From Oral Custom to Written Law: The German Sachsenspiegel

From Oral Custom to Written Law:
The German Sachsenspiegel
Maria Dobozy
Two notable events occurred between 1220 and 1235. First after a 300 year
hiatus, a Jaw-book, the Sachsenspiegel or Saxon Mirror was written for the territory
of Saxony. Second, a decision was made that this law-book, written in Latin, be
translated into the vernacular. Apparently a need for a written codification of custom
was feit, and that need had to be filled with a vernacular text. These facts raise two
questions: How was this Iransformation from oral custom to a written docurnent
accomplished? Why was the vernacular necessary? I shall survey the complexity of
this very Iransformation and attempt to draw a few conclusions.
Written by Eike von Repgow in 1220- 1 235, the vernacular Saxon Mirror is the
beginning of German jurisprudence. Since the Carolingian Ieges, nothing resembling
a collection of territorial customs or laws much less a collection of national ones had
been written in German speaking areas in any language. Eike’s book did not appear in
a vacuum, however, for many vernacular law-books were written in Europe within 150
years after Gratian’s Decrectals appeared, but Eike’s law-book was one ofthe earliest,
and certainly most influential ofthese. In the thirteenth century a vernacularization in
which the Mühlhäuser Rechtsbuch and Saxon Mirror participated was taking place
everywhere in Europe. In France it reached its apex at the end ofthe century with the
Coutumes de Beauvaisis by Philippe de Beaurnanoir. During this same period, lawbooks
were written in Norway, Sweden, and in leeland the well-known Gragcls. 1 But
ofthis enti.re movement, the German Saxon Mirror and its derivatives had considerably
broader, even international influence. Within Germany, the southem territories adjusted
the Saxon Mirror to fit the local customs and to accomrnodate some Roman and
canon law not current in Saxony. Outside ofGermany, Eike’s work enjoyed excellent
reception in centrat and eastem Europe including Po land, Ukraine, Prussia, and Silesia.
The high German translation called the Schwabenspiegel influenced law in Hungary,
and in Bohemia it became the foundation ofCzech law.2
Eike first wrote the Saxon Mirrar in Latin and then translated it into the Elbeastfalian
dialect (Low German) at the express request of his Lord, Count Hoyer of
Falkenstein, a magistrate at the ecclesiastical foundation in Quedlinburg. No one today
1 Medieval Scandinavia. An Encyclopedia, cds. Phillip Pulsiano and Kirsten Wolf (Ncw York:
Garland, 1 99 1 , pp. 383-386.
2 Lexikon des Mittelalters (München: Artemis Verlag, 1 980-), vol. 7, col. 519-521.
FROM ORAL CUSTOM TO WRIITEN LA \V 155
doubts that a Latin version existed, but the territorial law is not extant. Hoyer must
have known Latin, so why did he want the law-book in German? Probably a vemacular
text codifying territorial law and feudal law was much more useful in some way. Since
the law-book was intended as a guide for both the theory and practice of customary
law, it would make sense that a vernacular book did indeed offer advantages over a
Latin text. However, vernacular is more useful only if a complete set of procedures,
rules, gestures and techn.ical language already ex.ists. Everyone knows that oral custom
existed and had functioned for three hundred years, but Iet us see what the concept
means in the case ofthe Saxon Mirror.
Eike’s starting point was oral custom, an inclusive view o f law encompassing
mores, customs and habits. At that time the law, called recht, encompassed both the
subjective and objective aspects of the concept. Since people lived in the law (or
outside when outlawed), it follows that their rights and duties were also expressed by
the same terrn. Since no privilege exists without a corresponding responsibility, it was
the duty ofthe community to know the law, support rectitude, and maintainjustice in
their judicial district. Julius von Planck’s summary elucidates the law’s breadth:
As far as knowledge of the law is concerned, the view in German law is
that the established set of laws had already organized and accounted for
all events of life with the result that the single procedure in every case is
to determine the correct law for each situation.3
This statement implies frrst, that custom, like the spoken word, is a social phenomenon.
Further, custom is the participatory process that finds applications for the law and
safeguards justice. Eike not es the responsibility of the community members in a max.irn
formulated in terms of recht: Swar de man recht vorderet, dar scal he rechtis plegen
unde helpen (Wherever a man demands justice there must he answer to the law and
foster it. Lndr I 60).4 Requiring community cooperation, this maxim is based on the
fact that all landed free males were members ofthe judiciary. They attended the regular
court hearings and when called upon, rendered a judgment by consensus (Lndr I 18).
If consensus on a verdict failed, the law ceased to exist. Thus the law must be
understood as an essential element of community life and consists of a great deal more
than words or written rules.
Although writing the law gives it enormaus authority because its physical
instantiation does not change, it is equally important to realize that the law itselfwas,
at that time, not limited by the written word. In this sense, it is correct to say that the
3 „Was zunächst das Wissen vom Recht angeht, so wird das deutsche Recht durch die Vorstellung
beherrscht, dass durch die bestehende Rechtsordnung alle Vorkommnisse des Lebens im Voraus
fest bestinunt und geordnet seien, dass es also überall nur darauf ankomme, den bestehenden,
richtigen Rechtssatz aufzufinden“ [Julius Wilhelm von Planck, Das deutsche Gerichtsverfahren
im Mittelalter: nach dem Sachsenspiegel und den verwandten Rechtsquellen (Braunschweig,
1 879, reprint Hitdesheim et al.: Olms, 1973) p. 87 (author’s emphasis)] .
4
Citations are from Karl August Eckhardt, Sachsenspiegel Landrecht. Lehnrecht (Monumenta Germaniae
historica. Fontes juris Germanici antiqui, n.s. 1 ) (Göttingen: Musterschmidt, 1973 ( 1933)),
2 vols., p. 1 1 6; citcd hcreafter as Lndr and Lnr.
