Front Page Titles (by Subject) THE MAKING OF THE GERMAN CIVIL CODE 1 - The Collected Papers of Frederic William Maitland, vol. 3
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THE MAKING OF THE GERMAN CIVIL CODE 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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THE MAKING OF THE GERMAN CIVIL CODE1
The system of law under which we live, its merits and defects, its relation to other living systems, these are themes which—so I imagine—might and ought to have a place in a scheme of social and political education. Do we Englishmen think enough about them? I am not persuaded that we do; though, as a teacher of English law, I feel at this point the danger of professional or professorial prejudice. No doubt we are often deeply interested in some law or another. For some weeks our newspapers are full of talk about the law concerning Trade Unions; and then, for some months, we are all discussing an Elementary Education Bill. We become excited about these matters; we make them the issues at General Elections; we use hard words of those who disagree with us; we are ready to argue by the hour; and some of us can argue closely and cogently. Let that be allowed. But turn from laws to Law. Turn from bits of our legal system to the system as a whole. Do we often think of it? Do we often ask ourselves whether it compares well with its neighbours and rivals, whether it is in all respects rational, coherent, modern, worthy of our country and our century? I fear that we do not.
That answer, you may say, betrays the academic mind; and I may be told that we English are a practical race. But bold propositions concerning national character often seem to me the riskiest of all assertions; and I am not fully convinced that we English are pre-eminently practical. Sometimes it seems to me that a little more practicality would improve us.
Can you remember the time—unfortunately I can—when it was usual and plausible to paint the German as an unpractical, dreamy, sentimental being, looking out with mild blue eyes into a cloud of music and metaphysic and tobacco smoke? Was it not the German who evolved the camel out of the depths of his own inner consciousness, while the Englishman went forth to study the beast in the desert? It is in quite other fashion that we paint our German now. Some of the portraits that we draw of him, like some portraits of John Bull that are drawn in Germany, seem to me scandalously bad: the work of envy, malice, and uncharitableness. There is room for an amendment of manners on both sides of the sea; and not only of manners but of morals. Still I think that we are right in no longer painting our German as unpractical. The practical man is the man who does things. The eminently practical man is the man who does great things. The German has done some great things. Among the great things that he has done is this: he has codified the greater part and the most important part of his law; he has set his legal house in order; he has swept away the rubbish into the dustbin; he has striven to make his legal system rational, coherent, modern, worthy of his country and our century.
The greatest among his exploits is a Civil Code; and about the making of it I propose to say a few words, for I think the story instructive.
First, however, we may observe that there were special reasons why some codification should be desired in Germany. By “special reasons” I mean such as cannot move us in England, though, as a matter of fact, they have at various times come into play in most European countries. From a very remote time England stood out among the European kingdoms as the land which had uniform law, law common to the whole of it. Into the geographical and historical causes of this big fact we need not go. It was being established in the twelfth century, and was secure in the thirteenth. A big fact it was; and it gave us many and great advantages over our neighbours. The thought, however, may occur to us, that what is an advantage at one time may become a disadvantage later on. If there had been half-a-dozen different systems of provincial law in England, should we not have been compelled to abolish them, and put in their stead some uniform system worthy in all respects of modern times? I cannot answer that question. It is too indeterminate; and, very possibly, in the supposed case we might hastily and foolishly have done something of which at our leisure we should have repented. We might, for example, have tried to find our law in the Roman or Byzantine books; and that would, I think, have been a disastrous error. Be that as it may, we may observe that, ever since the sixteenth century, the main force which has made for codification has been a desire for uniform national law. The inconvenience of a state of affairs in which, to use Voltaire’s phrase, you change your law when you change your post-horses, is an inconvenience of a palpable kind, obvious to every plain man. Add to this, that the enlightened despotism of the eighteenth century found its action hampered by discordant provincial laws. Frederic the Great must have a code for Prussia, Maximilian for Bavaria, Maria Theresa for the Austrian dominions. And then, in the nineteenth century, when a nation which had long been torn into fragments once more became united, a single uniform system of law appeared not only as a matter of convenience, but as a symbol and guarantee of the political union that had been achieved. Frenchmen, Italians, Spaniards, Germans—in short, I think, most peoples—have had reasons for code-making such as have not appealed to Englishmen since time immemorial. True it is that, within our island, within Great Britain, we have had, and we still have, two systems of law, the one north, the other south of the Tweed. Still, this has not been enough to bring home to us in an acute form those evils which have plagued our neighbours. I read that in 1845 there were in Silesia—and Silesia is not a very large part of Germany—no less than sixty different schemes of marital property law.
