Volume 138, Issue 1

The institution of the scabini , men from the pagus who served as legal fact finders in comital courts, was established by Charlemagne in the later eighth century and has received considerable attention from scholars for well over a century. Much of the early debate about the scabini focused on the origins of the institution, and whether Charlemagne was successful in replacing the previous ad hoc administration of justice with more formal procedures that followed more closely on the dictates of the royal court. A second important element in the historiography has focused on the fate of the institution of the scabini following the end of Charlemagne’s reign, and particularly after the division of the unitary empire following the death of Louis the Pious in 840. Many scholars, following the lead of F.L. Ganshof, have argued that the institution of the scabini , and governmental courts more generally, ceased to function at some point in the later ninth century, to be replaced by so-called feudal courts. The following study challenges this latter model by examining the institution of the scabini under the later Carolingians and their Ottonian successors in the region of Lotharingia, which gained a long-standing political coherence following the brief reign of King Lothair II (854–869). This region was the scene of intense political and military conflict throughout much of the period from the later ninth through the early eleventh century. Nevertheless, numerous private and royal charters of the Carolingians and Ottonians, as well as ostensibly prescriptive texts included in royal capitularies, point to the continuity of the institution of the scabini during the entirety of the Ottonian period from ca . 919–1024.

Church Spaces for Refugees in Early Medieval Ages . The paper deals with the spatial regulations of asylum. It shows that the spacious area of asylum of Late Antiquity was considerably reduced by many gentile Germanic kings. However, with the increasing Christianisation and the founding of monasteries and regional churches, the ability to grant asylum was extended to these churches, whereas in Late Antiquity in the Western Roman Empire, very likely only the episcopal churches – partly due to the lack of too many other churches – were qualified to grant asylum. In this way, a harmonization between profane and ecclesiastical places of refuge took place for just as “all” churches were (before?) all royal courts and not only the king’s residence were spaces of refuge. In the case of church spaces of refuge, it increasingly became a qualitative requirement that the church building or its parts (altar, gates etc.) had been sanctified by episcopal ordination. The reduction in the size of the asylum area did not initially go hand in hand with an impairment in the right of asylum. The bishop’s (priest’s) obligation to intercede or right to intercede was only levelled under emperor Charlemagne with reference to the competence of any worthy person to intercede.

The Reformation of king Frederic III.: An important law in the period of the Reichsreform . The reformatio Friderici was widely regarded as meagre in content (1) since it did not cover important reform issues of the time and in many parts only repeats older texts. Heinrich Koller proved this to be a misjudgement. His assessment must be strengthened or also corrected by legal historical arguments. Thus, the enormous density of tradition (2) cannot be explained by Friedrich’s intention to publish the law in general, but mirrors the necessity to be able to present the text in legal proceedings. The term reformatio (3) does not mean a reform law, but characterises a new form of legislation which wants to achieve reforms by taking recourse to older texts. The importance of the reformation for practice (4) proves not least in the fact that the king continuously refers to his text in trials for breach of the peace and in his dealing with the vehm, in which the position of the highest judge is ascribed to him.

Legislator and author of the Carolina . Emperor Charles V and his councils neither initia­ted the penal code named after him (“Carolina”) nor influenced its content. Inspired by the Imperial Court, it was a project of the imperial estates, which pushed it forward and led to its success at the Imperial Diets from 1521 to 1532. The work on the content was carried out in committees composed of members of all Curias and in the Imperial Regiment, with trained lawyers dominating. The view that Johann Freiherr von Schwarzenberg played a decisive role in the drafting of the Carolina, which still prevails in literature today, owes its origins to a certain zeitgeist and is in need of correction. Contrary to previous assumptions, Schwarzenberg was most probably not involved in the first Carolina draft at all and not in the second draft in the decisive editorial phase. Instead, the lawyer Sebastian von Rotenhan, who was most probably involved in the first and certainly in the second Carolina draft, and perhaps even later in the revision of 1530, comes more to the fore. Ultimately, the Carolina, like the “Bambergische Halsgerichtsordnung” which served as a model, was a collective work and was understood as such by contemporaries.

Carl Erdmann − a German-Baltic provincial lawyer with ideals . Carl Eduard Erdmann (1841–1898), almost forgotten today, produced the most comprehensive work on the private law of the Baltic provinces of the Russian Empire in the late 19 th century. With a good reason, he is considered the most outstanding philosophical mind among the Baltic provincial lawyers. His doctrines on the person and ownership in law are deeply rooted not in the modern philosophy of freedom, but in Christian ideals. The person had its ultimate justification in the divine personality. The idea of ownership was to be kept free from individualistic egoism and embedded in the generational continuity of the family. These ideals explain how Erdmann was able to combine his legal technique of German Pandektistik with the pre-modern normative guidelines of Baltic private law codification.

