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1. DefinitionA distinction must be drawn between the objective and personal independence of a judge. While a judge is bound to observe only the law and statutes (Law [statute]) in arriving at his objective rulings, his personal independence guarantees the integrity of his official position. In an extended sense, both aspects are prerequisites of a just, fair judgment.Louis Pahlow2. The early modern periodJudges can be found as dependent officials in many territories at the beginning of the early modern period. In keeping with the theory of sovereignty dev…

1. Introduction Polizeistrafrecht, or “police(y) criminal law,” or the “law of police(y) contraventions,” is defined as the sphere of governmental or state sanctions that until well into the 19th century was intended to assure adherence in Europe to the provisions of the political order known in the German tradition as gute Policey (Police [political order]). Polizeistrafrecht depended in institutional terms on the fact that, from the late 17th century onwards, the policing authorities discharged jurisdictional duties as part of their gute Policey remit. This meant that …

The legal institution of  instantia austraegalis comprised courts of arbitration that existed alongside the traditional judiciary (Jurisdiction) or were set above it so as to resolve disputes between specific noble rulers and later the individual states of the German Confederation.1. The Holy Roman Empire of the German Nation Instantia austraegalis derived from the desire for a peaceful means of resolving conflicts between equal-ranking members of imperial estates, which arose in the medieval era of feuds. Despite the fact that the instantia austraegalis had to apply both  i…

commercial lawtrading companies  Early modern European corporate law predominantly concerned companies in which commercially active merchants or shareholders were personally liable. We can distinguish two primary types of trading company in the 16th and 17th centuries: the commenda, which derived from maritime trade, was normally dedicated to carrying out a single commercial transaction, such as a trading voyage overseas (Trade, Long-distance). The company was much more significant: it emerged from the need or desire that a manufacturing or merchant busin…

Felicity (German, Glückseligkeit) as the purpose of a state (State, purpose of) is one of the key concepts of the German political theory of enlightened absolutism in the latter half of the 18th century. The felicity of the state and its subjects gave the state its purpose for existing and acting. Whereas in a medieval theological context felicity was viewed primarily as a positive goal to be achieved in the afterlife (Latin, beatitudo), it became the subject of philosophical-ethical and political-theoretical discussion in the early modern period, coming to be…

Patent law regulates the capacity of inventions, that is, intellectual and creative accomplishments, for legal protection and the form of that protection itself, in a technical area. This concept was by no means self-evident in the early modern period, but rather was controversial with respect to economic policy in some cases.1. The early modern periodIn the late Middle Ages and particularly in the early modern period, technological inventions were protected by privileges in Continental Europe. As technological and scientific accomplishments proli…

1. DefinitionLimitation refers to the effect of time on a legal right that thereby is reduced with respect to its existence or its enforceability. Limitation is based on the condition that someone has failed to assert his rights within a certain time-frame. It appears both in private law and criminal law, as well as in other areas of law, such as administrative law.Louis Pahlow2. Private lawWith the reception of ius commune, its traditional principles of usucaption were also developed, that is, the acquisition of ownership by someone in possession of a thing (P…

1. Definition Citizenship designates membership in a state and thus is related to the early modern state-building process. The roots of citizenship, however, lie in the subject-ruler relationship of the early modern period.The term “nationality” in some cases is synonymous with citizenship; in others, until about 1850, it designated a somewhat reduced form of citizenship (see below, 2.). While English and French both use the word “nationality” (French,  nationalité) to indicate citizenship (cf. nation, nationalism), the German term Nationalität (and similarly  Nation) me…

1. From 1450-1800 Trademarks as product markers have their roots in the symbols of the medieval and early modern guilds. The proof of quality documented in the marking was intended to protect the local consumer from being defrauded by inferior products (see Baker, fig. 1) [6. 20–27], although marketing motives also lay behind the practice. Even in the 17th and 18th centuries, governments across Europe were already trying through their industrial policies to incentivize quality in manufactured products by means of assorted regulations and …

1. DefinitionCommercial law (Latin,  ius mercatorum), as part of private law, consists of all law related to the merchant class in the early modern period. Commercial law includes both rules pertaining to the professional organizations of merchants, their privileges, commercial jurisdiction, and the law of bankruptcy, as well as commercial police law and international law. Private commercial law, however, including for example exchange law (Bill of exchange), corporate law, and insurance, has stood at the forefront of the European commercial law tradition.Louis Pahlow2. T…

