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1. ConceptAlong with “state of nature” and “social contract,” “purpose of state” was one of the formative concepts of the model of the general theory of state in natural law in the early modern period (State, general theory of). That theory saw the state as a “natural” (i.e. natural-law) society, that is, as a civil society (Latin societas civilis; Bourgeois society) that, like the other contractual societies of natural law (e.g. marriage, the societies of parents and children, masters and servants, family and church; see Societal law; Ecclesiastica…

1. DefinitionBeginning around the early 18th century, ius Germanicum privatum (“German private law”) was regarded as the indigenous German or Germanic parts of private law. The concept thus had a deliberately narrower scope than private law, as the general meaning of the words – the totality of all German private law norms – suggests. It presumed the existence of private law norms that had arisen independently of ius commune or which remained uninfluenced by or contained in it. In particular, though,  ius Germanicum privatum designated the area of early modern jurisprudenc…

1. ConceptThe right of petition (from the Latin petere, “to demand,” “to require”) today denotes the basic right (Human rights), as regulated in constitutions (e.g. Art. 17 Grundgesetz, Basic Law of the Federal Republic of Germany), to submit requests or grievances to local authorities and organs of state, in particular the head of state and representative bodies of the people. While it was already recognized in England and Scotland by the Bill of Rights (1689) and in the United States and France by the constitutions of t…

1. DefinitionThe history of law, on the one hand, may be understood as the history of culturally influenced legal norms and their application; on the other hand, the history of law (or legal history) designates the subdiscipline of jurisprudence and history (intellectual discipline) dedicated to the history of these norms, including their cultural, political, economic, and social contexts. The history of law in the latter sense can be subdivided according to areas of law (e.g. the history of priv…

1. Definition and overviewHuman and civil rights (French, droits de l'homme et du citoyen; German,  Menschenrechte und Bürgerrechte) - often collectively called “basic rights” or “basic freedoms” - are considered to be the fundamental subjective rights of individuals; such rights are more valuable than simple subjective rights and protect specific freedoms, especially from state interference. Since the end of the 18th century, basic rights generally have been guaranteed by written constitutions. Human rights app…

1. ConceptSovereignty (French  souveraineté, German Souveränität, Latin  summum imperium, maiestas) as a concept in government law and international law has, since the early modern period, denoted on the one hand the holding and exercise by a person (e.g. a ruling prince), group of people (e.g. magistracy or adminstrative council), or entire people of supreme legitimate authority (“internal sovereignty”), and on the other the external independence of a state that is reflected in its recognition as a sub…

1. Definition The history of political thought uses the term  social contract (German  Staatsvertrag or  Gesellsschaftsvertrag, French  contrat social) for the contract that forms the basis for the emergence of the state. As a rule, the concept of a social contract is closely associated with the early modern model of natural law, according to which human beings live originally in the state of nature, which they abandon with the social contract in favor of the  status civilis (civil state), that is, life within the state. Diethelm Klippel 2. Absolutist theory Although the conce…

1. Concept The estatic society and authority systems of Europe in the Middle Ages and early modern period (Estates of the realm) recognized numerous gradations of legal capacity and limitations on freedom of action, some of which would only be abolished in the 19th century. These reached the extreme of a condition of personal unfreedom pertaining to certain persons and groups, particularly serfs and slaves (Serfdom; Slavery). A plethora of other specific “unfreedoms” applied in social, …

1. Definition and scope Military law, disregarding the various contemporary usages of the term, may be understood as all law that pertains to the military, especially the legal norms that govern its inner composition, administration, and conflicts, as well as its external relations with the population and state and its conduct in military confrontations with other states. With respect to the history of the term, military law (German:  Militärrecht) was increasingly used after 1800 to translate the Latin term ius militare. Previously, the general term was the “law of war” (German:  K…

The term “sumptuary laws” has since at least the late 18th century denoted legal provisions intended to limit luxury and more generally consumption, and hence to regulate the behaviors associated with them.1. Provisions and scopeAs a corpus of early modern legal sources (although similar provisions had certainly been made in classical antiquity and the Middle Ages), sumptuary laws defy survey in terms of quantity and variety [3]; [9]. Provisions are contained in broader laws (e.g. police ordinances [Police (political order)] and territorial law codes) and in …