156 MARIA DoBOZY
law of tradition and custorn with its community of users rernains the foundation of
Eike’s text. He appears to have been thinking in these very terms when he
acknowledged custorn in the rhyrned preface:
Dit recht hebbe ek se/ve nicht irdacht,/ it habbet van aldere an unsik
gebracht/ Unse guden vorevaren (I did not invent this law rnyself, it has
been handed down to us by our just ancestors. Lndr, I. 15 1-3, p. 4 1 .)
Typical of the Saxon Mirrar is this essential elernent of orality – specifically its
concept that law is not confined in the space of a book. Although this irnplies to us that
the book is incomplete, the Jaw itself is not, for it endures beyond the law-book. Eike
established this concept right in the prologue:
Dar umme bidde ek to helpe alle gude Iude, de rechtes geret, of en ienich
rede bejegene, de min dumme sin vermede unde dar dit buk nicht af
sprikt, dat se dat na rechte besceden na erme sinne, so se it rechtest weten.
(Thus I request the support of all law-abiding people who desire
justice. Ifthey encounter a juridical dispute that l have omitted from this
book because ofrny lirnited knowledge, I request that they reach a deterrnination
following the4 law to their best knowledge and discretion. Lndr,
p. 5 1).
Eike teils us not that he rnay have ornitted a part of the Jaw, but rather, he may have
merely omitted an example of a particular type of dispule and for this reason asks that
people follow the legal custorn based on tacit knowledge. Hence oral custom as a fully
equipped formal language and procedure still framed juridical thought and practice for
Eike and his conternporaries. This framework leaves a good deal of roorn for flexibility
of judgment even though that flexibility is considered circurnscribed by oral custorn
and way of life passed on by the forefathers. And since the book is based on this
concept of law, one expects to find evidence ofthe various formal linguistic, gestural
and behavioral cornponents of custorn and law in the text itself.
If what I have just described are the essential elernents of legal activity within
oral custorn, then Eike’s German text rnust have evidence of the transfer ofthis web
onto parchrnent. In addition to Eike’s own Statements, what indicators do we have that
the Saxon Mirrar depends on the vemacular oral heritage with its specialized legal
language?
The practice of law in the courtroom has rnaintained its dependency on the
spoken word throughout the centuries. Especially when the cost of producing documents
was high, all juridical procedures including pleas, charges, contracts, payments,
transfers, oaths, and appeals were conducted orally and certified with the appropriate
gestures. Evidence was also oral in nature because it had to come from a guarantor, an
eye-witness or a witness who recalled inforrnation from rnemory. In addition,judicial
functions were all accomplished in German. Formulaic language for oaths, truces, etc.
was already established along with the formal actions and gestures required. Thus a
working definition of legal custom is an intricate web of acts, gestures and words
according to which community members interact and reach judgments about each
other. In an oral community this web fully equipped its members to apply the law and
FROM ÜRAL CUSTOM TO WRITTEN LA W 157
reach judgments according to accepted procedure.
For an examination of the remnants of orality, comparing Anglo-Saxon (AS)
legal terminology to the earliest manuscripts of Eike’s text is instructive because the
AS reflects a period when the two groups still shared a many elements of Germanie
law. In addition, AS laws are quite comparable because they were barely influenced
by Roman law (in contrast to the Ieges) and continued to be written in the vemacular
up to the mid-eleventh century. The goal here is to locate those terms that have a
specialized legal meaning and not merely to find cognates that followed a parallel
course of phonetic development. This is important because the German legal vocabulary
in the Saxon Mirrar builds completely on popular usage but the legal context
has narrowed the meaning of certain words to build specialized juridical terminology. 5
This means that a legal term has an ordinary meaning and in addition, a specialized
meaning necessary for legal actions.6 A number of such Anglo-Saxon legal equivalents
appear almost immediately even in a very small sampling of texts. I Iist only
a few core terms.7 AS weddian v. „to make a contract, a promise“ corresponds closely
to LG wedde „pledge, guaranty,“ and specifically „court fine.“ AS bot „remedy,
compensation, satisfaction“ andfeohbot „pecuniaty compensation“ correspond to LG
buse „compensation payment.“ Both also imply „atonement, repentance’1 in a religious
sense. The important concept of guardianship also corresponds in terms like AS mundbryce,
„breach of the guardian’s charge,“ MG baimunden „to convict for breach of
guardianship,“ and LG mundete „the ward.“ And finally, AS ordal, LG ordel both
meant „verdict, judgment.“ The purpose of this comparison is not to recover any part
of a common Germanie law, as I am well aware of the difference in time between the
AS laws and the Saxon Mirror. Instead, I wish to indicate, based on the correlations
found, the linguistic pattems which preserved specific legal concepts during the oral
period of j uridical development in the German speaking territories in the thirteenth
century.
A Statement from Edmund li gives us a typical context that one might have
easily found in an eleventh century German document: Gif hwa heonanforD aenigne
man ofslea, Paet he wege sylfDafaehDe (Robertson 8). AS wegan „to carry, weigh,
risk or wager“ corresponds to LG dörren „to dare, wager“ dar he dar sin recht to dun.
Both the cognate verbs AS ofslean and LG siegen refer to homicide, and the nouns AS
faehDe, LG vede, to the lawful blood feud.
Of particular interest are syntactic and metaphorical constructions such as the
ones connected with AS scyldian and LG scu/digen. The most common occurrence of
these verbs is in the meaning „to accuse or charge someone of a misdemeanor or
5 Handw6rterbuch zur deutschen Rechtsgeschichte, eds. Adalbert Erler and Ek.kehard Kaufmann
(Berlin: E. Schrnidt Verlag, 1971), vol. 4, col. 345-360.
