Common law

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As common law , Latin ius commune , now in German-speaking mainly is Roman canon law of the Middle Ages , the early modern and modern times called as it was starting taught throughout Europe from the early 12th century. The reception of Roman law by the glossators and post- glossators led to a basis for the modernizing continental European civil law . Common law was only replaced by the civil law codifications of the 18th and 19th centuries, although it continued to apply in some areas of Germany until the Civil Code came into force on January 1, 1900.

Roman law

Common law is based on Roman law . In its classical period in particular, the Roman Empire produced a highly developed law, which was handed down in the late Justinian antiquity with the body of law in the Corpus Iuris Civilis .

During the time of the Great Migration , essential parts of Roman law fell into oblivion. With the discovery of the Littera Florentina , the oldest manuscript of the Digest , a processing and scientific commentary on all rediscovered manuscripts began in the 12th century. The work of the glossator Irnerius was of particular importance . For centuries, budding lawyers throughout Europe studied Roman law almost exclusively. Roman law was taught in general (= common ). Since the lawyers trained in Roman law were professionally active in various offices after completing their training, they introduced Roman law into legal practice, with the result that previously existing customary law was superseded. This “seepage process” is commonly recorded as a reception of Roman law . Primarily, it can be understood as a scientification process that should primarily meet educational requirements.

What is peculiar to the reception is that foreign ideas are adopted and assimilated, which corresponds to a fundamental cultural-historical procedure. Early reception began in the 12th century in the area of ​​ecclesiastical jurisdiction in the University of Bologna and reached its peak in the 15th and 16th centuries. At the French and Italian universities, the scientific teaching claim of the mos italicus developed as a legal framework . In Germany, the development is reflected in the Reich Chamber Court Code of 1495. There the judges were instructed to judge according to “the Reich's common rights”, where individual territories had no special rights. The reception took place all over continental Europe, so generally .

In the 17th and 18th centuries, an independent German general law science emerged. This process was caused by the legal literary merging of local law into the received content of Roman law. Modern private law had become a modern application of pandect law , the so-called usus modernus pandectarum . This was derived conceptually from the pandects (also: digests ) of the Justinian legislation of late Roman antiquity. The glossators already mentioned, and after them the commentators (outstanding, primarily commercial law-oriented representatives here: Bartolus and Baldus ) of the early and middle receptor phase had prepared the breeding ground and the basis for penetration and systematization of the relevant areas of law: abstraction of terms, definitions of Legal terms and logical distinctions .

Canon Law

Canonical law is still counted as common law (= law of the Catholic Church). The Catholic Church had extensive jurisdiction in the Middle Ages and early modern times. For this purpose, she created her own extensive canon law , the Corpus Iuris Canonici , which was derived in many ways from Roman law. This canon law was taught at all universities in Europe with a law faculty parallel to Roman law. Budding lawyers could study either canon law or Roman law, or both. The instruction in both areas of law took place Europe-wide, thus generally .

Today, the Catholic Church nor an independent judiciary, but its powers are clearly limited and confined to internal church matters as well as on the relationship between church members to the church (for example in the cancellation of a failed marriage, to allow after divorce a church remarriage ).

Local customary law

The systematic opposition to common law , that is, the law that applied extensively to most people in Europe, was local customary law . Unlike Roman law and unlike canon law, this was not recorded in writing. It came about through lived legal convictions ( longa consuetudo ; opinio necessitatis ). The different regions in Europe had different customary rights . The customary rights were therefore not generally applicable and generally took precedence over common Roman law. The common law therefore only applied subsidiary . In practice, however, this was reversed; because the validity of customary German law had to be proven by the person who referred to it. Thus, in practice, common Roman law took precedence as it did not have to be proven.

