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German Codification Flashcards

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1
Q

What caused the return of roman law

A

The establishment of the Holy Roman Empire

The northern and middle parts merged together (NL, BE, DE, IT) and became the
Holy Roman Empire of the German Nations

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2
Q

How was the emperors electe din th Holy Roman Empire of the German national

A

The emperor was appointed by 7 electors -> golden bull document of 1353 AD

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3
Q

What were the 7 electors

A

3 clerical electors (bishops)

4 secular electors (councils)

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4
Q

How would emperors try to get elected

A

the candidates would try to influence/charm the electors by promising them certain competencies.

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5
Q

What was the power of the emperor limited to

A

The power of the electors

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6
Q

What was the two stage procedure of becoming an emperor

A
  1. Coronation in the city of Aachen as King of the Romans (Rex Romanorum).
    - While the ruling emperor was still alive, the Electors would already appoint a
    new king
  2. Coronation in Rome (by the pope) as Emperor of the Romans (Imperator
    Romanorum).
    - If the ruling Emperor died, the crowned Roman King would automatically
    succeed him as Emperor.
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7
Q

Who were the Habsburgs

A

From 1438 onwards all emperors belonged to the Habsburg family.-> becuase they were able to keep forging a good relationship with the electors so then they were bale to keep the title of emperor within the family

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8
Q

What were the politics of the habsburgs

A

they formed alliances within the Empire, namely the Electors, and arranged marriages between their daughters and the Electors in order to secure the family title.

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9
Q

What was the Battle of the Three Emperors / Battle of Austerlitz

A

The Battle of Austerlitz, known as the Battle of the Three Emperors, occurred on December 2, 1805, during the War of the Third Coalition. Napoleon’s French forces faced the Russian and Austrian armies led by Tsar Alexander I and Holy Roman Emperor Francis II. Employing a clever strategy, Napoleon lured the Allies into a vulnerable position and decisively defeated them. This victory solidified Napoleon’s reputation as a military genius and strengthened French dominance in Europe, leading to territorial changes through the subsequent Treaty of Pressburg. The Battle of Austerlitz is celebrated as one of Napoleon’s greatest triumphs

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10
Q

What was the investiture controversy in Germany

A

-both emperor and the pope wanted d to appoint bishops

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11
Q

What was the two swords doctrine

A

The emperor has the royal sword, while the pope had the ecclesiastical one

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12
Q

What theories emerged out of the German investiture controversy

A
  • Secular theory: God had given both the Emperor and the Pope a sword
  • Clerical theory: God had provided the Pope with two swords one of which he
    would give to the Emperor
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13
Q

Why did the kings ant to elect bishops

A
  • so that the king could influence him

-balancing power: counterbalancing for the secular vassals of a liege(lord) no-hereditary positions

-supportive role: only the church possessed staff that had the appropriate education experience, and knowledge to hold high executive positions

-they provided government apparetus

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14
Q

How did the king lose the battle of the investiture controversy

A

-dictates of pope Gregory VII
-established that the pope would have the power o appoint bishops
- Declared that the pope had more power than the Emperor
- Pope was universal and could appoint bishops and depose the emperor

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15
Q

Who were vassals

A

German vassals= refers to the local rulers or lords within the Holy Roman Empire who pledged loyalty and service to the Emperor, who was the overarching ruler of the empire. These German vassals were part of the feudal system, a social and economic structure common in medieval Europe.

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16
Q

What was the treaty of verdun 843 AD

A

Division of the empire over the three sons of luis the pious: Charles the Bald, Lothiar I and Louis the German

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17
Q

What was the Golden Bull 1356

A

The election of a king by 7 electors which became a custom and was written down

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18
Q

What was the consequence of the Habsburgs striving to establish central imperial power in the Holy Roman Empire

A

Establishment of the Imperial Chamber Court by Emperor Maximilian I -> it would administer justice according to roman law and strengthen the legal system of the empire

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19
Q

What was the issue with the imperial chamber court

A
  1. The court travelled. So there was no settled place for it. In 1689 the court found itself in Wetzlar
  2. Judges would take a long time to decide a case
  3. There were privilages -> certain cases would not be tried by the imperial court
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20
Q

What were the privilages of the imperial court

A

-the emperor would sell these privilages to various cities as he needed money to wage war

-privilegium de non appellando: meant that the local court’s decision was final, and you couldnt appeal to the imperial court -> so the decisions as dealt with locally

-privilegium de non evocando: this privilage prevented the Imperial court from taking over the jurisdiction of lower courts. Essentially, the imperial court couldn’t interfere with certain local courts -> so the decisions were dealt with locally

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21
Q

He privilages sold by the emperor would benefit the cities rather than the citizens?

