... "Aequitas canonica" (Canonical equity) is used as a label to characterize the essence of canon law since the Middle Ages. ... This passage can prove that equity is seen here in opposition to indulgence and mercy. ... In a decretal of Pope Eugenius III, we can already see aequitas as a canonical concept that could be substituted for misericordia or moderation as being the antithesis to rigorism in the interpretation of the canons. ... The replacement of misericordia (mercy) by aequitas (equity) can be seen as the consequence of a more jurisprudential understanding of canon law in the teaching of Stephen of Tournai (1170); but the old tradition of misericordia does not totally disappear in this development of doctrine, because Stephen saw aequitas in canon law as enforcing minor penalties or tolerating sinners in clerical office. So aequitas had the function of Ivo of Chartres's (ca. 1100) misericordia also in Stephen's idea of canon law. ... There was no difference between authors of civil law and canon law declining to apply a concept of aequitas non scripta (Non-written equity) within the legal system. ... "Rigor iuris" without aequitas was for Hostiensis († 1270) nothing but "excessus iuris'. ... I only want to mention that one of the greatest postglossators, Baldus († 1400), accepted the idea that aequitas canonica distinguished canon law from civil law and also transformed some legal rules of civil law. ...
"Aequitas canonica' is used as a label to characterize the essence of canon law since the Middle Ages. The code of canon law which was promulgated in 1983 provides a general rule to be applied in all cases where special statutes do not exist. The official English translation of Canon 19 states that: "Unless it is a penal matter, if an express prescription of universal or particular law or a custom is lacking in some particular matter, the case is to be decided in light of laws passed in similar circumstances, the general principles of law observed with canonical equity, the jurisprudence and practices of the Roman Curia, and the common and constant opinion of learned persons." n1
In nearly two thousand years the history of canon law, the concept of equity was not always used to describe canon law as distinct from other legal systems. But the term "aequitas' is already applied in late antiquity by Latin church fathers to describe the Christian ideal of justice, justice that would include not only a measure of equality and proportionality as in the Aristotelian tradition, but which would also include charity and indulgence in special cases. The element of charity as a component of perfect justice is already mentioned by St. Augustine in one of his letters. n2 However, it is difficult to find in late antiquity any idea which takes the canons as special rules of equity being by that quality distinct from the leges. On the other hand, the concept of equity is often used to characterize and legitimize the legislation of the Christian emperors so that their legislation is seen a special quality. n3 Equity, as a concept, is the creative element for the development of law. n4 This is based on a Ciceronian idea n5 which the emperors used to justify the changes of law already prior to the time of conversion to Christianity so by Antoninus Pius: "Etsi nihil facile mutandum est ex solemnibus, tamen ubi aequitas evidens poscit, subveniendum est." n6 (Though changes in solemn form are not easily admitted, yet, where aequitas de [*96] mands it, help should be granted.) This famous formulation by the emperor was later used by Justinian for one of the regulae iuris of the Digest. n7 But let us repeat that "aequitas' was not known within the church of the late Roman Empire to give to the canons a higher dignity in comparison to the laws; it was not regarded to be a special quality of positive canon law.
In the early Middle Ages, equity was identified with justice in its meaning and seen in opposition to all sorts of moderation, indulgence and commiseration as singular deviations from justice. "Aequitas' simply meant perfect justice. We can see this use of the term of aequitas in a famous passage of the Sententiae by Isidore of Seville, where we read the following sentence: "Omnis qui recte iudicat, stateram in manu gestat, et in utroque penso iustitiam et misericordiam portat; sed per iustitiam reddit peccatis sententiam, per misericordiam peccantis temperat penam, ut iusto libramine quaedam per aequitatem corrigat, quaedam vero per miserationem indulgeat." (Everybody judging righteously, has to keep a pair of scales in his hand to give the same weight to justice and commiseration; but by justice he pronounces the sentence for transgressions, by mercy he moderates the penalty, so that something is corrected by equity according to the right standard, but something is forborne with commiseration). n8 This passage can prove that equity is seen here in opposition to indulgence and commiseration. Equity was a measure for the judge to determine the appropriate penalty, which should not be tempered by commiseration. This Isidorian sentence is formulated in a context to describe the duty of all kinds of judges, not referring specifically to judicial decisions by the church, but it was taken over by the famous collector Bishop Burchard of Worms in his Decretum in the beginning of the 11th century in the section collecting the major rules of procedural law in the church (Book 16); n9 later the same text was included in Gratian's Decretum (Dist. 45, c.10) - the authoritative textbook of classical canon law. "Aequitas' and "Misericordia' are still contrary to each other in these definitions transmitted by the canonical collections.
