German Jurist Research Articles

Professor Walther Schucking at the Permanent Court of International Justice

In 1930, it was seen as critical by many to have a German jurist elected to the bench of the Permanent Court of Justice, and this was indeed achieved by the election of Walther Schucking. It may seem a paradox that in the following years where, in many cases, the Permanent Court exercised self-restraint and embraced arguments based on state sovereignty, probably the greatest supporter of notions of international organization and community to be associated with the work of the Permanent Court, namely Walther Schucking, occupied a permanent position on the bench. But then his �optimism� was simply an extrapolation of the state on to the international level, leaving key values such as state sovereignty essentially unaffected. The interest in Schucking�s contributions to the work of the Permanent Court lies not least in the fact that, even today, many lawyers approach international law in manners similar to his.

The new Italian public law scholarship

Traditional Italian public law scholarship was highly influenced by the German positivist and dogmatic approach to the study of law. As a consequence, it devoted greater attention to the “law in books” than to “law in action”; it adopted a systematic and conceptual attitude towards the legal order rather than a problem oriented view; and focused on interpreting the law, rather than on analyzing the conditions of legal change and reform. Vittorio Emanuele Orlando (1860–1952), the founder of the Italian public law scholarship, declared in his 1889 “manifesto” that “the scholars of public law are too much interested in being philosophers, politicians, historians, and sociologists; and too little in being lawyers.”1 He emphasized the need to keep public law scholarship autonomous from all forms of social science. Instead, he insisted that public lawyers should look for inspiration to their counterparts in private law, who, following the systematic and dogmatic reinterpretation of Roman law by the influential German jurist von Savigny and the Pandectists, had developed a consistent body of principles into a coherent doctrine. Orlando wielded a great deal of influence amongst his many followers, and thus was able to shape the entire field of public law scholarship in Italy in accordance with his ideas. His “manifesto” was not merely an intellectual program. Orlando—who was born one year before the unification of Italy—had another purpose: to encourage the new

Basic Concept of Savigny’s Volksgeist

Savigny, a prominent German jurist through his concept of Volksgeist introduced a new dimension in the legal arena. Savigny, also known as the pioneer of Historical school of law through his concept of Volksgeist explains the need to understand the interrelationship between law and people. Law and people cannot be isolated from each other and this is well explained by Savigny’s concept of Volksgeist. This article aims to analyze the concept of Volksgeist and the Historical school of law. It also relates the concept with Nepalese legal system as well along with a case reference.

Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine

The legal nature of a tariff agreement became the subject of study first by French jurists (Lambert, Deslenre, B. Reno) in the 1890s, and, since the beginning of the XXth century, by German (F. Lotmar, H. Zinzgeimer, etc.) and Russian jurists (L.S. Tal , I.S.Vojtinsky). Moreover, already in 1900 G. Zultser and F. Lotmar elaborated and published a draft Swiss law on a working tariff agreement, and in 1906 a similar draft government law was prepared in France.

On Constructive Legal Science Then and Now

The article purports, firstly, to shed some light on the meaning of the verb “to construct”, used by the German jurists Gerber and Jhering in connection with their juristic technique; and, secondly, to establish whether or not three more modern types of jurisprudence, suggested by Swedish legal scholars, can legitimately be called constructive. Not intending to criticize the theories which these suggestions are based upon, the author contents herself with focussing on the verb “to construct” and its derivatives and on the shift of meaning these words may have experienced.

Transforming Sexuality: The Medical Sources of Karl Heinrich Ulrichs (1825-95) and the Origins of the Theory of Bisexuality

This article explores the medical references in the writings of the German jurist and activist Karl Heinrich Ulrichs as a means of breaking new ground in diverse fields (including history of medicine, history of sexuality, and gender history). It demonstrates that the theory of bisexuality has a much deeper and more textured genealogy than has been hitherto appreciated and that dual-gendered bodies and minds must be better recognized as important through the nineteenth century. Specifically, it demonstrates that classifications and rhetoric of hermaphroditism, and other dual-gendered categories (e.g., sexual dualism and anatomical bisexuality), were deployed in diverse contexts through the period, often with little or no reference to the occurrence of genital ambiguities. Important discourses in embryology, utilized by Ulrichs, suggested that all individuals, in the earliest stages of fetal development, were hermaphroditic. In making an analogy among the ontogeny of sex anatomy, hermaphroditism, and the development of erotic preferences, Ulrichs sought to naturalize homoeroticism, rendering social and legal prohibitions untenable. His advocacy, however, was counterbalanced by the Prussian forensic expert Johann Ludwig Casper who had made some conceptual maneuvers similar to Ulrichs only couched in the rhetoric of pathology. Ulrichs was equivocal in his use of forensic works such as Casper's, condemning their authors but recognizing similarities with his own gender schema.

