Rome always wanted to rule,
and when his legions fell,
it sent dogmas to the provinces.
As I wrote in the Man/Person post, when I finished the post about the collateral account, I thought I had covered the topic of slavery and Roman law broadly enough and that it was now closed.
However, the need to work through the concept of person brought me back to Roman Law.
Without understanding this law and its history, its sudden and strange re-emergence from obscurity, where it also definitely belongs, the explanation of the legal relationships that still haunt us everywhere and the "law" applied, is not possible. For the Roman law is everywhere precisely implemented and still enslaves us today.
In this post, I will briefly outline the history with the help of insights from wise men of the past.
Rome never fell
The Roman right attained the reputation of a legally valid right, only slowly and creeping and the reawakening of the Roman right, reads partly like a thrilling detective story. Too strange the reappearance in the history of nations. Too well organized and executed. Nowadays one would say well-planned marketing - or worldwide conspiracy.
After the peoples, after the fall of Rome, were spared from the Roman law for several centuries - because this Roman "law" was never a right of the people but always the right of the rulers, it suddenly reappeared from obscurity and was carried simultaneously in all countries. The people, respectively the peoples, had no interest or need at all in this so-called right, so foreign and impracticable it was. For this reason, the resistance of the people to its re-establishment was great. No one wanted it and the peoples had never lacked it. It had to be forced upon them again.
According to legend, Irnerius, the founder of the Glossatorian School of Roman Law, who was not a lawyer at all, but a teacher of liberal arts, founded a new school for it, where it should be taught. It is said that he was so attracted by the content of the parts of the Corpus Juris that he found that he even founded this school for Roman law. He treated the material not as a practical jurist, but as a learned researcher who had never made any studies of it or ever tested it for practical application. His students, who suddenly flocked to this school from all over to learn something that had interested no one before, then carried it on to the various countries from whence they came. So they learned it there obediently, following in their teacher's footsteps, never questioning or examining it and taking it out into the world.
From the 15th century on, it was taught as such at the German universities. These learned jurists were then appointed to the courts and court rules were issued in which it was prescribed that decisions be made according to Roman law instead of according to the valid, generally accepted domestic law, which was known to the people and according to which they also lived.
The whole process of the reception of the Roman law in Germany, under displacement of the law of the Germanic tribes, which ruled and lived there, seems very strange and puzzling and one cannot help but ask oneself, which hidden forces worked behind it, controlled the whole thing and who could have had such an interest in such a project.
To do right safely, you need to know very little about law.
Just to do wrong for sure, you have to have studied the law.
In his book "Die Rezeption des römischen Rechts in Deutschland" (The Reception of Roman Law in Germany) from 1868, Dr. Carl Adolf Schmidt, Oberappelationsrat zu Rostock, described this process of reception as "an anomaly and uncanny". He called Roman law "a foreign law, which neither corresponds to the conditions nor to the needs of the practical life of the people". He also found that the "strangest thing about it is that the whole process does not trouble us," and this, mind you, he wrote over 150 years ago. Even Rudolf von Jhering, a high advocate and promoter of Roman law, declared bluntly at the time that "Roman law is destroying our nationality".
At that time, the circles of scholars had not yet fallen prey to the complete lobotomy, as it is nowadays. There were very loud and warning voices that looked at this hostile takeover critically and also addressed and discussed it. Friedrich Wilhelm Ungerer described this state of affairs in his book "Roman and National Law" in 1848 with the following words:
"Especially in the German fatherland, at this moment the parties are, as it were, facing each other with drawn swords... it is an uprooted error of the studied jurists who grant the law book of Justinian validity in Germany, while in the consciousness of the people, however, a completely different law lives, the knowledge of which, however, is lacking in the blinded university teachers and their faithful students."
If we look at the world and our legal system today, we can say with a clear conscience that this hostile takeover was successful. And the circumstance which seemed so strange, inexplicable and disturbing to the legal scholars of that time, that several authors devoted themselves to this subject in order to find the cause, without being able to grasp it exactly, we experience in full bloom in our present times.
The legal situation
Roman law is omnipresent. All courts are private courts, which delude people into believing in the rule of law, in the semblance of a pale memory of justice reflected on the horizon like a mirage.
The judicial, legislative, and executive branches all play on the same team, hand in hand, as the superior opponent of the People. In Germany, the statehood of the courts, which was introduced by Kaiser Wilhelm II, was abolished in 1950. Since then everything is private. Private courts, which the serve economic purposes.
Thus we are judged by and in front of institutions of a private nature, to which we are hidden contractsthat are being foisted upon us, and they haven't the faintest idea about it.
The result is astonishment at the results that come out of negotiations in which matters are then negotiated anyway, and bitterness on the part of those who have had the misfortune to fall under the wheels of this machinery called the judiciary.
Constitution of education before 1950
The courts are state courts.
Private jurisdiction is suspended....
Constitution of education after 1950
He who controls the past controls the present.
The Roman Law
How did it come about and why?
Here we must draw an arc of history, and then return to Roman law and its reception. If the reader of these lines has fared as I did in my school days and the content of history lessons consisted of the most intense, annual, monotonous repetition of a single theme, he will perhaps have learned ancient history at school in the form of:
"There were Romans. They were a superior civilization. Ruled over the entire world. For reasons unknown, Rome perished."
have been treated and taught.
In view of the wise and to this day valid saying "the victors write the history" it is only logical that in the German schools nothing is taught which could cause pride in their ancestors among the descendants of the Teutons and could lead to further questioning of certain things.
Therefore, the interested reader may learn a few things here that the school has failed to pass on to us. The uninterested reader is welcome to read over the whole thing.
I maintain that the Teutons, with their kind, were always the enemy of Rome, because the Teutons had a very free, moral and honorable kind of society. The Germanic law was completely different from that of the Romans. This has to do with the inner nature of the Germanic people, and for this one must understand the character and thinking of the Germanic people, in order to be able to understand why they were the opposite of Rome and why Roman law was so completely different from their lived law.
The Teutons never had slaves in the way that other peoples did. They had the material servitude (servants), instead of the personal slavery of the Romans. The disappearance of the perfect, Roman slavery disappeared parallel, with that of the immigration of the Teutons. For Teutonism had the predominant influence in eradicating the slavery of antiquity. Rome, on the other hand, was based on slavery.
In their conquests, the Teutons did not enslave. They also did not impose their customs and their rights on the inferior.
The Roman Empire has always been characterized by conquest, fraud, slavery and their wealth was based on robbery. It was always designed to subjugate, control, regulate and dominate the free individual. Thus Germanicism in all its forms was from the beginning the antithesis of this and stood in the way of world domination.
So after the Teutons brought down the first Rome, the Roman idea continued to proliferate in the depths, was taken up as a tool by the Roman Church, and slowly crept unnoticed back up into the restructured peoples. The papacy spread and when the willing stooge Charlemagne, greedy for the glory of becoming an emperor in papal grace, was offered this opportunity by the conquest of the free peoples. He succeeded in this and it became the first great blow against the people.
Rome fell through the Germanic tribes, but it also infected them like a slow-growing virus, and thus also later attacked Germania like a mold, slowly taking over the house.
The revenge of the Roman Empire, which began its first great victory with the destruction of Irminsul, sacred to the Germanic peoples, by Charles the "Great". This wound bleeds until today in the souls of the people. (for this I can gladly read this article "the original wound" recommended here - it explains one of the reasons for the current "Duckmäusertum" of the Germans).
But let us first come to know the then adversary of Rome, who successfully defeated it.
"Oppression was the breath that gave Rome life. It was at constant war with mankind."
Jacob Venedey "Romanism and Germanism - Transformation of Slavery":
Jacob Venedey - Romanism, Christianity and Germanicism in their Interaction in the Transformation of Slavery
While Rome was hastening with giant strides towards her downfall, and Christianity was only hastening it, a third element, that of Teutonic customs and institutions, arose from the other side to deal the death blow to the giant, and to scatter upon the ruins of the world empire the seeds of a new future.
We are compelled to go into more detail here, and to consider the customs and principles, laws and institutions of the Teutons somewhat more closely, since, in our opinion, they are of preponderant importance in the shaping of modern times, and, moreover, play the principal part in the conditions which brought about the abolition of the old slavery.
Rome had conquered the whole more or less civilized world. Nothing had been able to resist its legions until at last they came upon the Germanic tribes, whose names the Romans had scarcely ever heard. The Teutons were a core people, in all the vigor of their youth, pure in morals, brave, and jealously proud of their almost savage freedom. On those men of iron will, of indomitable courage, the current of Roman conquest was to break.
It is beyond the scope of my work to follow the change of war in which courage, love of liberty, and self-reliance, after a thousand lost or useless battles, learned to defeat an enemy who had long kept the wild intrepidity of those bold warriors in check by his art of war, his discipline, and his diplomacy.
My intention is only to characterize in some detail the principles of that people who defeated the victor of the world. The Teutons were a barbarian people compared to the civilization of Rome and the greater part of the Roman Empire.
The land they inhabited was almost undeveloped. Great primeval forests, snow-covered mountains, rivers which were frozen for a great part of the year, were natural barriers to commerce and to the communications necessary for the spread of civilization. But they also resisted the invasion of hostile armies, and helped the people who inhabited that land to resist the onslaught of the Roman Empire.
