Comparative Law Spring 2006 Professor Susanna Fischer

1. Comparative Law Spring 2006Professor Susanna Fischer CLASS 8 GERMAN LEGAL SYSTEM: HISTORICAL BACKGROUND

2. 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 systematic whole.

3. 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)

4. 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)

5. OTHER GERMANIC TRIBES • Angles, Saxons, Jutes – Britain (drove Celts to North and West) • Ostrogoths - Italy • Burgundians – Rhine Valley

6. 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

7. 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

8. 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

9. 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”)

10. 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

11. 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

12. Salic-Frank period: A.D. 500 to A.D. 888 • Like Clovis (482-511), Karl the Great (Charlemagne) (768-814) was another strong Frankish king, establishing the Carolingian empire. • The Frankish empire lasted only another century after Charlemagne.

13. Charlemagne’s Frankish Empire at its Height (A.D. 800)

14. 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.

15. 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

16. 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

17. 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.

18. 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

19. 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 Germany (1450 or so)

20. 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 Papal-Emperor conflict will lead to rise of nation states and will also propel the revival of Roman law

21. 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

22. What was the legal system like during the Middle Ages? • Important trends to bear in mind: feudalism, Holy Roman Empire, illiteracy

23. 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.

24. 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

25. 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 period • These trends carry on in the Late Middle Ages • Despite these trends, still waves of famine, plague, overpopulation

26. 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

27. 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

28. 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 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)

29. 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

30. 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

31. 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

32. 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 religion

33. Early Modern Times: 1500-1800 Reformation • Martin Luther (1483-1546), 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

34. Counter-Reformation • This 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.

35. 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 religio • Thirty Year’s War (1618-48) – Catholic-Protestant wars as well as power struggle between Emperor and German princes • Power of Länder (esp. in Protestant territories) grows to absolute state authority

36. 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, 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

37. 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

38. 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)

39. 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

40. 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

41. 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

42. 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

43. Weimar Republic1919-1933 • 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)

44. 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

45. 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.

46. 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

47. 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

48. 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.

49. Statutory Interpretation • How should a lawyer interpret an old code, such as the Civil Code?

50. 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’