Volksgeist: In View of Friedrich Carl Von Savigny

Savigny, a prominent German jurist through his concept of Volksgeist introduced a new dimension in the legal arena. Savigny, also known as the pioneer of Historical school of law through his concept of Volksgeist explains the need to understand the interrelationship between the law and the people. Law and people cannot be isolated from each other and this is well explained by Savigny’s concept of Volksgeist. This papers aims to analyze the concept of Volksgeist and the Historical school of law.

Wilhelmine Germany and Edwardian Britain: Essays on Cultural AffinityEdited by Dominik Geppert and Robert Gerwarth. Oxford: Oxford University Press, 2008. 464 pp. £65 (hardcover).

11/18/15 5:43 PM Margaret Lavinia Anderson, Review of: Dominik Geppert and Robert Gerwarth, eds., Wilhelmine Germany and Edwardian Britain. Essays on Cultural Affinity (The German Historical Institute London and Oxford University Press: Oxford and New York, 2008), published in The British Scholar III/1 (Sep. 2010): 166-69. Shortly thereafter, the periodical was renamed, Britain and the World: Historical Journal of the British Scholar Society. Or perhaps it simply disappeared from the face of the earth altogether. In 1906 the press of Britain (and Germany) made merry over the adventures of an unemployed German drifter who had dressed up in pieces of officers' uniforms and spent a happy day ordering around soldiers, dismissing their sergeant, commandeering carriages, arresting city officials, and confiscating more than 4,000 marks from municipal funds before disappearing. Although neither the celebrated Captain of Kopenick, nor the conclusions people drew about Germany's alleged reverence for uniforms, is mentioned in this volume, Jan Ruger gives us the upper-crust British variant, just four years later, when Virginia Stephan (soon to be Woolf) and five friends, wearing false beards and brown face powder, turbans and robes, passed themselves off as the prince of Abyssinia and his entourage to the commander of the Dreadnaught, flagship of the home fleet. They were received with full royal honors. What should they know of Germany who only Germans know? To examine Edwardian Britain and Wilhelmine Germany in tandem, as this rich collection shows, opens windows into both histories closed to those who work in just one. The authors operate in a variety of registers. Marc Schalenberg probes E.M. Forster's Howard's End, whose Schlegel sisters and wry narrator offer a gentle take on the ways the German was viewed from the other shore. Sabine Freitag and Franz Lorenz Muller, looking at penology and the press, respectively, paint a darker picture. Humanitarian British arguments for the preventive incarceration of habitual offenders, Freitag argues, were (mis-)used by German jurists with other goals. Muller's survey of the German press on Britain's constitutional crisis of 1909-1911 oddly

The Politics of Resurrection

There has been a recent resurgence of interest in the work of Carl Schmitt, the German jurist of the last century. This essay explores Schmitt's account of sovereignty within the context of his ‘political theology’. It describes Giorgio Agamben's use of Schmitt's theory of sovereignty as a lens through which to appraise critically contemporary geopolitics, before examining Jacob Taubes' messianic response to Schmitt. It suggests that a theological politics based on resurrection and participation in Christ is able to respond still further. The essay concludes by exploring what might be the relationship between the Church and political authority.

Does the corpus iuris civilis show characteristics of an abstract system of transfer of property?