Jacob Venedey - Romanism, Christianity and Germanicism in their Interaction in the Transformation of Slavery
Whoever studies the original institutions and customs of the Teutons more closely, must soon convince himself that actual slavery did not occur among them....
..with the old conquerors of Germania the unfree people did not occur at all.or at least very rare, and the Sachsenpiegel and Schwabenspiegel are proof that this view was already that of the German legalists at the time when these two codes were written.
The connections which soon took place between the Romans and the Teutons were bound to endanger the original purity of the Teutonic institutions; for a barbarian people will never be able to keep itself free from the influence which the conquered, if it stands on a higher level of culture, exerts on it.
The Teutons found in Rome and the Roman Empire quite different views of slavery from those of the Teutons concerning servitude. These new principles, as has been said, necessarily had very soon to exert their influence on the Teutonic institutions.
The Germanic conquerors left everywhere to the conquered peoples the laws under which they had hitherto lived. Thus Roman law and justice coexisted with Germanic law, as the Roman coexisted with the Germanic. For a time these two legislations could maintain themselves purely coexistent, but soon both had to seek to complement each other, and then the Germanic law necessarily borrowed more from the Roman one.
Jacob Venedey - Romanism, Christianity and Germanicism in their Interaction in the Transformation of Slavery
Formed as a principle of order: a public order which honoured freedom and perpetuated it with more or less happy success through popular representation, free associations and free communities, the consequences of the Germanic principle, down to our own day. Morality, freedom, order were the Seele of Teutonism. We find the same everywhere in the primal laws of the Teutons. We have seen how the whole Zivil- and Kriminal justice was founded on the morality of the people, and never did a higher, a nobler fundamental idea inspire a legislator. Recent times are rich in theories of punishment and law in general.
We have seen them founded on deterrence, fear, threat, utility, necessity, safety, and improvement; humane and inhumane principles have been tried, and all set up as eternal truth with equally unhappy success. But one disdained to observe and appreciate what a barbarian people had done and accomplished according to the will of God and nature, his organ, which they understood because they were not yet sufficiently demoralized and corrupted to deceive themselves as to the meaning of that eternal voice....
...founded the administration of justice on the principle of eternal peace among men, on that of reconciliation, which was contrasted with war and crime. And if that which among the Teutons was only the result of an unrecognized deep feeling should one day become the result of a recognized thought of rebirth, then men would perhaps weave a crown of thorns for him who uttered this thought.
Reconciliation, peace, was the principle that created the first states among the Germanic tribes, and the Germanic people remained faithful to this idea full of salvation for society long enough.
Jacob Venedey - Romanism, Christianity and Germanicism in their Interaction in the Transformation of Slavery
We saw the interests of humanity in constant struggle with the Roman principle of life. On the contrary, we find the interests of mankind represented everywhere in the Germanic institutions, and history shows us that as often as a people abandoned these principles, which are still fighting against injustice and privilege, the hostage of God and misery and misfortune came upon them.
We have seen that Christianity was built on the principle of duty, devotion, and sacrifice; and that Germanicism had made the same principle the basis of its essential institutions. But then also that Christianity established the principle of duty only passively, while in Teutonism it became active, and so became laws and institutions of state. As this principle gradually led in Christianity to the recognition of humanity, and later to a real right of nations, so it had a similar consequence in Germanicism, and again an immediate active one, as soon as the opportunity presented itself for its application.
It is well known, and we shall return to it later, how the Teutons in all conquered countries respected the laws of the conquered peoples and maintained them for the conquerors; from which then arose the system of popular rights. The Teutons, like Christianity, stood above the popular egoism of antiquity, recognized the peoples outside them as equally called as themselves, and thus likewise conveyed the concept of humanity of modern times in contrast to the concept of the chosen peoples of pre-Christian and pre-Germanic civilization. Until now, Germanic customs, traditions and institutions have seldom been properly appreciated.
Jacob Venedey - Romanism, Christianity and Germanicism in their Interaction in the Transformation of Slavery
The Teutons invaded the Roman Empire as victors, and the Romans thus had to suffer the fate of the vanquished. The Visigoths destroyed Rome, and so, since Rome was the Roman Empire, the world empire. They demanded two-thirds of the lands from the vanquished.
The fate of the vanquished was sad enough, but certainly no sadder than under the herrthe rule of Rome. Among the Lombards the condition of the conquered and of the whole country seems even to have been very satisfactory.inif one is to believe the historian of that time. *)
The Teutons came to those lands as She conqueror, but at the same time with principles of liberty; and if the conquered one must bear the necessary consequences of the Sou have to put up withssoon improved more and more in consequence of the principles which the Teutons laid into the soil wherever they went, and which augured a happier future.rattached. In the SIn the cities where there were no lands to distribute, the consequences of these principles were soon felt.
The freedom of SThe number of inhabitants of the city was increased almost immediately after the conquest. Each resident could be judged only by five of his peers, and all citizens participated in the election of the judge. *) Where, among the Romans, the honorati alone were formerly called upon to Scity, we find all the free men immediately after the conquest.*)
The jurisdiktion of the Scity expanded, and its judges could make restitutions, which had formerly been a prerogative of the praetors.*) At last the Curia obtained the right to appoint emmanzipations agoutake to appoint tutors, which previously only the praeses had *)
A general principle of the Teutons was to respect the law of every stranger, and to judge him according to the same. This principle emerged untouched from the conquest, and the conquerors allowed the conquered to live according to their laws and to administer justice according to them. The Roman and Germanic laws existed side by side, and the institutions of both peoples kept pace with each other for a time, until at last they blended, and a new social state emerged from this provisional of personal laws.
Here we were able to get a picture of the high moral and liberal values that the Teutons had and which were a direct contrast to Roman being, acting and thinking. More about Rome and its essence I had already written in the contribution of the Collateral accounts had written.
According to tradition, the Romans, who had already secured their rule in Italy, Greece, East Gaul, Spain, North Africa and the Near East, first met the Teutons in 113 BC, who defeated this Roman army in a devastating battle. The second encounter in 109 B.C. under the leadership of Marcus Silanus was equally crushing for the Roman army. Despite this victory, a peace offer was sent to Rome, which could not be accepted by Rome, which had been spoiled by victory, and two years later Lucius Tassius again led an attack and repeatedly lost in the most miserable way. Again two years later, in 105 BC, the army of 120,000 men was completely destroyed by the Teutonic army.
It was not until 101 B.C. that the great army of the Teutons could be crushed for the first time with the strategic skill and tactics of Marius and attack from two sides on Italian soil, in the hot climate to which the Teutons were not accustomed. However, from there on, in combination with the terrible slave uprising of Germanic slaves, nourished by their spirit and led by Spartacus, the Romans were aware of the threat from the north and were forced to anticipate this danger.
Later, the famous Julius Caesar, the nephew of Marius, felt himself called to this task and also fought numerous battles in which he used all the means at his disposal. This circumstance even went so far that Tato issued the following demand:
"in the name of humanity and humanity, let Caesar be delivered up as a traitor and violator of all natural right to the Teutons, whom he has deceived and betrayed, in order to avert the curse which his conduct must bring upon Rome. Let us pray to the gods that, for the sake of the general's madness and crime, they may not punish the soldiers and afflict Rome."
So despite the use of cunning, deception and playing the Germanic tribes off against each other by the Romans, the fall of Rome could not be prevented.
So, in spite of everything, Rome fell at some point, and little by little, Roman law disappeared with the Roman Empire, just like slavery and the exploitation of the peoples through it. So how did it come about that this understanding of law, which corresponded neither to the character nor to the needs of the peoples and people, spread penetratingly and systematically everywhere at the same time and strove upwards? No one had ordered it, no one wanted it, and yet... it came again.
In the following explanations one will be able to read out that it happened in an organized way and not by chance as one wants to make us believe and also not that it has ALWAYS been the valid law.
To this end, all this happened simultaneously. In many different countries, despite the resistance of the population. In some countries faster, in others slower.
That which 150 years ago manifested itself visibly for some scholars, but was not yet tangible for them in the goal of alignment, that we can explain today, with the completed seizure of the world and see everywhere. The judiciary, the legislature and the executive are all on one line and humanity is under their thumb.
I maintain that the resurgence of Roman law was organized and driven by the Church. The Roman law was similar to the canon law, but still "unproven", because at that time the peoples had not yet forgotten what the church had done in genocides, fraud against the people by appropriation of the lands and property, by falsification of alleged wills and declarations of wills, etc., etc., and they would certainly not have accepted it if the church had openly taken over the last native bastion - the law.
So the Vatican needed something "new" to not appear too directly, but under their control. Because the goal of the Vatican has always been to fully manifest what was proclaimed in the bulls. And as I already wrote in the amount of the collateral account, the slaves should not notice this time how and by whom they were enslaved. That's just what all the trade zones, companies, etc. were created for, for the pretense of an existing statehood. Built up like an onion. Many layers cover the inside and thus make it difficult to ever penetrate to the core.
The world is much easier to rule with a worldwide uniform "legal system" that no one sees through/understands except the lawyers previously sworn in, sworn to, and programmed by the Chamber.
As can be clearly seen in the following lines, we will find no direct evidence of this in the historical record. Because they control not only our legal system also our historiography, in principle everything. But who - even at wikipedia, can read between the lines, a clear picture opens up.
