Germany Law in Modern Period

By | January 30, 2022

With the end of the century. XV, also opens for the history of Germanic law, the modern period, which witnesses the decline and the end of the ancient institution of the Roman Empire as a Germanic nation, an institution that was overtaken by the dominance of sovereign territorial principalities. One of these principalities, that of Austria, managed to preserve in its own dynasty, that of the Habsburgs, the imperial dignity, but, after the time of Charles V, it had scarce powers. Various territories gradually detached from the Empire, either as a result of the Protestant Reformation, or as a result of international agreements. In 1648 the Swiss Confederation broke off; through the work of Louis XIV France wrested Alsace from the Empire; first the duchy, then the kingdom, of Prussia was formed, which ended up opposing the Empire. With the Napoleonic victories, on July 12, 1806, the Rhenish League was formed, which gathered sixteen German principalities under the protectorate of Napoleon. This effectively meant the end of the Empire; an end formally proclaimed by the emperor Francesco II, who renounced the crown of Germany, having already, in 1804, in anticipation of the events, assumed the title of emperor of Austria.

The picture of the economic and social conditions of Germany, at the beginning of the modern age, is clarified by the movement of the Protestant Reformation. In fact, the Reform movement was not only of a religious nature but also arose to oppose, at least in some regions and for some social categories, a great transformation, which, at the end of the Middle Ages, was taking place in Germany under the pressure of the classes. the educated and the commercial classes; that is, to the profound juridical transformation that was consequent to the phenomenon of the so-called reception of foreign law (Rezeption der fremde Rechte).

This surprising phenomenon was the product of a long historical process, the beginnings of which date back several centuries. Since the end of the century. XII, when the fame of the Studio of Bologna had spread more widely, numerous students also came from Germany, eager to know and learn Roman law. During the century XIII and the following, this frequency was accentuated; and scholars from Germany became more numerous, not only in Bologna, but also in Padua, Siena, Pisa, Pavia, and formed a conspicuous part among the ultramontans. Returning to their homeland, with their minds full of admiration for the wonderful building of Justinian Roman law and with the texts of the Justinian compilation interpreted by the Glossators and the Accursians, these scholars, who had earned, with a baccalaureate or a degree, a singular prestige, they did not fail to make people aware of the importance of Roman and canon law they studied and to spread its principles. Even the texts of the The Saxon mirror and the Swabian mirror, so widespread in practice and that they later had a series of commentators, were nothing more than a living reflection of the Romanistic and canonical doctrine, which thus bent Germanic law to the forms and improvements of the law taught in Italy by the learned. This new scientific start was also favored by the fact that the title of doctor utriusque iuris, in many countries of Germany, conferred the right to belong to the lower nobility.

All this transport for Roman law, and precisely for the Roman-canon law taught in Italian universities, is also explained by the fact that, according to German public law, Roman-canon law had the force of subsidiary law, alongside the laws of Empire, because Roman law was nothing other than the legislative emanation of the authority of the Roman emperors, continued by the German emperors (theoretical reception). From this it arose that Roman-canon law penetrated more deeply into the life of law in Germany every day, through the work of the school, the courts and science (practical reception).

Numerous works of Roman-canon law had already penetrated Germany, and mainly the texts of the Justinian compilation with Accursio’s glosses; but, with the invention of the press, these works and these texts also spread with greater success, determining the triumph of the great scientific and practical current which required an ever wider and more decisive recourse to Roman-canon law in the application of law. Finally, the decisive impetus for the victory of the jurists was given by the institution of the chamber court of the Empire (Reichskammergericht) in 1495, for which it was established that of the sixteen assessors at least half should be knights expert in Roman-canon law.

The object of the reception was essentially Italian law; namely the Corpus iuris civilis, the Corpus iuris canonici and the Libri feudorum, all texts which had taken their definitive configuration in Italy and which had had their decisive interpretation by the Italian jurists. As a result of this grandiose phenomenon, we had, at the end of the century. XV, a profound transformation, whereby the local law, mainly Germanic, was largely replaced by Roman-canon law. But such a transformation was not to be without drawbacks. The jurists, in their blind fanaticism, instead of reconciling this change with local law and limiting the application of Roman-canon law to new matters, almost wanted to uproot national law, replacing it, without measure and without discernment, with foreign law, which on everything had to prevail. Thus was born an antithesis which, alongside great benefits, it also created serious difficulties in the development of Germanic law and its codification. A strong reaction ensued, which was mainly promoted by the rustic classes against the jurists (the motto then ran: Juristenschlechten Christen !), For which the peasant uprisings of the century were promoted. XVI and in part the reform movement (see reform). However, this reaction was delayed and did not have lasting efficacy: the jurists, supported by the princes, remained in their place and the great struggle between national law and foreign law ended with the victory of the latter.

Thus jurisprudence became the source of law especially and the great jurists of the sixteenth and seventeenth centuries imposed themselves: Stryck, Schilter, Carpzow, Pufendorf, Thomasius, who were the interpreters of the great texts of Roman-canon law; thus forming the complex of common law (gemeine Recht) based on Roman-canon law and having the validity of immediate subsidiary law whenever there were no precise territorial laws on the subject; common law that remained in force in Germany, until the end of the century. XIX.

However, imperial legislation continued, both in matters of public law (perpetual territorial truce of 1495; laws on the regency of the Empire of 1500-1521; electoral capitulations of 1520, religious pacts of Passau and Augusta of 1552 and 1555, peace of Westphalia of 1648 and so on); both in civil and police matters (police ordinances of the Empire of the 16th century; notarial statute of the Empire of 1512), both in judicial and procedural matters (statutes of the chamber court of the Empire), and in criminal matters (Constitutio criminalis carolina, issued under the auspices of Charles V in 1537 by John of Schwarzenberg, Constitutio criminalis Bambergensis and so on).

According to, there were also territorial laws of the various states and principalities among which the Tyrolean statute of 1526, the Bavarian provincial reform of 1518, the Bavarian statute of 1616 are worthy of mention. Among these local laws there are also the family statutes of the high nobility (Herrenstand), which concern the great families and had the importance of law, and the compact (Kompaktaten), agreements between the princes and the provincial states.

Starting from the second half of the century. XVIII, the legal development of the Germanic territories enters a new phase of awakening and progress, trying to break the bonds of absolute servility towards foreign rights and giving rise to the phenomenon of codification. The King of Prussia Frederick II the Great was the first to lay down the design of a codification; but the elector of Bavaria, Maximilian II, was the first to implement it, and there was the Codex iuris batavici criminalis, of 1751, that iuris iudiciarii of 1753, and finally in 1756, the Codex civilis. In Austria there was the Constitutio criminalis Theresiana of 1768, then replaced by the criminal code of Joseph II in 1788 and, later still, in 1803, by the Austrian penal code, which preceded the definitive one of 1852. Only in 1786, under the government of Joseph II, was the first part published of a civil code, called the Josephan Code, a work that was completed later, in 1811, with the Austrian Civil Code. In the Prussian domain there was, in 1781, the Code of Civil Procedure, and then, in 1791, the General Code for the Prussian states (Allgemeine Landrecht für die preussischen Staaten).

A new reception of foreign law took place in some countries of Germany with the introduction of the French civil code and other related codes. But then we returned to the previous law, with the Restoration, and the conditions were prepared for the new civil code (Bürgerlisches Gesetzbuch), which, overcoming the common Roman-canon law, in force until then, and following the other modern codes, was published on August 18, 1896, and entered into force on January 1, 1900, as a general civil law of the new Germany.

Germany Law in Modern Period