Chapter 6
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Leges barbarorum: lex Salica, lex Ribuaria
Primitive compilations: distinction between
theft of a pig, a calf, a dog, etc. (theft of a
pig: 16 legal provisions)
Barbarian laws – drawn up in Latin
Latin loanwords: e.g. Pacht (‘lease’) < pactum
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When customary laws were in Latin, their
original style had repercussions on the means
of expression in translations
Latin of medieval Germanic laws - a mixture
of Germanic and Roman styles
German- language of legal proceedings on
German-speaking territories
In court hearings – German judges always
used the vernacular (dialects of Old German)
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In 800 the Pope crowned Charlemagne
Roman Emperor
When the empire was later divided, the
tradition continued: Otto I got the centre of
the Empire (today’s Germany and northern
Italy) and was crowned Roman Emperor in
962: the (Germanic) Holy Roman Empire
(Heiliges Römisches Reich Deutscher Nation.
Sacrum Romanum Imperium Nationis
Germanicae)
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Over time, the Empire grew increasingly
powerless in relation to the regional power
centres
Power of the emperor diminished, that of
regional princes flourished
Formally, the Empire lasted until 1806
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Official languages for the Holy Roman Empire
for the whole of its existence: German and
Latin
The same applied to the Imperial Diet and the
Imperial Court (Reichskammergericht)
Vienna cultivated Latin along with German
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Medieval period: emperor should have a
command of the language of the Church;
heard proposals from his council in Latin,
responding in the same language
After the Reformation, the protestant States
used new German written standard
(Hochdeutsch) since Low German was no
longer accepted in the Diet
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From 13th c. dialects of Old German overtook
Latin as the language of law
After mid-13th c. the use of German spread
to all areas of legal life (laws, decrees,
judgments, private documents)
Gradually, German ousted Latin in the
imperial chancellery
1st law in German: Mainzer
Reichslandsfrieden 1235 by Frederick II
Many legal documents: bilingual (Latin and
German)
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Old legal German, based on dialects – not
uniform
Some terms – still used: anfechten (‘annul’),
bescheinigen (‘to certify’), erweisen (‘to
demonstrate’), verantworten (‘to be
answerable for’, ‘guarantee’)
Level of abstraction – low: large number of
words to describe concrete cases
Use of synonyms or quasi-synonyms
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The Holy Roman Empire - no uniform legal
system created by the imperial legislator
Laws – local
Customary law – did not correspond to the
needs of a German society characterised by
rapid progress
Need for an advanced legal system
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European universities taught Roman law
Not classical Roman law but ius commune
(Gemeines Recht), created by medieval
lawyers
In harmony with Canon law, created on the
basis of Roman law
Roman law – stressed the status of the
Empire as a continuation of the original
Roman Empire
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First professors of law – trained in Italy, in
Roman law
Primitive commentaries on local German laws
could not match refined legal doctrines of the
Italian universities
Professors moved from country to country
Intellectualisation of German law; need for
judges with a theoretical legal training
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Judges of higher German courts – lawyers
with a university education
In 1495 Imperial Court set up
(Reichskammergericht)
Half judges – noblemen, half doctors of law
Reichskamergericht applied Roman law (also
partly Canon law)
Recognition by the imperial power of Roman
law as the basis for German common law
(Gemeines Recht)
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Beneath the Reichskammergericht stood the
lower imperial courts, which also applied
Roman law
As the application of Roman law spread in the
German justice system, lay judges began
asking legal scholars for opinions
Case files - sent to universities
German law faculties provided a kind of
higher court service esp. in 16th and 17th
centuries
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Status of judges lacking knowledge of Roman
law weakened, while that of law professors
strangthened
Opinions of legal scholars published: thus
was born usus modernus Pandectarum, in
17th c. usus modernus iuris Romani in foro
Germanico
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Importance of former local law – reduced by
an important rule of evidence – anyone
relying on a local legal rule had to prove it
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Reception of Roman law – profoundly
influenced German law, conferring on it an
abstract and conceptual character
Before – judge’s task required some life
experience and a feel for justice; now – a
technical art to be learned more formally
Justice – no longer based on conviction of lay
judges but on the authority of Corpus iuris
civilis
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Importance of Canon law, esp. in the law of
inheritance and succession
The idea of appealing a judgment and the
written procedure - also from Canon law
Reception – private law (law of contracts,
damages, law of property)
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Latin loanwords
Legal German – more abstract and precise
From the end of 15th c. German legal
terminology was systematised and partly
Latinised
During the reception period, Latin gave some
80% loanwords in German
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To reduce the disadvantages of Latinisation, a
movement began to write works in which the
new legal system was presented in vernacular
and in a simplified form
The choice of language depended on who the
text was aimed at
Criminal legislation – in German (Constitutio
Criminalis Carolina, 1532 – a splendid
language product, comparable to Luther’s
translation of the Bible)
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By mid-18th c. German-language legislation
– still full of linguistically mixed texts, with
many Latin quotations
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17th c. – French became a dominant power,
spreading its language and culture to other
countries, including the Holy Roman Empire
Spanish and Italian – also used in some
situations
Influence of French on German – stronger in
the late 17th and early 18th c. than that of
English today
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Many French loanwords: in the mid-17th c.