6 Ruth Schrnidt-Wiegand ..D er Rechtswortsclratz,“ in Eike von Repgow. Sachsenspiegel Die Wo/jenbutte/
er Bilderhandschrift Cod Guelf 3.1 Aug. 2o. ed. and Irans. Ruth Schrnidt-Wiegand (Berlin:
Akademie Verlag, 1993), vol. 3, pp. 2 1 9-232; hereafter citcd as Eike.
7 Thc following exarnples are taken from The Laws ofthe Kings of Englandfrom Edmund to Henry
!., ed. Agnes J. Robertson (New York: AMS Press, 1925).
158 MARIA DOBOZY
felony“ and is an act that initiates a legal suit. The noun AS scyld „debt, guilt“ corresponds
exactly to LG schuld. The LG verb verschulden, „to owe, to become encumbered“
is the basic concept behind all the penalties so that when a person commits
a harmful or criminal act it encumbers him to make amends or pay in some way. This
is expressed as a proverb, but at its foundation lies a metaphor:: Swe des nachtes korn
stelet, de verschult des galgen (He who steals grain in the night owes the gallows. Lndr
Il 37). Here the thief literally owes his life to the gallows. When adjectival forms are
used, parallel genitive construction is common. For example, where the AS states his
feores scyldig (Robertson 1 03) the MHG has so si he der hant schuldig so that both AS
and MHG mean „culpable, liable, obligated.“8 This type ofterminology covering some
of the salient concepts of law in both languages indicates a complex system of legal
language that included specialized metaphor and legal action.9 Hence the AS examples
artest to the age of specialized legal vocabulary. Examples like these are abundant. 10
Syntax and stock phrases are the second and third characteristics of orality in
our text because they are important indicators of oral thinking within the medium of
the written word. 1 1 On the whole, the language of the Saxon Mirrar tends to be concrete,
preferring metaphors and images to abstract concepts. An example ofwhat may
weil be typical of oral syntax is the promiscuous use of third person singular pronouns
stripperl oftheir antecedents. I n As for example:
A man can think on this one sentence alone, that he judges each one
rightly; he has need of no other law-books. Let him bethink him that he
judge to no man what he would not that he judged to him, if he were
giving the judgment on him.12
This type of usage is genuinely meaningful primarily in the context of speech acts that
are situationally grounded, but they are carried over into written form in the law books.
This type of pronoun use is extremely common in the Saxon Mirrar and much more
frequent there than in literary texts, but Ieads to enormaus ambiguity.
We aver jene sin gut weren eme, er it vor gerichte kome, so bidde he ene
weder keren vor gerichte; weigert he des, he scrie ene dat geruchte an unde
gripe ene an vor sinen def, alse of de dat hanthafte si; wen/ he sek sculdich
hevet gemaket mit der vlucht (But if he wishes to protect his goods lawfully
8 This phrase is cited according to the Mainzer Reichslandfrieden in the Wolfenbüttel manuscript,
in: Eike, vol. 2, p. 46.
9 Other sources of surviving vocabulary of earlier periods are the Maulbergische Glosse containing
individual terms and Schwäbische Trauformel (12th c.) that is comparable in lexicon to AS oaths
of the 9th and I o•h centuries.
1° For a great nurnber of additional examples from the word field oftheft, see J. R. Schwyter, Old
English Legal Language. The Lexical Fie/d ofTheft (Odense: Odense University Press, 1996).
1 1 See additional examples of oral elements in Ruth Schmidt-Wiegand, „Sprache und Stil der
wolfcnbütteler Handschrift,“ in: Eike, vol.3, pp. 201-218.
12 Cited according to Dorothy \Vhitelock’s translation, English Historical Documents, vol. I : 500-
1042 (London: Methuen, 1979). The interprctation regarding pronouns comes from Edward
lrving, personal cornmunication.
FROM ÜRAL CUSTOM TO WRJ1TEN LA W 1 5 9
before it comes to court be shall ask him to return to court; ifhe refuses,then
he may raise the hue and cry and seize him like a thief, as if he were caught
red handed because he made hirnself guilty by fleeing. 13).
Stock phrases like nu vernemet („now hear this“) are typical of oral dissemination and
were most frequently used as organizational markers. In the earliest manuscript,
Quedlinburg, the phrase nu vernemet marked the major divisions within the text. The
frequency of the phrase drops in the later manuscripts but even so, its continued use
is in keeping with the long-continuing practice of orally proclaiming laws, even when
they were first promulgated in written form. The phrase alse hir vore geredet is, (II 71)
refers the reader to a point discussed i n a preceding passage but may indicate the oral
thinking that a passage is earlier or later than the one currently being read, for it is only
the spoken ward that exists in time. However, it is dangerous to draw a categorical
conclusion from these phrases because it is not certain what the phrases meant for
readers at any given point in time. Meanings shift, and it frequently happens that a
Iitera! meaning in the medium of speech becomes a metaphor when written.
The same caveat holds for very old tenns. Some appear to be falling gradually
out ofuse in Eike’s time but when he needs the concept, he provides a definition. For
example, baimunden (v.) he explains is the formal judgment declaring a person a
dishonest guardian. He also defines ganerbe, „the group of all eligible heirs“ to a
property. Attested in a Franconian text of the 91h century, ganerbe continued in use as
a strictly legal term even into the fourteenth century. In addition, terms like MHG mac,
sippe, and buosem are also old. Not surprisingly, all these surviving terms express
family relations and govemance, one of the oldest aspects of law.
Other reflexes of an oral juridical tradition are found in concrete yet visual, and
even metaphorical language. Proverbs have been studied as oral reflexes but often their
age is difficult to establish. Some were composed during the writing or copying of the
Saxon Mirror after Eike’s lifetime. 14 Other, more graphic phrases, such as terms expressing
capital punishment may well be old. For exan1ple: es get im an den hals or de
verschult des galgen. These are not merely a pars pro toto for a hanging, but a vivid
visual insinuation ofthe punishment for those who had seen such public executions.
