Reception of Roman law

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The reception of Roman law refers to a cultural-historical process that is commonly understood as the scientific penetration of continental European customary and particular rights by Roman canon law . This process of influence of the ius commune ( common law ) on the iura patriae (homeland rights) took place in phases of changing intensity from the High Middle Ages to its pandectistic foothills in the 19th century and thus had a decisive influence on applicable law, for example on the German Civil Code ( BGB) from 1896/1900.

The contributions of the reception for the European legal culture include the scientification and professionalization of the subject towards a real jurisprudence (legal scholarship) as well as the systematization of the legal material for the needs of forensic practice based on this.

In research, the prevailing view is that Roman law was received because it was the law of the imperium romanum , which continued to work as the model of the Carolingian Empire and its successor states and which continued to exist in European culture. Only in the second place did the recourse, which ran over many epochs, result from the high quality of legal law , which was primarily created in the time of the classical imperial era . Due to the extensive compilation of the legal masses that began with the time of the Twelve Tables Act , the late antique Emperor Justinian had a large number of written sources that were used by posterity over many epochs for interpretation and adoption in current legal practice.

Early reception

Legal reception was set in motion with the retrieval of a main handwritten source of Roman law , the Justinian digests . This collection of classical legal law was developed at the University of Bologna , u. a. known as the nucleus for the European legal education (nutrix legum), at the end of the 11th century a catalyst and source basis for secular legal studies, the law (derived from libri legales, the name for the ancient legislative works). The revitalized branch of science took methodical borrowings from scholasticism , in particular the pursuit of logical consistency was elevated to the maxim of source work.

The reception of Roman law is divided into the stages of early and late reception. In the early reception it was mainly the monasteries and spiritual courts that were responsible for the reception. The reason for this can be seen in the legally trained clergy who presided over the courts or monasteries. Later, lawyers trained in Italy increasingly occupied administrative and judicial positions in the "ultramontane" (beyond the Alps) territories of Western and Northern Europe and were thus slowly able to replace the legal laypersons found there .

From the 14th century onwards, the newly founded universities can be regarded as the most important providers of late reception. After the founding wave in the middle of the 14th century, both Justinian (Roman) and canon law were taught here. The establishment of new universities supported the spread of legal education, also in the Holy Roman Empire : Prague 1348, Vienna 1365, Heidelberg 1386. The lawyers trained here worked in the administrations of the empire and the territories as judges or legal scholars. Because of the similarity of the legal sources, one can speak of a uniform legal education in continental Europe. This first phase of reception is regarded as ended with the justification of the Reich Chamber of Commerce in 1495.

Glossators, post-glossators, consultants

The first in-depth study of Roman law was achieved in the 12th century by the legal scholars in Bologna and Pavia in the form of a commentary on the texts of the Corpus Iuris Civilis . Notes were added to the original texts on the corresponding pages ( glosses ). One speaks therefore of the Glossatorian period (the same applies to the processing of the Decretum Gratiani or Corpus Iuris Canonici ). Irnerius , who worked as a lawyer at the Bologna School of Law until 1125 , was probably the first to start commenting on the Corpus Iuris Civilis. The importance of these glossators lies primarily in their preparatory work on ius commune. But they were also active in creative law (for example in tort law, property law and compensation law, and they also developed the principles of non-commissioned management and unjust enrichment ). One of the most extensive glosses was compiled by Accursius (1183–1260 / 63) in the collection Glossa ordinaria .

In the following time, the glosses became more and more extensive, so that they grew into comments in separate books. The lawyers working in this phase also turned more and more to legal practice in the countries of Europe and influenced it by preparing legal opinions. For the first time, they tried to resolve legal decisions by abstracting them from individual cases and thus developing common principles from practice. The turn to legal practice made a detailed investigation into the legal areas of commercial law necessary.

In the 13th and 14th centuries reception was in full swing in Italy and the Western European countries France and Spain, but not in Germany. From the middle of the 14th century onwards, universities began to emerge there that do not only deal with canon law. It has not been established whether permanent lectures in Roman law were held before the middle of the 15th century. The influx of Germans to the Italian universities also began relatively late and did not reach its peak until the second half of the 16th century.

Practical spread in modern times

After the establishment of the Imperial Chamber Court in 1495, it (and the Imperial Court Council ), as the highest court in the Holy Roman Empire, was assigned a key role in the continued reception of Roman law. Although this was never officially elevated to imperial law and imperial, national and customary law (consuetudo) officially took precedence, it was the most important conceptual source for classifying legal figures in modern times. Therefore, the Roman canon law was mostly used by the judges, as there was a clear written and systematic fixation.

