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Civil procedure, code of

(1,188 words)

Author(s): Brauneder, Wilhelm
1. Basic principles and development Codes of civil procedure are law codes (Law [statute]) that treat civil procedure comprehensively and normally with the preemptive force of a codification. They are the result of the differentiation of the legal order into distinct codes (see also civil codes) and presume two things: on the one hand, the separation of civil and criminal proceedings and, on the other hand, the separation of civil procedure as procedural law from the basis of its decisions, namely, c…
Date: 2019-03-20

Inheritance law

(1,083 words)

Author(s): Brauneder, Wilhelm
Inheritance law comprises the legal norms regulating the fate of the property (estate) of a person (the decedent) after his or her death (inheritance). In the early modern period, inheritance and police ordinances and ultimately codifications (e.g. the  Allgemeines Bürgerliches Gesetzbuch [ABGB] of 1812, the  Allgemeines Landrecht für die preußischen Staaten [ALR] of 1794) supplanted customary law. Inheritance law now primarily served a distributory function, since rising life expectancy meant that the provision of adult children with propert…
Date: 2019-03-20

Condominium

(679 words)

Author(s): Brauneder, Wilhelm
Condominium is the exercise of authority (Latin  dominium) by several rulers in a manner that recalls joint ownership (cf. Property). Like joint ownership, condominium may be based on the rulers' shares, so that when a property is administrated jointly, the income and burdens are divided proportionally between them. More frequently, however, condominium is based on a real division between rulers or on preexisting subdivisions (cf. Landowner) under relatively loose joint administration (Government).The equivalent of condominium on the lower levels of city, villa…
Date: 2019-03-20

Constitutionalism

(1,819 words)

Author(s): Brauneder, Wilhelm
1. Definition and overviewThe term constitutionalism is scarcely contemporary, but is used ambiguously and often carelessly in the secondary literature for a form of constitution with respect to the corresponding idea and theory, for the efforts to realize this constitution, and finally for the result, a specific type of constitution. At the heart of all these definitions is a form of state and system of government that are legitimated and organized by a formal constitution that limits state power to ensure citizens' freedom (Citizenship).Constitutionalism predominantly ai…
Date: 2019-03-20

Holy Roman Empire (of the German Nation)

(2,236 words)

Author(s): Brauneder, Wilhelm
1. Terminology and compositionUntil the end of the Old Empire in 1806, its official German name was  Heiliges Römisches Reich Deutscher Nation (“Holy Roman Empire of the German Nation”; Latin  Sacrum Imperium Romano-Germanicum). The addition of the adjective  Holy probably goes back to 12th-century Staufian ideas, but it was not challenged in the early modern period; similar epithets like  Regnum Apostolicum (“Apostolic Kingdom”) for Hungary and Rex Christianissimus (“Most Christian King”) for the king of France were common. The qualification  Roman was more important, s…
Date: 2019-03-20

Constitution, breach of

(1,252 words)

Author(s): Brauneder, Wilhelm
1. General characteristicsBreach of constitution is the change or removal of a constitution in a way that is not prescribed by the constitution affected; in other words, unconstitutionally. It normally entails a comprehensive change of the form of state and/or government. Since formal constitutions specify the way in which they may be modified, a breach of constitution can be easily distinguished from a constitutional change according to the rules of set out in the constitution itself. Such a dist…
Date: 2019-03-20

Constitution of territorial estates

(1,375 words)

Author(s): Brauneder, Wilhelm
1. Relevance in general constitutional historyThe concept of the constitution of territorial estates (German Landständische Verfassung) encompasses the coexistence of territorial estates ( Landstände) with the territorial ruler as fellow agents or, at least to a modest degree, fellow framers of territorial sovereignty, and thus applies to the context of the Holy Roman Empire. This general form of constitution, however, comprising a monarch and the estates of the realm (French états, Dutch  staaten, standen, Polish stanów, etc.), was a pan-European phenomenon.The colla…
Date: 2019-03-20

Commentary and interpretation, prohibition of

(800 words)

Author(s): Brauneder, Wilhelm
Both commentary on and the interpretation of law have the power to alter its meaning consciously or unconsciously. The boundaries between both are also fluid: commentaries contain interpretations, and specific interpretations provide commentary on at least an individual case. To that extent, every prohibition of interpretation entails a prohibition of commentary and vice versa. Emphasis on the latter thus prohibits a specific form, namely, the comprehensive interpretation of a law. Early modern …
Date: 2019-03-20

