Das Bewegliche System im Spiegel nationalsozialistischer Gesetzgebungsdebatten

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In 1941, Walter Wilburg's “Die Elemente des Schadensrechts” (“The Elements of the law of torts”) proposed what came to be known as the “flexible system” (“bewegliches System”). The flexible system suggested the possibility of a middle way between general clauses on the one hand and specific norms on the other. Its merits are still under discussion: While some praise the jurisdictional flexibility it grants, others criticise the inherent lack of foreseeability brought about by its flexibility. This contribution will leave the ambit of current debate. It will re-examine its very source, “Die Elemente des Schadensrechts”, and answer the questions for the nature underlying the “flexible system” and whether it was truly novel or typical of its time. It will be argued that Wilburg had never meant the 'flexible system' to only be a pragmatic solution to a dogmatic problem. Rather, he wanted it to constitute an integral part of the planned new civil code, the “Volksgesetzbuch” (People s Civil Law Code). Further, Wilburg s work was indeed typical of its time: In the 1930s such middle ways, also witnessed in the basic rules (“Grundregeln”) at the beginning of the People's Civil Law Code as well as in preambles, were cheered as a new, National Socialist legislative style. But even though it tuned in with such developments, it still set itself apart from other concepts in that Wilburg did not aim for steering the judges by means of ideological guiding principles or ones taken from social reality. Instead, he wanted to tie judges to scientific concepts, namely to a specified set of elements, interdependent and flexibly arranged within a closed system.