As already shown, common law was initially taught scientifically at universities. The Church has always applied canon law. In the secular sphere, however, common law has been used for centuries (and not common law taught in universities). It was only in a process that lasted for centuries that the trained lawyers succeeded in carrying common law into legal practice. A milestone for this was the Imperial Chamber Court, created in 1495 , which was then the highest court in the Holy Roman Empire of the German Nation . In principle, it had to make its judgments according to common law (Roman canon law) and at best in exceptional cases on the basis of the principles of legal custom, in which evidence had to be presented by the parties to the proceedings. In this court, common law crept into legal practice. In some parts of Europe, such as Italy and southern France , this happened earlier, in others it happened later, for example in Germany. Countries like England refused to accept it and instead developed domestic law. From around the 16th century, common law had essentially permeated the judicial system of Europe, with the exception of English common law .

Repression of common law

Spatial scope of common law (blue) in the German Empire at the end of the 19th century.

However, counter-tendencies also emerged from the 16th century. From this time on, people began to focus more closely on local legal habits and to relate them more to common law. In the epoch of usus modernus, for example, there was common law with French characteristics (also Roman-French law), common law with Dutch characteristics (also Roman-Dutch law), etc. The most important common national legal system was the ius romano-germanicum , Roman-German law. However, the basic structure of common law was still very formative.

However, the legal development continued towards a fragmentation of the common law: In the Enlightenment period (especially 18th / 19th century) the rules of common law were subjected to an examination according to the maxims of the Enlightenment. The rules had to correspond to the laws of reason. In particular, the legal scholars of the law of reason , above all Hugo Grotius , Samuel von Pufendorf and Christian Wolff, reflected on legal philosophical and systematic approaches and secularized the fundamentals. In addition, individual countries began to enact national laws and thus no longer recognize common law as the basis of their legal practice; As a result, national law was also taught more or less reluctantly at universities. In the course of this, important codifications of natural law arose , which were more or less supported by the received Roman law. An important example is the French Code civil (1804), a modern code of law which functioned as the epitome of liberalism and the Enlightenment and which showed a high degree of legal abstraction. As early as 1794, the Prussian General Land Law (ALR) came into being, which interpreted the reviving spirit of the law of reason for all its linguistic slowness. On the other hand, the Bavarian Codex Maximilianeus Bavaricus Civilis (1756) and the Austrian ABGB (1811) were still close to Usus modernus or Roman law . The German Civil Code (BGB) is also a late birth of this time . However, these laws are all largely based on common law, because the rules in these codes of law have all emerged from a scientific discussion of common law and go back to it. Even after all of these laws were passed, common law continued to be taught in universities.

Today there are only a few areas where common law is in force. As the last areas, Andorra , San Marino and (albeit with great reservations) the Roman-Dutch mixed legal systems (see South Africa , Sri Lanka ) can be named. In the latter, common law came to South Africa through Dutch explorers and colonial masters . Great Britain later ousted the Dutch and partly put their common law into force, which superimposed and changed Roman-Dutch law ( African Romeins-Hollandse reg , English Roman-Dutch law ). Today in South Africa there is a mixed system of common law and common law, with common law superimposing common law.

Since 1979 the common tradition of ius commune in continental Europe has been discussed as a possible basis for European private law .

Differentiation from Common Law

The common law , the law of the Anglo-American legal system , can also be translated literally as "common law", since the English common goes back to the old French / Latin commune , to which the German common etymologically and in its meaning corresponds. However, the common law is a separate legal system that developed largely independently of the Roman canonical common law of continental Europe and should not be confused with it. The term “common law” for common law is therefore also a mistranslation and uncommon; instead, this legal system is predominantly referred to in German as "Common Law".

See also


Individual evidence

  1. a b c Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 62–64.
  2. a b c Ulrich Manthe : History of Roman Law (= Beck'sche series. 2132). CH Beck, Munich 2000, ISBN 3-406-44732-5 , pp. 118-122 ff.
  3. Konrad Zweigert, Hein Kötz: Introduction to comparative law in the field of private law. 3rd edition, Mohr, Tübingen 1996, p. 28, with further references.

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