Jutian law
The jütische law (court Terminus: Jütisches low , Danish Jyske Lov , Low German Jütsche Low ) is a legal order of 1241 under Waldemar II. Came into force. Jutian law was valid on the Jutland peninsula as far as the Eider (including Schleswig and Sønderjylland ), on various neighboring smaller islands (such as Rømø ) and on the islands of Funen , Fehmarn and Helgoland and is one of the oldest written down Legal bases in Denmark .
Validity period
In the Kingdom of Denmark, Jutian law remained in force until 1683. The Danish King Christian V replaced it with Danish law . In the Duchy of Schleswig, on the other hand, it continued to be used and in some cases even remained valid until the introduction of the Civil Code on January 1, 1900 in the German Empire .
In current legal literature and case law, however, it is assumed that individual norms of the Jutish Low are still in force in the area of application. They can even have priority over current laws (such as the BGB) in individual cases within legal conflicts. One of the reasons for the continued validity is to be found in the fact that some Prussian laws - such as the Prussian General Land Law of 1794 - never came into force in Schleswig-Holstein, so that, for example, according to Art. 55 ff. EGBGB, the still valid state law Jutian Low norms might apply.
precursor
The slightly older landscape rights , also written under King Waldemar II. , Also included the Zeeland law (for Zeeland and the southern islands) and the Scena law (for Scania including Bornholm , Halland and Blekinge ).
history
The medieval Danish chronicler Saxo Grammaticus reports in his work Gesta Danorum from around 1200 on the attempts of the Danish kings to enforce overarching laws. As already widespread in antiquity, in the 12th century many parts of Christian Europe began to codify current customary laws . Under Waldemar II (King 1202–1241, Duke of Schleswig 1182–1202) the first landscape rights took shape. Jutian law is the only one that is dated and appeared shortly before the king's death in 1241. According to the content, however, Scena and Zeeland law must be a few years older.
The main author of the work is Bishop Gunner of Viborg , the political center of Jutland. The preface shows that the king, together with his sons Erik Plovpenning , Abel , Christoffer and Uffe Thrugotsen , who at the time as Archbishop of Lund were the highest spiritual dignitaries in the realm, recognized all Danish bishops and "the best men in the realm", the legal code. The text of the law was probably also passed at the Jutian Landesthing in Viborg, because the preface mentions that no one should violate or judge the law that the king had given and the country had decided.
content
Jutian law was very detailed for its time, which was in line with the casuistic legal conception. First and foremost, the Codex compiled older customary laws for many day-to-day matters where two parties could conflict of interest. What was new, however, was that litigation with the taking of evidence, examination of witnesses and oaths was laid down in order to finally overcome blood revenge and the right of the fittest.
In contrast to the other two Danish landscape laws, Jutian law has a preface which not only identifies the initiators, as mentioned, but also explains the meaning and purpose of the legal code.
The introduction reads in the translation: The law should build the land. But if everyone were satisfied with his own and granted men the same rights, then there would be no need for any law. But no law is as easy to obey as truth; wherever one doubts the truth, the law should find out what is right.
It also emphasizes that all are equal before God and the law, that the weak should be protected from the law of the strong, that every peaceful person should see his peace preserved, and that the unjust should be judged and punished for their deeds according to the law should. Thus, a remarkable ideal of law and justice is already drawn in the preface - which is unlikely to have corresponded to the legal situation in the state, given the war that broke out between his sons Erik and Abel soon after the king's death.
The original was written in Danish in the Middle Ages in 1241 . The oldest surviving copy (late 13th century) is now in the Royal Library in Stockholm . Around 1700 this manuscript still belonged to the Bishop of Ripen , Christian Muus, but it could have been taken to Sweden as spoils of war.
A Low German translation , Jütsche Low , was created by the 16th century at the latest , and in 1717 its edition, Das Jütische Low-Buch , which was provided with preliminary High German remarks and commentaries in the medieval legal tradition called “ Glossa ” .
