Download Comparative Law Spring 2002 Professor Susanna Fischer

Comparative Law
Spring 2006
Professor Susanna Fischer
CLASS 8
GERMAN LEGAL SYSTEM:
HISTORICAL BACKGROUND
ROMAN ORIGINS OF THE CIVIL LAW SYSTEM –
PARTICULARLY INFLUENTIAL IN GERMANY
The Roman Emperor Justinian
(527-565) was responsible for
the creation of a law code,
the Corpus Juris Civilis,
that
Justinian believed that the Roman law of his
time was decadent. He wanted to restore
past glories, remove obscurities, errors,
conflicts, and doubts, and create a
GERMANIC PERIOD: 100 B.C.
to A.D. 500
German society was tribal
Rural culture as opposed to urban Roman
culture
Some tribes were nomadic, some agricultural
Few historical sources tell us anything about
history and culture of these Germanic tribes
Main Roman sources are Julius Caesar (55
B.C) and Tacitus (ca. 100 A.D.)
Other sources: epic poem Beowulf, or
histories of Bede, Gregory of Tours (all
written centuries later)
GERMANIC PERIOD 100 B.C.
to A.D. 500
Tribal migrations – Visigoths (under
Alaric d. 410) moved into Italy and
sacked Rome, then into Spain, Franks
moved across Rhine and into France,
Vandals went across France, into Spain,
to North Africa, and back across the
Mediterranean to attack Rome from the
South (409-55)
OTHER GERMANIC TRIBES
Angles, Saxons, Jutes – Britain (drove
Celts to North and West)
Ostrogoths - Italy
Burgundians – Rhine Valley
Collapse of Rome
In village, villa, cross-roads, district, field
down every roadway, and at every turning,
death, grief, destruction, arson are revealed.
In one great conflagration Gaul is burning.
Why tell the deathroll of a falling world which
goes the accustomed way of endless fear?
Why count how many unto death are hurled
when you may see your own day hurrying
near?
-5th Century Roman poet
The Dark Ages
In the 5th century, as Rome collapsed,
invaded and plundered by Germanic
tribes, Europe entered the Dark Ages,
from which it would not emerge until at
least the 10th century.
Widespread poverty, illiteracy,
intellectual stagnation
What was the political organization of
Germanic tribes like?
Kings led “folk” (groups of related tribes)
King ruled people, not land. Power based on
leadership ability in war.
Government supported people not from
taxation but from plunder
Kings assisted by armed tribal leaders from
noble families
Periodic assemblies of folk known as a Thing,
which were assemblies of freemen presided
over by principes
Germanic tribal law
Courts enforced tribal law and custom
Law different for different “folk” unlike universal
Roman law applicable to all Roman citizens
Thing decided important questions
Gaugericht decided more minor questions
Visiting judges (principes) traveled to different places
of trial in a Gau
Law and custom carried largely in minds of
population
No distinction between criminal and civil matters
Judge separate from those who rendered judgment
(“folk”)
What was a Germanic tribal trial
like?
Accusation which must be denied under oath
Oaths had to be supported by oath- helpers
If no oath-helpers, must go to trial if folk
decided it was necessary
Commonest method of trial were ordeals
(e.g. hot water, hot iron, cold water)
Trial by battle also common
Salic-Frank period: A.D. 500 to
A.D. 888
Some centralization of the king’s authority during this
period Clovis (482-511) established Merovingian
Empire and converted to Christianity. But his success
was ephemeral; the empire split into 3 parts
Salic-Frank period: A.D. 500 to
A.D. 888
Like Clovis (482-511),
Karl the Great
(Charlemagne) (768814) was another
strong Frankish king,
establishing the
Carolingian empire.
The Frankish empire
lasted only another
century after
Charlemagne.
Charlemagne’s Frankish Empire
at its Height (A.D. 800)
What was the legal system like during
the Salic-Frank period?
For the first time in the history of Germanic law, legal
rules were recorded by legislators e.g. Volksrechte
such as Lex Salica ca. 500 A.D. (assembled by
Clovis), Kapitularen, Konzilbeschlüsse,
Formularsammlung, Royal and private deeds
Remember that even though there was one empire,
there were many legal systems. A Saxon could not
be subject to Frankish law. To enable his margraves
to rule conquered peoples, Charlemagne had laws
written down. He himself was illiterate, as were most
of his subjects.
Much customary law was never written down.
Kapitularen were oral too – text was not the law.
