Timetable of Legal History logoThe great idea of Frederick II, also known as Frederick the Great (born 1712, reign: 1740-1786) was to set upon his German citizens an all-inclusive civil code - one that would leave no wiggle room for the judges to apply on a case by case basis.

Prussia was desperate for reform. As Professor Herman Weill wrote in his 1960 article:

"In the Prussia of the early 18th century … There was no clear-cut relationships among the courts…. A host of different courts have survived from the Middle Ages … When the basic principles of their creation had been social status and territorial custom. There were ecclesiastical courts, courts of knights …, manorial courts, municipal courts, Royal courts and provincial courts."

When Samuel de Cocceji visited Könensberg in 1751, he found no less than 14 higher courts with jurisdiction of some kind or another. Litigants went from court to court, seeking a rehearing every time they lost. It made for interminable litigation.

Prussia needed a national law code; something - almost anything - to reign in the marauder justice the numerous little fiefdoms nourished and imposed. Judges were ill-trained and lawyers did not all have any training whatsoever. Procedures varied almost from burg to burg and often arbitrarily set by officials with no legal training. The property of minors was one area where abuses were rampant. The administration of justice was in such disrepute in one province, Pomerania (now part of Poland), that it was nicknamed provincial litigiosa: the province of litigation (Pomerania is now split into two sections, roughly half in each of Germany and Poland).

Frederick the GreatOn the harshness of local law twisted and turned to suit the economic interests of local rulers, on contemporary writer noted:

"The stick is their corpus juris."1

Frederick first tried diplomacy. He ordered all judges to cease arbitrary judgments, to no avail. In his book, Ranke quotes from a letter written in 1737 on the response to Frederick's appeal to his judges:

"(The situation) was far worse than could be imagined."

In some cases, legal documents were sent to foreign jurists for resolution; based only on the documents. Frederick ended that practice.

The piece-meal justice system was a cancer Frederick knew would rot away the very soul of Prussia. Fixing the problem seemed like an impossible task with significant personal pressure. This was, after all, an era when attracting the wrath of a monarch tended to reduce one’s life expectancy. War-monger Frederick was heavily engaged in the incessant, tinderbox politics of Europe. He knew that a qualified task-master was needed; a single minister of justice. As Justinian had with Tribonian over a thousand years previous, to chair the legal reform on behalf of the Crown, Frederick turned to one of his old court of appeal judges, Samuel von Cocceji. The call came in 1740.

It took until 1746 before Cocceji, already 66 years old, put the final touches on his massive package of legal reform called Report of Practical Plan. It did include an outline of a national law code - the Codex Fridericianus (among other names), but also an ambitious and aggressive reform of procedure and of the courts.

France and Prussia were then at war but Frederick still took the reform proposals with him on a retreat to Prymont (now Bad Prymont) in May; along with a retinue of 60. According to Carlyle's biography of Frederick:

"It was from Pyrmont, May, 1746, that Frederich launched, or shot forth from its moorings, after much previous attempting and preparing, a very great enterprise; which he has never lost sight of since the day he began reigning, nor will till his reign and life end: the actual reform of law in Prussia."

He met with Cocceji on September 15 and told him:

"Yes! Start on in in God's name!"

On his return, Frederick had occasion to be made aware of the impotent courts of law in Pomerania. It stirred the King to implement Cocceji's proposal en masse. On September 15, 1746, his council agreed. The first jurisdiction to be hit  by the reforms: Pomerania; Stettin - Cöslin - Magdeburg soon to follow.

Cocceji's successor on the appellate court, Armin, was horrified at the extent of the proposed changes. He appealed directly to the King to retain the status quo. The King strongly rebuked Armin who responded by resigning.

Finally, the administration of law was managed by the government instead of private, local interests:

  • Judicial appointments were to be based on training and merit only.
  • No-one could act as a lawyer without legal training and they had to be dedicated to their practise: no conflicting, side-line employment was allowed. Politicians were prohibited from interfering with the work of local judges and lawyers.
  • Innovations included a deadline within which litigation had to be completed: one year. One case had been going on for 200 years!
  • Small, adjacent jurisdictions were merged into a single court. Other courts were simply eliminated. A special court was created to deal with the estate of minors and for claims of small amounts.
  • A clear hierarchy was established best frustrating litigants who simply went from court to court until they got an advantageous judgment. Note: for more on Cocceji's reforms, see Samuel von Cocceji (1679-1755): the Mover of Prussian Mountains).

