Investigating the history of German civil law theory in 19 and 20th century, it is necessary to divide the history of German civil law theory into several stages starting from19th century. According to the opinions of most civil law historians, the theoretical history of German civil law after19th century can be roughly divided into four periods, namely, the first period:19th century's "code debate" and "historical jurisprudence" period; The second period:/kloc-the period of "Concept Law and German Civil Code" in the second half of the 9th century; The third period: the period of "free legal movement" and "legal sociology" in the first half of the 20th century; The fourth period: the "modern private law" period in the second half of the 20th century. The following is the basic situation of German civil law theory in these four periods.
Second, the code debate and historical jurisprudence
(a) code debate
In the German private law in the first half of the19th century, the most striking event was that the German School of Historical Law stepped onto the historical stage of German law. The opportunity that led to its emergence is the so-called "Kodifikationsstreit", that is, the debate about whether it is necessary to unify the civil code.
The debate on whether a unified civil code should be formulated began with the victory of the German people in the national liberation war against Napoleon in 18 14. In the same year, the scholar Anton Friedrich Justusthibaut (1772-1840) published a paper on the necessity of formulating a general civil code in Germany, calling for the compilation of a unified civil code applicable to all Germany's neighboring countries. Savigny (1779- 186 1) refuted Tie Bao's claim by publishing On the Mission of Contemporary Legislation and Jurisprudence. On the one hand, it is too early to formulate a civil code, on the other hand, it calls for the establishment of "jurisprudence" before formal legislation, that is, theory first. It should be noted that their different positions are directly reflected in whether a unified civil code should be compiled immediately, but the background thereafter is actually a different understanding of the "natural law" and "customary law" ideological trend prevailing in European countries since18th century. From the standpoint of enlightenment, Taibao advocated the formulation of a "code of rational law"; Savigny, on the other hand, thinks that law is the product of national spirit, and written law is in a secondary position compared with customary law, so he advocates that the unified civil code of the German nation should be compiled on the basis of customary law. Obviously, these are two diametrically opposed ideas.
The scope of this code debate movement, which took place after the beginning of the19th century, is not limited to all kinds of right and wrong in the compilation of civil codes. Savigny aims to construct the Pendleton system of civil law through the historical study of law, so he became the highest authority of German jurisprudence in the19th century. However, the thought of rational law advocated by Tyburg has not disappeared in German jurisprudence. In fact, his thoughts merged with Feuerbach's criminal law and Hegel's philosophy of law, which eventually led to the formation of philosophical law school. Taking this code debate as an opportunity,1German jurisprudence developed around historical jurisprudence and philosophical jurisprudence in the first half of the 9th century. Therefore, historical jurisprudence and philosophical jurisprudence have become the double walls of German jurisprudence in the first half of19th century.
(2) Historical Law (School)
According to scholars, savigny is the real founder of HistorischeRechtswissenschaft. He founded the Journal of Historical Law on 18 15 to counter the enemy, and advocated "the historical study of law" with "the law as learning" as its historical mission. After a period of time, centered on the scholars who contributed to the magazine, a famous historical law school (historischeRechtsschule) was formed. At first, the school of historical law consisted of "Roman Law School" represented by savigny, Puhita and Yelin, and "Germanic Law School" represented by Kelke. This situation reflects the dual structure pattern of Germanic law and Roman law formed after Germany inherited Roman law in the15th century. However, with the deepening of the exploration of legal history, the rift between the two factions deepened, so that they eventually parted ways. It is generally believed that the German Congress in 1846 prompted the two factions to part ways. At this congress, the two factions not only formed an opposition in knowledge, but also formed an opposition in their attitude towards 1848 March Revolution.
In this way, Romanticism finally developed into the mainstream of German law in the19th century, in the external struggle against Hegel's school of philosophy and law and the internal confrontation with German school of law. It goes without saying that the greatest achievement of the Romanists was to initiate and engage in the compilation movement of the German Civil Code. Interestingly, the school of historical law, which was firmly opposed to compilation in the past, now strongly advocates the compilation of the civil code. This change in the position of the school of historical law shows that the (private) legal system constructed by savigny has been established.
