Legal German Chapter 6
Mar 30, 2015
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
Linguistic Consequences of Reception of Roman law
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)
Linguistic Consequences of Reception of Roman law
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
Linguistic Consequences of Reception of Roman law
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
Linguistic Consequences of Reception of Roman law
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)
Linguistic consequences of reception
By mid-18th c. German-language legislation – still full of linguistically mixed texts, with many Latin quotations
Linguistic consequences of reception
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
The German Enlightenment and Legal Language
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
The German Enlightenment and Legal Language
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
The German Enlightenment and Legal Language
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
Germanisation of Legal 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
Germanisation of Legal Language
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.
Germanisation of Legal Language
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
Germanisation of Legal Language
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)
Germanisation of Legal Language
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
Linguistic importance of the major codifications
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
Linguistic importance of the major codifications
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)
Linguistic importance of the major codifications
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)
Linguistic importance of the major codifications
Natural law codes sought to guarantee the greatest possible level of understandability; style: clear, paternal and pedagogical
Search for clarity - lack of legal precision
Linguistic importance of the major codifications
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
Linguistic importance of the major codifications
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)
Legal language of a unified Germany
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
Legal language of a unified Germany
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
19th c. schools of law
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
19th c. schools of law
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
19th c. schools of law
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
19th c. schools of law
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
19th c. schools of law
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’
Bürgerliches Gesetzbuch, BGB, 1900
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
Bürgerliches Gesetzbuch, BGB, 1900
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
Bürgerliches Gesetzbuch, BGB, 1900
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
Bürgerliches Gesetzbuch, BGB, 1900
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
Austrian legal German: history
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
Austrian legal German: history
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
Austrian legal German: history
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
Austrian legal German: history
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
Austrian legal German: history
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
International importance of legal German
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 importance of legal German
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
German as a Lingua Franca
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
German as a Lingua Franca
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
German as a Lingua Franca
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
German as a Lingua Franca
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)
International importance of legal German
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
International importance of legal German
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
International importance of legal German
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)
International importance of legal German