the number of French loanwords comparable
to that of Latin loanwords
French commercial legislation – translated
into German in Prussia
French – internal language of the Prussian
Ministry of Foreign Affairs; in some cases –
treaties between two or more Germanspeaking states – concluded in French
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German legal language in the Baroque: binary
formulas – not enough; the same was said at
least 3 times in different ways
Lawyers beat all other scholars, including
theologians, in the art of ornamenting
language
Sentences grew to absurd lengths
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Immense number of legal terms due to
linguistic heritage of Old German and legal
fragmentation of German (e.g. Lat. pignus
‘pledge, guarantee’ – 50 German equivalents
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18th c.: ideal citizen – active, aware of his
rights, rather than the passive subject of
former times, the object of administrative
measures
Rights of citizens to obtain information on
legal rules
Cultivated citizens should know their rights
and duties
Requirement for clear legal language and
drafting of intelligible codes
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Legal language should be concise, simple and
understandable
It should be short, in the image of military
orders
Legal texts should be clearly constructed,
mysterious abbreviations and complex
sentence structures abandoned, the use of
Latin curtailed, words of foreign origin
replaced by German words
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Herman Conring (1606-1681): “If you use a
foreign language or one known only to the
learned, you are doing a (great) wrong to the
people”
Internal decay of the Holy Roman Empire in
17th c. following the Thirty Years War
To regain national unity, the German
language was needed as a cohesive factor
Pushing aside foreign influences
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Because of lawyers’ resistance, the language
remained unchanged until mid-18th c.
Scholars – still writing in Latin
Latin domination lasted particularly long in
administrative language
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End of 17th c. some courts, such as
Reichskammergericht, drew up their
judgements in German
Notaries – also used German
Some of the legal terminology had already
been translated into German in the Humanist
period: proprietas > Eigentum, possessio –
Besitz, ususfructus – Niessbrauch ‘use’,
societas – Gesellschaft, bona fides – guter
Glaube
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Legal science: the choice of language of
works presented at book fairs in Leipzig:
Books in Latin
1701:55%
1740 :27%
1770 :14%
Legal theses – published in Latin until the mid
19th c.
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End of 18th c.: German – the main language
of German legal culture; Latin – subsidiary
means of clarifying new or difficult terms
Binary formulas - facilitated understanding of
terminology: purely German words clarifying
the meaning of foreign words: publice und
öffentlich, bona fide und unter gutem
Glauben
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More radical demands: Legal German had to
be entirely cleansed of foreign words:
methodical Germanisation (Eindeutschung) of
the German language
No need for loanwords, since any subject
could be dealt with by using purely German
words
Germanisation presupposed formulation of
new words of a scientific nature – artificial
words (Kunstwörter)
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Enlightenment: the world had to be
conceptualised as a rational system,
functioning with virtually mathematical
accuracy
In law: the major systematic codifications
were an expression of this notion
Law had to contain “rational” solutions
“natural” solutions
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Basic idea of legislative codifications – not to
form a collection of legal rules previusly
applied but to create “natural” solutions:
“codifications of natural law”
Setting these in force meant setting aside the
ius commune of Roman origin
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Holy Roman Empire - in no condition to
codify the law of German territories
Works of codification – carried out at a lower
level, in regional States of the Empire
Enlightened sovereigns of these States set
about elaborating codes inspired by natural
law, to produce legal rules corresponding to
the needs of citizens in everyday language
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Allgemeines Landesrecht für die preussischen
Staaten (ALR, 1794), codification of Prussian
sustantive law covering constitutional and
administrative rights as well as private law,
and Allgemeines Bürgerliches Gesetzbuch
(ABGB, 1811), a codification of Austrian civil
law
Bavarian Kriminalgesetzbuch (1813)
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German codes of natural law sought to
improve the legal protection of citizens
All citizens were to know their rights and
duties
These were to appear clearly and precisely in
legal provisions
The popular character of laws implied
extended casuistry: regulation of German
natural law codifications was highly detailed,
compared to that of the German Civil Code
(Bürgerliches Gesetzbuch, BGB 1900)
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Natural law codes sought to guarantee the
greatest possible level of understandability;
style: clear, paternal and pedagogical
Search for clarity - lack of legal precision
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Allgemeines Landrecht - 1st German-
language codification aimed at educated
non-lawyers; a breakthrough in German
legislative language that considerably
influenced all later German-language codes;
limited number of words of foreign origin
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In 19th c. Germany was unified and rose to
the position of a great power
National language – important reflection of
nationalism
Cleansing the German language of foreign
influences intensified with strengthened
nationalism; many neologisms (e.g. in
transport, over 1300 technical terms were
Germanised 1886-93)
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19th c. number of words of foreign origin fell
from 4-5 to 0.5% (e.g. Alimentation .
