Einfluss des Gemeinen rechtes in Slowenien aus der perspektive der neueren Forschungen

Abstract

The author presents the state of research in the field concerning the reception in the Slovenian territory, concluding that in comparison with many other European countries this phenomenon in Slovenia has not been given enough attention. More systematic studies aiming at the analysis of specific legal sources as well as contractual and judicial practice should be carried out in the future. Only separate detailed studies, when combined, will ultimately give a clear picture of reception in the present day Slovenian territory and will thus also enrich the field of European legal history. The survey of the general evidence on reception is followed by the presentation of recent significant discoveries in the field of inheritance and criminal law. The reception of inheritance law for both testamentary and intestate succession in littoral communitiess reached its peak in the last quarter of the 14th century. Reception in the continental part of Slovenia was slower and more graduate. It seems that reception in these regions lagged behind other fields of civil law. Common law principles re garding testamentary succession strengthened rather slowly at the beginning of Modern Times and very likely developed more extensively only in the 17th century. In the field of testamentary succession reception had more effect on the contents than the form. Reception in intestate succession happened even later in time, because a substantial enforcement of Roman law was held back by the deeply rooted provincial customs. The focus is then turned to recent findings regarding the Roman Canon Law Procedure in Criminal Justice Freedoms for Ljubljana from 1514. As one of the forerunners to the Criminal Order of Charles V (Constitutio Criminalis Carolina) they represent an important link in the evolution of criminal law in Central Europe. Their procedural provisions marked the criminal justice in Ljubljana considerably. The research of provisions established that they reflect fundamental characteristics of the Roman canon law procedure. An enhanced role of the inquisitorial procedure including the officiality principle, torture and the related secrecy, as well as the indirectness and the written procedure may be regarded as a basic result of reception. Even though the Freedoms included no detailed safeguards against torture as well as no clearly expressed principle defining that the court records should be sent to legal experts, which were both understood as a typical sign of reception in the Carolina, the idea of these institutes may nevertheless be noticed in the conceptually similar provisions of the Freedoms. Yet, the discussed regulation in Ljubljana is not to be regarded as an important novelty or a sudden turn in the field of criminal justice but should be understood as a result of a long-term evolutionary process. The author states that on the basis of the past and recent research a hypothesis can be confirmed that the course and intensity of reception in the Slovenian territory were on the corresponding time level, and as such comparable to the situation in the wider territory. In view of the fact that during the period in discussion the littoral Slovenian territory belonged to another cultural environment than the continental part, the evolutionary characteristics differ, even though they are still in compliance with general tendencies of the wider territory. The article concludes with a short presentation of planned research in the field of reception to be carried out in the near future.