It is generally accepted that an abstract system for the transfer of property is applied in South Africa. Characteristic of an abstract system is that the different legal acts which form part of the process, namely the obligatory agreement, delivery of the thing concerned or registration and the real agreement are separated from each other. The real agreement is an agreement between the transferor and the transferee based on a meeting of the minds; it is directed at the transfer of ownership by delivery and should be distinguished from the underlying causa (for example an obligatory agreement). The real agreement merely consists of the transferor’s intention to transfer property and the transferee’s intention to receive property. A second characteristic of the real agreement is that it should meet its own requirements. It is therefore not dependent on the validity of the preceding obligation or any other legal act. This means that ownership will pass from the transferor to the transferee even though the underlying obligatory agreement is invalid. The real agreement is an invention of the German jurist Friedrich Carl von Savigny. The purpose with this article is to ascertain whether or not Roman law at the time of Justinian reflects any of the characteristics of an abstract system and the real agreement (which is generally associated with an abstract system).Can it be said that Savigny based his theory on Roman law? It appears from this paper that a clear distinction was drawn in Roman law between the causa (obligatory agreement) and delivery (traditio). Ownership in movable and immovable property did not pass directly by virtue of the conclusion of the contract of sale or donation (causa) - the thing concerned had to be delivered to the transferee in a legally accepted way as well. Although there is no clarity regarding the question of whether or not a valid causa was a requirement for the transfer of ownership, it can be stated with a fair amount of certainty that the causa had to be valid in those cases where delivery was effected by virtue of sale and donation. If the causa was invalid, ownership did not pass, even though the parties had the intention to pass ownership. In this regard Roman law at the time of Justinian reflects the characteristics of a causal system. However, if the thing was delivered on account of a dos or solutio by virtue of astipulatio (and maybe also mutuum), there was no prior obligatory agreement and traditio was not affected by the causa at all. Ownership had passed merely by virtue of the intention to transfer and to receive ownership. In other words, Roman law portrays characteristics of an abstract system in these situations. Regarding the question whether or not the reciprocal intention to transfer and to receive ownership had been construed as an independent agreement which should be distinguished from the obligatory agreement, it appears that that was not the case. Because of the dual nature of the contract of sale in Roman law (itcreated an obligation but it was also iusta causa traditionis), it was accepted that the intention to transfer and to receive ownership was actually contained in the obligatory agreement. It did not exist on its own as a separate agreement (except in cases of a dos, solutio and mutuum). However, it emerges that the intention was emphasised more and more and that it was gradually loosened from the causa. The loosening, however, existed merely in the vision that the intention to pass ownership (as contained in the causa) can continue to exist on its own even though the causa appears to be invalid. The bond between causa and traditio was not yet finally broken, because it was still the intention at the time of the obligatory agreement that effected the passing of ownership. Theconclusion is that there was no sign of a real agreement which merelyconsisted of the reciprocal intention to transfer and receive ownership andwhich existed independently from the underlying obligatory agreement. Keywords Transfer of property; abstract system of transfer of property; causal system of transfer of property; real agreement; intention to transfer property; animus possidendi; possessio; iusta causa traditio; mancipatio; solutio; stipulatio; mutuum; Savigny; Roman law; formalities – writing.Sleutelwoorde Oordrag van eiendomsreg; abstrakte stelsel van oordrag van eiendomsreg; kousale stelsel van oordrag van eiendomsreg; saaklike ooreenkoms; bedoeling om eiendomsreg oor te dra; animus dominus; diminium; iusta causa traditio; mancipatio; solutio; stipulatio; mutuum; Savigny; Romeinse reg; skrif as vormvereiste.

Figuras de la antipolítica en Carl Schmitt

El presente trabajo desarrolla distintas figuras que Carl Schmitt señala como formas de subjetividad antipolítica. Si desde la perspectiva del jurista alemán las operaciones que constituyen un modo de ser político son aquellas que producen o sostienen una forma representativa, lo propio de una subjetividad antipolítica son aquellas operaciones que erosionan o conducen a la destrucción de dicha forma política. El trabajo intenta mostrar que la operación fundamental en este sentido es la dilación, entendida como la postergación indefinida de la decisión. Así, bajo las diversas figuras de la antipolítica que Schmitt aborda, esta operación también adquiere diversas formas de aparición: en el caso de la subjetividad liberal se da bajo la forma de la discusión y el compromiso, en el caso del romántico político bajo la forma de la poetización.

La cuestión del poder neutral en Schmitt

El artículo busca mostrar la importancia que la teoría del pouvoir neutre de B. Constant/ tuvo en la interpretación que Carl Schmitt hace de las funciones del Reichspräsident, en los años veinte hasta el nazismo. Aun cuando Schmitt critica al romanticismo, del cual al autor de Adolphe es una figura clave, igualmente reconoce que Constant teorizó la institución constitucional más adecuada para enfrentar las situaciones críticas, cuando la constitución debe autodefenderse mediante poderes legales pero excepcionales.

