Effects of the New Name Law
https://oops.uni-oldenburg.de/513/1/navfam03.pdf/
On the History of Name Law in Germany and the Current Choice of Surname
The new name law, widely discussed years ago, has received hardly any attention in the public media since its last amendment in 1994 (Böhnisch/Lenz 1997: 51). Legal experts have paved the way for name continuity even upon marriage; self-determination in name choice is intended to take identity processes and individual preferences into account. Thus, the change in this legal provision is seen as an expression of general societal change, described as "individualization" or "deinstitutionalization," e.g., of marriage and family. With the introduction of the new name law, Bender observes the "unstoppable decline of patriarchy" (Bender 1991: 250), which, however, no one seems to lament anymore
Even if the legal requirement for women to change their name upon marriage has been abolished, it could potentially experience a "joyful resurrection" on an individual or partnership level. Has the legal change perhaps led to the paradoxical effect that a "battle" previously waged between individuals and legal institutions has now been transformed into many individual "fights"? Is this new "freedom" even being embraced?
1 A Historical-Sociological Review of the Selection of First Names and the Origin of Surnames
It should first be emphasized that family names were not common in our cultural sphere until the late Middle Ages; people only used first names. Occasionally, personal bynames were added, mostly in adulthood and more often for members of the nobility. Even the choice of first names was limited and, incidentally, remains so to this day. The first name was (and still is) meant to indicate gender; that is, naming represents a labeling process in which the social role (male/female) is publicly and permanently assigned to the infant. The alternative—as Struck writes—"that people are given human names is almost never considered" (1991: 412). Furthermore, in earlier times (even into the last century), social class was often discernible from first names According to a study by Gerhards and Hackenbroch (1997: 424), a stratification in the allocation of first names can now As far back as we can look in history, the principle of name repetition was characteristic of the European system of giving first names (Mitterauer 1993: 22). The first bearer of the name was often meant to serve as a model for the second. Furthermore, historically, parents were initially bound to naming their children after ancestors or chose the names of deceased siblings again. Then, with the spread of Christianity, the practice of naming children after saints increased. Mitterauer writes: “In the long run, however, the new principle of naming children after saints led to a latent tension: With the veneration of new saints, or those whose names had not yet been established in the family, such competition arose again and again. The tension between ancestors and saints is one of the major leitmotifs of Christian-European naming practices from late antiquity well into the modern era” (Mitterauer 1993: 16). This tension still resonates in the response of a Salzburg mountain farmer in 1987 to the question about the naming of her many children; she said:
“When there are many children in the family, then the inherited names come into play,
and then the priest says what they should be called” (quoted in Mitterauer 1993:
MITTERAUER, M. (1993): Ahnen und Heilige – Namengebung in der europäischen Geschichte. München quoted by Mitterauer.
"For over a millennium, naming practices in Europe were determined by a system of naming after role models—ancestors and saints. This work by family and social historian Michael Mitterauer traces the origins and development of this European naming system in an intercultural comparison, up to the profound changes of the 20th century."
with, in response to the question about the naming of her many children; she said: "When there are many children in the family, then the inherited names come into play and then the pastor says what it should be called" (quoted in Mitterauer 1993: 13).be observed; I would add, however, not with regard to gender. This restriction is still legally enshrined today.
Thus, gender-neutral first names must be supplemented by another gender-specific first name (Diederichsen 1987: 80).
Only since the 11th century has a hereditary family name occasionally been added to the given name, initially among the nobility. For the first time, wives increasingly adopted their husband's surname and added a suffix indicating their lineage.
Surnames only became established very slowly among the middle class. The first documented family names—found sporadically—date back to 1106 in Cologne (Brexel 1962: 8). They only became a general social norm about 200 years ago. Initially, surnames were chosen and borne—apart from the nobility—only by the wealthy middle class, especially by banking and merchant families. For them, the use of surnames was intended to enable the identification of the bank or trading house even across regional distances. The surname was meant to be—as we would say today—a "seal of approval" and a "letter of credit"; therefore, family members who "disgraced" the name could have it revoked. Furthermore, name changes were possible at any time during that period. In rural areas, farm names were chosen as surnames, which is why, for a very long time, it was even possible for the husband to adopt his wife's surname if it was a farm name
For women, name continuity was possible at that time. Until well into the 17th century, they predominantly retained their birth name after marriage (possibly with an addition referring to the name of their husband's farm or family business). Above all, the general development of a bourgeois sense of "family" then reinforced the process of the shared family name. Thus, in this social class, the surname took on the function of documenting family tradition; naturally, this tradition was oriented only towards the male line and was a sign of the patriarchy that prevailed at that time, especially in these families.
