“In Germany, gender differences were codified in the German Civil Code of 1900 to define married women outside the category of ‘legal’ persons” – Historian Marion Röwkamp


The German Civil Code (Bürgerliches Gesetzbuch, BGB), was first drafted in 1881, ratified in1896, and formally took effect on January 1, 1900. The process, spanning nearly two decades, established national Private Law in Germany, thereby unifying the formerly disjointed, inconsistent, and regional systems of private and family laws in Germany after the unification and the founding of the German Empire in 1871.

Prior to the implementation of the BGB, different regions in Germany were governed by distinct sets of laws. Common (or Roman) law prevailed in the central regions; Jutland code, Saxon code, and Roman law governed in sections of the north; Prussian law (with some provincial variations) governed the east; and in the west, Prussian, Roman, and French laws were observed in various patches across the region. To complicate matters further, laws in the East were written in German, in the center in Latin, and in the west in German translations of French and in the original French text.

The disparities in Private law meant that women in one region could have virtually no inheritance rights, while women in a neighboring region might have equal inheritance rights to their (male) siblings. For children, this meant that while some regions honored primogeniture (in which full inheritance belongs to the first-born child), some did not. These diverse legal codes, which were drafted long before German unification in 1871, made it difficult for the recently unified state to govern efficiently and justly. Furthermore, separate laws for each region slowed the development of a national German identity, which in itself made it difficult for the new national government to become politically and administratively consolidated.

The Code Commission of 1874 sought to remedy these problems by assigning legislators, specialists, and their assistants to construct a preliminary outline of a unified German Private Law in the following areas: General part, Law of Things, Law of Family, and Law of Succession. The specialists worked for seven years and did not reconvene until 1881. At this second gathering, the members of the Commission discussed the particularities of the laws and began to make adjustments. This phase of the project took an additional six years. It was not until 1887 that the Commission presented the final version of the outline to the Bundesrat (the Federal Council), the upper house of the German parliamentary system in the German Empire.

Following its presentation at the Bundesrat, the outline (titled Project and Motivations) was printed and distributed to universities, judges, scholars, and even the general public via newspapers and magazines. Most readers looked unfavorably upon the drafted new laws. The whole body of work was criticized for its inaccessible and overly technical language. Some critics also felt that the text was “stamped with doctrinarianism,” or rather that it was too theoretical with little regard for practical implementation. Others, like the Social Democratic Party of Germany (SPD) rejected the draft of the Civil Code because it created conditions favorable to labor exploitation and made women second class citizens.

The leaders of women’s movement too sharply criticized the draft of the Civil Code for its patriarchal character: It did not give women legal autonomy; gave fathers and husband the legal right to decide for their daughters and wives allowed them to control over the money women might have inherited; confirmed the right of the final decision of husbands and fathers in all issues of the education of joint children; discriminated against single mothers and their children; and made divorce nearly impossible. But despite of their public protest, which was supported by the SPD and some Liberals, the Civil Code was accepted and implemented. On December 4, 1890, the Bundesrat submitted the text to a second panel for revision; they finished the task in June 1895. The revised draft came before the Reichstag, the national parliament of the German Empire on January 27, 1896, and by August 18 of the same year, the BGB was formally adopted. It was to take effect nationwide on January 1, 1900.

Although the BGB created a cohesive body of national German family law, it did little to improve the civil citizenship rights women in marriage and family. Radical leaders of the German women’s movement such as Lily Braun (1865-1816) and Minna Cauer (1841-1922) had protested the draft of the Civil Code harshly, because it did not include provisions for women’s suffrage, did not reform marriage and divorce laws, and did not implement legal protections for mothers in the workplace or in the case of custody disputes. During a critical moment in German women’s history, the BGB failed to progress the movement for women’s emancipation. The marriage and family law of the BGB was not reformed until 1958 and 1975 in West Germany, after a long struggle of the bourgeois and social democratic women’s movement during the German Empire, the Weimar Republic and the first decade after the Second World War.

The BGB is still in effect today, although the modern iteration is much more liberal and guarantees women full equal rights in civil law. Nevertheless, the original version is relevant in a modern context because it demonstrates how laws and legislators have institutionalized women’s inequality over decades. In learning about the BGB, modern students of the women’s movement in Germany and in Europe can see more broadly how difficult it was to make progress towards women’s emancipation within existing legal frameworks and how long it took to change especially family and marriage law, because the patriarchal family was perceived by the conservative elites and the Christian churches as the bastion of state and society.


Nicole Sotelo, History and Political Science, Class of 2019


Sources

Literature and Websites

  • “German Civil Code (1896).” GHDI–Documents, at: http://ghdi.ghi-dc.org/sub_image.cfm?image_id=1694 (Accessed April 19, 2018).
  • Fuchs, Rachel G., and Victoria E. Thompson. Women in Nineteenth-century Europe, 43-60 and 84-100. Basingstoke: Palgrave Macmillan, 2005.
  • Röwkamp, Marion, “Women’s Admission to the Legal Profession in Gwermany between 1900 and 1933.” In Women in Law and Lawmaking in Nineteenth and Twentieth-century Europe, ed. Eva Schandevyl. Abingdon, Oxon: Routledge, 2016.
  • Sagarra, Eda. A Social History of Germany, 1648-1914. London: Methuen, 1977.
  • University of Pennsylvania – Department of Law. “The German Civil Code.” The American Law Register 50, no. 12 (December 1902): 27-33. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6365&context=penn_law_review. (Accessed April 19, 2018)

Images

Cover page of the BGB