Why Has The German Civil Code Proven So Durable?: Introduction: Reasons That Do Not Explain

European Journal of Law and Economics, 7:65–91 (1998)
© 1998 Kluwer Academic Publishers
Why has the German Civil Code Proven so Durable?

PETER R. SENN
1121 Hinman Avenue, Evanston, ILL 60202, U.S.A., email: senn1121@delphi.com
Abstract
This paper explores possible reasons for the longevity of the German Civil Code (Bürgerliches Gesetzbuch)
using mostly English language sources. The introduction reviews the reasons usually given for the durability of
the Code in the context of the history of Germany. None are completely satisfactory. The next section is devoted
to a description of the Code. It concludes with attention to the patriotic motives of its developers, an important
factor in determining its unique character. The third part examines what social scientists and legal scholars, with
an emphasis on sociologists, have written about legal evolution and this important legislation. Their results,
although often interesting and provocative, made no substantial contribution to the problem. The “Conclusions”
summarize and make the point that it is not known what determines the quality or durability of legal systems.
Keywords: German Civil Code, history of law, law and economics, legal evolution, legal history, methodology,
philosophy, sociology of law
JEL Classification: K00
Introduction: Reasons that do not explain
By the new Codes which came into force on January 1, 1900, the German people—to
use the words of the late Professor Maitland (see Independent Review, 1906, p. 219)—
“have brought that law up to date and are facing modern times with modern ideas,
modern machinery, modern weapons.” The new Codes adapt the fruits of the learning
of many centuries to the needs of the present time. As a complete and scientific
exposition of actual law they therefore occupy a unique position.
Ernest Joseph Schuster (Preface, v)
In August of 1896, the German Civil Code (Bürgerliches Gesetzbuch, henceforth Code)
was passed by the Imperial Parliament (Reichstag or lower house). A centennial com-
memoration is a good time for reflection about this important piece of legislation. This
essay is about some ways that social scientists think about the longevity of law in general
and the Code in particular.1 It uses primarily English language sources.
It is focused on the question of why the Code was able to serve the people of Germany
for a century under political regimes that ranged from Empire through Nazism to the
current form of democracy, two major wars, and the social and economic transformations
of the past century.
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There could be many answers. Six of them are worth brief discussion because they can
cast some light on the background and characteristics of the Code: (1) The Code has
changed to fit modern circumstances.2 (2) The Code is not related in important ways to the
political regime. (3) Neither the political regimes nor the Code have changed significantly
in their fundamentals; both represent long standing mind-sets or class interests. (4) Ger-
man society has not changed very much in the past century. (5) The Code covers such a
narrow spectrum of the law that it cannot be expected to reflect social changes. (6) “In a
free society law cannot work unless it has the common morality of the people behind it.”
(Clark, 212) None of them are satisfactory answers to the question. Nor are all taken
together.
Of the original 2,385 sections of the Code, just over 800 “have been modified, repealed,
renewed, inserted or declared unconstitutional.” By far the greatest number of changes
have been concerned with family law and obligations. (Goren, Introduction, xviii) The
changes are a relatively small proportion, a bit more than one-third, of the whole and they
are concentrated about a few subjects. Although difficult to quantify, most scholars would
probably agree that German society has changed in more than one third of its customs in
the last century.
There is some truth in the assertion that it has not been necessary to change much of
the language of the Code because the legal interpretations of that language have changed.3
There are no detailed studies, but it is a reasonable guess that the interpretations of most
of the sections have not changed significantly. If this is so, perhaps the general claim that
changes in the law reflect changes in society needs some reexamination.
There is no doubt that the development of ideas about the family has led to substantial
changes. The laws about the family, especially marriage, were a continuing source of
debate during the long development of the code. An important challenge is that of ex-
plaining why the vast social changes of the past century are primarily reflected in family
law rather than in laws about property and the other subjects covered by the Code.
Could it be that, despite all the talk about changes due to technology, globalization and
the like, the family is still the most important institution of modern German society? It is
certain that the Code has changed to fit the times. The dynamics and interrelationships
still need detailed description and interpretation.4
The Code has survived the Wilhelmine Empire, two World Wars and two Allied occu-
pations, the Weimar Republic, Nazism, the late and unlamented German Democratic
Republic, the Federal Republic of Germany and reunification. Some German history is
required both to examine the relationship of the Code to the political regime and to show
the magnitude of the political changes.
As to origins, there is an enormous literature in German on every one of the explana-
tions discussed here. There is also an extensive literature in English on the origins of the
Code. By far the best and most up-to-date study is that by Michael John (b 1954), Politics
and Law in Late Nineteenth-Century Germany: The Origins of the Civil Code.5
He concludes, “The Civil Code was the final product of that [late nineteenth century
German—PRS] culture and was perhaps already out of date by the time it was introduced.
But, as with so many of the features of this story, the explanation for that out-of-date
quality lies firmly in the sphere of German politics.” (257) The importance of politics in
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WHY HAS THE GERMAN CIVIL CODE PROVEN SO DURABLE? 67
the development of the Code is undeniable. However, as the evidence in this paper shows,
the viability of the Code makes “out of date” judgments untenable.
The beginning of modern Germany was at the 1815 Congress of Vienna which estab-
lished a loose grouping of German speaking states called the “German Confederation”
without any powers of legislation. Prussia and Austria were the largest and most powerful
members. Another step to German unity came with the establishment of the German
Customs Union (Zollverein). By 1834 customs duties had been abolished throughout most
of Germany. In 1838 the members of the German Customs Union plus the Empire of
Austria and the Principality of Liechtenstein concluded a monetary treaty. This was
followed by an agreement on coinage in 1857.6 It is noteworthy that many of the impor-
tant early steps to German unity covered economic matters, motivated by a mix of eco-
nomics, politics and nationalism.
Prussia’s victory over Austria in 1866 resulted in a new “North German Confederation”
in 1867. It had the power to legislate on certain specific matters. Codes covering parts of
the law were included in the laws of the North German Confederation after 1869. A
Commercial Code was adopted in 1869 covering trade, commerce and banking. In that
same year, the criminal law was codified. In 1870 a code for the regulation of manufac-
turing and industrial relations, the Industrial Code (Gewerbeordnung), was passed.
The victory of the North German Confederation over France in 1870 led to the proc-
lamation of the German Empire at Versailles in 1871—the result of treaties between the
Confederation and the South German states. All the laws of the North German Confed-
eration were enacted by the new Imperial Legislature. The new Empire found itself with
forty-six legal districts. They included a wide variety of political forms: an Imperial
territory, kingdoms, free cities, grand-duchies, duchies, and principalities, each with its
own territory, courts, and laws.
Three different but widely used legal codes covered civil matters: the Prussian Code of
1797, the Austrian Code of 1811 and the Code Napoléon. The legal texts were written in
German, Latin, French, and Danish. Despite the monetary treaty of 1857, seven different
monetary systems still operated. (National Monetary Commission, 14) Scholars debated
whether the new unity resulted in a federal state with much individual state autonomy or
a federation of sovereign states. It was apparent that some kind of harmonization would
be necessary for the administration of justice.
There were other reasons for a new code. In all societies there is a periodic need to
rewrite and amend laws because their increasing number and complexity need to be
ordered for better accessibility and intelligibility. Gaps in the law appear because of
social, institutional and technological change. In the German case, the aspiration for
national legal unity, the desire to have a Code that was specifically German, played a large
role.