Unterhalt, Desertion – Verlassung, Citation –
Ladung ‘ summons’, Kopie – Abschrift)
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Bürgerliches Gesetzbuch (1900) almost
completely Germanised terminology of
German private law (Papierdeutsch)
German lawyers – grew used to the new
language; terminology of BGB fuelled ordinary
German through use of language by the
authorities: common parlance adopted legal
terms in a more general sense
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Notions of natural law gave way to the
Historical School of law
Romantic views - law is an organic entity of
each society
Previously, universal character of law
underlined - common to all humanity
New ideology: law fashioned by separate
heritage of a people
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Historical school – fresh strenghtening of
Roman law
Roman law - considered to be an essential
part of the German legal heritage
Importance of State power as creator of the
law – underlined
Legal positivism, according to which written
laws are the sole or the main source of law,
spread
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Previously- representatives of natural law and
the Historical School had discussed
characteristics of “true” law
Positivists no longer put that question Purely formal criteria were enough to justify
the validity of a legal rule; stressed the
supremacy of legislative rules, which could be
expressed clearly and without contradicitons,
contrary to legal rules of other types
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Begriffsjurisprudenz ‘conceptual
jurisprudence’ maintained that the legal order
was a system formed by legal concepts
Legal reasoning was to be based on the
grounding of concepts in the system
Each concept was to find its right place in the
legal system, enabling an overview of legal
effects
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According to this doctrine, a logical and
exhaustive system of legal conepts allowed
sure and simple resolution of disputes: it was
enough for the lawyer to link the facts of a
dispute to the system of concepts to produce
an almost automatic resolution
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Interessenjurisprudenz and Freirechtsschule –
reactions against Begriffsjurisprudenz
Interessenjurisprudenz : importance of
legilsative aims standing in the background
of legal rules, in legal interpretation
Freirechtsschule maintained the independent
character of application of law in relation to
written law
Both: legal rules merely a means towards
attaining social ends
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The most celebrated piece of German
legislation
Excellent internal logic of the codes (on the
model of natural sciences) but its content is
not easily understood from the reader’s
standpoint
A monument of refined legal scholarship;
written for judges versed in law, not for
laymen
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Conceptual hierarchisation, “pyramids of
concepts”
Rechtsgeschäft ‘legal act’, ‘juristic act’, ‘act in
law’, ‘legal transaction’, ‘transaction’,
‘juridical act’; Willenserklärung ‘declaration of
intent’, ‘declaration of will’, ‘declaratory act’,
‘act of a party’; Schuldverhältnis ‘ legal
relationship etween creditor and debtor’,
‘obligation’, ‘debt relationship’
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Many articles can only be understood when
placed side by side with other articles located
elsewhere in the code
Authors of the code sought to use each legal
term in a single meaning
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Power of BGB lies in the formalisation of its
rules, balance of structures and general
principles of civil law
The code has remained in force despite great
social and economic changes of 20th c.
In force in DDR before promulgation of the
East German Civil Code in 1975
Reception in far-off countries such as Brazil
and Japan
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Language – simple and precise, but also
highly technical
Many abstract terms; understanding these
presupposes a knowledtge of legal structures
to which they belong; hermetic from the
standpoint of the uninitiated
Care taken to put aside verbosity and
subordinate clauses led to highly abastract
language, with a noun-heavy style and dense
sentences
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The relaxation of nationalist linguistic policy
Anglo-American influence in legal language
(e.g. franchising)
Care for the quality of legal language .
