Download Comparative Law Class 6 - Catholic University of America

Comparative Law
Spring 2002
Professor Susanna Fischer
CLASS 6
GERMAN 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
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 II
Eventually, this PapalEmperor 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 Emperor
Need support of German nobles and
bishops to become king in Germany
Similar challenge to become king in
Italy
Final 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 law
Most 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 IV
Died on Crusade
LATE MIDDLE AGES: 12001500 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 period
These 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 12001500
What was the legal system like during
the late Middle Ages?
Think about important factors: churchstate conflict, increasing prosperity and
commerce, urbanization, increasing
power of the Landesherren
LATE MIDDLE AGES 12001500 – What was law like?
Law of succession is written down. G olden
Bulle statute 1356(constitutional law) –
monarchy elected by 7 Prince Electors
There is still a Reichshofgericht and
Reichsrecht – Reichskammergericht (RKG) set
up in 1495 by Reichskammergerichtsordnung
Landesrecht is supreme law in Land –
sometimes written down
Towns develop Stadtrecht
Handwerkerzunft (Guild) regulations
Feudal law Libri feudorum
Weistümer (Wisdoms)
Jurisdictional and Procedural
Changes: Late Middle Ages
More complex jurisdiction
Split between civil and criminal procedure for
the first time
Change in criminal procedure - moves away
from party control of proceedings towards an
investigative model
Civil 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 books
Roman 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 conflict
Reception 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, anarchy
No clocks – time was measured by seasons,
sowing and reaping, rhythms of the day
Little geographical sense – few people
traveled
Little 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 well
Renaissance thinkers
did not reject their
Early Modern Times: 1500-1800
Reformation
Martin Luther (14831546), an
Augustinian monk in
Saxony, was shocked
by the selling of
indulgences.
1517: 95 Theses
Lutheran protest
movement leads to
spread of
Protestantism,
including Calvinism
Counter-Reformation
This was a
movement for
Church reform in the
16th century,
culminating in the
Council of Trent (3
sessions from 15451563)
The Society of Jesus:
dubbed the “corps
d’élite” of Catholic
Reform.
Political Effect of the Reformation/CounterReformation: The Reich Loses Ground
Peace of Augsburg (Augsburger
Religionsfrienden) of 1555 – uneasy
compromise between Catholics and
Protestants
Principle of cuius regio eius religio
Thirty Year’s War (1618-48) – CatholicProtestant wars as well as power struggle
between Emperor and German princes
Power 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 AngloAmerican sense), Landrecht, Stadtrecht
1495 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 Enlightenment
17th-18th century
intellectual movement
Key idea: the natural
light of reason
Growth of empiricism,
birth of utilitarianism
Science made great
strides (e.g. Sir Isaac
Newton
Roots of democracy –
Locke’s social contract
theory
Another 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 law
Codes are heavily influenced by Roman law
(Corpus Juris Civilis as interpreted by
glossators)