At the end of the eleventh century, Bishop Ivo of Chartres gave a very important outline of the methods of canon law and of the character of its rules - the canons - in his famous prologue to his canonical collections. In this great document, a doctrine of interpretation for canonical rules is developed in which we find the concept of "regnum charitatis' as the [*97] most important goal for all application of canon law. Canonical rules should be understood "secundum rigorem, secundum moderationem, secundum judicium, secundum misericordiam" n10 - but aequitas is not mentioned here as a principle of interpretation.
I cannot give an outline of the importance of the concept of aequitas during the 12th century in the major works of legistic literature inside and outside Bologna. Modern research in medieval legistic literature can refer the origin of the famous paroemia, "Nihil enim aliud est equitas quam deus," to the Exordiam institutionum, a juristic introduction to Justinians' Institutes written by the glossator Martinus in the first half of the 12th century. In the same work, aequitas is called "iusticie fons et origo." n11 Martinus also provides a second definition of aequitas: "equitas est rerum convenientia que in paribus causis paria iura desiderat." n12 These Martinian definitions were used in a number of works by the earliest school of Roman law in Southern France: the Summa Institutionum "Iustiniani est in hoc opere', the "Exceptiones Petri', the "Quaestiones de iuris subtilitatibus' and the Summa Trecensis. n13 Martinus also gave to every judge the right to interpret the law according to equity and to apply not only "equitas constituta in legibus' but also "equitas rudis' - principles of justice not embodied in positive law - in the decision of cases. n14 [*98]
In Gratian's Decretum, compiled around 1140, we do not find aequitas as the guiding principle of interpretation as we have it in the Roman law school of Martinus. Magister Gratian refers to misericordia and indulgentia as principles of interpretation, but usually does not relate these canonical concepts to aequitas. In his Dicta, the term "aequitas' is used only four times.
When Gratian alludes to the sentence of Christ in the case of the
adulterous woman in the Gospel of St. John 8.7, he refers to Christ's decision
as "equitatis sententia'. n15 I think that aequitas is seen here to be the
highest form of justice. On two other occasions,
Gratian uses the term of aequitas in dealing with the problem of granting
individual special rights to churches, monasteries and persons in the form of
privileges. The Roman church, which is according to Gratian explicitly not
bound by the canons as general rules, can always grant privileges, but these
privileges should be given "considerata rationis equitate', and he defines
aequitas as "mater iusticiae'. n16 The definition of equitas as "mater
iustitiae' comes very near to the Martinian definition of "fons et origo
iuris' - in connecting aequitas with ratio in the formulation "rationis
equitate'. Gratian seems to refer to a guiding principle that would prevent
arbitrariness in the granting of privileges, something near to Martinus'
definition "paria iura in paribus causis.' "Rationis equitate' may be an
original concept found by Gratian, but it also comes near to Martinus'
formulation and may have been influenced by this school of Bolognese
glossators. Canonical jurisprudence of
Gratian never used "aequitas' to describe a distinctive quality of canon law in comparison to civil law. But this very concept was used by Pope Eugenius III in a decretal letter written ... about 1150 to a famous canonist, Magister Omnebene, who acted as papal judge delegate in an ecclesiastical law suit. n17 Omnebene asked the Pope whether he should require the oath of calumny from the parties of that lawsuit. According to a procedural rule put into force by Emperor Henry III, and later repeated by Pope Honorius II, the oath of calumny should be avoided by [*99] clerics and not enforced on them in lawsuits. Eugenius III, by referring to this imperial law as a rule of canon law, ignores totally the rule's legislative origin. At the same time he gives as an "obiter dictum' the rule that ecclesiastical lawsuits should find their end "non ex legum districtione, sed ex canonum equitate.' As far as I can see, this is the first source which attributes to canon law a higher dignity of aequitas in comparison to the "districtio legum'. The Roman curia had, at that time, already a high meaning of its developing legal order soon is transformed by the case law of papal