Over time, the practice of naming and inheritance has therefore only slowly become established in all social classes over the last 200 years or so, and has finally become part of custom
The first legal rules regarding surnames, which only partially had the force of law (Brexel 1962: 53), were established in the late 18th and early 19th centuries. Military purposes, namely facilitating the registration of young men within the framework of universal conscription, were likely a primary reason for their legal codification (Schwenzer 1991: 390). The surname now also acquired an identification and organizational function.
General legal regulations concerning surnames were then incorporated into the General Prussian Land Law of 1794.
The use of surnames became obligatory throughout Germany primarily through the introduction of civil marriage in 1875. Kaserer reports that in Austria, from 1878 onward, anyone who "did not yet have a specific family name and refused to adopt one despite official requests" was to be punished (quoted in Raschauer 1978: 3).
The legal requirement to bear a surname (the special regulations regarding naming for Jews cannot be discussed here) is therefore of relatively recent origin, approximately 130 years old. With the introduction of the German Civil Code (BGB) on January 1, 1900, name continuity was enshrined (name changes were now difficult, required approval, and necessitated justification), while the change of a woman's name upon marriage was legally mandated. This legal provision was justified by the framers of the BGB as follows: "It is a natural consequence of the intimacy and lifelong significance of the marital union that both spouses bear the same surname. The husband's position dictates that the wife receives his family name, and she is not only entitled but also obligated to bear it" (Schwenzer 1991: 391). In the case of divorce, the woman could keep the man's family name or resume her own name; she might even be obliged to change her name if she was declared predominantly at fault for the divorce and the man forbade her from continuing to use his name.
In 1958, the law on names in the Federal Republic of Germany was amended by Section 1355, which allowed the wife to add her maiden name to the married name, but only that name, not a
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name acquired through a previous marriage. The period of the first marriage remained unconsidered with regard to names; one could also say: This phase of life was annulled with regard to names. But overall, this amendment—namely, the possibility for the woman to bear a double surname—partially abolished the unity of name for the newly formed marriage and family.
In the GDR, the 1965 Family Code stipulated a choice; couples had to choose either the wife's or the husband's surname as their married name. Using a double surname was not permitted (Schwenzer 1991: 392; Struck 1991: 412).
In 1976 and 1979, the law on names in the Federal Republic of Germany was amended again. While the choice of a shared married name remained in principle upon marriage, it was now possible to place the birth name or the name used at the time of marriage before or after the husband's surname.
However, Section 1355 was amended by adding paragraph 2, sentence 2 of the German Civil Code (BGB), which again failed to comply with the principle of equality and Article 3, paragraph 2 of the Basic Law (GG). If the spouses made no choice, the husband's birth name became the married name
Without being able to go into all the individual changes here, it should only be recalled that the First Senate of the Federal Constitutional Court emphasized in its decision of March 5, 1991: "A person's birth name is an expression of individuality and identity; the individual can therefore, in principle, demand that the legal system respect and protect their name" (Bender 1991: 250). This finally established the legal recognition of the name as a personal right, and it is now part of the constitutional protection of personality rights (Raschauer 1978: 23). Accordingly, the existing options under Section 1355 in its 1976 version were expanded in 1994, allowing spouses to each retain their own name if only one wishes to do so or if no agreement can be reached (Struck 1991: 412).
The Federal Constitutional Court and the legislature (despite the controversial discussion among legal scholars; cf. Giesen 1993: 73) have thus – as can be seen from the reasoning – adapted the name law to general social change, namely the increased freedom of choice, by increasing the freedom of choice
a process of individualization and deinstitutionalization, want to adapt. The name is recognized as both identity-forming and identity-stabilizing, and is one of the reasons for the personal right to choose. Name continuity is guaranteed, as is a change of name, but only to a limited extent. This means that the choice can only be made with regard to the partner's name. For example, choosing a completely new shared surname upon marriage (e.g., to demonstrate the new, shared identity) is excluded. In the literature, bureaucratic reservations are cited as justification for completely free choice of name and for name changes; but surnames have long since lost their administrative function of ordering and identifying through personal numbering.
