common law

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Customary law is unwritten law that does not come about through legislation , but is based on the long-term application of legal ideas and rules that those involved in legal dealings accept as binding. The highest court rulings and the literature recognize customary law as having equal rights with laws .

The main fields of application can be found in connection with civil and commercial law, traffic and trade customs, as well as matters that are not explicitly regulated in legal texts, such as the German coat of arms law and the right of everyone . Customary law also plays an important role in international law .

Customary law that is limited in the user group - for example, customary law based on an exercise in a club - is called observance .

Customary law in general legal sources

term

According to the definition of the Federal Constitutional Court , customary law does not arise through a formal legislative process, but rather through lengthy actual practice. This must work continuously and constantly, and it must be uniform and general (longa consuetudo) . Customary law is bindingly recognized among the legal comrades involved (opinio iuris) .

The declaration of the Federal Court of Justice sounds similar, which recognizes that customary law is a long-term practice that is borne by the legal conviction or the legal will of the relevant public.

The formulations of the legal literature do not differ significantly either. Customary law arises from a longer, even exercise and conviction of those involved in the processes, who assume that this exercise is not arbitrary or non-binding, but is legally required (opinionio necessitatis) , thus manifested as the legal will of a community or its organs.

Customary law is not derived from written law, rather it is based on legal tradition that creates binding force. The legal tradition includes institutes and standards, the cause of which is unknown, but whose legal validity was never in doubt. If there is no legally binding effect, it is a matter of mere habit that alone does not create law. Legally formed customary law is basically the same as written law, unless the legal system expressly requires written regulation.

Customary law is part of the general legal system, which is composed of natural law and customary law components, but primarily of written law. Unwritten customary law differs from positive law set in writing insofar as it is not enacted by state organs ( legislature , sometimes also executive ) within the framework of standard-setting procedures. Nonetheless, customary law is often also discussed as positive law in specialist circles, but then shares the idea of ​​pre- and extra-state law with natural law. At the same time, the idea of ​​the constitutional fathers that customary law should be recognized as a “historical phenomenon”, which is why there is no need for action to rule on it with state authority, is also implied.

Relationship to statutory law

Customary law is recognized in many legal systems as an independent source of law alongside the formal law , so it has the same binding effect. The pandectistic- oriented historical school of law , which stands in the tradition of the received Roman law , had done the development work for such an interpretation . The required binding effect even has the consequence that customary law can develop not only praeter legem , but also contra legem and must be taken into account. Secundum legem encounters customary law in a solidified interpretation of indefinite legal terms as a customary interpretation (interpretation of a legal provision through customary law). Due to the equality of formal statutory law and customary law, the rule Lex posterior derogat legi priori can also be applied.

In Roman law, the law of law ( lex ) and the "father's custom" ( mos maiorum ) stood side by side for a long time within the framework of ius civile . The leges took over the dominant position later, although the authorizations changed (compare in this respect: plebiscites , Senatus consulte ).

The legal systems of the Federal Republic of Germany also contain customary law. It is of great importance in international law . In international criminal law , the prohibition of customary law establishing a criminal offense does not apply so strictly.

Relationship to judicial law

According to the prevailing view, customary law also deserves a differentiation from so-called judges' law , which is a creation of the more recent methods and legal sources . In the 19th century, the pandectists still called the law judicial use . The use of the court did not necessarily signify permanent jurisprudence, it was often only used in the inner circles of a court, but it nevertheless had features of a certain continuity. The concept of judicial law, on the other hand, today does not consider the characteristics of the constancy of a case law, but rather it stands for special, practical deviations from statutory law, i.e. from already applicable law. In his judgment, the judge thinks beyond the positive legal provision because he forms commandments from an evaluative point of view. New law in the true sense is not created.