In February of 1874, the Legislature established a five-man committee to establish the
guidelines for a later commission which was to draft a new Code. It finished its work in
April, 1874. An eleven man commission was appointed in September to draft the new
code. Thirteen years later, in 1887, the first draft was submitted for public consideration.7
This draft was severely criticized.
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Most of the criticism came from special interests of every kind. More substantial were
objections to the conception of the new code as merely a systematic exposition of existing
German law. Many prominent critics, such as Otto Friedrich von Gierke (1841–1921),
called for a code that would increase the role of the state in creating a desirable social
order.8
The debate resulted in the appointment in 1890 of a new commission to revise the first
draft of 1874. In 1895, this commission submitted its substantially revised draft to the
Federal Council (Bundesrat or upper house) for debate. There it was again revised before
being passed on July 1, 1896. The revised second draft then went to the Imperial Parlia-
ment for further modifications and a vote. A committee of the Parliament had begun work
on the code in February and completed its work in June. The Code was passed into law
on August 18, 1896, to come into effect on January 1, 1900, along with a package of other
laws.
The Code has served Germany ever since. It worked under the Wilhelmine empire.
Before the end of the First World War, most of the civil powers of government were
transferred to the military authorities with a highly centralized administration. The end of
the war brought the end of the Empire, territorial changes and Allied occupation. On
August 11, 1919, the new constitution (Verfassung des Deutschen Reichs) of the Weimar
Republic made the sovereignty rest with the people. The states became Länder or prov-
inces and lost much of their influence. The civil courts enjoyed full independence.
The end of the Weimar Republic came with the accession of Adolf Hitler (1889–1945)
to power. He became Chancellor in 1933 and immediately began to obtain full control of
the government and every aspect of domestic life. During the Nazi period many laws
annulling or restricting parts of the Code were passed. Often the Hitler regime repealed
sections of the Code and passed special laws outside of it.9
With Germany’s defeat in 1945, some, but not all, of the Nazi legislation was abrogated
by the Allied occupiers. While Germany was still occupied, the Länder of the Federal
Republic passed the Basic Law (Grundgesetz) of 1949. This law superseded the Code. It
required substantial changes in certain sections of the Code, most notably the law of
ownership and the marital property principles. After reunification, the Basic Law became,
in effect, a constitution.
The essentials of the Code remained in force in the Federal Republic of Germany.10 Two
treaties, one establishing a monetary, economic and social union and another, “The Ger-
man Unification Treaty,” resulted in the reunified Federal Republic of Germany on Octo-
ber 3, 1990. The main provision of the unification treaty provided for the integration of the
legal system of the Federal Republic with the other system. It should be clear that the
durability of the Code does not rest on any political regime.
The claim is sometimes heard that neither the political regimes nor the Code have
changed significantly in their fundamentals but rather both represent long standing mind-
sets or class interests. Most scholars find it easy to reject the idea that the different
German political regimes all shared the same fundamental ideas.11 The short history
above indicates that they did not. The retention of the code law system and, until 1976,
much of the Code itself in the Soviet controlled German Democratic Republic makes
arguments based on class interests highly suspect.
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The assertion that the Code has lasted because German society has not changed much
in the past century is not easy to accept. Most sociologists and other experts affirm that
German society has changed in many important ways, the decline of religion being but
one of many manifestations. The fact that so many of the changes in the Code have been
related to the family is also evidence of social change.
The argument that the Code covers such a narrow spectrum of the law that it cannot be
expected to reflect social changes requires attention to the purpose of the Code. The
purpose was to govern the daily life of the citizens of the German Empire. Its more
optimistic supporters vainly hoped that, like the French Code Napoléon, it could be read
and understood by the average person.
It was not meant to be an instrument for social change. The history of its origins amply
testifies that “clarification and consistency were the main objectives.” (Goren, Introduc-
tion, xvi) An earlier commentator, Schuster, saw the purposes as follows: “The new Code
was not intended to construct an ideal system on the basis of natural law; its object was
to maintain (as far as this was compatible with the necessities of unification) the connex-
ion of the present with the past, but without neglecting the change in the conditions of life
brought about by modern social and economical developments.” (Introduction, 8–9)
The statement that law cannot work in a free society unless it has the customary
morality of the people behind it is frequently found. It is subject to so many qualifications
that it is almost useless for serious analytical purposes. The last two centuries provide
many examples of law that works in societies that are not free. Napoleon Bonaparte
(1769–1821) had no interest in a free society. Neither did many of the bloodiest dictators
of the twentieth century, as for example, Joseph Stalin (Iosif Vissarionovich Dzhugash-
vili—1879–1953), Hitler, and Mao Tse Tsung (1893–1976).
Can it be demonstrated that the morality of most of the people living under unfree
conditions was supportive of evil and repression? If this is true, then the study of law must
always take a second place to the study of morality. The question of how ethics and morals
are changed in the transitions from dictatorship to democracy and from democracy to
dictatorship is important.
Law is an inseparable ingredient of the modern nation state, not of society—which is
a component of the state. Any connection of law with freedom comes not only from what
the law says but how it is interpreted and enforced. Provisions in the law of the late Soviet
Union that read like those of democracies were often cited by apologists who overlooked
the despotic and arbitrary ways it was interpreted and enforced.
Another version of the above argument was made by Frank Hyneman Knight
(1885–1972) when discussing the political structure of democracy. “The only requirement
in this connection is that the frame of government or constitution itself shall be in accord
with the general wishes of the people, that it shall not be forced on any major fraction of
the (non-criminal and mentally competent) population against their will.” (197)
It would be very desirable to have a study that would explore how the totalitarian
regimes of the last century forced legal systems on people against their will, excepting the
obvious cases of small countries like Estonia, conquered by large totalitarian enemies.
Was not the pre-existing system of law and much of the old law itself retained in every
case? If this is true, then does it not follow that the key to understanding the relationship
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between the “will of the people” and the “forced” changes lies again in the interpretation
and administration of the law?
For all of the proposed explanations, theoretical work has run far ahead of the empirical
testing needed to support it. This short summary of the explanations of the durability of
the Code does not do full justice to the elaboration of the arguments it summarizes. It is,
however, a fair indication of the main thrust of these arguments and the reasons that they
are not fully satisfying explanations.
The code briefly described
The purpose of this section is to provide readers not familiar with the Code with some
idea of its structure and workings. An important intent of the Code was to provide the
ordinary citizen with the knowledge of the law. It aimed to cover controversies of a civil
nature between citizens. It was not meant to regulate all legal controversies. It does not,
for example, cover disputes about public law that involve the federal government or states.
There are other separate codes for matters not covered by the Code.12 Important ex-
amples are the Commercial Code (Handelsgesetzbuch) and others dealing with such
matters as employment, patents and copyrights, taxes and other public law topics. Some-
times these separate codes completely regulate a field of law; sometimes they supplement
the Code. There are separate courts for other aspects of the law, for example, courts for
tax, social security, and administrative law.
The official text of the Code is organized in the form of five books. Each book is
divided into numbered sections which often contain numbered subsections. There are no
headings or article titles, but all modern editions contain them. The five books are:
Book One: General Part, Sections 1–240

