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Introduction

Law is, in the modern conception, inextricably linked with writing. Whether we consult legislation, fill out forms, or deal with stacks of files, we cannot imagine contemporary legal life without written documents. By contrast, late medieval law, which was conveyed through speech instead of through writing, has an exotic allure that has long fascinated researchers. In the midnineteenth century, Jacob Grimm published a collection of late medieval records of local law—called Weistümer—that was scarcely less comprehensive than his famous collection of fairytales.¹ As with the fairytales, Grimm assumed that, before their transcription, people had handed these down orally from time immemorial. He felt his understanding was supported by the poetic introductory passages of the Weistümer that depicted ritualized assemblies in which the lord of a village summoned his peasants and required them to report the law from memory.

Many of Grimm’s assumptions have long since been refuted, as unwritten legal culture has begun to attract new attention. A number of historical and social theories that have emerged since the 1960s ascribe to the transition from orality to literacy a key function in the process of modernization. Writing is now highlighted as a prerequisite for the forms of organization and the dissemination of knowledge, including the communication of regulations, without which modern society would be inconceivable. As a rule, this school of thought adopts orality and literacy as a dialectical pair by which one can differentiate traditional from modern society, and it elevates the latter to the telos of history. Traditional societies are no longer characterized as merely static, religious, and collective, but also as oral, and modern societies are no longer seen only as dynamic, secular, and individualistic, but also as literate. It became widely accepted to claim that in the societies of the so-called Third World, this impulse toward modernization is only beginning, while it has been operating in Western societies since the Middle Ages through the proliferation of writing, printed books, and alphabetization. Ultimately, the process by which writing spread at the close of the Middle Ages has come to serve as a model of political development, and the oral society of the Middle Ages has functioned as a counterpoint to the modern. Critics of modernization see this as a golden age in which a culture of consensus reigned in place of modern contentiousness, in which order was preserved by direct encounters between lords and peasants instead of by an anonymous administrative apparatus, and in which the expert knowledge of jurists was considered less important than the moral feeling of a wider population. Yet what do we really know about how less literate societies in the Middle Ages functioned, and about what influences writing actually had on law and the organization of society?

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 and written legal systems has continued relevance in contemporary scholarly debates over the implications of the proliferation of writing—and of new media generally. A different impulse drives this trend in research through historian Michael Clanchy’s groundbreaking work on the proliferation of writing in England at the outset of the central Middle Ages.¹³ Due to Clanchy’s influence on the social anthropologist Jack Goody, Kern’s theories found their way into Goody’s influential The Logic of Writing and the Organization of Society. Goody understood his own research as a contribution to the postcolonial debates over the cause of economic and political inequities between industrial states and the so-called Third World. Goody countered theories that explained the north–south divide using ethnic differences. Regardless of ethnicity, he argued, the use of writing promotes the development of structurally similar mental, economic, and social processes and makes possible the transformation of traditional into modern societies. Goody’s work can be read as the theoretical foundation for literacy efforts as an instrument of development politics, a banner which the United Nations and many non-governmental organizations have rallied to since the 1960s.

Goody’s picture of non-writing societies rests on a combination of Kern’s thought, which he cites in detail, and the findings of ancient history and social-anthropological writings on non-writing African societies in the twentieth century.¹⁴ In Goody’s view, written records granted the law an autonomous status and made systematic analysis and conceptual development more feasible.¹⁵ In contrast, for societies that seldom or never used writing, law was amalgamated with customs, morality, and tradition, so that past and present, longstanding precedent and contemporary norms merged seamlessly with one another.¹⁶ The old unwritten law, which Grimm understood as peculiar to a Germanic folk culture, and which Kern explained as a common phenomenon of early medieval mindsets, seem to Goody to be a component of a universal legal culture in non-writing societies. Critics have accused Goody of championing the cultural superiority of the West, since he places Third World societies at a stage of development that Western society had already left behind by the end of the Middle Ages.¹⁷ In the ensuing debates, perceptions of the Middle Ages and its legal culture took center stage in reflections about modernity, modernization, and strategies for political development.

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.

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 century, several urban communes in the east acquired territorial lordships through purchase and conquest. The cities of Bern, Zürich, and Luzern, which formed a loose alliance through the Swiss Confederacy, played a leading role in this process. Like noble lords or ecclesiastical institutions, the cities thought of their possessions as lordships and the possessions’ inhabitants as subjects.⁴² They built territorial complexes that were among the most extensive urban dominions north of the Alps and had their closest parallels in the contadi of Italian cities.⁴³ In many cases, the cities contented themselves with a kind of overlordship supervising their hinterlands that entailed primarily the right to exercise supreme judicial authority, collect property taxes, and levy troops. By contrast, local and mid-level judicial rights remained with local lords, many of whom were also influential citizens of the cities in question.

Despite the successful expansion of the Savoyards and the Swiss confederate cities, numerous small lordships asserted themselves through the end of the fifteenth century.⁴⁴ They not only escaped incorporation into large territorial power complexes but also accumulated local lordship rights and built territories around themselves on a smaller scale. Among them were bishoprics such as Basel and Lausanne; monastic foundations such as the Cluniac priories of Romainmôtier and Payerne and the Benedictine abbey of Einsiedeln; and institutions like the Grossmünster college of canons in Zürich.⁴⁵ The category also included large autonomous noble lordships, such as those of the lords of Chalon, who belonged to the ranks of French princes,⁴⁶ the counts of Neuchâtel and Gruyère, and the barons of Hallwil.⁴⁷ Also notable in this context is a phenomenon peculiar to the region that requires assessment: the rural communal entities, such as Uri, Schwyz, and Unterwalden, which emerged as autonomous political powers exercising lordship over neighboring entities.⁴⁸ This was certainly an important local phenomenon, but its significance as the source of a “peasant state” has been overemphasized in Swiss national history.

