General land law for the Prussian states

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Spatial area of ​​application (pink) at the end of the 19th century

The General Land Law for the Prussian States ( PrALR ) was a late absolutist natural law codification for the State of Prussia , which was enacted in 1794 under Frederick the Great and Frederick William II .

In most parts of Prussia it was in effect until the Penal Code for the Prussian States of 1851 came into force ; The exceptions included above all the areas on the left bank of the Rhine with so-called Rhenish law , which only became Prussian after the Congress of Vienna in 1815 and where the Code pénal of 1810 was in effect until 1870 and the Code civil of 1804 until 1900 . In the area of ​​criminal law, Prussian law was ultimately replaced by the StGB, which came into force on January 1, 1872, and in the area of ​​civil law with the BGB, which came into force on January 1, 1900 .

The Prussian general land law was the first and to this day only modern attempt at a comprehensive and coherent codification of civil law , criminal law and large parts of public law in a single code.

History of origin

Samuel von Cocceji , Project des Corporis Juris Fridericiani , 1752

The roots of the PrALR go back to the fundamental considerations of Frederick I to create a uniform law. However, only Frederick the Great commissioned a fundamental codification ; The idea was that Grand Chancellor Samuel von Cocceji would implement the order. His attempt to create the so-called Project of a Corporis Juris Fridericiani (1749/1751) was unsuccessful. The attempt to create a holistic codification across all areas of law was nothing new, as Samuel von Pufendorf had already drafted a comprehensive system based on a similar system some 90 years earlier, De iure naturae et gentium libri octo.

Just like his predecessor, Frederick the Great also endeavored to create clear and unambiguous law. Lasting impression he appeared on the course of through him legendary become Müller-Arnold-case , so he took it as an opportunity for a comprehensive judicial and legal reform. It was particularly important to him to limit the power of lawyers by wording the law as precisely as possible. This was achieved through numerous detailed and individual regulations and through a clear rejection of any legal prejudice effect :

"In future decisions, no consideration should be given to the opinions of law teachers or older sayings of the judges."

- § 6 of the introduction to the PrALR

In order to fill legal gaps remained an only very limited judicial competence, the law takes precedence , however, was fixed in a variety of legal regulations. Friedrich also had a ban on commenting ( ban on analogy ) with the aim of ending the prevailing abuse of law by lawyers. It was only allowed to interpret in the literal sense of the word. In case of doubt, a specially set up law commission was consulted, but this had to be abolished again, as the frequent inquiries paralyzed the jurisprudence. The PrALR should also make the law "readable" for everyone in an understandable form. It was given the character of an enlightenment law. The ambitious project was unable to maintain its claim to represent a comprehensive codification of applicable law for long.

With a cabinet order of April 14, 1780, Grand Chancellor Johann Heinrich von Carmer was entrusted with the drafting, who, according to the will of the king, entrusted the work on the law to several people. The work of Carl Gottlieb Svarez (civil law) and Ernst Ferdinand Klein (criminal law) was significantly reflected in the draft.

The PrALR was first completed in 1792 as the “General Code for the Prussian States” (AGB). Under the impression of the events of the French Revolution , another revision took place, in which the reactionary and conservative elites in Prussia were able to enforce their concerns about the basic freedom tendency of the law: Many liberal and rational law provisions were removed or restricted, such as welfare as a state purpose . As a result, the law only came into force on June 1, 1794 under Friedrich Wilhelm II's successor . It was developed by the legal scholars Carl Gottlieb Svarez and Ernst Ferdinand Klein under the direction of the Prussian Grand Chancellor Johann Heinrich von Carmer .

scope

The PrALR replaced various subsidiary legal sources such as Roman law and Saxony law . It was only applicable on a subsidiary basis, i.e. In other words, it was only used when local legal sources did not provide their own regulations. The code was therefore unable to create a nationwide uniform legal effect. There had to be a lack of traditional legal sources in the parts of the country so that it could have an effect. This applied in particular to the formerly Polish provinces, with the exception of the cities, which often had their own legal sources. In the Rhine Province , which only became Prussian after the Congress of Vienna in 1815 , the PrALR was not valid, but the Germanized Code civil , which was very popular in the liberal bourgeoisie due to its fundamental freedom ideas such as equality of people before the law, freedom of property, contract and testamentary freedom, and jury courts pleased.

content

The PrALR regulated, as far as it was intended at that time, all areas of the law, general civil law , family and inheritance law , feudal law , estates law , municipal law , constitutional law , canon law , police law , criminal law and penal law , this in over 19,000 regulations. Every conceivable case should be precisely regulated. What is particularly noticeable is the extensive form requirement ( written form requirements ) for legal transactions (ALR I 5 §§ 109-184).

