Introduction into the German law system - History of German law

Roman law traditions have been of great influence on the development of the German law system. Germanic tribes used to have their own juridical traditions. In the time subsequent to the downfall of the Western Roman Empire (476 A.D.), these traditions were laid down in codes of law, e.g. the Edictum Theoderici (a Western Gothic collection of laws, approx. 459 – 461 A.D.). When the tribes started to settle in territories which had belonged to the Roman Empire shortly before, they had to integrate Roman law traditions – well known by the local population - into their own Germanic law system. In the early Middle Ages written codes of law did not exist – with the exception of the canon law of the Roman Catholic Church, which was written down at the beginning of the Middle Ages. The canon law reglemented topics as engagements, marriages, matters of patronage, of personal status and of the last will. Not only members of the clergy itself were subjects to canon law, but also the poor, widows, orphans and crusaders underlay the jurisdiction of the church. In the 12th century and later, local common law was written down in collections which were not sorted into different sections of law. Examples are the Sachsenspiegel (mirror of Saxonia, 1220–1227) by the knight Eike of Repgow and the Schwabenspiegel (mirror of Swabia, 1275). These collections show typical elements of Germanic law tradition, such as the payment of a compensation (Wergeld) by the murderer to the family of the victim.

Originating from Italian law schools, scientific methods of examining and commenting the law were established. These schools commented Roman laws on the basis of the Corpus Iuris Civilis, the law code written down by the Eastern Roman emperor Justinian (527-565 A.D.). In medieval Germany, Roman law was mostly used in cases which could not be dealt with satisfactorily by local law. In the time of Enlightenment legislation was strongly influenced by rationalism. New and rational interpretations were found for Roman laws . In the German territory small nation states arose. One of them was Prussia, where in 1794 the Prussian General Code of Law (Preussisches Allgemeines Landrecht, ALR) was enacted. It was a collection of the complete common law being in effect at the time and laid stress on traditional privileges of the nobility. Other German-speaking territories, e.g. the Great Dukedom of Baden, preferred the use of the French Code Civil from 1804. The Code Civil already contained the principle of equality and the freedom of property. At the beginning of the 19th century supporters of the Historical School of Legal Thinking, e.g. Gustav Hugo (1764-1844) and Friedrich Carl of Savigny (1779-1861) spoke against a former codification of German private law. They advocated a derivation of the law from original Roman sources. In 1870/71 a number of small countries united, and the German Empire was founded. After a long time of preparations, in 1896 the new Civil Code of Law (Bürgerliches Gesetzbuch, BGB) was proclaimed. It came into force on 1 st January 1900. This code of law is still in force today, although it was – and is – constantly modified. In the time of the Nazi regime the law decayed to a means of power for the regime ; special legislation and show trials held at the so called " People’s Court" (Volksgerichtshof) created absurd, extreme and unjust results. A main characteristic of German legislation in the time after World War II is to prevent a regime of injustice like that of the National Socialists from recurring. Today, every single law has to be measured by the scales of the German constitution, the Basic Law (Grundgesetz), of 1949. Main elements of the constitution are the Fundamental Rights and the principle of a constitutional state under the rule of law. Basis of the German unification in the year 1990 was the unification treaty. With the unification, the Basic Law became the constitution for all of Germany. The laws of the German Democratic Republic (GDR) were rescinded with the help of transitional regulations by and by.

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