"In the Early reception it was above all the monasteries and ecclesiastical courts that were the bearers of 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, thus slowly replacing the lay jurists to be found there. From the 14th century onwards, the newly founded universities can be regarded as the most important bearers of the late reception. After the founding wave in the middle of the 14th century, both the Justinianic (Roman) and the Roman law were taught at these universities. canon law taught. The founding of new universities supported the spread of legal education, including in the Holy Roman Empire: Prague in 1348, Vienna in 1365, Heidelberg in 1386. The jurists educated 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 concluded with the establishment of the Imperial Chamber Court Considered finished in 1495. "
After the establishment of the Imperial Chamber Court in 1495, this (and the Imperial Council), as the highest court in the Holy Roman Empire, played a leading role in the continued reception of Roman law. Although this was never officially elevated to the status of imperial law and imperial, regional and customary law (consuetudo) officially took precedence over it, it was the most important conceptual source for the classification of legal figures in modern times. For this reason, Roman canon law was also mostly preferred by judges, as it had a clear written and systematic fixation.
Another important factor in the progress of practical reception was the popularization of the received law through easy-to-understand, German-language law books with Roman legal content, such as the Klagspiegel by Conrad Heyden (c. 1436), and in the 16th century Ulrich Tengler's Laienspiegel and Justin Gobler's Rechtenspiegel, among others. Such writings promoted the penetration of Roman law even into the lower levels of legal practice, which at that time were still largely dominated by non-lawyers. The indirect consequence was an increased juridification of everyday life. This will be described quite differently later in the following remarks. Due to the fact that Roman canon law had not been formally established as imperial law, the established legal principles were continuously subjected to critical examination during the time of the Holy Roman Empire. This examination was particularly intensive in the Usus modernus pandectarum, which not only represents another epoch in the reception of Roman canon law, but whose merit it is that a uniform legal order (for private law) could be formed in the Holy Roman Empire out of legal practice.
Note especially Wikipedia's brazen lie: "Progress through easy-to-understand, German-language law books." what in the following excerpts demonstrably did not happen so and is reported quite differently. Wikipedia generally presents the entire reception, as a kind of achievement for humanity and deserves the reputation Lügipedia has this time as well. Because the reception has brought us to where we are now.
Go to Irnireus on Wikipedia, the following sentence is particularly striking: "Initially, the predominant Canonics"
So let's summarize. A teacher of liberal arts, not a lawyer or someone working in this field, suddenly opens a school in Italy (where the main branch of the Church happens to be) for something that was lost because it was useless and impractical. As a result, students suddenly came from all over the various countries, learned it willingly, and spread the word. The thing sounds many things, but certainly not accidental.
Dr. W. Moddermann, Professor at Groningen - Jena 1875
Reception of Roman Law
Between 528 and 565 AD, at the instigation of the Emperor Justinian, Roman law was revised and codified after a development of about 13 centuries. In this form it was received by almost all the Christian peoples of Europe in the 15th and 16th centuries, in this guise it exerted a dominant influence on the development of private law and it is still the starting point of our scientific legal research.
Because the reception has been one of the strangest phenomena in the field of legal history. Whatever one may think of the value of Roman law and its relevance to the present day, it is an indisputable fact that it has become second nature to us, that for centuries it has wielded its sceptre over national law and held back, if not completely stifled, the undisturbed development of the latter.
Its great importance, however, does not lie in the fact that it has had temporary legal validity here or there - this importance was temporary - but in the fact that it has had a temporary legal validity there. has permeated our entire literature, dominated our entire legal development, reshaped our entire legal thinking, the reception of Roman law by the Germanic tribes is in direct contradiction.
We see peoples whose wealth of legal institutions we are learning to know and admire more and more giving up a part of their paternal, their national law, in favour of a foreign law which not only has not grown up with the people, but is altogether unsuited to penetrate into their lives, and which, on the contrary, can only be learned from a code of laws drawn up a thousand years before in an empire with quite different institutions of state and social conditions, and which, moreover, is written in a language comprehensible only to the learned.
Roman lawto which the stamp of nationality is so clearly impressed, the most precious product of the Roman popular spirit forces the Germanic law, from which it differs both in far-reaching fundamental principles and in a thousand details, to make way for it. Dead law overcomes living law, without force of arms, and at first without the intervention of the legislator. A strange phenomenon!
What it did not succeed in doing at the time of its existence, its flowering and its power : to regenerate the rights of foreign peoples, half a millennium later it succeeded in doing; it had first to die off in order to develop its full power 1). And we are not dealing here with a short reign. For centuries Romanism wielded its sceptre and, whether as law or as canon for our juridical thinking, exercised an authority whose numbing influence is far from being overcome even in our day.
From the point of view of nationality the Roman right is a foreign invader without passport, without legitimation, who should have been inexorably refused entrance. What has it to do with the whole past," with "the innermost being and history" of the Germanic peoples? Instead of receiving it, the sooner the better it should have been expelled.
Roman law, in the course of time, has become ours. When Roman law first knocked at our door, it was a stranger; "through the gate of nationality", I say with Jhering, " Roman law never enters into our science" e, i. e., becomes national.
However, no one will find it remarkable that a people borrows one or more legal institutions for which it feels a need (e.g. jury, mortgage, limitation, will, legal benefit of inventory, etc.) from another people; just think of the Roman ius gentium, the process of reception remains just as inexplicable to us; it remains just as obscure to us why patriotic law has been sacrificed to foreign law to such an extent.
Though not to be conceived in a limited Justinianic way as quasi quodam muro vallatum, quod nihil extra se habeat, yet it cannot be denied that it is interwoven by a thousand threads with family life, with social conditions, with religious and political views; however much may be absorbed from abroad, the core remains national.
By force a foreign law may be imposed for a time (as we experienced in the Netherlands at the beginning of this century), but the imposed law does not take root in the foreign soil, as is proved by the urge for national codes of law which manifested itself here and in Germany immediately after the Restoration. And here we are not dealing with a short reign; For centuries Roman law prevailed, although it was far less suitable for the peoples who received it in the 15th and 16th centuries, than, for example, French law was for our states in 1813.
In the Eastern Roman Empire, the birthplace of Justinian's law, the after Justinian's death (565) Roman law was lost under a flood of Greek adaptations, translations and compilations, which have no general jurisprudential significance 4). Italy was destined to become the cradle of Roman law for the second time. In 554, after the expulsion of the Ostrogoths from Italy, Justinian sanc tioned the legal authority of the codes he had already promulgated there.
The question is what was the fate of Roman law from 554 to the year 1100, the year in which a new period dawned with the foundation of the glossatorial school.
Before Savigny it was assumed by many that Roman law had perished without trace in the 6th century, only to rise again like a phoenix from its ashes at the beginning of the 12th century after a death sleep of 5 centuries. in consequence of the conquest of Amalfi by the Pisans, the capture of what was said to be the only manuscript of the Pandecotes hidden there, and of a subsequent law of the Emperor Lothar II., which ordered to teach the Roman law and to apply it everywhere in the courts instead of the Germanic law..
Causes of the revival in the 12th century are nothing but thoroughly groundless fables. In the first and second parts of the work just mentioned, Savigny has shown by a whole number of evidentiary reasons that from the fall of the Western Roman Empire (476 to the 11th century), Roman law under the name Lex Romana (which includes not finally the Breviarium, but sometimes the Justinian Law) was not only a matter of the law of the Roman Empire. Savigny has shown by means of a whole number of reasons of evidence that from the fall of the Western Roman Empire (476) until the eleventh century, Roman law under the name Lex Romana (by which is understood not only the Breviarium, but sometimes also the Justinianic codes) has been used in most countries of Europe (thus in the Burgundian, Visigothic, Frankish, Ostrogothic, Longobardic empires, but especially in Italy and even in England) and in the church (ecclesia vivit lege Romana) remained known and, even if not in its original purity, rather only in a very mutilated form and with little success, was applied in the courts, edited in literature and taught orally. It was borne by the Germanic principle, which did not impose the right of the victor upon the vanquished, but allowed each to live according to the law of his tribe. Germanic law saved the life of his later oppressor.
What is certain, at any rate, is that in the beginning of the 12th century, instead of seeing Roman law gradually disappear with Roman nationality, we see it in a new splendour.
Whatever this story may be, according to the testimony of all writers it is certain that Irnerius (mentioned in documents around 1113 and 1118, lucerna juris), born citizen of Bologna (although Böttger 5) wanted to make him a German named Werner without any reason) 6), founded a school of law in his hometown at the beginning of the 12th century, whose extraordinary bloom can only be complemented by its great influence, which is still partly noticeable today.
Also the tradition of the foundation of the Bolognese school of law by Irnerius is perhaps not to be taken so literally. According to Ficker, the documents show Irnerius in a circle of legally knowledgeable Bolognese who were his contemporaries, some of them certainly older than he. Perhaps with him only a more active literary activity of the school has begun. Those Bolognese appear in the documents as administrators of obviously greater reputation, so that already before Irnerius the school of Bologna must have attained fame.
The glossatory school, which received this name according to the method of its teachers, took pure Roman law as its starting point. Irnerius and his successors read the text of Justinian's law books, but did not give a lengthy commentary on them, but rather made short legal or grammatical comments on obscure passages (glossae ad ipsam legum litteram).
