Volume 136, Issue 1

The long-standing historiographical controversy about the nature of the comital office in East Francia and Ottonian Germany has turned on the same set of questions for more than a century: over whom did the count exercise jurisdiction, what was the basis of count's jurisdiction, and what was the source of the material assets that allowed counts to perform their duties? Left out of these discussions, however, has been the related problem of the control exercised by the king over the assets attached to the comital office, denoted variously as the res de comitatu , the count's ministerium , or simply the comitatus . The following study examines this question from the reign of Emperor Louis the Pious (814–840) through the death of Emperor Henry II (1002–1024), and concludes that the Carolingian and Ottonian rulers maintained tight control over the fiscal assets assigned to counts, and were able to recover them and reassign them as the royal government saw fit. This conclusion is at odds with much of the scholarship on the comital office in East Francia and Ottonian Germany that presents counts holding erstwhile fiscal assets in allodial tenure and the de facto transformation of the comital office into a hereditary possession.

Apart from the survival of serfdom in western Germany, the perpetuation of unfreedom elsewhere in western Europe has frequently been overlooked. Recent research on France, especially its eastern districts, has shown how specific forms of feudal dues, such as the heriot , evolved into a general status of subjection akin to citizenship, just as occurred in the west German lands. In Scandinavia, harsh forms of personal and tenurial unfreedom yielded over time to the state's need for a free peasantry bound only by its duty of military service. In the Mediterranean lands the spread of sharecropping could subject the peasantry to quasiservile dependence.

The two theories of statuta, History of a misunderstanding . Most German legal historians have heard of a late medieval theory of statuta . However, different views exist as to the content of this theory. Some view it as a theory providing rules on which of several conflicting local laws to apply. Others, in contrast, understand it as a theory on the relation of local laws with the (Roman) common law. The roots of this ambivalence go back to the work of the controversial legal historian Franz Wieacker who used the terminology of theory of statuta for a different phenomenon than his colleagues all over Europe at the time.

The German king as highest judge in the Mid- to Late Medieval period. A new paradigm . Conventionally it is assumed that the king was the highest judge in the medieval Empire. However, many times this turns out to be a misconception. The idea of a ‘highest’ judge suggests a relationship of superiority and inferiority as well as successive stages of appeal which, in fact, did not exist in the customary law. The article analyzes sources from the late medieval Imperial Aulic Court examining when and in which contexts the term ‘highest judge’ was used first. Aside from little evidence in the 14 th century numerous records can be found in 15 th century documents. It is hardly a coincidence that these findings concur with the increase of references on appeal trials based on the learned law around this time. In this respect the designation of the king as the highest judge marks the transition of the judicial organization in the wake of the reception of the Roman and canon law.

Peace and Truce of God as legal sources of penal law . This study presents final results of the research program "The birth of the public penal law", with a grant by the German Research Community [DFG]. It can be concluded that the Peace rules were influential in numerous ways over the course of the eleventh, twelfth and thirteenth centuries. Texts mentioning Peace institutions – such as the atria, cellaria , etc. or the statutum pacis – were undoubtedly inspired by the Peace councils. The article finally takes into consideration the origins of the Movement of the Peace of God in Southern France and the impact on the North of Spain, in particular Catalonia. Inhalt: I. Eine geläufige These und die Notwendigkeit ihrer Überprüfung; II. Grundsätzliche Fragen zu Strafrecht und Landfrieden; III. Grundsätzliches zur Praxis des Landfriedensrechts; IV. Einzelstudien; V. Gottesfriede und Treuga Dei im Westen Europas

Gustav Hugo and the Göttingen student riots 1809/10 . This paper deals with legal transplants during the Napoleonic era in Germany. Among the many changes introduced in the French ‘model kingdom’ of Westphalia, founded in 1806, were the introduction of the Code Napoléon and a complete reorganization of the judiciary. One of the institutions severely affected by these developments was the venerable University of Göttingen with its ancient privileges and royal prerogatives. The famous Romanist und founder of the Historical School, Gustav Hugo, was at its helm during the most turbulent phase of this reorganization. His achievements as vice rector are the subject of the second part of the paper.

The German Historical School in Spain? Puchta’s concept of customary law and its reception in Spanish Jurisprudence . During the 19 th century, German Jurisprudence, through the work of the Historical School of Law and the Pandectist Studies, had a decisive influence on Spanish legal science as well as in other surrounding countries. However, the introduction of the doctrines of the Historical School in Spain has generally been regarded with skepticism by legal historians: the common conclusion is that in Spain there is no reception of the Rechtsschule . After a critical review of this traditional understanding of the reception of the School, I offer an analysis of the mid-century introduction of the concept of customary law developed within the Historical School, based on the doctrine of the Überzeugungstheorie (Puchta). The German doctrine of customary law was well received by the jurists who, from the first codification projects, privileged legal custom as the primary source of law. I maintain that one can speak on the one hand of the ‘projection’ in Spain of a philosophy – the vague legal historicism condensed in the notion of the Volksgeist –, and on the other hand of a clearer ‘reception’ of the doctrinal concept of legal custom elaborated within the Historical School.