A

-provided certain legal advantages to the cities

-these privileges could be seen as benefiting the cities because they allowed local authorities to have more control and autonomy over legal matters within their jurisdictions. The decisions made by local courts would be final, and the Imperial Court couldn’t intervene or overrule them. This autonomy might be advantageous for the local administration and its ability to govern independently.

On the other hand, the impact on individual citizens could vary. If the local legal system was fair and just, then the privileges might be seen as protective measures for citizens, ensuring that their local legal decisions were respected. However, if the local legal system was corrupt or unfair, these privileges could potentially limit citizens’ recourse to seek justice at a higher level.

In essence, while the privileges were designed to empower cities and maintain a degree of local autonomy, their impact on individual citizens would depend on the effectiveness and fairness of the local legal systems.

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22
Q

What were the two ways in which the Habsburgs wanted to centralise the emperors authority

A
  1. Imperial chamber court / imperial court of Welzar
  2. Criminal code
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23
Q

Who attempted centralising justice by codifying criminal law

A

-1532 by Charles V with the Constitutio Criminalis Carolina.

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24
Q

What were the characteristics of the 1532 by Charles V with the Constitutio Criminalis Carolina.

A

-contained an inquisitorial procedure (active and involved judge)

-no exclusivity as it not displace all criminal laws that existed throughout the empire.

-BUT clausula salvatoria : meant that local criminal law would be applied and only if there was no local criminal law then in the second instance the criminal code of Charles the V could be used. Thus, it had no exclusivity, it ended up as a subsidiary code.-> still reformatory effect

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25
Q

How did the Reign of Charles V end

A

-voluntarily in 1555
-he was tired of fighting three enemies that threatened the empire

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26
Q

Which three enemies Charles V got sick of fighting and abdicated

A
  1. French king
  2. Turkish forces (Siege of Vienna 1529 – Byzantine Empire ended in Turkish
    hands)
  3. Religious wars – the Emperor wanted to keep the Empire catholic but he wasn’t
    able to do so. When the Peace of Augsburg was concluded a principle was laid
    out
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27
Q

What was the Peace of Augsburg 1555

A

-aimed to settle conflicts between catholic and Protestant rulers in the Holy Roman Empire

-established that the ruler of a region could choose either Catholicism or Lutheranism as the official religion, and the people in that region had to follow their ruler’s choice

-the treaty brought a temporary halt to religious wars in the hoy Roman Empire

28
Q

What were the religious division in 1555

A

Protestantism arose (the Empire was divided into Protestant and Roman Catholic regions)

29
Q

What did king Fredrick II (the great) of Prussia do

A

-made first serious attempt at codification, hoping it would hlp to increase the independence of his young kingdom

-roman law had a special status in Germany countries

-didnt aim for it to be an exclusive code, since he knew about the fact that different areas had very different customary laws

–Frederick the Great saw himself as an enlightened ruler

-He wanted to replace the subsidiary source of Roman law with natural law (ratio)

  • The codification would be in German and not in Latin as no one spoke Latin
30
Q

Who drew up the first draft of German codification

A

-coccej 1746
- the draft was a disappointment as it contained too much roman law

31
Q

Who drew up the 2nd draft of German codification

A

-Suarez 1794
-became subsidiary law
-was names General State Laws for the Prussian States (ALR)

-if there was no local law the code would be applied

-became known as an encyclopaedic book as it contained civil, criminal and administrative law

-remained in force until 1900

32
Q

When was the end of the Holy Roman Empire of the German nations

A

1806 -> terms, the Holy Roman Empire of the German Nations came to an end in 1806 because of Napoleon. He made the Emperor, Francis II, give up his title after defeating him in the Battle of Austerlitz. After this, Francis II became known as Francis I, Emperor of Austria. Napoleon’s influence continued until he was defeated in the Battle of Waterloo in 1815, marking the final chapter of the Holy Roman Empire

33
Q

Who made the strongest plea for codification in Germany

A

-1814
-professor Thibaut
-who wrote a pamphlet that stated that there was a need for a general civil law in Germany (he attacked the present legal diversity). The only way for the Germans to come together in their civil relations would be when the arbitrary wills of the individual governments of Germany seized to apply.

