#1.

Law in Germany
Germany at that time was called wholly Roman Empire. Theoretically, they considered
themselves continuation of Roman Empire. Emperor was very weak. According to the
Golden Bull (kind of constitution of the whole Roman Empire) the powerful people were
princes (seven electors- they chose the emperor). They had real power in Germany
Kingdoms.
Certain privileges, for example the grant de non appellando meant that no subject at an
elector could appeal to empirical courts. And the grant de non evocando meant that no such
subject shall be called to account before any court outside the territory of his lords.
Gericht – court, Hof-high, Reich-Empire, Recht - huquq
Reichshofgericht- High Emperor court (Ali Imperiya Mehkemesi)
Imperial law-making and justice hardly existed in later mediaeval Germany. In the
Reichshofgericht justice was available but little wanted nobody needed it.
They had very diverse bodies of customary law in Germany. It means that in different part
of Germany there was different customary law, it was diverse from place to place.
The local law, the Landrecht would apply principle of personality, the law of people, not
the territory.
The feudal law, the Lenrecht remained distinct from the territorial law.
The court system in Germany was Schoffen. Schoffen courts were presided by the lord,
usually judge, but decisions were given by law finders (Schoffen). They were laymen who
were not studying at university. They weren’t lawyer, people of authority. They applied
unwritten laws, based on collective memory.
In Germany the law was fragmented and uncoordinated, there was no central court system
which could arranged. They had law, but it was powerless. The most famous and influential
of the privately complied treatises was the Sachsenpiege (Mirror of the Saxon).
Weistum, an authoritative ruling, which declared the existing local custom, usually by
means of a sworn inquest. They were little collections of laws, not of law, and were
unstructured and unsystematic.
Town law- the court of a daughter town.
Schoffen dealt with the case as an appellate court, Oberhof. It became commonplace for the
Schoffen to divide into two bodies, one dealing with local disputes and the other with
appeals. Oberhof gave instructions on matters of law.
Town Law went outside Germany as well. Germany daughter towns, filial of Germany
cities, In Poland, Sweden, Prasha. They would sometimes be at odds with princess who
wanted to consolidate their rules, so they not like the ideas that certain towns are exporting
their law. At some points, they started to regard references from cities to cities, outside their
lands as derogating from authority of princesses. They were trying to stop these processes.
1432 the Elector of Saxony forbade any subject to seek legal advice from outside the
duchy.
There was ius commune in Germany, meaning that it was studied at university for a long
time already, by the 16 centuries.
When Roman law was finally received into the practice of the secular courts it was a flood
(sel kimi) (Tamamile onu evez etdi). It caused a break in the potential legal development of
German common law. (Gemeines Recht). Basically, German common law is Roman law.
Roman law became the common law of German Empire.
The Holy Roman Empire was the continuation of the Roman Empire. In the 16th century
the myth was created that Lothar III had prescribed the teaching and application of Roman
law within the Empire at the request of Imerius. (This is a myth (mif, efsane). Teoretik
olaraq, onlar deyirdiler ki, bu imperatordan gelen bir ordu idir ki, butun imperiyada Roma
huququnu tetbiq etsinler.
They had already canon law procedure in the ecclesiastical courts based on written
pleadings and rational methods.
It was the establishment in 1495 of a refurbished imperial court of justice, the
Reichskammergericht. The new court consisted of 16 voting members under the presidency
of a single director. In 1548, legal training became a mandatory qualification for all members.
The imperial court, The Reichskammergericht was instructed to use a written procedure.
They must use both Roman law and local law. The imperial court was also instructed to use
the “common law of the Empire” as well as other laws that are existing in the German
Empire. They were expected to use Roman law as subsidiary source and customs of each
dispute’s place of origin.
The Reichskammergericht was much less effective than the Parlement of Paris. It was
expensive, slow and it couldn’t enforce its decries.
There was enmity between Catholic and Protestant members of the court. It became a model
to the princess.
They created appellate courts staffed by doctors of law. They already existed such Bawaria
and Saxony. The princely high courts adopted romano-canonical procedure in both imitation
of and rivalry to the Reichskammergericht. It was Romanized.
In Saxony, the romanization of courts was not complete, they had very strong customary
tradition and mirror of Saxons play the role in that.
To sum up, imperial authority, emperor established imperial court. Instructed it to use
common law the empire and other laws, as primary sources and it became basicly,
Romanized completely. It was stopped by learned lawyers and then princess did the same.
Princess also established their courts, their high courts, appeal courts. And they also started
with learned lawyers and also, they adopted romano-canonical procedure. And, actually it
was not so much imperial court as this princess’ courts that romanized in Germany.
During the 16th century reports of the work of the court began to appear in print. For
example, a judge published a volume of reports, entitled Observations, then another judge
published his own Observations. Publications by lawyers practicing before the court with
more detail.
The Reichskammergericht acquired a kind of leadership in the development of law through
legal decisions, the court had become a source of applied legal doctrine that was at least
thought worthy of study by lawyers.
Artenversending – Aktlarin gonderilmesi
In 1532, the Carolina instructed is that in many cases it says that if there is a doubt about
what law says, advice must be received from ‘those who know the law’. It had a rule that if
court had a doubt, they should ask advice from those who know the law.
 The consilia of Zasius was individual jurist. Kollektiv olaraq huquq fakultesine
gonderirdiler ki onlar meseleni aydinlasdirsinlar. (collective response). They send all the
written documents to the advising law faculty. Litigants (participants) received learned and
impartial justice. The law faculties were using Roman law in their everyday practice. They
used Roman law to solve disputes, in a way repeating the work of the Commentators. They
completely ignored Germanic local law and custom.
Usus modernus Pandectarum -modern application of the Pandects, literally the Digest, in
practice the whole Corpus Iuris civils.
Constitutio criminals Carolina had blended existing German criminal law with the doctrines
of the Italian jurists. German classification of crimes was preserved and the crime was a
matter of concern for the state as well as for the victim and his family.
By the 17th century, all Germany had received roman law.