Frankish Courts
Highest court: Königsgericht
Lower court: Gaugericht
Other specialist courts, e.g. manor
courts (grundherrliche Hofgerichte)
Still no difference between criminal and
civil proceedings
All proceedings in Gaugericht were
public, oral and formal
The Middle Ages: The Start of the
Feudal Age
In the late 9th century, the Frankish empire
was drifting into 5 kingdoms.
This period has been called the “darkest hour
of the Dark Ages”
Disorder begat feudalism (armored knights,
vassalage, fief, stone castles, chivalry,
tensions, immunity, treachery)
10th to 13th centuries were the golden age of
feudalism
Lehnrecht – special code of feudal law
The Middle Ages: The Holy
Roman Empire 888-1200
In 962, Otto I of Saxony and Pope John XII
participated in a second revival of the
“Roman Empire” (the first was that of
Charlemagne)
The Holy Roman Empire lasted until 1806.
The word “Holy” was added in the 12th
century.
Ideal – unity of all Western Christians in a
single state as the civil counterpart to the
Catholic Church.
The Twelfth Century Renaissance
Cities and towns grow
Commerce grows
Rise of universities, e.g. Bologna gives
rise to scholars, jurists
A 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 – slow to spread to
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.
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)
End of the Holy Roman Empire
In 1806, the Holy Roman Empire is
terminated and the constitution of the Reich
is removed.
All that is left are various German States -
Bundesstaaten
In the early 19th century, many wish for
unification
In 1815, a federation is formed (Deutscher
Bund)
Bundesrat - highest parliamentary body
1848 – failed attempt at a Constitution
Liberal Constitutional State:
1806-1900
Otto von Bismarck –
Prussian Junker and
Minister-President of
Prussia
Conservative monarchist
1871 Unification of
Germany under Emperor
Wilhem I
Bismarck’sche
Reichsbervassung
(Constitution)
Bundesrat
Reichstag
19th Century: A New German
View of Roman Law
In the early 19th century, German legal
scholars still viewed Roman law through
the medieval lens of the glossators
In 19th century, historical school
(Savigny, Jhering) takes a different
approach – interpret Roman texts
themselves anew
Codifications of the Late 19th
Century
Zivilprozeßordnung of 1877 (Code of
Civil Procedure)
Strafprozeßordnung of 1877 (Code of
Criminal Procedure)
Bürgerliche Gesetzbuch (BGB) of 1896
(Civil Code) – comes into effect on Jan.
1, 1900
All 3 remain in force, as amended
Weimar Republic 1919-1933
In1918, toward the end
of World War I, Kaiser
abdicates and dynastic
leaders of Länder also
step down.
Treaty of Versailles of
1919
Weimar Constitution is
the first to have basic
civil rights
Period of serious
economic and political
disorder (unemployment,
inflation, strikes, unrest)
NAZI ERA 1933-1945
Dictatorship under Adolf Hitler
Evil government attempts to annihilate
opposition, Jews, Gypsies
Failed attempt at German imperialism
German legal system altered radically to
further Nazi aims
At the end of the Second World War, all
Nazi laws repealed
OCCUPATION: 1945-1949
French, American, English and Soviets
occupy Germany following the end of
World War II, in order to wipe out
Nazism, rebuild Germany, disarm
Germany, and re-establish a
constitution.
A DIVIDED GERMANY : FRG
vs. GDR
Grundgesetz der
Bundesrepublik
Deutschland
(Constitution of the
FRG) comes into
force in 1949 – has
basic rights
GDR becomes a
separate socialist
state.
1961: Berlin Wall is
built
Reunification of Germany
November 3, 1990
GDR and DDR signed
the Einigungsvertrag
(Treaty of
Reunification)
GDR joins DDR under
Art. 23 of the Basic
Law
Berlin is now the
capital of Germany
Sources of Law: Hierarchy
Theory is that judges simply apply law and should not create it,
so case law is not a source of law.
This theory has resulted not only the reception of roman law
and the 19th century codification of German law but also from
judicial abuses in the Third Reich.
However, courts clearly play an important role in interpreting
and developing the law. This role is increasing as the Codes get
older and older.
No rules of precedent in theory. Theory: judicial decisions just
bind the parties to the case. An exception: decisions of Federal
Constitutional Court have force of statute and bind all other
courts as well as legislative and executive authorities. Also, a
few areas of divergence from this theory in practice.
Statutory Interpretation
How should a lawyer interpret an old
code, such as the Civil Code?
Statutory Interpretation
How should a lawyer interpret an old
code, such as the Civil Code?
Wertungsjurprudenz – take history into
account in understanding a rule
Methods of interpretation: literal,
systematic, historical, and search for
‘ratio legis’