The struggle for law: some dilemmas of cultural legality

My title ‘The Struggle for Law’ is that of a book by the nineteenth-century German jurist Rudolf von Jhering (1915). In fact a better translation of Jhering’s original German title (Der Kampf ums Recht) might be ‘the struggle around law’ or ‘the battle for rights’. He argued that citizens owe a moral duty to themselves and their society to assert legal rights vigorously. But law itself is above the fray, not subservient to their conflicting interests. So the struggle for law is not to control it but to invigorate it – to be involved in the legal order, an active citizen living under law. Jhering presupposed a cultural unity – ‘our whole culture’ (Jhering, 1913, pp. 59, 62). Given this unity, law can respond not only to citizens’ claims but to their feelings – feelings that are understandable in the shared culture law inhabits.

Reforms in German Stock Corporation Law — The 67th German Jurists Forum

The paper gives an account of the proceedings and resolutions of the 67th German Jurists Forum in Erfurt in September 2008 and analyses their significance within the broader context of German company law and other current reform proposals. The first part of the paper is devoted to the fundamental policy question that was the main topic of the 67th German Jurists Forum: are specific legal provisions for listed and non-listed companies advisable? After sketching the historical background and the status quo of German law, the paper briefly outlines the reform concept presented by Professor Bayer in his expert report and then summarises the gist of the debates and resolutions on this issue. The second part of the paper focuses on the vast range of other topical issues discussed during the debates, most notably the intense discussion on the reform of the legal regime governing shareholder suits in order to tackle the persisting problem of ‘marauding shareholders’ [‘rauberische Aktionare’]. Other prominent issues included the calculation of compensation payments to shareholders, the proposal to give German stock corporations the freedom to choose between a one-tier and a two-tier system of management, and various proposals to provide more flexibility for non-listed companies. The paper concludes that although the German Jurists Forum in general took a rather conservative stance, it also made powerful and well-reasoned reform recommendations with respect to the important issues of compensation payments and the legal regime regarding shareholder suits.

Legal Costs as Damages in the Application of UN Sales Law

In the literature on the uniform UN sales law (CISG), the decisions in the first and second instances of the Zapata1 case triggered an extraordinarily lively discussion. Simply stated, the case concerned the delivery of painted cookie tins used for packaging Christmas cookies, for which the American buyer (i.e., place of business in the USA), citing flimsy pretexts, refused to pay. The Mexican seller (i.e., place of business in Mexico), sued and was awarded compensatory damages; as part of the damages, the trial court also awarded the plaintiff its attorneys’ fees. At the appellate level, where only the issue of attorneys’ fees was disputed, the appellate court rejected the claim for reimbursement of attorneys’ fees and reversed the trial court decision. [The seller’s] appeal to the U.S. Supreme Court by writ of certiorari was denied. The cases concerned the so-called “American rule,” according to which the parties each bear their own litigation expenses, and in particular their own attorneys’ fees, independent of the outcome of the case. This deviates from German legal understanding and has significant practical consequences. In particular, high attorneys’ fees could lead to the result that the compensatory damages awarded to the plaintiff in actuality fall far short of covering his losses, and for the victorious defendant winning a case can be a pyrrhic victory. Yet, the American rule is not without exceptions, and especially for abusive lawsuits brought on obviously groundless claims, American procedural law permits the losing party bringing such claims to be partially burdened with the cost.Also in cases of especially serious breach of contract, an award of punitive damages could make it possible for the victorious plaintiff to recover his litigation expenses and attorneys’ fees. Nevertheless, in the large majority of cases the American rule leads to the described results, which for German jurists appear at first glance surprising and unacceptable. Especially for foreign parties to a contract who come before an American court and win, the American rule can lead to unpleasant surprises.

Salmond and Corporate Theory

Salmond's corporate theory was strongly influenced by Maitland and the German jurists of the late Nineteenth century. He did not receive their views uncritically and formulated his own theories in a pragmatic manner. His views on corporate theory and the State have been influential. As a judge he applied orthodox principles and made a useful analysis of the corporate constitution as it then existed.

