German Unification: Schools of Thought

• Before German Unification, various codes like the Prussian Code, Austrian Code (BGB), French Code, and Roman law were applicable in different regions.
• Initially, there was no strong superior court to unify the territories.

Schools of Thought Before Unification

• Two main schools of thought existed before unification.
• The Historical School of Jurisprudence, led by Friedrich Karl von Savigny, believed law should be based on the Volksgeist (spirit of the people) derived from customary law.
• The Historical School of Jurisprudence opposed codifying law, arguing customs couldn't be codified.
• The Historical School of Jurisprudence advocated for legal unification through the growth of legal science and a common legal understanding.
• Customary law, influenced by Roman law, was the primary focus for this school.
• The Pandectist School, founded by Savigny’s students, focused on elaborating, reorganizing, and structuring legal materials, especially the Corpus Iuris Civilis, using a mathematics-based method.
• The Pandectist School emphasized dogmatism, systematic organization, and systematic interpretation of law to maintain harmony within the legal system.
• The Pandectist School aimed to elaborate definitions and create categories for legal concepts, like legal transactions.
• The Pandectist School believed law should be dogmatic and not allow exceptions, thus supported codification.
• The Historical School evolved into the Pandectist School, which became the dominant school of thought.

Creation of Codes

• Germany, like France, separated civil and commercial codes.
• The German Civil Code (BGB) was created first and heavily influenced by the Pandectist school.
• The BGB was considered a conservative code but included general clauses, allowing broader interpretations.

The BGB (German Civil Code)

• The BGB's style is complicated, uses technical legal language, and frequently references other articles, making it difficult to understand a single clause.
• The BGB is structured into five books.
• The 1st Book is the "general" part, containing general definitions elaborated in other books, such as natural person, legal person, property, and terms of prescription.
• The 1st Book showcases how a code can translate the ideas of a legal school of thought.
• The 2nd Book concerns Obligations and is the second-most important, including obligatory relations between parties (creditors and debtors), contract law, and obligations in tort.
• The 3rd, 4th and 5th Books cover Property, Family, and Succession respectively.
• The BGB's philosophy reflects the bourgeois, but is more modern than the French Civil Code, lacking social aims and being patriarchal.
• The BGB is a conservative code with no references to industrial development or trade unions.
• The BGB aimed to be complete, regulating everything and being the sole instrument of private law regulation.
• The BGB is still applicable today, having survived different periods of German history.
• During the Weimar Republic, the BGB was amended to include a more social approach.
• Political changes didn't significantly alter the content of the code.
• The BGB has evolved in family law, employment law (recognizing trade unions), and obligation & contract law (reforms in 2002).
• The BGB has had limited international influence compared to the French Civil Code due to the greater influence of the German school of thought.
• The Italian legal system is influenced by the French Civil Code and the German's school of thought.

Private Law Jurisdiction

• Ordinary Jurisdiction handles civil & criminal law.
• Specialized Courts include administrative, tax, and social security courts.
• Constitutional Courts include the Federal Constitutional Court and the Länder’s constitutional courts.
• Federal Jurisdiction includes a first-instance court, court of appeal, and the Federal court.