Book Two: Law of Obligations, Sections 241–853
Book Three: Law of Property, Sections 854–1296
Book Four: Family Law, Sections 1297–1921
Book Five: Law of Secession, Sections 1922–2385.
Book One (General Part) provides the definitions on which the remaining four books are
based. At the time it was adopted, this was a distinctive feature of the Code and made it
one of the most precise and scientific legal texts up to that time. Its organization makes
consulting the Code a highly technical matter because later provisions must always be
interpreted in accordance with the definitions of Book One.
Book One sets forth principles which cover the natural and juristic, i.e. physical and
legal, persons who can have rights and obligations, the different forms of and rights in
property, and those of legal transactions. The beginning is quoted as a sample of the style
of this part of the Code:
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FIRST SECTION
PERSONS
First Title
Natural Persons
§—1. (Beginning of legal capacity) The legal capacity of a human being begins with the
completion of birth.” (Goren, 3)
Book Two (Law of Obligations) defines the legal obligations of the parties to a trans-
action. It covers the relationships of debtors and creditors, sales, gifts, leases and other
aspects of obligations between individuals. The beginning is quoted as a sample of the
style of the other parts of the Code:
FIRST SECTION
CONTENT OF OBLIGATIONS
First Title
Obligation to Perform
§ 241, [Content of obligation] The effect of an obligation is that the creditor is entitled to
claim performance from the debtor. The performance may consist of refraining from
acting.” (Goren, 41)
Book Three (Law of Property) covers property rights. In this book, typical matters
included are those of possession, rights over the land, ownership of both land and movable
property and the ways that property can be mortgaged.
Book Four (Family Law) encompasses family law. Here the laws of civil marriage,
engagement, divorce, and property rights are covered. There are many important provi-
sions on relationships including those of parents to children, illegitimate children and their
mothers, adoption, guardianship and the like. Book Five (Law of Secession) constitutes
the law of secession. In it are the laws covering inheritance, wills, the administration of
estates, and the legal position of heirs.
Other texts affecting application
Most commentators on the Code agree that it cannot be fully understood without refer-
ence to other laws and decisions. One of the most important of these laws is usually called
the “Introductory Law.” The reason is that the original draft of the 1895 version contained
a sixth book that was meant to cover the inevitable problems of transition. Conflicts were
foreseen between the new Code and the existing Imperial laws and state and foreign laws.
It also covered problems of private international law.
This sixth book was not included in the Code itself but was enacted, after modifications,
separately as the Introductory Act to the Civil Code of August 15, 1896, (Einführungs-
gesetz zum Bürgerlichen Gesetzbuch—henceforth Introductory Law.) It was passed at the
same time as the Code. It remains, in amended form, in force today, but with an overall
practical significance much less than in 1900.
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The beginning of the law makes it clear that the Code was not intended to reduce all
German law into one compact body. The beginning is quoted both to make the point and
as a sample of the style of the Introductory Law:
FIRST PART
GENERAL PROVISIONS
First Chapter
Entry into Force
Reservations for State Legislation Definition
Art. 1. [Effective date of the Civil Code; reservations for state legislation]
(1) The Civil Code comes into effect on 1 January 1900 simultaneously with an Act
concerning alterations in the Judicature Act, Code of Civil Procedure and the Bank-
ruptcy Order, an Act Concerning Compulsory Auction Sales and Official Receiver-
ship, a Land Registration Act and an Act Concerning Non-Contentious jurisdiction.
(2) Insofar as the Civil Code or this Act contain reservations or determinations concern-
ing state laws to the effect that state law provisions shall remain unaffected or may be
promulgated, the existing state law provisions shall remain effective and new provi-
sions of state law may be promulgated.
Art. 2 [Meaning of Law] Law within the meaning of the Civil Code and this Act is every
legal rule.” (Goren, 433)
The Introductory Law defines the fields in which the laws of the individual states can
remain in force and those in which they can not. It contains a long list of subjects covered
by state laws that could continue—sections 55 to 152.14 Today there are relatively few
topics of civil law which are regulated by state legislation. The more important are
forestry, water rights, and mining. Some state legislation covers those few omissions in the
Code which concern purely local matters, usually of no great practical importance.
Some provisions of the Introductory Law are still of considerable consequence. Two
examples must suffice. One is the amendments which cover the transition required by the
Unification Treaty that joined the two Germanies which were divided after the Second
World War. The other is that part of the Introductory Law which defines how conflicts
between the Code and foreign laws are to be handled. It covers, for example, the rules
about foreigners’ ability to marry in Germany and situations in which the Code and the
law of the foreigner are different.
There was probably never any truth that, as Goren describes the view of some earlier
commentators, “The economic and political outlook reflected in the code is often de-
scribed as being that of an enlightened patriarchal owner of private property.” (Preface,
xvi) If this were true, how could the Code have produced significant effects on the private
law of several other countries with different cultures, notably Japan, Switzerland, and
Greece? Its influences are also found in the law of Austria and, indirectly, in the Scandi-
navian countries, among others.
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Today any capsulized attempt to describe the economic and political outlook of the
Code would be an oversimplification. No short characterization will do because a century
of changes have put a wide variety of political and economic outlooks into the Code.
There are certain features of the Code that can be accurately and briefly characterized.
The language, even for Germans, is not easy to read. This is only partly because of the
occasional use of old-fashioned expressions. The language is terse and abstract, entirely
consistent with the drafters’ aims of accuracy.
The drafters of the Code were nationalistic and patriotic. There is not one word in the
Code of either Latin or any other foreign language. All foreign legal concepts are trans-
lated into German. Here is what the scholarly translator of von Gierke, the master of
historical-theoretical writing and member of the legal historical school, said about the
work of this influential man on the code.
He was himself a lawyer, and a lawyer in a double sense. Not only was he a lawyer of
the chair, immersed in the study and exposition of legal history and legal principles; he
was also a lawyer of the battle-field, who plunged into the busy war of ideas which
attended the construction of the German Civil Code in the latter years of the nineteenth
century. The two sides of his activity were closely connected. He explains himself, in
the preface to the last volume of his Genossenschaftsrecht, that if he had turned aside
from history into contemporary struggles, it was in the same faith, and with the same
object, that he had written history—“to penetrate the new code with a Germanistic
spirit; to develop its Germanic content upon an historical basis; to foster the growth of
its Germanism in the future.” We must remember, as we read his writings, that he is
bringing a view of the German State and of German society, derived from his long
studies, not only to interpret their development in the past, but also to shape their
development in the present, during the great years of political and legal construction
that lie between the new constitution of 1871 and the new Civil Code of 1898. (Ernest
Barker, “Translator’s introduction” in Gierke, 1934, xviii)15
The Code is a close knit document that requires legal training for its effective use. The
result is that the German courts and commentators, mostly academic, have important roles
in expanding and interpreting the abstract statements of principles. Situations requiring
this often arise when the legal question is about particular circumstances that were not
specifically dealt with by the legislator.16
The social scientific study of the code
The purpose of this part of the paper is to examine some of the approaches to the study
of the law from the point of view of the social sciences. Sociology is highlighted. His-
torically, scholars in this social science discipline have studied the law in most detail.
The social scientific study of the Code deals with topics belonging to that borderland
where law, the social sciences—especially economics and sociology—and philosophy
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meet. It has often been explored from many different directions. Even so, the territory is
not well mapped. The boundaries of the disciplines are variously defined. Methods and
methodologies are often confused. The possibilities for terminological confusion are
great.
The approach taken here is to define the social sciences in the same way as do most
university departments, library classifications, scholarly journals and encyclopedias.17 For
these bodies, the social sciences are generally considered to be anthropology, economics,
geography, history, political science, psychology and sociology.
The most important applied disciplines of the social sciences are education, planning,
public administration and social work. Some few authors, such as Harold Joseph Berman
(b 1918), make law a kind of social science. He calls law “a practical social science.”
(International Encyclopedia of the Social Sciences”—henceforth IESS, vol. 9, 203)
Legal reasoning sometimes uses some of the theories and methods of social science.
Social science is also used to make law, determine facts, provide context, and to plan both
a system of litigation and the litigation of a case.18 Most social scientists have never
considered law writing or legal administration a science, although law can be studied with
scientific methods. There is a large jurisprudential literature using the term “legal sci-
ence.” This usage employs an entirely different definition of “science” than is common in
the physical and social sciences.
Until this point, the term “law” has been used in the very specific sense of rules that
most of the members of a state regard as covering all its members. These rules are
accompanied by institutions and procedures for their interpretation, application, enforce-
ment and sanctions in the case of disobedience. Laws that fit this description are some-
times called “prescriptive.”
Many sciences use the term “law” to mean something entirely different. In chemistry
and physics, the periodic law has been the basis for the classification of the elements for
more than a century. It states that the properties of elements are a periodic function of
their weights. In economics, the law of indifference states that there can only be one price
in a market. This kind of law is often called “descriptive” because it attempts to describe
a rule of behavior, either of things or people.
There is little agreement among scholars, be they legal, physical or social scientists or
philosophers, about more precise definitions of “law.” Lisa J. McIntyre, for just one
example, provides a list of 11 different definitions chosen from a sociological perspective.
(10) Attention must also be paid to the fact that some disciplines of study, as for example
