Notoriety
With notoriety , a term from the law , a legal certainty is meant that no longer requires any special proof. This includes both generally known facts such as natural events or historical events, as well as facts known to a court ex officio that have arisen through inspection (knowledge of the court). Notoriety plays a role, especially in trademark law , when it is to be determined to what extent a trademark fulfills the requirement of notoriety.
Medieval jurisprudence
Notorium est, quod omnes sciunt - “notorious is a fact that is known to all” is one of the possible definitions of the Middle Ages. Numerous process simplifications are linked to the designation of a fact as notorious, in some opinion even a complete avoidance of a regular process.
Original definition of Gratian's
Gratian introduces the term notorium in his Concordantia discordantium canonum - at least according to the modern view as expressed by Mathias Schmoeckel . He adopts a term from ancient legal jargon without paying attention to its original meaning, reporting a crime to the magistrate (possibly intentionally). The aim is to eliminate the double meaning of manifestum , which up to now has been used in two ways:
- On the one hand, facts were manifest that were "known to everyone" and for which no evidence procedure was necessary anymore,
- on the other hand, knowledge of a fact that existed after the end of the evidence process was also referred to as manifesta scientia .
Gratian now inserted notorium for the first meaning and transferred the legal consequences that previously applied in this case to the new term.
Motivation for the concept formation
The idea of proceeding differently than usual in the case of publicly known criminal offenses is justified above all by the weaknesses of the normal canonical process : a process could very well be dragged out by the accused, he could use opportunities to conceal his guilt and - before especially with politically influential defendants - find support from the ruling class.
In fact, a noteworthy support of the notoriety idea can only be found after Nicholas I unceremoniously accused two archbishops, who came to Rome to support Lothar II in his divorce affair, of “aiding in sexual immorality” and condemned them in the same breath. Previously, legal scholars, including Hinkmar von Reims , had repeatedly voted against the complete omission of the trial and for a proper trial, only without evidence. Only the alleged Paulus comments by the church father Ambrose on 1 Cor 5: 3 served as justification for Nicholas.
Gratian united Nicholas' decision and Hincmar previous counter-argument scholastic sent by subjecting the non-necessity of legal proceedings strict conditions. Lévy provides an exact description of his distinctions (see literature).
Reception and impact history
Gratian's glossators differentiated his subdivision of the cases in which process simplifications were permitted, and culminated in Johannes Teutonicus ' notorium triplex est: est enim notorium faci, notorium iuris & notorium praesumptionis :
- notorietas facti existed when the matter was known to all or at least to a large part of the population. In the event that there was a long period of time between the act and the trial, during which this notoriety could have decreased, Huguccio remarks succinctly: Ego autem dico ex quo quod semel est notorium, semper est notorium : once notorious, always notorious. They did not agree with him, but differentiated even further on this point.
- notorietas iuris : What has already been recognized as truth in an earlier court case is considered an indubitable fact in later proceedings.
- notorietas praesumptionis : Certain assumptions can have the truth content of obvious facts, for example the biological paternity of a man with a child born in marriage and raised by him.
In the course of the Gregorian renewal of the church, use was made of the regulation of notoriety, often going well beyond what was permitted by Gratian and his glossators.
Explanatory approach from Germanic law
Schmoeckel has shown quite convincingly that the idea of notoriety is much easier to explain if one sees it as a conceptual adoption from Germanic law: There only that party had the right of evidence anyway who was “closer to the evidence”; and a judgment only ever said that one party was granted the right to prove. If the proof (e.g. a divine judgment) went as requested, the process was won automatically.
Here it is of course clear that, in the case of obvious crimes, this evidence can be considered to have been given before the start of the proceedings and the form of a process can be dispensed with entirely. The problems mentioned only arose when this regulation was imported into the Roman canonical legal system.
See also
literature
- Adalbert Erler, Notoriety . Handbook on German Legal History (HRG) III, Berlin 1984.
-
Decretum Gratiani , Causa 2, questio 1, c. 15-21. In particular, the following are cited:
- Hinkmar, de divortio : c.17
- Ambrosiaster - Commentary on First Letter to the Corinthians: c.15
- Nicholas' letter about the deposition of the two bishops: c.21
- Carlo Ghisalberti: La teoria del notorio nel diritto commune. In: Annali di storia del diritto , 1 (1958), pp. 403-451.
- Jean-Philippe Lévy: La hiérarchie des preuves dans le droit savant du Moyen-Age depuis la Renaissance du Droit Romain jusqu'à la fin du XIVe siècle . Paris 1939, pp. 32-53.
- Uwe Kornblum, proof . HRG I, Berlin 1971, Col. 401-408.
- Helmuth Pree , Notoriety . Lexicon for Theology and Church VII, third edition, Freiburg 1998.
- Mathias Schmoeckel: "Nemindem damnes, antequam inquiras veritatem." The development of a high standard of evidence as a prehistory of the suspected sentence. ZRG , Kan. Department 118 (2001), pp. 191-225.
- The same: “Excessus notorius examinatione non indiget.” The origin of the doctrine of notoriety. In: Orazio Condorelli (ed.): Panta rei. Studi dedicati a Manlio Bellomo. Catania 2004, vol. 5, pp. 113–163 = Rivista internationale di diritto commune 14 (2005), pp. 155-188.
