Volume 140, Issue 1

This paper presents a fresh survey of ‚illegitimacy’ in early medieval Francia during the last two centuries of the first millennium. Methodologically, it aims at transcending a common division in historic research, which either concentrates on inheritance and succession of people who were born out of wedlock, or the importance of the topic of non-legitimate birth for members of the clergy. By analyzing a variety of sources and outlining legal and historical developments in the 9 th and 10 th century, the paper brings various facets of illegitimacy together, thereby mapping out the complexity of a crucial phenomenon in early medieval family history. Inhalt: I. Einführung. – II. Normen und Rechtsgewohnheiten im fränkischen Frühmittelalter. – III. Fränkische Innovation. Die Anfänge des Weiheverbots für Illegitime. – IV. Karolingische Königssöhne als Kleriker vor dem Jahr 900. – V. Von der Ausnahme zur Regel? Uneheliche Söhne als Bischöfe im 10. Jahrhundert. – VI. Ausblick und Fazit

This article studies the relationship between the German royal jurisdiction and the clerical privilege about jurisdiction ( privilegium fori ) from 1273 to 1400. In investigating this it is important to consider that many conflicts in which the clergy participated were decided at the sovereign court through reconciliation and arbitration. From the end of the 13 th century to the begin of the 14 th century, the privilegium fori was respected in principle at the rulers‘ courts, but the privilege was invalid when a cleric fell into conflict with the king himself. Especially clerics with good connections to the court – such as the clerical princes – began to submit to the royal jurisdiction. At the end of the reign of the Wittelsbach Louis IV clerical cases were often treated at the sovereign court during a severe confrontation between the emperor and the Curia. At the same time the imperial court tribunal began to be active. From the middle of the 14 th century, under the Luxemburg emperor Charles IV, the clerical privileges of the suit and forms of the process at the ruler court developed further. If the court tribunal had accepted lawsuits against the clergy, Charles IV intervened in favor of the defendant. At the end of the 14 th century, under Wenceslas, the parties promoted the ‘Verrechtlichung‘ of the Holy Roman Empire in the later middle ages.

From the 12 th century onwards, arbitration tribunals came into use and until the 15 th century they were established as alternative legal practice. While the Roman Law became institutionalized as an instrument of political power, the arbitration tribunals retained their value as elements of noble communication in case of crisis within European realms. In international politics and law, arbitration tribunals were often brought into play, but failed to be successful as instrument of international conflict management.

Since the 13 th century, the interrogation of witnesses has been firmly anchored in medieval finding of justice. Theory and practice are in a reciprocal relationship with society, which recurs to testimonies in order to find justice. The level of reflection in the law books is high. Particular attention is paid to the question of who must be excluded from the witness stand, whereas the question of who is suitable is of secondary interest. On the one hand, the law books identify groups of people who are to be excluded, on the other hand, they discuss time-specific forms of social solidarities and hostilities from which bias results. In legal practice, the relationship between law and society presents itself as a tense one. As in Marseille (14 th century), the balance can be favoured by the procedure (catalogue of questions) in favour of society, and social solidarities can homogenise the witness depositions. But the same procedure can also individualise them in the sense of the law, as in Aragón in the 15 th and 16 th century. In the late medieval Rhine metropolis of Basel, on which this contribution focusses, the balance also turns out in favour of the law, though the individual testimony does not follow a fixed grid of questions.

Securitas. Debating Inviolability and Immunity in the Legal and Political Theory of Diplomacy, Thirteenth to Eighteenth Century . The essay examines the legal aspects of the transformation of the rules governing the protection of diplomatic agents from the ancient law of hospitality into treaties guaranteeing extraterritoriality. The transformation involved the shift of the derivation of these rules from natural to positive law around 1800. In material respects, it entailed the recasting of diplomatic agents catagorised as a specifically vulnerable group of professionals into a group of specially privileged representatives of sovereign states and their perceived interests.