The fame of Irnerius, the so-called primus illuminator scientiae nostrae, and of the Bolognese school of law spread far across the Alps to all of southern and central Europe. From all sides young people flocked together to attend the lectures at that school, returned to their fatherland.They were adorned with an academic degree and surrounded by a nimbus of transalpine wisdom, and they spread the knowledge of Roman law they had acquired abroad far and wide in Europe. Why this great applause ? It is difficult to decide to what extent all these auditores were attracted by the merits of the teachers and driven by a thirst for knowledge, or to what extent fashion already had a hand in this as well
I would like to draw attention to another error, because it had the most decisive influence on the later fate of Roman law; I mean the idolatrous reverence for Justinian law. As early as the 10th century, the conviction was repeatedly expressed, first by Lombard jurists, that the lex Romana was the lex omnium generalis, that it possessed a higher, universal significance, elevated above its popular laws.
The Glossators and their successors continue in this vein; they do not regard Roman law as the product of a slow, regular, steadily progressive development, but as a universal right fallen out of heaven at a given moment; they think that the imperial compilation can and must provide for all present and future needs, a view which, as we shall see, was strongly supported by the so-called dominium mundi of the Imperator Romanus, who had been restored to life in the year 800, and by the prestige of the One and All-embracing Church.
Unfortunately, the all too great admiration of the Roman law went hand in hand with an equally great and equally incomprehensible disdain for national law. A hostile attitude is adopted even against patriotic law, and it is repeatedly called jus barbarum, asininum, lex sine ratione, jus per homines barbaros et ratione carentes conditum.
A natural consequence of these ideas was that the multitudo illiterata, who had no understanding of Roman law, but judged everything from their national lay standpoint, the Romanists were considered astonishingly stupid, that these considered it a foregone conclusion that the people knew nothing of law, that a layman was unfit for judicial functions, that one could only learn to think legally by studying Roman law, and that even for the practical jurist this study was the main thing, while conversely, at least in later times, the Romanists were ridiculed by the unlearned jurors as impractical parlour scholars unacquainted with life or feared as impostors concerned only with their own interest.
The idea that a scientifically educated jurist, a doctor juris, only needs to know Roman law and may ignore the special, native law with noble indifference, this idea which originally existed only in the minds of some scholars, comes more and more to the fore, also in Germany, through the influence of the Glossators and later Italian jurists. And that is no wonder.
Professor Johann Caspar Bluntschli - 1953
German private law
...I assume that Roman law was not allowed to perish with the Roman state, but was destined to be handed down to modern Europe as a high authority; I have no doubt that centuries later Roman law will still be studied by jurists and revered as an enduring element in the law of the future. But this conviction does not prevent me from noticing the way in which, not so long ago, the legislation of Justinian was quite generally ascribed official validity in Germany, and the way in which even today many learned jurists the Corpus Juris, to be one of the most absurd aberrations and perversities into which the human mind could have fallen. An History of the reception of Roman law in the Romance and Germanic Europe has unfortunately not yet been written, although it is of the highest interest for the history of mankind and should be rich in fruitful effects. The second half of the XVth and the XVIth century seem to have become excellently decisive for that reception, the XVth century as the time of a conquering struggle for the authority of Roman law, that of the XVIth as the period of the spread and use of its victory.
First of all, it is necessary to consider in what sense and to what extent the reception of Roman law took place. In the heyday and during the greatness and power of the German Empire, the idea that the Roman Empire lived on in the German Empire and that the rule of the world had passed from the Roman emperors to the German kings as their successors probably found approval in the minds; the public and the private law, however, was almost entirely national - German and only very little Roman law in the actual sense was known and recognized.
From the XIII . Century on from Italy, on whose universities the study of the again-discovered Justinian law work was pursued with active zeal, some knowledge of the Roman right is spread also in Germany. The Sachsenspiegel, to be sure, is still entirely pure from this new influence, but in the Schwabenspiegel and in the following law books we note the increasing authority of the Roman "masters." Of course, not in the later sense that the entire Corpus Juris gained validity, but only in such a way that this authority was invoked and respected in individual cases, and the traditional institutions suffered some modification or alteration with regard to Roman jurisprudence.
The national character of the law was still so predominant that only a modification of the traditional law can be attributed to the foreign influence. Since the middle of the XVth century, the young German science turns more and more to the study of Roman law , and the study and scientific development of the native law is entirely neglected by the legal scholars. The doctors of law who were now also educated at the German universities represented in science, in the councils and in the courts of law preferably the authority of Roman law, as the same was more nearly written in the Corpus Juris, and understood by the glossators and school at that time.
The opposition of the unlearned knights and aldermen was an insufficient dam, but the dissenting habits of the burghers, and especially those of the peasants, were largely disregarded as far as the power of the scholars extended. In the Imperial Chamber Court founded in 1495, which was instructed to "speak according to the laws of the Empire and common law," the doctors had the preponderance of the Intellinational - German law was neither abrogated nor excluded, but was included in that expression. But the learned judges knew it not more closely and respected it little , most genuinely still when it was concealed under Roman words. Gradually, through science and the judicial practice guided by it, the reception of the Roman law as a common law proceeded, especially since the XVI century. Roman law began to be regarded and revered not merely as a scientific authority and as the most highly educated and rational law (ratio scripta), but ascribing a legal authority to Justinian's legislation., as if the Greek emperor had enacted it for the future German empire, or the emperor and the empire had promulgated it as German imperial law.
In the XVI and especially in the XVII centuries. this blind and servile submissiveness of the courts to a foreign code , which remained unknown to the people even for the sake of its language , reached the deepest degree . It came so far that in some relations there were two laws , 1) a learned one valid in the court rooms , according to which the parties , if they had the misfortune of a trial , were judged , but which they , if they themselves had not learned education , neither knew before the trial and often also after the same only in its power , but not in its spirit and context , which was expressed only in Latin ; and 2) a popular law which was founded in the popular custom and the ingrained and traditional legal feeling of the people and which lived peacefully in the real circumstances and was comprehensible to the participants, of which the judges neither knew nor wanted to know.
The gradual assimilation of Roman law did indeed exert a continuing and transforming influence on the law of the people, but by no means to the extent that a pedantically pursued science seemed to presuppose. Since the middle of the XVIII. Since the middle of the XVIII century and especially in the XIX century, an opposite direction has been growing in strength and success. The legal authority of the Corpus Juris was abolished by legislation in large German states (Prussia and Austria), and was also limited and shaken by the progress of science. The philosophy of law and comparative law reveal the truth that even if Roman law has a world-historical and lasting significance, the entire content of the Corpus Juris cannot be accorded the status of a written law of reason for all time to come.
The historical knowledge of law teaches us to understand Roman law in an ancient Roman spirit, and by exposing many misunderstandings of the glossators and of the practice which followed them, it shows at the same time, though sometimes against one's will, how great the gulf was between pure Roman law and the legal feeling and legal need of the present day, and how unnatural it would be to destroy the minor errors of the earlier Romanists, in which a piece of true native law was often enclosed and concealed, and to maintain the main error of the legal authority of the Corpus Juris and the new introduction of an ancient law.
The new science of German private law finally grows up, teaches to recognize and honor again the national law still propagated in life, more than one knew for a long time.and pays close attention to the development of the law in the context of modern traffic and modern way of life. Science, in turn, influences practice and legislation: and we see the earlier gradual reception of Roman law followed by a gradual elimination and repression of the foreign and inappropriate elements of it, and with it the revival and extension of national and modern law going hand in hand. This direction is unmistakably increasing and has not yet reached its climax. The following sentences can therefore be said about the present relationship of German law to Roman law:
1) There is no presumption of the applicability of Roman law.
2) The Corpus Juris does not have the significance of a code of law enacted for Germany.
3) In the case of each institute, it must first be examined whether it has really been reproduced in the Roman version. The reception has not proceeded uniformly everywhere, nor has it become the truth in all cases where the theory (as, for example, in the doctrine of the peculia) seemed for a time to agree on it. Only where the reception has really taken place, or where, moreover, it appears to be justified because the doctrine of Roman law agrees with the nature of the thing, and may be regarded as a revelation of common human law, has it still a claim to validity. 4) Also there the Roman law is no longer to be applied, where the same is admittedly taken up for a time.but has been displaced again by legislation or by the more recent formation of law in general.
In general, it can be said that the applicability of Roman law remains secure where it has revealed universally humane and lasting legal truths, but decreases where its prestige is based only on the errors of science and the limitations of practice. In detail, one can clearly assert: In the field of personal, family and property law, German law prevails, and in the field of the law of obligations, with the exception of commercial law, which is largely modern European, Roman law prevails. Inheritance law is very mixed of both elements.
These lines by Professor Bluntschli show very well that the scholars of the time were aware of what was going on. There is pride in the lines, that the German country began to think again, the Roman right, as a foreigner recognized. That it recognized what was going on and acted against it. This stop of the reception was also followed by the decree on the statehood of the courts by Emperor Wilhelm II, which was unfortunately revoked in 1950, after the occupation and transformation of Germany.
So... in the manner of a sovereign, fearless, self-reliant and courageous, you dear reader have ventured this far and read all my lines. Thank you for that. I hope to honour the authors of these books quoted here a little and to bring their knowledge into this millennium, of which they certainly did not believe that their works would still be read then.
Carl Adolf Schmidt - Chief Appellate Councillor at Rostock 1868
The reception of Roman law
"It is a strange and alarming phenomenon for the position of jurisprudence in the legal life of the present day, this is precisely the historical process which has determined the whole course of development of our law and has given the latter its present form, is actually a complete mystery to us, and that science also hardly seems to feel the need to solve this mystery.