1. Concept As part of private law, securities law comprises the general rules, and particularly the rights and obligations, arising from securities. The German legal definition of a security ( Wertpapier) evolved only in the 19th century, as “document of a legal claim, the realization of which is contingent in private law upon possession of the document” [4. 147]. However, individual scrutiny of known securities still dominated legal discussions in the early modern period.Louis Pahlow2. 1450-1800Certain securities, such as bills of exchange, evolved out of late medi…

An administrative judiciary ( Administrativjustiz) is the court-like review of measures taken by the police or the government outside the ordinary judiciary in the 19th century. Its roots lie in the  gute Policey (“good public order”) of the 18th century, whereby Policey cases were decided by Policey-Collegien, the so-called cameral judiciary (see Kameralprozess) After the administrative reforms at the beginning of the 19th century, the duties of gute Policey were assumed by the government. The administrative judiciary now consisted of court-like judicial i…

Patrimonial jurisdiction was a special form of private jurisdiction that was usually linked to the possession of an estate (Latin  patrimonium), hence to land holdings. It might apply to both civil and criminal cases.1. The early modern periodLandlords had often conferred their jurisdictional competence on cities, monasteries, abbeys, and estates (Gutsherrschaft) since the Middle Ages. In Continental Europe, the lowest level of jurisdiction might thus lie in private hands, since it was viewed as a real entitlement associated wit…

1. DefinitionToday, the concept of freedom of trade is usually mentioned in connection with free enterprise (Industrial policy). In the 18th and 19th centuries, however, freedom of trade had its own distinct meaning: in Europe, it encompassed both the traditional rights of merchants and the liberal and pre-liberal understanding of the freedom of domestic and foreign trade (Trade, external).Louis Pahlow2. The absolutist-mercantilist stateAlthough calls for freedom of trade can be found already in political works of the 16th and 17th centuries, the concept …

1. IntroductionLaw faculties were the administrative and knowledge-organizing elements (Faculty) of a university that were responsible for the training of jurists. Founded in the Middle Ages, they transformed in the early modern period under the influence of certain religious, political, and cultural movements. Across Europe, these trends led to the founding of numerous universities and, with them, faculties of law. Significant changes in the organization and instruction of law faculties can also be observed.Louis Pahlow2. Confessional and state influencesThe end of fait…

1. DefinitionA notary’s job was to record, witness, or certify legal transactions of a public or private nature (Law). The presence of notaries thus presumes that a legal system relies on writing to a certain degree. Documents that had been certified by notaries were considered means of proof; in general, they enjoyed and still enjoy public credence, that is, their contents are regarded as correct until proven otherwise.Louis Pahlow2. Early modern periodAt the dawn of the early modern period, notaries were generally recognized in both the ecclesiastical and secular…

1. IntroductionA lawsuit occurs when a plaintiff initiates legal proceedings before a court of law seeking recourse against a defendant. In connection with the spread of scholarly Roman law across Europe (Ius commune), lawsuits were increasingly formalized and refined as remedies according to civil procedure.Louis Pahlow 2. Early modern developments In contrast to medieval law, in which official judicial authority had not yet asserted itself over vigilante self-help [7] (Feud), in the early modern period convening a court became the norm. Lawsuits (Latin  actio; German Klage, …

Iura maiestatis (“rights of majesty”) is an early modern term for the sovereign rights of a ruler. Across Europe, in the 17th century, they became the focus of the philosophical and legal discussion concerning the state (State, general theory of); they were highly important as the organization of the early modern state took shape.Beginning in the 16th century, different kinds of iura maiestatis emerged across Europe from a comprehensive philosophical discourse of the state. The starting point was maiestas, which in the early modern period indicated not only the exalte…

1. IntroductionThe origins, transfer, and lapse of land rights in early modern Europe, that is rights pertaining to real estate – such as ownership (Property), easements, and mortgages – were shaped by Roman legal models (Ius commune). With respect to their formal nature, however, early modern influences can be increasingly identified. Two groups of rights, which may be summarized as rights of use and rights of exploitation, were the most important land rights across Europe.Louis Pahlow2. Rights of useUnder ius commune, so-called servitudes (Latin, servitutes, easements),…

1. IntroductionLay judges differ from trained judges particularly in that they are not professionally trained jurists. Although the term “lay judge” does not appear in the legal sources or in the laws of the early modern period, they enjoyed varying importance as judges,  Schöffen in German-speaking territories, and jurors. The significance of lay judges as members of  juries in the Anglo-American legal world was incomparably greater than in Continental Europe during the early modern period (Common law) [2].Louis Pahlow2. Decline in the early modern periodIn Germany, the sep…