Heinz Mohnhaupt

Die Edition von Privilegien als Rechtsquellen in Deutschland und in ihrer europäischen Perspektive

This paper examines the history and contemporary practice of the edition of privileges in the context of the term “source of law”. In all legal systems, the term “source of law” has a quality of normative power or of authority for the decision-making processes. In this sense, the research question decides about their property as sources of law. This raises the question of the content and function of privileges in the history of law. While the individual and special “privilegia” form a contrast to common law or general legislation as “leges privatae”, on the other hand, they are also part of the greater category of law and legislation in general. This accounts for their enormous instrumentality in the creation of legal systems. Privileges may extend to all matters of private and public law (economy, trade, invention, jurisdiction, constitution, rights of estates, etc.). They have appeared as a mass phenomenon since the Middle Ages. The different characteristics of the sources in turn connote both problems and possibilities for their edition, both in the past and the present. Different forms and functions of their publication and edition can be distinguished for the Ancien Regime. Publications of privileges of estates often served political interests, the publication of private-law privileges, thus, served to protect individual legal positions and their probability in court. Today, the edition of privileges is determined by the research objectives in European legal history and, in the face of the mass phenomenon of this type of source, is hampered by the problem of criteria for their selection. Editions on the jurisdiction and economic development in the Old Reich have been published in Germany and Austria in recent years (1980, 1981). They attest to the traditional power of privileges and show the important meaning for the ordering and shaping of law up until the 19th century.

The Object of Interpretation: Legislation and Competing Normative Sources of Law in Europe During the 16th to 18th Centuries

The subject-matter of interpretation consists of legal sources, and, among these sources, statutes in particular. Any investigation of the nature of interpretation is therefore predicated upon a prior presentation and analysis of the texts which are to be interpreted. The interpreter has to take account of the different structural and historical conditions that may affect various legal sources. General or specific statutes, their hierarchy, or competing spheres of validity in the shape of legal decisions and juristic analysis, set the boundaries for the task of interpretation. These factors are decisive in determining the competence of the political, judicial or academic interpreter in the course of the history of statutory law in Europe. It follows that the history of interpretation also entails the history of legal sources and statutory law making, which will be discussed in this article.