Comparative Law Spring 2002 Professor Susanna Fischer

1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 6 GERMAN LEGAL SYSTEM: HISTORICAL BACKGROUND II

2. 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.

3. 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.

4. 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.

5. 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

6. 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

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

8. 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.

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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.

20. 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

21. 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

22. 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

23. 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)