Otto von Gierke
Otto Friedrich von Gierke ( born January 11, 1841 in Stettin as Friedrich Otto Gierke, † October 10, 1921 in Berlin) was a German legal historian and politician.
Family
Otto Gierke was born as the eldest of five siblings. His parents - Julius, Appellationsgerichtsrat in Bromberg and Therese Gierke born Zitelmann - died in 1855 from cholera. The orphaned children were taken from Stettin relatives.
Gierke in 1873 married Marie Cecilia Elise Löning, daughter of the publisher Karl Friedrich Loening. The eldest daughter Anna von Gierke is considered one of the founders of modern social work. The son of Edgar von Gierke was pathologist. The son of Julius von Gierke followed his father as a legal historian. The daughter Hildegard von Gierke was involved also in the social education.
1911 Gierke was ennobled by Kaiser Wilhelm II.
Life
Otto Gierke studied from 1857 law at the Friedrich- Wilhelms- University of Berlin and the Ruprecht -Karls- University of Heidelberg. With a PhD thesis with the eminent legal historian Carl Gustav Homeyer he received his doctorate in 1860 for Dr. iur .. Since 1865 Gerichtsassessor, he habilitated in 1867 in Berlin with a font for cooperative law, which should later form the first volume of his German co-operative law.
After he had declined the offer of the University of Zurich, he became in 1871 first extraordinary Professor in Berlin. In the same year he was appointed the Silesian Friedrich Wilhelm University in Breslau. For the academic year 1882/83 he was elected its rector. In his rectorial address on 15 October 1882, he was concerned with natural law and German law.
In 1884 he moved to a professorship in Heidelberg in 1887 and finally came back to the University of Berlin. 1902/ 03 he was rector there. In October 1902, he spoke about the nature of human associations. At a memorial service for Frederick William III. ( Prussia) in August 1903, he came to terms with the Historical School of Law and the German studies.
Gierke was a member of the 1896 first meeting within founding committee of the German legal dictionary ( DRW).
He was a member of the Heidelberg fraternity Allemannia.
Science
Cooperative law
Gierke developed through historical analysis of a conception of the cooperative law, which had its origin in his teacher Georg Beseler. He joined as Beseler, the Germanic form of the Historical School of Law at. Given its key contributions to cooperative law he is considered the " father of the cooperative law."
He distinguished the cooperative association ( clan, family unit, in the Middle Ages, bodies) of the manorial Association ( feudal associations, and later institutions, public law institutions today, the state); the cooperative denote a union based on free body. Sociologists such as Franz Oppenheimer designated consequently the cooperative as horizontal social relationship.
By the Roman law, which placed the individual and his freedom in the foreground, the cooperative social structure of German law could be broken by the time of absolutism. Gierke was by investing principally as a social being understood the people ( cf. Aristotle's political animal ), an early critic of individualism.
Theory of the real association personality
On Gierke the so-called theory goes back from the real personality association, occur after the civil societies as separate entities in legal relations. Gierke, claiming victory in conflict with the Roman legal understanding of the societas as a purely contractual relationship, whose legal personality is only fictitious, and laid the foundation for the further development of company law and in particular the total hand doctrine (§ § 705 ff BGB).
In other respects, Gierke's approach sounds today by the Civil Code. § 26 II 1 ms 2 German Civil Code speaks of the Board of Directors have the " status of a legal representative ." The legislature intended by a decision to avoid between the from Gierke understanding, compelling insight that companies themselves through bodies act ( organ theory ), and to the Roman legal understanding particular v. Savigny constructive view that the shareholder association merely attributed to the actions of the shareholder will (representative theory).
See also the article on the legal person.
Work
Gierke has shaped the German law through his research. Gierke considered an important proponent of the German - legal concept of property (opposite the Roman law ), which he developed especially the history of the cooperative law. This view of the law is to be found ( " Property entails obligations "), nor in the Basic Law.
The concept of social law goes back to Gierke. He meant, however - in contrast to today's parlance - neither the right nor the social welfare law, but the internal law of the associations / cooperatives ( cf. Latin: socius, the confederate ).
Gierke was a supporter of the organic theory of the state, which rubbed off on his student Hugo Preuss.
Writings
- The German cooperative law, 4 vols, Berlin 1868, 1873, 1881, 1913 (unfinished)
- German Private Law, 3 vols, Leipzig 1895
- Natural law and German law, Frankfurt 1883
- Johannes Althusius and the development of natural law theory of the state, Berlin 1880