The first sentence Med Lov Skal Land bygges is still widely known throughout Denmark. In the Med Lov variant, it adorns Land bygge, among other things, the porticus of the Copenhagen City Court built in 1815. In times of national romanticism, the ideal image of a law-based state drawn in the preface was emphasized.
scope
Jutian law was the only superordinate legal system in Jutland (with Schleswig) and on Fyn. It was also partially included in eastern Denmark, as it was more detailed than Scena and Zealand law. According to some legal historians, Jutian law could be intended for application throughout the empire, as it was adopted at a meeting of grand lords in Vordingborg on Zealand.
Jutian law has never been fundamentally changed, as the oldest laws and rights were viewed as the only true ones up until the 19th century and the principle that new law replaces older law had not yet been implemented. However, Jutian law by no means covered all areas of life. In the Duchy of Schleswig in particular, Roman law was consulted more and more frequently , mediated by lawyers trained in Central Europe . The Carolina , the embarrassing hand and neck right of Emperor Charles V , even became the dominant penal code, although Schleswig never belonged to the Holy Roman Empire of the German Nation . With regard to criminal law, Jutian law was no longer sufficient in the 17th century. In the Kingdom of Denmark, landscape rights were replaced by Danish law in 1683, which, however, continued many principles of Jutian law.
In the Duchy of Schleswig it remained valid, provided it did not collide with certain landscape rights (on Eiderstedt , Nordstrand and Fehmarn) or city rights; The latter, however, were younger than Jutian law and therefore did not conflict with it. When Schleswig became Prussian in 1866 and German in 1871, there was initially no new or foreign legal order to replace the old rights. Therefore, Jutian law remained formally valid, except in the former royal enclaves on the west coast, where Danish law from 1683 applied. It was not until 1900 that the civil code replaced the traditional order from the Middle Ages, however, as according to the Introductory Act to the Civil Code (EGBGB) and individual norms within the Civil Code, the regulations of the Jutian Low continue to be in force as state law.
Application today
A few provisions of Jutian law still apply today because they have not yet been superseded or repealed by any other laws.
According to Articles 55 et seq. EGBGB , in the current area of validity ( Südschleswig , Fehmarn, Helgoland) of the Jutian Low as a state law against BGB norms, among other things, in the regulations on fiefs and master goods (Art. 59), leasehold law (Art. 63), Inheritance rights (Art. 64), dike rights (Art. 66), hunting rights (Art. 69), compulsory and ban rights (Art. 74), liability of the state and municipalities (Art. 77) take precedence, unless it is more recent State laws have been repealed. The reservation regarding water law in Art. 65 EGBGB was lifted with the enactment of the Water Management Act in 2010. However, the WHG for its part contains reservations in favor of state law - for example in Section 4 (5) with regard to water ownership - so that the Jutian Low can continue to apply in individual cases.
In a complicated inheritance case in the 1980s, the Schleswig-Holstein Higher Regional Court cited Jutian law. In 2000 , too, when it came to the question of whether the foreshore in front of Fehmarn could be owned, it used the Jutian Low in its translation authorized by Christian IV in 1592 . The same norm had already been used by the Federal Administrative Court in 1990 to justify the lack of ownership of the state in a water property in a legal dispute between the state of Schleswig-Holstein and the federal government. The Jutian Low is perhaps the only example of applicable law in Low German.
Preface in translation
Land should be built by law. But if everyone were content with his own and men were entitled to the same rights, then there would be no need for any law. But no law is as easy to obey as truth; wherever one doubts the truth, the law should find out what is right.
If there were no law in the country, he would have more who could appropriate more; That is why the law should be made according to the needs of all people, so that righteousness and peacefulness may benefit righteous and peaceful men and those who are peaceful and innocent, and that wicked and unjust men fear what is written in the law, and therefore not their wickedness, which is what they want, dare to enforce.
It is good and right that he whom fear of God and love of justice cannot lure to good, that fear of the chief and the law of the land prevents them from doing evil, and punishes them when they do evil.
The law is to be honest, just and equitable, according to the customs of the land, fitting and appropriate and so clear that all men can know and understand what the law says, and not be written or made for the special favor of a man, but according to need of all men who live in the country.
Neither should any man judge the law which the king gives and the land accepts; but according to the law the land is to be judged and governed.
The law that the king gives and the whole country accepts, he cannot repeal or change it without the will of the country, because in doing so he would obviously act against God.
