Abstract

WESENER, Gunter. Fundamina (Pretoria) [online]. 2014, vol.20, n.2, pp.1031-1041. ISSN 2411-7870.

The subject of this contribution is the doctrine of the sources of law during the period of the Usus modernus pandectarum. This period may also be called the time of the Jus Romano-Germanicum or Praxis juris Romani in foro Germanico (according to a work by Johann Schilter). This study is based on works of five important representatives of this tradition: Schilter, Stryk, Struve, Heineccius and Hoepfner. Johann Schilter represents the so-called media sententia. Roman law was applicable in the Holy Roman Empire not in terms of a special constitution, but by usu et consuetudine fori. A party who invoked Roman law had the benefit offundata intentio and did not have to prove its observantia. But German law also had a fundata intentio. When there were contradictions between the two, the legislator had to decide with the help of case law. Samuel Stryk essentially followed Schiller's theory of compromise. For Georg Adam Struve the consent of the Stande (social stations) to the Reichskammergerichtsordnung of 1495 meant that the validity of Roman law was acknowledged in the territories. To the iura communia belong the imperial acts of law, Roman and canon law. Roman law was presumed to be valid. Johann Gottlieb Heineccius presented the Ius Germanicum as a complete system together with Roman law. In his Elementa iuris Germanici one may find the leading principles of German law. The axiomatic method used by Heineccius was adopted by Ludwig J.F. Hopfner in his adaption of Heineccius' Elementa iuris civilis and his commentary on Justinian's Institutiones. The doctrine of the sources of law during the period of the Usus modernus pandectarum was not uniform at all. The jurists tried in different ways to justify the validity of Roman law in the Holy Roman Empire.

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