political science, use the terms “economics” and “law” in ways that are quite different
from those of lawyers and economists.19
Extreme caution in the use of the term “law” is also required because in every language
it has many connotations.20 Legal scholars use the word in ways very different from those
of philosophers or scientists.
Because the phrase “civil law” has been and is used in a great variety of meanings it is
necessary to explain the sense in which it is used here.21 “Civil law” refers to the
prescriptive kind of law. It covers the ordinary relations of private individuals with respect
to their property rights, the structure of the family, inheritance, and contractual obliga-
tions. It focuses on transactions between individuals. What differentiates it from “public
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law” is that public law regulates transactions between legal individuals and the state. Civil
law does not mean natural, canon or divine law. It is also to be distinguished from
criminal, international, and commercial law.22
Law and social change
Scholars from many different disciplines have been interested in the study of legal evo-
lution. Examples are to be found in history, sociology, and jurisprudence, among others.23
Two examples must suffice. Henry James Sumner Maine (Sir, 1822–1888), the great
English historian and chronicler of the growth of legal and social institutions, interpreted
the rise of contract in terms of a decline in the role of kinship as the basis of social
organization. The English jurist, Albert Venn Dicey (1835–1922), explained the growth of
statutory law-making in terms of the increasing authority of public opinion.
An article by Richard D. Schwartz and James C. Miller explains the theoretical and
practical reasons for the interest in the subject. “Legal evolution provides an opportunity
to investigate the relations between law and other major aspects and institutions of soci-
ety.” (648) Their interest is in the evolution of legal organization. There can be little
quarrel with their assertion that “As the mechanism through which substantive law is
formulated, invoked, and administered, legal organization is of primary importance for
understanding the process by which legal norms are evolved and implemented.” (648)
They suggest that “legal organization seems to develop with a degree of regularity” and
that “elements of legal organization emerge in a sequence, such that each constitutes a
necessary condition for the next.” They also found that “a second type of regularity
appears in the relationship between changes in legal organization and other aspects of
social organization, notably the division of labor.”24 (648–649)
If their study could be extended to contemporary societies, it would direct attention to
regularities in the development of German law that are related to social factors. Although
many scholars have proposed such relationships, no convincing explanations have
emerged.
There is little agreement among scholars about how the problems of legal evolution are
to be studied. Each of the many scholarly disciplines interested in legal evolution has its
own combination of methods and philosophical approach to the study of its problems.
Thomas A. Cowan is interested in several kinds of changes. He wants legal philosophy “to
become part of the philosophy of the social sciences.” (162) He would also like to see the
social sciences become experimental.25
Calls to change the philosophy of science have never succeeded in affecting the devel-
opment of science. The sciences grow for their own reasons. The way their philosophy is
changed is by philosophical works that produce scientific results or philosophers adapt to
scientific results.
There are also those who want to develop a science of law. An example is Frederick K.
Beutel: “A science of law based on a rigorous application of the scientific method should
be devoted to the study of the phenomena of lawmaking, the effect of law upon society
and the efficiency of laws in accomplishing the purposes for which they came into
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existence.” Beutel goes on to give “the steps employed in prosecuting a method of Ex-
perimental Jurisprudence.” (163)
Although Beutel recognizes that the methods science “uses and the results which it
achieves, rather than its definition, are fundamental,” his approach has not been widely
employed. One of the first lessons that the history of science teaches is that it is not calls
for change which influence the development of science. It is the use of methods which
produce what passes for reliable knowledge.
A minor classic on law and social change is the article by Yehezkel Dror. In his view,
law has a dual social character which complicates the relationship between law and social
change.
The whole of the law of a given society forms a system consistent within itself and
with a whole network of internal relationships, which constitutes a subsystem of that
society’s total culture and is intimately linked with its law making, law-applying and
law-enforcing institutions and processes; furthermore, law is a pervasive element of
every social institution and plays an important role in all of them. Thus, family law
forms a part of the whole of law and cannot be understood in isolation from the legal
system as a whole, but family law is also an internal and essential part of the family
institution, and cannot be fully understood without consideration of it.26 (666)
Dror mentions another possible explanation for the longevity of the code. “Renner, Die
Rechtsinstitute der Privatrechts und ihre Soziale Function (1925), suggests that the mean-
ing and content of legal concepts (such as “property”) changes, while the concepts them-
selves remain constant.”27 (Footnote 15, 670)
There is no doubt about changes. Using “property” as an example, every modern legal
system now admits the possibility of rights and interests in intangible things. There is a
growing acceptance of the idea of government-granted rights as property.28 The central
weakness of Renner’s explanation lies in the difficulty of understanding how the “mean-
ing and content” of a “concept” can persist in the face of dramatic change without the
“concept” itself undergoing substantial modification. Both Dror’s placement of this ex-
planation in a footnote and the fact that he does not use it leaves the strong impression that
he did not think it very useful.
Dror also draws attention to the growth, “despite constant efforts which are made to
limit it,” of what he calls “secondary legislation.” He points out that “many of the legis-
lative changes of the law are brought about today through delegated legislation by ad-
ministrative organs.” He thinks that one of the reasons “is the inability of the central
legislature to deal with all needed changes of the law.” (668)
Dror submits that, “the only remaining solution lies in the grant of authority to admin-
istrative bodies to change the law through secondary legislation. The apparent correlation
between the high rate of social change experienced by modern societies and the large
extension of the legislative authority of administrative bodies seem to bear out this hy-
pothesis.” (668)
The two basic concepts that Dror works with are social change and law. Here is his view
of social change:
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Social change can be initiated by various factors, including changes in the physical
environment of the society; changes in the genetic constitution of the population;
contact with other societies; internal social change, such as general social movements
and new technological or social inventions. One of the characteristics of all contem-
porary cultures is their high rate of social change; in modern Western societies a high
rate of social change, associated especially with changes in technology, has become
accepted as a permanent feature of social life, while the various so-called underdevel-
oped societies which are still relatively static aim at achieving an even higher rate of
social change, so as to enable them rapidly to reach the level of technical development
characteristic of Western societies. Contemporary sociology devotes much attention to
the study of social changes, but as yet its basic pre-conditions and processes are little
understood, and very little is known of basic problems, such as whether human soci-
eties are able to exist in a state of permanent high rate of social change, and for how
long, and how high-rate social change influences the mental stability of the individual.
(665)
His prudent conclusion about the knowledge social scientists have about social change
holds today. It follows that, despite much interesting and valuable work on legal evolution,
firm conclusions about social change and the law are not likely.
Sociologists and the study of the law
By the latter half of the 20th century, a massive change became apparent in studies of
legal evolution. One result has been a decline in interest of studies about legal evolution.
Peter Stein (b 1926) shows how this occurred in his book on the history of the theories of
legal evolution. According to him the prevailing consensus in the view of most judges is
that “they no longer purport to apply legal rules in a formal way, without regard for the
consequences, they consciously try to adjust their application to the social purposes which
the rules were designed to fulfil.” (126) This approach to the law, often called sociological
jurisprudence, was mightily influenced by sociologists.
Sociology is among the most important of the social science disciplines concerned with
the law.29 Many of the fathers of modern sociology such as Max Weber (1864–1920) and
Emile Durkheim (1858–1917) wrote important works on the law. In Europe, for most of
the twentieth century the sociology of law dominated social-legal studies. (Veljanovski, 3)
We lack the studies to be certain that this is still the case in 1997.
Many of the early studies concentrated on the growth of law. Durkheim thought that
restitutive sanctions replaced repressive ones as a result of the development of the division
of labor and the coinciding shift from mechanical to organic solidarity.
Weber had much to say about law and its development. He thought that “the mode in
which the current basic conceptions of the various fields of law have been differentiated
from each other has depended largely upon factors of legal technique and political orga-
nization. Economic factors can therefore be said to have had an indirect influence only.”
(Weber, in Rheinstein edition, 61) He considered changes in the law to be strongly
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influenced by several factors. Among these were the need for professionalism and cer-
tainty in the conduct of modern business which led to the development of bureaucracy.
Weber often discussed the issues raised by contrasts between lawyers and laymen in the
conception of law and how it should work. Another factor Weber saw as important was a
kind of class conflict. He noted that the propertyless classes were not served, in the way
in which bourgeois were, by formal legal equality and rational adjudication and admin-
istration. The propertyless demanded that law and administration serve the equalization of
economic and social opportunities vis-à-vis the propertied classes.
The success of the welfare state in Germany has done much to weaken explanations
based on classes. Demands that the law serve the equalization of economic and social
opportunities remain. But since the Second World War, increasing demands for equality
have been based more on ethical, moral, ethnic, and gender grounds than on class inter-
ests.
Another kind of analysis which bears on the problem of this paper is that of Ralf
Dahrendorf in his article “The Education of an Elite: Law Faculties and the German
Upper Class.” His analysis suggests another reason for the stability of the law in Germany
through the last century—by way of the values of German society.
In a formula, the development of German elites presents the picture of a pre-industrial

