Codification dispute

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The codification dispute is an academic controversy in German legal history in modern times. It was largely fought out by the Heidelberg civil law professor Anton Friedrich Justus Thibaut and his Berlin opponent Friedrich Carl von Savigny .

The reason was Thibaut's wish, first articulated in 1814, for codification and standardization of law in the German legal community. To this end, he published the work On the Necessity of a General Civil Law for Germany , which caused a great sensation and sparked a controversial discussion. In it he called for the adoption of a simple and understandable, uniform civil code for the entire German area. Should be replaced the Common Law , a mixture Roman and canon law.

Although the publication was initially very well received, an increasingly stronger counter-movement ultimately prevented success. Since it was also politically related to the desire for a unified German state and thus conveyed the wishes of the liberals , the rulers were natural opponents with their desire for conservation and restoration . Then there were those liberals who let Savigny change their mind. In the same year the latter published a counter-writ with the title From the profession of our time for legislation and jurisprudence .

In it, the Berlin university professor expressed his rejection of a static legal system. In his opinion, the law is developing organically. The task of jurisprudence is therefore to take up the customary law that has arisen among the people and then to promote the reform of the current, fragmented law. Only at the end of this development did Savigny see codification as possible. However, this would then have to orient itself more closely to the Roman legal model than Thibaut intended.

The dispute came at a time when the order of the Old Kingdom appeared threatened. Codifications had already emerged around the German areas in which common law applied, such as the Prussian general land law of 1794 for the north-eastern and particular western areas, the Civil Code of 1804 and the Austrian ABG of 1811 . Although he was unable to save the old order himself, Savigny received the necessary impetus to found his historical school through the codification dispute . This turned away from developments in natural and rational law and adjusted Roman law to include regional additions to the usus modernus .

literature

  • Hans Hattenhauer (ed.): Thibaut and Savigny. Your programmatic writings . 2nd edition Vahlen, Munich 2002, ISBN 978-3-8006-2783-7 .
  • Jan Schröder : Law as a science. History of the legal method from humanism to the historical school (1500–1850) , 2001. pp. 191 ff.
  • Uwe Wesel : History of Law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Marg. 281.
  • Franz Wieacker : History of private law in modern times with special consideration of the German development. Vandenhoeck u. Ruprecht, Göttingen 1952, 2nd edition 1967. Sections 20–23.

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