Recently, a smooth transition from individual legal decisions (judges' law) to the permanent jurisdiction of the highest courts, which represent a legal opinion on a permanent basis, to customary law has been accepted. This consideration is based on the assumption that prejudices , i.e. preliminary decisions of the highest courts that point the way, will become generally binding over time. A clear distinction between judge law and customary law still remains: While with judge law the jurisprudence remains entitled to change judicial decisions and further developments at any time due to better insight, only the legislature (the legislature) can use customary law, which has equal rights with written law. feature. Accordingly, the constant case law of the highest courts is not about the formation of customary law. For the problem of customary law, however, judges' law is only relevant if the judgment at issue does not only express individual-case-related requirements, but rather sets standards that claim to be normative with the claim of general validity beyond the individual case to be decided. Increased interest in the theory of legal sources resolves the general validity claim, whether it is expressly or implicitly formulated is an open question if it is comparable to that of the law.

From a legal sociological point of view, it is argued against a distinction between customary and judicial law that it is the judges who decide on the validity of customary law and that customary law is therefore ultimately “legal law” ( Max Weber ).

Common law in secular legal systems

Customary law in the Federal Republic of Germany

Validity as a legal source

In the federal German legal system, rules based on customary law are generally recognized. There is no adequate binding postulate for customary law in the constitution. From Art. 20, Paragraph 3 and Art. 97, Paragraph 1 of the Basic Law it can only be read that the courts are bound by the “laws”. With the inclusion of Art. 76 ff. GG, this in turn means that a proper standard-setting procedure is required in which the formal laws are created. In this respect, the Basic Law would not make a statement about the validity of customary law and it would be questionable whether it would be bound by law. The prevailing opinion, however, pulls the circles of interpretation further and binds executive power and jurisdiction to “law and justice” also in the reading for “customary law”. The inclusion of customary law in Article 20.3 of the Basic Law is justified in different ways: on the one hand, the wording is assessed as an “all-encompassing formulation” that does not allow any other conclusion, and on the other hand, customary law corresponds to an “ancient German constitutional tradition” established by the Basic Law just hadn't been questioned. Even in the reflexion on the historical starting situation, which relied on the continuity of the valid legal theory, no other result could result.

For civil law , Art. 2 EGBGB has been used on various occasions in order to establish a binding to formal laws indirectly to laws in the material sense and also to customary law, because the formal laws ordered such a binding. Its wording states: “Law in the sense of the BGB and this law is every legal norm.” However, using the work of the commission on the BGB, it is predominantly assumed that not “legal norm” per se, but “valid legal norm”, which in turn is not simply valid may have attained, is captured. Initially, a legal recognition of common law was even planned; However, it was rejected and the development of the same was left to the judiciary and the professional groups involved. Although every legal norm is regarded as a law within the meaning of Art. 2 EGBGB, an order of normative validity for customary law is excluded as a result.

Historical digression

The doctrine of customary law was of particular importance in Germany as long as Roman law was considered customary law due to its reception - basically until January 1, 1900. This was due to the fact that the common law that was valid at the time, despite the compilation of the Corpus iuris civilis as a Understood codification-free law. Georg Friedrich Puchta in particular developed the doctrine of customary law scientifically in the 19th century, and with his interpretation he came across Ernst Zitelmann's fundamental criticism , which is still considerable today . The starting point of the legal understanding of the historical school was a formulation made by Friedrich Carl von Savigny . According to this, the law arises "first through custom and popular belief, then through jurisprudence ...". Law thus arises from internal forces working in silence and not from the arbitrary act of a legislator. When Savigny also refers to the people's spirit as the seat of the creation of law and thus to the “people in the natural sense”, he wants to delimit it from the political constitutional community, which follows the legal concept of the Enlightenment , the right of reason . Customary law was recognized as a right in the historical school because ultimately all law, including positive statutory law, found its founding act in the customary law formula. Customary law thus has a normative effect in and of itself. This normatively binding status is achieved by customary law through state recognition, if necessary permission. Provisions for the recognition of customary law can be set by express positive legal norms, in the absence of such, by stating that the legislature did not want to regulate a prohibition of customary law, i.e. has deliberately omitted, which is therefore equivalent to a permit.