The complexity of these political structures rests on the fact that, in many cases, claims of lordship overlapped on a local level. Even the successful territorial power complexes often divided their lordship of individual villages with potential rivals. The delineations of such rights were highly complicated, because local and regional lordships formed ties of dependence with one another through the granting of lordship rights as fiefs and pledges, and these ties manifested somewhat differently in each place. Moreover, factions among the peasants within a village were often bound up in clientage relationships with lordly officials, who in turn were bound up with greater lords.⁴⁹ Under these circumstances, the regulation of local legal relationships often fulfilled functions that later, in modern states, became primarily the affairs of capital cities and high diplomacy; the village was the central object of and site for conflicts between rival lordships.

Intensifying Lordship

The administrative systems of the different power complexes experienced similar developments, though they also exhibited marked regional variations and proceeded at different rates of development. Greater lordships consolidated and standardized legal, military, and fiscal systems in their regions of influence. In contrast to older, personal networks of vassals and followers, new administrative systems fashioned themselves on territorial organizational principles.⁵⁰ They supported themselves through longstanding official posts, the salaried holders of which were responsible for defined geographic regions. Thus by the thirteenth century, the Savoyards allocated the local lordships within their territories to castellanies, entrusting their administration to important supporters. At the middle level, the castellans of the territory were under the control of the Savoyard ballivate of Vaud or Chablais and eventually the central Savoyard courtly administration. From around 1400, cities also subdivided their territorial administrations into districts, each of which fell under the responsibility of a territorial steward (Landvogt) recruited from the urban elite.⁵¹ Eventually, administrative duties in the service of a greater noble lord and his knightly followers offered better prospects for wealth and prestige than the traditional exercise of local rights of lordship.⁵² While the social ruling class of the area under consideration still consisted to a considerable extent of relatively autonomous local lords at the beginning of the thirteenth century, by the end of the late Middle Ages these appeared ever more distinctly as a service aristocracy, into which members of the urban ruling classes could also ascend.

These developments resulted in far-reaching changes at the local level of the villages.⁵³ Small, local lordship complexes were increasingly incorporated into large territories or used by members of the urban upper classes as negotiable investments. In both cases lordship rights were in practice increasingly exercised by officials who had often been recruited from the ranks of the local inhabitants.⁵⁴ In everyday life, the exercise of lordship appeared less often in conjunction with lords than with their office-holding dependents. The retreat of local lords from the villages and the new, increasingly collective methods of production helped to raise collective or communal forms of organization—which were carried out by the local inhabitants themselves—to a higher political-legal status.⁵⁵ Local communal institutions sometimes functioned as the means for enforcing lordly demands, but sometimes also as substrates of resistance by peasant populations and especially by village ruling classes. Communes often bought rights to taxation or to legal authority from their lords. Subsequently, communes functioned as de facto lords over their own members—as communal holders of taxation and regulatory rights.⁵⁶

After the economic and demographic crises of the second half of the fourteenth century, many villages switched to forms of production that were focused less on self-sufficiency than on urban markets. This led to specialization in the production of particular goods like wine, meat, and raw manufacturing materials. As a consequence, rural producers also turned to purchases from markets to meet their everyday needs.⁵⁷ From this arose both new possibilities for profit and new risks of poverty, which together heightened the social and economic inequalities in village society.⁵⁸ Lordship institutions or individual lordly officers often played important roles as intermediaries between rural producers and urban markets, serving as creditors and brokers.⁵⁹ This resulted in many interconnections between relationships of lordship and economic dependency. How this affected the implementation of local lordship rights remains to be examined.

The new ruling class made up of officials and members of the territorial power complexes became the agents of an administrative culture characterized by specific practices and concepts of order that went through fundamental changes. Between the thirteenth and fifteenth centuries, administrative specialists adopted increasingly elaborate writing techniques; borrowed academic methods for the determination, interpretation, and enforcement of rules; and developed a new understanding of order. From the early thirteenth century, this can be discerned first of all in attempts by church institutions to document local lordship rights systematically in writing. From the end of the century, the Savoyard administration, which had often modeled itself after northern Italian city administrations, took a leading role in the implementation of new administrative techniques. Here writing also increased the control of individual operations that were carried out through the law. Before 1300 the Savoyards had already assembled numerous lists of goods and services and developed a complex bookkeeping system for the finances of individual officials; they began to manage their archives systematically around the end of the fourteenth century.⁶⁰ Such techniques arrived in other power complexes after a delay of sometimes several decades. Likewise, Italian and Provençal influence is responsible for the fact that notarial practice was already widespread in the fourteenth century in the western part of the region under examination, while in the east it was only during the early modern period that it gained similar significance.⁶¹

Regardless of the spread of notaries, there is a visible and common tendency around 1400 throughout the area under examination to document in writing the business dealings of a large portion of the population, and to make possible ever more systematic control by the lordship’s administration. In this context, even smaller power complexes increasingly relied on the service of administrative specialists, who often boasted at least a rudimentary university education.⁶² These developments cannot be described merely as “administrative 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.

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.