GERMAN CODES By codification we understand the exhaustive arrangement of a particular subject matter (e.g., commercial or criminal law) according to a uniform plan in a book of law.
Modern codi fications have only been carried out in Germany since the 18th century. As a result of the adoption of Roman law the Corpus Juris Civilis came to be applied in Germany as a whole, subject to the glosses which had been incorporated by the Bologna school of law. It was a code regulating all legal relationships except in so far as particular rights were otherwise provided for. Moreover the Corpus Juris Canonici had a wide application. There were thus two great code systems in existence. Their validity was profoundly shaken at the beginning of the modern era for the following reasons: The Reformation had very much limited the extent to which the ecclesiastical law could be applied; while the mental attitude towards the question of social relationships had been profoundly modified as a result of a philosophy of enlighten ment and the idea of natural law. Moreover the changes in political, social and economic conditions required new principles of law, since the Roman text books had become archaic and unmanageable, while in the matter of social jurisprudence they were not sufficiently adapted to the conditions of the modern world. Finally the general conception of law at the time was that all valid law was exclusively State-made law, and by codi fication it was possible to give effect to this point of view. In the i8th century the German empire broke up into a series of inde pendent States. When the legal constitutional connection between the individual States disappeared, they began to feel the want of a new and independent settlement of their systems of law. Codi fication was often a means of confirming a State's entity; and the individual German States set about the task of introducing systems of law that would answer to their national and practical require ments. The most extensive codification of the end of the i8th century, which embraces every department of law is the Allge meine Landrecht fur die preussisclien Staaten of Feb. 5,
The other individual States all codified the law separately ; they dealt specially with private law, with criminal law, and with procedure. These collections of laws incorporated much from the general law of the land, and also many special German laws, so that in spite of a certain modernization the general tradition was observed. Moreover, on passing from an absolutist to a constitutional system in Germany, the form of a written constitu tion was adopted, so that State law itself was codified. The political circumstances of the time, however, were such that this was only done for the individual German States except in the case of the law incorporating the German Federation. It was not until the North German Federation and the German empire came into being (in 1866 and 1870 respectively) that the constitutional conditions for the general codification of law obtained. The need for a uniform system of law, especially in the field of com merce, was so strong that a common form had already been arrived at by the individual States in their system of commercial law. Under its constitution the North German Federation was already competent to frame laws which should be commonly valid In the individual territories. As this competence increased in scope a number of codifications were effected over a considerable period of years. The scheme which they followed was determined both by the keen need that was felt for rationalizing a constantly growing and therefore increasingly unmanageable legal material, and by the simplification of all political and commercial relation ships, and the closely related evolution of the federal constitution of Germany into that of a single individual state.
In order to understand the German codes, it is essential to realize that they apply not to an ordinary State entity, but to a Federal State. Even in the case of those parts of the law which had been codified, the empire was not wholly successful in assum ing full control of further legislation (e.g., in questions of police and the law of real property). There are therefore in many codes provisions allowing for the reservation of certain matters to the legislatures of the individual States. Such are especially matters which had been previously dealt with by the States individually. On the other hand such exceptions are of small scope or non existent in those codes which deal with matters which had from the start fallen within the province of the imperial legislature, such as the law relating to national insurance. The importance of reservations in favour of territorial jurisdiction has been greatly diminished in those cases where they still exist.
Apart from this limitation of codes in favour of provincial law, their scope is limited in another direction. When, upon a subject being codified, new legal regulations are required, these are often promulgated as novellae to the codes. But frequently independent laws are passed, especially where the code is antiquated. Thus
there are about 30o subsidiary laws to the penal code. The purpose
of the original code is largely frustrated by such developments.
The German civil code is set out in five books. It has been largely influenced in its scheme by the general law and by the Prussian general law of real property. The general regula tions and the provisions dealing with relationships between debtors have been largely derived from Roman law, while the law of property and of inheritance is Germanic in origin. Its technique does not derive from casuistic theory; indeed the provisions are of a very general nature and often conceived in a highly abstract manner. It bears the mark of the individualistic, and in economics of the capitalistic, outlook of the end of the i9th century. Col lectivist ideas have had but little influence upon it. Even when it first came into force it was partly inadequate, since it does not deal with the special conditions under which the modern proletariat live, although the proletariat already constituted a substantial portion of the population. In theory the code was intended to cover all laws affecting the rights of private individuals excepting commercial law. Moreover, since it came into force, important fields have been regulated by separate imperial laws, as for in stance motor insurance, contracts for service, the laws relating to young persons. In matters appertaining to the law of things the old territorial law has been largely retained and the competence of territorial jurisdictions for further dealing with matters in this province has been maintained.
As for the separate portions of this code, the general section includes the rules of law laying down what subjects fall within the scope of the legislature, and deals with the manner of con ducting the business of the courts. It includes regulations re garding interpretation, the expiry of laws, contempt of court, etc.
The law of debt relationships which is contained in the second book is based upon the principle of freedom of contract. In the first and general section, this book contains the maxims regarding the nature, origin and extinction of the debt relationship. Its guiding principle is that all obligations are to be carried out in a manner consonant with a true and loyal observation of the generally accepted rules of human intercourse. The special por tion of the book deals with individual cases of obligation, such as purchase, hire, barter, unjustifiable increment, unconscionable actions. This code contains only a few provisions affecting con tracts of service and such provisions are of little practical sig nificance. The legal position of workmen and servants is in fact dealt with to a much greater extent by subsidiary laws, especially the wages agreements regulations. These provisions are generally no longer included in the law of persons; together with allied regulations they have been amalgamated into a labour law, the codification of which is being planned.