The customary law doctrine of Savignys and Puchtas followed the jurisprudence of the imperial court established in 1879 . The degree of enforcement in legal practice was high, so that the respectability of customary law was not disputed and was adopted as a natural source of law. As the first all-German court of ordinary jurisdiction, the Reichsgericht built on the previous particular case law of the civil law Higher Appeal Courts (Obertribunale) and the Reich Higher Commercial Court responsible for commercial law .

Subjective and objective elements of common law

Customary law, which seeks to be perpetuated, requires certainty about its decision-making power in order to have a legitimizing and integrative effect. The prerequisites for this are the conviction that the law is right and that it is exercised continuously. If there is a breach of the law due to significant changes in the prerequisites, the parliamentary legislature can react and derogate at any time , especially since it is entitled to the irrevocable prerogative of legislation . Building on this knowledge, the question of the special justification of customary law arises, the question of the requirements for its recognition. In this respect, customary law seems to stand in the way of the pursuit of scientific openness in future-oriented law.

According to the prevailing view, the “legal conviction” should be mentioned as a subjective element. It forms the core concept. The customary law norm has to be fair and / or appropriate . A decision that deviates from the “practiced” norm defined in this way must be perceived as unjust or inexpedient so that the practiced norm can form customary law. The extent to which the characteristic of conviction of correctness is considered to be fulfilled via this approach also depends on which ethical starting points are followed for recognition. Some argue that the rules should be ethical; others demand that they must be seen as ethically indispensable. This is a gradation of the effectiveness requirements for the evaluation of human action. Something similar is required for the expediency of the rule and the possibility of narrowing it down. If customary law has its starting point in legal and commercial transactions and has found recognized dissemination, it is usually also appropriate. In the context of individual justice, the Federal Court of Justice grants individual protection of legitimate expectations when the case law changes .

For the objective element, established case law plays a constitutive role. Whether potential customary law is compatible with the legal features of the rest of the legal system on the basis of a review is initially solely the responsibility of the judge to review. By granting the judge an opportunity to assess, the content of the potential customary law and its protection of legitimate expectations will be assessed by him on the basis of considerations of expediency. However, it is required that a permanent, highest court confirmed case law must be available. The developing customary law standard becomes a natural part of legal and commercial transactions, the more intensely the preceding legal discourse took place. Extrajudicial customary law can then even establish itself as binding against the law.

Fields of application

Classic civil law legal figures of customary origin are the transfer of ownership in the current sense according to § 930 BGB or the legal figures of culpa in contrahendo (cic) and positive breach of contract (pVV), which are now legally fixed in the context of the law of obligations reform . In some legal norms reference is made to habits and customs, for example in the commercial law provisions of § 346 HGB or in the scope of action within the framework of good faith in § 242 BGB .

Especially through standardized in Germany, the Administrative Law . But here, too, one encounters still unwritten legal rules, such as the state liability law . The principle of self-sacrifice , the now legally fixed principle of free withdrawal of illegal administrative acts or the official house rules are of customary origin .

In some respects, customary law - which is otherwise completely the same as established law - is given special treatment by the legislature . For example, the criminal liability of acts in Germany cannot be based on customary law, because Article 103, Paragraph 2 of the Basic Law requires that the criminal liability of an act must be determined by law before it is committed ( nulla poena sine lege ). But here, too, there is no stringency, because in the area favoring the perpetrator there have been and still are common law approaches, for example with the grounds of justification . The most prominent example is the teacher's right to chastise , which the Federal Court of Justice still affirmed in its basic features and which only became obsolete after a change in attitude.

Elimination of customary law

For a desuetudo , the elimination of customary law, it is sufficient that the relevant legal circles are no longer convinced that the regulatory material is correct. No lengthy practice of non-use is required.

