THE RECEPTION IN GERMANY

The early adoption of the Romano-canonical procedure in France and the incorporation of Roman terms and categories in the codified customs meant that much Roman law had gradually seeped into French law.

It was not until the late fifteenth century that this system was seriously challenged. From the thirteenth century Germans had studied law at universities in Italy and France and from the fourteenth century univer­sities had been established in German-speaking lands. Prague, founded in 1348, was quickly followed by Vienna (1365), Heidelberg (1385), Cologne (1388) and several others, but at first their students were almost exclusively churchmen and if they taught the civil law at all, it was as subsidiary to canon law. Some elementary ‘vocabularies' and nutshells of Roman law circulated in fifteenth-century Germany, suggesting that some acquaintance with at least the language of Roman law was regarded as useful for minor bureaucrats. The judges of the ecclesiasti­cal courts, using the Romano-canonical procedure, sometimes acting as arbitrators rather than strictly as judges, had more to do than elsewhere in Europe.

As long as the Schoffen courts adhered to the traditional oral proce­dure, the influence of Roman law on the law in practice was necessarily slight. In the last decades of the fifteenth century, certain Schoffen courts, such as that in the free city of Frankfurt am Main, allowed the use of a form of the Romano-canonical procedure, with written plead­ings, drafted by trained advocates. This change occurred without legis­lation and the initiative for it came from the litigants and their legal advisers. They found that the traditional procedure was inadequate for them to bring the issues involved before the court and the only alterna­tive available to them was the procedure used in the Church courts. The old procedure was not immediately abolished but was soon superseded.

The procedural changes did not necessarily require the substitution of Roman law for the traditional customary law. After all in France the written procedure had for long been used in the courts applying custo­mary law, without significantly affecting its substance, since both the judges and the advocates were normally trained jurists. In Germany, however, where the customs were uncodified, the untrained Schoffen found it difficult to cope with the sophisticated legal arguments, sup­ported by citations from Roman law, which the litigants' advocates began to include in the written arguments that they pressed on the court. They turned for help either to the legally trained officials in the admin­istration of their area or to the professors in the law faculty of the local university and these jurists were happy to exploit their special expertise in the learned law. They insisted on strict proof of unwritten custom and could disallow it, if it seemed irrational. It is significant that in Saxony, where the customary law had exceptionally been put into written form, the influence of Roman law was less than elsewhere.

The practice of asking for advice from the law faculty of the local uni­versity was institutionalised when Aktenversendung became usual. The whole written record of the case was sent to the faculty, with a request for its collective opinion, which the court then felt obliged to follow. Apart from their greater expertise in the law, the professors were regarded as dealing with the case on a completely impartial basis. In the turbulent times of the sixteenth and seventeenth centuries the judges of the local courts were glad to be relieved of some of the responsibility for unpopular decisions. The practice received official encouragement in the imperial criminal law, the Carolina, issued by the Emperor Charles V in 1532. Its last article, 219, required judges, who were not learned or experienced in the imperial law, to seek advice ‘at the nearest university, city or other source of legal knowledge'. As a result, the preparation of such opinions became a major activity of German law faculties. It brought academic law in touch with the practice of law but this advan­tage was sometimes offset by a decline in the quality of the professors' teaching and in their more reflective studies.

The ease and speed with which Roman law was received in Germany in the early sixteenth century were surprising. The motives were mainly practical, but the intellectual climate was right. The Renaissance inter­est in the heritage of classical antiquity flourished in Germany, and the German humanists did not separate themselves from the practice of the law as much as did their French counterparts. Inevitably, however, the law which was received had to be in a practical form acceptable to a court and that meant that the Reception was of the mos italicus rather than of the mos gallicus.

A contributing factor was the continuing force of the Holy Roman empire.

The existence of civil law texts that supported absolute imperial power and that were cited by the bureaucrats whom the princely govern­ments recruited, clearly did not diminish the favour with which the German princes regarded Roman law. The civil law offered the means of establishing a bureaucratic state, by which princes could counter the independence of over-mighty feudal lords. All over Europe law was beginning to be seen less as a set of traditional customary rules and more as legislation, issued in the name of the prince and interpreted by the supreme court for his dominions.

The supreme court for the Holy Roman Empire was the Reichskammergericht, in which the competing interests of the emperor and the leading princes were supposed to be balanced. Its jurisdiction was mainly appellate. In 1495 it was reformed to ensure that the sixteen judges were representative of the various powerful interests; half of them had to be of at least knightly status and the other half trained jurists. After 1548 all its members had to be trained jurists. The court adopted the Romano-canonical procedure and had to decide ‘accord­ing to the common law of the empire and also the proper, worthy and accepted statutes and customs'. Proof of unwritten local custom was always difficult in practice and until the court built up its own court custom from its decisions, there was a continuing pressure to adopt the Roman rule as being the ius commune or gemeines Recht of the whole empire.

The reception of Roman law in Germany was not achieved without opposition. The social unrest of the sixteenth century, which manifested itself in such uprisings as the Peasants' War of 1524-5, was accompanied by complaints against the bureaucratic lawyers, who were the most visible representatives of government. To some extent this was not an attack on the civil lawyers specifically but an expression of the view of lawyers in general as the bulwark of the establishment and the oppo­nents of reform. When Shakespeare depicted Jack Cade's Rebellion in England in 1450, he made Cade's collaborator say ‘The first thing we do, let's kill all the lawyers', (Henry VI, Part 2, iv.2). In Germany, however, the arriviste civil lawyers, with their new practices, incomprehensible to laymen, and the fat salaries which they enjoyed, were further identified with the disappearance of the old ways. The temporal coincidence of the procedural reforms with the beginnings of the Reformation meant that the civil law and the canon law, both emanating from Rome, could be characterised as alien importations standing in the way of God's law, as expressed in Holy Scripture.

Jurists in Germany, as in Italy and France, had social pretensions, insisting that Doctors of Law were milites legum, legal knights, equal in status to military knights. They were viewed as seeking to stir up antag­onism between disputing parties rather than solve the disputes peace­fully. They could find a counter-argument, however specious, to any proposition that was advanced and took full advantage of the increased opportunities for appeals which the professional courts provided. They were regarded as a boon to the rich, who could pay for their services and so prolong legal proceedings indefinitely, but as a bane to the poor, who could often afford to be represented only by half-trained but glib impos­tors, falsely claiming to be learned jurists. As a class jurists were seen as unscrupulous and bad Christians (Juristen hose Christen) and there were many popular stories of how St Peter waited in vain at the gate of heaven for a jurist to appear.

Despite all this sound and fury, however, it was too late to put the clock back. The jurists of the civil law were there to stay. After some earlier wavering, influential figures such as Philip Melanchthon extolled the virtues of Roman law as standing above petty factionalism and as the only impartial law of peace and order.

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