13 The syntactically meaningful translation: „But if the possessor ofthe article wishes to protect his
goods lawfully before the hearing, he shall ask the claimant to return to court. If the claimant
refuses, then the possessor can raise the hue and cry and seize him like a thief, as if he were caught
red-handed because he has made himselfguilty by fleeing“ according to the Wolfenbüttel manuscript,
Eike, v. l Lndr II 34.
14 Just such a case is the weil known rule for the mill: de ok erst to der malen kumt, de scal erst
malen („He who arrives at the mill first, mills first.“ Lndr Il 59). Such a comrnon sense regulation
could be very old, perhaps imported from Roman law at a very early date and then become a
proverb. Brigitte Janz has found several maxim-like passages to be of recent date; see her
Rechtssprichwörter im Sachsenspiegel. Eine Untersuchung zur Text-Bild-Relation in den Codices
picturati (New York: Peter Lang, 1989) and Ruth Schmidt-Wiegand, „Sprichwörter und Redensarten
aus dem Bereich des Rechts,“ in: Überlieferung. Bewahrung und Gestaltung in der Rechtsgeschichtlichen
Forschung. Festschrift für Ekkehard Kaujinann, eds. Stephan Buchholz, Paul
Mikat, and Dieter Werkmüller (Paderbom et al.: Schöningh, 1993, pp. 277-296).
160 MARIA DOBOZY
Indeed the image carries the implication of an entire set of formalized legal procedures
culminating in an execution. The metaphor binnen dudescher tungen (Lnr 4) stands of
course for the German language, but in context it refers to the territorial range ofthe
German language, meaning that the country extends as far as one can go and still fmd
German spoken. The border then of a territory is expressed in terms of the location of
speakers, and not according to any geographical boundaries.
These terms do not simply illustrate a pictorial language. Most of them also
connect words to formal gestw·es that fonify or validate the legal action taken. A
metaphor that may have a Iitera] action at its source: tut he is an sine vorderen hant (I
18). Here vordere hant is not simply the right hand, but the one a person puts forward
in a legal action when swearing an oath or bringing formal charges or fighting a legal
duel. The entire phrase is a linguistic gesture because it requires the person to act with
that hand.1s More obvious examples are true pars pro toto expressions definitely
specialized for a legal setting: deme scole sie die were loven mit vingeren und mit
tungen („they shall pledge him the guaranty with fingers and tongue,“ Lnr 26). Here
the phrase clearly requires appropriate formal gestures to accompany the formal oath.16
Since the entire action is performed in public, the context of image and word is
important for the witnesses, so that they may remernher the settlement ifthey are later
needed to confirm it. In stark contrast to canon law where writing was used to confirm
all that was decided in a court, in thineenth century Germany, local courts are still very
sparing with written documentation. Instead, formal procedure affirmed and sealed
decisions. An oath made with fingers and tongue implies, therefore, an entire ceremony
including all proper attributes such as a reliquary. It is noteworthy that in no single
passage does Eike ever explain the entire procedure alluded to. lt can, however be
pieced together because of the variety of phrases indicating an oath or pledge: op den
hilgen, sin recht to dun („to fulfill the law with the reliquary“). These examples could
be multiplied. Together they build a set of associations pointing to the phrases and
gestures prescribed for a legal action. Anevangen is another example of a simple action
of grasping that narrowed to a specifically legal term meaning to initiate a law suit for
recovery of stolen or lost property. 17 These examples illustrate that certain types of
formulations reflect the inseparability ofword and gesture.
Consequently my point is that Eike’s text displays in both syntax and
metaphorical phrases a fundamentally concrete, pictorial language still closely
connected to actual legal gestures and actions. This means not only that the web of oral
custom had been an adequate system for providingjust settlements in the community
IS
On the concept of a 1inguistic gesture with different types of exarnples, see Ruth SchmidtWiegand,
„Gebärdensprache im mittelalterlichen Recht,“ Frühmittelalterliche Studien, 17 (1982),
pp. 363-379 and Dagmar Hüpper, „Die Bildersprache. Zur Funktion der lllustration,“ in Eike, vol.
3, pp. 143-162.
16 See the discussion by Ruth Schmdit-Wiegand, „Mit Hand und Mund. Sprachgebärden aus dem
mittelalterlichen Rechtsleben,“ Frühmitlela/ter/ci he Studien, 25 (1991), pp. 283-299.
1 7 For an excellent discussion of anevangen and of other actions developing into legal terms see
Schmidt-Wiegand, „Gebärdensprache,“ p.368.
FROM ÜRAL CUSTOM TO WRITTEN LA W 1 6 1
but also that some o f its many aspects are included in the language o f the text by
explicit or implicit associations. The interconnection between pictorial and metaphorical
word and formal public gesture just described was so intrinsic to the language
that it could easily be maintained with as little change as possible when a written text
was created. Thus an attempt to codify custom in a written form that also took into
account formal legal gesture with minimal metaphorical innovation and confusion
demanded the vernacular.
Thus far I have stressed the oral components of the Saxon Mirror’s language,
but to gain a little insight into the differences between the lost Latin and the actual
vemacular, it is useful to examine a wonderful example of a merger oftheological texts
and canon Iaw with the entire web of oral custom on the topic of kinship. The most
prominent of the Latin authorities Eike drew from are Honorius Augustodunensis,
Isidor’s Origines, and the Decretals ofGratian and Burchard von Worms. My purpose
is to examine how Eike’s passage on kinship integrates Latin discussions of
consanguinity and lines of succession with the web of acts, gestures and words that
comprises juridical procedure and daily life. Kinship is a key point of comparison
because it is the elementary component of social life and a much discussed issue in
canon law. Eike’s chapter has three parts: the 7 ages, the 7 orders of military shields,
and the 7 degrees ofkinship. It opens by saying that Origen prophesied the 7 ages but
this formulation most likely confuses the church father with l sidor’s Origines. lsidor’s
discussion may have reached Eike via any nurober of writers who have similar
passages.18 Eike aligned these three topics of7 stages each in order to derive the social
order and the family order from salvation history.