Observance as a special form of customary law

The quality of common law can also have practices that are cultivated within autonomously constituted bodies . The legal source of observance is spoken of here. The Federal Court of Justice accepts them, for example, for special club exercises , unless these are already covered by common law. The peculiarity of the observance lies in the fact that ideally there is an identity between the constitution giver and the settler of common law. In a certain way, the observance statutes law that supplements the statutes and comes into play, for example, if a club exercise, which the members require to be monitored, is not entered in the club register. In the circle of the members it has the value of a matter of course. However, the observance cannot even break the law of the statutes because it is not registered. In this case, the statutes take precedence as a statutory right. This also distinguishes observance from customary law.

Authority to investigate (§ 293 ZPO)

A court is empowered to determine ex officio the existence and content of customary law § 293 ZPO . This also applies to the revision authority .

Customary law in Austria

In Austria , too , the prerequisite for the emergence of customary law is a long, general and even practice (= application) of certain rules. The exercise must also be based on the conviction that the rules applied are law (opinio iuris) .

In this sense, a number of norms can be proven in Austrian law, for example in inheritance law the application of the principle that the acquirer of a farm must be able to "survive" after the takeover; the right to walk across unfamiliar meadows and fields (only legally stipulated for forests in the Forestry Act), to collect mushrooms and to pick flowers.

Section 10 of the Austrian Civil Code stipulates that habits may only be taken into account in those cases in which a law refers to them. The determination is z. B. on traffichabits( § 914 ABGB refers to the "practice of honest dealings" for the supplementary interpretation of contracts) or commercialcustoms( § 346 UGB : "Among entrepreneurs ... the customs and practices applicable in business transactions must be taken into account.")

From a lesser opinion in Austrian jurisprudence (especially the representatives of Kelsen's “ pure legal theory ” ) it is disputed that there is any customary law in Austria. These representatives justify this with the fact that the Austrian Federal Constitution only regulates the emergence of law by law and this regulation is exhaustive, so that - just as the derivation from the basic norm fails - there is no room for customary law. The prevailing opinion in Austria is that the Federal Constitution only explicitly deals with the creation of law through deliberate lawmaking , but its silence on the question of customary law should not be interpreted as a complete rejection of it. Likewise, § 10 ABGB does not speak against the validity of customary law, but only restricts its scope. Coing speaks of the fact that § 10 ABGB is based on the abolition of customary law as a source of law.

See also: Eritzung

Customary law in Switzerland

For civil law disputes, Art. 1 of the Civil Code names customary law as a subsidiary legal source for questions for which no provision can be found in the law. For criminal matters, Art. 1 of the Criminal Code expressly excludes customary law.

See also for the legal development in Switzerland: Pandektenwissenschaft , historical law school , legal sociology

Common law in other continental European countries

Just like the Swiss Civil Code, the Spanish Art. 6 of the Código Civil only allows customary law as a supplement to statutory law. With the unification of law in France through the Code civil des français du 21 mars 1804 (30 Ventôse an XII), customary law only applied if the Code civil did not contain its own regulation, as did the Italian Codice civile from 1865. All What codifications had in common was that customary law was denied its derogatory power over statutory law. Legal law faced a similar fate .

Common Law in Religious Communities

General

The emergence of common law in religions has repeatedly led to difficulties or particular problems. In particular, it has repeatedly been criticized that “habit” in a founder religion automatically represents an arbitrary falsification of the original revelation . However, it is often countered that ancient ideas have to be adapted to modern circumstances.

Reformers, for example, have accused the Catholic Church of introducing new sacraments, only to then discard in their opinion inauthentic traditions.

The Islamic Sunna (“habitual way of doing things”) and the Jewish Talmud (“instruction, study”) are interpretative further developments of the holy scriptures ( Koran and Torah ). On the question whether the disclosure of which is completed or not is different, the Orthodox from Reform Judaism .