The article analyzes the elaboration of the Brazilian civil code of 1916 as part of a broader political project of Republican modernization, focusing on the relation between private law, politics and economics in Brazil at the turn of the 20 th century. The basic argument is that the consolidation of the Republican regime during the presidency of Campos Sales (1898–1902) provided the institutional conditions that paved the way for the codification of civil law. From the political perspective, parliamentary debates indicate that the civil code draft quickly turned into an instrument of political bargain and opposition to the president’s authority. From the legal point of view, the paper argues that, contrary to the prevailing view in Brazilian private law scholarship, the code represented a real attempt to break with the old order and create the conditions for a private law system based on equal juridical freedom. Finally, the paper explores the connections between the reform of legal methodology and legislative modernization, pointing both at the normative principles guiding the civil code elaboration and at the opposition it was faced with in Brazilian society.

Legal-historical messages from the early history of mankind . Until now, archaeology has only rarely permitted generalizations of a legal-historical nature. The work of Hermann Parzinger, with its worldwide comparison of archaeological finds, now for the first time opens up the possibility of recognizing “laws of motion of early human history”. This includes the ability to cooperate on the basis of contractual agreements and the emergence of hierarchical orders. Evidence of violent conflicts also suggests that there must have been early mechanisms for conflict resolution within social groups.

Monasteries and Leges – On the Discussion regarding the Southern German tribal laws. A replica . The author takes up his thesis published in 2006, according to which the two Southern German tribal laws of the 8th century, the Lex Alamannorum and the Lex Baiuvariorum, are most likely forgeries of monastic scriptoria. The falsification hypothesis has met with both approval and scepticism and rejection. The following article deals with the latter. The critical voices focus mainly on the tenor that such a falsification is possible but not sufficiently proven. The replica shows that the objections are too weak overall to shake the suspicion of a forgery in view of the density of evidence.

In the course of the sixteenth century, in the Low Countries maritime law was changing. At first, damages caused during maritime transport (“averages”) were compensated on the basis of customs of limited scope and calculation, starting from “facts and figures”. From the 1550s onwards, legal scholars developed new views; they revised norms, some of which came from below, while others were imposed by the sovereign. Both in legislation and in jurisprudential commentaries, the Roman rules of general average were revived. The legal authors made use of a more principled, humanistic method of interpretation. Their views did not contradict mercantile opinions; instead, merchants called for necessary adjustments of the law. The changes in doctrine and legislation responded to developments in the organization of the maritime industry. Although the legal scholars could have doubts about the older rules and how to reconcile them with a principled approach, their contribution to updating the rules was crucial.

Types of conflict rules in the theory of statuta . It is commonly accepted in the history of Conflict of Laws that there has been a “Copernican turning point” when Savigny introduced multilateral conflict rules and thereby abandoned the system of unilateral conflict rules of the Theory of statuta . The article challenges this narrative and argues on the one hand that the statutists already used multilateral conflict rules and on the other that their unilateral rules often reached similar results to modern multilateral conflict rules because of their universal nature.

Case studies as part of pandectistic legal education in 19th century Germany . The traditional image of the pandectistics rested on the assumption that legal education in this area, which inspired students from all over the world, relied exclusively on the logicsystematic pandect textbooks. These days we know that case studies, too, played an important role in addition to the primarily systematic pandect lectures. The pandectists studied the interpretation of legal problems, which were mainly inspired by court practise. This paper is unprecedented in using actual lecture notes to evaluate those solutions developed during the lectures which were not included in the printed case collections. It becomes clear that the technique used for solving legal problems differs as much from the relation method, which was applied by the courts in that period, as it differs from the so-called claim method, which is common in German legal education today.

Four selected legal cases from Girtanner’s “Rechtsfälle zu Puchta’s Pandekten”: A transcript . In 1852, the first edition of Wilhelm Girtanner’s casebook “Rechtsfälle zu Puchta’s Pandekten” was published in three volumes. The work contains 480 legal cases for study purposes, interspersed with blank pages that presumably served as a space for students to jot down notes. The following is a selected transcript of such handwritten notes, left in a copy of Girtanner’s book by an unknown writer. These notes help shed some light on a specific approach to analyzing legal cases, namely one that centers conciseness and focusses on an exegesis of the Pandects.

Kelsen and his Book “Essence and Value of Democracy” in Exile . Two recently found letters and an unpublished small introduction into a planned translation of his book on democracy shed some light on Kelsen’s conception of cultural and political foundations of democracy. His description of the democratic citizen as antagonistic to absolute values rises philosophical as well as political doubts. The status of values under philosophical, moral and legal perspectives calls for a thorough discussion.

Special Courts in the Occupied Polish Territories in 1939. A Legal History Analysis . The study is devoted to the first period of activity of German special courts established in Poland in 1939. The basic scope presents the special courts of the Third Reich established on the basis of the regulation of 1933. They were a model for courts established in occupied Poland. Their creation is analyzed on the example of the Special Court in Katowitz (Sondergericht Kattowitz). Then, the activities of special courts in occupied Poland in 1939 are discussed with particular emphasis on case and penalty statistics. Attention is paid to some characteristic phenomena, such as problems with jurisdiction, differences resulting from the establishment of special courts as part of the military administration, and judgment of acts committed before the war and under Polish jurisdiction. The identified cases of violations of law in the activities of special courts in 1939 are also discussed.