It is the office of king and chief who are in the country to defend the law and to do what is right and to free him who is compelled by force, like widows and children without guardians and pilgrims and foreigners and poor men: it hits most often Violence, and not wrongdoers, those who do not want to improve, let live in his country, because by punishing wrongdoers or killing them, he is God's servant and the law's protector.
For as the holy church is directed by the pope and bishop, so should every country be directed and defended with the king or his judges.
To this end all who dwell in his country are obliged to be submissive and obedient and submissive and docile to him; for this he is obliged to bring peace to all of them.
The chiefs of the world should also know that with the power that God gave them in this world, he gave them and his holy church to defend against all unjust demands, but they become forgetful and partisan and do not defend, like is right, then they should be held responsible on the last day if the freedom of the church and the freedom of the country are reduced in their time because of them.
literature
- Blasius Ekenberger, Emanuel Wölffel, Joachim Blüting : Das Jütische Low-Buch / Sampt an augmented and improved repertory or register / Benebst Des Herrn [Joachim] Blüting's glossa or explanation about thought-out low-book / Promoted for printing by E. W. Balthasar Otto Bosseck, Flensburg 1717.
- Håndbog for Danske Local Historians.
- Stig Iuul: Lov og Ret i Danmark. Copenhagen 1942.
- Ole Fenger, Christian R. Jansen: Jydske Lov 750 år . Viborg 1991, ISBN 87-89039-10-6 .
- Jütsche law. Translated from Old Danish and explained by Klaus von See . Weimar 1960, DNB 455202060 .
- Klaus Friedland: Jutian law. The preface to the Lindau manuscript. In: Dieter Lohmeier, Renate Paczkowski (eds.): State history and state library. Studies on the history and culture of Schleswig-Holstein. Hans F. Rothert on his 65th birthday. Verlag Boyens & Co., Heide 2001, ISBN 3-8042-1094-5 , pp. 11-14.
- Wilfried Lagler: "An old Danish low book" in the Tübingen University Library. On the history of a Low German manuscript of Jutian law. In: Dieter Lohmeier, Renate Paczkowski (eds.): State history and state library. Studies on the history and culture of Schleswig-Holstein. Hans F. Rothert on his 65th birthday. Verlag Boyens & Co., Heide 2001, ISBN 3-8042-1094-5 , pp. 15-19 (online) .
- Armin Wolf: Legislation in Europe 1100–1500. Beck, Munich 2006, ISBN 3-406-40542-8 , p. 320 f.
Footnotes
- ↑ The Jütische Low-Buch, So in these Landen, especially in the Hertzogthum Schleßwig is common. Before this 2nd time published by B. Eichenberger in the Hollstein language, Anitzo, however, for the third time again sampled an increased and improved repertory or register in the same language, together with Mr. Blüting's glossa or an explanation about the intended low book E. W (oil spoon). Bossek, Flensburg 1717.
- ↑ OLG Schleswig-Holstein 11 U 89/99 of December 14, 2000 ( Memento of October 8, 2007 in the Internet Archive )
- ↑ BVerwG; Ruling v. November 30, 1990 - 7 A 1/90 -. available at Jurion, accessed on January 16, 2019.
- ↑ Danish text from this website ; translated here by user: Sasper
Web links
- Jyske Lov - Studér Middelalder på Nettet Text-critical edition of the manuscript NkS295,8 °, Royal Library, Copenhagen
- Internet version digitized by the Royal Library in Copenhagen.
- Preface by Jyske Lov as it was in the 13th century (spoken by professor and linguist Lars Brink)
- Holstein-Low German text edition from 1717 (Das Jütische Low = book / So in these Landen / Mainly in the Hertzogthum Schleßwig / Introduciret by royal order / and until now is in use ...) Bosseck, Flensburg 1717, digitized online with the German legal dictionary
- Joachim Blüting's commentary from 1717 (Glossa, or Thorough Explanation / Des in local countries / peculiarly in the Duchy of Schleßwig / introducirten or common Low = or right = book / about all three parts described by Mr. JOACHIMUM BLÜTING, Weiland high = Princely Hoff = court = Advocates for Schleswig). Bosseck, Flensburg 1717, digitized online at the German Legal Dictionary