34
Q

Why did Thibalut’s ideal did not become a reality

A
  1. No political unity between different countries in Germany that he wanted to unite with a codification
  2. Savigny, a professor of roman law was his opponent who stated that:
  • German countries were not yet ready for a common civil code
  • believed that law should develop organically with society, so if law was to be written in that moment in time it would block the organic growth of law -> a code should never Impose law
35
Q

What two main rules did Von Savigny’s historical school lay down

A

1st stage: legal professors at universities and schools should study the historical development of law

2nd stage: establish the system and the leading principles

36
Q

Compare the Italian and German approach to roman law

A

Germany:
-roman law was seen as a historical source that would be applied in modern cities and will be made applicable to modern day problems

Italy:
-mos italicus: Germans wouldnt see how roman law was applied in antiquity but rather modern comity

37
Q

What codes came out of the thinking that natural law implies that you can lay down law at any given time (never changes, the same for everybody and for any time)

A
  1. Prussian ALR - Savigny refused to teach it
  2. French Code Civil
  3. Austrian ABGB - it gave the judge the possibility to use natural law when there were no other methods of interpretation (still a codification as the code itself gives
    the possibility to look af natural law)
38
Q

When was the codification of private law?

A

1811 -> was based on natural law

39
Q

Where did Von savigmy say to start when codifying law

A

Roman law, because of its inherent qualities

40
Q

Compare the two different ways of thinking, Thibaut vs. Von Savigny

A

• Thibaut:
– The legislator should initiate the common German civil code

• Von Savigny:
– Legal science should lead the way

41
Q

What two standard works did Von Savigny write to achieve his objectives

A
  1. History of Roman law in the Middle Ages → History
  2. System of contemporary Roman Law → System
42
Q

Why in 1848 there was a revolutionary year for Germany

A

A temporary parliament assembled in Frankfurt with the idea to create a constitution that would bring all the sovereign municipalities

43
Q

What was the parliament of professors

A

-a National Assembly founded in 1848 consisting of mainly academics

-lack of decisiveness

44
Q

Who was theodor mommsen

A

-impaortant figure of teh 1848 assembly

-held a progressive position -> favouring social reform

-In his last will (which was stipulated to be opened and be made public 50 years after his death) he wrote down that he believed that Germany was still not prepared to be unified as one nation therefore codification was not possible – people of his time would rather follow the political fetichism of the time.

45
Q

Who was Bisrmarck

A

-in office 1862-1890
-appointed as chancellor
-waged war in 1871 in order to mastermind unification
-aim was to unify Germany by force

46
Q

How did Bisrmark unify Germany by force

A

• in 1866 the Prussian army defeated the Austrian army.
• Four years later he waged war against France. With the defeat of the French,
the German unification was established and the second German Empire was
announced in Versailles in 1871– the Prussian king became the German King.
All German countries were still sovereign but under only one Emperor.
Therefore, there could be a codification.

47
Q

Whow as the main character in the committee chosen to codify private law in Germany

A

Bernhardt Windscheid, member of the historical school, who therefore was influenced by Roman law and as a consequence included much of it in the BGB.

48
Q

What was the first version of the German civil code (BGB) like

A

Too dogmatic according o Bismarcks view, so social rules were added

-Savigny’s ideas were still predominant thus the German civil code was a product of teh Historical School

49
Q

How did Rudolf von Jhering (1818-1892) criticise the historical school

A

He argued that judges should spend less time looking at books and more time looking around them at society.
-> more of a sociological or societal approach to the law

50
Q

Define what is meant by the historical school

A

The Historical School emphasized the importance of understanding the historical, cultural, and social context in which laws develop. Legal scholars associated with this school, such as Friedrich Carl von Savigny, believed that laws should evolve naturally from the historical experiences and customs of a particular society. They advocated for a deep study of legal traditions and the gradual development of laws over time.

51
Q

What was the other criticism on the historical school and BGB:

A

-Hermann Kantorowicz (1877-1940)

-Jhering criticism echoed in Hermann
Kantorowicz who expanded it to the BGB.

-German lawyers would
fall into the trap of just logical and systematical interpretation of doctrines andoversee the fact that law had to also protect social interests in society.

-upheld the view that there should be more room to judges to deviate from the codification when necessary.

-The effect of his ideas was seen in Switzerland – the Swiss Code states that judges should devise certain rules were they the legislator (still a codification because the code itself says the judge can use other sources)

52
Q

How was teh BGB reinterpreted during he Nazi regime

A

-Nazis saw the BGB as a codification of roman law so serious attempts were made to replace it

-the BGB was never abolished and a Nazi codification was never achieved: they had to make do with the BGB as it was still in force

-solution: umdeutung-> reinterpretation of the code -> the BGB bevamse an instrument of the national-socialist ideology

53
Q

Why was it not easy to try German officers and members of the NSDAP for crimes against humanity

A

Because it was not easy to lay down a legal basis for trying these criminals as at the time the crimes were committed there was no provision prohibiting it. It was the first time that individuals were personally accountable for crimes committed in wartime.