Eike explains the Ievels ofknighthood in his own terms, but his discussion of
the 7 ages and degrees ofkinship is consistent with canon law from which he adds to
German law only two new points: 1 . Half-brothers are not at the same Ievel of
succession as their full brothers and sisters (Schadt 409), and 2. the decision ofLateran
IV allowing marriage in the fifth degree of kinship.
Where Eike diverges markedly from his sources, however, is in Janguage. He
presents family relations within a metaphorical framework that uses the human body
instead ofthe standard tree of consanguinity found in Justinian’s Digest and canon law.
When Eike uses hovede, lede, nagelmage, mäc, and sippe, he draws on traditional
formulations. He begins his discussion of lineage with the head representing the
genitor and genitrix of the clan. Next he locates the children of this union at the neck
member (lede) and places each generation beginning at the shoulder in a separate joint
progressing farther and farther down the arm and away from the head until he runs out
ofjoints and stops at the final level of kinship at the fingemaiL
Eike’s Janguage demonstrates that the human metaphor expressing kin relations
was still functional. Even though ,the metaphor represents the entire schema, Eike’s
18 For sources and textual parallels, see Eckhardt, pp. 72-74, Guido Kisch, Sachsenspiegel and Bible
(Notre Dame: University ofNotre Dame Press, 1941), and Henna!Ul Schad!, „Zum Verwandtschaftsbild
und der Weltalterlehre des Sachsenspiegels. Kunstgeschichte als Hilfswissenschaft der
Rechtsgeschichte,“ Frühmiltelalterliche Studien, 10 ( 1976), pp. 406-436, here 41 1-413.
162 MARIA DoBOZY
manner of counting is so Iitera) that it certainly appears to provide or to rely on a
gestural rnnemonic device that might easily have been common practice. This idea is
supported by the verb for reckoning the degrees: stuppen meaning „to touch with the
finger, to count off my tapping with the finger.“19 This Ianguage allies the metaphor
closely with a possible traditional practice because it is an uncomplicated means of
keeping track of direct and lateral lines, something everyone needed to do.20 Since a
great nurober ofterrns like vedem and dumelen also required an action originally, it is
certain that Eike’s formula for counting kindred by joints was not the only rnnemonic
gesture existing at that time. Even today, many Europeans calculate the months having
30 and 3 1 days by counting along their knuckles with a fmger. Given the great age of
some terms for family relations, the metaphoric language could weil have been
formulated in connection with a rnnemonic gesture that by the thirteenth century
gradually became a linguistic gesture containing only a memory ofthe act.
Important to our study then is the fact that vocabulary and its use identifies and
substantiates a close relationship between language, gesture and actions over a long
period of time and not the recovery of actual practice per se. The metaphor of the
human figure for calculating consanguinity existed long before Eike wrote. Furthermore,
it is precisely because this terrninology was so weil established that Eike’s
description of kinship did not change from the earliest manuscripts in the thirteenth
century to the iiluminated ones in the second half of the fourteenth.
But what about the original texts of canon law? ln comparison with the Standard
consanguinity tables, the Saxon Mirrar description is much more concrete. Latin texts
employ a very different metaphor, namely the family tree and use terms like trunk,
branch and root:
Ysidorus sie loquitur: c. 1: Series consanguinitatis sex gradibus hoc modo
dirimitur: jilius et jilia. quod est frater et soror sit ipse truncus: illis seorsum
seiunctis ex radice illius trunci egrediuntur isti ramusculi: nepos et neptis,
primus; pronepos et proneptis, secundus . . .. 21
In addition, the Latin schema is much more abstract and detailed in designating each
member of the dircct and lateral lines of kinship. Hence it would seem that in
producing his Latin text, Eike found it easy to paraphrase or cite his Latin sources.
When we examine the German text, the comparison between Latin and German
metaphors for kinship makes clear that Eike took great care not to translate but to
19 Dagmar Hüpper, „Ehe, Familie, Verwandtschaft-Zur Widerspiegelung von Begriffiichkeit in der
Bildtradition des Sachsenspiegels,“ in Text-Bild-lnterpreJation. Untersuchungen zu den Bilderhandschriften
des Sachsenspiegels, cd. Ruth Schmidt-Wiegand, (München: Fink Verlag, 1 986),
pp. 128-144, herc 140.
20 Earlier scholars acccpted the description and thc picture in the illuminated mss. as depicting a
mnemonic gesture but Hermann Schadt and Dagmar Hüpper do not. Both rightly point out the
abstract nature of Eike’s schema. See Schadt, pp. 421; for a recent, detailed discussion of the
system for calculating consanguinity and its representation, see Hüpper, ·’Ehe, Familie,“ pp. 128-
144.
21
Decretum Gratiani C.XXXV 5 cited according to Eckhardt, p. 74, note 40.
FROM ÜRAL CUSTOM TO WRITTEN LA W 163
reproduce content according to the German conceptual system to create a meaningful
text. Therefore, if only a Latin text had been written, the metaphors and gestural
associations would have been lost here and elsewhere. Hoyer may weil have been
objecting to this Iack when he requested a German version.