Contrary to what one could have deduced from art. 2 and 17 of the Déclaration des droits de l’homme et du citoyen, where property had been elevated as a natural right, imprescriptible, inviolable, and sacred, and art. 537 and 544 of the Code civil, where the owners had been given the right to use in the most absolute way and dispose freely of their property, neither the Revolutionary nor the Napoleonic lawmakers thought of the right of disposing freely of one’s property upon death as self-evident. Although there had been a long tradition of testamentary succession in the South of France, the right to dispose freely of one’s properties by testament led to tensions as to its articulation with the pro-intestate customs of the Northern provinces – in 1789–1804 French private law(s) had indeed not yet been unified and the unification process had given rise to several rearguard arguments in favour of local idiosyncrasies –, but most importantly, it led to tensions as to its articulation with the institution of family, one of the pillars, along with property, of the new social order that had emerged from the ruins of the Ancien Régime: the bourgeois society.

Does this comply with the “Volksgeist” now? Questions of validity in “Modern Roman Law” . The article examines the impact of the “Volksgeist” (national spirit), as the basis of the theory of legal sources developed by the Historical School of Law, on methodological history. Although in 1814 Savigny used the term “sensing the principles”, the methodological history, even nowadays, assumes that the “Volksgeist” exclusively contains rational structures and is therefore ‘reasonable’. Still and despite all doubts concerning this concept, the “Volksgeist” is merged with “Begriffsjurisprudenz” (conceptual jurisprudence). In contrast, this article develops a methodological program of the Historical School of Law in which rational approaches were always accompanied by irrational ones, appealing to intuition, a sense of justice, and a ‘child-like sense’ as an access to truth. Viewed from a philosophical perspective, the decisive key terms, introduced by Savigny in 1814, are “nature, fate and need”. Methodologically, the focus reveals, around the special significance of “analogy”, the “nature of things”, the “practical needs” and the “sense of justice” as ways to contribute to the legal cognition.

The Reichsoberhandelsgericht as Cour de Cassation for Alsace-Lorraine and its jurisdiction in civil matters . From 1871 to 1879, the Reichsoberhandelsgericht functioned as the Supreme Court of the Reichsland Alsace-Lorraine. The article deals with the establishment of this Supreme Court and analyses its jurisdiction in civil matters. Special attention is paid to the court’s handling of the French civil law applicable in the Reichsland.

The article discusses the identification of Extravagant 26 of the so-called Liber Papiensis, which is uniquely transmitted in an 11 th century manuscript now known as Milan, Biblioteca Ambrosiana O. 55 sup. We argue that the chapter in question is a corrupted version of a chapter from the Etymologiae of Isidore of Seville, which was adapted to appear more like a capitulary.

The legal term “Hienrecht” corresponds legally to one law of living in bondage, which was widespread in north-western Germany in the Middle Ages. It has not been considered by legal history. The Hien (bondsmen) were – according to the etymological findings – members of the same household: some kind of tenants, then also the serfs of a grange. In Westphalia, the dependent farming population can be roughly divided into Hofhörige (corresponds approximately bondsmen), Eigenbehörige (some kind of serfdom) and members ofthe household/inmates. Hienrecht had its place within the framework of these different orders. On the one hand, the term Hien was associated with a certain form of serfdom, but on the other hand it could also refer to the persons in charge of the property. The Hienrecht described a specific legal and property form of the Unterhof of a villication, namely that of the Liten. In the late Middle Ages Hienrecht meant one of the legal relationships of bondage, then to be found in Westphalia, in particular probably that of Eigenbehörigkeit. Hienrecht referred to the sub-ownership of the rural tenants equipped with secured inheritance rights, which were composed in a Villication or a modified form of the same cooperative.

This article presents newly discovered manuscripts and single leaves of German-language customary law books. It describes variations to the manusripts and single leaves listed in U.-D. Oppitz, “Deutsche Rechtsbücher des Mittelalters”, vol. II, Cologne 1990.