Savigny expressed the following program of historical jurisprudence in the article "The Mission of Contemporary Legislation and Law": First, law, like language, is the product of national belief; Second, the law and the historical destiny of the nation; Third, the law is based on national customs first, and then on jurisprudence. Savigny's starting point is to get rid of the enlightened natural law and confirm the national and historical customary law.
However, the above three points can't completely describe the whole picture of savigny's jurisprudence. This is because there are two legal methodologies in savigny: historical method and systematic method. The so-called procedure mentioned above is only the former of these two methods, that is, the historical method. Savigny's real intention is to construct his own "systematic jurisprudence" through "logical calculation" of legal concepts. Although historical jurisprudence emphasizes the historicism of law in form, it actually embraces the ambition of creating an extremely abstract rationalist jurisprudence.
If savigny's History of Roman Law in the Middle Ages (published in six volumes * * *,1815-1831) is a historical study of law, then in the eight-volume Modern Roman Law System (1840) As for whether savigny can really be called a historian of Roman law school, the famous German historian of private law, Viackel, commented: "This is only a verbal asylum", which shows that there is doubt. In the whole19th century, the authority of savigny's law has never wavered, and his "theory of right meaning" and "theory of domain" have made epoch-making contributions to civil law and even private international law. 1842, savigny abandoned religion and became Prussian Minister of Law Reform. The revision of Prussia's General State Law in 1794 made political preparations for the compilation of the German Civil Code.
It is necessary to mention Jacob Grimm (1785- 1863), who persistently adheres to and advocates "historicism of historical law". This man is not only famous as a famous fairy tale editor, but also has important achievements in the field of law as a disciple of savigny. For example, his "The Intrinsic Charm of Law" (published in 18 16) was a famous work written when the code debate was still in full swing. In addition, he also published the History of German Law (1828) and the four-volume Record of Common Law Judgments (1840- 1863).
As a German legal scholar, jacob green advocates grasping legal phenomena from the perspective of history and language. Advocate "Germanic studies" including new knowledge such as law, history and linguistics (that is, "German law"). It can be seen that it is not savigny himself who faithfully practices the purpose and program of historical law, but jacob green himself. Of course, although savigny and jacob green are two schools of historical jurisprudence, they both have opposing views on knowledge and political stance. In addition, in methodology, unlike savigny's belief in the theoretical rationality of legal concept, jacob green believes in "the language, poetry and symbolic style of law".
(3) Pendleton's jurisprudence
/kloc-The German private law founded by Roman law scholars in the second half of the 9th century inherits the tradition of Roman law and focuses on German common law and pendleton law. The so-called "Pandekton" is the "Digesta" in the Complete Book of Roman Law, which is the integration of the theories of legal scholars who were given the right of reply during the Roman Empire. Savigny's latecomers extracted the concept of law from this "theory of learning" in the19th century, and used it to construct private law.
Pendleton's jurisprudence is easy to understand. The scholars who founded it wrote a large number of textbooks on Pendleton, and thus formed the German private law system in the19th century. Among them, George Friedrich Puchta (1798-1846), savigny's successor, is the masterpiece of Pendleton's textbook (1838). In addition, Wendell Sauder's three-volume textbook pendleton Law (1862- 1870) and Deng Berg's three-volume pendleton Law (1884- 1887) are also important works in this field. In addition, Taibao, as an opponent of the historical law school, wrote a two-volume Pandekton Law System (1803) before the code debate.
Pendleton's jurisprudence was once criticized as "conceptual jurisprudence". In any case, in the history of law, this concept law really led the development direction of German private law. The German Civil Code is actually an extension of Pendleton's jurisprudence.
Three. Conceptual Law and German Civil Code
(A) the criticism of the concept of law
As for Pendleton's jurisprudence, Huhui (1818-1892) criticized it as conceptual jurisprudence, but it was Puhita's legal thought that directly attacked Huhui.
In 1842, Puhita gave lectures in Berlin University instead of savigny, which developed Roman private law. However, although Pushita was the heir of savigny, she was influenced by Hegel, the teacher's greatest enemy.