The external course of the process of reception is, of course, generally known to us and apparently very simple. The Roman law was ascribed a universal validity by science, which it might deserve due to its nature and could attain through its reception, but which it did not have until then, i.e. at the beginning of the reception process, and this validity, especially for Germany, was derived from a supposed connection of this law with the holy Roman Empire, which, as is no longer in doubt today, did not exist in reality.
In consequence of the faith which this dogma found, Roman law acquired in Germany the reputation of a legally valid right, and was taught in German universities since the 15th century.
Learned jurists were appointed to the courts, and rules of court were issued in which it was prescribed that they should decide according to Roman law; and so since that time the same has been universally treated as valid law, and the courts have decided according to it. However simple the course of the process of reception may seem to be, it becomes dark and mysterious to us when we compare it with what we know from the history of other peoples and from our own earlier history about the origin and formation of law. - The very fact that a people exchanges its own law, instead of developing it according to its conditions and needs, for a law that is quite foreign to it and has arisen under different circumstances, is an anomaly that contradicts the general laws of historical development; and it seems to us utterly incredible that the German people should have appropriated Roman law merely because they mistakenly believed that this was their law. But the puzzling thing about it is precisely that we have not been able to prove all this up to now; and this state of affairs has indeed something uncanny about it. The strangest thing is that this uncertainty does not worry us very much. It is true, however, that the reception of Roman law is nothing accidental; it must have had its causes, and likewise the filling of the courts with learned jurists must have been based on a practical need.
At no time did Germany have the intention or the will to adopt Roman law.Even in those times in which, in our opinion, this reception took place, no one had any idea of it.
When, at the beginning of the Middle Ages, Germanic tribes invaded the Roman provinces and laid the foundations of new empires there, the provincial population was neither exterminated, nor even actually subjugated. Some of these tribes, such as the Burgundians and the Visigoths, acquired their homes at first by treaty with the Roman Empire, and against the obligation of defending the province against external enemies, by which means the existence and liberty of the provincial population were secured from the first. But even where the acquisition was based on conquest, the conquerors generally proceeded according to similar principles; and The Romans did not only become a part of the newly emerging empires, but at first they also retained their national uniqueness, in that the Teutons held on to their rights and customs, but did not impose them on the Romans. Thus Roman language, custom, and law were preserved for the time being in the provinces of the declining Western Roman Empire, and the continuance of Roman law, in particular, was secured by the principle adopted by most of the Germanic tribes that each one was to be judged according to the law of the people to which he belonged.
According to this general law of historical development we see then also in the newly arisen empires, with the exception of Italywhere special conditions existed, the system of personal rights gradually disappeared, and the existing conditions brought it with them. Roman law, on the other hand, disappeared more and more from practical life.
But the administration of justice was in the hands of laymen who drew their legal knowledge and convictions from life and practiceThe natural consequence of such a state of affairs was that the law was shaped according to the existing conditions, and that even the knowledge of Roman law, in so far as individual remnants of it had not been preserved in life, in time the Roman law disappeared in the course of time in England, northern France, and Spain, in which latter country its legal validity had already begun about the middle of the 7th century. by a law Chindaswinde repealed, disappeared altogether, is undisputed. The matter is more doubtful for southern France and Italy.
Even in Italy the matter was doubtful: "The literary knowledge of Roman law was also very poor in Italy, and if, as it cannot be otherwise with an administration of justice practiced by unlearned judges, the law developed further under these circumstances according to the changed circumstances, views and needs of the present, then of course the question arises as to how great the transformation of it effected by this was, and whether the law which applied in those cities in the 11th century can still be called Roman law at all. The statutes do not go beyond the 12th century. They do not go beyond the twelfth century, contain relatively little about private law, and from the time when Romanists were involved in their drafting, as was the case early on in Italy, they do not permit any certain conclusion about the law actually in force, because, as is well known, the Romanists, wherever they were called in for such business, included as much Roman law as possible and as little local and national law as possible in them, so that the statutes contain only as much of the statutory and customary law as their authors had to include in them against their wishes and will. Similarly, the later testimony of legal writers on this point is quite unreliable, because the Romanists were not only very inclined simply to deny away all law contrary to the applicability of Roman law, but also thought it quite superfluous to investigate more closely the law which was practically applicable."
"No two things could be stranger to each other in themselves than the Roman papacy and the spirit of German manners."
Johann Gottfried Herder
Carl Adolf Schmidt - Chief Appellate Councillor at Rostock 1868
The Reception of Roman Law
Irnerius, the founder of the school, was not even a jurist who was concerned with the study of the law in practice, but a teacher of the liberal arts who, attracted by the content of the parts of the Corpus Juris that he had found, made them the subject of special studies and lectures. He did not treat the material as a practical jurist, who would have first asked whether and to what extent this law was still practically valid and corresponded to the existing legal conditions, had also hardly made the necessary studies, but as a learned researcher, who is interested in the subject for its own sake, and who wants to present it just as it presents itself as an object of historical research. His pupils, who followed entirely in their teacher's footsteps, also had no reason from their point of view to investigate those questions, because they, like him, wanted to present Roman law in its original glory, and not in the sad form it had assumed under the hands of ignorant judges.
At the beginning of the 12th century, with the rediscovery of the Corpus Juris and the foundation of the famous law school at Bologna, a strange turning-point occurred in the historical development of the legal life of the Germanic peoples; and a new period of splendour and dominance began for Roman law.
Irnerius, a teacher of the liberal arts at Bologna, made the parts of the Corpus Juris which he had found the subject of special lectures; the fame of the school of law which he founded soon filled not only the whole of Italy, but spread far beyond the borders of that country, and soon inquisitive minds from most of the countries of Europe rushed to Bologna to hear the lectures on the famous law book of the Emperor Justinian.
In England, however, a school of Roman law was founded by Vacarius as early as the middle of the 12th century. and taught this for a long time at the universities of Oxford and Cambridge.
In Spain it was not so much the spontaneous action of the people as the legislative activity of King Alfonso the Wise which brought Roman law into the country in the face of fierce popular opposition.Germany in particular was drawn into the circle of the movement relatively very weakly and late.
Since the In the middle of the 14th century, only canon law was taught at the German universities founded in the early period, and the attempts to give an impulse to the study of this law by appointing Romanists to the newly established universities had either no success at all or only a temporary one until the middle of the 15th century.
In addition to Roman law, canon law was also regularly taught at the universities, which for the time being still had a far greater practical significance; and the clergy, who were long forbidden to study Roman law anyway, certainly attended the foreign universities far more for the sake of canon law than Roman law.
The Glossators themselves do not assert the continued validity of Roman law in this sense; they knew quite well that the law in force in Italy at their time was quite different in life and in practice, but they did not attach the slightest importance to this circumstance, because it was quite indifferent to the validity which they claimed for Roman law.
That in all countries, thus also in Italy, there were very many local and particular laws deviating from it, that especially in a large part of Italy Longobard law applied, and that therefore the common law which they taught, and which in Italy They neither doubted nor disputed the fact that the law in force in practice differed from one another in many cases. This difference between the Roman law they taught and the law that was practically in force in Italy at their time, however, did not distract or interest them any further.
The first reason, to which the Glossators already referred, and on which the whole of Italian and German jurisprudence was mainly based, was the connection of Roman law with the Roman Empire, which, according to the view of the Middle Ages, still existed, by virtue of which the former, as contained in the Corpus juris, had legal validity, if not for the whole world, at least for the whole of Western Christendom.
By the coronation of Charlemagne as Roman Emperor, according to the belief of the Middle Ages, the former Roman world empire had been re-established, or more correctly, the world dominion, which had passed to the Greeks after the fall of the Western Roman Empire, had been transferred from them to the Germanic tribes.. What followed from this coronation performed by the pope for the mutual position of the pope and emperor to each other, was disputed. However, it was generally agreed that the emperors of that time were the successors of the Roman Caesars, and that the Holy Roman Empire, which still existed at that time, was identical with the old Roman Empire, and this was recognized as an established fact, especially by the emperors themselves, as well as by the Church. From this the glossators simply concluded that the code published by the Emperor Justinian still had legal validity for the whole extent of the Holy Roman Empire.
The Glossators and their successors, then, in a word, like the Humanists, arrived at by the study of classical literature, by the study of the Corpus Iuris, to the conviction that Roman law was the true, universally valid law; and therein lies the reason and at the same time the explanation of their error. In order to arrive at an economic understanding of Roman law, we must, as Savigny quite rightly remarks, "read and think our way into the writings of the Roman jurists, as into other writers who have been read with sense, learn their manner from them, and thus come to invent for ourselves in their manner and from their point of view, and thus to continue their interrupted work in a certain sense, " in other words, place ourselves in the position of a Roman jurist and adopt the legal way of thinking of the Romans.
The assertion that Roman law is the true rational law, like all convictions obtained in this way and like the doctrine of the continuity of the Roman empire, therefore assumes the character of an axiom from the outset with the Glossators and their successors, and has been regarded by jurisprudence ever since as an axiom which cannot be further proved, and of the correctness of which one can only convince oneself by the study of Roman law, but which also needs no further proof, because everyone who acquires the legal way of thinking of the Romans by this study, convinces himself thereby already of the correctness of this axiom.
Through the study of Roman law, the jurist learned, as they believed, not only common law, but at the same time the art of legal reasoning lacking in any layman.By virtue of this art and knowledge of the common law, he was able to orient himself with ease in every practical position in life, and to acquire without difficulty the practical knowledge that might still be necessary for his profession. In their view, therefore, the study of Roman law was also the main thing for the practical jurist.