upper class holding on to its position despite a rapid and radical process of industri-
alization. The incongruities of German economic development on the one hand, and
social and political structure on the other, have been noticed by many analysts before
and after Veblen’s Study of Imperial Germany and the Industrial Revolution. Contrary
to what, in the nineteenth century, was still considered the English ‘model,’ industri-
alization strengthened rather than weakened the traditionalism of German values and
the authoritarianism of German politics. At the same time it did produce new claimants
for power—as did the unification of Germany under Prussian hegemony. (295)
For modern times, Dahrendorf makes the convincing point that “in a sense, German
society as a whole never had an identifiable and reasonably homogeneous upper class.”
“Since the foundation of the Empire in 1871 … numerous groups were competing for
upper-class status.” (294) If he is correct, then one would expect changes in the law as
different groups attained the types of control associated with the upper class. No one has
demonstrated this process.
Although Germany had a heterogeneous and changing upper class, it had elites. The
most certain way into them was, and probably remains, by way of a degree in law.
Dahrendorf supports this conclusion by observing the proportions of graduates in law
among cabinet members, the highest civil servants, members of Parliament, entrepreneurs
and managers, and many other elite positions.
These graduates are typically not interested in the law. The “students try to outdo each
other in their confessions of disinterest in the subject.” The “majority never cease to
ridicule the substance of what they hear and learn, and to assert how boring it all is.” (305)
If Dahrendorf is correct, this elite, despite the derision, would constitute a powerful force
for continuity in the law. It is the only law they know.
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But social scientists are not agreed about methods or approach. Paul Bohannan’s view
of the tasks of the social scientist in studying the law is informative both for what he says
that is useful and what he says that explains why sociological explanations have not been
very successful. “The social scientist’s first task, then, is the analysis of the legal insti-
tutions to be found and their interrelationships with the nonlegal institutions of society.”
(10) The emphasis on institutions is at once limiting, although this is not as damaging as
it might be because of the wide variety of definitions given to the term “institution.”
Bohannan then says, “The social scientist’s next task is the reporting and comparison
of legal institutions in the terms of the people who participate in those institutions and the
subsequent comparison of those terms with the terms in which other people live in
analogous or similar institutions.” (10) Although a comparative approach is often inter-
esting and useful, it is severely limited in terms of possible generalizations and explana-
tory power. This is partly because cultural differences are so profound and pervasive and
partly because law is a social institution unlike any other.
According to Bohannan:
His third task is the exposition of what Hoebel (1954) has called the “postulates” of
that people’s law: the assumptions held about the “natural” ways of the world, most
often without even a possibility of overt statement, by the people who live by a custom
and a law. These postulates lie behind the law as they lie behind every other aspect of
that people’s activity. They are those “values,” or unquestioned premises, on which a
people bases not merely its behavior (including law) but its moral evaluation of be-
havior (including ethics). The postulates behind a legal system are congruent with the
postulates behind the accompanying economic or religious system. (10)
This is an important point. If the “postulates” could be precisely defined and a logical
connection made between them and the legal institutions of a society, it would help to
explain the viability of legal systems. There are several problems. How does one account
for changes in both the “postulates” and the legal system? For the explanation to hold,
there would have to be a one to one correspondence. This kind of correlation does not
seem to be present.
In the case of the Code, as pointed out elsewhere, there is strong evidence that German
society, and, therefore, presumably its “postulates” have changed in the last century. The
connection with the changes in the “postulates,” indeed their very definition, and the
changes in the Code has not been established.
A serious methodological issue is that of falsifying explanations of this type. There is
no generally accepted methodology for establishing causation in most cases of this kind.
The germ of truth in this kind of explanation lies in limiting its range. In Germany, there
is little doubt that some ⬙postulates,” e.g. those pertaining to marriage and the family, have
changed. In some cases, revisions of some of the Code probably reflect these changes. In
other cases, Code alterations may have encouraged, if not caused, changes in the “postu-
lates.”
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Sociologists have long speculated about the possibility that the law might be an instru-
ment of social change. Some, such as William Graham Sumner (1840–1910), held that
law was a passive force only becoming institutionalized after it had been established in the
behavior of society. Others, for example William M. Evan, see it as an active instrument
of social change.30 Currently, there is a controversial literature on the issue of law as an
active instrument of social change.31 The issue of whether the law effects rather than
reflects important social change remains unresolved. Much work remains to be done on
this subject.
McIntyre maintained that “concern with law has come to be less and less important in
the field of sociology.” (205) She thought that what sociologists needed “was a vocabulary
that allowed us to use law in our investigations of and discussions about society and a
framework that would help us direct and conduct those investigations and discussions.”
Up to 1997 her suggestions have not made a large impact on sociologists.
There is no survey of direct answers to the questions with which this paper is con-
cerned. The closest is the book by Julius Stone, which, in a very personal way, summa-
rized his view of law and the social sciences in 1966. He begins his book with, “In the first
half of the twentieth century the relations of the legal order with the wider social order
became established beyond question as a central (perhaps the central) juristic and juris-
prudential concern.”32 (3)
His explanation for the reasons why none of the explanations at the beginning of this
paper are satisfactory are valid today.
[It] is largely those aspects of precedent doctrine which are enshrouded in chronically
intractable problems of an analytical-logical nature, which provide the room and set the
scene for regular entry of considerations of justice upon the judgment scene. It is
precisely here, where we cannot intellectually lay out and control the decisional trends
in advance, that there often emerge those acts of judgment which give the movement
and direction to the legal order which make this a means towards justice as men are
given to understand it. (80)
Stone is not very optimistic that there will ever be a lasting set of explanations as he
continues.
Here too, as we retrospect upon past direction and movement the outcome may be
rationalized in terms of empirical data and logical relations; and from them, with or
without the aid of machines, we may be able to “explain” past decisions and even
predict future ones. This, however, is only up to a certain point and on certain assump-
tions; and where this point will be, and how long these assumptions will be valid, are
still subject to future intellectually intractable events of the kind involved in judgments
of justice. What may be “adequate” truth in terms of retrospect on past decisions, may
still not be the important part of what is still to be done from the judgment seat.
[original italics] (80)
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Summary and conclusions
Law becomes a problem, and there come to be social problems, only when men are not
merely conscious of their laws and institutions and of the imperative to conform them
but are also critical and more or less defiant of them, and specifically in so far as there
come to be conflicts of interest and differences of opinion with regard to the law.
Frank Hyneman Knight (212)
This paper began with an examination of the reasons usually given for the longevity of the
Code. Some of the reasons can be rejected. Most have some validity although they
describe more than they clarify about the connections of the law with the social, political
and economic context. Explanations based on sound empirical foundations that connect
the survival of legal systems with political parties, ideologies, and social and economic
conditions do not exist for the Code or any other of the legal systems in place for more
than a century.
The idea that German society has not changed significantly in the last century was
rejected on the evidence that deep and pervasive transformations had occurred in signifi-
cant sectors, such as political institutions, religion and the family. Explanations based on
the alleged stability of beliefs underlying politics and society were rejected on the same
evidence of changes.
Another kind of explanation is that based on left-right, or liberal-conservative distinc-
