German Unification and the Legal System (1871)
The Constitutional Foundation of the German Empire
The German Empire (Deutsches Kaiserreich) was proclaimed on January 18, 1871, in the Hall of Mirrors at Versailles, following the defeat of France in the Franco-Prussian War. The constitutional foundation of the new state was the Constitution of the German Confederation (Verfassung des Deutschen Bundes), which had been adopted in 1866 for the North German Confederation (Norddeutscher Bund) and was substantially re-enacted as the imperial constitution. The Constitution, drafted primarily by Otto von Bismarck, established a federal state combining twenty-five member states — kingdoms (Prussia, Bavaria, Saxony, Württemberg), grand duchies, duchies, principalities, and the free cities of Hamburg, Bremen, and Lübeck — under a federal presidency held by the King of Prussia, who bore the title German Emperor (Deutscher Kaiser).
The imperial legislative power was vested in the Bundesrat (Federal Council), composed of delegates appointed by the state governments, and the Reichstag (Imperial Diet), elected by universal male suffrage for persons over twenty-five. The Bundesrat, in which Prussia held seventeen of fifty-eight votes (enough to block constitutional amendments requiring a two-thirds majority), was the dominant legislative body. The Reichstag, though democratically elected, had limited powers: it could approve or reject legislation but could not initiate it, and the Chancellor (the Prussian Minister-President) was responsible to the Emperor, not to the Reichstag.
The Constitution established the Empire’s legislative competence over enumerated matters, including defence, foreign affairs, customs and commerce, railways, posts and telegraphs, and — critically for legal unification — “the common legislation on obligations, criminal law, commercial law, and judicial procedure” (Article 4, paragraph 13). This provision provided the constitutional authority for the unification of German private and criminal law.
The Reichsjustizgesetze of 1877
The unification of German procedural and institutional law was accomplished through the Reichsjustizgesetze (Imperial Justice Laws) of 1877, a package of four statutes that established the uniform judicial system of the Empire. These laws, effective from October 1, 1879, created the institutional framework within which the substantive codes would operate.
The Gerichtsverfassungsgesetz (GVG, Court Organisation Act) established a four-tier court hierarchy. At the base were the Amtsgerichte (local courts) with jurisdiction over minor civil and criminal matters, presided over by single judges. Above them were the Landgerichte (regional courts), which heard more serious cases in panels of three judges and served as appellate courts for the Amtsgerichte. The Oberlandesgerichte (higher regional courts) served as appellate courts for the Landgerichte. At the apex was the Reichsgericht (Imperial Court of Justice), seated in Leipzig, which exercised cassational jurisdiction — reviewing decisions of the Oberlandesgerichte for errors of law — and original jurisdiction in cases of high treason. The Reichsgericht, composed of professional judges appointed by the Emperor, was the supreme judicial authority of the Empire and would become the most important court in German legal history.
The Zivilprozessordnung (ZPO, Code of Civil Procedure) established a uniform civil procedure based on the adversarial principle, with the parties controlling the initiation and scope of proceedings. The ZPO adopted the principle of oral proceedings, free judicial evaluation of evidence (freie Beweiswürdigung), and the availability of appeal on both fact and law. The Strafprozessordnung (StPO, Code of Criminal Procedure) established the procedural framework for criminal cases, incorporating the principle of the public trial, the right to defence counsel, and the institution of the public prosecutor (Staatsanwalt). The Konkursordnung (KO, Bankruptcy Code) provided uniform rules for insolvency proceedings.
The Reichsjustizgesetze eliminated the procedural diversity that had characterised the German states and established a uniform judicial structure that has survived, in its essentials, to the present day. The Reichsgericht, operating until 1945, developed a body of judicial doctrine that shaped German legal method and the interpretation of the codes.
The Bürgerliches Gesetzbuch (BGB)
The Bürgerliches Gesetzbuch (BGB, Civil Code) was the crowning achievement of German legal science and one of the most influential legal texts ever produced. The BGB was the product of more than two decades of scholarly labour, beginning with the decision of the Bundesrat in 1873 to establish a commission to draft a unified civil code.
The First Commission (1874–1888), composed of eleven members including judges, civil servants, and law professors, produced a draft of 1,264 paragraphs accompanied by five volumes of reasons (Motive). The draft was published in 1888 and met with widespread criticism. The critics, led by the legal historian Otto von Gierke, attacked the draft as too Romanist, too individualistic, and insufficiently German. The Society for German Law was founded to oppose the draft and to advocate for a code that would incorporate Germanic legal principles, particularly the concept of Treue und Glauben (good faith) in contractual relations.