In Italy and Germany, where the Roman law was given legal validity, they even made the monstrous assertion that a scientifically educated judge need only know the common law, that knowledge of the special local and land laws could not be demanded of him, and that he should not take them into account ex officio.The court shall decide the case in accordance with the common law, if the parties do not expressly invoke it, and that it is up to the parties to invoke it and, if necessary, to prove its existence and content to the judge in the same way as other factual evidence.
In this theory, according to which the judge does not need to know anything about the native law, but only needs to know the foreign law that applies in subsidium, and thus a privilegiumm ignorantiae is claimed for him with respect to the principaliter applicable native law, the diametrical opposition between the demands and aims of science and the interests and needs of practical life is most clearly shown..
In Germany, however, as we shall see, Such a privilegium ignorantiae was not only claimed by the learned judges, but was also expressly granted to them by the Imperial Chamber Court Rules and most of the Court Court Rules Understandably, the people, who clung to their national law with love, resisted such suppression of it, and the reception of Roman law thus took on the character of a struggle between science and lifeThe people, on the other hand, sought to preserve and protect their national law, which corresponded to their conditions of life and their needs.
Thus even the Church, which otherwise recognized no secular law over itself, had held Roman law as that which applied to itand in church doctrine as well as in state doctrine the idea of a general Christian world empire was most closely connected with the former Roman empire, and when furthermore God had appointed the Roman bishop as the spiritual and the Roman emperor as the temporal head of Christendom, so it was evidently also his will and counsel that Christendom should be governed according to Roman law, this apparently had to be Roman law.
Hitherto, the study of foreign law had been regarded as a means of gaining a better understanding of domestic law and, where it had gaps, of supplementing it from those gaps.
The Romanists, on the other hand, reversed the matter. They learned only the Roman law, but not also the native law, and instead of this, they proceeded from the Roman law. They therefore thought and argued like Romans, because they had acquired the legal way of thinking of the Romans, judged each case as a Roman jurist would have judged it, and proceeded in practice at all as these would have done in a conquered province.
They therefore explained and supplemented the native law from the Roman, without first examining whether it needed explanation and supplementation. For the same reason, they lacked any yardstick for judging whether and to what extent Roman law was appropriate to the existing conditions of life.
On the contrary, they proceeded from the presupposition that the same, because it appeared to them from their standpoint to be the true rational right, must also correspond to the conditions and needs of practical life; and They did not care whether the judgment of the people and practical experience agreed with it, but demanded, as book-learned reformers, that practice should conform to their theory.
As vivid as they were about the truth and excellence of Roman law, and as ready as they were to apply it in life and in practice, they did not think at all of making the knowledge they had acquired in the law schools accessible to the people through popular teaching.
Roman law was already by the language in which the sources were written, and which was also used by the legal writers, became a secret doctrine for the peopleThe knowledge necessary for its application could only be acquired by learned study, and the Romanists were everywhere in no doubt that the multitudo illiterata did not possess this knowledge.
The rationalist school of the last century at least recognized it as an indispensable requirement of justice that the laws by which individuals are to be governed and which they may be compelled by the courts to obey, should be given to the people, but the rationalist school of the last century at least recognized it as an indispensable requirement of justice that the laws by which individuals are to be governed and which they may be compelled by the courts to obey, should be given to the people. The rationalist school of the last century at least recognized it as an indispensable requirement of justice that the laws by which individuals are to be judged, and which they may be compelled to obey by the courts, must be published to the people, and in this way the individual is at least given the opportunity to inform himself of the law by which he is to be judged in his affairs, and thereby to protect himself from harm and damage.
The Romanists, however, from their humanistic point of view, did not consider this necessary; to them it seemed sufficient if only the judges knew Roman law and decided according to it. That in it, even if this right had really been the true rational right, a injustice and tyranny against the people lay, they thought not of that; and therefore it did not occur to them tothat if science wished to bring a better right to the people, it was nevertheless its first duty under all circumstances, to make the same, by popular instruction, the common property of the people, who were to be governed by it, and that the same could be applied in judicial practice only after and in so far as this had been done.
On the contrary, the situation is the other way round. the jurors were more and more ousted from the courts by the learned jurists, because it was finally convinced that they could not acquire the necessary knowledge of Roman law, and that therefore the courts, if they were to decide according to this law, had to be staffed with learned jurists. as long as the administration of justice remained in the hands of the jurors, this power was small, because the probability that the jurors would appeal to Roman law was small.
As soon, on the other hand, as the Romanists entered the courts, or for other reasons the prestige of Roman law and the belief in its validity had acquired such strength that one could expect a practical advantage from appealing to it, all individuals had to conduct themselves in accordance with this situation, and, whatever else they might think of the value and adequacy of Roman law, respect it as the valid law in their personal affairs.
So long, therefore, as the courts were staffed by laymen, in practical life no one cared much for the dogma established by science, or for Roman law in general, because everyone knew that he could not do much by appealing to it, and that therefore he need not fear the appeal of his opponent to it;
The position of Romanists in the governments was now essentially the same as that which they first occupied in the courts. They had, as there, the unlearned assessors, here the unlearned councillors, for opponents, and, if they wished to gain any influence at all, they had likewise to acquire the necessary knowledge of the conditions in order to be able to give practicable advice. In general, however, if they did the latter and possessed practical skill, it was necessary for them to do so, become easier in governments than in the courts to gain an influence over business.
Apart from the fact that they, who were skilled with the pen, of their own accord all written work fell to the hands of, and they were caeteris paribus superior to the unlearned councillors by their scientific education and knowledge, the only thing that mattered here was that they should be were able to acquire the confidence of the prince, and in this they were excellently helped by the fact that Roman law attaches absolute power to the princeps.and that, as a result, they defended absolutist principles which, if only they seemed practically feasible, must have been quite welcome to the princes.
The influence which the Romanists gained in the governments was, however, understandably of the greatest importance for the reception of Roman law. - They proceeded in the governments in exactly the same way as in the courts, and thus introduced Roman law into governmental practice in the same way as the learned judges did into judicial practice; and their position gave them the best opportunity, on the one hand, to work toward the appointment of learned judges to the courts, and, on the other hand, to gain an entrance for Roman law by way of legislation.
The causal nexus that existed between the appointment of learned judges to the courts and the penetration of Roman law into judicial practice could not possibly have been hidden from the people; and the question arises, therefore, why the people, if they did not wish the native law to be supplanted by the Roman law, appointed the Romanists to the courts at all, or at least did not remove them from them as soon as the dangers arising from it for the native law were recognized.
In France and England, the law of the Roman Empire entered the courts much more easily and earlier than in Germany and Switzerland. In those countries, they were already forced to be cautious by the fact that Roman law was only granted the significance of a ratio scripta. In Germany, where, on the one hand, they believed that they were allowed to speak out more decisively because of the legal validity accorded to Roman law, and on the other hand the purely Germanic character of the people made them more inaccessible to Roman law, they did not succeed for the time being in entering the courts; and in all probability they would not have succeeded in doing so later either, if two other factors had not been decisive here, which also played a great part in the reception of Roman law and deserve special consideration.
The law as the norm by which the state regulates the coexistence of peopleIt is not a mere pastime or an embellishment of life, but decides for me and for you; and therefore the welfare of the whole as well as of the individual is most vividly interested in the fact that not only a firm legal order exists, but also that the organs appointed for its execution are staffed with men who know the law in force and know how to apply it correctly. They is not to seek its own satisfaction, but to serve the legal life.
By declaring the Roman law to be the common law, a quality was attributed to it which, as we have seen, has never been proved, but which is also very difficult to deny, and in which, once the axiom established by the glossators had been believed, the error on which it was based could neither be discovered nor proved.
For it is in the nature of things that the common law and the law practically applicable in a certain margin differ from each other in many ways; and Once, therefore, the Glossators and their successors had become convinced that Roman law was the common law, they did not allow themselves to be disturbed in their illusion by the fact that their theory did not harmonize with reality, that the law in practice in Italy was quite different from what they taught, and that this phenomenon was later repeated in all other countries. What did not agree with their doctrine was, in their eyes, particular local and particular law.
That such a teaching of the law did not correspond to the interests and needs of practical life, that, on the contrary, the teaching of Roman law, if it were not connected with the teaching of the local and land law which determined its practical applicability, was bound to cause mischief and confusion in practice, was clear; and the bitterest complaints were made everywhere that the jurists educated at the universities had learned nothing from the native law. But this had not the slightest influence on the attitude of science.
From these lines, from over 150 years ago, the ignorance, self-righteousness and arrogance prevailing among the so-called learned jurists can be read very clearly. These remarks can be transferred 1 to 1 to our present time. One or two readers will already be familiar with the 12 BAR conjectures. Those who are not, it is highly recommended to search for these in a search engine of their choice.
It is very illuminating and revealing, what the legal profession thinks of us and puts as a presumption in the room and also proceeds according to this. Any action on our part is then interpreted by them as consent, to their twisted world view and seen as confirmation of these assumptions. The lawyers ALWAYS swear an oath to the BAR guild. Each country has its own, which, however, all have the same guidelines worldwide.
