Method and Structure of the Book
Each of the following chapters begins with an introduction to the particular research problem and the relevant historiographic and methodological questions. Here, however, we can lay out three main and often overlapping themes of the study. First is the establishment of unwritten norms, second is the process of recording them in writing, and third is the later use of these records.
To the first area of research belong the diverse procedures through which the actors claimed adherence to legal regulations and by which they disputed their definitions or contents. In the particular case of lordship rights, whose holders often lived far from the place in question, the problems start with the question of the local actors who actually exercised lordly rights and the interests they had in relation to such rights. The negotiation of unwritten law allows us to observe the practice of lordship on the ground between neighbors and in village courts as well as before high-ranking officials in the central courts of the great power complexes. These different levels of practice interacted closely during the production of the Weistümer and the witness depositions. This is because, at that point, the statements of residents about local law were often recorded with a view toward handling conflicts at the highest levels of the lordship organization and analyzed in the offices of the highest administrative agencies. Such procedures raise the important question of how actors of different social affiliations participated in the negotiation of law. It is also necessary to bear in mind Bourdieu’s critique of traditional understandings of rules.75 As with all explicit rules, local unwritten legal rules did not simply govern the actual behavior of actors but often served as a formal justification of behaviors that arose from altogether different motives, ranging from self-interest to extralegal moral (in the broadest sense) principles.76 Methodologically, the reconstruction of everyday use of legal norms requires examination of the conventions by which the documents that describe such practices were generated.
Thus we have arrived at the second research theme, the techniques of the written recording and documentary presentation of law. Medieval literary scholarship has long discussed the theory that for written versions of oral expressions to be credible, the writer must use elaborate methods of textual composition and recontextualize the statement.77 It is therefore necessary to study the changes in writing culture, in particular the techniques for composing and revising Weistümer and witness depositions, including their material forms; the formatting and layout of documents;78 the use of stylistic figures, patterns of speech, and topoi; and finally the methods of editorial revision and compilation of, and commentary on, records that had already been created. Such techniques developed in close relationship with changing cultural perceptions—not only of the legal order itself but also of social hierarchies, the traits of good lordship, and the meaning of the past.79 The development of innovative techniques for composing documents cannot be explained simply in terms of reactive adaptations to new conceptions of order; they also actively contributed to producing and shaping such conceptions. Administrative documents are wrongly seen as unimaginative. In their admittedly bland and sober way, they spread a rich imaginaire of legal order, historical origins, and social harmony.
Studying how Weistümer and witness deposition records were created requires different methodological approaches that take into account the specific origins of these two types of documents. Weistümer were notably “fluid” texts, containing sediments of different periods. Their assembly served to establish legal regulations permanently and authoritatively. Precisely because of this, they had to be regularly recopied, newly arranged, and brought into compliance with other records of local law. A study of the changes in such organizing principles requires the in-depth examination of different families of extant documents in which different phases of editorial arrangement become discernable. In contrast, witness deposition records were usually generated all at once, during a single procedure for establishing a given law, and as a consequence were not revised later (although there are significant exceptions). Thus each set of witness depositions fundamentally reflects the creation and production techniques of its own time of origin, such that the material can be placed in chronological sequence to detect developments over time.
The third research theme examines the use of the legal records, once they had been created, in legal and political conflicts. During the last decade it has been shown—although usually with examples from literary texts—that medieval reading habits were fundamentally different from modern ones.80 Legal-administrative documents, too, were subjected to a broad spectrum of reception and interpretation, from the discrete techniques of their arrangement and preservation in administrative offices to the ritualized forms of their public presentation.81 A more exact picture of these still fairly unknown deployments of writing can be gained from contemporaneous descriptions of use and the material aspects of the documents themselves. We must also examine the genealogies of administrative writing practices, which in part were based on liturgical and theological practices and thus bound up with largely implicit but powerful conceptions of order. More recent studies of such transfers of cultural techniques suggest a thesis that this book takes further: namely, that late medieval administration and law appropriated not only writing practices stemming from the realms of theology and liturgy but also assumptions inherent to those practices, such as those regarding the meaning of order, society, and communication.82
The different methods used in this study tend to limit one another. The examination of the techniques and topoi used to represent laws highlights the seldom-acknowledged difficulties and limits of Weistümer and witness deposition records as sources for everyday practice; yet analyzing how the documents were used puts constraints on the interpretation of their legal contents. Investigations into the production and uses of extant documents not only reveal a field of past human practice but also provide new perspectives on the methodology for an adequate interpretation of those documents by modern historians. The latter problems are constantly at stake in the discussion of medieval forms of the use of writing. They can, therefore, not be dealt with in this study in the usual way, with a short discussion of “source criticism.”
This study begins with two chapters that discuss procedures for dealing with local norms. Chapter 1 describes the development of law declarations (Weisungen) and witness depositions as formalized processes of establishing the law. In contrast, Chapter 2 discusses how individual actors debated, delegated, practiced, and enforced the law at local and overarching territorial levels. We next take up the study of changes in writing, production, and editing operations that undergirded the creation and arrangement of witness depositions (Chapter 3) and Weistümer (Chapter 4). Chapter 5 returns to the forms of negotiating the law, but it focuses on the ways previously produced records were used both as material objects for display and as repositories for textual contents. This analysis introduces the subject of the interrelationship between changes in lordship organizations and changes in the use of writing, which not only involved an upheaval in the ways of understanding law but also produced new concepts of oral legal culture and of the meaning of the transition from orality to literacy.
CHAPTER 1
Two Inquiry Procedures
Perhaps the best-known description of a ritualized inquiry procedure regarding unwritten law appears in the fourteenth-century Weistum of villages belonging to the cloister of Engelberg in Aargau. Jacob Grimm placed this account at the beginning of his collection of Weistümer. The abbot of Engelberg was to appear before the village court in the company of a chaplain, his provost, the parish priest of the village of Stans, and a knight. In addition, he was to bring along a hunting falcon, a dog trained for hunting birds, and two