As we all know, conceptual law holds that law and code are perfect reasoning systems, and all legal questions can be answered automatically through logical deduction and reasoning. Gerling criticized conceptual jurisprudence for advocating logic worship, and wrote a book Scherzunder Inderjurisprudez (1884) in a mocking way, mocking jurists at that time who blindly believed in logic and were keen on abstract concept games, but forgot the mission of law to real life. It's like living in a "paradise of ideas", knowing nothing about social life and having nothing to do with real life. Yelin pointed out that the first "entrant" of the "conceptual kingdom of heaven" was not savigny, but Puhita. That is, in his view, it is Puhita who is the chief culprit in the transformation of historical laws into conceptual laws!
But unfortunately, Yelin himself has become a faithful believer in conceptual rules. In the spirit of Roman law (1852- 1865), although he said that his legal ambition was "to surpass Roman law through Roman law", the content was still convinced of the superiority of the composition of law. He firmly believes in the three legal skills of "analysis, synthesis and combination". However, in the book "Struggle for Rights" published by 1872, he pointed out that rights are the interests realized through constant struggle, and shifted his attention from "law" to "rights", and advocated introducing inductive theory into law instead of deductive theory.
In the two-volume DerZweckimRecht published from 1877 to 1883, Ye Lin emphasized that law is the product of human will and has a certain purpose, so it should be dominated by the law of purpose, which is completely different from the natural law based on the law of cause and effect. This statement is regarded as a declaration that Scream turned from conceptual law to Zweckjurisprudenz.
(2) Compilation of German Civil Code
Long before the dispute over the compilation of the civil code was raised by the German law scholars, Taibo, who advocated the formulation of the civil code, put forward the view that the legal unification should be realized before the political reunification of Germany. Savigny believes that law (theory) should be constructed as the premise and foundation of legislation. Later, although the jurisprudence founded by savigny and others was criticized as conceptual jurisprudence, the academic activities of historical jurisprudence (school) actually accelerated the systematization of Pendleton jurisprudence. Germany achieved national reunification in 187 1 after experiencing the setbacks of the 1848 revolution. In this way, the political and ideological basis for the formulation of the civil code will be available, and the formulation of the civil code will be just around the corner!
After careful preparation and long-term efforts, Germany established the first committee to compile the Civil Code in 188 1. The actual leader of the First Committee was Bernhard Windscheid (1817-1892), who was an important figure in the later school of historical law. The first Committee made the first draft in 1887 and made it public.
1892 the second Committee formulated the second draft of the civil code. The second draft was slightly revised by the Federal Senate and submitted to the Imperial Parliament as the third draft, which was published in 1896, that is, the German Civil Code.
The German Civil Code is a voluminous code, which consists of five parts and 2385 articles. This is a masterpiece of German private law since the birth of German historical jurisprudence (school). With its refined wording and refined reasoning, it has had a far-reaching impact on the codification movement of civil law in various countries in the 20th century. The compiling style of general provisions, debt law, property law, kinship law and inheritance law is said to be the "Pendleton model", in which the general provisions are stipulated at the beginning of the code, which is said to be an important feature of the code.
By the way, in view of Wendell Saud's important role in the creation of the German Civil Code (he was responsible for drafting the first draft of the German Civil Code), later generations called the German Civil Code "Wendell Saud Jr.". This man's influence on the German Civil Code lies not only in his personal participation in the activities of the Civil Code Drafting Committee, but also in his writing of the Pendleton Law Textbook, which had an important influence on the formulation of the German Civil Code. It is called the most standard systematic work of Pendleton's law, and it is the final statement of Roman law theory, which provides a reference for modern civil law legislation to choose and accept the concept of Roman law.
(C) Criticism of the German Civil Code
The German Civil Code came into effect on June 1 900+1October1. While the German people celebrated the publication of this great code of the 20th century, they also heard endless criticisms of it. Some people think it is "the warm baby of German liberalism", while others dismiss it as "1the legacy of the 9th century", not "the seed of the 20th century" and so on. Of course, these criticisms appeared as early as the draft civil code, especially when criticizing the first draft drafted by Wendell Saud. Their representatives are the famous scholar Kyrk (1841-1921) and AntonMenger of Austria.
Kelke is a representative German legal scholar in the school of historical law. His main work is German Company Law (published in 1868- 19 13). The book describes the history of various so-called "Genossenschaft" in Germany, such as family, professional combination and country. He pointed out that it is not the individualism of Roman law but the collectivism of Germanic law that suits the traditional German legal system. In addition, he also wrote three volumes of Overview of German Jurists' Views-German Private Law (published in 1895- 19 17) and Introduction to German Private Law (published in 19 13).
