Usus modernus pandectarum

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The term usus modernus pandectarum (short: usus modernus , translated as follows: contemporary practice of Roman law (the book of the Pandects is only the hook) ; contemporaries also speak of the mores hoderniae (= today's [judicial] use) or of the nova practica (= modern practice)) designates in the narrower sense, which relates only to Germany, to an epoch in German legal development during the 17th and 18th centuries. Often it is understood in a simplified manner as the reception of Roman law in Germany.

The “scientification of legal life” went hand in hand with the Usus modernus. Basically, it began as early as the 16th century and ended with the great codifications of natural law . In the intervening time Germany rezipierte the Roman canon law, elsewhere, such as in Italy and France , long ago for legal practice rezipiert was. The resulting “ius commune” provided a legal foundation on which legal doctrine and jurisprudence could build.

Usus modernus is based on the consilatory reception of Bartolist working methods and methodology. Bartolus had merged traditional and local law into "contemporary modern law". At its core, the German assimilators were interested in whether the regulations contained in the corpus iuris could claim validity for German legal practice at all, and thus whether their own claims would be satisfied in order to advance a scientific enterprise under public law. After the end of the discussion, Roman law was introduced into common law as a subsidiary law . For scientific purposes only traditional law became written law. The law was formulated more clearly and conceptually more logically. The process of modernizing law also helped modernize society.

origin of the name

The name of this era comes from the title of the work Specimen usus moderni pandectarum (1690–92) by Samuel Stryk , a main exponent of this style. The actual term is difficult to translate, "modern use of the Pandects " hardly applies, since the meaning of the word "usus" is not expressed enough here. "Usus" is a technical term in Roman law. It denotes the prolonged application of a rule or an ongoing custom with the result that customary law emerges from it. While the Corpus Iuris Civilis was previously irrefutable due to the lack of a conflicting particular law, the validity of each text could now be questioned. For each theorem one had to bring proof of its practical reception. This led to an independent German legal awareness and, according to Franz Wieacker, was the beginning of German legal history.

Spatial scope of teaching

Klaus Luig speaks of "great difficulties" that arise when the content and time of the usus modernus are outlined more closely . Therefore, despite the origin of the name from the title of a work by the German lawyer Samuel Stryk, it is not very appropriate to restrict it to the area of ​​present-day Germany. The usus modernus was not tied to any state border, but rather a "pan-European era of jurisprudence". The Dutch Matthias Wesenbeck gave his lectures in Germany, while the German Johann Jacob Wissenbach was active in Holland. The work of Hugo Grotius to the Roman-Dutch law, Inleidinge tot de Hollandsche right-geleerdheid , was greatly respected in Germany and the quotations in the work of the widely read Arnold Vinnius in Spain discussed and South America. One of the most important lawyers in the Netherlands, Johannes Voet , began teaching at the High School in Herborn . One will therefore see all those jurists as representatives of the usus modernus who, based on the glossators and consultants of Italy, applied a “theoretical-practical” approach and tried to combine Roman law with local law.

In a broader sense is usus modernus the science and practice of the current Roman - canonical law from 1500 to 1800.

Content of teaching and practice

Reception controversy between Romanists and Germanists

At the beginning of the epoch in Germany, the reception of Roman law was well advanced through the work of the Italian glossators, especially the commentators and the French lawyers in southern and western Europe. The appropriation of the law in this area took place in the 12th / 13th and 14th centuries. Century immediately used and the "statute theory" brought about. Statuary law should then take precedence but be interpreted in the light of Roman law. As a standard of interpretation, Roman law was therefore more important. This is not the case in Germany, which followed the southern and western Europeans at a considerable time, respectively only began to adopt Roman law in the 16th century. In doing so, the basic Stryksian idea was taken up, to only receive Roman law step by step, so to speak to be able to defend one's own law. From this it becomes clear that Germany did not live in a lawless area and that for centuries, even without a history of Roman reception, Germany knew how to deal with domestic law, Germanic law. And it is precisely this Germanic law that spread with a high degree of penetration at a time in which Germanic tribes and the migration of peoples brought about the settlement of Central Europe. The reception in Germany can be judged as a conflict between Germanism and Romanism in law.

Reception of the corpus iuris in the version of the commentators

In Germany, the lawyers were ultimately able to build on the work of the protagonists, especially the literature of the commentators. Commentary literature was legal law, law of trained lawyers. Since the commentators themselves were already pursuing a scientific claim, a breeding ground for further developments developed. The preliminary work consisted in the fact that many legal terms were already so sharply defined that one could speak of definitions and systematic connections. A classification logic divided the factual relationships into basic terms. With such a theoretical tool one could face the practical cases of everyday life.

The gap between Roman tradition and local law seemed manageable. Roman law was no longer legitimized solely by virtue of the translatio imperii , theoretically admirable, but practically hardly manageable. The fact that the conviction that Roman law was natural law of spiritual authority had become blunted was shown by the development of the Lotharian legend , which could show itself ineffectively over three centuries and now became significant because a need arose for Roman law to be "new" have to legitimize.

