Draft of a Hanoverian land law

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The draft of a Hanoverian land law by Friedrich Esaias Pufendorf ( draft of a CODICIS GEROGIANI , abbreviated draft Codicis Georgiani , written at the instigation of the former Mr. Privy Councilor von Behr ) comprises 128 titles, a total of 1570 paragraphs and 25 paragraph additions and comments. The number of paragraphs per title is not constant, rather there are those that only consist of one or two paragraphs, and those with up to 70. In terms of content, matters from all areas of law are touched, whereby the draft is based on the one by Pufendorf in his book " Observationes iuris universi "evaluated findings of the Higher Appeal Court (OAG) Cellebuilds up. A systematic grouping of the titles in books or according to legal material is hardly recognizable.

history

When Pufendorf developed the draft has not been conclusively clarified. In 1819 the work was dated to 1760-1772 in view of the references to sovereign ordinances. In 1888 the period from 1760 to 1762 was given.

The more recent research already concludes from this that the work was completed after the death of the Hanoverian minister von Behr. A comparison with the Observationes iuris universi is also used: the draft cites Observatio No. 36 from the fourth volume of the Observationes right at the beginning in Tit. 69, § 8 . Since the important Calenberger Meierordnung of 1772 has not yet been taken into account, although Tit. 43-46 deal with Meierrecht , the period of origin is said to be between 1770 and 1772. Others arrive at a similar result between 1768 and 1772. In any case, the completion will be relatively certain in 1772.

The reason for the design is also unknown. From the title: "... at the instigation of the former Mr. Privy Councilor von Behr ..." the earlier literature concluded that it was based on an order from Minister von Behr. However, there is no other evidence of an official order. The reason could also have been a private suggestion from Behrs. More recent voices in research draw on an exchange of letters between Pufendorf and the President of the OAG Celle Lenthe, who represented von Behr in London. There is talk of the draft. Since Pufendorf is otherwise silent about the design itself in his autobiography, it can be assumed that an official, but secret, order was the basis.

Overall, therefore, we cannot speak of a systematically constructed draft law. The incompleteness of the draft also does not give the impression of a codification . Pufendorf's methodological approach is different: only controversial legal questions should be decided based on the case law of the OAG Celle in order to overcome the incongruity between continuing common law and German reality. The existing rights in the country should not be removed in favor of a new law, but the goal is, in the words of the promulgation certificate , only "to determine the uncertainty (...) more precisely, as it (...) seemed to require" . Tit. I, § 1, Clause 2 repeats this program by allowing Pufendorf the King to limit himself to "deciding on doubts made known by this (...) law book (...)".

In any case, at first glance, the draft can be assigned to the so-called controversial legislation . Only the regulations of general criminal law seem like a codification. However, this is due to the fact that in this area the greatest uncertainties and therefore from the methodological point of view of controversial legislation the need for regulation was greatest. At this point, there is only the impression of a codification, without any underlying claim.

A first partial publication of the draft dates from 1791, but only Tit. 31, 33-40, 42 dealing with fiefdom law were printed. In 1819 the table of contents was printed. In the following, only general information about the existence of the draft was given with regard to the latter. So the draft never became legally binding. The reason for this is still unclear. It can only be assumed that this is due to the resistance of all reform efforts of George III. is due to skeptical Hanoverian estates .

literature

  • André Depping: Friedrich Esaias von Pufendorf in: Lower Saxony lawyers . ed. by Joachim Rückert and Jürgen Vortmann, Göttingen 2003, pp. 59–63.
  • Wilhelm Ebel : Problems of German legal history . Göttingen 1978.
  • Wilhelm Ebel: "Friedrich Esaias Pufendorf's draft of a Hanoverian land law" in: 250 Years OLG Celle 1711-1961, Celle 1961, pp. 63–87
  • Wilhelm Ebel (Ed.): Friedrich Esaias Pufendorf's draft of a Hanoverian land law (from 1772) . Hildesheim 1970.
  • Ferdinand Frensdorff:  Pufendorf, Friedrich Esaias . In: Allgemeine Deutsche Biographie (ADB). Volume 26, Duncker & Humblot, Leipzig 1888, pp. 699-701.
  • Thomas Krause: Pufendorf, Friedrich Esajas from in: Concise dictionary for German legal history . ed. by Adalbert Erler and Ekkehard Kaufmann, Volume 4, Berlin 1990, Col. 102-105
  • Joachim Rückert : Legal history in Lower Saxony - an introduction to: Lower Saxony lawyers . ed. by Joachim Rückert and Jürgen Vortmann, Göttingen 2003, pp. XVII-XXIV
  • Ernst Spangenberg: About the immortalized Vice President von Pufendorf (1707-1785) Draft of a Codex Georgianus in: Vaterländisches Archiv 1819 . Pp. 209-233