Klaus-Wilhelm Canaris is a contemporary master of jurisprudence, who has made significant contributions in the field of civil and commercial law and methodology, and his status is comparable to that of Yellin. In the field of legal methodology, he creatively demonstrated the relationship between loophole identification and loophole filling, and established the mainstream legal loophole theory today. In terms of the third-party effectiveness of fundamental rights, he creatively promoted the development of traditional doctrines from the perspective of the protective function of fundamental rights. The principle of trust and responsibility is a "discovery" that has the same status as Yellin's "contractual negligence liability". Canaris's personality, scholarship and life sentiment reflect a fascinating master, becoming a timeless classic and a model of a legal man.
Text | Zhou Wanli
"In memory of the "godfather" of civil law, Klaus-William Canari"
The prominent German jurist Claus-Wilhelm Canaris, who made significant contributions to the field of civil law theology and legal methodology, passed away on March 5, 2021.
The news was made public a month later, the day before China's Qingming Day.
Canaris's academic activities were mainly in the second half of the 20th century and the first decade of the 21st century, succeeding his mentor, Professor Carl Larenz, with the University of Munich as the center, becoming a key figure in shaping contemporary German private law and in other countries influenced by German law, pushing the theory and practice of private law theology to its peak.
Canaris's doctoral dissertation, "Identification of Legal Loopholes," completed at the age of 26, surpassed his teacher Carl Larenz's achievements in legal methodology in terms of depth and precision of argumentation.
At the age of 34, Canaris published "The Duty of Trust in German Private Law", based on a thesis on the appointment of professors, became the "discoverer" of the responsibility of trust. His discovery is comparable to that of contractual negligence that Rudolf von Yelling discovered.
During the 2002 reform of the German debt law, Kanaris was a member of the Payment Impediment Commission, which had an important influence on the reform of the German debt law.
Most of Canaris's disciples are current law professors, including Professor Reinhard Singer of Humboldt University in Berlin, Professor Marietta Auer, Director of the Max Planck Institute for the History of European Law, Professor Jörg Neuner of the University of Augsburg, and Professor Hans Christoph of the University of Munich Grigoleit； Successor to the Kanaris Chair), Professor Katja Langenbucher of the University of Frankfurt, Professor Jens Petersen of the University of Potsdam, and Professor Chen Ziqiang of National Taiwan University School of Law.
Canaris received four commemorative collections, which are rare among German professors. The access of professors to commemorative essays is an important criterion for evaluating a professor's reputation and contribution. Among them, the number of commemorative collections, the editor-in-chief, the quality of articles, and the level of article authors all reflect the importance of commemorative collections. Except for a very few who oppose the publication of commemorative anthologies, prominent figures in law generally have multiple commemorative anthologies. There are many important studies and articles, which are presented as articles from commemorative anthologies.
Canaris's first commemorative anthology was Unity and Coherence in Legal Thinking in 1998, edited by five of his protégés. The second commemorative anthology is "Continuity in the Changing Legal Order", which commemorates Canaris' 65th birthday in 2002. The third commemorative anthology is the two-volume Klaus-Wilhelm Kanaris 70th Anniversary Anthology, which commemorates Canaris' 70th birthday in 2007. The final anthology is the Doctrine of Private Law in the 21st Century, which commemorates Canaris' 80th birthday in 2017. In addition, the three-volume Complete Works of Klaus-William Canaris was published in 2012 by De Guitt Verlag.
Klaus-Wilhelm Canaris was born on 1 July 1937 in Legnica, Silesian Voivodeship. His father, Konstantin Canaris, not only completed two bar exams, but also earned a doctorate in law from the University of Cologne, and later headed the Secret Service in Hitler's totalitarian government. Canaris 's grandfather , Carl August Kanaris , was a manager of large corporations, and his uncle Wilhelm Kanaris was an admiral in Hitler's government and head of military intelligence before being executed for his involvement in Hitler's assassination.
Such a family background had a profound effect on Klaus-William Canaris.
From 1943 to 1957, Kanaris attended secondary and high school in Königsberg, Misbach in Upper Bayern and Düsseldorf. In 1957, he completed the college entrance examination at Madame de Dusseldor Vine High School. He then studied law, philosophy and Germanic literature in Paris, Geneva and Munich, and passed two state bar examinations in Munich. Among other things, he became an academic assistant to Carl Larenz. Under Larenz's supervision, Kanaris completed his doctoral thesis and his dissertation as a professor.
In August 2017, I visited Canaris, who had just celebrated his 80th birthday, at his home and conducted an interview. Canaris was working on an arbitration case as an arbitrator at the time, and after coordination, he decided on the exact timing of the interview.