1. ConceptThe state of nature (Latin  status naturalis, German  Naturzustand,  Stand der Natur; French  état naturel) was understood as the state of human existence outwith or prior to the creation of the state ( societas civilis,  “civil society” in the  status civilis,  “civil state”). The conception of such a state of nature was a key component of the early modern theory of natural law (Natural law). According to the model developed in that theory, the state of nature was brought to an end by the social contract (or contracts) that …

1. Introduction 1.1. TerminologyPhilosophy of law (Latin  philosophia iuris; French  philosophie du droit; German  Rechtsphilosophie) is understood to be a subdiscipline of jurisprudence and philosophy that is dedicated to fundamental philosophical questions about law and the state and the investigation of certain legal problems from a philosophical perspective. The term natural law (Latin  ius naturae or  naturale; French  droit de la nature; German  Naturrecht) designates a complex of legal norms that are presumed to be valid independent of positive…

1. Conceptual fundamentalsThe selection of the eleven key articles and the other lemmas for the subject area “law and constitution” was based on two guiding principles. First, the three major branches of the law were addressed: public law (including constitution and human rights, with their own key articles because of their outstanding importance in the early modern period), private law, and criminal law. These branches covered central topics and institutions of legal and constitutional hi…

1. Definition The theoretical model for state and society in early modern Europe according to natural law, and thus the dominant political and social theory from the 17th to the first half of the 19th century, was based on the idea that all human institutions should be interpreted rationally as contractual associations or “societies” (Society [community]; Contract [private law]). Accordingly, marriage, relations between parents and children and between masters and servants (see Authority), and the…

1. ConceptPersonality rights are understood today as subjective rights resting upon and deriving from the essence of the human person. On the one hand, as human rights, they guarantee the recognition of elementary human needs by the state (Humankind, human being), while on the other, as a general right of personality and in the plural as special rights of personality, they forbid in civil law unauthorized infringements by fellow citizens into certain protected personal areas (e.g. private sphere, name, likeness).The history of personality rights is difficult to discern f…

1. Concept The general theory of state (German  allgemeine Staatslehre), as a sub-discipline of German jurisprudence, today treats fundamental questions of the theory of the state independently of the state law or constitutional law of any particular state. The term emerged in the 19th century, initially as a synonym, then as a successor to  allgemeines Staatsrecht (general government law), which in turn was a translation of ius publicum universale, which had emerged late in the 17th century as a part of natural law [11. 291 ff.]. Allgemeines Staatsrecht was thus also seen a…

1. Concept and definitionThe Latin phrase habeas corpus (“you may/should have the body,” meaning “to secure the body”) is understood in a narrow sense as the constitutional protection from illegal imprisonment as a fundamental judicial right. In a broader sense, habeas corpus has evolved into protection from arbitrary prosecution, incarceration, and punishment. Even more comprehensive definitions may be given: habeas corpus thus is occasionally described as the “great writ of liberty” [3] or the “classic fundamental right of human dignity” and as such viewed as…

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. Definition The term juridification (alternatively, “judicialisation”; German Verrechtlichung) has been used since the early 20th century to describe the process of the expansion of legal structures to areas of life that had not previously been regulated by law, or the intensification and increasingly detailed nature of existing law; it further refers in a general sense to the growing importance of legal structures. The term Verrechtlichung was coined by Hugo Sinzheimer in 1919 and introduced to scholarly discourse by the dissertation of Otto Kirchheimer in 1928 [22. 354]; [8. 5…

Since antiquity “asylum” (Greek ásylon) has meant a place of refuge where refugees could find protection. Under the influence of medieval legal theory, in the course of the early modern period today’s understanding of the right of asylum developed; it distinguishes between the right of asylum as the sum of legal norms that regulate the field of law and the subjective right of asylum of a  refugee. In the early modern period, the development of an ecclesiastical right of asylum, a secular right, and an international right overlapped. 1. Ecclesiastical right of asylum The ecclesiastical r…