Professor Johann Caspar Bluntschli - 1853
German private law
I would like to proceed to an examination of the circumstances which, apart from their influence, have contributed to the introduction of Roman law in Germany and elsewhere. First of all, I would like to point out the fact that in the year 800 Charlemagne was crowned Emperor in Rome by Pope Leo III, and that since Otto I in 962 the King of Germany regularly wore the imperial crown and was Lord of Northern Italy at the same time, a circumstance which led to the opinion, generally approved in the Middle Ages in Italy and Germany by decretists, feudists and legists, that the empire whose crown the German emperors wore was a continuation of the Roman Empire.
As a result, the reputation of the Italian and French universities had already risen so high in the 13th century that they were repeatedly entrusted with the decision of questions, especially of a constitutional nature. Of course, they based their opinions and legal claims on Roman law, in addition to canon law. This gradually led to a demand for such schools in Germany. Charles IV met this demand by founding a university in Prague in 1348, which was followed by a number of others in Germany in the 14th and 15th centuries, which, like the English ones, were established according to the model of Paris (which had been held in high esteem for theology and canon law since the 13th century), including Vienna in 1365, Heidelberg in 1382, Cologne in 1388, Erfurt in 1392, Würzburg in 1402, Leipzig in 1409, etc....
Nevertheless, canon law, which at first seemed to stand in the way of Roman law, greatly promoted its reception; it prepared the German soil for the foreigner. Canon law, like Roman law, was not lacking in practical application; the force of the law of the corpus juris canonicum, applicable to all Christendom, was not doubted; it was applied everywhere in the ecclesiastical courts.
Canon law was much closer to Germanic law than to Roman law, since, although it originated for the most part in Italy, it rested on Christian Germanic foundations, was related to modern Germanic conditions, and yet, on the other hand, borrowed so much from Roman law that it could not be understood without the aid of that law. It is true that the Church's preference for Roman law (ecclesia vivit lege Romana) changed from the 12th century to a decided opposition (?), so that for a time the popes forbade the clergy to study secular law under penalty of excommunication. But soon individual clergymen knew how to procure for themselves a special dispensation and whole universities the privilege of allowing clergymen to study Roman law as well.
In any case, it is certain that the leges were invoked in the ecclesiastical courts long before the application of Roman law was thought of in the secular courts. Thus canon law became the bridge over which Roman law could comfortably enter Germany.. The growing prestige of the universities in Germany (where they were now also approached for expert opinions since the end of the 15th century), the imperial favouring of Roman law and those who studied it, as well as the thereby increasing influence of the jurists were now just as many motives which, besides the thirst for science, drove a multitude of ambitious men to the study of foreign law.
Since the academic degree conferred a special claim to a respectable position in society, a class of learned doctores juris was gradually formed, who not only disputed the exclusive possession of knowledge and science with the clergy, but were also favored by emperors and kings and appointed envoys, chancellors, privy councillors, etc., by which they acquired no small influence on the government. In the middle of the 14th century the juris doctores, of whatever origin they might be, were placed by Charles IV on an equal footing with the lower nobility, the nobilis propter scientiam with the nobilis ex genere. In short, the study of Roman law became a source of honorary posts and political influence, and it was no wonder that this in turn impelled the jurists to bring to bear in every possible way the wisdom to which they owed their prestige and social position. Wherever they could, they invoked Roman law and proved from the corpus juris itself that the nobility were free from taxes and that they were not allowed to brew beer. Following the example of their Italian colleagues they began in their writings to explain patriotic law by foreign law, to subordinate the latter to the former, and soon to supplant it altogether.
Thus, about 1330, Johann von Buch sought to explain the Sachsenspiegel by annotations borrowed, among other things, from Roman and canon law, and this gloss was increased about 1350 by Nicolaus Wurm, who had studied in Bologna and was insofar the first to transfer the wisdom acquired in Italy to the law in force in Germany. The town clerk of Brno related the native jurisprudence to the Roman doctrine, and various writers sought to spread the principles of foreign law in wider circles by developing them in German and in popular form. These include, in particular, the Summa of John of Freiburg, translated into German at the end of the 14th and beginning of the 15th century, which is partly drawn from the Pandects, the Klagspiegel from the beginning of the 15th century, a rather detailed theoretical and practical compendium and the first independent development of Roman law in German. This is the first independent development of Roman law in the German language, and above all Ulrich Tengler's Laienspiegel of 1509, a systematic encyclopaedia of popular jurisprudence, which was intended to provide laymen with a complete knowledge of the domestic and foreign law in force in Germany.
By these works the way was broken for the Romanizing jurisprudence, and the more the number of jurists educated in Roman law increased in the fifteenth and sixteenth centuries, the more generally the doctrine of the Sachsenspiegelglosse, namely, that the common imperial law is excluded only where a particular law is opposed to it, was recognized, and it became a dogma of great importance that Roman law was to serve to supplement and interpret particular law. " That under the pretext of interpretation, adds Muther, " many foreign legal propositions could be blackened, is obvious."
Stintzing, in his excellent history of popular literature, has shown that the movement which urged the reception of Roman law did not proceed only from above, from princes and learned jurists, but that such a current also had a place within the lower classes of societythat also another class of men than the doctores juris contributed a great deal to applying the science of these doctores to practical life and to making it accepted by the people.
These were the so-called semi-scholars, clerks, especially town clerks, clergymen, notaries, secretaries, consultants, advocates and others, who exercised the following functionsfor which the juris doctor, for whom, as Zasius says, it did not suit " sordibus fororum vel consistoriorum volutari," thought himself much too distinguished. They were the channels through which the learning of the scientific jurists, admittedly already much twisted and disfigured, flowed to the lower classes of society, in order to obtain here, in spite of much offence and annoyance, the civil law; for the fere indocti turned, often, probably only out of vain boasting, applied the only half-understood wisdom acquired from the doctors to real life with a clumsy, unpractised hand, and so Roman law penetrated into the practice of the lower courts, whereby here too a development began which accommodated the influence coming from above..
Stintzing has provided proof of this proposition by describing the popular literature intended for the semi-scholars from the second half of the 15th and the first half of the 16th century. This deals almost exclusively with foreign law; it has no scientific character, aims The more influential practical effectiveness of the doctors in the 15th century lay not immediately in their activity in the courts, namely In the territorial courts they gained a deeper influence only in the course of the 16th century, but for this time quite preferably in the position assigned to them by sovereigns, cities and also private people as arbitration or settlement judges. The juridical courts of the old judicial constitution lost confidence, they were bypassed and often left aside just in the most important legal disputes.
In the beginning the confidence was attached to the persons of the officials, as learned connoisseurs of Roman law, but gradually the confidence was also transferred from the persons to the office exercised by them. Therein lies the germ of the later development of the judicial constitution. In any case, this compromise procedure has had a great independent importance as a middle link between the dying constitution of jurors and the newly emerging territorial office and court constitution. In this agreed-upon procedure, in which the doctors proposing the judgment were especially unbound as confidants, Roman and canon law were often enough applied.
Muther has drawn attention to the fact that the above-mentioned procedure played a very special role in the numerous publicistic disputes of the imperial estates among themselves and also with their subjects, and that this was the real field where the Romanist and Canonist jurists of that time dominated. He emphasizes, "that the reception of foreign rights in Germany proceeded from the top downwards, that they were first taken up as real "imperial and imperial rights" for the imperial estates and then only gradually found their way into the courts of the sovereigns, cities and territories, so that they were also applied to the circumstances of the people of the empire.. He therefore distinguishes between " common law " and " particular law " reception of Roman law and places the former in earlier times, the latter in the end of the 15th and the course of the 16th century.
The most important step towards the practical introduction of Roman law was taken in the fifteenth century, when the learned jurists gradually gained influence over the courts and their administration of justice; another, completing this practical introduction, was taken in the sixteenth century, when they drove the unlearned lay judges out of the courts altogether, or more and more ousted the old courts of lay judges from the administration of justice. The practical application of Roman law remained impossible as long as the courts were not, at least partially, filled with Romanists."For it is only then," says Franklin justly, "was offered to the Roman educated jurists the possibility to enforce the reception, observation and application of the foreign law."
That it had to come to this cannot be surprising; the patriotic sources of law are explained from Roman law, the legal literature deals almost exclusively with foreign law, the contracts and wills contain more and more Roman legal clauses, the parties are represented in judicio by persons who begin with Roman artificial terms and formulas, with meaningless phrases, then pass over to Roman legal rules and finally to quotations from the corpus juris. Where the foreign element thus gains the upper hand on all sides, the unlearned lay judge, who understands nothing of these things that are completely new to him, must finally concede his place to the learned judge.because every time he is presented with questions that he cannot comprehend.
This change, however, did not take place suddenly, but gradually, and Stölzel has shown that the people themselves withdrew the administration of justice from the "jurors judging according to reason, wit, and discretion, in order to transfer it to a freely elected arbitrator judging according to scientific rules and learned in the law". At first the doctores juris became presidents of the ecclesiastical courts; towards the end of the 14th century and in the course of the 15th century they were given seats in the imperial land, court and chamber courts, in which the emperor had the appointment. From the end of the 14th century, the cities also took legal consultants into service, who acted as assessors of the city courts and had to enlighten the aldermen when the the patriotic sources of law were no longer sufficient. In the course of the 15th century, however, they have not yet driven the latter out of the city courts.