tions so commonly used by ideologically oriented historians. The main reason that politi-
cal or ideological analysis based on left-right distinctions is unhelpful is that such divi-
sions tend to obscure the important fundamental consensus shared by almost all the
participants in the change.
In a democracy, changes in the law are the result of consensus. Politics and ideology
always appear to give way to compromise. The reason seems to lie in the procedures and
mechanisms of all modern legal systems. Both the hierarchy of courts and the reliance on
precedent make sudden, radical shifts in the legal system very rare, if they ever occur.
In Germany, this consensus rested (and rests) on several foundations. These include the
Germanic nature of the Code and the historical and cultural values that the new law
embodied.33 There were probably other shared areas, such as the basic ideas of what
justice meant, respect for the traditional values, such as honesty, the importance of the
family and the desirability of reconciling different parts of German society, especially
those involving religion and economics. Possibly of significance was the commitment to
the welfare state whose institutions were created and nurtured by the law.
The massive political changes of the past century are strong evidence that the longevity
of the Code is not related in important ways to the political regime. The Code has not
changed significantly along with changes in kinds of government, e.g. Imperial, military,
Nazi, occupation, or democratic. Even the party system does not appear important. Nu-
merous studies of government survival in parliamentary democracies have examined party
systems closely.34 As both the Weimar and Nazi experiences show, politics cannot be the
critical factor in the German case.
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A legal system is one of those social institutions that can survive in and become part of
any number of dynamic political situations. A guess is that it continues by taking on quite
different meanings in different political contexts. In general, changes in the law can be
seen as responses to persistent, fundamental problems of social and political organization.
The specific changes are selections made from a range of possible alternatives.35
There is no question that the Code has changed, both in its provisions and interpreta-
tion. The changes cannot explain its longevity because all laws change over time. What is
required are the reasons for the changes. These reasons should relate the legal changes to
changes in other elements of society such as the economic system. It is also true that the
Code covers but a part of the law. It is hard to see how its long life is explained by this.
The main explanatory variable would have to be the rest of the law. And that begs the
question.
The most difficult kind of explanations to evaluate are those which rely upon the
concepts of “morality” and “ethics.” The variety of meanings given to those terms makes
generalizations impossible.
The second section of the paper was devoted to a brief description of the Code and
other texts affecting application of it. It also drew attention to the patriotic motives of its
developers, an important factor in determining its unique character.
The third part of the paper pointed out that social scientists and legal scholars have long
been interested in legal evolution. Most of their work has centered on how law evolved
from primitive societies. There are many studies which correlate the changes of an exist-
ing legal system with changes in the nation-state in which the legal system exists. The vast
majority of these are concerned with the details of how and why specific laws got
changed. None have convincingly examined the changes in a code law system itself over
the course of a century. There is also no scholarly consensus about the methods to be used
in studying social change and the law.
Many of the above considerations raise the possibility that the question with which the
paper began was wrongly posed. Instead of asking what factors might have been respon-
sible for the long life of the Code, perhaps the question should have been, “Why is it that
all modern legal systems persist in their main forms and change in their details?”
Classic examples are the English and American constitutional systems and the French
Code Napoléon of March 21, 1804, which has served the French ever since. Both kinds
of systems do not seem to have the unintended by products of much social legislation.
Whenever unintended and undesirable consequences appear, they seem to be remedied.
Efficient mechanisms which allow modifications are obviously important.
It takes cataclysmic social upheavals for a nation to make basic changes in the form of
its legal system. There are very few examples in the last two centuries. Even the end of
colonialism after the Second World War did not find the countries that were colonies
abandoning the old legal systems. It is possible that the modernization of Japan under the
Mejii restoration (1868–1912) might be an example of a fairly complete change in their
legal system. The Communist revolutions in the old Soviet Union, Cambodia, Cuba and
China typically did not completely abandon the existing legal systems. Changes in the law
were made but they were dwarfed by the larger differences in interpretation and admin-
istration.36
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Could a fundamental reason for the survival of legal systems be the quite reasonable
view that, even if problems are obvious, it is better to work for improvements rather than
give up the order and certainty that comes with a functioning system, however inad-
equate? Even faulty legal systems have their benefits for the social order. Attempts to
dismantle them risk making things worse. Most importantly, the knowledge that legal
systems can change is the basis for the hope that they will change.
Looked at in this way, it appears that extraordinary complex and subtle forces dominate
the evolution of the law. In modern society there are fundamental and not so fundamental
changes. Evidently no modern society willingly gives up the continuity and satisfactions
of life provided by the family and the law. Apparently the values these social institutions
embody are far more fundamental than politics or idealogies.
Once a legal system is in place and working reasonably well for any length of time other
reasons for expecting stability appear. The preservation of tradition and following of
precedent are almost defining conditions for order and stability. Not to be overlooked in
this connection is the self interest of the courts, lawyers, professors and other parts of the
large and influential legal and regulatory bureaucracy. It could be argued that the obvious
costs associated with that self interest are accepted by society for the net benefit of order
and continuity.
If there is any truth to the idea that a living law must be close to the lives of the people
it serves and also adapt to changing times and conditions, it must be admitted that the
Code has met the challenge. A partial explanation for the durability of the Code lies in its
utility. Institutions justify themselves by a scrutiny of their results. The Code is a rational
attempt to harmonize the needs of the individual with the requirements of a productive
economic system.
This type of explanatory approach which relies on the functions of a legal system is
useful but not fully satisfactory for several reasons. There is the possibility that functions
are reciprocal. For a functional explanation to be serviceable it would have to be estab-
lished that the legal system operates in a way that it, for example, reflects the will of the
people. But what if it is the other way around? Some scholars hold that the legal system
shapes the will and behavior of the people.37
Another problem with functional explanations for social institutions is that they assume
the functionality of an institution for as long as it exists. The conclusion, that the law is
functional, is contained in the premise that it exists. Finally, a legal system is composed
of many parts, any one of which may be more or less functional with respect to the goals
it is supposed to serve.
There are no simple answers to many social questions about the Code. None fully
satisfy the elementary social scientific requirement that any valid explanation must be
subject to empirical testing and therefore falsification. Perhaps the principal reason for the
difficulties social scientists have with issues like this stems from the vague and ill-defined
concepts they employ. How are terms like “legal system” “ideology,” or “will of the
people” to be defined in such a way that they can be used in serious scientific analysis?
Some things about the Code, primarily of a descriptive nature, can be said with cer-
tainty. Its place in the history of law is beyond question. The Code is, whatever defects it
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might have, a great social institution. It has served the German conception of justice well.
It reconciles a variety of politics, ideologies and religious beliefs. It regulates individual
behavior which allows an orderly society. In its centennial year, there are no foreseeable
events that might require substantial revisions of the Code or the German legal system.
No one has yet put forth a convincing explanation of the relationship of social condi-
tions to the structure of a legal system. Simply consigning the development of a structure
to its historical context is an easy way out—everything can be explained that way. In