Civil codes

(1,965 words)

Author(s): Brauneder, Wilhelm
1. Meaning and development The term “civil code” describes the comprehensive law codes that toward the end of the early modern period, as chronologically and geographically neighboring evidence from Switzerland shows, were called Zivilgesetzbuch (“civil code”; e.g. Solothurn 1841/1847), Codice Civile (e.g. Ticino 1837), and “Privatgesetzbuch” (“private code”; e.g. Zurich 1856), but usually “Bürgerliches Gesetzbuch” (“civil code”; e.g. Lucerne 1831/1839). They regulate the legal material known by the synonyms civil law and private la…
Date: 2019-03-20

Constitutional law

(1,854 words)

Author(s): Brauneder, Wilhelm
1. In general Constitutional law emerged as a distinct field of law in the 18th century, when the legal systems of Europe became subdivided into private law or civil law, civil procedure, criminal law, criminal procedure, and administrative law (German  Polizeyrecht and political laws). Like private and criminal law in particular, at least in Continental Europe, constitutional law was swept up in the codification movement; that is, it was regulated in law codes with preemptive force; in particular, in documents called constitutions,…
Date: 2019-03-20

Constitution

(6,856 words)

Author(s): Brauneder, Wilhelm
1. Terminology 1.1. VerfassungThe German word Verfassung (the modern German term for “constitution”) first appears with a specific political-legal sense around 1800. It is derived from a medieval root that had general legal implications: a  Verfassung is something that has been composed ( verfasst) on account of an agreement that the parties are thereafter obliged to keep; the term then came to indicate the resulting state of affairs. This usage still appears in the 18th century, for example when Christoph Martin Wieland uses  Verfassung as a synonym for the word “agreement” ( A…
Date: 2019-03-20

Cinq codes

(843 words)

Author(s): Brauneder, Wilhelm
The Cinq Codes are five codifications that were hastily issued between 1804 and 1810, not only during the reign of Napoleon I, but to some extent under his influence. They encompassed judicial law, that is, the law applied by the courts. The Napoleonic Code, or  Code Civil of 1804, regulated civil law (Private law), the  Code de Commerce of 1807 dealt specifically with Commercial law, the  Code de la Procédure Civil of 1806 law of civil procedure. Finally, the  Code Pénal contained Criminal law (1810) and the  Code d'Instruction Criminelle the law of criminal procedure (1…
Date: 2019-03-20

Feudal law

(1,796 words)

Author(s): Brauneder, Wilhelm
1. Definition and originsThe basis for the state of feudal law in the early modern period was laid in the Middle Ages; its development was virtually complete by 1500 and it remained in force until the 19th century. Together with territorial law, municipal law, and manorial law (see Weistum), feudal law was one of the areas of law that constituted the general legal order of European states. The relationship between local, territorial law and feudal law in particular was complementary: where the former dominated, feudal law retreated, and vice versa.The complex of feudal law encomp…
Date: 2019-03-20

Estates, assembly of

(2,234 words)

Author(s): Pörtner, Regina | Brauneder, Wilhelm
1. European assemblies 1.1. TerminologyThe modern collective term assembly of the estates covers all the estatist representative bodies of Europe that were functionally comparable (Representation); among their varied tasks, support of the ruler through political counsel and military and financial assistance (providing  consilium and  auxilium) had a central place. Comparative studies of representative bodies in non-European societies suggest a causal connection between the emergence of such assemblies and the specifically European development of feudalism [13].The …
Date: 2019-03-20

Ius curiae

(1,322 words)

Author(s): Brauneder, Wilhelm | Pečar, Andreas | Troßbach, Werner
1. Court law 1.1. IntroductionA princely court was not just the site of the highest jurisdiction under the prince’s authority; it also constituted a legal space unto itself. Specific rules and norms issued by the prince were in force there that regulated the behavior of members of the court and visitors within the confines of the court. If these rules were violated, the prince’s court had its own jurisdiction. The task of administering justice at court often fell to the chief steward ( Hofmarschall). Members of court thus stood outside ordinary municipal jurisdiction. As a …
Date: 2019-03-20