The door number on the main entrance of Canaris's house no longer reads "Claus-Wilhelm Canaris", and the author believes that Canaris deliberately erased his name to avoid being disturbed by the outside world.
Canaris welcomed me into the house on crutches, made me a cup of coffee, and then exchanged pleasantries for a while and did an in-depth interview.
This interview will be published in The Commercial Press's 2021 translation of "Masters of Private Law in the 20th Century". The book also includes an article by Kanaris about his mentor Karl Larenz "Karl Larenz" (which has been published in the Sino-German Legal Forum sponsored by the Sino-German Institute of Law at Nanjing University Law School, see Klaus-Wilhelm Kanaris: "The Life, Works and Ideological Context of Karl Larenz", Sino-German Law Forum, No. 1, 2019, translated by Zhou Wanli, pp. 145-183), and Klaus-Wilhelm Singh, by Kanaris's disciple Reinhard Singh. Canaris (This article was also published in the collection "Legal Methods" sponsored by the Institute of Legal Methods of East China University of Political Science and Law, see [de] Reinhard Singh: "The Legal Methodology of the "Discoverer" Canaris", Legal Methods, Vol. 24, 2018, translated by Zhou Wanli, pp. 45-60).
Klaus-Wilhelm Kanaris, like the "godfather of civil law", had an important influence not only on German private law, but also on the idea of private law in statutory countries.
In the history of legal development, Klaus-William Canaris is a great monument.
Chinese translation of Canaris's works //
Canaris: Identification of Legal Loopholes, Peking University Press, 2023
Kanaris: "The Life, Works and Ideological Context of Karl Larenz", Sino-German Legal Forum, No. 1, 2019, translated by Zhou Wanli, pp. 145-183
Canaris: German Business Law, translated by Yang Ji, Law Press, 2006
Canaris: "Reform of the German Payment Impediment Law", Sino-German Legal Forum, 2003, translated by Ding Yong, pp. 90-126
Canaris: "The Function of the General Provisions of the Civil Code and the Limits of Their Role", Sino-German Studies in Private Law, vol. 10, 2014, translated by Chen Dachuang, pp. 86-99
Canaris: "Fundamental Rights and Private Law", Comparative Law Studies, No. 1, 2015, translated by Zeng Tao and Cao Yuchen, pp. 171-195
Canaris: "Legal Prohibitions and Legal Acts", Sino-German Private Law Studies, No. 13, 2016, translated by Zhao Wenjie and Zhang Chuan, pp. 55-82
The following is the biographical information of Professor Canaris (https://www.jura.unimuenchen.de/personen/c/canaris_claus_wilhel/vita_cwc/index.html) published on the official website of the Law School of the University of Munich, which is specially translated as Chinese as a memorial. ——Yan Dayuanzhao Law Classroom
Chronology (July 1, 1937–March 5, 2021) //
| July 1, 1937 | Born in Lignitz (a city in southwestern Poland). |
| 1943-1957 | Attended primary and secondary schools in Königsberg, (Upper Bavaria) Misbach and Düsseldorf |
| In 1957 | He graduated from the Lycée düsseldor and was admitted to the German People's Research Foundation |
| 1957-1961 | Studied law, philosophy and Germanic linguistics in Munich, Geneva and Paris |
| In 1961 | Passed the first state examination for law in Munich and subsequently worked as an academic assistant to Carl Larenz |
| In 1963 | PhD in Munich under the supervision of Carl Larenz (thesis title: "Identification of legal loopholes") |
| In 1965 | Passed the second state examination for law in Munich |
| In 1967 | Professorship in Munich under the supervision of Carl Larenz (thesis title: "The duty of trust in German private law") |
| 1967/1968 | Acting Chair at the Universities of Erlangen-Nuremberg and Regensburg |
| In 1968 | Refusal of an offer from the University of Regensburg |
| Full Professor of Austrian Labour Law and German Private Law, University of Graz | |
| In 1969 | Full Professor at the University of Hamburg |
| Since 1972 | Full Professor of Civil, Commercial and Labour Law and Philosophy of Law, University of Munich (succeeding Carl Larenz) |
| 1974-2001 | Executive Director of the Institute of Civil Law and Civil Procedure Law, Acting Executive Director of the Institute of Commercial Law, Economic Law and Labor Law |
| 1976/1977 | Dean of the Faculty of Law and member of the Academic Council |
| 1983-1995 | Member of the Board of Directors of the Bavarian Exchange (Honorary Investor Representative) |
| 1984-1992 | Specialist in civil law at the Deutsche Research Foundation |
| 1987-1993 | Member of the Board of Directors of the Society of Civil Law |
| In 1988 | He was awarded the Leibniz Prize by the Deutsche Research Foundation |
