Statutes doctrine

from Wikipedia, the free encyclopedia

The doctrine of statutes (also the theory of statutes ) is a procedure developed in the High Middle Ages that was supposed to give lawyers who were trained in Roman law a handle to cope with overlapping local and general legal norms. The doctrine was developed during the glossary early reception of Roman law in Bologna . During the time of the commentators, the teaching went through various developments, but always adhered to the principle that there were limits to the legislative power in the individual states and communities concerned.

history

After the digests , which were believed to be lost, were found in Bologna , Roman law was systematically examined in the following years and matured into a received law. Legal opinions were increasingly required under this law. In the church it was already valid in the form of canon law , learned jurists were increasingly employed in state institutions and since individual provisions corresponded to their interests, Roman law was increasingly promoted by those in power. From the 15th century it also spread in Germany. In contrast to Roman law, there was the medieval legal practice, which drew its norms primarily from legal texts applicable to a limited area (land rights, city rights, arbitrariness) and legal habits that were established in an oral procedure by lay judges .

According to the doctrine of the statutes, particular law should be applied with priority, Roman law, however, only subsidiary . In this way, the influence of the respective legal community on the local jurisdiction was preserved ( locus regit actum ). In the following, a hierarchy that was complicated even for contemporaries developed on this basis: In essence, local customary and statute law took precedence over national customs and rights, then imperial law. Roman canon law was generally enforced unless other legal norms existed or these were viewed as "unreasonable". In addition, existing gaps in particular and customary law should not be filled by interpolating known legal norms, but with recourse to Roman law, which, however, was itself interpolated. If there were conflicts between particular rights and Roman law, the predominant law was to be interpreted in such a way that it came closest to Roman law.

In the 15th and 16th centuries, the doctrine of the statutes was further developed in the Holy Roman Empire of the German Nation . The Reich Chamber of Commerce played a decisive role in this , and in its case law it was confronted with the enormous scope of local and state laws applied in the Reich. The parties could rely on particular law in the proceedings. To do this, however, they had to prove the local law and its validity. According to the subject matter of the regulation, it was a matter of personal or real statutes ( statuta personalia, realia ) , i.e. matters relating to the individual's legal capacity to act on the one hand and rights relating to all properties on the other. That was difficult, as long as such rights - as in the Sachsenspiegel - were not written. Local law was often inferior to ius commune in its systematic quality , so that it was usually more advantageous to present one's case according to Roman law from the beginning.

In local courts, a combination of particular and Roman law developed into the ius commune in loco . As a rule, precedence and compliance with the claimed law ('viridis observantia') were decisive for which law was applied. Since the 17th century, the idea of comitas played a role among government leaders in the question of legal competition , which had to be observed.

Wächter and Savigny overcome the doctrine of the statutes

Today the concept of the statutes can be found in international private law . Its function is still to determine the applicable law. While the doctrine of the statutes was based on which substantive law wanted to be applied uniformly territorially , more recent theories of conflict of laws based on the criticism of Carl Georg von Wächter and the re-establishment of the conflict of laws by Friedrich Carl von Savigny and above all on the person and the individual legal relationship . While the doctrine of the statutes wanted to apply each factual law according to its inherent "will to apply", which Wächter criticized in detail because of the large number of uncertainties brought with him, Savigny treated the question of the application of law "as an object of the lex fori in need of regulation " and thus separated the conflict of laws as an independent scientific work on Subject of substantive law.

In modern international private law - in Germany particularly based on Savigny - the underlying legal relationships are asked and examined to which of the legal systems in question they have the closest connection. Depending on whether a legal relationship relates to a contract, a person or an illegal act, it is z. B. assigned to contract, personnel or tort law (the respective problem). Furthermore, a distinction is made between marriage, inheritance, gift, rental, company statute, etc. Legal questions belonging to the same statute are to be dealt with uniformly according to today's international private law according to the substantive norms of the same legal system.

literature

  • Helmut Coing : European Private Law 1800–1914 (19th century). , Vol. 2. Munich 1989. pp. 257-264 (Section 41. International Private Law ).
  • Hans Hattenhauer : European legal history. Müller, Jur. Verlag, Heidelberg 2004, ISBN 3-8114-8404-4 .
  • Peter Oestmann : Diversity of law. In the S. (Ed.): Habit - Command - Law. Normativity in the past and present. An introduction. Tübingen 2011, pp. 99–123.

Individual evidence

  1. ↑ Helmut Coing : European Private Law 1800–1914 (19th century). , Vol. 2. Munich 1989. p. 257 ( International Private Law ).
  2. ↑ On the collision of the private law laws of different states, Karl Georg von Wächter in: AcP 24 (1841), p. 230 ff .; 25 (1842) p. 161 ff.
  3. ^ Abbo Junker : International Labor Law in the Group. Mohr Siebeck, 1992, ISBN 3-16-145985-7 , p. 48.
  4. ↑ According to today's view, private international law is no longer subject to international law, but rather to national law. Compare this at the end of the 19th century: Franz Kahn : Treatise on the content, nature and method of international private law . In: Yearbooks for the dogmatics of today's Roman and German private law . CF von Gerber, Rudolf von Jhering (Ed.) Book 40 (1899) pp. 1-87; compare on the other hand today: Gerhard Kegel : Internationales Privatrecht , 5th edition, Munich 1985, p. 6.
  5. ↑ Compare the generally understandable presentation by Menno Aden : Internationales private business law. Oldenbourg Wissenschaftsverlag, 2006, ISBN 3-486-57892-8 , p. 54 ff.