These deliberations underscore the integrity of a vernacular linguistic and
gestural system ofjurisprudence. Law must have been changing rapidly when Eike and
Hoyer feit the need for the written word to stabilize those changes. However, Eike’s
Latin text was apparently problematic. First of all, any judge referring to a Latin text
would still have to conduct all legal business in German, meaning that any formulae
for oaths, etc, would have to have had to be retranslated into German unless Eike had
cited them in the original. Second, relying heavily on formulations in Gratian or
Burchard and possibly several others, the Latin verison was likely to be much more
abstract than comparable German formulations. But most importantly, the Latin would
not have reproduced the traditional web of gestural associations and connections to
daily life that was intrinsic to German jurisprudence. I maintain, therefore, that the
German text could be applied in practice much more easily because Eike recorded to
a greater or lesser extent the web of legal custom. In turn, this achievement of the
German text is one of the major reasons for its rapid and widespread reception.
Consequently this extensive transmission, attested by over 450 extant manuscripts and
fragments, was so influential it ensured the development of German jurisprudence in
the vernacular (in spite of translations and glosses produced in Latin) so that when
Roman law was adopted, the vernacular was only minimally affected.
The importance ofthis development in Germany is instructive, for jurisprudence
and vernacular took a very different turn in England. Even though my comparison of
AS vocabulary with LG corroborated a close correlation of precise legal terms in both
vocabularies and demonstrated a weil developed Iegal language. This correlation ended
with the Anglo-Saxon kingdom. Many ofthose AS terms were transformed or replaced
as a new vocabulary arrived along with Roman law from France and imposed itself
upon the Anglo-Saxon customs and written laws. This meant that the average person
who had previously understood the proceedings in a court of law now needed legal
training to understand the special language of law. Consequently, the profession of
lawyers or advocates blossomed because they were the only ones who learned the new,
French lexicon. In Germany on the other hand, the profession of lawyer did not
develop until the 1 6’h century because the language of law remained completely
accessible. 22 The fact that oral custom in Germany was set into vernacular written form
that sustained participation of all Ievels of society in the legal process had a farreaching
result: Germans even today use largely a German vocabulary inherited from
the early Middle Ages for legal transactions whereas the English must resort to French.
22 Ruth Sclunidt-Wiegand, „Der Sachsenspiegel Eikes von Repgow als Beispiel mittelalterlicher
Fachliteratur,“ Zeitschrift für Literaturwissenschaft und Linguistik, 5 1 /52 ( 1 983), pp. 206-226,
here 208.
ORAL HISTORY OF THE MIDDLE AGES
THE SPOKEN WORD IN CONTEXT
Edited by Gerhard Jaritz and Michael Richter
MEDIUM AEVUM QUOTIDIANUM
SONDERBAND XII
=
CEU MEDIEV ALIA
VOLU1vfE 3
Oral History of the Middle Ages
The Spoken W ord in Context
Edited by Gerhard Jaritz and Michael Richter
Krems and Budapest 200 1
GEDRUCKT MIT UNTERSTÜTZUNG DER ABTEILUNG
KULTUR UND WISSENSCHAFT DES AMTES
DER NIEDERÖSTERREICIDSCHEN LANDESREGIERUNG
niederästerreich kultur
copy editor: Judith Rasson
Cover illustration: The wife of Potiphar covets Joseph: “ … erat autem Joseph pulchra facie et
decorus apectu: post multos itaque dies iecit domina oculos suis in Ioseph et ait donni mecum.“
(“ … And Joseph was (a] goodly fperson], and weil favoured. And it came to pass after these
things, that his master’s wife cast her eyes upon Joseph; and she said, Lie with me. „), Gen. 39:
6-7 (KJV). Concordantiae Caritatis, c. 1350. Cistercian abbey of Lilienfeld (Lower Austria), ms
151, fol. 244v (detail). Photo: Institut fiir Realienkunde des Mittelalters und der frühen Neuzeit
(Krems an der Donau).
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form or by any means, without the permission of the Publishers.
Published by:
and
– ISBN 963 9241 64 4 (Budapest)
-ISSN 1587-6470 CEU MEDIEVALIA
Medium Aevum Quotidianum. Gesellschaft zur Erforschung
der materiellen Kultur des Mittelalters, Körnermarkt 13, A-
3500 Krems. Austria,
Department ofMedieval Studies, Centrat European University,
Nador utca 9, H-1051 Budapest, Hungary.
Printed by Printself, Budapest.
Table of Contents
Preface . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . ……………………….. 7
Michael RICHTER, Beyond Goody and Grundmann ………. . . . . . . ………. . . . . . . . . . . . . . . . . . . . . I I
Tom PETTIIT, Textual to Oral: the Impact ofTransmission
on Narrative Word-Art …………………………………………………………………….. 1 9
Elöd NEMER!<.ENYI, Fictive Audience. The Second Person Singular in the Deliberatio ofBishop Gerard of Csanäd …………………………………………….. 3 9 Katalin SZENDE, Testaments and Testimonies. Orality and Literacy in Composing Last Wills in Late Medieval Hungary ……………………………. 49 Anna ADAMSKA, The Kingdom of Po land versus the Teutonic Knights: Oral Traditions and Literale Behaviour in the Later Middle Ages …………… 67 Giedre MICKÜNAITE, Ruler, Protector, and a Fairy Prince: the Everlasting Deeds of Grand Duke Vytautas as Related by the Lithuanian Tatars and Karaites ………………………………… 79 Yurij Zazuliak, Oral Tradition, Land Disputes, and the Noble Community in Galician Rus‘ from the 1440s to the 1 460s ……………………………………… 88 Nada ZECEVIC, Ai􀃭tc; yA.uKeia. The Importance ofthe Spoken Word in the Public Affairs ofCarlo Tocco (from the Anonymous Chronaca dei Tocco di Cefalonia) . . . . . . . . . . . . . .. . . . . . . . . . 108 lohn A. NICHOLS, A Heated Conversation: Who was Isabel de Aubigny, Countess of Arundel? …………………………… 1 1 7 Tracey L. BILADO, Rhetorical Strategies and Legal Arguments: ‚Evil Customs‘ and Saint-Florent de Saumur, 979- 1 0 1 1 …………………….. 