| Since 1990 | Senior Member of the History of Philosophy of the Bavarian Academy of Sciences |
| In 1990 | Awarded an honorary doctorate of law by the University of Lisbon |
| Since 1991 | Senior Academician of the European Academy of Sciences and Arts, Salzburg |
| In 1993 | Awarded an honorary doctorate of law by the University of Madrid (Autonomous Region). |
| In 1993 | He was awarded an honorary doctorate in law by the University of Graz |
| Since 1994 | Senior Member, Association of European Scholars of Private Law, Pavia |
| In 1994 | He was awarded an honorary doctorate in law by the University of Athens |
| Since 1995 | Corresponding Member of the Austrian Academy of Sciences (History of Philosophy), Vienna |
| In 1997 | In commemoration of his sixth birthday, a symposium on the general theme of "Unity and Coherence in Legal Thinking" was held, by I. Koller, J. Hager, M. Junker, R. Singer and J. Koller. Neuner hosted and published conference proceedings (1998) |
| In 1997 | Research Fellow, Japan Association for the Promotion of Science |
| In 1998 | Honorary Research Fellow, Senior Legal Research Institute, London |
| 1999-2006 | Member of the History of Philosophy of the Bavarian Academy of Sciences and Vice-President in 1999, 2001, 2003 and 2005 |
| In 2000 | He was awarded the Cross of Merit 1st Class of the Federal Republic of Germany |
| In 2001 | Member of the Impediment to Payment Law Committee convened by the Federal Ministry of Justice |
| 2002-2005 | Head of the Institute of Private Law and Civil Procedure Law |
| In 2002 | "Continuity in the Changing Legal Order," Collected Essays on the Sixty-fifth Birthday, J. Hager, F.C. Hey, I. Koller, K. Langennbucher, J. Neuner, J. Petersen and R. Published by Singer |
| Since 2003 | Senior Foreign Member, Veneto Faculty of Sciences, Humanities and Arts, Venice |
| October 1, 2005 | retire |
| In 2005 | He was awarded an honorary doctorate in law by the University of Verona |
| In 2006 | He was awarded the Bavarian Maximilian Medal of Science and Art |
| In 2007 | The Birthday Celebration of the Seventh Rank, two volumes, pp. 1532, 1480, published by A. Heldrich, J. Prölss, I. Koller, K. Langenbucher, H.C. Grigoleit, J. Hager, F.C. Hey, J. Neuner, J. Petersen, R. Singer |
| In 2008 | Senior Foreign Academician of the Lombardy Academy of Sciences and Humanities, Milan |
| Member of the Centre for Advanced Studies at the Ludwig-Maximilian University of Munich | |
| In 2012 | The Complete Works of the Works, three volumes, pp. 990, 870, 1558, J. Neuner and H.C. Grigoleit in collaboration with I. Published by Koller, J. Hager, M. Junker, R. Singer, J. Petersen, K. Langenbucher, F. Hey, C. Herresthal, T. Riehm, M. Auer |
| In 2017 | 《八秩华诞祝寿文集》，1282页，A. Auer, H.C. Grigoleit, J. Hager, C. Herresthal, F. Hey, I. Koller, K. Langenbucher, J. Neuner, J. Petersen, T. Riehm, R. Singer出版 |
| 5 Mar 2021 | Died in Munich |
Identification of legal loopholes
Methodological research on the limits that judges propose before the law of extra-legal continuation
(2nd Edition)
[de] Klaus-William Canaris by Yang Xu, trans
✈ Professor Canaris is a famous work and a classic work in the field of legal methodology
Legal loopholes refer to the incompleteness of the plan for violations of positive law, and their function is to define the field of "discovery of law outside the law", thus distinguishing it from "discovery of law according to law" (interpretation) and "discovery of law contrary to law" (amendment). The criterion for distinguishing the field of loopholes from legal interpretation is the possible meaning of norms, and its outermost boundary depends on the legal order as a whole. The criteria for determining loopholes include the positive law provisions themselves, the evaluation of positive law (especially together with the principle of equality), and the principles and values of universal law, which determine three different legal loopholes: the denial of adjudication loophole, the purposive loophole and the principle and value loophole. As far as the relationship between loophole determination and filling is concerned, the two are separated from each other in the case of refusing to adjudicate loopholes, and maintain unity in the case of purposeful loopholes, while in the case of principle and value loopholes, the identification of loopholes points out the general direction for filling, which can reveal the three types of pushes that are "possible", "inevitable" and have "concrete functions". The boundary of loophole filling is in the first two types of loopholes situations involving non-fillable loopholes and prohibition of analogy, respectively, and the third situation is both.