Also important for the progress of practical reception was the popularization of the received law through easily understandable, German-language legal books with Roman legal content, such as, first and foremost, the Klagspiegel of Conrad Heyden (around 1436), as well as in the 16th century and others. a. Ulrich Tengler's Laienspiegel and Justin Gobler's Rechtenspiegel . Such writings promoted the penetration of Roman law into the lower levels of legal practice, which at that time were still largely shaped by non-lawyers. An indirect consequence was an increased legalization of everyday life.

Epoch of Usus modernus pandectarum

Scientifically, the reception was pushed forward again in the epoch of Usus modernus pandectarum in the Holy Roman Empire. Due to the fact that the Roman canon law had not been formally used as imperial law, the established legal clauses were continuously subjected to critical examination during the time of the Holy Roman Empire.

This discussion was particularly successful in the Usus modernus pandectarum, which not only represents a further epoch in the reception of Roman canon law, but whose merit it is that a uniform legal system (for private law ) in the Holy Roman Empire was formed from legal practice could be. In this epoch, the development of which is to be seen as pan-European ( mos gallicus , mos italicus ), the already existing particular law, legal practice and learned Roman law were adapted to the existing conditions in the Holy Roman Empire, so that a uniform legal system became began to emerge. In the spirit of humanism , the authors questioned the sources of the Corpus Iuris Civilis and the Corpus Iuris Canonici and compared them with ancient legal texts. In addition, an attempt was made to unify particular law and scholarly law. All of the received Roman law was critically reassessed. The case-related literature also increased during this time.

At the end of the epoch, the Usus modernus was already being enforced by the beginning of the Enlightenment and the ensuing conflict with natural law .

Pandect science under the influence of the historical school of law

The last effects of the reception were expressed in Germany in the development that ultimately led to the codification of the civil code , namely the historical renewal that took place in the 19th century at the suggestion of Friedrich Carl von Savigny , which called for a new version of the Roman legal sources on their basis a general German civil law should arise, the subject of pandect science .

This saw itself as a historical jurisprudence based on the culture of a people , which is why it rejected the over-positive timelessness of law, which is inherent in the law of reason based on natural law . The use of creative leeway and creative activity for practice were called for. In Germany, the reception of this period was more likely to be based on the doctrine of the Italian commentators than on the corpus luris itself. There is a large amount of literature on reception in Germany.

literature

  • Paul Koschaker : Europe and Roman law . 4th edition. Beck, Munich 1966, DNB 457278439 .
  • Franz Wieacker : History of private law in modern times with special consideration of the German development . 2nd Edition. Vandenhoeck u. Ruprecht, Göttingen 1967, ISBN 3-525-18108-6 .
  • Gerhard Wesenberg , Gunter Wesener : Modern German history of private law in the context of European legal development . 4th edition. Böhlau, Vienna / Cologne / Graz 1985, ISBN 3-205-08375-X .
  • Gunter Wesener: Influences and Validity of Roman Common Law in the Old Austrian Lands in Modern Times (16th to 18th Century). Böhlau, Vienna / Cologne 1989, ISBN 3-205-05234-X (= research on the modern history of private law, 27)
  • J. Michael Rainer: Roman law in Europe. From Justinian to the Civil Code . Manz, Vienna 2012, ISBN 978-3-214-00785-0 .
  • Udo Wolter: Ius canonicum in iure civili. Böhlau, Cologne 1975, ISBN 3-412-02275-6 . (Research on the recent history of private law, 23)
  • H. Lange: Roman law in the Middle Ages. Volume I: The Glossators. Beck, Munich 1997, ISBN 3-406-41904-6 .
  • Filippo Ranieri : Roman Law, Reception. in: Lexicon of the Middle Ages. Volume 7, pp. 1014-1016. Metzler, Munich 1995.

See also

Individual evidence

  1. ↑ The barely verifiable find of the so-called Littera Florentina (the authoritative Digest manuscript) and its supposed route from Amalfi via Pisa to Florence is supported by documentary support in a Tuscan document from 1076. In it, legal experts refer to one for the first time in post-antiquity Digest point.
  2. ↑ a b Paul Koschaker : Europe and Roman law . 4th edition, CH Beck'sche Verlagbuchhandlung. Munich, Berlin 1966. p. 66 ff. And p. 141 ff.
  3. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008 (Grundrisse des Rechts), ISBN 978-3-406-57405-4 , § 3 no. 9 ff. (Pp. 32-35).
  4. ↑ Georg von Below provides an overview : The causes of the reception of Roman law in Germany . Historical library, published by the editors of the historical journal XIX, 1905. pp. 3 f., 52 f.