1 28 Detlev KRAACK, Traces of Orality in Written Contexts. Legal Proceedings and Consultations at the Royal Court as Reflected in Documentary Sources from l21h-century Germany ……… 1 42 6 Maria DOBOZY, From Oral Custom to Written Law: The German Sachsenspiegel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 154 Martha KEIL, Rituals of Repentance and Testimonies at Rabbinical Courts in the 151h Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 64 Michael GOODICH, The Use of Direct Quotation from Canonization Hearing to Hagiographical Vita et Miracula . . . . . . . . . . . . . . 1 77 Sylvia ScHEIN, Bemard of Clairvaux ’s Preaching of the Third Crusade and Orality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . ….. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Michael BRAUER, Obstades to Oral Communication in tbe Mission offriar William ofRubruck among the Mongois . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 196 Elena LEMENEVA, From Oral to Written and Back: A Sermon Case Study . . . . . . . . 203 Albrecht CLASSEN, Travel, Orality, and the Literary Discourse: Travels in the Past and Literary Travels at the Crossroad of the Oral and the Literary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 217 Ulrich MÜLLER and Margarete SPRJNGETH, “Do not Shut Your Eyes ifYou Will See Musical Notes:“ German Heroie Poetry („Nibelungenlied“), Music, and Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Jolanta SZPILEWSKA, Evoking Auditory Imagination: On the Poetics of Voice Production in The Story ofThe Glorious Resurrection ofOur Lord (c. 1580) . . . . . . . . . . . . . . . . 248 Jens T. WOLLESEN, SpokenWords and Images in Late Medieval Italian Painting . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 257 Gerhard JARTTZ, Images and the Power of the Spoken Word . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 List of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Preface Oral culture played an instrumental role in medieval society.1 Due to the Iack of any direct source evidence, however, research into the functions and importance of oral communication in the Middle Ages must confront a number of significant problems. Only indrect traces offer the opportunity to analyze phenomena that were based on or connected with the spoken word. The ‚oral history‘ of the Middle Ages requires the application of different approaches than dealing with the 201h or 2 151 century. For some decades Medieval Studies have been interested in questions of orality and literacy, their relationship and the substitution of the spoken by the written word2 Oral and literate culture were not exclusive and certainly not opposed to each other.3 The ‚art of writing‘ was part of the ‚ars rhetorica‘ and writing makes no sense without speech.4 Any existing written Statement should also be seen as a spoken one, although, clearly, not every oral Statement as a written one. Authors regularly wrote with oral delivery in mind. ‚Speaking‘ and ‚writing‘ are not antonyms. It is also obvious that „the use of oral conununication in medieval society should not be evaluated … as a function of culture populaire vis-a-vis culture savante but, rather, of thc communication habits and the tendency of medieval man 1 For the late Middle Ages and the early modern period, cf. Willern Frijhoff, „Communication et vie quotidienne i1 Ia fin du moyen äge et a l’epoque moderne: reflexions de theorie et de methode,“ in Kommunialion und Alltag in Spätmillefalter und fniher Neuzeit, ed. Helmut Hundsbichler (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1992), p. 24: „La plupart de gens vivait encore pour l’essentiel dans une culture orale et !es procedes d’appropriation des idCes passaient de prefcrence par Ia parolc dite et ecoutee, quand bien memc on ctait capable d’une Ieelure visuelle plus ou moins rudimentaire.“ 2 See Marco Mostert, „New Approaches to Medieval Communication?“ in New Approaches to Medieval Communication. ed. Marco Mostert (Tumhout: Brepols, 1999), pp. 15-37; Michael Richter, “Die Entdeckung der ‚Oralität‘ der mittelalterlichen Gesellschaft durch die neuere Mediävistik,“ in Die Aktualität des Miue/alters, ed. Hans-Werner Goetz (Bochum: D. Winkler, 2000), pp. 273-287. 3 Peter Burke calls the constrnct of „oral versus literate“ useful but at the same time dangerous: idem, „Mündliche Kultur und >Druckkultur< im spätmittelalterlichen Italien,“ in Volkskultur des europäischen Spätmittelalters, eds. Peter Dinzelbacher and Hans-Dieter Mück (Stuttgart: Alfred Kröner Verlag, 1987), p. 60. 4 Michael Clanchy, „lntroduction,“ in New Approaches to Medieval Communication. ed. Marco Mostert (Tumhout: Brepols, 1999), p. 6. 8 to share his intellectual experiences in the corporate framework.“5 Oral delivery was not „the sole prerogative of any socioeconomic class. „6 For all these reasons, it is important to analyze the extent of and context, in which ’speech acts,‘ auditive effects, and oral tradition occur in medieval sources .7 Research into the use of the spoken word or references to it in texts and images provides new insight into various, mainly social, rules and pattems of the communication system. 1t opens up additional approaches to the organization and complexity of different, but indispensably related, media in medieval society, and their comparative analysis.8 The spoken word is connected with the physical presence of its ’sender.