Popular law

from Wikipedia, the free encyclopedia

The right that has arisen in the people and lives in their consciousness is referred to as popular law.

Historical

In the earlier times of cultural development, the people of all nations participated directly in the formation and application of law.

This formation of law took place in Europe during the first phase of legal history up to around the year 500 AD almost exclusively by means of customary law and thus through lively practice. The existence of the law is based on nothing else than the conviction of the people of the necessity and correctness of its exercise.

With the emergence of positive , that is, written law, legal history entered a second phase. The law became the object of scientific consideration and professional maintenance on the part of lawyers . That is why it did not cease to be a popular right, i. H. a right to be borne by the conviction of the people. In the beginning of this period the written legal obligations were only to a small extent actual legal statutes, i.e. H. New legal clauses created by the will of the state ( capitularies ), but for the most part written down of the applicable customary law, such as the Germanic tribal rights .

The national law collections differ from modern statutes of the Middle Ages and the modern era , which received Roman law , among other things in that they do not substitute a completely new law for the previously applicable law, but in some cases only specify the existing customary law in writing and that wanted to confirm existing law.

Scientific

In the 19th century, Georg Beseler, as a representative of the Germanistic direction within the historical school of law, tried to strengthen popular law in legal sources . In his inaugural address in Basel in 1836, he gave the people the quality of having their own right. In his work "Volksrecht und Juristenrecht" (1843) and in the first volume of his German private law (1847) Beseler sharpened the profile of an independent Germanic source of law in opposition to the so-called Romanists Georg Friedrich Puchta and Friedrich Carl von Savigny . Beseler's attack was directed against the legal monopoly of being able to generate their own legal source. Beseler assigned juristic law as the “outflow of the actually established power of the juristic class” only to play the role of a special customary law far removed from the original popular spirit . Customary law could alienate itself from the conviction that is alive in popular law. Carl Joseph Anton Mittermaier alone supported Beseler, while Puchta and especially Johann Heinrich Thöl attacked Beseler’s popular law.

Politically

In Switzerland , people's law, or mostly plural, people's rights, are instruments of direct democracy such as popular initiatives , referendums or (rarely practiced) dismissal .

See also

literature

Web links

Individual evidence

  1. ^ Meyers Großes Konversations-Lexikon, Volume 20. Leipzig 1909, pp. 237f
  2. ^ Frank L. Schäfer : Legal German Studies ; Frankfurt am Main, Klostermann 2008, ISBN 978-3-465-03590-9 , p. 350 ff.