54
Q

Who was appointed to make a draft of a possible tribunal and find the legal basis for trying the German officers

A

Bernays colonel and head of the Special Projects Branch in the US

55
Q

What two problems did Bernays colonel come across when trying war criminals

A

1.Crimes Committed Before the War:

-Solution: Use the theory of conspiracy. Charge defendants with conspiracy to commit crimes like murder and genocide. Once proven, crimes committed before the war, as part of the conspiracy, could be punishable.

-Legal Questions: This approach raised concerns about whether conspiracy was a crime only in Anglo-American law. Additionally, there was a question of punishing German nationals under international law for a crime not punishable by their own national laws.

2.Large Number of Suspects:

-Solution: If a Nazi organization was deemed a criminal organization, it would simplify the prosecution of all its members. Evidence collected against individuals could be used against the organization itself.

-Challenge: This approach risked an elastic approach to justice, as democratic states typically require a more individualist approach, finding the defendant personally guilty.

56
Q

What was the final charge of the NSDAP

A

War of aggression

57
Q
  1. According to the advocates of the German officers and members of the
    N.S.D.A.P. that were charged with crimes against the peace, a legal obstacle
    existed that blocked the conviction of their clients. Name it. Which author is
    associated with this principle of criminal law?
A

The obstacle that arose when charging criminals with crimes committed before the war was that these charges could be met with the objection that they create ex post facto laws to the disadvantage of the defendants (principle of legality) – nulla poena sine lege, no punishment without law. No precedent existed for trying organizations.

58
Q

Which provision in international alw codices the principle of legality

A

Article 7 ECHR
Article 11 Universal Declaration of human Rights

59
Q

Explain why you would expect the English and American judge to overrule the
objections raised by the defense more easily than the French judge.

A

English and American law are common law based legal systems, namely their judges are bound by precedent and case law decisions. It is for this reason, easier for a common law judge to cerate law while the continental is limited to the interpretation of the codes.

60
Q

Explain to which extent article 7 ECHR (European Convention on Human
Rights, 1950) can be considered to be a reaction to the Nuremberg trial?

A

Principle of legality IS reflected in the first paragraph of article 7
Second paragraph can be seen as reaction to the Nuremberg trial as it states an
exception to the rule: the principle of nulla poena sine lege may be revoked when the
crime is recognized to be such by civilized nations (issue: who’s to decide which are
civilized nations?)

61
Q

Summarise the ‘Wall shooters case’ and Radbruch’s formula

A

-This trial took place after the unification of Germany but it concerned cases before the
unification.

In West and East Germany, during 1961-1989, Krenz ordered the shooting of people attempting to climb the Berlin Wall, justified by the ruling law. Germany had reservations about the Nuremberg Trial, claiming it was judged by victors, but Krenz was convicted for manslaughter. The Radbruch’s formula, prioritizing justice over legal certainty, stated that if a law conflicts intolerably with justice, substantive justice should prevail over written law. This formula addressed the question of whether Nazi laws should be considered just or unjust.

62
Q

Find out why the European Court of Human Rights (ECHR) denied Krenz’s
appeal against his conviction on March 22, 2001.

A

International law was part of the laws of Eastern Germany (GDR). However, the GDR had not ratified the ECHR. Yet the ECHR was a codification of already existing international law. Any provision conflicting with hierarchical higher international law is considered null and void. This is a natural law reasoning.

63
Q

Summarise the case about the cantonal court Schoenberg (Berlin) ( rental act case)

A

Case in which the judge interprets the law in favor of his own opinion/doctrine (teleological interpretation according to him), namely that of the Nazis. A law that is used to protect tenants is used to evict a Jew from her house.
➔ A good legislation is not able to prevent bad administration of law

64
Q

What provisions of teh rent protection act was applicable in the rental act case

A

A landlord can request termination of the contract, when the tenant is guilty of substantial nuisance towards the landlord and the behavior of the tenant is such, that it cannot be expected from the landlord to continue the agreement Behavior -> personal characteristics that hinder the formation or maintenance of the housing community brings about considerable stress on landlord Guilt -> lack of inner preparedness with regards to the house community must be regarded as a form of guilt, namely the Jew is not part of the German ethnic community therefore a Jewish tenant cannot form a house community due to his personal characteristic of being a Jew

65
Q

What did the judge decide in the case of the rental case

A

It is believed that a Jewish cannot be part of a German ethnic community therefore she cannot form a house community either – her guilt lies on her personal characteristic (behavior). Hence, the tenant can be evicted.

Termination of the contract implies:
Objective -> behavior person characteristics
Subjective -> guilt Jew is not part of the German ethnic community

66
Q

Which would be the societal purpose that the legislator would have wished to
achieve by introducing this Act? (Rental act case)

A

The legislator wanted a better protection for the lessee especially in cases where there were not enough houses for rent (during Weimar Republik)

Legal History (8 decks)

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