The Second Commission (1890–1895) revised the draft extensively, incorporating Germanic elements and responding to the criticisms of the first draft. The revised draft was submitted to the Bundesrat, which made additional amendments, and was adopted by the Reichstag on July 1, 1896. The BGB came into force on January 1, 1900, after a four-year transitional period that allowed for the preparation of commentaries and the training of judges and practitioners.
The BGB is organised according to the Pandectist system, derived from the Roman law of Justinian’s Digest as systematised by nineteenth-century German legal scholars. The Code is divided into five books. The General Part (Allgemeiner Teil, §§ 1–240) contains rules applicable to the entire Code, including provisions on natural and juridical persons, legal capacity, declarations of will (Willenserklärungen), contracts, conditions, representation, and limitation periods. The Law of Obligations (Recht der Schuldverhältnisse, §§ 241–853) governs contractual and non-contractual obligations, including the general principles of contract formation and performance, the law of damages, unjust enrichment, tort liability, and the specific types of contracts (sale, gift, lease, loan, mandate, etc.). The Law of Things (Sachenrecht, §§ 854–1296) regulates property rights, including possession, ownership, mortgages, and servitudes. The Family Law (Familienrecht, §§ 1297–1921) governs marriage, divorce, parental authority, guardianship, and adoption. The Law of Succession (Erbrecht, §§ 1922–2385) regulates wills, intestate succession, compulsory portions, and executors.
The BGB’s style is notable for its abstraction, precision, and technical vocabulary. The code uses a “casual” method of legal reasoning — identifying the factual circumstances that trigger legal consequences — and avoids moralising language. The General Part technique, which extracts common rules from the specific books and places them in a preliminary book, is the BGB’s most distinctive structural innovation and one of its most influential contributions to comparative law.
The Strafgesetzbuch and Commercial Codification
The Strafgesetzbuch (StGB, Criminal Code) had been unified earlier than the civil code. The Criminal Code for the North German Confederation of 1870, drafted by the Prussian jurist Friedrich Carl von Savigny’s pupil Adolf von Scheurl and others, was adopted as the imperial Criminal Code in 1871 with minor amendments. The StGB was organised into a General Part (Allgemeiner Teil) dealing with principles of criminal liability, attempts, participation, and defences, and a Special Part (Besonderer Teil) defining specific offences.
The Allgemeines Deutsches Wechselgesetz (General German Bills of Exchange Law) of 1848 and the Allgemeines Deutsches Handelsgesetzbuch (General German Commercial Code, ADH) of 1861 had already unified commercial law before political unification. The ADH was replaced by the Handelsgesetzbuch (HGB, Commercial Code) of 1900, enacted simultaneously with the BGB, which governed commercial transactions, the status of merchants (Kaufleute), commercial firms, partnerships, and maritime commerce.
The Paulskirche Constitution and the Rechtsstaat
The Paulskirche Constitution of 1849 — the constitution of the Frankfurt Parliament — was the first German constitution to articulate the principle of the Rechtsstaat (law-based state). Although the constitution never came into force, its provisions on fundamental rights and judicial independence established the normative framework for German constitutional development. The constitution’s catalogue of Grundrechte (fundamental rights) included equality before the law, freedom of speech, press, assembly, and association, freedom of conscience and religion, the right to property, and the independence of the judiciary.
The concept of the Rechtsstaat, as developed by German legal theorists including Robert von Mohl and Friedrich Julius Stahl, distinguished the “material” Rechtsstaat — which required that state action conform to substantive principles of justice — from the “formal” Rechtsstaat, which required only that state action be authorised by enacted law. The German Empire adopted the formal conception: the state acted through law enacted by the authorised legislative bodies, but the content of that law was not subject to constitutional review. The Reichsgericht did not possess the power to review the constitutionality of imperial statutes — a power that the Supreme Court of the United States exercised under Marbury v. Madison — and the imperial constitution contained no catalogue of enforceable fundamental rights comparable to the American Bill of Rights.
The legal order of the German Empire thus combined sophisticated codification with an authoritarian constitutional structure. The BGB, the StGB, and the Reichsjustizgesetze created a legal framework of remarkable technical quality, but the political constitution remained authoritarian, with the Emperor and the Prussian crown exercising decisive power. This tension between legal refinement and political autocracy would ultimately contribute to the Empire’s collapse in 1918 and to the constitutional experiments of the Weimar Republic.