German law (legal tradition)

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Under German law the legal history is on Germanic tribal rights -based and in particular to Saxon and Frankish declining legal concepts right understood. Alongside Roman law , it is the most important historical source of law for the development of European law.

The German law in this sense is not identical to the law applicable in Germany today . Rather, the term refers to a specific historical epoch and legal tradition. The German and Roman legal traditions coexist in Germany , the current legal system is fed from both sources. For example, in the German Civil Code, the rules of property are influenced by Roman law, those of property by German law.

Germanic to medieval law

The older Germanic law was an orally handed down customary law of the people's courts ( Thing ). At the time of the Great Migration , tribal rights (Germanic people's rights ) arose for members of the individual tribes . In the Franconian Empire , the imperial law based on royal ordinances ( capitularies ) was added, early medieval imperial state power, surrounded by clearly defined noble clerical cultural structures.

In the time of the Middle Ages , the tribal rights arising from the early medieval ranks developed into land rights for the population of a certain geographical area. In addition, there were special rights for certain professional or personal groups, feudal , court and city ​​rights . Basic orientation for the legal system was provided by the ownership structure of the land as well as the services and tax obligations associated with it. The legal system of the nobility was essentially feudal law. The peasants, some of whom were free and legally independent landowners, were partly incorporated into ecclesiastical or aristocratic manors. The imperial legislation was limited to individual constitutional laws, such as the Golden Bull of 1356. Legal books such as the Mühlhausen Imperial Law Book , the Sachsenspiegel or the Schwabenspiegel contributed to greater legal alignment. In terms of content, German law in the Middle Ages was strongly influenced by its moral content as well as its cooperative and social spirit. Elementary feelings such as revenge in the case of defamation and bodily harm and values ​​such as strength and courage were extraordinarily vital.

In Germany, an agricultural country characterized by natural economy, the social order was anchored in feudalism : the upper class, the land-owning nobility, which is subdivided into various class groups, is building up on the one hand, the lower class, the rural peasant population developing on the other. It was only with the dawn of the High Middle Ages , i.e. from the second half of the 12th century, that trade and commerce developed with the cities in the monetary sense and thus regulatory aspects of the property situation. A state with civil servants, armed forces and police did not yet exist. The basic structure of the estates established in the High Middle Ages remained in place until the French Revolution . The social order was marked by a limited bourgeoisie and the privilege of the nobility with the simultaneous exclusion of the peasant from the formation of political will.

It should be emphasized that the High Middle Ages had a particularly pronounced process being. Unlike today, in legal proceedings the judge was only responsible for conducting the negotiation and pronouncing the verdict, which he had to ask the lay judges (in the count's courts this was the landowner of the court block). The judge himself had no decision-making power. The underlying party proposals created a strong binding effect, which led to the practice of delegating them to advocates in order to make them available. The oath (often carried out with oath assistants ) and the judicial duel , which decided as a divine judgment on guilt and innocence, served as evidence . Judgments were not subject to legal redress in the modern sense, but could be “scolded”, which resulted in an immediate process between the submitting party and the judge. In fines was from Germanic time Bußzahlung handed down from the early Middle Ages physical mutilation . Next came the High Middle Ages, a total of tougher approach by embarrassing interviews , talionsrechtliche mirror punishments and the death penalty under torture for which the late Middle Ages and the first centuries of the modern era should be notorious.

Second half of the 15th century until the unification of the law at the end of the 19th century

The universities of the Middle Ages emerged between the 13th and 16th centuries. With them a learned class of lawyers developed who taught in Latin . Training was given in written Roman law and the canon law created by the Catholic Church . With the appearance of the first learned jurists in German legal practice, the reception of Roman law began , because medieval culture was a culture influenced by Latin. A large number of official and private works were recorded in writing. From the Kaiser Friedrich III. The reformation of the constitutional structures attributed to it can also be seen that in the 1440s law doctors already raised their votes in a considerable number at council meetings and in the judiciary.

Since the second half of the 15th century, German law has been influenced by the late Roman law of the Corpus Iuris Civilis and the contemporary law taught in Italy. Roman law was only applicable in a subsidiary way to local and land rights, but these were often romanised, i.e. adapted to Roman law. The transition from the oral process to the secret file process resulted in an alienation between the judiciary and the people.

A decisive turning point came with the Enlightenment , because a new social doctrine was developed, which departed from the social form of the Middle Ages. The breakdown by birth and occupation gave way to the ideal that all people are “free” in the same way, which brought new legal institutions to the agenda and gave rise to the idea of ​​a modern democracy. Since the 18th century, German law has been strengthened again, especially under the influence of natural law . The new law books, so the PrALR and the Austrian ABGB renewed a number of Germanic legal ideas. Criminal, procedural and civil law were subjected to a social ideal that was geared towards internal expediency and humanity.

German legal and court card (1895)

By uncovering the common basis of German particular rights, the German historical school of law around Friedrich Carl von Savigny made great contributions to German law in the 19th century . With the founding of the Reich in 1871, an extensive legal entity was achieved and the phase of major codifications was initiated (e.g. StGB , StPO , ZPO , HGB , BGB ). In procedural law there was a return to the principle of publicity and orality . During this time, the direct effectiveness of the traditions of “German law” ended, which from then on was primarily of legal historical importance.


Web links

Individual evidence

  1. Rudolph Sohm : Franconian law and Roman law. Prolegomena on German legal history , in: ZRG , German Department, Volume 1 (1880), pp. 1-84
  2. ^ A b c Helmut Coing: Epochs of Legal History in Germany , 4th, unchanged edition, Beck, Munich 1981, ISBN 3-406-02448-3 , pp. 10–33.
  3. a b c d Helmut Coing : Epochs of Legal History in Germany , 4th, unchanged edition, Beck, Munich 1981, ISBN 3-406-02448-3 , pp. 5-8.
  4. ^ Hermann Conring : The origin of German law (OT: De origine iuris Germanici , 1643), trans. by Ilse Hoffmann-Meckenstock, ed. by Michael Stolleis , Insel-Verlag, Frankfurt / M. [u. a.] 1994, ISBN 3-458-16653-X , pp. 206-216.