Common law in Catholic canon law

The canon law , the oldest still valid today and distributed worldwide legal system differs in cc. 23–28 Codex Iuris Canonici three types of legally binding customary law: the legal (secundum legem) , the illegal (contra legem) and the non-legal (praeter legem) that fills legal gaps .

literature

  • Ludwig Enneccerus (first), Theodor Kipp , Martin Wolff ; Hans Carl Nipperdey (edit.): Textbook of civil law. A textbook. JCB Mohr (Paul Siebeck), Tübingen 1952-55.
  • Matthias Frühauf: On the legitimation of customary law in civil law with special consideration of judge law. At the same time Diss. Univ. Tübingen 2005, Logos Verlag, Berlin 2006, ISBN 3-8325-1198-9 .
  • Max-Emanuel Geis : Common Law. In: Eric Hilgendorf , Jan C. Joerden (Hrsg.): Handbuch Rechtssphilosophie. Metzler, Stuttgart 2017, pp. 25-29.
  • Milan Kuhli : The International Criminal Code and the prohibition of justifying punishments through customary law. On the question of the admissibility of criminal law references to customary international law with regard to the prohibition of justifying punishments by customary law under Article 103 paragraph 2 of the Basic Law. (Also: Dissertation at the University of Frankfurt am Main, 2008) Berlin 2010, ISBN 978-3-428-13069-6 .
  • Veronika C. Tiefenthaler: Habit and Constitution. (At the same time: Dissertation at the University of Innsbruck, 2011 with the title: Customary law with special consideration of customary constitutional law ) Facultas Verlags- und Buchhandels AG, Vienna 2012, ISBN 978-3-708-90889-2 .

