V. Legal Unity by Way of Legislation
The way towards legal unity by means of a code of private law had been long and arduous. In the first half of the nineteenth century, the various states joined in the Deutscher Bund (German Federation) had already started to accommodate the needs of an expanding economy that was operating increasingly on a supraregional level. The advent of machinery and urbanization facilitated the production processes and the rising bourgeoisie favoured open markets promoting the free interplay of economic forces. Legal unification therefore was required, first and foremost, in the trade-related fields of law. A first significant step in this direction was the establishment of a German Customs Union in 1833. In 1848 the law of negotiable instruments was unified by means of the Allgemeine Deutsche Wechselordnung,38 and between 1861 and 1866 nearly all the states of the Deutscher Bund adopted the draft of a General German Commercial Code (Allgemeines Deutsches Handelsgesetzbuch) that had been completed in 1861.39 A draft law of obligations (Dresdener Entwurf) was published in 1865. Although it was never adopted, it significantly influenced the German Civil Code.
After the creation of the Deutsches Reich a streamlined procedural and organizational framework for the uniform and efficient administration of justice was established: the four Reichsjustizgesetze40 concerned the unification of the court system (Gerichtsverfassungsgesetz), the law of bankruptcy (Konkursordnung), civil procedure (Zivilprozeßordnung), and criminal procedure (Strafprozeßordnung). They all came into force in October 1879. While they have been amended on various occasions, three of these acts remain upon the statute book today; the Konkursordnung was replaced by a new insolvency code (Insolvenzordnung) in 1999. The first of October 1879 also saw the opening of a supreme appeal court for the entire Reich in all civil and criminal matters: the Reichsgericht.41 Its seat was Leipzig, a city with a distinguished legal tradition which had the advantage of not being identical with, but still sufficiently close to, the political capital of the Reich (Berlin). Its first president was Eduard von Simson, a Prussian lawyer of Jewish descent who had been baptized in his early youth. He had presided over the German National Assembly of 1848 that had met in the Frankfurt Paulskirche and had also been president of the Imperial Parliament.42

The scene was thus set for what was to be the crowning symbol of German legal unity: a code of private law. Its gestation period was close to thirty years. The starting shot was fired by the lex Miquel Lasker of 1873, by means of which the power to legislate concerning the entire field of private law was conferred on the Imperial Parliament. The details of the way in which the BGB has been prepared have often been recounted:43 appointment of a preliminary commission and, subsequently, of the First Commission, preparation of preliminary drafts by the reporters appointed for the five books of the projected code, publication of the First Draft with the attendant motivations (entitled Motive zu dem Entwurfe eines Bürgerlichen Gesetzbuches für das Deutsche Reich), vigorous and very controversial public debate, deliberations of an internal commission of the Imperial Department of Justice, appointment of the Second Commission, publication of the Second Draft, again with the attendant motivations (this time entitled Protokolle der Kommission für die Zweite Lesung des Entwurfs des Bürgerlichen Gesetzbuches), revision of the Second Draft by the Federal Council (Bundesrat), the debates in the Imperial Parliament (both in committee and in plenary sessions), the taking of the final vote (with the Social Democrats voting against the code because it did not deal with labour relations), promulgation in the Government Gazette of 1896, and entry into force a little less than three and a half years later, on 1 January 1900. In 1897 the librarian of the Reichsgericht, Georg Maas, published a little-known bibliography of the official documents relating to the Civil Code;44 two years later a very useful collection of many important (though not, as was claimed in the title of the work, all) documents was edited by Benno Mugdan.45 In the meantime, the genesis of each individual rule contained in the BGB has been traced and made available in an easily-accessible manner by Horst Heinrich Jakobs and Werner Schubert.46 In addition, Werner Schubert has organized a reprint of the preliminary drafts of the reporters appointed for the First Commission and their motivations.47 They contain a wealth of comparative material and are an outstanding source for the state of contemporary doctrinal discussion. #p#分页标题#e#

The BGB was supposed to be, in Bernhard Windscheid's words, 'a cathedral of national splendour',48 and Windscheid himself became one of its principal architects. Neither the design nor the details of its construction, however, could be taken to have been lifted from 'among the treasures deeply hidden in the people's soul'.49 The general public in Germany has never developed any enthusiasm for the BGB, in spite (or, possibly because) of all of its technical qualities. And even among lawyers, the code was not universally greeted with feelings of elation or joy. The publication of the First Draft had initiated a persistent stream of criticism. 'A tornado broke loose. It rained, it poured books and pamphlets... The project was criticized from every point of view... One might have thought that the whole scheme would perish': thus Maitland, from the perspective of a foreign observer.50 This criticism was taken into account only to a limited extent. Eventually, German lawyers began to resign themselves to the idea that perhaps too much had been expected of the Civil Code.