looking at any great social institution ex post, several perspectives are possible. History
can be seen as driving inexorably toward it. After all, what happened must have had
reasons. It can also be seen as the result of actions with unforeseen consequences, acci-
dents and the working out of unpredictable, complex contingencies.
Or great social institutions can be seen as the result of rational social planning.38 But
a comprehensive view into the future is given to no one. This is the defining limitation for
planners of social institutions. It is also the reason for doubting that long lasting legal
systems are the result of planning. It is hard to accept the implication that outcomes could
be foreseen so far in advance. If the structure of a legal system is the result of rational
social planning, planners in other fields should study the process.
The forces that dominate the evolution of the law require theoretical explanations,
which are mostly lacking. Ethical questions are complex and elusive. To make judgements
requires goals which have ethical content. Neither legislators nor judges, lawyers or their
historians have any claim to certitude on these matters.
The task of the historian of social science thought is not only that of discovering new
or more nearly correct explanations of developments in the past. One of his responsibili-
ties is to carefully evaluate the evidential basis for any explanation. The evidence and
considerations presented above imply that a different theoretical focus is needed.
Economists have not yet paid enough attention to the relationships of the legal system
to economic well-being. A stable legal system has long been recognized as a part of the
institutional structure required for civilized living. The most casual observation shows that
the nations that are on the top of the economic heap have long-lasting legal systems. Other
legal systems, many of them in poor nations, also have been long-lasting. It is clear that
the quality of a legal system is not necessarily related to the length of time the legal
system has been in existence.
Something else is important. Some set of features or characteristics make some legal
systems better than others. These have not yet been clearly identified. The search must
begin by recognizing that there are qualitative differences in legal systems that are directly
related to national economic achievement. In terms of the quality of life of the people who
live under them, constitutional and code law systems are the best that have yet been
devised.
No criticisms of the Code can change its place in German history. It is unlikely to be
eliminated or even changed substantially in the foreseeable future. Its role in the devel-
oping common law of Europe is significant. Full identification of the characteristics which
make legal systems great and which make them last must be left for future scholars.
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Notes
1. There is a large literature in English, although naturally, nowhere near the size of that in German, on
German law. A fine introduction to it from the Anglo-American point of view, with good bibliographies, is
Charles Szladits’ Guide to Foreign Legal Materials: German by Timothy Kearley, and Wolfram Fischer. It
includes a section on German law in English. (46) One of the works cited there is said to include all the
works in English on German law from 1790 to 1983. An excellent survey from the German point of view
is Norbert Horn et al., German Private and Commercial Law: an Introduction. It includes a section, “Laws
and Publications on German law in English.” (322) Another good general source is Foreign Law: Current
Sources of Codes and Basic Legislation in Jurisdictions of the World by Thomas H. Reynolds (b 1933) and
Arturo A. Flores. For a reliable brief summary of the German legal system see the chapter, “The Legal
System of Germany,” in the work edited by Kenneth Robert Redden (b (1917). (Vol. 3, Chapter 4)
2. Simon L. Goren’s introduction to his 1994 translation, The German Civil Code, is essential to understanding
the American view of the Code. Although the book by Ernest Joseph Schuster (1850–1924), The Principles
of German Civil Law, is outdated in many details, it is still valuable for understanding the Code.
3. The text of the Bürgerliches Gesetzbuch that German lawyers and students generally use for quick reference
is that published by C. H. Beck of Munich with a new edition about every other year. The most important
short commentary is that originally edited by Otto Palandt (1877–1951).
4. I owe the German references to Drechsler. (Personal communication) For those who read German, he also
recommends as a first introduction Gustav Radbruch’s (1878–1949) Introduction to Jurisprudence (Ein-
führung in die Rechtswissenschaft) and the Introduction (pp. 9–28) by Karl Friedrich Larenz (b 1903) to the
25th edition (1980), and later of the Beck paperback editions of the Bürgerliches Gesetzbuch. Another good
introduction, in German, is that by Helmut Köhler in the 1996 edition.
5. Related to this reason is the possibility that the Code has been losing its prominence because of the growth
of case law and, a distinctive feature of the German legal system, the significance of scholarly commentary.
Both case law and scholarly commentary have extensive and conspicuous roles. This does not lessen the key
position of the Code.
6. There are some statements in the English language literature that there is not much room for interpretation
in the Code. The most cursory examination of the German literature shows this is not the case. Goren cites
an example of a lengthy volume of commentary on section 242 alone. (Introduction, xix)
7. It is primarily for this reason that more attention is given to the views of sociologists and other sociologists
and other social scientists than is customary in studies of this kind.
8. John’s bibliography is a good introduction to the German literature and an almost complete coverage of the
English language literature on the subject. His book must be consulted by any student of the subject.
9. Despite the fact that political scientists have long been concerned with many aspects of the law, their work
does not cast much light on the reasons the Code has endured. Because they emphasize politics, political
scientists have rather neglected the study of why the Code has survived. They cannot convincingly explain
why the Code has continued through many different political regimes, as have the legal systems of all major
countries.
10. In 1896, probably as background to the current controversies about bimetallism in the United States, The
Journal of Political Economy published a translation, “The Monetary Treaty between the German States of
January 24, 1857.” The economic journals of the time paid very little attention to the Code and its
development. They paid a great deal of attention to monetary developments in Germany because of rel-
evance of the debates over money there. See, for an example, the critical note by Oliver Mitchell Wentworth
Sprague (1873–1953) on the German Coinage Act of 1900 in The Quarterly Journal of Economics. The
Coinage Act was part of the package of laws that accompanied the adoption of the Code.
11. Goren (xvi) has 1887, John (9) has 1888 for the year of publication of the first draft. All the German texts
agree that the first draft was printed in 1887.
12. This was also a time when “the social question” was hotly debated. “The social question” covered a wide
variety of issues that revolved around the role of the state in ameliorating the condition of the poor.
Proponents of a broader role tried hard to make the new code fit their desires.
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13. William Seagle, writing in 1941 says of the Hitler regime, “It has already proclaimed more edicts Than in
all the years of the Republic and the Second Reich.” (373).
14. For the laws, translated into English, detailing the case of the Jews see the books edited by John Mendel-
sohn.
15. The Soviet occupied German Democratic Republic kept a code law system. At first it retained much of the
Code. By 1976, its code was organized differently and retained only some elements of the Code. It was
much shorter. There are no detailed studies in English that compare them. The key to understanding it and
its administration lies in Marxist philosophy. It made the entire legal system, including the judiciary, an
instrument for executing the social and economic policies of the state which were subject to constant
political shifts. The resulting interpretation and administration of the law never approached what most
people call justice. The horrors of the legal system were an important reason for the dissolution of the state.
The neglect of market forces and disdain of private property were important reasons for the sorry state of
the economy.
16. I worked from the 1988 text edition of the Civil Code Law Book (Zivilgesetzbuch …) edited by Ruth
Wüstneck which was kindly given to me by Drechsler.
17. For an example of some of these changes in the politics of German child welfare see Edward Ross
Dickinson.
18. Because civil law and liability law often overlap in Anglo-American law, Goren thought it necessary to
include the German Act Concerning Liability of Defective Products (Products Liability Act of 15 December
1989) with his translation of the Code.
19. The origin of the titles from the English edition from which I worked is explained in Goren, page xxiii.
20. Drechsler informs me in a personal communication that these sections are so obsolete that most text editions