When Germany pulled itself together after 1870, there certainly were reasons enough why Germans should wish to see some large changes made in the field of jurisprudence. Legally, Germany was still a patch-work quilt. Leaving out of account multitudinous minor causes of variation, there were three or four great and flourishing systems, each with its territory. We may notice, by the way, that a large, wealthy, and populous part of Germany—I am not speaking of the two provinces which had recently been taken from France—was still ruled by French law. About fourteen per cent. of the German nation lived under the untranslated French code; and the Badeners lived under a translated and slightly modified version thereof. A Frenchman might say: “Napoleon’s legions may be expelled; but where his code has once been introduced, there it stays.” The German was not able to contradict him, and sometimes would frankly admit that, of all the systems obtaining in the Fatherland, the French was in some respects the most enlightened. No doubt too it was felt that a great code of laws would be, in the eyes of the world, a sign and token that the disruptive forces were for ever vanquished, and that the union of Germany was an accomplished and irreversible fact. We shall think none the worse of a law-book because some national pride, even perhaps some national vanity, went to its making. If we needs must swagger, there are worse things to boast of than a code which we say is the best that has yet been made.
However, you must not suppose that the task was easy. If German civil law was to be unified, there would of necessity be much interference with established rules. Men of business and others become attached to the rules under which they live. They may allow that those rules are not the best; and yet they will deprecate interference. You call on them to make some sacrifice, to change their usages, to go to school once more. Then, so soon as there is talk of a code, all the people who have projects of social regeneration will be let loose. Everyone of them will think that the hour for his pet scheme has struck. As to the lawyers, the fact that several different systems were actually in force was not likely to diminish the opposition that was to be expected in this quarter so soon as any project of a code was published. Moreover, the past history of Germany had, for reasons into which we cannot go, made German jurisprudence a highly controversial science. In England, the would-be codifier, if he existed, would not have to take a side in the quarrels of rival schools. But in Germany there were rival schools, with dogmas and watch-words—schools somewhat given to belabouring each other in books and pamphlets. Lastly, German lawyers were, I think, fully persuaded that a hasty and slip-shod code would be far worse than no code at all. If there was a country in which the danger of premature codification had been persuasively preached, and the short-comings of the Prussian Code and the French Code had been eloquently denounced, that country was Germany. That however was, in reality, a hopeful factor in the situation.
Now let us see what was done. In 1874 a Commission of eleven distinguished lawyers was appointed to prepare a project. They took thirteen years and more over the work. It was published in 1888, together with five vast volumes of “motives,” giving the why and wherefore for all that was proposed. What then happened is, I think, well worthy of notice; for it shows that a nation can become profoundly interested in its legal system. A tornado broke loose. It rained, it poured books and pamphlets. At that time, I made a habit of looking through a weekly list of books published in Germany; and it struck me that no German could find anything to write about except this embryonic code. The project was criticised from every point of view; and, though the lawyers may have been keenest in the fray, they were by no means the only combatants. The whole nation seemed to convert itself into a large debating society, in which, however, everybody spoke at once. The general result of the debate was unfavourable to the draft. It was condemned as too abstract, pedantic, “doctrinaire,” too Roman and too un-German; and, besides all this, countless objections were taken to particular provisions. One might have thought that the whole scheme would perish. But the Germans are a persevering people. So a second Commission was appointed: this time a commission of twenty-two; and upon it, not merely legal science and legal practice, but commerce and industry and agriculture and other great interests were well represented. The Commissioners took up the draft, revised it, and made large and important changes; indeed they turned much of it inside out. They published their project—the Second Project—in parts; so that the public criticism of their performances went on while they laboured. They were at work for four years; and, profiting by criticism, they issued a second edition of this Second Project. This Second Project gave much greater satisfaction than the First. Then the Federal Council, which, as you know, represents the various federated governments, took up the draft, and in January 1896 laid the Third Project before the Reichstag.
