Law and History -- On the Formation and Evolution of the German Civil Code

Author: Rolf Knieper
Publisher:
Publish Date: 2003-05-01
Features: If Switzerland had not been so slow, the German Civil Code would have ended the 19th-century era of codification. Similar to the criticisms directed at other civil codes, the critiques of the German Civil Code also focus on its being a belated fruit of liberalism, the Enlightenment, rational law, and Roman doctrinal jurisprudence. However, perhaps because the German Civil Code was promulgated at the turn of the century, the criticisms leveled against it were far more severe than those directed at the Swiss Civil Code (1907–1911) or the Dutch Civil Code (1992). With the shifting trends of criticism, the objectives also changed. It is certain that the German Civil Code ultimately abolished the German common law, which had been in effect in Germany for nearly centuries. From the German Civil Code, a model quickly emerged that differed profoundly from the common law system. Yet this did not hinder the adoption of similar methods to address fundamental civil law issues. As before, history and social movements are not bound by attempts to clearly delineate chronological eras. However, in this book, periodization is necessary, possible, and must be undertaken, but always under the condition of maintaining the asynchronicity of time. Although many have criticized the German Civil Code and called for its reform, and some of these criticisms have been loud and principled, the German Civil Code remained unchanged for a long time, which exceeded the expectations of those who raised the critiques and calls for reform. This is ample reason to discuss this phenomenon a century later, especially as the anniversaries of other civil codes, long or short, are drawing near. Like many other texts, the German Civil Code also allows for multiple interpretations. This interpretation unfolds between the opposing poles of Mensch und Person (Human and Person), human essence and human reason, autonomy and administration, equality and power, subject and object, concrete and abstract, stability and change, history and eternity, and nation and state. These are social contradictions and issues that not only interest legal scholars but also spark intense discussions within the realm of cultural studies. The German Civil Code and other civil codes provide material for analyzing these issues, which helps in addressing them. My personal interest stems from a long-term study of civil law, from my different positions, and from my stays in various countries. More precisely, it is driven by personal reasons rather than historical accident—in the past, when some communist societies began drafting new civil codes and some governments invited me to participate in the work, my interest grew. This was a significant opportunity that required us to reassess our history. I am deeply grateful to Barbara Knieper, Peter Derleder, Ronald Kandelhard, and Thomas Meyer. Their loving, rational, and unstinting critiques accompanied my entire writing process, and they did not lose patience despite my stubbornness. Additionally, Barbara shared with me the solitude and freedom of life and immersed herself in her own writing. Helga Meierkord patiently devoted himself to the transcription of handwritten manuscripts at the turn of the century, and I am grateful to him for his efforts. Rolf Knieper March 1996, Bremen, Kiel