oa Fundamina : A Journal of Legal History - Ius Romano-Germanicum - zur Rechtsquellenlehre des Usus modernus pandectarum

Special issue 2
  • ISSN : 1021-545X
  • E-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 or (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 . Roman law was applicable in the Holy Roman Empire not in terms of a special constitution, but by . A party who invoked Roman law had the benefit of and did not have to prove its . But German law also had a . 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 Stände (social stations) to the of 1495 meant that the validity of Roman law was acknowledged in the territories. To the belong the imperial acts of law, Roman and canon law. Roman law was presumed to be valid. Johann Gottlieb Heineccius presented the as a complete system together with Roman law. In his one may find the leading principles of German law. The axiomatic method used by Heineccius was adopted by Ludwig J.F. Höpfner in his adaption of Heineccius' and his commentary on Justinian's . 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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