Chapter 6. Leges barbarorum: lex Salica, lex Ribuaria Primitive compilations: distinction between...

Legal GermanChapter 6

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

History of Legal German

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)

History of Legal German

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)

Linguistic conditions in the Holy Roman Empire

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

Linguistic conditions in the Holy Roman Empire

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

Status of Latin and German

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

Status of Latin and German

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)

The Flowering of Old Legal German

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

The Flowering of Old Legal German

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

Linguistic Consequences of the Reception of Roman law

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

Linguistic Consequences of Reception of Roman law

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

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)

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

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

Importance of former local law – reduced by an important rule of evidence – anyone relying on a local legal rule had to prove it

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

Consequences of reception

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)

Consequences of reception

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

Linguistic consequences of reception

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)

By mid-18th c. German-language legislation – still full of linguistically mixed texts, with many Latin quotations

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

Influence of Legal French

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 German-speaking states – concluded in French

Influence of Legal French

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

The German Enlightenment and Legal Language

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

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

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

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

Germanisation of Legal Language

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

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

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.

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

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)

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

Linguistic importance of the major codifications

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

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

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)

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)

Natural law codes sought to guarantee the greatest possible level of understandability; style: clear, paternal and pedagogical

Search for clarity - lack of legal precision

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

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)

Legal language of a unified Germany

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)

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

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

19th c. schools of law

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

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

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

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

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

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

Bürgerliches Gesetzbuch, BGB, 1900

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’

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

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

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

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

Period after the Second World War

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

Characteristics of legal German: Lexical richness and conceptual distinctions

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

Pure German word-forms

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)

Pure German word-forms

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”

Abstract character

‘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

Abstract character

German used in several countries: Federal Republic of Germany Austria Switzerland Eastern Belgium North of Italy (South Tyrol)

International coherence

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

International coherence

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 Bavarian-Austrian standard widely used (Gemeines Deutsch) - southern parts of the German linguistic zone

Reformation - aggravated the linguistic divergence between the Lutheran and Catholic German regions

Austrian legal German: history

Central regions of Germany introduced a standard created by Martin Luther (Lutherisch-Deutsch) as a counterbalance to the southern standard

The Jesuits directing the Counter-Reformation energetically supported the development of a separate South-German language variant of Lutheran origin in the Catholic southern German States

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

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

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 non-German linguistic groups; a cultivated use of German developed, with no basis in German dialects: Schönbrunnerdeutsch or Hofratsdeutsch

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

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

Austrian legal German: Features

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

Influence of the European Union

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)

Influence of the European Union

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

International importance of legal German

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

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

International spread of laws of German-speaking 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

German as a Lingua Franca

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

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

A new wave of German legislative influence- during 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

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

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)

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

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

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)

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