Codification in Germany (Prussia)

Question 1

How did ideas about unification emerge in proto- Germany

Answer 1

-German Wars of Lib. ,Battle of Leipzig:
-German states unite to defeat French
-sense of nationalistic identitiy reinforced
-argu. highlighted problem that caused them to be conquered by the French in the first place:
-no unification!
-debate ensures

-carries on into Franco-prussian war

Question 2

What was F.C von Savigny’s opinion on German codification?

Answer 2

-He liked it but errrmm we not ready
-not at the point in the organic dev. of mall
-when we are at this point
-leg. science of examining his. dev. of law
-part. focus on dev. of Ro. Law
-establish main. principles of roman law
-use this to guide form. of codified law

Question 3

What was Thibaut’s opinion on German unification?

Answer 3

-Necessity
-because we need legal unity 4
-political unity
(legal unity first)

Question 4

What were the differences between Thibaut and Von Savigny’s schools of thought about German codification.?

Answer 4

-Thibaut–> LEGIS. should initiate GCC
-Von Savigny–> legal academia who studied his. dev. of RL should lead way

Question 5

Describe the beliefs of Theodor Mommsen

Answer 5

-Theodor Mommsen (1817-1903) belonged to the German Forty-Eighters and wanted Germany to become and
unified state

Question 6

Evaluate Windscheid’s role in the creation of the BGB

Answer 6

-took part in committee
-in charge of creation of the civil code
-often. is said that BGB contains too much of W’s perso. op.
-not found in w’s work= not found in bgb
-but additionally a lot of roman law:
-many thought it was too much

Question 7

Who were the promininent critics of the Historical School of Thought?

Answer 7

-Rudolf von Jhering

Question 8

Explain Rudolf von Jhering’s criticism on the historical school of thought

Answer 8

• began to see after teaching RL in acc. with HST
  -not best way of legisl.
  -Law not about legal concepts but LEGAL INT.
  -INTERESSEN JURISPRUDENZ
  -jurisprudence based on interests the rightful guid. princ.

Question 9

Explain interessen jurisprudenx

Answer 9

School of thought which stat. that:
-law should seek to balance legal interests in soc.
-resolve matters peacefully

Question 10

What does Begriffsjurisprudenz mean

Answer 10

law based on legal concepts

Question 11

State the main groups of opponents of the BGB

Answer 11

-School of Free Law/Freirechstschule
-Kantorowicz
-Nazis

Question 12

Explain the Freirechstschule’s criticism of the BGB

Answer 12

-Too many casus omissus allowed by the BGB
-not exhaustive enough

Question 13

Explain the Freirechstschule’s solution to he problems of the BGB

Answer 13

-Introduce situation of ‘judge-king’
-when case is not act. dealt with by leg. prov. don’t use broad interpr.(dishonest)
-appoint judge as king
-not bound by provisions
-can come up with own solu. (with ratio)

Question 14

Explain the Nazi’s criticisms of the BGB

Answer 14

-TOO ROMAN
-POINT 19 OF 25 PP

Question 15

Why was Roman law accepted by the German countries

Answer 15

-Nazis
-although dogmatically opposed to RL by ideo.
-judges reinterpreted princ. of BGB
+ provisions in the interest of the Nazis (Umdeutung)
-nazis don’t necessarily like this believed in fuhrerprinzip
-orders come straight from Fuhrer
-but aint no body got time for that

historical school of thought (Savigny)

Question 16

Describe how Germany law significantly reformed after WW2

Answer 16

• New constitution: Grundgetez
  -some prev. measures to prev. rise of power of dic. rulers
  -No emergency power measures

Bundesverfassungsgericht
-offers judicial review
-can invalidate laws based on HRs.