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Comparative Law
Spring 2002
Professor Susanna Fischer
CLASS 5
GERMAN LEGAL SYSTEM:
HISTORICAL BACKGROUND
WRAP-UP OF CLASS FOUR: ROMAN ORIGINS
OF THE CIVIL LAW SYSTEM
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?
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
Describe 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?
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