‘ Speech may represent the authenticity of the given message in a more obvious way than written texts or images. Therefore, the use of ’speech acts‘ in written or visual evidence also has to be seen in context with the attempt to create, construct, or prove authenticity. Moreover, spoken messages contribute to and increase the lifelikeness of their contents, which may influence their perception by the receiver, their efficacy and success. Being aware of such a situation will have led to the explicit and intended use and application of the spoken word in written texts and images- to increase their authenticity and importance, too. lf one operates with a model of ‚closeness‘ and ‚distance‘ of communication with regard to the Ievel of relation of ’senders‘ and ‚receivers,‘ then the ’speech acts‘ or their representation have to be seen as contributors to a ‚closer‘ connection among the participants of the communication process.9 At the same time, however, Speech might be evaluated as less official. One regularly comes across ‚oral space‘ 5 Sophia Menache, The Vox Dei. Commwzication in the Middle Ages (New York and Oxford: Oxford University Press, 1990), p. 19. 6 Ibidem, p. 21. Cf. also Jan-Dirk Müller, „Zwischen mündlicher Anweisung und schrifilicher Sicherung von Tradition. Zur Kommunikationsstruktur spätmittelalterlicher Fechtbücher,“ in Kommunikation und Alltag in Spätmittelalter und früher Neuzeit, ed. Helmut Hundsbichler (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1992), p. 400: „Offensichtlich sind schriftliche und nichtschriftliche Tradierung von Wissen weiterhin relativ unabhängig voneinander, nachdem die Schrift längst dazu angesetzt hat, lnseln der Mündlichkeil oder praktisch-enaktiver Wissensvermittlung zu erobem. Die Gedächtnisstütze kann die Erfahrung nicht ersetzen, sendem allenfalls reaktivieren. Sie ist sogar nur verständlich, wo sie auf anderweitig vermittelte Vorkenntnisse stößt.“ 7 􀆿f. W.F.H. Nicolaisen, ed., Oral Tradition in the Middle Ages (Binghamton: Center for Medieval and Renaissance Studies, 1995). 8 See, esp., Horst Wenzel, Hören und Sehen, Schrift und Bild. K ultur und Gedächtnis im Mittelalter (Munich: C.H. Beck, 1995), passim. 9 See also Siefan Sonderegger, „>Gesprochen oder nur geschrieben?< Mündlichkeil in mittelalterlichen
Texten als direkter Zugang zum Menschen,“ in Homo Medietas. Aufsätze zu Religiosität,
Literatur und Denkformen des Menschen vom Mittelalter bis in die Neuzeit. Festschrift
for Alois Maria Haas zum 65. Geburtstag, eds. Claudia Brinker-von der Heyde and
Niklaus Largier (Bem e\ al.: Peter Lang, 1999), p. 665: „Jedenfalls darf man sich bewußt bleiben,
daß auch in den Texten des deutschen Mittelalters die Reflexe gesprochener Sprache eine
bedeutende Schicht ausmachen, die besonders dann immer wieder hervortritt, wenn es um
einen direkten Zugang zum Menschen geht, um einVerstehen aus unmittelbarer Partnerschaft
heraus … “
9
that has become institutionalized or more official by the application of ‚written
space.‘ 10 Simultanous employment of such different Ievels and qualities of
messages must often have had considerable influence on their efficacy.11
The papers in this volume are the outcome of an international workshop that
was held in February, 2001, at the Department ofMedieval Studies, Central European
University, Budapest. Participants concentrated on problems of the occurrence,
usage, and pattems of the spoken word in written and visual sources of the
Middle Ages. They dealt with the roJe and contents of direct and indirect speech in
textual evidence or in relation to it, such as chronicles, travel descriptions, court
and canonization protocols, sermons, testaments, law-books, literary sources,
drama, etc. They also tried to analyze the function of oral expression in connection
with late medieval images.
The audiovisuality of medieval communication processes12 has proved to be
evident and, thus, important for any kind of further comparative analysis of the
various Ievels of the ‚oral-visual-literate,‘ i.e. multimedia culture of the Middle
Ages. Particular emphasis has to be put on methodological problems, such as the
necessity of interdisciplinary approaches,13 or the question of the extent to which
we are, generally, able to comprehend and to decode the communication systems
of the past.14 Moreover, the medievalist does not come across any types of sources
in which oral communication represents the main concem.15 lnstead, she or he is
confronted, at first glance, with a great variety of ‚casual‘ and ‚marginal‘ evidence.
We would like to thank all the contributors to the workshop and to this
volume. Their cooperation made it possible to publish the results of the meeting in
the same year in which it took place. This can be seen as a rare exception, at least
in the world of the historical disciplines. The head, faculty, staff, and students of
the Department of Medieval Studies of CentTal European University offered
various help and support. Special thanks go to Judith Rasson, the copy editor of
10 This, e.g., could be weil shown in a case study on thc pilgrimage to Santiago de Compostela:
Friederike Hassauer, „Schriftlichkeit und Mündlichkeil im Alltag des Pilgers am Beispiel der
Wallfahrt nach Santiago de Compostela,“ in Wallfahrt und Alltag in Mittelalter und früher
Neuzeit, eds. Gerhard Jaritz and Barbara Schuh (Vienna: Verlag der Österreichischen Akademie
der Wissenschaften, 1992), pp. 277-316.
11 Cf. Bob Scribner, „Mündliche Kommunikation und Strategien der Macht in Deutschland im
16. Jahrhundert,“ in Kommunikation und Alltag in Spätmittelalter und früher Neuzeit, ed.
Helmut Hundsbichler (Vienna: Verlag der Österreichischen Akademie der Wissenschaften,
1992), pp. 183-197.
12 Wenzel, Hören rmd Sehen, p. 292.
13 Cf. Ursula Schaefer, „Zum Problem der Mündlichkeit,“ in Modernes Miuelalter. Neue Bilder
einer populären Epoche, ed. Joachim Heinzle (Frankfurt am Main and Leipzig: Insel Verlag,
1994), pp. 374 f.
14 Frijhoff, „Communication et vie quotidienne,“ p. 25: „Sommes-nous encore en mesure de
communiquer avec Ja communication de jadis?“
1􀅄 Michael Richter, Sprache und Gesellschaft im Mittelalter. Untersuchungen zur mündlichen
Kommunikation in England von der Mit te des elften bis zu Beginn des vierzehnten Jahrhunderts
(Stuttgart: Anton Hiersemann, 1979), p. 22.
10
this volume, who took particluar care with the texts of the many non-native
speakers fighting with the pitfalls of the English language.
Budapest, Krems, and Constance
December 200 I
Gerhard Jaritz and Michael Richter