Otto von Gierke

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Otto von Gierke

Otto Friedrich Gierke , von Gierke from 1911 (born January 11, 1841 in Stettin , † October 10, 1921 in Berlin ), was a German legal historian .

family

Otto Gierke was born as the oldest of five siblings. His parents -  Julius , appellate judge in Bromberg and Therese Gierke born. Zitelmann - died of cholera in 1855 . The orphaned children were taken in by relatives in Szczecin.

Gierke married Marie Cäcilie Elise Löning in 1873, daughter of the publisher Karl Friedrich Loening . The eldest daughter Anna von Gierke is considered to be a co-founder of modern social education. The son Edgar von Gierke was a pathologist. The son Julius von Gierke succeeded his father as a legal historian. The daughter Hildegard von Gierke was also involved in social education.

1911 Gierke was of Wilhelm II. Ennobled .

Life

Otto Gierke studied from 1857 jurisprudence at the Friedrich-Wilhelms University in Berlin and the Ruprecht-Karls-University of Heidelberg . With a PhD with the eminent legal historian Carl Gustav Homeyer doctorate he in 1860 to Dr. iur. Since 1865 court assessor, he completed his habilitation in Berlin in 1867 with a text on the cooperative law , which was later to form the first volume of his German cooperative law .

Having a reputation of the University of Zurich had refused, he became in 1871 first extraordinary professor in Berlin. In the same year he followed the call of the Silesian Friedrich Wilhelms University in Breslau . For the academic year 1882/83 he was elected its rector . In his rector's speech on October 15, 1882, he dealt with natural law and German law .

In 1884 he moved to a chair in Heidelberg and finally returned to Berlin University in 1887 . In 1902/03 he was rector there too. In October 1902 he spoke about the nature of human associations. At a memorial service for Friedrich Wilhelm III. (Prussia) in August 1903 he dealt with the historical school of law and the Germanists .

Gierke was a member of the founding commission of the German Legal Dictionary (DRW), which met for the first time in 1896 . From 1903 he was a corresponding member of the Bavarian Academy of Sciences . In 1912 he was accepted as a corresponding member of the Russian Academy of Sciences in Saint Petersburg and in 1913 of the British Academy . He was a member of the Allemannia Heidelberg fraternity .

Honorary grave of Otto von Gierke in Berlin-Westend

Otto von Gierke died in Berlin in 1921 at the age of eighty. He was buried in the cemetery of the Kaiser Wilhelm Memorial Church in Charlottenburg - Westend , where his wife Lili and his daughters Anna and Hildegard would later find their final resting place. By decision of the Berlin Senate , the graves of Otto von Gierke (No. AW-3-1c) and Anna von Gierke (No. AW-3-1a) have been dedicated as honorary graves of the State of Berlin since 1965 . The dedications were last extended in 2016 by the usual period of twenty years.

science

Berlin memorial plaque in Berlin-Charlottenburg , Carmerstrasse 12

Cooperative Law

Through historical analysis, Gierke developed a conception of cooperative law that originated from his teacher Georg Beseler . Like Beseler, he joined the Germanistic version of the historical school of law. Because of his crucial contributions to cooperative law, he is considered the "father of cooperative law ".

He distinguished the cooperative association (clan, family association, then corporations in the Middle Ages ) from the manorial association (feudal associations, later institutions , now institutions under public law , the state ); the cooperative designates a body based on free association. Sociologists like Franz Oppenheimer therefore described the cooperative as a horizontal social relationship .

Through Roman law , in which the individual and his freedom are in the foreground, the cooperative social structure of German law could be broken after the era of absolutism . Gierke became an early critic of individualism by primarily understanding people as social beings (cf. Aristotle ' zóon politikón ) .

Theory of the real association personality

The so-called theory of the real association personality goes back to Gierke, according to which civil law companies appear as independent legal subjects in legal transactions. Gierke thus contradicted the Roman legal understanding of societas as a pure contractual relationship, the legal subjectivity of which is merely fictitious, and laid the foundation for the further development of company law and, in particular, the general theory of commerce (§§ 705 ff. BGB).

In other respects, Gierke's approach still resonates today in the BGB. § 26 I 2 Hs. 2 BGB says that the board of the association has the "position of a legal representative". The legislature wanted to avoid a decision between the insight that Gierke understood that societies act through organs (organ theory), and the understanding of Roman law, especially v. Savigny's constructive view that only the actions of the shareholders are attributed to the shareholders' association (representative theory).

Act

Gierke shaped German law through his research. Gierke is considered to be an important advocate of the German legal concept of property (compared to the Roman legal concept), with which he above all opened up the history of cooperative law . This view of the law can still be found in the Basic Law (“property obliges”).

