Volume 139, Issue 1

Narrations of Law. New paths to a conception of medieval law . The article, starting from a review of two publications on medieval Scandinavian literature, tries to find out the role of law in the sagas of medieval Iceland, dealing with mostly bloody conflicts in a society without a ruler or state. Different from classical legal history, today we have to understand law in this context not as a systematic order of norms, but instead as an oral tradition in a world of mainly violent solutions of conflicts by revenge, partly by mediation or arbitration, seldom through a legal proceeding. Not a norm of law, but a compensation in relation to the honour or social position of the parties is the key for a solution. – The theory of a radical cultural change in history (axial age) turns out to be useful for understanding the changing role of law in medieval societies, including Scandinavia.

Calefurnia – a Roman woman in the Sachsenspiegel? Written, oral, and iconographic traditions . The reference to Calefurnia in Sachsenspiegel Landrecht II 63 § 1 has sparked several theories about how Eike came to know the story of the Roman woman Carfania mentioned in D. 3,1,1,5. Did he have access to the Digest? Did he undergo higher education in a monastery? Was he educated in Roman canon law? This article argues that he might have been inspired by a broadly used exemplum of Carfania as a litigious and talkative woman. By pointing out differences between the Digest and an ordo iudiciarius ‘Tractaturi de iudiciis’, it strongly opposes Landau’s thesis about the source of Eike’s knowledge by pointing out resemblances to Val. Max. VIII,3. A Schwabenspiegel manuscript of 1287 adds the interesting detail of Kæfurna showing her bare backside to the emperor. This storyline can also be traced through medieval and early modern literature. Puzzlingly enough, a Dutch Sachsenspiegel manuscript from the 15 th century tells yet another version of the story referring to calefurnan ‘breaking wind’. The Sachsenspiegel picture books show Calefurnia with an unidentifiable object in varying shapes that has been interpreted as a depiction of misbehaviour considering the different additions to the story. Overall, the alterations of the anecdote offer a glimpse into the rich tradition surrounding the story of Calefurnia respectively Carfania.

Guilds between authority and opposition . This paper compares the legal status of guilds in two German towns of the late Middle Ages: Frankfurt am Main and Hamburg. Both cities represented commercial hubs, Frankfurt with its privilege to hold fairs, Hamburg as a port town and member of the Hanse. Both cities also witnessed unrest and public protest by guilds during the second half of the 14 th century. This article argues that those conflicts erupted over the guilds’ attempts to formalise their legal status by having their statutes written and acknowledged by the city council. The council eventually pre-empted those attempts. This happened through a process of bargaining that can be subdivided into three different stages: production of written demands or statutes, destabilisation, escalation. Putting something into writing created a qualitative distinction to orality in a society that was predominantly communicating orally and in presence. Thus, the latter was still the mode of political communication, mainly by swearing an oath, that could settle these conflicts. Where this process failed, the conflict could erupt into open violence, which in turn could only be settled by outside intervention – as in the case of Frankfurt.

Konrad Maurer’s Letters in Public Library and Archive Collections . This paper accounts for both the hitherto little known depositories and the considerable amount of widely dispersed letters that came down to us written by Konrad Maurer, professor of law in Munich, between 1846 and 1900 to colleagues and friends in Germany, England, the Nordic Countries, and the United States of America. This account is supplemented by lists of letters both of Konrad Maurer’s wife Valérie on his behalf and of the relatively few letters to Konrad Maurer that have survived.

The Awakening of Sleeping Beauty in an Absence of Intent – a Failed Simulated Transaction in the German Imperial Supreme Court . When the Friedrich Krupp Corporation promised to supply gas to the City of Bochum in 1910, the parties of this long-term contract could not anticipate the scarcity of raw materials during the upcoming First World War. In the aftermath of the war, Krupp was not able to provide for the quality that had initially been stipulated. Nevertheless, the parties prolongated the contract. When the City of Bochum insisted in proper fulfilment, Krupp argued that the prolongation of the contract according to the original conditions had been a simulated transaction the City of Bochum could not insist on. In 1941, the German Imperial Supreme Court denied the applicability of the provisions of the German Civil Code concerning an absence of intent, holding that each and every simulated transaction to be certified within an official document must be considered fraudulent. This article reviews the court’s decision in the light of its ideological background.

The Code as Message? Call for a Different Legislative History . The contribution examines the history of codification from a new perspective. The focus is not on the perspective of the legislator but rather on the perspective of those subjected to the laws. For, in fact, it is them who decide on the fate of the codification. Thus, a painstaking – and often tedious – history of impact should complete, that is replace the hitherto common and less complex textual history. Only such a history of impact enables more differentiated statements about the fate and importance of the code, for which a few examples are given.