The Interlingual German-Slovak Parallels in the Law of Succession Terminology of the Trnava Burgher Testaments from the 18 th and 19 th Centuries . The author focused on the terminology related to German and Slovak testaments from the 18 th and 19 th centuries, which can be found in the Slovak State archive in Trnava (town in the northern part of the Hungarian Kingdom, more precisely in its part called Upper Hungary which is the present-day Slovakia). The terms’ analysis was descriptive and comparative. The the research analyzes the historical language (gained through archival research), it reflects the legal-historical background and the relation of language and terminology. This research paper is of comparative character and gives evidence of how German language influenced the Slovak language due to interlingual coexistence of these two ethnic groups, dominant in the urban areas of the Upper Hungary region, i.e. the present-day Slovakia.

“Freier Mann im freien Staat”. The Protection of Legal Personality in Switzerland . The Swiss Civil Code (1912) guarantees a comprehensive protection of legal personality. In this respect there exists a fundamental difference to the civil code of Germany (1900). The difference can be traced back to the 19th century when in Switzerland legal personality was not merely understood as an abstract legal entity, but rather as an expression of citizenship. The protection of legal personality therefore included the protection of personal freedom. This freedom was not only understood to protect a person’s capacity to act in his legal sphere, but also to protect his political rights and for this reason democracy. Resulting from this understanding it became self-evident that the protection of legal personality had to be comprehensive. This concept pervades Eugen Huber’s writings and especially his legislative contributions to the creation of the Swiss Civil Code. Thereby he constructed a model which was particularly referred to by prominent public law scholars later in times of political crisis (the 1940s).

Commercial Law and Legal History This invited article summarizes the main points of my recent book 'Historia del Derecho Mercantil' from the commercial culture of the Ancien Régime to the legal culture of the legislative State (2016), adding one additional finding by Paolo Prodi. Inhalt: Präsentation. (1) ius mercatorum als Handelskultur. (2) Recht und Kultur. (3) Verdächtige, aber notwendige und legitime Aktivitäten. (4) Strukturen des ius mercatorum (5) Handelsregeln und ökonomische Macht der Monarchie. (6) „Non rubare" ein bedauerliches Versäumnis. (7) Beschreibung des Handelsrechts. (8) Die Kodifizierung des Handels. (9) Das Spanische Handelsgesetzbuch und sein Ruhm. (10) Territorialer Widerstand. (11) Der Código de comercio und allgemeines Privatrecht. (12) Die Aktiengesellschaft. (13) Die Handelsgerichtsbarkeit im Staat. (14) Recht (und Nicht-Recht) des Handels im liberalen Jahrhundert. (15) Abschließende Überlegungen

Addenda to 'German medieval law Books and their manuscripts' . This article presents newly discovered manuscripts and single leaves of German-language customary law books. It describes variations to the manuscripts and single leaves listed in U.-D. Oppitz, "Deutsche Rechtsbücher des Mittelalters", vol. II, Cologne 1990. The attachment gives an overview over all the manuscript addenda from 1990, in alphabetical order, and relevant literature on them.

The Pandectist Jurisprudence and its Historical Background . This prolonged critique will observe carefully an undoutedly important and timely enterprise initiated by H.-P. Haferkamp and T. Repgen to understand the Pandectist legal thinking immanently which has been often blocked for its rather pejorative reputation such as too conceptual, too systematic, too abstract and lifeless etc. It will be shown that this significant first step must be surely continued – only with far more attentiveness. Especially one must read the overall complex structure of the Pandectist legal thinking almost with a seismographic sensitiveness and simultaneously with due respect to the general and long-term historical background.

The German Constitution, commented with history . History in a legal commentary? The very respected commentary on the German constitution of 1949 – presented by a new generation assembled by Horst Dreier – has been appearing since 1996, now already in a second (from 2000) and third edition (from 2013). In a special way, it contains historical sections on each of the 146 articles. A closer look on these historiographical parts shows interesting facets.

Konrad Maurer as a Backer of Icelandic Independence . Konrad Maurer, who was encouraged to study the ancient nordic sources as a student, became soon involved in Iceland's struggle for independence when he was in Denmark to prepare a journey for the purpose of studying the conditions of Icelandic living. His bonds of friendship to Jón Sigurđsson and other learned men and his journey to Iceland in 1858 opened his understanding of Icelandic political problems. In his several writings he fought for the freedom of Iceland with historical arguments. His productions – especially the book "Iceland" (1874) – made him wellknown to the Icelanders and sustained the Icelandic struggle well.

Konrad Maurer as a Backer of Icelandic Independence . Konrad Maurer, who was encouraged to study the ancient nordic sources as a student, became soon involved in Iceland's struggle for independence when he was in Denmark to prepare a journey for the purpose of studying the conditions of Icelandic living. His bonds of friendship to Jón Sigurđsson and other learned men and his journey to Iceland in 1858 opened his understanding of Icelandic political problems. In his several writings he fought for the freedom of Iceland with historical arguments. His productions – especially the book "Iceland" (1874) – made him wellknown to the Icelanders and sustained the Icelandic struggle well.