In 1814, Napoleon’s French forces had beaten a hasty retreat from occupied parts of Germany. But they had exposed those on or near the Rhine valley to their new Civil Code.

If nothing else, Germans like order. At that time, the law nationwide was in shambles. Each of the 41 kingdoms and territories comprising the then-German state as of 1815 (the Congress of Vienna), seemed to have its own body of law and as soon as you crossed a border, that changed. This was obviously not conducive to commerce. At the same time, a national civil code might just then be achievable given the swell of nationalism which the retreat of the French occupiers gave Germans.

Anton Friedrich Thibaut taught Roman law at the University of Heidelberg. He quickly rafted a pamphlet urging Germans to codify a national code of law, as the French had done in 1804. His arguments were set out in a German-language booklet, the translated title of which was On The Necessity of a General Civil Law for Germany.1

According to Ebke and Finkin:

“In the wave of patriotism that swept the German states after they had finally shaken off the Napoleonic yoke, (Thibaut) published a pamphlet in which he urged the introduction of a general German civil code, modeled on the French civil code, which would pave the way towards political unity.”

Thibaut v SavignyThibaut lamented the piecemeal law throughout Germany and especially the costs and delays associated with references to ancient Roman law. He noted that Austria had, in 1811, adopted a national civil code. He suggested a made-in-Germany civil code.

His booklet landed on the desk of Carl von Savigny who was shocked. Savigny wrote a reply in which he argued that codification was premature; that the German law lacked any foundation for codification. His rebuttal of Thibaut was called On the Vocation of our Age for Legislation and Jurisprudence.2 Savigny opined that law was based on customs which slowly evolved and did not necessarily lend themselves to being set in writing; that custom-based law needed historical context to be understood in any given case. He argued that the French civil code had been rushed and was little more than a French language code of Roman law.

The two publications set German academics and politicians into two camps and the debate raged for decades. There were two results.

First, the mere fact of debate postponed codification and thus, in the result, Savigny was successful. Indeed, the German’s did not issue their first civil code until 1900. As Forrester wrote in his 1974 translation of the German Civil Code:

“... the split between two such prominent theorists (Thibaut and Savigny) deprived the movement for codification of much of its force.”

Secondly, Savigny found takers far outside of the reaches of his nation. In the United States, for example, some were clamouring for a civil code and a departure form the English common law. Against that, amongst other weapons, Savigny’s booklets and arguments railed.

An academic debate by two jurists that set the timetable of Germany's civil code of 1900.

REFERENCES:

  • Duhaime, Lloyd, 1900: Bürgerliches Gesetzbuch - The German Civil Code
  • Duhaime, Lloyd, Law Museum
  • Duhaime, Lloyd, The Law’s Hall of Fame
  • Duhaime, Lloyd, Timetable of World Legal History
  • Forrester, I., and others, The German Civil Code (South Hackensack, New Jersey: Fred B. Rothman & Co., 1975), page xii
  • Merryman, J. and others, The Civil Law Tradition, Cases and Materials (Charlottesville, VA.: Michie Company, 1994), pages 476-479
  • Note 1: the title of Thibaut’s booklet has also been alternately translated as “On the Necessity of a Common Civil Law for Germany”
  • Note 2: the title of Savigny’s booklet has been alternately translated to “On the Vocation of our Age for Legislation and Legal Science”
  • Reimann, M., The Historical School Against Codification: Savigny, Carter and the Defeat of the New York Civil Code, 37 Am. Jour. Comp. Law 95, pages 97-98 (1989)
  • Ryan, K. W., An Introduction to The Civil Law (Sydney: The Law Book Co. of Australia, 1962), pages29-30