made it difficult for critics engaged in the analysis of agrarian society of the late Middle Ages to categorize actors in ways other than the medieval legal documents themselves do. Categories like “lord” and “peasant” incorporated persons whose social and economic situations were so heterogeneous that the uniformity of their interests can in no way be taken for granted. This heterogeneity has been demonstrated by research on the rural society of the late Middle Ages focused on social science methods, which has been carried out in France since the middle of the twentieth century but has only hesitantly been implemented in the Germanspeaking world.31 This research indicates the complexity of rural social stratification and the significance of lines of conflict that cannot be derived from legal descriptive categories but rather rest on, for example, economic relations or informal types of sociability.
The present study tries to treat legal norms neither in the tradition of Brunner nor in the one of social history of the French type. The former threatens, in effect, to equate legal procedures and social practice. The latter tends to relegate conflicts over law to the realm of legal history and to exclude them from its own research on social practice. The point of this study, in contrast, is to set practical activities regarding the law in conjunction with other aspects of social life. Only in this way can we grasp concretely how legal life changed in the context of the increasing use of writing and the reception of the jus commune.
The Transition from Orality to Textuality
The findings of Clanchy and Goody have initiated a new research direction, one that focuses on the increase in the use of writing during the late Middle Ages as the driving force and indicator of societal change. Since the end of the 1980s, numerous works have appeared on the consequences of textualization in different areas of life. They deal, for example, with the implications of manuscript culture for lay piety, or discuss what upheavals the recording of statutes in the urban communes precipitated.32 The diverse (and in some cases controversial) conclusions of this strand of research cannot be summarized in a few sentences, but the overall result is doubtless that the textualization of law and administration was bound up with trends that configured the social order in a more precise way and subjected rules of conduct to generalizable regulations—procedures that have sometimes been subsumed under Max Weber’s notions of bureaucratization of social power.33 More recently, a growing number of studies have countered this conclusion, arguing that many social changes can be explained less by the adoption of writing itself than by the enforcement of specific, though not always rational, techniques associated with the conventions of writing.34
The records of heretofore unwritten laws like Weistümer and deposition records have until now been of interest less in the context of the process of textualization than as remnants of their unwritten origins. They have sometimes served as sources in works on rituals, procedures, and mnemonic aids for the unwritten transfer of knowledge, as well as in studies of the interdependencies between elite and folk culture.35 Especially in studies inspired by the works of Emmanuel Le Roy Ladurie and Carlo Ginzburg, witness statements function as access points for the study of the authentic oral voices of people from social classes that hardly ever produced written documents themselves.36 Such research frequently mentioned, but ultimately evaded, the fundamental problem that medieval orality is accessible only in the form of written records. Most research has failed to treat such “sources of orality” as witnesses of a changing culture of writing, and it has scarcely considered when particular types of such records appeared, what contemporary recordkeeping needs they filled, or how their composition changed. Asking such questions will not entirely resolve the problem that medieval orality can be accessed only in written form. Yet such questions make it easier to grasp the accompanying epistemological difficulties. The written records no longer merely appear as transcriptions of oral statements that “were real” but rather establish points of entry into the question of how the development of written culture was impacted by the understanding of orality. This raises the question of how much the picture of the oral culture that preceded the process of textualization was itself formed by this process.
A Diverse Political Landscape
The present study deals with source material from an area that today lies in Switzerland; it is bounded by Lake Geneva in the west, the vicinity of the city of Zürich in the east, and the mountain ranges of the Jura to the north and the foothills of the Alps to the south. Although today it is united in a single nation-state, this region has seldom been treated as such in medieval research,37 for before 1500 it displayed great political and cultural diversity. This very diversity provides a strategic research opportunity. Here, the procedures for the establishment of unwritten law can be studied in their interactions with different lordship structures, styles of administration, and political cultures. Here I will delineate a few important structural features of this region, as well as some of its political and social developments.
Church administration did not originally treat this territory as a unified region, since it included the far-flung archbishoprics of Vienne in Provence (Geneva), Besançon in the French Jura (Lausanne and Basel), and Mainz in the German Rhineland (Constance). Similarly, different parts of the region had different geographic orientations with regard to long-distance trade, which bound the region of Zürich mainly with Swabia and Lombardy, while the area west of Bern was mainly connected with Burgundy and Provence.38 None of these geographic divisions corresponded with linguistic boundaries. In the eastern and central parts of the region, German dialects were spoken; in the west, Romance vernaculars. The latter included two different language groups: French (langue d’oil) in the northwest and several Franco-Provençal dialects in the southwest. While Latin remained the language of government in Franco-Provençal areas until the sixteenth century, in the rest of the region under examination it had already been displaced by German and French written languages for governance purposes during the fourteenth century.39
Political Authorities
In political terms the region was unified, if only because it belonged to the Holy Roman Empire. Indeed, imperial affiliation played a role in the perception of legitimate rule that should not be underestimated. In the end power relations were primarily defined through the numerous regional and local power complexes (Herrschaftskomplexe) that had a large amount of de facto independence. In the course of the late Middle Ages, only two of these lordships established a claim to control over relatively extensive territories, two families of counts who had maintained a perpetual rivalry since the thirteenth century: the House of Savoy and the Habsburgs. In the west, the counts of Savoy (later titled the dukes of Savoy) built a territorial power complex on both sides of the Alps to which belonged both present-day French Savoy and present-day Italian Piedmont. (This territory would form the basis for the establishment of an Italian nation-state in the nineteenth century.) The late medieval power complex of the dukes of Savoy is considered to have been one of the most strongly centralized on the European continent, and it anticipated developments that first filtered through to the remaining princes of the empire during the early modern period.40 By 1285 the counts of Savoy had already substantially succeeded in binding as vassals the majority of the local nobility in the western part of the area under examination (namely in Chablais on Lake Geneva and to the north in the Pays de Vaud). Initially, fundamentally similar developments marked the formation of the lordship of the Habsburgs in the oldest set of holdings of this dynasty, which surrounded the actual Habsburg castle situated in the east of the area under examination. In the transition from the Middle Ages to the early modern era, the Habsburgs accomplished an unequaled ascendancy from territorial lords to imperial dynasty, and—with lordship over the Netherlands, Spain, and the American vice-royalties—they were on their way to worldwide lordship. In the shadow of these developments, the integration of the Habsburg territories that lay in the region under examination, the so-called Vorlande, slowed, and they were finally disbanded in the fifteenth century, except for some leftover territories.41
Partially due to the power vacuum left in the wake of the Habsburgs’ retreat from the region, and beginning at the transition from the fourteenth to the fifteenth