Feudalism revisited: Denmark as a regional special or a European normal case in the Middle Ages? Research Tasks and Perspectives . In 1994, Susan Reynolds questioned the ideal type of the feudalism designed in the 19 th and 20 th centuries in her monograph “Fiefs and Vassals” fundamentally. While it has not been possible to refute Reynold’s theses entirely, some of their thrust could be taken from them by regional example studies. Apparently, there was a feudal system in the High Middle Ages, but with regional variants – not in the lawful pure form, as Heinrich Mitteis still held in the first half of the 20 th century. The essay outlines the opportunities and perspectives of future mediaeval research on feudalism, using the promising regional case study of Denmark.

Addenda to ‚German medieval law Books and their manuscripts‘ . This article presents newly discovered manuscripts and single leaves of German-language customary law books. It describes variations to the manusripts and single leaves listed in U.-D. Oppitz, “Deutsche Rechtsbücher des Mittelalters”, vol. II, Cologne 1990.

Notes on the edition ‘De Saksenspiegel in Nederland, Eerste stuk – Oudere tekst’ of Barthold Jacob Lintelo Baron de Geer van Jutphaas . The article sheds light on the Dutch Sachsenspiegel, which has hardly been noticed in research so far, and gives an overview of the manuscripts, their history and relationship. The only comparative edition from 1888 contains both textual and methodological errors in the first volume on the older text. This article concludes with a correction of the edition’s most significant deficiencies.

Contract-nominalism in the Code civil? The validity of bilateral agreements in the judicature of the courts of the Free City of Krakow (1815–1846) . The courts of the Free City of Kraków, when applying Article 1325 of the Code civil, adopted a different direction from the courts in Baden or the French judiciary, both of which modified its strict content. In addition to the differences between the Polish, German and French judicatures, there were inconsistencies between individual judgements relating to the form of bilateral agreements in all three cases. As a result, the citizens of the Free City of Kraków, the Grand Duchy of Baden, or France, had no sufficient certainty as to whether their contracts would be adequately protected in the event of a dispute between the parties. The analyzed cases show a convergence of the jurisprudence of the Baden and French courts, which presented a bolder approach to the issue of the validity of bilateral agreements, thereby protecting the Code Civil principle of the freedom of contracts. Kraków courts refrained from such a creative interpretation of the article 1325 and based their rulings on its literal wording. This was partly due to the fact that Polish scholars and judges did not have easy access to the achievements of French jurisprudence at that time. The courts of Baden adjudicated in more favourable conditions, because French and German legal thoughts on the implementation of Code Civil intertwined and complemented each other.

Preliminary Observations on a Mammoth Civil Procedure at the Oberappellationsgericht Lübeck (1819–1835). This miscellany reviews an important contribution to the research on German judicature in the 19 th century by legal historian Peter Oestmann: “Zur Gerichtspraxis im 19. Jahrhundert. Ein Schmuggeleiprozess am Oberappellationsgericht Lübeck”, two parts, 2019. His edition contains the complete text of five case files of a fiercely contested civil trial, the so-called “smuggling case”. The judges, headed by their presiding judge Arnold Heise, a former professor in Heidelberg and Göttingen and famous representative of the German Pandektenwissenschaft, did their very best. Nevertheless, it took them 16 years to put an end to this intractable legal and social conflict. The far from convincing result of their efforts raises questions, outlined in the second part of the miscellany. Further research has to be conducted to reach conclusions.

Izutarō Suehiro (1888–1951), Uso no kōyō The Utility of Lies (1922) . This translation presents an essay by the influential professor for private law at Tokyo Imperial University, Izutarō Suehiro that gives some insight into the historical roots of modern Japanese civil law methodology as it highlights the shift in Japanese jurisprudence away from the so-called German ‘conceptual jurisprudence’. Rejecting the traditional formalistic application of rigid statutory law, which in Suehiro’s eyes forced judges regularly to resort to legal fictions and lies about the facts of a case in order to be able to deliver humane judgements, his new ‘Japan-compatible’ approach expected the judiciary to develop flexible case law, which would enable judges to achieve ‘concretely appropriate’ judgements. In this context the judiciary was no longer to assume litigants as rationally acting, self-concerned individuals in general, but to admit the possibility of irrational, altruistic etc. personalities and to adjust the application of law to these individual differences. This raises however concerns regarding the principle of equality before the law and the role of a democratically legitimated legislator.

Competencies and the Didactics of Legal History . Intended as an exploration, the article proves first by means of a textbook analysis that previous, rather scattered didactic considerations of legal history can be connected to models and categories of history didactics. Second, it makes a proposal to systematise learning goals in the field of legal history at the level of competencies. Third, it points out possibilities for improvement, research gaps, and questions that arise from the special perspective of history didactics.