Germany: Municipal Laws; Counts, Dukes, and Princes; The Emperor’s Laws; The Sachsenspiegel

In central Europe north of the Alps, the Holy Roman Empire— which had become “Germanic” through its ruling dynasties and as a result of the mechanisms for electing the emperor—was divided and fragmented into a number of political entities: Austria, which cen­tered on Vienna; to the south, Styria, Carinthia, and the Tyrol; to­ward the west, Bavaria, Baden-Wiirttemberg, and Hesse; returning east then north, Saxony, Bohemia, Moravia, Poland, East Prussia; to the north, the lands of Jutland (Denmark) that faced the great Scandi­navian Peninsula.

The sources use the synthetic name of Alamannia for this conglom­eration of lands and political systems. In this central area of continen­tal Europe there were prosperous cities with a well-developed civic life; cities that lived by their ancient customary laws and were gov­erned by city councils that had played a vital role in urban develop­ment since the twelfth century. Furthermore, the cities’ customary laws were enriched by and intertwined with the corporate rules of a variety of powerful professional, trade, and other associations. At times the trade corporations (Ziinfte) created conflict, but in general they contributed much to the richness of urban life.

The dynamics of the relations of the German cities and their sur­rounding territories were different from those of the Italian and Provenςal cities. In Italy every city commanded a surrounding agrar­ian and economic space, great or small, that was articulated into a suburbium and suburbia, smaller dependent cites and towns, and modest villages; in Alamannia municipal jurisdiction reached no fur­ther than the city limits. Beyond the city walls there was the country­side, and the countryside was ruled by feudal and nonfeudal sei­gniory. Hence German lands gave rise to the proverb, “City air makes man free,” since it was only within the city’s walls that one could shake off submission to a feudal, territorial, or landed lord.

Another difference between German and north-central Italian lands was the relationship between the cities and the highest author­ity. In Germany, as in most of Europe (southern Italy included), local norms had to be recognized or obtain a title of validity from the em­peror or from a lord (prince, count, or whatever). Thus, to cite a few examples, Frederick I Barbarossa conceded the “privilege” of recogni­tion to Augsburg in 1156, to Bremen in 1186, to Lubeck in 1188, and to Hamburg in 1189. Frederick II granted similar “recognition” to Nu­remberg in 1219, Lubeck (again) in 1226, and Vienna in 1237 and 1247. Prince Berthold of Zahringen gave an analogous privilege to Frei­burg im Breisgau before 1180, as did Duke Henry I of Brabant to Brussels in 1229 and Duke Otto of Merano to Innsbruck in 1239.

Here as elsewhere the municipal law, validated by privileges, might be transferred and transplanted to other cities. Thus in 1261 and 1295 Breslau adopted the law of Magdeburg. This situation was not pecu­liar to Alamannia-, analogous cases can be found in other regions of Europe—for example, in Sicily, where, as we have seen, the entire “Ancient Text” of the Consuetudines of Messina passed to Trapani to become that city’s law.

In Alamannia as elsewhere, there were two levels of local law. Apart from the city statuta and superior to them was a territorial law of broader application. In certain times and places this occurred within a single political entity; on other occasions (in France, for in­stance) it involved an entire territory and a variety of political entities within that territory. In the first case such provisions emanated from a count, duke, or prince, as with the Pfahlburgergesetze of Frankfurt am Main promulgated in 1333 and 1341. In the second case, the em­peror established a law for the lords and the cities of Germany. There were many of these, some of them of great importance. Frederick II was responsible for two famous measures, the Confoederatio cum prin­cipibus ecclesiasticis of 1220 and the Statutum in favorem principum (Ger­man “princes,” of course) of 1231—32.

