Search

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,…

Sede vacante (Italian, from the Latin  sedis vacantia, “vacancy of the throne/office”), in relation to a high office, in general refers to the span of time during which that office is vacant, dating from the death, abdication, or dismissal of the incumbent to the successor’s installation. The term comes from canon law, where it refers particularly to the vacancy of an episcopal see and the papacy [4]. The macaronic German-Latin term  Sedisvakanz began to be used in reference to the Holy Roman Empire in the 18th century.The exercise of the office pending the new appointme…

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…

Territorial partition in the broad sense means partition of all territorial sovereignty; in the narrow sense, it means partition of the territorial sovereignty (Authority) of the type that was shared by the territorial sovereign (Territorial sovereignty [Holy Roman Empire]) and the territorial estates on the basis of territorial law. Both types are rooted in the view of sovereign rights inherited equally by multiple heirs, derived from medieval inheritance law. Absent other provisions, they cons…

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…

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…

1. Introduction; medieval originsJacob Grimm (see below, 2.) founded the concept of the Weistum  (compare “wisdom,” meaning “customary law”) as a specific type of legal source. Those subject to a particular local or material jurisdiction would periodically verbally assert the customary law in force there. From the early Middle Ages onwards, they did so in a procedure akin to court proceedings, with answers to questions concerning hypothetical legal cases. The question-and-answer mode disappeared ove…

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…

Statutes (Latin  statuta) are legal regulations with a narrow range of (territorial or material) applicability, that is, relating to groups of persons or organs. They presuppose the existence of farther-reaching, superordinate regulations, which they are issued to supplement, resolve, or implement.…

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…

Condominium is the exercise of authority (Latin  …

1. Introduction…

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 aims to limit monarchic power (Monarchy) by means of a parliament and to guarantee basic rights (Human rights) in a constitutional document that qualifies as a codification, that is, preempting other rules, such as historical privileges. In an extended sense, albeit infrequently, the constitutional arrangement whereby the monarch was tied to merely advisory councils by individual laws was also considered constitutionalism (Council [administrative]).Contemporaries - such as Rotteck and Welcker in their influential  Staatslexikon - r…

Ministerial responsibility means the responsibility of ministers for their special function as both an organ of government (council of ministers) and heads of functional departments (ministry), over and above their general responsibility under criminal and private law. Ministerial responsibility is one of the essential features of constitutional (Constitutionalism) and parliamentary polity (Constitution). It is rooted in the fundamental idea of the exercise of state authority in a specific way s…

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  …

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…

The German term Landrecht (territorial law) and its compounds (e.g.  Landrechtreformation) denoted legal sources of variegated content from the late Middle Ages onwards, and and continued to do so until even after 1800. The term dated back to the medieval legal system, which was composed of isolated legal fields (Rechtskreise, “legal circles”) applicable to groups of persons or lordships, such as feudal law for specific (generally noble) loan and au…

1. Relevance in general constitutional historyThe concept of the constitution of territorial estates (German Landständische Verfassung) encompasses the coexistence of territorial estates ( Landstände…

An ordonnance (“ordinance”; from Latin  ordinatio, “ordering”) was a legislative act (Legislation) in the Kingdom of France, both of regional powers like the dukes of Burgundy or Guyene and of the French king. The ordonnances issued by the latter are important for the legal development of France.…

1. DefinitionA matrimonial regime is the system that governs the relations between spouses concerning property during and after the dissolution of marriage by virtue of customary law and, increasingly during the early modern period, by virtue of statute law, especially, however, in regard to contract law (marriage contracts, marriage gifts, marriage pacts, etc.; cf. Matrimonial law). Matrimonial regime differs from inheritance law in light of its effects: they arise already upon the contraction o…

From 1800, the monarchical principle represented a reaction to the doctrine of popular sovereignty. It stated that the authority of state did not lie, as that doctrine insisted and demanded in legal policy, in the hands of the people, but derived from the monarch (Monarchy). The status of the monarch was not derived from a constitutional provision, but purely from old-established legal titles like privilege and customary law, and it was acquired through inheritance within a dynasty (cf. Legitima…

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.…

1. IntroductionThe term “will” (from OE willa, “mind”, “purpose”), denoting written instructions concerning the disposition of a person’s property after death, first became current in English in the 14th century, “testament” (from the Latin testamentum) having become established rather earlier. The synonymous native and Latin terms were combined in a legal doublet as “[last] will and testament.” German likewise adopted the Latin term (as  Testament), but not every disposition  mortis causa was a  Testament  in the German sense. Other dispositions include the  Erbvertrag  (…

1. Meaning and development The term “civil code” describes the comprehensive law codes that toward the end …

1. Historical development 1.1. DefinitionLegislation (legislature) is one of the three classical functions of the state in addition to government and jurisdiction. This trio is the basis of the doctrine of the separation of powers (Powers, separation of) and so is of even earlier date. Since the Middle Ages, legislation as the creation of an entire legal order has differed from the application of law in individual cases by means of judgment and specific (administrative) measures enacted by authoriti…

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  …

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 …