VI. The BGB as a 'Prison Cell'?
At the same time, there had also been widespread feelings of apprehension in the years before 1900 as to how the codification would influence the administration of justice.51 Many lawyers realized that, in view of the special nature of the Roman legal sources, they had enjoyed a great degree of freedom. The richness and complexity of those sources had allowed wide scope for doctrinal development and innovation, and the pandectist scholars had thereby become the high priests of legal scholarship.52 The new code, it was feared, would reduce the judge to a mere 'subsumption machine' (Subsumtionsautomat),53 and would constitute a prison cell for legal scholarship.54 There was great concern about an impending 'cult of literalism'.55 These anxieties prompted some authors to attribute to the BGB merely the status of a 'restatement';56 they stimulated renewed attempts to search for criteria of justice beyond the positive law;57 and they contributed substantially to the rise of the 'free-law movement' (Freirechtsschule).58 Looking at the way in which private law developed in the course of the twentieth century it appears that the BGB did in fact prove to be a kind of prison cell in one respect. For, while the draftsmen of the code had still based their proposals on remarkably comprehensive comparative legal research,59 private law legislation in the new century in the words of Ernst Rabel, became enamoured with the example of the Great Wall of China.60 A similar observation could be made as far as legal doctrine and the study of law are concerned. By the time the BGB entered into force, an avalanche of legal literature had started to sweep across the German legal landscape.61 Textbooks62 and commentaries63 on the BGB had been appearing since as early as 1897. In 1899 a bibliography was published that listed approximately 4,000 titles of over 324 pages.64 This literature, however, was almost exclusively exegetical in character, focused on the wording of the Statute.65 Many authors at first did hardly more than paraphrase the statutory provisions. They waited to see how these provisions would be applied in practice66 and then began to integrate the rapidly emerging case law into the new editions of their works. #p#分页标题#e#

Thus, very soon, the letter of the law was filled with life. At first glimpse, at least, it appeared to be a new and youthful life. Since the codification, according to contemporary opinion, contained a comprehensive and closed system of legal rules,67 it constituted an autonomous interpretational space. Thus, on the one hand, 'the recollection of pandectist scholarship, one of the supreme achievements of the German legal mind',68 faded remarkably quickly from both the doctrine and the practice of German law; Savigny, Dernburg, Jhering, Windscheid, and many other of the leading authors of the nineteenth century were hardly cited any longer, not to mention the earlier literature of the ius commune or the Roman legal sources themselves. The 'historical' interpretation was largely reduced to a perusal of the materials and motivations produced by the draftsmen of the code.69 Of considerable significance, in that respect, had been the decision of the German law teachers in 1896, at a Conference in Eisenach, to assign to the BGB the central position in the law curriculum; this was quite contrary to the way in which the codifications prevailing in parts of nineteenth-century Germany had been treated.70 On the other hand, everything which lay outside the territorial scope of application of the national codification also vanished from the intellectual horizon of legal academics and practitioners. German law was to be understood and developed from within itself: Italian and French legal literature, let alone English case law, could contribute nothing to it. The codification thus promoted not only a vertical, but also a horizontal, isolation of legal scholarship. '[I] simply do not believe that contemporary law has really grown from the old law, but I regard it as something new, created by the need of the present day and the sovereign will of the modern legislature', wrote Konrad Cosack, the author of a modern textbook,71 and he therefore refused to develop the law historically. At the same time, the organic point of departure for the incorporation of comparative law was lost. The legal horizon was limited by the rules and principles contained in the BGB. Within this framework, judges and legal writers strove to determine 'the concept' of impossibility72 to distinguish the different types of damage that can arise as a result of the delivery of non-conforming objects,73 or to penetrate the labyrinth of the 'owner-possessor-relationship'.74 According to prevailing, contemporary ideology the codification represented the turning point of German legal history.75