Universität KonstanzExzellenzcluster: Kulturelle Grundlagen von Integration

Legal Standardization Despite Legal Binding (Rechtsbindung)?

The Judgment of the Reich Court on the German Particular Laws (Partikularrechten) between 1879 and 1909

Prof. Dr. Martin Löhnig


The European Union consists of 25 member states with 25 different systems of civil law, whose contents are indeed influenced by European directives and guidelines. However in case of dispute national courts apply national as well as European-influenced legal orders. But in each member country exists an individual judiciary culture, jurists are educated in different ways and judges recruited differently. Since the creation of the major national codifications Europe resolves into three families of civil law: the Anglo-Saxon, the Roman and the German law family, which also reaches into Eastern Europe. Accordingly the solution of identical individual cases is often varying. The European Court of Justice (ECJ), whom this task is assigned to, is up to now hardly able to have an integrating effect. He has not sufficient resources to his disposal and the courts of the member states do not discharge enough to propound legal issues to the ECJ. Therefore the creation of a European legal uniformity and the (re-) establishment of an over-all European judiciary culture across national and cultural borders cannot be sufficiently provided by the ECJ. As long as the European Union does not succeed in creating a unified European civil law, there is no alternative for the authorization and the enforcement as well as for the creation of European law besides a working European civil justice.

In the in 1871 originated German Reich comparable problems existed. By the contemplation of the Reichsgericht’s (German Supreme Court) jurisdiction and its economical and cultural context one can bring out a model of the judicature’s integrating effect. Since 1879 the Reichsgericht existed as the supreme civil court in the German Reich although judiciary and legal training were state concerns, just like they are up to now. One of the tasks of the Reichsgericht was to guarantee the jurisdiction’s homogeneity within the boundaries of the entire Reich. Yet with the setting up of the Reichsgericht there was no Reich-standardized civil law corresponding. This only took effect on January 1st 1900 with the German civil code which is still in force. According to the charter of 1871, for the moment the Reich did not even have the competence for a uniformed extensive civil legislation. The EU is by the way not entitled to this either. Only in 1873 this competence was produced by a constitutional amending law which originated mainly at national liberal parliamentarians’ instigation. Before that, there were countless civil orders and civil partial orders in force in the German Reich which came from different ages and were characterized by differing idea historical backgrounds. Until the first years of the 20th century these different systems of civil law were the fundament of the Reichsgericht’s jurisdiction.

Which role did the Reich-uniformed civil justice play in the establishment of a legal uniformity and so in the integration of the individual states into the recently built empire? Did the judicature prepare the ground for a Reich-standardized civil law? Or did such a development just not take place because federal distinctions were respected or even emphasized? Did integration therefore mean unification of results or rather just respect to the confessionally or traditionally caused differences? Is it possible that one can notice a unifying process through the development of a Reich-homogeneous juridical method which was developed by the supreme courts’ judges (Reichsgerichtsräte), who were trained and moulded so differently in their home countries? At which point does the Reichsgericht leave the directives given by the law dogmatism and judicial commitment to the law in order to make a contribution to the economical development or the Reich’s cultural unity? And how are such discrepancies justified? Were the fruits of the blooming German jurisprudence which was founded by Savigny therefore also reaped in the jurisdiction of the late 19th century, and not only in the German civil code? Was the question of an integrating function of the juricature also themed theoretically and if so by whom?

To answer these questions, first of all it is necessary to analyse juristically the Reichsgericht’s jurisdiction. This judication has to be in turn compared with the individual states’ precedents and the common doctrines before 1879 to be able to detect possible differences. Such a comparison is to carry out in different subject areas for all the particularistic laws applied by the Reichsgericht. Moreover the valuation of the Reichsgericht’s judicature in contemporary, not only juristic literature has to be taken into consideration. However this does not mean that the Reichsgericht’s jurisdiction should be dogmatically or dogma historically analysed. Juristic knowledge and working methods are essential to be able to reliably investigate the transgression of the boundaries which were originally set the Reichsgericht, committed by its judges. However, the non-juristic, i.e. the economical and cultural influences on the jurisdiction, which are in this way determinable, and their influence on the reality of life in the Reich are especially interesting.