Transferred from criticism of words of foreign
origin to problems of sentence structure
Awareness that the ideal of a generally
comprehensible legal and administrative
language is an unattainable Utopia in the
frame of the complex state of today
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Wealth of terms; Germanic tradition – wordy;
numerous prefixes (ver-, ent-, un-, etc) that can
be attached to words and the ease of forming
compounds (e.g.
Isolierglasscheibenrandfugenfüllvorrichtung)
Legal thinking based on conceptual analysis
requires a large number of clearly distinguishable
expressions
Verstoß ‘violation (of the law)’ covers 49 detailed
terms, distinguished by the degree of culpability
of the perpetrator and by the rule violated
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With the Eindeutschung policy, the
appearance of German legal terms today –
essentially national: normally, these terms are
not words of foreign origin
Enormous number of Latin calques based on
legal Latin
German and Latin legal cultures have lived for
centuries in symbiosis, intertwined
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In Switzerland – use of foreign words more
common than in Germany; the number of these
words – two times greater in the Swiss Civil Code
(Zivilgesetzbuch, ZGB) than in the German Civil
Code
Legal German – a certain number of words of
foreign origin; apart from Latin, they often come
from Renaissance Italian, esp. in commerce:
Bank, Konto, Risiko, Giro,
French words – terminology of international law:
Konvention, Intervention
Today: English (franchising, leasing)
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Large number of epithets
“…eine unter Hinzurechung der
Zusammenhangstätigkeiten bei
Berücksichtigung einer sinnvollen
vernünftigen Verwaltungsübung nach
tatsächlichen Gesichtspunkten abgrenzbare
und rechtlich selbständig zu bewertende
Arbeitseinheit der zu einem bestimmten
Arbeitsergebnis fürenden Tätigkeit eines
Angestellten”
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‘A unit of work relative to the activities of an
employee that lead to a certain working
outcome, to be delimited according to factual
aspects and to be independently considered
from the legal viewpoint, including connected
activities, taking into account reasonable and
judicious administrative use’ – Papierdeutsch
Complexity of language . Abstract character
of German legal thinking
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German used in several countries:
Federal Republic of Germany
Austria
Switzerland
Eastern Belgium
North of Italy (South Tyrol)
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South Tyrol – German terminology developed so
that it is possible to use it to express every
Italian institution; they sought to know if an
Italian legal concept could be expressed by a
term already adopted in Austria, Switzerland or
Germany without the danger of misleading
conclusions; where that was not possible – Italian
loanword or a neologism created on the basis of
German; as a result, a bilingual dictionary of legal
and administrative language of South Tyrol
published: terms in German and Italian,
definitions in both languages
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In the Middle Ages – German was not unified;
letters from the chancellery of the Holy
Roman Empire – drawn up in various dialects
At the end of the Middle Ages, a BavarianAustrian standard widely used (Gemeines
Deutsch) - southern parts of the German
linguistic zone
Reformation - aggravated the linguistic
divergence between the Lutheran and
Catholic German regions
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Central regions of Germany introduced a
standard created by Martin Luther
(Lutherisch-Deutsch) as a counterbalance to
the southern standard
The Jesuits directing the CounterReformation energetically supported the
development of a separate South-German
language variant of Lutheran origin in the
Catholic southern German States
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Conviction that there exists a single German
cultural nation - to compensate for the
weakening of the Holy Roman Empire
Struggle against Latin
Unification of written language: politically
fragmented country should at least be unified
at the language level
Solution: the written language of the central
parts of Germany
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Southern variant of German – weakened
Decision to choose the central German
variant taken by Maria Theresa and Joseph II
Still: sharp rivalry between Prussia and
Austria
Austria remained outside the Deutsche Bund,
founded in 1815; a separate power, largely
consisting of non-Germanic speaking regions
Did not join the German Empire in 1871
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Austria had its own legal and administrative
system, whose terminology was created in 19th
c. without the influence of the Eindeutschung
movement
Terms that were unknown in Germany and the
meanings of the same terms could be divergent
Ruling classes in Austria - in contact with nonGerman linguistic groups; a cultivated use of
German developed, with no basis in German
dialects: Schönbrunnerdeutsch or Hofratsdeutsch
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Following the fall of the Austrian Empire, the
inhabitants of Little Austria felt that it would
be better to become part of Germany –
rejected in the Versailles peace treaty
Hitler’s Anschluß
Today – the idea that Austria is a separate
