The “Reception” of the Ius commune in Germany

The “market” for legal works further broadened in the late fifteenth century. This wider demand came from new customers who lived and worked in the German-speaking lands of central Europe.

In 1495 the imperial supreme court, the Reichskammergericht, was founded; it respected the time-honored structures but brought them up to date and bound them more closely to German lands. This court was composed of assessores, one-half of whom were doctores in iure and the other half aristocrats and experts in judicial procedures. The first sat on the “learned bench,” the second on the “noble bench.” The structure of the court was coherent with a policy of giving the ius com­mune priority among the normative systems that could be applied— in particular, with giving it precedence over local customary laws. The supreme court was to decide cases and set sentences primarily “according to the common law of the empire,” hence the judges had to know Justinian law and canon law, according to the Roman princi­ple of iura novit curia (the court knows the law). In this sense, the ius commune was the “norm” of the imperial order, and as such it was to be respected and applied.

Local law was in quite a different position. It was at base customary law or was derived from customary law. Judges were not obliged to know it, and for that reason it did not fall under the principle of iura novit curia. If one of the parties to the legal action requested its appli­cation, however, the judges were obligated to admit local law if it could be “proved” (like any other fact), and, if this proof was positive, it was to be taken into account and applied, but only insofar as it was consonant with the relevant precepts of the ius commune.¹*

This was how an event of capital importance in the history of the ius commune in the early modern age took place.

In carrying out this operation, the strong jurist class that backed up the German princes, barons, and city oligarchies in the administra­tions of the small, compact local governments showed proof of intu­ition and political talent. For some three centuries jurists had grown in numbers, many of them trained in terra aliena (in foreign lands), particularly in Italy, where the natio teutonica (German nation) in fourteenth-century Bologna is known to have been so numerous and to have carried such weight that the sources called it the membrum precipuum (principal part) of the entire universitas Ultramontanorum¹⁹ and Padua had been and continued to be so popular among German­speaking students that life in that city took on many Germanic ways. By the mid-fourteenth century a tightly-knit network of new univer-

ι8. See, in particular, Umberto Santarelli, ^uRecezione (storia),” Enciclopedia delDi­ritto (Milan: GiufFre, 1958-), vol. 39 (1988), 58-68 and the literature cited therein.

19. Bologna, Statutes of the German Nation, 1345—48, rubr.28 De vocatione nobilium ad universitatem per procuratores facienda, in Statuta nationis Germanicae Universitatis Bononiae (1292-1750), ed. Paolo Colliva (Bologna: Associazione Italo-Tedesca, 1975) ∙ sities had developed throughout German-speaking lands: as we have already seen (chap. 5), they included the universities of Prague (founded 1348), Vienna (1365), Heidelberg (1386), Cologne (1388), Erfurt (1392), Leipzig (1409), Rostock (1419), Freiburg (i457), Basel (1460), Tubingen (1477), and more. Within a century, and often after only a few years, one broad cultural area after another had a center where young people could pursue their intellectual and professional training in their own lands. Young Germans interested in the law studied the ius commune, civil and canon, in ways very similar to the ways the law was studied in Italy.

Thus, as we consider the vicissitudes of the “reception” of Roman law in German lands, we need to keep an eye on the jurist class. Even more, the proliferation of new universities also needs to be consid­ered in relation to the solid social and political position that the jurist class had achieved; it also needs to be regarded as one of that class’s most efficient ways to consolidate its position, replenishing its ranks as time went by and calling attention to itself as a unique political force in European society.

The “reception” of Roman law and the “pre-reception” that some scholars see as preceding it were in reality aspects of a slow and con­tinuous historical process that affected students first—hence, that af­fected German jurists in the great university centers of Italy and France. It was a historical process that gradually soldered differing peoples together into one cultural and professional amalgam by means of a common method based in the use of one language— Latin—and by an appeal to common legal concepts, doctrines, and institutions.

Working within this historical process, promoting it and nourish­ing it, there were jurists with a strong group identity who banded together in active corporations. As they used the ius commune as an instrument for controlling the normative systems of the particular laws and as an all-inclusive “system,” such jurists were quite capable of sensing the political potential in it.

It is no coincidence that in the early sixteenth century the “re­ceived” Roman law was greeted with hostility by another powerful group. The portions of the feudal forces that were most strongly en­trenched in defense of seigniorial customary law felt threatened by the ius commune and by the jurists who held a monopoly on it.

9.