The resurgence of the Holy Roman Emperorship in the decades after the Peace of Westphalia (1648) has received considerable attention in recent historiography. In this respect the particular importance of the Imperial Court of Justice (Imperial Aulic Council, Reichshofrat) has been stressed: It is assumed that it played a key role within the Imperial government, that it had helped to secure the imperial loyalty to the postwestphalian constitutional order and that it contributed to the skillful use of the Imperial prerogatives by the Vienna Government. Against this backdrop, the position of the Aulic Council regarding the creation of the Ninth (Hannoverian) electorship by Emperor Leopold in 1692, which hitherto has not been examined in detail, reveals a different historical picture. On the one hand, the Imperial Aulic Council was not included in the decision processes concerning the electorship, it was not even officially informed and rebuked for accepting a remonstration against the electorship. On the other hand, the Aulic Council in return criticised the creation of the Ninth electorship quite frankly in its self justification in April 1693 with regard to the procedures and its possible dangerous political consequences.

The article is devoted to an analysis of the corpus of wills of peasants living in the Kingdom of Poland at the turn of the Middle Ages and the early modern era. This was inspired and based on a recent source edition compiled by Janusz Łosowski. The most important institutions of the peasant will, its normative context and the possible influence of the ius commune are analyzed.

Further research in Konrad Maurer’s letters led to findings both in the Bavarian State Library as well as in private ownership. To his letters from Christiania can be added a very personal fatherly letter to his young son Fritz.

Ever since regional history has developed as an independent discipline alongside national/state history, the historical landscape has been seen independent of the boundaries of the 19 th century. By elaborating the legal phenomena of a historical landscape, legal historians can also contribute substantially to the goals of historical regional studies. With his dissertation discussed here, Esser takes up the problem of the so-called ground release as part of the agrarian reforms or peasants’ liberation at the beginning of the 19 th century, which, however, he examines only within the boundaries of one West German territory, the Duchy of Julich. Thus, he misses the opportunity to embed his subject in the larger framework of the landscape-based legal community of the Rhineland. Nevertheless, his account makes an important contribution to the study of land release as part of the agrarian reforms in Germany.

Around 1900, legal literature and publishing in Germany underwent a significant process of expansion and transformation. This development is, in part, due to the codification of important areas of law, especially the advent of the German Civil Code. The new codes instigated a vast quantity of legal literature; legal commentaries took the lead in explaining the new law. However, it is only through a look at the history of books and publishing, as well as the general history of science, that the development of legal literature can be fully appreciated. This paper shows that the growth and transformation of legal literature before and after 1900 is part of a larger development, i.e. the emergence of a literary mass-market, on the one hand, and the formation of what Adolf von Harnack called a ‘large-scale industry of science’, on the other hand.

This article offers a qualitative and quantitative analysis of the presence of Jews before Special Courts of the ‘Third Reich’. The research shows that the participation of Jews as defendants before Special Courts in the so-called Old Reich was marginal. The situation was different in polish areas incorporated into the Reich. Attention is here paid to the numbers of defendants and other penalty statistics, to some types of imputed acts, and to attempts to use courts and court sentencing to take the lives of Jews.

The article is a short presentation of the knowledge base ‘IURA. Sources of Law from the Past’ (https://iura.uj.edu.pl/dlibra). The main goal of the project is to build a comprehensive knowledge base with interlinked and easily searchable content from various sources of historical law. The system of content links will help the user to get a broader picture of various sections or dimensions of the legal world, i.e. texts of the law and normative regulations, references to the law or laws, legal literature, or references to the implementation of the law. A set of advanced search tools will enable the user to find and select, with some degree of precision, the scope of relevant content throughout the digitalized source material. Moreover, it will be possible to conduct searches using standardized metadata descriptions. The article contains a short description of selected sources collections.