It should be pointed out that the concept of collectivism and its legal system are the traditions of the Germanic nation. At this point, Germanic law can be said to be pre-modern feudal law. Modern capitalism is based on free competition and autonomy of private law, so it can be said that it is the resurrection of individualism in Roman law. However, with the change of social life, individualism has obvious limitations whether it is engaged in capitalist production or improving workers' working conditions. The contradiction of capitalism is also the contradiction of modern law, especially modern private law. In order to overcome this contradiction, the group law concept of Germanic law can play its role.
Kyrk's group law theory endows all kinds of groups with real personality and recognizes that they have the subject qualification of rights and obligations. This is the "legal person realism" about the nature of legal person. This theory exposes the limitations of the theory of legal person fiction based on individualism. In addition, the group law theory broke the traditional theory of binary distinction between public law and private law, and laid the foundation for the birth of a new legal field, namely "social law".
1888 As soon as the Draft German Civil Code was published, kyrk published the Draft Civil Code and German Law (published in 1888- 1889), criticizing the non-nationality of the draft, its contempt for the inherent law of Germany and its strong Roman law color.
Austrian mengle criticized the first draft from the perspective of so-called "socialism of legal professionals". The book Civil Law and Proletariat written by this family points out the class nature of the draft civil code from the perspective of socialism.
Gerling and mengle's criticism of the first draft of the German Civil Code attracted the attention of the Second Committee of the Civil Code, so they introduced some "socialist factors" into the second draft of the Civil Code. However, this did not fundamentally shake the "nineteenth century nature" of the draft. As a result, the draft finally became law and was put into practice with "19th century nature". As the theme of the 20th century, kyrk, mengle and others' group and socialist views were inherited by the Free Law Movement.
Four. Free Legal Movement and Sociology of Law
(a) the freedom of law movement
As mentioned earlier, in the19th century, savigny, Puhita and Wendell Sauder painstakingly developed the German Pendleton jurisprudence, insisting that the concept of Roman law is extremely exquisite, and any problem can be solved by "calculation according to the concept" and operation derived from formal logic. In mechanical operation, we should get rid of authoritative and practical value judgment, so that the expected answer is pure. The so-called "derKultusdesLogischen" and "leregneduconcept" are vivid portrayal of the concept law. German Civil Code 1896 is the essence of conceptual law.
However, from the end of 19 to the beginning of the 20th century, the "Freirechtsbewegun" against conceptual law rose, which changed from a single spark to a prairie fire, and the "free law" movement appeared. Its founder is the famous scholar Ye Lin.
As a rebel of conceptual law, Jelling advocated teleology, and argued that the first thing to explain the law is to understand what the purpose of the law is, and only from this starting point can it be successful. The so-called purpose refers to the highest standard of legal interpretation, that is, teleology.
The idea of free law theory (including interest law) can be summarized as the following five points:
First, the written law of the country is not the only source of law, and there are living laws, which is the real source of law.
Secondly, libertarians criticize the "logical self-sufficiency of legal system" and "perfect code" upheld by conceptual law, and think that it is inevitable that there are loopholes in law.
Third, conceptual law uses the method of "conceptual mathematics" to logically deduce the interpretation of law, without considering the purpose or weighing the interests, and even thinks that all kinds of problems that may occur in society can be made public through mathematics. This method is most criticized by libertarians and is called "legal logic". That it does not meet the requirements of modern jurisprudence. The mission of modern law is to promote the progress and development of human society.
Fourth, the concept law prohibits judicial activities from "making laws". Think that the code is perfect, and any specific case can find the correct answer within the scope of law. Liberal legalists, on the other hand, believe that this is a pure dream, and the law cannot be perfect, but its meaning is obscure and needs to be explained by the judge; There are loopholes in the provisions, which need to be supplemented by judges; The situation has changed, waiting for the judge's gradual explanation (not changing the legal text, gradually changing its meaning) and so on. In all these cases, judges need to rely on their own wisdom to measure interests or judge value. This is not "making law". What is it?
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