With the establishment of the Imperial Chamber Court as the highest court for the whole realm (1495), with the provision that it " judge according to the realm's and written law "and that it shall be staffed half with learned jurists (of law learned and dignified), half with unlearned assessors from the knighthood (this provision was changed in 1521 to the effect that "the half coming from the knighthood shall also be learned in the law, if one can have them", one can assume that the reception has practically come to fruition, because, as Franklin says, "the reception of Roman law in a given territory may be considered complete at the moment when the permanent practical application of it in the courts begins."
This permanent application was a consequence of the establishment of the Imperial Chamber Court. The organization of this court had a decisive influence on the lower colleges, and even if patriotic law was still applied in these, they had to follow the principles of foreign law as soon as the highest instance for the entire empire based its decisions on them, if they did not always want to see their pronouncements destroyed in the appellate instance and if the unity of the administration of justice was not to be completely disturbed.
Professor Johann Caspar Bluntschli - 1953
German private law
The Withering away of the feudal constitution and thus of the relations and ties dependent on landed property, which arose from feudal law and found their sanction in it, caused a gap to appear and, among other things, stimulated the need for an extensive, firmly and sharply defined right of property, a need which Roman law was able to satisfy to the fullest extent, was the downfall of the degenerate knighthood and calls the nobility to other pursuits, including legal studies.
The medieval distinction between the estates diminished more and more; a powerful bourgeoisie, continually rising through development and prosperity, deprived the nobility of its preponderance; and just as states and peoples, at the beginning of modern history, entered more and more into intercourse with each other, so also, especially in the cities, through the constant contact and fusion of the nobility with rich and respectable families of bourgeois descent, the equality of all estates, which was in perfect harmony with the Roman principles of law, was achieved.
Stölzel: "When the study of law took root among the laity, in whom law had hitherto been practiced only practically, there naturally developed an antagonism between learned and practiced law, between learned and unlearned jurists, but not also an antagonism between Roman and German law. It is in this circumstance that lies the protective fog which preceded the introduction of foreign law into Germany and concealed the conspicuousness of its appearance."
In the Ley de las Siete Partidas, national and Roman law were united, whereby Spain, according to Zoepfl, was at least three hundred years ahead of Germany. Northern France, le pays du droit coutumier, was even less influenced by Roman law; the coutumes there contained positive law without contradiction, and whether Roman law, where the coutumes made no provision for it, had even the force of a raison écrite (non ratione imperii, sed imperio rationis) and could then be called common law, was disputed from time immemorial among French jurists).
Switzerland had just broken off its connection with Germany at the period which was decisive for its reception; no princes there promoted the study of Roman law, or appointed learned doctors to the courts to replace the aldermen. Nor could public-minded people be taken in by the absolute principles of Roman public law; in general, Switzerland has retained its national law and has experienced very little influence from Romanising jurisprudence.
In England Roman law was taught at Oxford by Vacarius (1149), who exercised an influence discernible in the works of Glanvilla (1189) and Bracton (1256), but it has not been able to supersede the national. The people could not make friends with the sentence " quod principi placuit, legis habet vigorem " and similar objectionable principles.and when, from the middle of the fourteenth century, it was adopted as a rule that only those who had completed a theoretical and practical course in English law in the "inns" could be admitted to the functions of judge, advocate, or procurator, the source of Roman law was, to speak with Windscheid, cut off.
If we ask what causes contributed most to the reception of Roman law in the Netherlands, we may refer to the same circumstances which we have previously discussed with reference to Germany, and probably in the first place to the influence of canon law and the sympathy of the learned jurists
"The legal profession isolated itself from the people, drew its entire consciousness from foreign sources, and brought the foreign school terms thus acquired to bear on the home conditions in a purely external manner. The people, for their part, regarded the legal profession with suspicion; the new terms remained as foreign and incomprehensible to them as the Latin termini technici and the quotations of Roman passages. " Thus arose a dichotomy between the peculiar legal consciousness and legal life of the people and the artificial apparatus of juristic technique. Jurist consciousness and popular consciousness were, and still often are, starkly opposed to each other.
The reception was a disturbance of the normal development of patriotic law. Therefore, this process did not proceed without counteraction and resistance - soon in the form of formal protests. Thus, for example, in 1497 the Bavarian knighthood complained " quod multa fiant consuetudinibus contraria, unde deceptiones, errores et turbae oriuntur ; illi enim juris professores nostrum morem ignorant, nec etiam si sciant, illis nostris consuetudinibus quidquam tribuere volunt.
The complaints of the Württemberg Estates in 1514 were of a similar nature; they ask the duke: "he may fill the councils and chancellery with people who were born in this country. Let the court, if it concerns the countryside, be filled with honorable, honest and reasonable persons from the nobility and the cities, who are not doctors, so that the old customs and habits are judged unbroken and the poor subjects are not thus misled.
The Tyrolean Parliament has also sync and corrected by dr.jackson for (1567, 1619, 1632) protested against Roman law, and demanded that "it should be judged according to usage and custom."
In 1513 a revolt broke out in Worms, the citizens demanding that the Doctors should be banned from the court and council chambers; and the Council of Lübeck complained bitterly to the Imperial Chamber Court in 1555 about the imposition of Roman law in place of city law, and requested that " the city should not be burdened with imperial rights, which we do not like to endure.Here we cannot leave unmentioned the story told by Zöpfl, how still in the 16th century the aldermen of Frauenfeld in the Thurgau a doctor juris from Constance, who had dared to quote Bartolus and Baldus before them, threw out of doors with the words:
"Hear you Doctor, we Confederates do not ask for the Bartele or Baldele and other Doctors, we have peculiar country customs and rights: out with you, Doctor! out with you!"
There are countless complaints about the servility of the jurists towards princes and rulers, about their arrogant disregard for national law, their rabulistic tricks and absolutist doctrines, by which they sought to increase their own prestige and the power of the sovereigns, but by which they also incurred the dislike and distrust of the people.It is therefore not surprising that Article 5 of Frederick III's so-called Reformatio and Article 4 of the proposal for the Reformation in the Peasants' War of 1525, which is almost word for word identical with it nothing less than a general expulsion of the doctores is demanded:
"All doctors of law, whether they be clerical or secular, shall no longer be suffered in any court, at any law, nor in any prince's or other councils, but shall be completely dismissed. They shall also not speak, write, or give advice in any court or law"., because, the motives say, the law is even more hidden from them than from the laity, and no one can find the resolution until both parties have become poor and ruined.
Let them go to read and preach the Scriptures, say the peasants, for many persons are corrupted by their delays and evasions. The hatred against the doctors, which shows itself, is hatred against the worldly and even more against the spiritual authorities in general.". The protests of the provincial assemblies could be heard mostly where national privileges were attacked or threatened. They were also much more directed against the foreign doctors, who confused the law and made trials costly, than against the foreign law, motivated more by the incomprehensible conduct of the latter and their spiteful privileges than by an affront to national feeling from the authority of Roman law.
"Theology on the one hand, jurisprudence on the other, were worked at with zeal, nay, with passion, and now it was intelligible how any gain to the one could be regarded as a loss to the other."
Schmidt, cannot agree with this explanation, and attributes the Church's aversion to the pagan origin and irreligious spirit of the Roman law. But first he does not prove what he says, but passes over it by saying, "that the Church could not utter this reason." Why not? If this reason is so foolish, then Schmidt was not allowed to give it without proof. Or is the Church so modest? See also Stobbe in Krit. Vierteljahresschrift, il, p. 14. Sodann, however, by this statement he comes into conflict with the former sympathy of the Church for Roman law. It will therefore probably not have been due to the content of Roman law, for that remained the same, but to the changed circumstances of the time, to the fear that the gospel would be supplanted by the corpus juris.
We are not dealing here with a single nation that adopts a single foreign legal institution or incorporates foreign legal principles into the national legal material, but we see Italians, Saxons, Franks, Bavarians, Swabians, Alemanni, Frisians, etc., submitting to the authority of Roman law to a greater or lesser degree at about the same time as they sacrifice their native legal institutions. The fact that Germany and the Netherlands have at once neglected the study of patriotic law and its development, and have allowed it to be superseded by Roman law, the fact that the qui jus romanum allegat, fundatam habet intentionem, and that the principle is followed:
statuta stricte sunt intelligenda contra jus commune,
The fact that Simon of Leeuwen, for example, teaches that the interpretation of all constitutions, ordinances, notices, statutes, and customs must be adapted to the model of Roman law, and that in doubtful cases it must be handled in such a restrictive manner that the said Roman law is insulted or offended as little as possible, the truth at last pronounced by Jhering himself, "that our legal thought, our method, our way of looking at things, in short, our whole legal education has become Roman":
All this cannot be explained by a reference to the fact that in Germany and the Netherlands one also drinks French wines and eats oriental fruits. Or should Jhering perhaps think, Muther: "Zur Quellengeschichte des deutschen Rechts, a. a. 0. p. 436 : " In contrast to the jus civile of the Romans, the gradual prevaliren of the jus gentium also presents itself as a reception, only that the Romans had to scientifically grasp and shape independently what they received.
No people of distinctive character with a national law corresponding to it is spared the reception of jus gentium in more developed relations of intercourse."Muther then emphasizes how the ancient law of the Germanic peoples was also a jus civile, and how, in the case of a reception only in common law, not in particular law (a reception only as a subsidiary common imperial law, not as one that also dissolves and destroys particular law), it would have been the most favorable situation not to have had to create a jus gentium, but to have found one in scientific perfection.
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turn and go
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