The concept of social law goes back to Gierke. In contrast to today's linguistic usage, he meant neither social security law nor social assistance law, but the internal law of associations / cooperatives (cf. Latin socius , the "ally").

Gierke was a supporter of the organic theory of the state , which rubbed off on his pupil Hugo Preuss .

Others

At the beginning of the First World War in 1914 Gierke praised the war as a “divine gift of grace” for German culture .

Fonts

  • German cooperative law. 4 volumes. Berlin 1868, 1873, 1881, 1913 (unfinished).
  • The humor in German law. Berlin 1871 ( digitized ).
  • Johannes Althusius and the development of the natural law theory of the state. Berlin 1880.
  • Natural law and German law. Frankfurt 1883.
  • The cooperative theory and German jurisprudence. Berlin 1887.
  • The social task of private law. Berlin 1889.
  • German private law. 3 volumes. Leipzig 1895.
  • The Stein town order. Berlin 1909.
  • The Germanic state idea. Berlin 1919.

literature

  • Karl Siegfried Bader:  Gierke, Otto von. In: New German Biography (NDB). Volume 6, Duncker & Humblot, Berlin 1964, ISBN 3-428-00187-7 , p. 374 f. ( Digitized version ).
  • Ernst-Wolfgang Böckenförde : The German constitutional research in the 19th century. Time-bound issues and models. Duncker & Humblot, Berlin 1961, 2nd edition 1995 (= writings on constitutional history , 1).
  • Hans Boldt : Otto von Gierke. In: Hans-Ulrich Wehler (ed.): German historians. Volume VIII, Vandenhoeck u. Ruprecht, Göttingen 1982, pp. 7-23.
  • Yasuhiro Endo: Otto von Gierke's federal theory. In: Detlef Lehnert (Ed.): Verfassungsdenker. Germany and Austria 1870–1970. Metropol, Berlin 2017 (= Historical Democracy Research , 11), pp. 63–75.
  • Andrea Nunweiler: The picture of the German legal past and its actualization in the “Third Reich”. Nomos, Baden-Baden 1996 (cf. Diss. Univ. Hannover, 1993/94), ISBN 3-7890-4241-2 , pp. 29, 179, 348-357, 410.
  • Hein Retter: Reform Education and Protestantism in the Transition to Democracy. Frankfurt / M. 2007, therein: Otto von Gierke, pp. 613–628.
  • Erik Wolf : Great legal thinkers in German intellectual history . 4th edition. Mohr Siebeck, Tübingen 1963, ISBN 3-16-627812-5 , pp. 669-712.

Web links

Commons : Otto von Gierke  - Collection of images, videos and audio files

Individual evidence

  1. ↑ On family genealogy : http://www.von-gierke.com/?page_id=2 .
  2. ^ Rector's speech in Breslau .
  3. ^ Rector's speeches in Berlin .
  4. ^ Foreign members of the Russian Academy of Sciences since 1724. Otto von Gierke. Russian Academy of Sciences, accessed August 19, 2015 (Russian).
  5. ^ Fellows: Otto von Gierke. British Academy, accessed August 15, 2020 .
  6. ^ Hans-Jürgen Mende : Lexicon of Berlin burial places . Pharus-Plan, Berlin 2018, ISBN 978-3-86514-206-1 , p. 473.
  7. ↑ Honorary graves of the State of Berlin (as of November 2018) . (PDF, 413 kB) Senate Department for the Environment, Transport and Climate Protection, p. 25; accessed on March 19, 2019. recognition and further maintenance of burial places of honor graves of Berlin . (PDF, 205 kB). Berlin House of Representatives, printed matter 17/3105 of July 13, 2016, p. 1 and Annex 2, p. 4; accessed on March 19, 2019.
  8. ↑ Hans Boldt: Otto von Gierke. In: Hans-Ulrich Wehler: German historians. Volume VIII, Vandenhoeck u. Ruprecht, Göttingen 1982, pp. 7-23.
  9. ^ Walter Jellinek : In particular: Development and expansion of the Weimar Imperial Constitution. In: Gerhard Anschütz , Richard Thoma (Hrsg.): Handbuch des Deutschen Staatsrechts . Volume I. Tübingen 1930, p. 128.
  10. ↑ Germany's first intellectual arsenal . In: Der Tagesspiegel , June 4, 2014, p. 21.
personal data
SURNAME Gierke, Otto von
ALTERNATIVE NAMES Gierke, Otto Friedrich; Gierke, Otto Friedrich von (full name)
BRIEF DESCRIPTION German legal historian, university professor and politician
DATE OF BIRTH January 11, 1841
PLACE OF BIRTH Szczecin
DATE OF DEATH October 10, 1921
Place of death Berlin