Against the backdrop of this reception history, Jacob Grimm’s theories suggest new perspectives in scholarly discussion regarding at least three different questions: How should we understand the unwritten law of the Middle Ages? How did less literate local societies of the Middle Ages organize themselves? And how did these societies change in the context of the process of textualization? The subjects of these central problems will be broached briefly below.
What Was Oral Law?
From the second half of the twentieth century, legal historians began to express ever-increasing reservations about Grimm and Kern’s depiction of medieval legal models—though admittedly they were not heard outside of a specialized circle. Several works, for example, leveled the criticism that the concept of a Middle Ages oriented toward “good, old law” rested on a biased choice of the legal practices considered. Grimm and Kern excluded from their research phenomena they saw as forerunners of modern practices, although these were often recorded earlier than many of the examples they used in describing “good, old law.” They disregarded, for example, the fact that medieval lords deliberately established and regularly renewed local regulations through grants of privileges, as did cities through the use of statutes.18
It is especially difficult to comprehend why Grimm and Kern excluded from their research early forms of recourse to Roman and canon law, because the very concept of the old legal customs or the longa consuetudo on which they built their models of a folk customary law is itself derived from Roman law.19 Alain Boureau has recently shown how specialists in learned law applied the concept of consuetudo to debates over church law in the twelfth century in order to record norms of quite different kinds in collections called coutumiers and to collect them in a unified form as complements to written church law (la loi).20 As Boureau concisely sums up, “The coutumier is custom’s cunning homage to the law.”21 In the early 1970s, Karl Kroeschell took an even more radical stance regarding the use of the concept of consuetudo in secular law. He maintained that the description of a norm as a legal custom primarily expressed a desire for it to be categorized as learned law and accordingly indicates almost nothing about its origin or about the reason for its validity outside the categories appropriate to learned law.22
Kroeschell’s study of actual court cases found that, at least for the early and central Middle Ages, it is possible to speak at most of individual legal customs but not of a coherent body of customary law. Courts did not “find” law in the sense of recovering or remembering preexistent rules in order to apply them subsequently.23 In that sense, law was substantially inherent in formally negotiated verdicts and agreements from individual cases.24 In her work on early medieval case law, Janet Nelson confirmed these findings and stated more emphatically that Kern’s “good, old law” was simply a myth.25
Kroeschell did not attempt to refute Grimm and Kern’s overall thesis. In fact, his own conclusion is almost a paradox: he could not produce any concept of an old customary law in the case law of the early Middle Ages that was not already influenced by the jus commune. Despite this, he accepted without question that the good, old law was constantly invoked in the early sixteenth century, not least by peasants who were rebelling against new lordly impositions.26 To the extent that works on territorial legal orders of the fourteenth to sixteenth centuries take any notice of Kroeschell’s findings, they dismiss it as a problem of transmission. According to this line of thought, a peasant legal consciousness (which, as such, is assumed to be particularly traditional) first shows up in later sources that reflected a greater number of statements by representatives of the lower classes.27
The new conclusions of legal-historical research, according to which unwritten law was not merely displaced in the course of the late Middle Ages but also subject to radically new understandings, have only received peripheral notice in most scholarly literature.28 The most recent studies continue to organize themselves according to a dichotomy between “old” and “new” law. This obscures the fact that the legal culture and lordship of the late Middle Ages developed dynamically, despite our temptation to label them as “still oral” or “already written.”
Approaches to the Organization of Local Communities
Especially in German-speaking research on rural communities of the late Middle Ages, the reception of Grimm and Kern coalesced into a methodology that appears quite idiosyncratic from a modern and internationally comparative perspective. In this regard, Otto Brunner’s work of the 1930s has proven formative—to an almost tragic degree. Brunner espoused the view that late medieval legal regulations, because they represented the direct expressions of popular knowledge, were held much more deeply than contemporary laws, and therefore were virtually ontologically alien to a modern understanding.29 Accordingly, Brunner determinedly declined to apply any modern conceptual models of state power or of social and economic classes to the study of rural society. Instead, he advocated a methodology that focused on clarifying the concepts and relational and organizational categories in contemporaneous legal documents. For example, he believed that, instead of focusing on social inequality, research should treat the relationship between lords and their dependents as one of reciprocity, a concept that medieval legal documents place in the foreground. According to Brunner, such lordship relations are not congruent with a modern conception of power but must be understood according to the late medieval conception of an exchange, in which the lord supplies protection and the dependents supply loyalty.
In his persuasive critique of Brunner’s work, Gadi Algazi has demonstrated that Brunner interpreted these late medieval legal categories in a most imprecise way, and that the analysis was guided by the authoritative political ideology Brunner gleaned from his time as an active member of the Nazi Party (NSDAP).30 Equally serious is the fact that, in the long run, Brunner’s work undergirded a research tradition that 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.
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