This book examines the processes through which law and rights, especially rights of lordship, were put into writing between the thirteenth and fifteenth centuries in what is today the Swiss midlands. It asks how medieval actors agreed on unwritten rules and how the political order was altered in the context of proliferating written records of law. For the study of such questions, not much more is available today than the original records of unwritten law. On the other hand, neither Grimm nor his critics took advantage of the possibilities for insight that the physicality of the documents provides. These are not only texts that contain descriptions of this or that practice; they are also artifacts, and as such they are themselves reflections of the process of their creation and their uses. The history of these practices has yet to be told.
As the earliest accessible written expressions of an unwritten legal culture, records of customary law derive their binding force from the fact that they present rules that had already been followed in practice or had been passed down orally before their transcription. Two types of such documents, connected to different procedures in the establishment of law, stand at the center of this study: Weistümer and deposition records (Kundschaften). The Weistümer that Grimm collected record whole series of village legal regulations and report these as the contents of traditional oral legal pronouncements (Rechtsweisungen) in local court assemblies. Deposition records, on the other hand, record the results of witness inquiries that were carried out as needed to clarify the details of contended regulations.
Weistümer and deposition records make it possible to study how laws were written down at different levels of the political system. As texts these documents grant a lively glimpse of local practices of invoking, enforcing, or even ignoring rules in everyday life. As documents, Weistümer and deposition records were predominantly used in formal proceedings by higher territorial and courtly authorities; they were the tools of juristically trained officials mostly concerned with conflicts between competing lords. At both levels, these forms of communication changed fundamentally over the course of the late Middle Ages.
At the center of this study are the territorial and small-town societies of a region that lay at the crossroads of the Holy Roman Empire, the Italian urban communes, and the kingdom of France. It was characterized by the coexistence of different styles of lordship in close proximity. Along with strongly centralized territorial lordships like those of the counts or dukes of Savoy, numerous small ecclesiastical and noble lordships asserted themselves, as did cities with territorial ambitions. The diversity of this political landscape makes it possible to study how forms of negotiating unwritten law developed reciprocally with processes of the development of the state, the adaptation of Roman law, and the emergence of specific administrative cultures. Each of these processes will be addressed in the next section in the context of the discussion of the broader historiographic context. After establishing this groundwork, I will lay out the institutional and social developments of the geographical area under study and define the sources and approach of the study.
Historiography
Studies of the way local law was written down stand at the intersection of multiple areas of research, such as investigations of normative systems and local forms of organization in the late Middle Ages or explorations into the social implications of the increasing use of writing. Before going into these discussions in detail, I will trace the development of seminal ideas about the process and implications of the textualization of the law.
Jacob Grimm’s Legacy
Scholarly research on unwritten local laws looks back on a long history that is itself only beginning to be written. One could start with Roman jurists, or indeed at the latest in the twelfth century with the consuetudines, the unwritten legal customs of cloisters and bishoprics that were a central subject of scholarly debate among experts of canon law.2 During the late Middle Ages and the early modern era, such discussions reached beyond cloisters and universities to officials and notaries who, during the period studied here, also argued about how the unwritten legal customs of villages, cities, and territories should be systematized.3 These debates mostly dealt with contemporary legal problems. In contrast, literary scholars and legal historians of the nineteenth century conceptualized the textualization of law as a fundamental shift in cultural history. This conception determined the course of research into unwritten law and its early textualization.4
The work of Jacob Grimm, above all, has affected the course of subsequent research.5 Grimm believed the late medieval records of heretofore unwritten laws were like the fairytales he collected. He viewed both as expressions of a primeval German folk culture that had been orally passed down in substantially unaltered form since the time of pre-Christian Germanic tribes. The popular law seemed to him inextricably interwoven with morality and tradition. Hence, in his reconstruction of German “folk law,” Grimm incorporated many other legal and literary writings from different chronological periods, such as the Sachsenspiegel, Scandinavian law books, and Eddic poetry.6 Ultimately, Grimm’s interest was focused on the Germanic—that is, on an ethnic German culture. Thus, he excluded material that he could not reconcile with his conception of an indigenous Germanic legal culture unspoiled by Roman influence. Grimm deliberately decided against any close association with the rich French-speaking Weistümer tradition.7
Grimm’s collection inspired many additional regional projects of Weistümer editions in German-speaking areas, and led in the end to the establishment of specialized Weistum scholarship.8 Grimm succeeded in promoting ongoing interest in Weistümer that continues to the present day, which may never have attracted more attention than any other documents of medieval local administration had he not popularized them under the rubric of culture. In the historiography of German-speaking territories, peasant culture figures prominently in projections of national unity back to the late Middle Ages—unlike in England or France, where kingdoms and royal legal authority were worshiped as the source of myths of national continuity. It is thus not surprising that Nazi Germany promoted the study of regional Weistümer in occupied Alsace in the context of its Germanization policies.9
From “Germanic” to “Traditional” Conceptions of Law
That Grimm’s conception influenced research far beyond Germany is probably due primarily to the work of Fritz Kern. In 1919 Kern published the short introductory piece Recht und Verfassung im Mittelalter. Its English translation subsequently would appear on the list of required readings for countless English-speaking history students.10 Kern described a medieval understanding of law in which law was established by neither the state nor any other authority. Law was instead seen as God-given, and it expressed itself in the consciousness and customs of the population. It could not be passed, stipulated, or composed, but rather had to be discovered as “good, old law.” Kern greatly expanded the scope of this definition of law. In contrast to Grimm, he traced law back less to a specific German culture than to material and institutional conditions of the administration of justice during an “early Middle Ages,” which he defined only in vague chronological and geographical terms. Kern suggested that law in this early period was only selectively recorded. Therefore the possibility of gaining insight from the existing records of law was limited.11 Often legal agreements were quickly forgotten and replaced with new regulations.
Unlike Grimm, Kern doubted that the “old law” was actually old. He assumed that the medieval “mindset” was not capable of understanding legal innovations as such. Kern explained the idea using the picturesque metaphor of a forest: it can be thought of as old even though it is composed of trees that have grown only recently. This organic understanding of customary law arose first under the influence of jus commune, that is, Roman and canon law.12 Kern was only marginally interested in the details of how this transition had come about. More important to him was the establishment of a fundamental distinction between the modern and the original medieval understanding of law.
Kern’s comparison of unwritten
