7.7.2 The Reception of Roman Law in Germany
During the early Middle Ages, the law that applied in Germany was customary law that tended to vary regionally as a result of the shift from the system of personality to that of territoriality of the laws.
Some of the customs applied over an entire region, whilst others were confined to a single city, village community or manor. After the establishment of the Holy Roman Empire of the German Nation in the tenth century, imperial law (concerned almost exclusively with constitutional matters) contributed as an additional source of law. Although the German emperors regarded themselves as successors of the Roman emperors and imperial legislation was influenced by the idea of a universal empire, initially there was no attempt to render Roman law applicable to all German regions as a form of common law that could replace local customs. In the twelfth and thirteenth centuries, Germans who had studied at the law schools of Italy and France introduced some knowledge of Roman law into Germany. However, the effect of this activity on the applicable customary laws was limited as Roman law scholars were largely ignorant or contemptuous of the local laws, which they regarded as primitive in both form and substance and as unworthy of the serious attention of the learned.In the thirteenth and fourteenth centuries, there appeared a number of compilations embodying the customary laws observed in certain regions of Germany. The most important of these works were the Sachsenspiegel, or the Mirror of the Saxons, composed around 1225 by Eike von Repgow and containing the territorial customary law observed in parts of Northern Germany[749]; the Deutschenspiegel, or Mirror of the Germans, published about 1260 in Southern Germany; and the Schwabenspiegel, or Mirror of the Swabians, a collection of the customs of Swabia published in the late thirteenth century.[750] These works aspired to provide a basis for developing a common customary law for Germany, but the centrifugal tendencies that prevailed were too strong to be overcome by these works.
The formulation of a native common law for the entire country based upon Germanic sources was impossible. This derived from the weakness of the imperial power that was exacerbated by the political splintering of the empire in the late thirteenth century, and the multitude and diversity of the local customs. A further obstacle to the attainment of legal unity was the fact that there was no organized professional class of lawyers interested in developing a common body of law. The administration of justice was in the hands of lay judges, the Schoffen, who had the task of declaring the applicable law for a particular issue in court by reference to the customary law that applied in each district. However, the pronouncements of the Schoffen were only concerned with particular cases and reflected the personal views of laymen who were not necessarily guided by generally established rules or principles—thus, they added to the uncertainty surrounding the application of customary law.In the fifteenth century, the problems generated by the fragmented nature of the law in Germany became intolerable as commercial transactions proliferated between different territories. Local custom was no longer adequate to meet the needs of a rapidly changing society, and the weakness of the imperial government meant the unification of the customary law by legislative action alone was unthinkable. If a common body of law could not be developed based on Germanic sources, another system offered a readily available alternative, namely Roman law. The acceptance of Roman law in Germany was facilitated by the idea that the Holy Roman Empire of the German Nation was a continuation of the ancient Roman Empire.[751] In this respect, Roman law was viewed not as a foreign system of law but as a system that continued to apply within the empire as its common law. This idea found support in the newly established German universities, where the teaching of law was based exclusively on Roman and canonical sources[752] whilst Germanic customary law was almost completely ignored. Like the jurists of other countries, German jurists regarded Roman law as superior to the native law and existing in force both as written law (ius scriptum) by virtue of the imperial tradition and as written reason (ratio scripta) due to its inherent value.
At a practical level, the reception of Roman law in Germany was facilitated by the establishment in 1495 of the Imperial Chamber Court (Reichskammergericht) by a legislative act of Emperor Maximilian I (1493-1519).
This act focused on the centralisation of the German system of judicial administration and was part of Maximilian’s broader political program designed to restore the power of the monarchy and to secure legal and political unity. The new imperial court, which heard appeals from regional and local courts, was directed to decide cases ‘according to the imperial and common law and also according to just, equitable and reasonable ordinances and customs’. Since jurists trained in Roman law dominated the composition of the court, the term ‘common law’ was naturally interpreted as meaning Roman law. The significance of the 1495 legislation was that it formally acknowledged Roman law as positive law in Germany. Pursuant to this law, judges were required to apply Roman law only when a relevant custom or statutory provision could not be proved. In practice, the difficulty in proving an overriding German rule meant that Roman law became the basic law throughout Germany. The model of the Imperial Chamber Court was followed by the territorial courts of appeal established by local princes in Austria, Saxony, Bavaria, Brandenburg and other German states. At the same time, the courts where lay judges still presided increasingly relied on the advice of learned jurists (city advocates, state officials and university professors) for information and guidance concerning local as well as Roman law. In the course of time, the role of the lay judges diminished and the administration of justice was dominated by professional lawyers who had been trained in Roman and canon law at the universities. By the end of the sixteenth century, it had become common practice for judges to seek the advice of university professors on difficult questions of law arising from actual cases. The opinion rendered was regarded as binding on the court that had requested it. This practice (Aktenversendung) prevailed until the nineteenth century, entailing the accumulation of an extensive body of legal doctrine that applied throughout Germany.By the end of the sixteenth century, Roman law had become firmly established as the common law of Germany.[753] Germanic law had largely been rejected in favour of the more advanced Roman system and German jurisprudence had become essentially Roman jurisprudence.
The Roman law that was received embodied the Roman law of Justinian as interpreted and modified by the Glossators and the Commentators. This body of law was further modified by German jurists to fit the conditions of the times and thereby a Germanic element was introduced into what remained a basically Roman structure. In some parts of Germany (such as Saxony), Germanic customary law survived and certain institutions of Germanic origin were retained in the legislation of local princes and of cities. Legal practitioners and jurists from the sixteenth to the eighteenth century executed the process of moulding into one system the Roman and Germanic law, which led to the development of a new approach to the analysis and interpretation of the Justinianic Roman law—referred to as Usus modernus Pandectarum (‘modern application of the Pandects/Digest’).[754] This approach continued to be followed in Germany, subject to local variations, until the introduction of the German Civil Code in 1900.
More on the topic 7.7.2 The Reception of Roman Law in Germany:
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- THE RECEPTION OF ROMAN LAW
- The reception of Roman law
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- The Reception of Roman Law
- LECTURE V ROMAN LAW IN GERMANY
- GERMANY, BRITAIN AND THE ROMAN EMPIRE
- The Codification of Civil Law in Germany
- The law of obligations is one of the most significant contributions of Roman law to legal culture, illuminating the civil law tradition more than any other branch of Roman law.
- Lecture Two— The Transition from Civil Law to Civil Code in Germany: Dawn of a New Era?
- It is difficult to provide a comprehensive and finite list of the sources of Roman law, since the Roman jurists never defined the term 'source of law' and different sources were emphasized at certain periods in the history of the Roman legal system to reflect their prominence as instruments of legal reform.
- Reception and rejection of periculum est emptoris
- The reception of Justinian's scheme
- POST-RECEPTION DEVELOPMENTS
- 4.7 Koschaker as visiting professor in Germany and abroad
- EARLY CODIFICATIONSIN GERMANY AND AUSTRIA
- THE FATE OF THE ACTIO INIURIARUM IN GERMANY
- Roman private law developed from the law of procedure, otherwise recognized as the law relating to actions.
- NINETEENTH-CENTURY LEGAL SCIENCE OUTSIDE GERMANY
- VII. FROM CONTEMPORARY ROMAN LAW TO ROMAN LAW