16 January 2008

'Legal Transplants Transplanted Back' & 'German Legal History Podcasts'

I came across this too-good-to-be-true-but-still annecdote about legal transplants in a 1929 piece by Professor Rudolf Mueller-Erzbach (1874-1959) on the use of 'Interessenjurisprudenz' by the German Reichsgericht (in Otto Schreiber, ed., Festgabe Reichsgericht II, 1929). The article itself is an interesting (if perhaps a bit overly laudatory) overview of the use of 'realist', 'true to life' legal methods by the Reichsgericht in a variety of private law areas, that, in particular, has some great quotes on formalism (try to beat 'definierfreudigkeit').

The story Mueller-Erzbach tells (with reference to a lecture by Nawiasky of 1925) is about Austrian efforts in the late 19th century to revise their cumbersome and outdated system of civil procedure; a project carried out by Franz Klein between 1891 and 1895. At the time, the procedural code in force was the Allgemeine Gerichtsordnung of 1781 (here on the website of Prof. Gerhard Koebler). When Klein and his collaborators went around to look for inspiration in the procedural Codes of other nations, they were struck by Belgium, which appeared to have a well-functioning, modern system of civil procedure. Mueller-Erzbach writes: "When they began to study the historical origins of this exemplary system, they found, to their great surprise, that its source was the very same Gerichtsordnung that had remained in force in Belgium from the time that country had belonged to Austria. This same point of departure had been sufficient for Belgian judges to create a wholly modern law of procedure!". Interestingly enough, the well-known Belgian scholar of procedural law Professor Marcel Storme has written that Klein's 1898 Zivilprozessordnung, in turn, became a model for reform in Germany, Greece, large parts of Central Europe, Scandinavia and elsewhere. The new legislation emphasised the 'social function' of judge and procedure and held that procedural law should take into account 'the general interest' and 'the efficiency of process'.

Does anyone know of a modern parallel to this story? I'd be interested.

In addition: Two of the many useful historical sources online for German and Austrian law, are Professor Professor Gerhard Koebler's website (with extensive who-is-who and who-was-who lists of German jurists and lots of information on legal sources) and this great collection of Legal History Podcasts (in German) from the Law Faculty at the University of Trier.

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