Circa 1752, Frederick's position was not to interfere with the actual judging; just the broken system of its delivery:

"I must not interfere with the Courts. The statutes must be obeyed and on that, the sovereign must be silent."2

Once the project of procedure and court reform was approved, Cocceji hit the horse trails again, this time to deliver and explain the new code to the provinces of Prussia, one by one.

Frederick was so confident of his reforms that in 1748, he had a medal bearing not that of Cocceji, but of his own likeness on which he had himself referred to as an eminent jurist by having inscribed:

"Fridericus Borussorum Rex, Emendato Jure"

By January 1, 1750, historians noted that reforms of the court system were complete in all quarters and provinces of Prussia.

In 1751, Cocceji delivered his last document: a fully fleshed out national code of law: Projekt des Corporis Juris Fridericiani or Codex Fredericianus. It was heralded by Frederick who had it translated into several other languages. While the bits and pieces never stuck anywhere, even in Prussia, the concept of a single, national code of law within a monarchy with the standing of Prussia, was a sensation. At the very time Cocceji was working on his new law code, France was approaching its bloody revolution but from which would eventually issue a new civil code which would make its appearance in 1804, at some 2,300 articles of law. That product matched the idealistic concept: to conceive of any possible set of facts and then to determine in advance the resolution all by code of law. The French Civil Code became a model for almost all other present day civil law jurisdictions, which governs about half of the world’s population - far more than the common law.

By contrast, Cocceji's codex was never implemented - in Prussia or elsewhere. So substantial was the political will required to implement reform of the justice system reform that there was nothing left to push the 1751 draft code. It gathered dust.

Eventually, the lack of a cohesive national law code teased back some of the detested features of the law pre-1750. In the 1770s (some historians say 1773; others 1776), Frederick handed Cocceji's draft to a new law reform committee which culminated in another, new national law code, published in pieces, starting with a code of procedure in 1784 (if Frederick the Great needed any motivation in continuing his efforts to shape German law, he found it in the Miller Arnold affair, for which sprung a most amazing document).

The whole new code of law was not finished until February 5, 1794, some eight years after the great king's death. But the new code was no verbatim copy of Cocceji's Codex. The Prussian civil code of 1796 dwarfed not only the later 1804 French Code, but any before or since. It stood at a colossal 16,000 articles of law and in many volumes. It had many unofficial names such as the resurrected Codex Fridericianus.

If civil law lawyers have one argument against their common law brethren, it is the one-stop shop beauty of a civil code. If common law lawyers have one argument against their civil law brethren, it is Prussia’s 1794 code. Not only was it huge but it was too Roman law, too little Prussian. Or where it deviated from the ancient Latin rules, it followed canon law too closely.

Almost from the moment it was carted out to the far reaches of the Prussian kingdom and given to the judges as the word of the King, it fell apart. Frederick was getting old and the judges knew that they could wait this newfangled proposal out and let it die with its sponsor.

In the meantime, as the judges knew and Frederick did not, cases are like fingerprints or DNA: there are never two identical. There is always some fact which in appearance is insignificant, but yet under judicial scrutiny rises large and determinative of justice in the case at bar.3

In The Civil Law Tradition, John Henry Merryman writes:

“The Prussian code was an attempt to provide a specific, detailed solution for specific, detailed fact situations. The end sought was a complete catalog of such solutions available to the judge for any case that might come before him.”

Frederick must have had a thing for his judges as he then set up a special court called a Statutes Commission. Any judge who proposed to deviate from the solution provided in the Code had to vet it first before the Commission. Merryman says that if a judge was caught interpreting the Code, he:

“... would incur Frederick’s disfavor and would be severely punished.”

Over the long term, Frederick’s mammoth civil code was an unmitigated disaster. The judges routinely interpreted it as best suited justice in cases before them and few ever troubled the Commission.

Soon, piece-meal justice was back. Prussia was converting to Germany and as artillery flew across the borders of Europe, it would be but a few years more before the candle of a national civil code would be lit again, in the 1814 Thibaut-Savigny Controversy; and then a further many decades before, finally, the 1900 Bürgerliches Gesetzbuch (the German Civil Code).