Web links

Wiktionary: Common law  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ See OpinioIuris: longa consuetudo .
  2. ↑ BVerfGE 22, 114 ff. (121) and 28, 21 ff. (28).
  3. ↑ See OpinioIuris: opinio iuris .
  4. ↑ BGHZ 37, 219 ff. (222), but also BGHSt 8, 360 ff. (381).
  5. ↑ a b c Enneccerus / Nipperdey , General Part of Civil Law. A textbook , JCB Mohr (Paul Siebeck), Tübingen 1952-55, p. 264 ff.
  6. ↑ Max Kaser : Roman legal sources and applied legal method. In: Research on Roman Law , Vol. 36, Böhlau, Vienna / Cologne / Graz 1986, ISBN 3-205-05001-0 , pp. 21–33 (23); Examples: Patria potestas (cf. Ulp. , Dig. 1,6,8 pr.) Or the inadmissibility of donations between spouses (today referred to as unnamed donation , cf. Ulp. Dig. 24,1,1).
  7. ↑ Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law, 12th edition, 2011, introduction marginal no. 102.
  8. ^ Matthias Frühauf: On the legitimation of customary law in civil law with special consideration of judge law. Logos Verlag, Berlin 2006, pp. 25 ff. (27).
  9. ↑ Enneccerus / Nipperdey: General part of civil law. A textbook , JCB Mohr (Paul Siebeck), Tübingen 1952-55, p. 271.
  10. ↑ Helmut Köhler : BGB General Part , 28th edition, Munich 2004, p. 4; Karl Larenz in NJW 1951, p. 497.
  11. ↑ Helmut Köhler: BGB General Part , 28th edition, Munich 2004, p. 4.
  12. ↑ Max Kaser: Roman legal sources and applied legal method. In: Research on Roman Law , Vol. 36, Böhlau, 1986, p. 24.
  13. ↑ Bernd Rüthers : Legal theory. Concept, validity and application of the law. Beck, Munich 1999; 10th edition (with Christian Fischer, Axel Birk): Legal theory with legal methodology , Beck, Munich 2018, ISBN 978-3-406-60126-2 , Rn. 235.
  14. ↑ Georg Müller : Content and Forms of Legislation as a Problem of the Democratic Order of Competencies , Basel 1979, p. 101 f.
  15. ↑ Christian Eduard Ziegler: Self-binding of the third power , zugl. Diss. Frankfurt am Main 1993, p. 37.
  16. ↑ Friedrich Müller : Judge Law, Elements of a Constitutional Theory IV , Berlin 1986, p. 20. [However, the author does not speak of the setting of norms, but of normative texts.]
  17. ↑ a b BGH , decision of May 13, 1965 - Ia ZB 27/64 - NJW 1965, p. 1862.
  18. ↑ So u. a. Kühl / Reichold / Ronellenfitsch: Introduction to Law. Beck, Munich 2011, § 6 Rn. 18 mwN
  19. ↑ BVerfGE 22, 114 (121); 28, 21 (28 f.); 34, 293 (303 f.); 57, 121 (134 f.); 61, 149 (203 f.); Klaus Stern , Staatsrecht , Vol. I, p. 109 f .; ders., Vol. II, p. 579 f .; Axel Hopfauf, in: Schmidt-Bleibtreu / Hofmann / Hopfauf : Commentary on the Basic Law , 12th edition 2011, introduction marginal no. 102.
  20. ↑ The view that customary law also falls under Art. 97 GG is represented in particular by Claus Dieter Classen in Mangold / Klein : Commentary on the Basic Law: GG , Art. 97 Rn. 11; Fritz Ossenbühl in: Isensee / Kirchhof (Hrsg.): Handbuch des Staatsrechts der Federal Republic of Germany , Vol. III, § 61 Rn. 15th
  21. ↑ Manfred Bertelmann: The ratio decidendi between the application of the law and the formation of legal sentences based on the case law of the highest court , Bonn 1975, p. 40
  22. ^ Matthias Frühauf: On the legitimation of customary law in civil law with special consideration of judge law. Logos Verlag, Berlin 2006, p. 16 ff. (17).
  23. ↑ Karl-Peter Sommermann in Mangold / Klein: Commentary on the Basic Law: GG , Art. 20 Para. 3, Rn. 255.
  24. ↑ Norbert Kortgen: Problems of customary law , also Diss. Frankfurt am Main 1993, p. 194 f.
  25. ↑ Roman Herzog in Maunz-Dürig , Basic Law , Art. 20, Section VI, Rn. 49, 52.
  26. ↑ Cf. in this respect the argumentation of Hans Jürgen Sonnenberger : Verkehrssitten im Schuldvertrag (=  Münchener Universitätsschriften 12), Beck, Munich 1970, ISBN 3-406-02902-7 , p. 283; Detlef Merten : The judge's binding to the law and the constitution , in: DVBl. 1975, p. 677 ff .; Heinrich Lehmann / Heinz Hübner : General Part of the Civil Code , 2nd edition, Berlin / New York 1996, p. 14.
  27. ↑ Roman Herzog: in Maunz-Dürig, Basic Law, Art. 97 GG, Rn. 20th