country visible at the language level
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Legal German in Germany and Austria identical: same traditions
Conceptual identity; legal terminology –
similar
Differences: some 650 Austrian terms differ
from corresponding terms in Germany (13%)
Defferences: designations of courts
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Austrian accession – minor changes in legal
and administrative language
Law – harmonized by directives, with their
character of framework laws
This allows preservation of traditional
Austrian terminology because final rules are
formulated in Austria
Regulations of direct application – use the
terminology of the Federal Republic of
Germany
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On acceding EU, Austria received permission
to stick to traditional Austrial words for
agricultural products: Ribisl instead of
Johannisbeere ‘red-currant’ (only 23 such
words; a symbolic gesture)
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Historically – German was an important means of
communication in the regions surrounding the
Baltic Sea (notably in the Hanseatic era) and in
Eastern Europe
Solid population base
In 1800, German was the largest language in
Europe
Late 19th and early 20th c. official language in a
substantial part of Europe
Large number of peoples of Central and Eastern
Europe - In the immediate sphere of influence of
German; also: Alsace and Lorraine belonged to
the German Empire
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German language studies: in 1800, widely
studied in England; in 1900, the most popular
foreign language in France; before World War
I: 3rd foreign language; in Northern and
Eastern Europe -1st or 2nd foreign language
After 1918 position of German weakened
Germany and Austria lost war
New non-Germanic nation-states established:
on territories that belonged to these empires:
Poland, Czechoslovakia, Hungary, Yugoslavia
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Defeat in World War II; cultural attraction of
German diminished; eastern regions of the
country annexed to Poland and the Soviet
Union
International position of German – inferior to
that of English and French
Today: 90 million German speakers in
Europe; the corresponding figures worldwide:
120 million
Economic weight: German occupies 3rd place
worldwide
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International spread of laws of Germanspeaking countries (Baltic countries, Nordic
countries, Central Europe, Eastern Europe) German political, economic and cultural
influence
In Middle Ages, the Law of Magdeburg
applied in Vilnius; Ukrainian documents from
16th to 18th c. refer to Sachsenspiegel code
as a valid source of law; in partitioned Poland,
the legislation of Prussia and Austria was
applied
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Great codifications of 19th and 20th c.:
Bürgerliches Gesetzbuch . Adopted in the
corresponding code of Japan (1898), civil
codes of Brazil (1916), Siam (1924-1935),
China (1930) and Greece (1940)
Influence of BGB: Hungary, Turkey, Mexico,
Peru
Structures of the civil codes of the Soviet
republics in the 1920’s followed the example
of BGB
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Swiss Civil Code (Zivilgesetzbuch, ZG, 1907)
constructed using the legislative technique of
popular character, dating from the Age of
Enlightenment, underlining the
understandability of legal provisions – used
as a model abroad: in Turkey, a code that
imitates it almost word for word came into
force during reforms of Kemal Atatürk;
influence on Finnish Inheritance Code
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A new wave of German legislative influenceduring the transition of the European socialist
countries to the market economy in early
1990s; these countries sought legislative
models in German-speaking countries (e.g.
the Czech Republic and some former
republics of the Soviet Union
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Position of German legal science: German
contribution to ius commune; thanks to the
common language, Latin, German works of
the period were read throughout Europe
19th c. golden age of modern German legal
science – influence all over Europe
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In the Middle Ages: European scientific
authors used Latin
From the Age of Englithenment, they
increasingly used French
German-speaking scholars published their
works in 2 or 3 languages: German/Latin,
French/German/Latin)
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1794-1814 France occupied German
territories; a reaction against French
language: German scientific circles started
using German in their studies
19th c.: spectacular success of German
science, which rose to a dominant world
position in many disciplines
In 1920’s and 1930’s German was the main
language of international congresses in
physics and linguistics
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The position of German as an international
scientific language weakened after World War
II
German – not an international language
outside Europe; official status only in 3 global
organisations and in 12 European
organisations
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EU: in 1994, only 6% of EU civil servants
mainly used German in oral communication;
the number of civil servants using German
but with another mother tongue . Still
smaller: 3% (Dutch-speaking and Danish)