Friedrich Carl von Savigny's Beruf and Volksgeistlehre

In the Anglo-Saxon world the nineteenth-century German jurist Friedrich Carl von Savigny is known mostly for his Volksgeistlehre (‘spirit of the people doctrine’), a speculative and anti-rationalist theory of the evolution of law, which he set out comprehensively in 1814 in a pamphlet, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. This article explains in more detail the main ideas expressed in this famous pamphlet of German legal history, and examines the relevance of the Volksgeist doctrine and its underlying historical method to discussions concerning a European civil code based on a European ius commune, as well as to law and legal history in England and Scotland. The article also shows that surprisingly much of Savigny's thinking still exercises its influence and even experiences a certain renaissance today.

Comparative History and the Internal View of French, German, and English Private Law

This Article explores the different intellectual and socio-political contexts that attended the emergence of the French, German, and English legal systems with a view to understanding French, German, and English private law from the perspective of the participants in these systems. The French legal system is a child of the Cartesian dualism that marked the Age of Reason, according to which the material world can and ought to be fully dominated by the human intellect. This conception of the relation of facts to ideas arguably is reflected in the structure and design of the French civil code, in such institutional features as the French conception of the role of the judge, as well as in the tendency of French jurists to view contractual consent subjectively. In contrast, the German legal system congealed at a time when Cartesian dualism was losing ground to German idealism. The dialectic conception of facts and ideas favoured by the German idealists arguably made its way into several institutional features of the German legal system, including the content of the BGB, the codification process, the conception of the role of the judge, the style of judicial decisions, and the greater inter-penetration of public and private law. It may also partly explain why German jurists have tended to view contractual consent as simultaneously objective and subjective. Finally, whereas both the French and the German legal systems emerged from highly intellectual contexts, the English legal system grew from a maize of pragmatic political and administrative considerations that left little room for explicit ideas. The emphasis on hard facts still is palpable in many aspects of contemporary English law, in particular, the doctrine of stare decisis, the conception of the judicial function, and the mode of reasoning by analogy. It arguably also is reflected in the tendency of English judges to privilege the objective conception of contractual consent.

Statutory Lawlessness and Supra-Statutory Law (1946)

(trs. Bonnie Litschewski Paulson and Stanley L. Paulson) By means of two maxims, ‘An order is an order’ and ‘a law is a law’, National Socialism contrived to bind its followers to itself, soldiers and jurists respectively. The former tenet was always restricted in its applicability; soldiers had no obligation to obey orders serving criminal purposes.1 ‘A law is a law’, on the other hand, knew no restriction whatever. It expressed the positivistic legal thinking that, almost unchallenged, held sway over German jurists for many decades. ‘Statutory lawlessness’ was, accordingly, a contradiction in terms, just as ‘supra-statutory law’ was.2 Today, both problems confront legal practice time and time again. Recently, for example, the Süddeutsche Juristen-Zeitung published and commented on a decision of the Wiesbaden Municipal Court [handed down in November of 1945], according to which the ‘statutes that declared the property of the Jews to be forfeited to...

Puzzles and Solutions: Appreciating Carl Schmitt's Work on International Law as Answers to the Dilemmas of his Weimar Political Theory

Introduction: Carl Schmitt and his impressive oeuvre have become focal points of today's academic interest, whilst his work on international law and international relations does so far not conjure intense discussions. It seems common to deem Schmitt's turn to geopolitics awkward and abrupt or to consider it a mere tactical maneuver to overcome academic and political isolation. Schmitt's early and deep-going entanglement with Nazi Germany and his prominent role as the Kronjurist of the Third Reich not only made him a persona-non-grata on the international parquet or in Germany's post-War scholarship, but already before the end of the Second World War had the German jurist been isolated in Nazi circles. To report an anonymous commentator, whose view seems to prevail today: Schmitt 'seeks a new field of activity in which he would like to avoid his complete marginalization, hoping eventually to regain his momentum.' Somewhat ironically, this view is not referring to the contemporary disregard for Schmitt's turn to foreign affairs, but the anonymous commentator served as an operative for the Nazi secret service. In this article, I intend to challenge the contemporary academic indifference for Schmitt's reflections about the international arena. I will not argue that Schmitt's ideas on the international realm are worthwhile being introduced into contemporary debates on how to reframe the global architecture; rather, I will submit that his foundational works on international law and international relations provide answers for various dilemmas and puzzles that pervaded and even dictated his Weimar pieces on domestic political theory.