Comparative Law Spring 2002 Professor Susanna Fischer

1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 5 GERMAN LEGAL SYSTEM: HISTORICAL BACKGROUND

2. WRAP-UP OF CLASS FOUR: ROMAN ORIGINS OF THE CIVIL LAW SYSTEM • The Roman Emperor Justinian (527-565) was responsible for the creation of a law code, the Corpus Juris Civilis, that • Justinian believed that the Roman law of his time was decadent. He wanted to restore past glories, remove obscurities, errors, conflicts, and doubts, and create a systematic whole.

3. GERMANIC PERIOD: 100 B.C. to A.D. 500 • German society was tribal • Rural culture as opposed to urban Roman culture • Some tribes were nomadic, some agricultural • Few historical sources tell us anything about history and culture of these Germanic tribes • Main Roman sources are Julius Caesar (55 B.C) and Tacitus (ca. 100 A.D.) • Other sources: epic poem Beowulf, or histories of Bede, Gregory of Tours (all written centuries later)

4. GERMANIC PERIOD 100 B.C. to A.D. 500 • Tribal migrations – Visigoths (under Alaric d. 410) moved into Italy and sacked Rome, then into Spain, Franks moved across Rhine and into France, Vandals went across France, into Spain, to North Africa, and back across the Mediterranean to attack Rome from the South (409-55)

5. OTHER GERMANIC TRIBES • Angles, Saxons, Jutes – Britain (drove Celts to North and West) • Ostrogoths - Italy • Burgundians – Rhine Valley

6. Collapse of Rome • In village, villa, cross-roads, district, field down every roadway, and at every turning, death, grief, destruction, arson are revealed. In one great conflagration Gaul is burning. Why tell the deathroll of a falling world which goes the accustomed way of endless fear? Why count how many unto death are hurled when you may see your own day hurrying near? -5th Century Roman poet

7. The Dark Ages • In the 5th century, as Rome collapsed, invaded and plundered by Germanic tribes, Europe entered the Dark Ages, from which it would not emerge until at least the 10th century. • Widespread poverty, illiteracy, intellectual stagnation

8. What was the political organization of Germanic tribes like?

9. What was the political organization of Germanic tribes like? • Kings led “folk” (groups of related tribes) • King ruled people, not land. Power based on leadership ability in war. • Government supported people not from taxation but from plunder • Kings assisted by armed tribal leaders from noble families • Periodic assemblies of folk known as a Thing, which were assemblies of freemen presided over by principes

10. Describe Germanic tribal law • Courts enforced tribal law and custom • Law different for different “folk” unlike universal Roman law applicable to all Roman citizens • Thing decided important questions • Gaugericht decided more minor questions • Visiting judges (principes) traveled to different places of trial in a Gau • Law and custom carried largely in minds of population • No distinction between criminal and civil matters • Judge separate from those who rendered judgment (“folk”)

11. What was a Germanic tribal trial like? • Accusation which must be denied under oath • Oaths had to be supported by oath- helpers • If no oath-helpers, must go to trial if folk decided it was necessary • Commonest method of trial were ordeals (e.g. hot water, hot iron, cold water) • Trial by battle also common

12. Salic-Frank period: A.D. 500 to A.D. 888 • Some centralization of the king’s authority during this period Clovis (482-511) established Merovingian Empire and converted to Christianity. But his success was ephemeral; the empire split into 3 parts

13. Salic-Frank period: A.D. 500 to A.D. 888 • Like Clovis (482-511), Karl the Great (Charlemagne) (768-814) was another strong Frankish king, establishing the Carolingian empire. • The Frankish empire lasted only another century after Charlemagne.

14. Charlemagne’s Frankish Empire at its Height (A.D. 800)

15. What was the legal system like during the Salic-Frank period?

16. What was the legal system like during the Salic-Frank period? • For the first time in the history of Germanic law, legal rules were recorded by legislators e.g. Volksrechte such as Lex Salica ca. 500 A.D. (assembled by Clovis), Kapitularen, Konzilbeschlüsse, Formularsammlung, Royal and private deeds • Remember that even though there was one empire, there were many legal systems. A Saxon could not be subject to Frankish law. To enable his margraves to rule conquered peoples, Charlemagne had laws written down. He himself was illiterate, as were most of his subjects. • Much customary law was never written down. • Kapitularen were oral too – text was not the law.

17. Frankish Courts • Highest court: Königsgericht • Lower court: Gaugericht • Other specialist courts, e.g. manor courts (grundherrliche Hofgerichte) • Still no difference between criminal and civil proceedings • All proceedings in Gaugericht were public, oral and formal

18. The Middle Ages: The Start of the Feudal Age • In the late 9th century, the Frankish empire was drifting into 5 kingdoms. • This period has been called the “darkest hour of the Dark Ages” • Disorder begat feudalism (armored knights, vassalage, fief, stone castles, chivalry, tensions, immunity, treachery) • 10th to 13th centuries were the golden age of feudalism • Lehnrecht – special code of feudal law

19. The Middle Ages: The Holy Roman Empire 888-1200 • In 962, Otto I of Saxony and Pope John XII participated in a second revival of the “Roman Empire” (the first was that of Charlemagne) • The Holy Roman Empire lasted until 1806. The word “Holy” was added in the 12th century. • Ideal – unity of all Western Christians in a single state as the civil counterpart to the Catholic Church.

20. The Twelfth Century Renaissance • Cities and towns grow • Commerce grows • Rise of universities, e.g. Bologna gives rise to scholars, jurists • A revival of interest in Roman law