What then happened gives us, so I think, good cause to admire—perhaps to envy—our neighbours, and also good cause to think hopefully of parliamentary institutions. Between January and July, 1896, a parliamentary assembly, roughly comparable to our House of Commons, passed a code of 2385 sections. Now of course we shall not think of Germany as a country without political parties. Party spirit runs high there; and I should suppose that the lines which divide the various groups are, to say the least, as deep as any that we see in England. Moreover, the organised political groups are more numerous than our English parties. A very little obstruction, a very little obstructive coalition between the various groups, would have killed the projected code. And do not suppose that a civil code merely settles legal details: those small rules which will interest none but lawyers. This draft, this Bill, dealt with the most vitally important of all human affairs. Think, for example, of marriage and divorce, and all that we indicate when we speak of the law of husband and wife. Take one out of a thousand questions: one that gave rise to a close division in the Reichstag. The hopeless insanity of one of the parties to a marriage, ought it to be a cause for a divorce? Every one can, most people will, give you an answer to that question; and some will give it passionately. The settlement of that question will not be made any easier by the fact that the different systems current in the country have contradicted each other at this point. Compulsory civil marriage had already been enacted in the days of the Kulturkampf. But it was to be re-enacted in the code; and, to speak mildly, it was profoundly distasteful to a powerful party, the Catholic Centre. To take another instance, a vast question, concerning the terms upon which the advantage of corporateness could be acquired by societies of divers sorts and kinds, was opened; and, as you might suppose, the different political parties held very different opinions about this matter, “the liberty of association.” Then there were the Socialists—such Socialists as we hardly know in England—and the code was, in their eyes, a statement of those individualistic, “capitalistic,” and “bourgeois” principles, which are for them the hateful thing. But there was no obstruction; there was wonderful forbearance. The draft was laid before a committee of twenty-one, on which all political parties were represented, and a considerable number of changes were made in it; but the utmost care was taken not to damage the artistic character of the work. The amendments moved in the full House were by no means numerous. Just a few questions of the utmost importance were raised and debated—very well debated, I should say. Every now and again some group would declare that if one of its demands was not satisfied, it would think about wrecking the code; but there was no wrecking, and there was much self-restraint. If you read the proceedings, you may be amused at finding that the briskest of all the debates took place over the two little words “and hares” in a section relating to damage done by wild animals. Powerful language is used; and, for a moment, the whole of this mighty project seems to be endangered by the conflicting interests of sport and agriculture. That is the touch of humour required as a relief for so much civic virtue.
Civic virtue, that is what we may see in these debates; and especially do I admire what is said by some of the Socialists:—“Put your ‘bourgeois’ law in shape, in the best possible shape; we will not try to prevent you; incidentally we shall strive for and we shall obtain some not unimportant concessions; and at any rate, when your code is made, all will see what your ‘bourgeois’ system really is.” The jealousy which will not let “the other fellows” get the credit of doing things, or which seeks to spoil the detail of their measures—this civic or uncivic vice I cannot detect, though I fear that it is not unknown in parliamentary assemblies. Also I think it well worthy of remark, that there was no departure of any great moment from the ordinary procedure of parliamentary assemblies. Every member of the Reichstag was free to propose any number of amendments; and, if I remember rightly, no debate was closured.
So the Reichstag did its work in six months. The code was sanctioned by the Federal Council; and then it was published as law on August 24, 1896. It came into force on January 1, 1900, at what some people thought to be the beginning of a new century. Altogether, men were hard at work upon it from 1874 to 1896: that is, for more than twenty years; and, during the last eight years, a project had been lying before the nation and exciting the keenest debates—debates not less thorough or less effectual because they were not carried on within the four walls of a chamber. Never, I should think, has so much first-rate brain power been put into an act of legislation; and never, I should think, has a nation so thoroughly said its say about its system of law. Yet there was less talk in the Reichstag over a Civil Code of 2385 sections, than there will be talk in Parliament over this Education Bill.
Well, I do not know how this strikes you; but it strikes me as a great achievement, and as a just cause for national pride. Germans feel it to be that; and I do not think that they are wrong. Their new code is being admired in many parts of the world; and, assuredly, it will exercise a powerful influence far outside the boundaries of the Empire. It is being carefully studied in France, and wins high praise from French lawyers who have no predilection for Germany. Frenchmen cannot but feel that their own Civil Code, which, for all its hastiness and other defects, has had a splendid history, is becoming antiquated, and is no longer that light to lighten the nations that it was for nearly a century. Also I notice that one nation, an enterprising nation in the far East, has already been fetching its civil law from Germany. The Japanese have, I think, shown us that they know what and where to borrow. They also have been making a Civil Code. It is a highly interesting piece of work. It preserves a great deal of genuinely Japanese matter, especially in that part of it which concerns the family. But much has been taken from Europe; and most of what has so been taken bears on its face the legend “made in Germany.” That is an act of homage of which German lawyers may well be proud. I sadly fear that our Japanese friends are not likely to regard our English system as a model of lucidity and technical excellence.