In contrast, there are other countries, such as the USA, where names are largely at the individual's discretion under the law. In principle, everyone is free to choose their own name and whether to change it (for example, Hillary Clinton retained her birth name after her marriage and only adopted her husband's name after he took office as president). This principle of fundamental freedom of name choice dates back to English common law. The question of what name a wife uses after marriage is also subject to the principle of freedom of name, which means that everyone can change their name at will and without giving a reason; this applies equally to surnames and given names (Flessner 1993: 181). Interestingly, however, patriarchal naming conventions are predominantly chosen in everyday life. In Switzerland, the opposite is true: Although legally the woman received the man's surname until 1984, it was common practice—a legal custom—for her, or the couple, to use a double surname consisting of their two birth names. Since 1984, according to Article 160 of the Family Law, the man's surname remains the family name. The woman—and only she!—can now, with the express consent of the legislature, place her birth name first (Boschan 1972: 477; Bergmann/Ferid 1995).
Looking back at the history of German naming law, it becomes clear that the determination of surnames reflects the development of the patriarchal, upper-middle-class family and family tradition. Because both became the general guiding principle for all social classes, their use of surnames eventually spread as customary law to all population groups. Legally codified naming law in Germany adapted to this development relatively late, but then narrowed the selection of names based on custom and tradition with regard to the patriarchal family order, no longer allowing exceptions such as name changes, adoption, or continuation of the wife's surname. Only in recent years have the scope for flexibility within the administrative regulations governing naming been expanded.
Therefore, the initial question remains: has the new naming law, as intended by the legislator, actually adapted to societal developments—that is, to the changed system of values and norms, altered attitudes and needs—or is it still lagging behind social change, meaning that a cultural lag persists? Perhaps, however, the legislator has even overtaken societal developments with the new naming law?
Source: Rosemarie Nave-Herz Bibliotheks- und Informationssystem der Universität Oldenburg 2003 Familie zwischen Tradition und Moderne Ausgewählte Beiträge zur Familiensoziologie Herausgegeben und eingeleitet von Friedrich W. Busch
Review of Mitterauer
Similarly, the introduction of naming after rulers in the Merovingian and Carolingian royal houses is only discussed towards the end of the book, following the chronologically subsequent naming after rulers and saints.
One of the most surprising results is the remarkable parallel in naming between ancient Ireland, with names consisting of mug (slave), mael (cleric), etc., followed by a saint's name (e.g., Mael Patrick), and Coptic Egypt, Ethiopia Christianized from Egypt, and Islam strongly influenced by Egypt (e.g., Abdallah 'servant of God'). A Coptic influence in ancient Ireland, also manifesting itself in, for example, the introduction there of the ascetic Egyptian monasticism, and thus also the early Christianization of Ireland from Egypt, is self-evident.
The greater part of the book is devoted to the Western European naming after rulers, mainly beginning in the 10th century, and after saints, beginning in the 11th century, resulting in a considerable impoverishment of the stock of names and a strong concentration of certain names (e.g. Wilhelm, Johannes, Maria), in turn leading to a new differentiation of name bearers through the addition of a surname, later a family name; however, this latter phenomenon is only briefly touched upon.
According to the author, the origin of naming children after rulers is rooted in the feudal system: the lord acted as godfather to the vassal's children, who consequently received names from the lord's family. According to him, the origin of naming children after saints is linked to the belief in the magical power of the saint's name, concentrated in his feast day, just as previously this power, albeit with only local influence, was believed to be active in his mortal remains: his tomb, his relics. The belief in the determining influence of the day on which life begins or rebirth occurs through baptism is comparable to the supposed good or evil influence of the day on which one began a work, embarked on a journey, etc., and the still popular astrology. The patron saint was regarded as an intercessor with God and as granting His protection not only during illness or calamity in earthly life, but also and especially at the hour of death and during the crossing from purgatory to heaven. In this regard, the influence of Byzantium is also evident, where naming people after saints already occurred in the 4th century and where images of saints also had amulet value.
Name statistics in Germany: https://www.name-statistics.org/de/numetara.php?pagina=1312
Name project:Link. Das Digitale Familiennamenwörterbuch Deutschlands (DFD)
German names (endings of names): https://wiki.genealogy.net/Kategorie:Familienname_mit_gleicher_Endung
Medieval Names: https://www.s-gabriel.org/names/german.shtml