  28. ↑ See the materials for the 2nd draft (so-called protocols) Prot. I = Volume I: General part and law of obligations. Section I, Section II Tit. I, Berlin 1897. Digitized via archive.org from Benno Mugdan (Ed.): The entire material on the Civil Code for the German Empire. 6 volumes, R. v. Decker's Verlag, Berlin 1899. Digitized volumes 1–6 via Düsseldorf University and State Library.
  29. ↑ Ernst Zitelmann : Customs law and error in AcP 66 (1883), p. 323 ff.
  30. ^ Friedrich Carl von Savigny : From the profession of our time for legislation and jurisprudence , 1814 ( digitized and full text in the German text archive ), p. 14.
  31. ↑ See on this Jan Schröder in the journal of the Savigny Foundation for Legal History . The German Department (GA, ISSN 0323-4045), 109th Volume 1992, pp. 1, 7; Friedrich Carl von Savigny: System of today's Roman law , 1840 to 1849, Volume I, p. 19; Georg Friedrich Puchta: The customary law. Volume 1 (1828), p. 145.
  32. ^ Georg Friedrich Puchta : The customary law . Volume 1 (1828), pp. 78, 161 ff.
  33. ^ Matthias Frühauf: On the legitimation of customary law in civil law with special consideration of judge law. Logos Verlag, Berlin 2006, p. 9 ff. (10).
  34. ↑ RGZ 2, 183 (185); 3, 210 (212), 12, 292; 20, 305 ff.
  35. ^ Reimund Scheuermann: Influences of the historical school of law on the general civil law practice of the supreme court up to the year 1861. Berlin, New York 1972, p. 85 ff.
  36. ^ Matthias Frühauf: On the legitimation of customary law in civil law with special consideration of judge law. Logos Verlag, Berlin 2006, pp. 113-137 (114 ff.); Hans-Georg Mertens: Investigations into the civil law judicature of the Reichsgericht before the entry into force of the BGB , in: AcP 174 (1974) p. 333 ff.
  37. ↑ Klaus Stern: Staatsrecht . Vol. II, p. 578; Fritz Ossenbühl in: Isensee / Kirchhof (Ed.): Handbuch des Staatsrechts , Vol. III, § 61 Rn. 20; Horst Dreier , Basic Law Commentary , Vol. 2 (Art. 20–82), 2000 (as editor and co-author). On Art. 20 GG (Democracy), Rn. 109 f.
  38. ↑ Cf. in this regard the discourse in Josef Esser : Judges' law, court usage and customary law. In: Festschrift for Fritz von Hippel , Tübingen 1967, pp. 95 ff.
  39. ↑ a b Larenz / Canaris : Methods of Law , 4th Edition 2018, Springer, ISBN 978-3-540-65888-7 , p. 258 f.
  40. ↑ Norbert Kortgen: problems of common law , Frankfurt am Main 1993, para. 504, 508.
  41. ↑ BGHZ 58, 355 ff. (361 ff.); 60, 98 (101 f.)
  42. ↑ Common (express) supreme court practice already in the later case law of the Reichsgericht; in the case law of the Federal Court of Justice this is indirectly revealed.
  43. ^ Matthias Frühauf: On the legitimation of customary law in civil law with special consideration of judge law. Logos Verlag, Berlin 2006, pp. 181–197.
  44. ^ Matthias Frühauf: On the legitimation of customary law in civil law with special consideration of judge law. Logos Verlag, Berlin 2006, p. 9 ff. (12).
  45. ↑ BGHZ 16, 374.
  46. ↑ BVerwGE DÖV 1977, 606 (today, however, included in § 48 VwVerfG).
  47. ↑ Michael Ronellenfitsch VerwArch 73 (1982), p. 470.
  48. ↑ Johannes Wessels , Werner Beulke : Criminal Law. General part , para. 55, 274.
  49. ↑ Cf. in this regard the two decisions, BGHSt 11, 241; 14, 52 and BGH NJW 1976, 1949.
  50. ↑ Critical on this: BGHZ 1, 369, 375, 379 f.
  51. ↑ BGH WM 1985, 1466 ff. (1468).
  52. ↑ Bernhard Reichert: Handbuch des Vereins- und Verbandsrechts , 8th edition, Neuwied 2001, p. 115 ff.
  53. ↑ The corporation of the association can only arise on the basis of a statute, which is why the entry in these cases is of a constitutive nature. In this respect, cf. §§ 21, 59 BGB.
  54. ^ A b Helmut Coing : European Private Law 1800–1914 (19th Century) , Vol. 2, Munich 1989, p. 250 (II. The situation in the federal states codified law) .
  55. ↑ See Peter Tuor : The Swiss Civil Code. Zurich 2015, § 5 III.
  56. ↑ Auguste Lebrun: La coutume, ses Sources, son autoritè en droit privé. Paris 1932, no. 128-130.