LITMIR.BIZ

      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

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