But it is not of technical excellence that I would speak; nor will we plunge into the old question touching the relative merits of codified and uncodified law. What strikes me forcibly is this: that our German neighbours have brought their law up to date, and are facing modern times with modern ideas, modern machinery, modern weapons. I ought to interject the remark that the Civil Code, of which I have been speaking, is by no means their only exploit; they have a Commercial Code also, and a Criminal Code. Now, of course, a great deal of the law that is to be found in these books is, in one sense, by no means new. Take any rule that stands there. Perhaps you will find that it has a long history, reaching back to the golden age of Roman jurisprudence or to the customs of medieval Germany. But all this stuff, wheresoever obtained, has recently been passed through modern minds, has been debated, criticised, refined; and an endeavour has been made to present it as a single, coherent, homogeneous whole. Could anything of the same sort be said of us? Are we facing modern times with modern ideas, modern machinery, modern weapons? I wish that I could think so. Some of our ideas seem to be antiquated; some of our machinery seems to me cumbrous and rusty; some of our weapons I would liken to blunderbusses, apt to go off at the wrong end.
No Englishman is likely to admire all things German. Certainly I do not. In some important respects I think that we—that “we” must include our American cousins—are still leading the world; and at many other points there is much to be said for the course that we take, though no one else may be ready to take it. But there are some departments—large departments—of English law which seem to me thoroughly discreditable to us. I would mention in particular a great deal of what we call the Law of Real Property. It seems to me to be full of rules which no one would enact nowadays unless he were in a lunatic asylum. And surely that should be the test. Would you enact that rule nowadays? Can you conceive that any sane man would enact that rule nowadays?
To say that a rule is historically interesting is not to the point. For myself, I happen to think that legal history is a fascinating matter for study. It is pleasant, and I even believe that it is profitable, to trace the origin of legal rules in the social and economic condition of a by-gone age. But any one who really possesses what has been called the historic sense must, so it seems to me, dislike to see a rule or an idea unfitly surviving in a changed environment. An anachronism should offend not only his reason, but his taste. Roman Law was all very well at Rome; medieval law in the Middle Age. But the modern man in a toga, or a coat of mail, or a chasuble, is not only uncomfortable but unlovely. The Germans have been deeply interested in legal history; they were the pioneers; they were the masters. That has not prevented them from bringing their own law up to date. Rather I should say that it encouraged them to believe that every age should be the mistress of its own law.
We in England are not within a measurable distance of a Civil Code. There is much to be done first; and I cannot honestly say that our legislators seem inclined to do it, or even to be aware that it wants doing. I wish that Parliament could be persuaded to place itself for a while in the humble position of a teacher of English law—not for the sake of teachers (they don’t matter) but for the sake of the nation at large. I see our Land Law growing always a heavier burden. Almost yearly Parliament adds something to the weight. Exceptions are piled upon exception; but the old rules are never cleanly abolished. It was not always so. In the ‘thirties of the last century, the days of the Radical Reform, some good destructive work was done; and destructive work is as necessary and as honourable as constructive. One of the primary functions of a legislature is, I conceive, to sweep into the dust-bin the rubbish that inevitably accumulates in the course of legal history. We cannot, I fear, affirm that Parliament adequately performs this scavenger’s task; and, from the very nature of the case, it cannot be performed by the judges. Much they can do in the way of accommodating old law to new wants; but they never can say that the old rule is rubbish and must go to the dust-bin. Yet that is what some one ought to be saying, sternly and effectually. Next year there will be more new Acts to read; but still we shall be expounding medieval doctrine, and a thrice accursed statute of Henry VIII. We drag an ever lengthening chain. Parliament, it is true, goes about with its spud, digging up a plantain here and a plantain there. But it never drops sulphuric acid into the hole; and a little sulphuric acid is what we want. It is not of lack of zeal that we have to complain, nor of lack of knowledge: but there is apparently some lack of imagination. People do not see what I fear is the truth, namely, that our Land Law as a whole is becoming a more intricate labyrinth every year, owing to the improvements that Parliament makes in it. To this we must add, that a great deal of the work that should be done is unattractive to our Parliament men, because it would bring them little applause or none. It is the old tale. If the prophet bade them do some great thing, they would do it; but “Just you clean up this here mess” is the hardest of all commandments. The consequence is, that German Land Law seems to me to be about a century ahead of English Land Law.
Well, I must not weary you longer with this jeremiad. I suppose that we shall, as the phrase goes, “muddle along” somehow, and show our practicality by passing some more of those timid and half-hearted Acts about the transfer of land which are monuments of futility. If ever a catastrophe happens, and our system collapses under its own weight, we may find that by that time our Japanese friends have a code that we can borrow—rational, coherent, modern. However, I hope for better things. The German mess—that also was a bad mess, worse in some respects than our own; and yet, by dint of skill and courage and perseverance, the great work has been accomplished.
A Presidential Address delivered to the Social and Political Education League. Independent Review, August 1906.