decretals. In this decretal of Eugenius III, we can already see aequitas as a canonical concept that could be substituted for misericordia or moderation as being the antithesis to rigorism in the interpretation of the canons. This idea of aequitas is later found in the Summa of Stephen of Tournai, who was a French canonist trained in Bologna, writing the Summa after his return to France in 1166, he was one of the first authors of a French school of canon law. In the prologue to the Summa, Stephen taught that contradictions between canonical rules could be understood because some canons were given ex rigore, while other canons ex dispensatione vel equitate. n18 Aequitas is now used to describe the qualities of parts of the written law of the church and the dichotomy rigor - aequitas takes the place of the older conceptual division of rigor - misericordia. The replacement of misericordia by aequitas can be seen as the consequence of a more legalistic understanding of canon law in the teaching of Stephen of Tournai; but the old tradition of misericordia does not totally disappear in this development of doctrine, because Stephen is seeing aequitas in canons enforcing minor penalties or tolerating sinners in clerical office. So aequitas has the function of Ivo's misericordia also in Stephen's idea of canon law. Stephen also frequently used the concept of equity in his letters which give us an impression of his activity in legal practice. He established aequitas canonica "as a juridical principle in the church's law and worked from a coherent notion of it." n19
Aequitas as the most characteristic quality of canon law finds an impressive distinction in the Summa Coloniensis, the work of a French or German canonist who wrote a summa on the Decretum in Cologne in about 1169. The author distinguishes different grades of equity in canon [*100] law: 1)aequitas summa - the law of major sacraments like baptism and the eucharist; 2)aequitas secunda - the law of ecclesiastical orders; 3)aequitas tertia - the law of marriage; 4)aequitas quarta - the law of church property. n20 The term of aequitas is used to describe a hierarchy of norms taking its points of reference from an understanding of the sacraments. Equity is also used to distinguish a fundamental law, the constitution of the church, from the layers of law open to legislative changes and individual dispensation. However, this concept of a hierarchy of norms was never brought into a system by legislation like that of modern states with a constitution - the Catholic church did not accept the idea of a lex fundamentalis being equivalent to the constitution of a state. According to Stephen of Tournai, it belonged to the office of the pope to decide about the degree of equity to be included into the law of the church. Stephen wrote in one of his letters to Pope Clement III (1187-1191), using a quotation from the Justinian Code: "Interpretationem inter ius et equitatem positam vobis solis et oportet et licet inspicere." n21 So in the 12th century aequitas, without any differentiation, could continuously be used for interpretation of the ancient and modern law of the church.
Since the time of Pope Alexander III (1159-1181), Papal decretals had made use of aequitas especially for procedural law. Canon law had inherited from Roman law a precise body of rules in procedural law that was systematically arranged in the literature of ordines iudiciorum and iudiciarii since the 12th century. Papal decretal legislation changed some of these rules, for instance, the calumny oath, but it never came near to a total revision of that Roman law heritage. On the other hand, flexibility was needed for the activity of the numerous judges delegate who acted with papal authority, but were without a possibility to ask for advice in every detail. In this situation, aequitas could be used as a general principle to give judges practical independence without breaking obedience to the letter of the law. So Alexander III instructed the archbishop of York to admit all kinds of rational exceptions in a law suit without being restricted by any enumeration of exceptions in the written law. n22 This possibility to deviate from strict formality in procedure is grounded in "iuris aequitas' according to the pope. The principle of aequitas was also used by Pope Innocent III in 1202 to justify the possi [*101] bility of switching to a possessory action from a petitory action at any stage of a law suit. n23 Despite its contradiction to the rules of Roman law - here aequitas is obviously used as motivating and justifying papal legislation.
