Otto von Gierke

Otto von Gierke

The German jurist Otto von Gierke (1841-1921) was a leader of the Germanistic school of legal historians and is best known for his theory of the nature and role of associations, called the Genossenschaft theory.

Otto von Gierke, born on Jan. 11, 1841, in Stettin, was the son of a Prussian official. He spent his early years in a family atmosphere that was highly respectable, cultured, and intensely Prussian. The latter part of his university training was at Berlin, where he was strongly influenced by George Beseler, a Germanist in juristic theory. Gierke's early career was interrupted by wartime service in the army. After holding professorships at the universities of Breslau (1872-1884) and Heidelberg (1884-1887), he succeeded to Beseler's chair at the University of Berlin in 1887. He remained in that post until his death on Oct. 10, 1921.

In Gierke's early years the dominant influence in German legal history and jurisprudence was that of the Romanists, led by Friedrich Karl von Savigny. Writers of this school looked back to the Justinian Code and to later students of Roman law for guidance in interpreting the development and meaning of German law. As an ardent Germanist, Gierke tried to seek out those legal principles that were "truly German." In the first of his famous four volumes on the German law of association (Das deutsche Genossenschaftsrecht, (1868-1913), he began his painstaking study of the development of the German concept of association. This study occupied much of the rest of his life. The massive research and perceptive analysis that went into the four volumes made the study an acknowledged classic in the literature of legal and political theory.

In his historical study Gierke found support for his conception of associations as having a real personality of their own, rather than a fictitious personality that is merely attributed to them by law. He argued that modern law, when it deals with such groups as joint-stock companies, trade unions, or churches, should recognize that such associations, like medieval guilds or local communes, organize themselves for their own purposes, have their own system of social law, and are capable of collective willing and acting. In the complex pattern of associations, which includes the state itself, the humblest and most narrow of them has some of the same dignity and value as the highest and most comprehensive.

Gierke's Germanism appeared also in a series of articles criticizing the first draft of a new civil law code for its neglect of Germanic principles, and in three books (1895-1917) on German civil law in which he undertook "to penetrate the new code with a Germanistic spirit."

The American philosopher Morris R. Cohen called Gierke "a sort of patron saint of political pluralists." The British legal historian Frederic Maitland did much to cultivate this view when he introduced Gierke to British academic circles in 1900 and emphasized Gierke's legal doctrine of the autonomous real personality of associations. But Gierke was definitely not a political pluralist. He never questioned the need for a sovereign state. The pluralistic elements of his theory were always balanced by the dominant role that he assigned to the state and its law. Nor was he an advocate of any sort of functional federalism for Germany. His devotion to Prussia and the monarchy and his concern for assured unity of the German people moved him steadily toward centralized authority and made him a vigorous critic of the Weimar Constitution of post-World War I Germany.

Further Reading

A section of Das deutsche Genossenschaftsrecht by Gierke was translated with an introduction by Frederic W. Maitland as Political Theories of the Middle Age (1900). Other sections were translated with an introduction by Sir Ernest Barker as Natural Law and the Theory of Society, 1500-1800 (2 vols., 1934). A study of Gierke, which includes translations of several portions of his books and articles, is John D. Lewis, The Genossenschaft-Theory of Otto von Gierke: A Study in Political Thought (1935). □