An even more famous example is the so-called “Golden Bull” (a name that dates from the fifteenth century), the technical title of which, Omnem regnum, came from its first words. The bull was promulgated in 1356 by Charles IV after he had been crowned em­peror by the pope in Rome and had returned to German lands. The measure established the procedures for the election of the emperor and granted particular powers, by privilege, to certain princes, seven of whom became the “great electors” of the emperor and the only persons entitled to participate in imperial elections. These seven were the ecclesiastical princes (archbishops) of Mainz, Trier, and Cologne and the lay princes of the Rheinpfalz (the Rheinland and the Palati­nate), Saxony, Brandenburg, and Bohemia.

As in French lands under customary law, there were private jurists in Germany who collected and elaborated customary legal materials. We have seen in the pays de droit coutumier anonymous works such as the Grand Coutumier or the Summa de Iegibus Normandie (1254-ca. 1258) and collections written by jurists of solid learning and high local renown such as the famous Coutumes de Beaumanoir (1283) written by Philippe de Beaumanoir. A similar work in Alamannia, the Sachsen- Spiegel_y or “Saxon Mirror,” of Eike von Repgow, enjoyed such ex­traordinary success that its author was taken to be a more important jurist than he in fact was.

Eike von Repgow’s Sachsenspiegel (Saxon Mirror), which was dedi­cated to Count Hoyer von Falkenstein, followed the structure of the Decretals to organize laws of various provenance, some of which were regional or municipal and others feudal or seigniorial. The original nucleus of the work probably dates from the years around 1235. Be­tween 1265 and 1270 the work was translated into German, and it cir­culated well beyond the borders of Saxony to become the “law” on which all the judges of Germany based their decisions.

To move beyond municipal and territorial law, except for the few imperial provisions that specifically regarded the structures of the em­pire or the relations between the imperial crown and the cities or the local lords (or, exceptionally, other limited matters such as river navi­gation or notaries), the ius commune, civil and canon, was not recog­nized as having the force and authority of “positive law” in German lands. At least this was the case until the late fifteenth century, when Roman law was received with a formal act in 1495. After that act, Ro­man law became the “law” whose use was obligatory in the imperial supreme court, the Reichskammergericht. This means that for centu­ries—until 1495—the situation in Alamannia was similar to that in the French pays de droit coutumier.

This is not to say that Roman law was not known and studied in­tently by young Germans who subsequently made use of it in the ac­tivities of their office. We know it to be a fact that as early as the twelfth century German students were always present in sufficient numbers in Bologna to warrant the formation (in the thirteenth cen­tury) of a large corporation of students from German lands, the “Ger­man Nation” (natio teutonica). In the following century this natio grew so large that it became the membrum precipuum of the entire uni­versitas of students from north of the Alps, and it had its own lengthy and detailed Statuta_y written in the mid-fourteenth century.

We also know that toward the late twelfth and early thirteenth cen­turies some clerics who had come to Bologna from Germany to study law (which meant the ius commune, civil and canon) took such an in­terest in the legislative texts of Justinian and of the church that they acquired excellent copies of them, which they took home with them when they returned to Germany.

Everywhere university curricula included the Iectura of Justinian’s Corpus iuris civilis and of the great legislative compilations of the church, the Corpus iuris canonici. Furthermore, although it is true that at times these universities were ephemeral (the University of Cracow disappeared in the fourteenth and fifteenth centuries, for example), that fact should be evaluated in the general framework of the univer­sity schools of the time. A comparison with other universities, Italian and French, shows that they too did not always last.

There is another point: when someone returned to his homeland after years of a difficult separation, after having spent notable sums to study the ius commune in terra aliena (in Bologna, Padua, Perugia, and elsewhere), and perhaps after having escaped perils, even mortal ones, he found it an obvious and natural course to put to use what he had learned. Thus we need to think that the costly and hazardous adventure of law school studies was preordained to be a preparation for a professional activity that relied on valuable acquisitions that could be made only in a specialized school. There are many examples of just this. Among them there is one example—albeit a late one— that has particular relevance because it gives concrete evidence of how the ius commune contributed to a typical experience of ius proprium.

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