The usus modernus followed this phase in Germany. Characteristic was a freer, more pragmatic approach to the fundamentally casuistic source models of Rome. In contrast to earlier epochs, not only the Roman source texts were used, but also the Corpus Iuris Canonici and, in particular, a comparison was made with the domestic particular rights that were included as legal sources in the overall legal view (with Samuel Stryk , namely the Sachsenspiegel ). Depending on where the lawyers were active, local law formed the background for the application of the Corpus iuris civilis , primarily the Pandects . Christoph Besold and Wolfgang Adam Lauterbach dealt with Württemberg law in Tübingen and David Mevius , for example, used Luebian law in Greifswald to make the Justinian legislation practicable.

During the adaptation process, the essential parameters were borrowed from pan-European Romance studies, which ranged from legal literature to case law to the forms of legal teaching and the lecture material. At the time of the beginning of the reception we encounter the Freiburg city law or the first German penal legislation , the Carolina , as well as the Electoral Saxon constitutions as still very independent German statutes . What they all had in common was that they only regulated state and police regulations. That changed in the period that followed. The codification of the Codex Maximilianeus bavaricus civilis can be seen as a significant result of a successful transliteration of Roman into German law .

Unlike before, Roman law was subjected to a critical examination. In individual cases, the representatives of usus modernus came to the conclusion that the provisions of Roman law were not applicable to the current situation and that the provisions of canonical or domestic law had to be given priority. The period of these disputes is the longest and probably the most significant for Germany's involvement in Roman law. From it arose the common law dogmatics from which today's German jurisprudence still benefits.

Legal matters

Many theories, such as those on consensual contracts , joint hands , the right of assignment , property rights or the right to enrichment , were taken over from the civil code directly from pandect science, have already been dealt with and determined in advance by practitioners of usus modernus with regard to source selection and fundamental discussion. The usus modernus also became important in the formulation aid for criminal law theories. The general part of today's German criminal law is dogmatically rooted in this time. Since the newly emerging natural law has been taken into account in the application of the Pandects since the first half of the 18th century , for example with Johann Gottlieb Heineccius and Augustin Leyser , who dealt with a large number of legal questions in his eleven-volume collection Meditationes ad Pandectas , the general dogmatics was already flowing in the German natural law codifications.

During the time of usus modernus, however, it was also determined which legal figures of Roman law should not be included because they could not be brought into harmony with social customs and legal conceptions. In general, personal and family law are relatively little affected, if only because direct relationships with life continue or renew themselves in their own tradition. The Roman status law, in particular the distinction between civil and alien law, was not adopted, nor was slave law . The Roman Patria Potestas was not accepted either , as far as adult house children were affected, because German law precursors to parental authority had long been established. On the other hand, there was personal marriage law, which at the time of usus modernus was not influenced by either Roman marriage law or the secular German law of Muntehe , since canonical marriage law had already prevailed in the High Middle Ages with the Second Lateran Council .

Hermann Conring and other representatives

Most closely connected is the complete overcoming of the "theoretical" reception with the name of the politician, polyhistor, diplomat and lawyer Hermann Conring (1606–1681). As an expert in political and legal justification and refutation theories, he invalidated the Lothar legend for the purpose of free work with the source materials and in 1643 drafted the first pragmatic history of reception with his famous writing De origine iuris Germanici . The book appeared a few years before the end of the Thirty Years' War and with it the final collapse of the empire , whose prevailing legal consciousness had given Roman law metaphysical legitimacy.

Important representatives of usus modernus are still: Ulrich Zasius (1461–1535), Benedikt Carpzov (1595–1666), David Mevius (1609–1670), Georg Adam Struve (1619–1692) and Justus Henning Böhmer (1674–1749).

Appreciation and aftermath

Research assumes that Germany would have advanced to a specialized law even without the reception of the Corpus iuris civilis , as the Corpus iuris has been called since the time of humanism ; it would then have been more shaped by statuary or case law features. Since the reception in Germany started later than in the states of Southern and Western Europe, it was possible to set in motion a process of intellectual and technical renewal at the same time; In addition, the reception found a new apparatus for the administration of justice, a well-trained civil servant . The old legal bodies, which regularly lacked specialist training, had previously been recruited from the ranks of patricians , knights and church dignitaries . They have now been forced out of their function. With the performance of duties by the civil servants, for whom there were career opportunities for advancement, state objectives increasingly came to the fore, so that it can be said that former "legal honoraries" ( Max Weber ) had become civil servants . They cultivated a more responsible approach to social interests than their predecessors, who pursued particular interests.

In the German territorial state of the pre-revolutionary period , the authorities , the princely authorities, made alliances with Roman law in many places. Authority-related law moved into the legal consciousness of the people. Written and spoken law was based on the authority of the sovereigns and thus on their public responsibility. And this public responsibility went against the economic and political interests of the estates. The upper hand of the learned administration of justice is in this respect linked to the princely state itself.

