progress” in the sense of an ever more efficient domination. They were bound up with more complicated processes, such as the implementation of new balances of power and new ways of negotiating the law and order of society.
Legal Systems
The textualization of law could take many forms that differed in details. Most of the territory under examination recognized what previous research has categorized as customary law.63 Customary law can most easily be described ex negativo as the totality of rules that were neither defined by Roman and canonical law—the jus commune—nor enacted by established authorities. In point of fact, it included norms that not only varied from place to place but also were not necessarily regarded as part of a unified system in a given place.
Around 1300, the southwestern portion of the region was the first to receive learned Roman and canon law. This expressed itself first in the borrowing of several principles, concepts, and procedural techniques. Among the courts of lay lords, only those of the Savoyards switched over; they systematically implemented regulations covered in the corpus of Roman law. One exception were the Savoyard courts in the ballivate of Vaud, which recognized the regional unwritten legal customs (a privilege they also granted to the Aosta Valley) even when these ran contrary to Roman law. The Savoyards may have given Vaud this special treatment earlier, but in any case it was confirmed in 1373 as a chartered and in fact widely respected privilege.64
The legal systems of those cities that enjoyed far-reaching autonomy relied first and foremost on statutes that the city councils had deliberately enacted—sometimes in explicit opposition to existing norms.65 To what extent such statutes should conform to or be supplementary to either the jus commune or unwritten legal customs was always a matter for debate.66 Because of this, the legal customs of autonomous cities were only rarely written down. The cities behaved quite differently regarding the administration of their rural subject territories, for which they usually did not establish statutes comparable to the urban ones before the sixteenth century.67 When the local rights of such subject territories were even listed in writing before that time, they were treated as customs, and their validity was therefore founded on the fact that they had already been valid before their description.
The situation of the Savoyards’ Pays de Vaud and the rural territories of cities within the Swiss Confederation was essentially the same as that of the territories of the Habsburgs and the smaller nobles and ecclesiastical lords. To these lordships belonged, along with rural estates, a few cities which, despite their considerable size, achieved only very limited autonomy. Examples of this can be seen in Neuchâtel, which belonged to the duke of the same name, or in Lausanne, over which the local bishops ruled. Up to the end of the Middle Ages, the local legal rules for such cities were primarily customs, much as in the villages.68 These unwritten rules, in all their bewildering diversity; the attempts to record and systematize them; and the cultural and social implications of these processes are among the principal themes of this book.
Sources and Methodology
Documents form the unavoidable point of departure for this study. It is neither factually nor methodologically justifiable to present a completely illiterate society as the starting point for a study of the process by which writing spread. In fact, writing had long been present in the region of the foothills of the Alps, although before the thirteenth century it was not employed primarily for political and legal functions. The only way methodologically to avoid replicating the same old (and inaccurate) picture of a timeless oral culture is to study documents that detail how oral communication functioned concretely at particular points in time. Here I will make a few preliminary remarks regarding the transmission of and previous research on such documents, as well as on the central questions and methods of this study.
Documents
The delineation of unwritten law was a component of innumerable disputes both in and out of court, and accordingly could take diverse forms. These were often markedly situational and implicit. In order to detect long-term developments precisely and systematically, this study concentrates on two specific types of documents: Weistümer and witness deposition records (Kundschaften). These documents were created and used in nearly all the lordships of the region during the entire period under study—although in dramatically changing forms. They are connected to a central process in the delineation of unwritten law. Weistümer concern the so-called declaration procedures (Weisungen), that is the official promulgation of local legal regulations before manorial court assemblies (Latin: placita) to which local lords regularly summoned the inhabitants of their villages (or cities, if they were strongly under the control of the lord). Most Weistümer, only a few pages long, contain lists of explicit rules pertaining to the organization of the village, such as the arrangement of farmland, manorial obligations, and aspects of criminal law. In addition, many Weistümer contain descriptions of the reasons for and process of the declaration procedure itself. By contrast, witness deposition records are concerned with the written results of witness examinations. Primarily higher courts and administrative entities carried these out in order to confirm the content or validity of particular unwritten norms in view of current events. The answers of the witnesses contain, along with explicit rules, diverse examples of compliance with or disregard for rules; accordingly, these documents could easily number several hundred pages, especially at the end of the period under study.
In research to date, the two types of documents have received strikingly different amounts of attention. Witness depositions are among the few medieval documents which, as a genre, have not yet been the subject of a greatly specialized study, but many studies of the Weistümer are available, of which several deal with the region under consideration.69 The large printed source collections, many of them begun in the nineteenth century, which encompassed legal documents as they were defined at the time, included witness depositions only rarely70 but Weistümer quite extensively.71 The assumption that Weistümer are records of oral statements misled many editors into being content with reproducing single versions that they deemed (on more or less valid grounds) to be the especially direct reflections of orality. Thus, in edited collections as in analytical research, it was seldom noted that many Weistümer exist in numerous late medieval redactions that differ from one another to varying degrees in both form and content. Precisely such discrepancies between variants furnish information about how writing was used. Above all, legal and sociohistorical investigations of the regulations contained in the Weistümer stand at the center of conventional Weistum research. It is only recently that scattered institutional72 and procedural aspects of village courts,73 or related aspects of writing culture such as the creation and use of the documents, which are of primary interest here, have attracted attention.74
For this study, the archival documents were indispensable. The differing availability of published editions suggested different strategies for examining Weistümer and witness depositions which may be described as intensive and extensive, respectively. In the case of the Weistümer, it would serve no purpose to add to the high number of examples available in printed editions. Yet new insights were revealed in the process of digging deeply into the Weistum versions of selected power complexes, uncovering all extant drafts, redactions, and copies to reconstruct the process by which Weistümer were adapted in different situations. In the case of the witness depositions, it was more worthwhile to explore examples that were as numerous and widely dispersed as possible. In the end, a corpus of more than 150 court cases, which included thousands of witness statements, was established. To support this exploration into how the documents were actually made and used, information from charters, court records, land lists, archival registers, and chronicles were also incorporated. The materials used also include a few “lucky finds” yielded through systematic searches in the archives of selected smaller and greater lordships, namely those of the dukes of Savoy, the cities of Bern and Zürich, the bishopric of Lausanne, the Cluniac priory of Romainmôtier, the Zürich Grossmünster college of canons and—as much as they are extant—the local nobles.
