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Otto Friedrich von Gierke, born Otto Friedrich Gierke (11 January 1841 – 10 October 1921) was a German legal scholar and historian. He is considered today as one of the most influential and important legal scholars of the 19th and 20th century. In his four-volume magnum opus entitled Das deutsche Genossenschaftsrecht (German Law of Associations),[1] he pioneered the study of social groups and the importance of associations in German life, which stood between the divide of private and public law. During his career at Berlin University's law department, Gierke was a leading critic of the newly drafted German Civil Code, arguing that it had been moulded in an individualistic frame that was inconsistent with German social traditions. He helped to advance the concept of social law, over the classical division of public law and private law.[2]

Biography

Otto von Gierke was born in Stettin (Szczecin), Pomerania, and died in Berlin. He specialised in the study of the German antecedents of German law. His view of the Rechtsstaat (state on a legal basis), and his emphasis on the federal nature of medieval states, became important and debated. In fact, he said the society grows up because people form groups and groups of groups, from families to the State. He stood as an opponent of the trend of civil law interpretation and theorising. His theory took up some older ideas from Thomas Aquinas and Dante Alighieri (De Monarchia).

His academic teacher was Georg Beseler. Beseler was known for his studies and research in the field of Germanic Law and was part of the German Historical School.

Abroad he was a major influence on the British historian of law F. W. Maitland, who translated as Political Theories of the Middle Ages some of Gierke's major works, and on John Neville Figgis.[3]

Work

Gierke is well-known for his academic work on Commercial Law. Especially, he conducted research in the German Law of Association ("Das deutsche Genossenschaftsrecht").

In his critique regarding the German Civil Code Gierke defined his understanding of private property. He understood property as a right that is embedded in social relations within the society. Property should be used not only for the good of the owner but also for the good of society. Meantime the German Civil Code intended in its first draft to design private property as a right that can be fully exercised by the owner. In this conceptual decision, the German Civil Code showed up the influence of Roman Law. In this area of conflict Gierke stood up for a more germanic and traditional understanding of Law.

Personal life

His son Edgar von Gierke was a highly respected pathologist who discovered glycogen storage disease type I in 1929,[4] while his oldest daughter Anna was among the first group of women elected to parliament in Germany in 1919.[5][6] He was ennobled in 1911.

Publications

• Das deutsche Genossenschaftsrecht (Berlin 1868–1913) 4 volumes
  • vol 1. Rechtsgeschichte der deutschen Genossenschaft (1868) introduction translated by John D Lewis, The Genossenschaft – Theory of Otto von Gierke; A Study in Political Thought (1936) and selections translated by Mary Fischer and Anthony Black as Community in Historical Perspective (1990)
  • vol 2. Geschichte des deutschen Körperschaftsbegriffs (1873)
  • vol 3. Die Staats- und Korporationslehre des Alterthums und des Mittelalters und ihre Aufnahme in Deutschland (1881). Sections 3–5 was translated as Associations and law: The classical and early Christian stages by George Heiman (1977); §11, pages 500–640, 'Die publicistischen Lehren des Mittelalters' was translated by FW Maitland as Political Theories of the Middle Ages (1900).
  • vol 4. Die Staats- und Korporationslehre der Neuzeit (1913) Section V, §§14-8 translated by Ernest Barker as Natural law and the theory of society, 1500 to 1800 (1934).
• Die soziale Aufgabe des Privatrechts (Berlin 1889) translated by Ewan McGaughey as 'The Social Role of Private Law' (2018) 19(4) German Law Journal 1017
• Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorie (Berlin 1880) translated by Bernard Freyd as The Development of Political Theory (1939)
• Naturrecht und Deutsches Recht: Rede zum Antritt des Rektorats der Universität Breslau am 15. Oktober 1882 gehalten (Frankfurt 1883)
• Rudolf von Gneist: Gedächtnissrede gehalten in der Juristischen Gesellschaft zu Berlin am 19. October 1895.
• Deutsches Privatrecht (Leipzig 1895) 3 volumes
  • 1. Allgemeiner Teil und Personenrecht (1895) on the General Part and the Law of Persons
  • 2. Sachenrecht (1905) on Property Law
  • 3. Schuldrecht (1916) on the Law of Obligations
• Schuld und Haftung im älteren deutschen Recht, insbesondere die Form der Schuld- und Haftungsgeschäfte (1910)

See also

• German law
• Labour law and company law
• Social law
• Private law and civil law

Notes

References

• Scruton, Roger,"Gierke and the corporate person" in The Philosopher on Dover Beach, Manchester, Carcanet Press, 1990. ISBN 0-85635-857-6

External links

• Works by or about Otto von Gierke at Internet Archive
• 'The Social Role of Private Law' (1889) translated by E McGaughey (2016)
• Political Theories of the Middle Ages (1881) translated by FW Maitland (1900)

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