omit them. The 1996 Beck edition also omits Sections 153–218.
21. The modern reader could misunderstand Barker’s translation of Gierke. The original is to be found on page
xii of Gierke’s forward to the fourth and last (1913) volume, reprinted in 1954. What Gierke was referring
to by the German word germanistisch, which Barker translates as “Germanistic”, was the specifically
German legal heritage, primarily as opposed to Roman legal traditions.
22. I do not know the reason for the misdated reference to the “new Civil Code of 1898.”
23. As in all modern legal systems, there is a continuing debate about the stress to be placed on different
possible principles of interpretation. In the United States there are three main contenders. Should the
interpretations of the law be “true” to some underlying intention, should an attempt be made to follow the
literal meanings of the words or should modern social ideals be followed? In Germany, there are four
contending principles: historical, grammatical, systematic, and teleological.
24. I have discussed this topic in more detail in several other places. See, for examples, Senn, 1971 and 1995.
25. For examples of these uses see the traditional law school casebook edited by John Monahan (b 1946) and
Laurens Walker.
26. See, for example, the work by Alan Stone and Richard P. Barkey, Governing the American Republic:
Economics, Law, and Policies.
27. In German there are two words for law, Gesetz, and Recht. Gesetz refers to a definite or positive law or a
body of laws. Recht is a normative concept with broader connotations, including those of justice and correct
or appropriate or fitting laws.
28. Once again there are differences in the German approach as compared to the Anglo-Americans. Probably
because of the relationship of the German law to Roman law, “civil law” has more associations with the
Roman ius civile. This is one of the reasons behind codification and the method of subsumption to find the
proper application. The idea behind the method of subsumption is that the law covers every possible
situation. For any given case, the job of the lawyer or judge is to find the law that fits.
29. Distinctions between the different categories of law are not sharp. There are many cases where the distinc-
tions blur. Some examples are when a divorce has social security or taxation consequences or the sale of a
building or lot has pollution implications.
30. Schwartz and Miller give citations for work in all of these fields. Their article summarizes one kind of study
of legal evolution. Mention must be made of the fact that the social sciences of anthropology and political
science are also concerned with the way the law and social institutions are related. Some of the scholars in
Kluwer Journal
those fields have made contributions to the problems with which this paper is concerned and have been
mentioned elsewhere in this paper.
31. There are many histories of the law. For a sample see the work by William Seagle (b 1898).
32. Drechsler, in a personal communication, points out that in Germany the bulk of the work in political science
has traditionally come from professors with law degrees.
33. Because their study was cross-cultural and included primitive societies its conclusions for the problem in
this paper are of limited value, although some are of interest. For example, “compensatory damages and
mediation of disputes was found in every society having specialized legal counsel, or … a large majority of
societies that develop specialized police also employ damages and mediation.” (649).
34. Cowan says, “The present body of doctrine, developed by those having a joint interest in law and some
branch of social science likewise awaits the emergence of genuine experimental science. The studies known
as psychology of law, sociology of law, legal anthropology, as well as the even more diffuse bodies of
learning called law and statistics, law and economics, law and politics, and the like, will presumably all be
subsumed under the aegis of experimental social science.” (150–151)
35. The persistence of the practice of many social scientists in studying even modern law from the point of view
of “societies” rather than nation states is remarkable. The two are not the same and most modern nation
states contain many “societies.” Dror often uses the terms as though they were synonymous.
36. The footnote continues “Otto Kahn-Freund, in his introduction to the English translation of Renner’s book
(1949), and Friedmann, Law and Social Change in Contemporary Britain (1951), tried to apply Renner’s
analysis to Anglo-American legal developments.”
37. These references are given as interesting instances of attempts to apply concepts from one legal system to
another. Karl Renner (1870–1950) was an Austrian statesman and president of Austria, 1946–1950.
38. What are we to make of the fact that contract rights are now the principal means for the storage of value,
replacing such “property” as money and the precious metals?
39. For many years the sociology of law was an important subdivision of the subject in the United States. As
a result there are several good books of readings which cover the subject. For example, the book edited by
William M. Evan has a section on defining the sociology of law. Those edited by Vilhelm Aubert and Rita
James Simon include many of the classic materials. Taken together, they provide a good overview of the
older work on the sociology of the law including readings from and references to almost all the classical
literature.
40. For Weber see especially “Rational and Irrational Administration of Justice,” No. 14 in Aubert and “Types
of Lawmaking and Lawfinding,” No. 26 in Evan.
41. See Evan where he gives his suggestions for the seven conditions for law to “potentially act as an educa-
tional force in changing people’s behavior.” (560)
42. Because of its size and diversity, it cannot be easily summarized. Many discussions are simply advocacy
representing special interest groups, as for example the articles by Dennis R. Fox from the point of view of
psychologists and the discussion by Mark A. Small. Some like Stephanie Lawrence and Cass R. Sunstein
assume that the law has shaped social change. Steve Bruce and Chris Wright argue that political necessity
forces changes in the law using religious toleration as an example. Mary L. Volcansek argues that judicial
policy making may produce social change. A sample of the literature on unintended consequences of laws
or judicial opinions is that by Louis Michael Seidman on the Warren Court’s Brown and Miranda opinion.
43. The book is a useful summary of work done on the subject up to about the middle 1960s. It is also
significant for being one of the earliest to discuss the role of computers in the workings of the law.
44. One of the interesting characteristics of this consensus is that it implicitly acknowledges that human powers
are limited in what they can accomplish.
45. For an introduction to this literature see the work by Paul V. Warwick.
46. The way this worked in the politics of German child welfare is described by Edward Ross Dickinson in his
fine book on the subject.
47. The end of communism in Russia appears to be accompanied by an attempt to change the laws and
administration but not the basic legal system. China poses another kind of problem as it develops. It never
was a law based society in the Western sense. If it is to become a modern economic power it will have to
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88 SENN
have a rational legal system with many Western characteristics. See the articles by Peter Ferdinand and Li
Peilin.
48. The matter is further complicated by the fact that both law and the legal systems have multiple functions.
The incongruities between two of these functions, efficiency and justice, have often been commented upon.
49. Related to this kind of explanation is the idea that the development of important social institutions in the last
two centuries are primarily the result of the genius of an individual. While this might have been true before
the late 1700s, Luther comes to mind, it has not been common since then.
Acknowledgments
An early version of this paper was given at the Conference “The German Civil Code
(1896–1996): A Centennial Reappraisal,” June 28, 1996 at the Schießhaus in Heilbronn/
Neckar, Germany. Jürgen Backhaus, Wolfgang Drechsler, Rainer Kattel and Merle King-
man helped me with detailed, useful critiques which enriched the paper. The workshop
participants made valuable suggestions. I am particularly obligated to Mary Stone Senn
who, besides making many specialized computer searches, edited the paper and was
helpful in countless other ways. Thanks also to Anita Lauterstein who was helpful as
always with many typing chores and the production and printing. Any remaining errors are
my own. The author may be reached at 1121 Hinman Avenue, Evanston, Illinois, 60202.
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Why Has The German Civil Code Proven So Durable?: Introduction: Reasons That Do Not Explain

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European Journal of Law and Economics, 7:65–91 (1998)

© 1998 Kluwer Academic Publishers

Why has the German Civil Code Proven so Durable?

JEL Classification: K00

Introduction: Reasons that do not explain

The code briefly described

Book One: General Part, Sections 1–240

Other texts affecting application

The social scientific study of the code

Law and social change

Sociologists and the study of the law

In a formula, the development of German elites presents the picture of a pre-industrial

Summary and conclusions

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