Germany's wholesale adoption of Roman Law was in fact somewhat of an anomaly in the reception in Central Europe. Poland, Austria, Bohemia and Switzerland, in a similar fashion to Hungary, did not completely accept Roman Law in the manner that Germany did, but it did inevitably permeate existing laws due to the exchange of people and ideas in Central Europe and particularly Central European universities, as well as the fact that Roman Law was the common law for the Holy Roman Empire. My reasoning for going into such detail about the specifics of the reception of Roman Law in Central Europe is because, as the progress and depth of reception varied from country to country, so did the consequences of the reception. We have acknowledged that Roman Law was most definitively received in Germany, therefore many of the consequences in this essay will be relatively German-centric, though this is not to say that developments in Germany did not create consequences in other parts of Central Europe.
Therefore, in the rest of this essay, I will discuss the various consequences of the Roman Law reception in Central Europe, with Germany as the epicentre of the reception, from around 1495 onwards. I will argue that the new created short-term divisions and inequalities in society, but that these were for the greater good, as the transition to Roman Law was ultimately a step in the right direction because customary laws were not suitable for the increasingly advanced societies in Central Europe.
Given the permeation of law into society, one consequence of the the new laws was that they affected most areas of public and private life. As a result, there was a negative reaction to the reception from people who were generally averse to change. One negative view was that the new laws were 'imported' from a foreign source, and that this importation undermined what Strauss calls “the robust, native, folk-and-soil-based, history-tested customary law” that had previously existed, with some critical contemporary scholars even going as far as to call the reception a “revolution from above” . The people who supported this view at the time were generally mistrusting of Italians, who Eberlin Von Gunzburg declared were capable of “trickery and fickleness”, while in comparison the German people were, according to Luther, “faithful, truthful, steadfast people who, when they say 'yes' mean yes, and when they say 'no' they mean no”. We can see, then, that the introduction of Roman Law met some opposition from those who were comfortable with the status quo.
Roman Law was also far more scholarly than the customary laws of Central Europe, and some intellectuals took interest in it as an exciting and rewarding occupation. As a result, university law faculties grew as increasing numbers of students made their way there in order to become learned jurists, and also as law faculties generally became sources of guidance and legal expertise. University-educated jurists became prominent figures in the social and political arenas. To those who were distressed by the changes in law, these newly educated and elevated lawyers became objects of resentment, anger and suspicion, blamed for the disappearance of old ways and the imposition of unwanted new ones; robbing people of control over their own fates. Ever-outspoken about the state of German Law, Luther accused new jurists of greed: “the real reason why you people study law and become jurists is money. You want to be rich”. The reception of Roman Law caused those who were educated in law to rise among the upper echelons of society, replacing amateur jurists who were forced to either educate themselves or change professions; causing certain sections of society to view Roman Law as a cold, overly businesslike and elitist imposition.
Further supporting claims of elitism is the argument that, unlike native laws which were often localized and built up by the very people who would be dealing out as well as receiving justice, and were generally well understood, the new Roman Laws were difficult to understand. The general public and many of the members of the courts could not understand the Latin contained within new “dark and obscure” passages of text. It would not be uncommon in Germany for the jurors bench and the Electoral high court to arrive at different and contradictory verdicts, mainly because of a widespread lack of understanding of the law. These feelings were amplified by the Reformation - religion was becoming more accessible because of increased use of the vernacular in services and holy texts, but law was becoming more complicated and foreign. One could say that law became over-complicated and out of touch with the common man, like a freemasonry, speaking a language of its own
However, those in favour of the implementation of Roman Law argued that it was much more than this; that it was fairer than native laws because it was more comprehensive and specific, resulting in a more civil and orderly society, with a more centralized legal system. Proponents of Roman Law wrote at length about the positive consequences that the new law was having on society. Ortholph Fuchsburger wrote, perhaps somewhat hyperbolically, that without it, “we would be returned to that original wild and brutish existence in which solitary men and women fed in the woods on acorns and the stronger freely forced his will upon the weaker”. Also, having been founded in a highly developed urban society, Roman Law contained legal ideas about property that were useful to an emerging commercial and manufacturing elite. Furthermore, rulers were very fond of Roman Law, as it was a law which utterly respected authority, which meant that institutional, legal and intellectual forces were able to form a powerful alliance.
Another consequence of Roman Law was the reaction that it provoked from Protestants. As I have touched on before, Martin Luther primarily had many grievances with Roman Law, not least because it was Catholic in origin; he had a particular distaste for “shameful” professional jurists, claiming that they take God's work into their own hands and that a man's conscience was the best judge of justice. He let this be known on many occasions, but notably so in a furious sermon in 1544, during which he hurled abuse at proponents of the new law: “I shit on the imperial law, and on the pope's law too, and for good measure on the jurists' law as well”. On the other hand, Protestant jurists such as Melanchthon chose to suppress their doubts and state that it was unwise to dispute Roman Law because it had been accepted as right by civilised people across Europe for a long time; the fact that it was a papal law did not detract from this legitimacy.
In conclusion, it can be seen that the Roman Law reception shook up the lives of people throughout Central Europe, particularly in Germany. The main consequence of this was that the legal world became more professional and practical, with higher barriers to entry as a result of the rise in educated jurists being churned out by universities. Debate arose in numerous areas of society about whether the new laws were more suitable than the old laws, and this created a degree of enmity between those who benefited from the new law and those who didn't. However, the increased functionality and practicality of Roman Law was ultimately beneficial to increasingly modern and advanced societies across Central Europe.
E. Levy Reflections on the First “Reception” of Roman Law in Germanic States, p.20.
M.Rady, Judicial Organization and Decision Making in Old Hungary, p.11. Also, on p.62 of G. Strauss's Law, Resistance, and the State, there is a quote by Saxon jurist Melchior Kling writing to his duke in the sixteenth century which illustrates the flaws of native laws: “The confusion and disorder in our Saxon territorial law must be well known to Your Electoral Grace. Oftentimes a single article will contain a variety of unrelated matters, such as criminal and civil, pertaining to persons or to things, etc., so that a man can never find quickly what he wants”.
M.A. Glendon, Comparative Legal Traditions, p.5.
G. Strauss, Law, Resistance and the State, p.57.
S. Rowan, Reformatio Iuris and Luther's Reformation: Comment on the Lutheran Reformation and German Law, p.632.
S. Rowan, Reformatio Iuris, p.632.
S. Rowan, Reformatio Iuris, p.641.
Excerpt from O. Fuchsberger, Justinianischer Instituten . . . Dolmetschung, Aii in Strauss, p.99.
J.F. Harrington, Reordering Marriage and Society in Reformation Germany, p.148.
Taken from a sermon on 6 January 1544, in Strauss, p.217.