^} Dölemeyer, Kodifikationen 1982.
40. ^{^} Dölemeyer, Kodifikationen 1982, p. 1540–1561. For a brief overview, see Schlosser, Grundzüge 2005, pp. 177–179. For more detailed information: Ahcin, Entstehung 1996.
41. ^{^} Dölemeyer, Einflüsse 1987, esp. p. 219f.
42. ^{^} The Saxon Civil Code influenced Hungarian civil law codification as well as Baltic private law. See Dölemeyer, Kodifikationen 1982, p. 1553.
43. ^{^} In the German Confederation, a unification of the law of obligations was intended to improve economic relations between the states. Although the dissolution of the Confederation put an end to the codification work, its result influenced the Dresden draft of 1866, the law of obligations of the later BGB as well as the Swiss Code of Obligations. See Schlosser, Grundzüge 2005, pp. 182f.; Dölemeyer, Kodifikationen 1982, pp. 1562–1571.
44. ^{^} Four so-called “Reichsjustizgesetze” (imperial judiciary acts) of 1877 brought about legal unification in the areas of court constitution, bankruptcy law, and criminal and civil procedural law.
45. ^{^} Repgen, Gesetzbuch 2008; Schlosser, Grundzüge 2005, pp. 180–206; Zweigert / Kötz, Einführung 1996, pp. 141–155; Dölemeyer, Bürgerliches Gesetzbuch 1982.
46. ^{^} Kramer, Einfluss 2000, pp. 369–371.
47. ^{^} Arbeitsgesetzbuch (labor code) of 1961 and Familiengesetzbuch (family code) of 1965.
48. ^{^} Schlosser, Grundzüge 2005, pp. 234–237. For the current state of research, see Eckert, Recht 2000, pp. 232–237.
49. ^{^} See on him Schmid, Keller 2007.
50. ^{^} Kleinheyer / Schröder, Juristen 2008, pp. 70–73.
51. ^{^} See Caroni, Romanistik 1994.
52. ^{^} Kleinheyer / Schröder, Juristen 2008, pp. 207–211.
53. ^{^} The result of his work was the four-volume “System und Geschichte des Schweizerischen Privatrechts” (1886–1893).
54. ^{^} The basis for this was the federal government's jurisdiction over all civil law, which had been constitutionally enshrined since 1898.
55. ^{^} Law texts to be found on the homepage http://www.admin.ch/ of the federal council of the Swiss Eidgenossenschaft.
56. ^{^} Schlosser, Grundzüge 2005, pp. 208–216; Caroni, Privatrecht 1999; Zweigert / Kötz, Einführung 1996, pp. 165–176; Caroni, Einleitungstitel 1996; Dölemeyer, Schweiz 1982.
57. ^{^} Caroni, Obligationenrecht 1984.
58. ^{^} Schlosser, Grundzüge 2005, pp. 139–142; Brauneder, Gesetzbuch 1987, pp. 246–250.
59. ^{^} In the Japanese Civil Code of 1898, the prototypical character of the German Civil Code was unmistakable; in terms of content, the French and English influence was noticeable in addition to the German influence in property law; in family and inheritance law, the Japanese tradition was influential. Schröder / Morinaga, Einfluss 2005.
60. ^{^} The German Civil Code directly exerted the greatest influence on the Chinese Civil Code of 1929/1931, as the text of the law, including the motives, formed the basis of the deliberations. Swiss, Russian, Turkish and Italian law were also taken into account. See Ham, Rezeption 2006.
61. ^{^} Schlosser, Grundzüge 2005, p. 189f. and p. 214.
62. ^{^} Schlosser, Grundzüge 2005, pp. 213–216, with references Exemplified from recent literature: Breitschmid / Ansay, ZGB 2008.
63. ^{^} See, for example, the civil law systems in the three Baltic republics after restoration of their state sovereignty. See most recently Steinke, Zivilrechtsordnungen 2009.