Comparative Law Spring 2002Professor Susanna Fischer

CLASS 6GERMAN LEGAL SYSTEM: HISTORICAL BACKGROUND II

WRAP-UP OF CLASS FIVE: HISTORY OF THE GERMAN LEGAL SYSTEM I

In Class 5, we looked at the historical foundations of German law, starting with the “Germanic period” (100 B.C.-A.D. 500), of customary, unwritten, tribal law

At the end of this period, German tribes invaded the Roman empire and Europe entered the “Dark Ages”

In the “Salic Frank” period (500-888), some strong Frankish kings centralized power to some degree, but their success in empire building was ephemeral.

WRAP-UP OF CLASS FIVE CONTINUED: HISTORY OF THE GERMAN LEGAL SYSTEM I

During this Salic-Frank period, some Germanic customary law was recorded. There was some imperial law applicable across the empire, but also many legal systems within the empire.

The Middle Ages was a period of imperialism in which the Holy Roman Empire (962-1806) was established.

In the 12th century, there was a “renaissance” period of urbanization, growing commerce, founding of universities starting with Bologna, and revival of interest in Roman law.

Revival of Roman Law and the Ius Commune

A copy of Justinian’s Digest was found in the 11th century.The oldest European university, the University of Bologna, became well known for the study of Roman law. Medieval scholars known as “glossators” wrote their own commentaries on Justinian’s Corpus Juris Civilis.Students spread the revival of Roman law as interpreted by the glossators (the ius commune’) across Europe.

MIDDLE AGES – GROWING CONFLICT BETWEEN CHURCH AND STATE

Famous Example – conflict between Henry IV and Pope Gregory VII in the late 11th century over lay investiture (power). Ends in a stalemate – the Concordat of Worms (1122) of Henry V and Pope Calixtus IIEventually, this Papal-Emperor conflict will lead to rise of nation states and will also propel the revival of Roman law

MIDDLE AGES: DYNASTIC CONFLICT

It was not easy to become the Holy Roman EmperorNeed support of German nobles and bishops to become king in GermanySimilar challenge to become king in ItalyFinal step – to seek coronation by Pope as the Emperor

What was the legal system like during the Middle Ages?

Important trends to bear in mind: feudalism, Holy Roman Empire, illiteracy

What was the legal system like during the Middle Ages?

Königsgericht (Reichshofgericht)Grafengerichte taken over by territorial courts (e.g. Landgerichte) – remember this was a feudal age.Few new sources of law – still used Salian Frank law although exact knowledge of Volksgerichte faded. See pp. 6-7 of your book for a few new imperial sources of lawMost people, except for the clergy, were still illiterate.

What was the legal system like during the Middle Ages?

Reichsrecht issued by Hohenstaufen Kaiser Friedrich I Barbarossa 1152-90, who, after succeeding in the dynastic “obstacle course” to become Emperor experienced similar battles between Church and State as Henry IVDied on Crusade

LATE MIDDLE AGES: 1200-1500 PERIOD OF PROGRESS

Remember the “twelfth century renaissance, a period of urbanization, growing commerce, rise of merchant class, development of guilds, growing prosperity, growing thirst for knowledge, founding of universities with schools of law and medicine (Bologna 1088, Paris c1150, Oxford 1167), interest in classical periodThese trends carry on in the Late Middle Ages Despite these trends, still waves of famine, plague, overpopulation

Other Important Late Medieval Political Trends

Diet or Reichstag develops into permanent institution – 3 estates (imperial electors, imperial princes, imperial cities). More of an assembly of princes than a parliament. Monarchy loses power to Landesherren, princes who are supreme in their Land

LATE MIDDLE AGES 1200-1500

What was the legal system like during the late Middle Ages? Think about important factors: church-state conflict, increasing prosperity and commerce, urbanization, increasing power of the Landesherren

LATE MIDDLE AGES 1200-1500 – What was law like?

Law of succession is written down. G olden Bulle statute 1356(constitutional law) – monarchy elected by 7 Prince ElectorsThere is still a Reichshofgericht and Reichsrecht – Reichskammergericht (RKG) set up in 1495 by ReichskammergerichtsordnungLandesrecht is supreme law in Land –sometimes written downTowns develop Stadtrecht Handwerkerzunft (Guild) regulationsFeudal law Libri feudorumWeistümer (Wisdoms)

Jurisdictional and Procedural Changes: Late Middle Ages

More complex jurisdictionSplit between civil and criminal procedure for the first timeChange in criminal procedure - moves away from party control of proceedings towards an investigative modelCivil procedure, strongly influenced by Roman and canon law, retains party control

Late Middle Ages: Written Recording of Law/Reception of Roman Law

An important development in the Late Middle Ages is the recording and rationalization of law in statutes and legal booksRoman and canon law (Corpus Juris Canonici) begins to have a strong influence on German law, brought by students at Bologna who studied under the Glossators (Italian professors who studied the Justinian Corpus Juris Civilis and commented on it)Revival of Roman law is attributable to prosperity and Church-State conflictReception of Roman Law – Reichtskammergerichtsordnung of 1495

Reality Check: Ordinary People in the Late Middle Ages were largely untouched by the growth of medieval scholarship

Large sectors of the population were still illiterate.Constant warfare, banditry, plague (such as the Black Death), famine, anarchyNo clocks – time was measured by seasons, sowing and reaping, rhythms of the dayLittle geographical sense – few people traveledLittle understanding of medicine

Early Modern Times (1500-1800) Renaissance – Time of Erasmus

Renaissance: period of new humanistic thinking, builds on growing interest in classical art and learning (increasing since 12th century)Renaissance was not confined to Italy – it occurred in Germany as wellRenaissance thinkers did not reject their religion

Early Modern Times: 1500-1800 Reformation

Martin Luther (1483-1546), an Augustinian monk in Saxony, was shocked by the selling of indulgences. 1517: 95 ThesesLutheran protest movement leads to spread of Protestantism, including Calvinism

Counter-ReformationThis was a movement for Church reform in the 16th century, culminating in the Council of Trent (3 sessions from 1545-1563)The Society of Jesus: dubbed the “corps d’élite” of Catholic Reform.

Political Effect of the Reformation/Counter-Reformation: The Reich Loses Ground

Peace of Augsburg (Augsburger Religionsfrienden) of 1555 – uneasy compromise between Catholics and Protestants Principle of cuius regio eius religioThirty Year’s War (1618-48) – Catholic-Protestant wars as well as power struggle between Emperor and German princesPower of Länder (esp. in Protestant territories) grows to absolute state authority

Law in early Modern Times

Jurisdictional rules are developed to determine which law applies – gemeine Recht (or ius commune – your book calls it common law, but it’s not common law in the Anglo-American sense), Landrecht, Stadtrecht1495 reception of Roman and Canon law as ius commune and RKG procedure (as interpreted by the late medieval glossators) makes law and civil procedure more complex

Age of Enlightenment17th-18th century intellectual movement Key idea: the natural light of reasonGrowth of empiricism, birth of utilitarianismScience made great strides (e.g. Sir Isaac NewtonRoots of democracy – Locke’s social contract theoryAnother surge of interest in Roman law

Age of Enlightenment: First Codification of Civil Law

Bavarian Civil Code (1756) (in German)Preußisches Allgemeines Landrecht (1794) There were earlier 16th century codifications of criminal law, such as the Carolina (1532), but the 18th century saw attempts to create comprehensive Codes including criminal lawCodes are heavily influenced by Roman law (Corpus Juris Civilis as interpreted by glossators)