This application of aequitas as a motive for legislation and legal change is one of its most important uses in the medieval world. Whereas in late antiquity the emperor is entitled to employ aequitas in legislative acts, the pope now takes the emperor's place in this function even with the claim to revise secular law as a subsidiary legislator. This papal right was used primarily to change procedural rules of Roman law. Roman law had developed the extraordinary remedy of "restitutio in integrum', together with the rule of stopping any action of the judge after initiating the procedure of restitutio - "in integrum restitutione postulata ne quid novi fiat." n24 Innocent III changed this rule for the case of suspicion of chicanery by the party asking for restitution if the defendant would give security for the eventuality of losing the lawsuit. n25 This change in law was justified by the pope as "aequitate pensata'. The most interesting decretal in the field of equity, however, came from Pope Honorius III in 1218. This pope had to deal with the practice of ecclesiastical jurisdiction in the conquered territories of the Byzantine Empire. He wrote to his legate that canon law could be applied among the Greeks in a moderate way, taking into account the frequency of transgressions by Latins and Greeks, but he added that the law had to be followed without exceptions in sacramental matters like marriage law. n26 In all cases without rules of written law, the papal representative should act according to aequitas "in humaniorem partem.' Aequitas then became a principle to decide all cases not foreseen in the existing body of law. This gave special freedom to the judge in these remote areas. It also identified aequitas by papal authority with a practice defined as "humanior', a response to human needs.
Let us summarise the role of aequitas as it was used in papal decretal law between 1140 and 1234 - prior to Gregory's IX' comprehensive legislation in the Liber Extra. Aequitas is mentioned:
1. As a means of interpretation of canonical rules in the direction of moderation and commiseration. Canon law had brought these concepts as new substantive elements to the concept of equity as it had been tradi [*102] tionally understood in Roman law. This identification of originally separated elements was mainly worked out by Stephen of Tournai.
2. As a concept to modify rules of strict law in the direction of free judicial discretion. This use of equity could lead to a substantive modification of procedural rules.
3. As a principle to fill the gap in a legal system that did not know a codification, and relied more on written common law than on regional customary law. So aequitas was used as something like a general clause, as in the case of restitutio in integrum.
4. As a justification for legal change and new legislation. It legitimized developments in law and removed long lasting legal traditions.
Aequitas in canon law was, therefore, a necessary conceptual instrument for the professor in the classroom, for the professional judge in the church courts and for the papal legislator in the Roman curia. Hostiensis
This concept of equity in canon law was not always fully accepted by the doctrine of the canonists of the 12th and 13th centuries. The jurisprudence of the canonists was not only guided by the text of the decretals, but also influenced by the model of civil law doctrine. In the field of aequitas, the Bologna civil law school removed the tendency of Martinus and installed a doctrine that would only accept aequitas scripta as a guideline for judicial decision. Aequitas could therefore not serve as a general device for free judicial decision. This careful restriction of the role of aequitas in law was also accepted by the most important canonist at the end of the 12th century, Huguccio of Pisa. n27 Aequitas non scripta could, according to him, only be used for gaps in positive law. This prevailing opinion among the canonists, similar to the civilians, was for instance, formulated by Bernardus Parmensis in the Glossa Ordinaria to the Decretals of Gregory IX. "Ius semper est praeferendum equitati ... Hic (= X 1.36.11) de aequitate non scripta quae tunc tantum servanda est cum ius deficit." n28 There was no difference between authors of civil law and canon law declining to apply a concept of aequitas non scripta or cerebrina within the legal system.
Canon law, however, gave another definition of aequitas scripta than the authors of Roman law. The association of aequitas with the special canonical concept of misericordia was upheld by the prevailing tradition among the canonists. Johannes Teutonicus, the author of the Glossa Ordinaria to Gratian's Decretum, wrote that without any excep [*103] tion "potius debet iudex sequi misericordiam quam rigorem" n29 - the judge should follow principles of commiseration more than those of strict interpretation of law.
The main idea of defining equity in canon law was fully developed by the greatest author of canon law in the 13th century, Cardinal Henricus of Segusio, or Cardinalis Hostiensis. Hostiensis gave three definitions of aequitas in his opus maagnum, the Summa Aurea:
1. First he defined aequitas as a synthesis of justice and commiseration: "Aequitas est iustitia dulcore misericordiae temperata" - aequitas is a principle for exceptional situations, but an everywhere pervading element of justice in canon law.
2. "Aequitas vero est media inter rigorem et dispensationem sive misericordiam" - aequitas is not simply identified with misericordia but in the middle between rigorous application of canonical rules and a benign deviance from strict application.