In terms of content, civil law was essentially shaped by Roman law, but designed according to a natural law system. The corporate law was retained, but from a social point of view, for example, the reversal of the principle “purchase breaks rent” still applicable in the usus modernus pandectarum meant an improvement in the supply situation. In this respect, the tenant regained a legal status that was already due to him in the old German law , the design as a right in rem . The right to bear the risk of purchase has also been modernized . The principle of paternal power , which is of paramount importance in Roman law , was adapted to current customs and significantly shortened to the effect that the guardianship courts were now allowed to intervene in disputes over parental questions of upbringing. Forced marriages were banned entirely. Divorce law, on the other hand, has been relaxed.

In criminal law, the principle of imprisonment was introduced and subsequently used extensively. Beatings and penitentiary sentences remained. Other corporal punishments, such as mutilation, blinding or branding, have been abolished. Death penalties were retained, including medieval wheels , beheading , gallows death and the stake . The Codex Iuris Bavarici Criminalis , which appeared in the middle of the 18th century, was countered, contrary to the much more modern versions of the civil (trial) law, that it did not contain any traits of contemporary enlightenment . With some reservations, this also applied to the Prussian legislation.

Appreciation

In terms of legal policy, the introduction of the PrALR was a step into the modern age, although it was clear that the feudal order of estates had fallen out of time in the 19th century and increasingly had a slowing effect on economic development in the country (see peasant liberation and serfdom ). The fact that enlightened natural law now took precedence over Roman law was celebrated as progress . Principles that are now recognized as self-evident, such as the principle of legality , gained political significance and what was new was that the state had to prove its right to intervene vis-à-vis the citizen.

The draft of the PrALR thus reflected a changed understanding of the state and law. In terms of state organization, however, the law did not intend to restrict the monarchy constitutionally; it was merely intended to make a commitment to self-restraint. This should not apply to the king insofar as he did not have any restrictions in the codification despite the Müller-Arnold case. The codification no longer contained the prohibition of the king's power rulings with the aim of setting limits to legal arbitrariness.

The rights of the nobility were also further consolidated and the existing social order with compulsory guilds was retained. In this way, the PrALR preserved existing assets in economic life and slowed down the development of a bourgeois state.

Modern effect

In today's law, the general land law, especially because of the extensive private law codification of the civil code (BGB), hardly plays a role. Under state law, only individual regulations continue to apply to this day. For example, the district court of Neubrandenburg ruled in 2011 that the neighboring law provisions of the general land law are still applicable in parts of Pomerania.

However, codifications of land law still have significance via Sections 74 and 75 of the introduction to the PrALR. They are used as nationwide applicable customary law in their richter law used expressions. The regulations contain the idea of ​​self-sacrifice and enable a claim for compensation against the state

  • lawful sovereign interference in property that leads to a particular burden ( expropriating interference );
  • unlawful sovereign encroachment on property ( encroachment equivalent to expropriation );
  • sovereign interference in other legal positions protected by fundamental rights (life, health, physical integrity and freedom), which lead to a particular burden and provided there are no special legal regulations.

"Individual rights and advantages of the members of the state must be subordinate to the rights and obligations to promote the common good if a real contradiction (collision) occurs between the two."

- § 74 Introduction PrALR

"On the other hand, the state is obliged to compensate those who are compelled to sacrifice their special rights and advantages for the good of the common being."