The law of things of the civil code deals with the law as it affects movable and immovable things, especially ownership, pos session and assignable rights. The recent advance of the social idea has profoundly modified the contents of this book. The ownership and user of the land is dealt with in a series of sup plementary laws of the post-War period, dealing with usufruct, occupation and life estates.
The law of the family regulates marriage, relationship and guardianship. Reforms affecting divorce and the position of illegitimate children are under consideration. Public interest in child-welfare has invalidated the original provisions of the code in several directions (the Juvenile Welfare Law of July 9, 1922 ; the Juvenile Courts Law of Feb. 16, 1923). Finally the fifth book deals with the law of inheritance.
This was of special importance as being the first codification of private law ; it was the predecessor of the civil code, into which a large number of the general pro visions were subsequently incorporated. It was revised on the promulgation of the civil code and is now valid as the commercial code for the German empire (May 10, 1897) . Since that date numerous novellae have been passed and in addition a series of subsidiary laws of various dates are operative, as for instance the laws governing limited liability companies and unfair com petition. On the other hand any isolated reservations by pro vincial legislatures are without practical significance. The pri vate special law of merchants, in so far as it is applicable, is therefore of higher validity than the civil code. It deals more particularly with the problem of assuring liberty of contract and of form, there being also numerous provisions to ensure the reve lation of essential facts and to secure good faith (e.g., those deal ing with the trade register and bond fide acquisition) as well as for the accurate estimation of time and money (suggestions as to the value of commercial services). It is divided into four books. The first contains the legal definitions affecting commerce and such activities as can be practised commercially. The book dealing with commercial associations treats of the legal position of partnerships, public corporations, limited liability companies, etc. The law regarding the latter is shortly to be revised in the light of the change in the commercial objects which they serve. The commercial code does not contain any special provisions affecting trusts and cartells, these being dealt with separately. The third book on commercial transactions contains general regulations dealing with them as well as provisions dealing with a series of individual trades, as for instance the purchase of businesses, warehousing and agency matters. The fourth book deals with the law of shipping.
The reforming movement of the i 8th century ref t its mark in the field of criminal law. The individual German States codified their criminal law, Bavaria being the first to do so, in 1751. The criminal code was not issued until after the unification of Germany (the imperial criminal code of April 16, 1871). This falls into a general and a particular section. The first section contains the general legal definitions regarding the essential nature of crime, its various forms and degrees, ex plaining what constitutes attempt, complicity and perpetration as well as the system and measure of punishment, preventive arrangements and some further general matters. The special sec tion deals with individual crimes and penalties. The code is however far from dealing with every individual penal matter; it is therefore only the general section that is of importance as a code. A revised code will shortly be completed and with regard to certain highly important matters has been already carried into effect. The principal of fines has been adopted as a substitute for short terms of imprisonment, while youthful offenders are dealt with educationally rather than penally, the reformatory principle having been adopted from the French model. New principles are applied for carrying punishment into effect. These reforms, which have been introduced by means of novellae, are indicative of the general trend. The distinguishing features will be greater detail in specifying crime, as well as special preventive meas ures and a considerable widening of judicial discretion, both in the matter of imposing penalties and applying preventive meas ures, and in the matter of probational liberty. The military code (draft of April 3o, 1926) is valid concurrently with the crim inal code. It provides for a number of special military crimes and misdemeanours.
The law re lating to the constitution of the ordinary courts is codified in the courts organization code. This deals with the office of judge and the organization of the courts, as well as laying down certain general rules for the conduct of their business. There are besides two codifications of the procedure to be adopted in ordinary courts, viz., the rules of civil procedure (Jan. 3o, 1819) and the rules of criminal procedure. The law of criminal procedure has been codified in the individual States since the middle of the 19th century. On Feb. 1, 1877, the rules of criminal procedure for the German empire were promulgated. Moreover since the World War, the taxing authority in almost all cases has passed from the provincial to the Federal Government. Here too codification had been effected through the tax regulations of Dec. 23, 1919.
The importance of the codes is variously estimated in Ger many. They have served to crystallize the ideas of law current at the time of their promulgation. The danger is that the law of the State and the law as applied tend to be identified. Codifi cations in Germany had therefore in the earlier period after their promulgation often tended to make the law rigid and to encourage a cult of the legal system for its own sake. When, however, society and an economic system have outgrown a code, new propositions of law arise in a liberal administration of the law, so that codes suffer the fate of all written legal propositions. Moreover, as has been already indicated, individual codifications do not represent an exhaustive treatment of the subject, owing to subsidiary laws that are passed from time to time. In the fur ther course of their development the emphasis of codes tends more and more to be restricted to the general portion. Neverthe less they have played a highly important part in the development of German law. Every code has tended to make the law more uniform and, in spite of their traditional content, to modernize it. Moreover the codifications embody to so large a degree those nationalistic elements which are inherent in German legal thought that it is certain they will continue in the future to be an essen tial part of the German legal system.
Guide to the Law and Legal LitBibliography.-E. M. Borchard, Guide to the Law and Legal Lit- erature of Germany (The Hague, 1912) ; F. E. von Liszt, Lehrbuch des deutschen Strafrechts (1891, 25th ed. by E. Schmidt, 1927) ; A. Diir inger, Das Handelsgesetzbuch (io vol., ed. M. Hachenburg, Mannheim, 1897, etc.) ; A. von Tuhr, Allgemeiner Teil des biirgerlichen Rechts (1923) ; F. Stein, Grundriss des Zivilprozessrechts (ed. J. Juncker, Tubingen, 1924) ; G. Anschiitz, Die Verfassung des deutschen Reichs (192 7) ; H. Guland, Der deutsche Stra f prozess (5927).