3. "Aequitas est modus rationabilis, regens sententiam et rigorem, haec enim est aequitas, quam iudex, qui minister iuris est, semper debet habere pro oculis." Aequitas is a rational use of legal rules, and excludes all kinds of arbitrary jurisprudence in the practice of ecclesiastical courts. "Rigor iuris' without aequitas was for Hostiensis nothing but "excessus iuris'. n30
Additionally, Hostiensis gave another argument for the supreme role of equitas in canon law. The principles of aequitas had to be applied to avoid any danger to Christian souls - the "periculum animarum'. n31 By that reason canonistic scholarship could explain and justify for instance, the change in the law of prescription requiring uninterrupted good faith. This new rule was regarded as equitable because it avoided bad conscience for the person favored by those rules. In fact, canon law was a legal system created to foster spiritual welfare and therefore, it had to be dominated especially by equity principles.
The influence of canonistic theories of aequitas canonica on the civilians of the 14th century may not be discussed in this paper. I only want to mention that one of the greatest postglossators, Baldus, accepted the idea that aequitas canonica distinguished canon law in its quality from civil law and could also transform some legal rules of civil law. In [*104] the question of prescription, civil law should accept according to Baldus, the requirement of uninterrupted good faith. Until then this doctrine had not found acceptance in the secular courts. Baldus wrote about this canonical rule: "de facto non servetur, sed cum sit aequum et salutare debet servari." n32 The concept of aequitas canonica distinguished Canon law as a legal system from Roman law, but found its expression in some rules which were integrated into the ius commune applied by secular as well as ecclesiastical courts. This historical development between the 12th and the 14th centuries gave to the ius commune a socioethical foundation which is still alive in the legal heritage of Europe.
n1. Code of Canon Law 9 (Latin-English ed. 1983).
n2. Augustine Ep. 153, 26 (CSEL 44) 426: "Iustitiam quippe et nemo male habet et, qui non dilexerit, non habet."
n3. See Pringsheim, Romische Aequitas des chrislichen Kaisers, Acta Congressus Iuridici I 120-152 (1935).
n4. Berger, Art. Aequitas, Encyclopedic Dictionary of Roman Law (Transactions of the American Philosophical Society, N.S. vol. 43/2, col. 354 1953).
n5. Cicero, Topica II 9 (H. Bornecque ed., Ciceron, Divisions de l'art oratoire. Topiques), p. 69f: "Ius civile est aequitas constituta, eis, qui eiusdem civitatis sunt, ad res suas obtinendas; eius autem aequitatis utilis est cognitio; utilis est ergo iuris civilis scientia."
n6. Dig. 4.1.7 pr.
n7. Dig. 50.17.183: "Etsi nihil facile mutandum est ex sollemnibus, tamen ubi aequitas evidens poscit, subveniendum est."
n8. Isidorus Hispalensis, Sententiarum Lib. III, c.52 (P.L. vol. 83, col. 721).
n9. Burchard, Decretum 16.25 (P.L. vol. 140, col. 913).
n10. Ivo Carnotensis, Prologus (P.L. vol. 161, col. 47). For Ivo's ideas see my article "Ivo von Chartres', TRE XVI 422-427 (1987).
n11. See Fitting, Juristische Schriften des fruhen Mittelalters 216. Other edition in I Palmieri, Scripta Anecdota Glossatorum 4 (2nd ed. 1914). For the Exordium Institutionum or Materia by Martinus see Kantorowicz, Studies in the Glossators of the Roman Law 53 and 332, n. 74 (Aalen 1969) (addition by P. Weimar).
n12. See generally, e.g., Kantorowicz, supra note 11, at 216. The definition of Martinus is based on Cicero, Topica 4 23: "Valeat aequitas, quae paribus in causis paria iura desiderat." (Bornecque ed., p. 73).
n13. See A. Gouron, Die Entstehung der franzosischen Rechtsschule. Summa Iustiniani est in hoc opere und Tubinger Rechtsbuch, ZRG Rom. 93, 138-160 (1976). See generally, A. Gouron, La science du droit dans le Midi de la France au Moyen Age, No. IX, (1984). But cf., La Summa Institutionum "Iustiniani est in hoc opere' 19 (P. Legendre ed., 1973) ("Equitas est rerum convenientia, que cuncta coequiparat in paribus causis paria iura desiderans."). See E.M. Meijers, Le Conflit entre L'equite et La Loi chez Les premiers glossateurs, TRG 17, 117-141 (1941) (for equity in the early works of the glossators). See also 4 E.M. Meijers, Etudes D'Histoire du Droit 142-156. See also 2 M. Boulet-Sautel, Equite, Justice et Droit Chez les Glossateurs du XIIe Siecle. Recueils de Memoires et Travaux 1-11, 27 (1951). See also 2 E. Cortese, La Norma Giuridica 322, n.43 and 44 (1964).