It was critically noted again and again that with the abstraction of the scientific community and the development of a rationalistic claim to the legal monopoly, the vitality of the people's forces had flattened out. The learned law is accused of the fact that the wealth of personal, organic and historical forces was no longer reflected in the law, so that - in contrast to the developments in English law - it must be attested that parallel to its development there was a "rational solidification" on the continent Have found their way. The continental citizen would still face his law like something “foreign”, whereas the English citizen would experience the law and the administration of justice in his country as common property.

As far as Roman law is still used today, in South Africa and Botswana , the term “usus hodiernus pandectarum” is used in contrast to “usus modernus pandectarum”.

literature

  • A. Ahsmann: Arnold Vinnius , in: Gerd Kleinheyer; Jan Schröder (Ed.): German and European lawyers from nine centuries , 4th edition Heidelberg 1996 ( ISBN 3-8252-0578-9 ).
  • Helmut Coing : European Private Law , Vol. I: Älteres Gemeines Recht , Munich 1985, preliminary remark p. 4.
  • Gabor Hamza: Origin and Development of Modern Private Law Orders and the Roman Law Tradition, Budapest 2009. pp. 186–189. ( ISBN 978-963-284-095-6 ).
  • Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 63–70.
  • Martin Heger : Law in the "Old Reich" - The Usus modernus , ZJS 2010, 274 ( PDF )
  • Alessandro Hirata: The completion of the usus modernus pandectarum: Christian Friedrich von Glück (1755–1831) , Savigny-Zeitschrift 123 (2006), pp. 330–342.
  • Paul Koschaker : Europe and Roman Law . 4th edition, CH Beck'sche Verlagbuchhandlung. Munich, Berlin 1966. p. 141 ff.
  • Klaus-Peter Nanz: The emergence of the general concept of contract in the 16th to 18th centuries , Munich 1985 ( ISBN 3-88709-082-9 ), in particular chapters 8 and 9, pp. 85 ff.
  • Gunter Wesener : The role of the Usus modernus pandectarum in the draft of the Codex Theresianus . On the history of the effects of the older common law , in: Effects of European legal culture. Festschrift for Karl Kroeschell on his 70th birthday (Munich 1997), pp. 1363–1388.
  • Gunter Wesener: On the interweaving of Usus modernus pandectarum and the doctrine of natural law , in: In the service of justice. Festschrift for Franz Bydlinski (Vienna-New York 2002), pp. 473–494.
  • Gunter Wesener: On the importance of the Usus modernus pandectarum for the Austrian ABGB . Commemorative book for Theo Mayer-Maly on his 80th birthday, Vienna-New York 2011, pp. 571–592.
  • Franz Wieacker : History of private law in modern times. Taking into account the German development. 2nd edition, Vandenhoeck & Ruprecht, 1967. Chapter: Der Usus modernus p. 204 ff; 225 ff.
  • Reinhard Zimmermann : The law of obligations , which, when discussing individual law of obligations institutes , also goes into the doctrine of the usus modernus or ius commune.

Web links

  • Thesaurus Practicus by Christoph Besold [1]
  • Compendium Juris by Wolfgang Adam Lauterbach [2]

Individual evidence

  1. ↑ Christoph A. Kern : Typicity as a structural principle of private law. A contribution to the standardization of transferable goods , (also habilitation thesis), Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-151724-2 , pp. 89 ff. (89).
  2. ↑ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 63–70.
  3. ^ Franz Wieacker : History of private law in the modern age. Taking into account the German development. 2nd edition, Vandenhoeck & Ruprecht, 1967. Chapter: The Usus modernus p. 225.
  4. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 2 no. 11-13 (pp. 25-27).
  5. ^ A b Franz Wieacker: History of private law in the modern age. Taking into account the German development. 2nd edition, Vandenhoeck & Ruprecht, 1967. Chapter: Der Usus modernus pp. 204–224.
  6. ^ Klaus Luig : Usus modernus , in: Concise Dictionary of German Legal History V, Sp. 628–636 (629).
  7. ^ Helmut Coing : European history of private law . I. Preliminary remark p. 4.
  8. ↑ Uwe Wesel : History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . P. 371 f.
  9. ↑ a b Paul Koschaker : Europe and Roman law . 4th edition, CH Beck'sche Verlagbuchhandlung. Munich, Berlin 1966. pp. 141 ff. (146).
  10. ^ Franz Wieacker: History of private law in the modern age. Taking into account the German development. 2nd edition, Vandenhoeck & Ruprecht, 1967. Chapter: Der Usus modernus p. 124 ff (145).
  11. ↑ Otto Stobbe : Hermann Conring, the founder of German legal history. Speech given at the beginning of the rectorate of the University of Breslau on October 15, 1869 Verlag von Wilhelm Hertz, Berlin 1870.
  12. ↑ Erik Wolf : Greek legal thought. Vittorio Klostermann, 4 vols., Frankfurt am Main 1950–1970. P. 252 ff.
  13. ↑ Erik Wolf: The German Empire Theory. In: Zdt Kult Phil 10 (1943), p. 115 ff.
  14. ^ A b c Franz Wieacker : History of private law in the modern age. Taking into account the German development. 2nd edition, Vandenhoeck & Ruprecht, 1967. Chapter: Der Usus modernus p. 225 ff. (243–248).