- § 75 Introduction PrALR

See also

literature

  • General land law for the Prussian states. From 1794. [2. Edition. Decker, Berlin 1794, 2 parts and registers in 3 volumes] With an introduction by Hans Hattenhauer and a bibliography by Günther Bernert. 3rd, expanded edition. Luchterhand, Neuwied u. a. 1996, ISBN 3-472-02596-4 .
  • Matthias Albrecht: The method of the Prussian judges in the application of the Prussian general land law of 1794. A study on the concept of law and the application of law in late natural law (= writings on the Prussian legal history , volume 2). Lang, Frankfurt am Main a. a. 2005, ISBN 3-631-52620-2 (also: Kiel, Univ., Diss., 2004).
  • Gerhard Deter: The Prussian general land law in the province of Westphalia - reception and effect . In: Karl Teppe, Michael Epkenhans (eds.): Westphalia and Prussia. Integration and regionalism . Paderborn 1991, pp. 82-97.
  • Ulrich Eisenhardt : German legal history. 5th, revised edition. Beck, Munich 2008, ISBN 978-3-406-58090-1 , p. 201 ff.
  • Elmar Geus: murderers, thieves, robbers. Historical consideration of German criminal law from the Carolina to the Reich Criminal Code (= spectrum cultural studies. Vol. 6). Scrîpvaz-Verlag Krauskopf, Berlin 2002, ISBN 3-931278-14-X (Simultaneously: Frankfurt (Oder), Europa-Univ., Diss., 2001: Criminal law reforms from the Carolina to the Reich Criminal Code ).
  • Iselin Gundermann , Ralf Karsten Jürgensen: General land law for the Prussian states 1794. Exhibition of the secret state archive of Prussian cultural property . v. Hase and Koehler, Mainz 1994, ISBN 3-7758-1315-2 .
  • Reinhart Koselleck : Prussia between reform and revolution. General land law, administration and social movement from 1791–1848 (= Industrial World. Vol. 7). Special edition. Klett-Cotta, Stuttgart 1987, ISBN 3-608-95483-X .
  • Andreas Schwennicke: The origin of the introduction of the Prussian General Land Law from 1794 (= studies on European legal history , volume 61). Klostermann, Frankfurt am Main 1993, ISBN 3-465-02585-7 (also: Munich, Univ., Diss., 1993).

Web links

Individual evidence

  1. ↑ For the usual abbreviation PrALR, see the information in the Juraforum and in the list of abbreviations from Verlag CHBeck .
  2. ↑ Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . P. 415 f.
  3. ^ Samuel von Pufendorf : De iure naturae et gentium libri octo. 1672, German: Eight books on nature and Völcker rights / with the… Johann Nicolai Hertii , Johann Barbeyrac u. a. highly learned men unreadable note. u. into the German language. Bone, Franckfurt aM 1711. (Reprint: Olms, Hildesheim 2001) urn : nbn: de: hbz: 061: 1-5824 at the University and State Library Düsseldorf .
  4. ↑ Helmut Coing : European Private Law , Vol. 2: 1800–1914, Munich 1989. P. 11.
  5. ↑ Mehrdad Payandeh : Judicial Generation of Law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 . P. 75.
  6. ↑ § 46 (literal interpretation) and § 60 (creation / repeal of statutory law) of the introduction to the ALR.
  7. ^ Hans Hermann Seiler : Past and present in civil law , Heymanns, Cologne 2005, ISBN 978-3-452-25387-3 , pp. 307-312 (311).
  8. ^ Franz Wieacker : History of private law in the modern era with special consideration of German developments. Vandenhoeck u. Ruprecht, Göttingen 1952, further ed. 1967, 1996, 2016. S. 329 ff.
  9. ↑ Ernst Ferdinand Klein : System des Prussischen Civilrechts , Halle 1801, § 409, p. 215; Wilhelm Bornemann : Systematic Presentation of Prussian Civil Law , Volume III, Berlin 1835, § 246, p. 400 ff., 432; Volume II, 3rd edition, Berlin 1858, § 655, p. 380 f.
  10. ↑ Götz Landwehr: The protection of trust of the third party with the chosen representation . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, p. 221 f.
  11. ↑ District Court Neubrandenburg, judgment of September 15, 2011, Az. 1 S 100/10 final, hereinafter BGH, decision of April 23, 2012, Az. V ZR 223/11, full text .
  12. ↑ Hartmut Maurer : General administrative law. 17th, revised and supplemented edition. CH Beck, Munich 2009, ISBN 978-3-406-57100-8 , § 27 paragraphs 87 ff., 106, 107 ff.
  13. ↑ Text based on: Peter Bassenge . In: Palandt : Bürgerliches Gesetzbuch. With subsidiary laws (= Beck's short comments. Vol. 7). 69th, revised edition. CH Beck, Munich 2010, ISBN 978-3-406-59488-5 , overview before Section 903, paragraph 48.