Compensating Non-Economic Losses in the Affluent Society

Abstract

Last January 1 the German Civil Code celebrated its seventieth birthday. Obviously a code of such respectable age cannot do justice to all the needs of our time. Scientific and technical progress has created problems which the draftsmen of the law were unable to foresee. One need only think of the still alarmingly growing rate of traffic accidents, the devastating effects of water and air pollution, the peculiar risks of mass production, or the dangers involved in a more widespread use of radioactivity for peaceful purposes. Moreover, profound changes have affected the basic ideological and sociological conception of the code. One of the advantages of a codified legal system as compared with judge-made law is that it makes it a little easier to identify the social pattern for which the legal rules were originally framed. The road of this inquiry leads us back to the 19th century. Bluntly put, the German Civil Code, as well as its most important predecessorthe French Code Civil of 1804-reflects the needs and ideals of the bourgeoisie, the social class which had attained decisive political and economic influence in Germany as a result of the industrial revolution. The interests of this rapidly expanding capitalist society were accommodated by the three principal freedoms which the code grants in the economic sphere: freedom of contract (? 305 BGB), freedom as to the use of property (? 903 BGB), and freedom to dispose by last wvill (? 1937 BGB).1 It was this non-interference of the law which enabled enterprising citizens to build up a flourishing industry. If the principal attitude of the code with regard to economic problems may be described as laissez-faire, its basic conception as to family and social life must be called conservative. Here again the legal rules faithfully correspond to the patriarchal morality of the wealthy bourgeoisie in those times. Undoubtedly the social pattern on which the Civil Code was thus based has become quite inconsistent with the structure of present German society. Since the end of World War I at the latest, we have become aware of the fact that a freedom which in practice only a small group of the population are in a position to use, necessarily entails a growing lack of freedom for the majority of the people. If the wealthy owner of the factory and the desperate unemployed both enjoy the same