n14. See H. Lange, Ius aequum und ius strictum bei den glossatorem, Zeitschrift fur Rechtsegeschichte (Rom.) 71, 329-347 (1954) [hereinafter ZRG]; See also Das Romische Recht im Mittelalter 89-115, (F.J.H. Schrage ed., Darmstadt 1987). See also IV E.M. Meijers, Etudes D'Histoire du Droit 147 with a gloss from Marhnus already edited by Savigny, Geschichte des Romischen Rechts im Mittelalter, [su'2']1850 48618f; Cortese op. cit. II, 321, n.42.
n15. C.32, q.6 pr.: "Unde, cum Iudei adulteram accusarent, equitatis sententiam a domino acceperunt." In Gratian's Dictum p. C. 11, q. 3, c. 90 an illicit order of a prelate is called "contra equitatem sententia.'
n16. C.25, q.1, c.25 and C.25, q.2, c.21.
n17. See W. Holtzmann, Kanonistische Erganzungen zur Italia pontificia, 67 QF 76 (1958) 76. The decretal was added to Gratian's Decretum in some early manuscripts of the 12th century; obviously it was immediately used as valid law by the decretists. See also J. Rambaud-Buhot, L'Abbreviatio Decreti d'Omnebene, in Proceedings of the Sixth International Congress of Medieval Canon Law, 7 Monumenta Iuris Canonici 93-107 (1985) (for Omnebene, author of an Abbreviatio of Gratian's Decretum). See Ch. Lefebvre, in L'Age Classique (7 Histoire du Droit et des Institutions de l'Eglise en Occident (Le Bras et al. eds., 1965)) (p. 407 wrongly attributes this decretal to Pope Honorius II).
n18. Stephen of Tournai, Prologus to the Summa 118 (H. Kalb ed., Studien zur Summa Stephans von Tournai 1983): "Item quedam capitula data sunt ex rigore, quedam ex dispensatione vel equitate."
n19. See G. Conklin, Stephen of Tournai and the Development of aequitas canonica; The Theory and Practice of Law after Gratian, in Proceedings of the Eighth International Congress of Medieval Canon Law, San Diego 1988, 369-386 (1992). Conklin is the first author to use Stephen's letters as source for Stephen's doctrine of equity.
n20. Summa "Elegantius in iure divino' seu Coloniensis, Monumenta Iuris Canonici and G. Frasen 16 (S. Kuttner ed., ser. A, Vol. 1, 1969).
n21. See G. Conklin, Stephen of Tournai and Aequitas canonica, supra note 19, at 380. The text is found in Stephen Epistola, Lettres d'Etienne de Tournai 184, 225 (J. Desilve ed., Paris 1893). Stephen's formulation is taken over from Cod. 1.14.1.
n22. X 1.29.13 (JL 13877).
n23. X 2.12.5.
n24. Derived from Cod.2.50.1; see G.W. Wetzell, System des ordentlichen Civil-processes 672 (Leipzig 1878).
n25. X 1.41.6; see Wetzell, supra note 24, at 673.
n26. X 1.36.11; see also Ch. Lefebvre, Les pouvoirs du juge en droit danonique 181 (Paris 1938).
n27. Lefebvre, supra note 26, at 185.
n28. Bernhard, Glossa ordinaria ad X 1.36.11 v. "aequitate.' See also Lefebvre, supra note 26, at 186.
n29. Johannes Teutonicus, Glossa Ordinaria Ad C.1, q.7, c.17.
n30. These three definitions by Hostiensis are found in his Summa (Lyon ed., 1537, reprint 1962) lib. V, De dispensationibus, no. 1 (fol. 289 r b).
n31. Ch. Lefebvre, "Aequitas canonica' et "periculum animae' dans la doctrine de L'Hostiensis, Ephemerides iuris canonici 8, 305-321 (1952). The connection between aequitas and periculum animae can already be found in the letters of Stephen of Tournai, see Conklin, supra note 19, at 384.
n32. Norbert Horn, Aequitas in den Lehren des Baldus 61 (Forschungen zur neueren Privatrechtsgeschichte 11, 1968).