Contextes - Littératures populaires du droit - 73

IMPLeMeNTING JurIDICAL reFOrM

usually being one and the same person - did not engage in legislation
at any more comprehensive level and the few laws they issued remained
almost exclusively concerned with constitutional matters. Consequently,
the king's or imperial law did not contribute much as a source of law to
everyday legal practice. Applicable law remained largely customary law.
The learned laws, on the other hand, seems to have played virtually no
role in this legal culture, though a number of Germans did study at the law
schools in Italy and France and brought back codices of the learned laws4.
up to the fifteenth century, however, these were mostly clerics, and hence
focused rather on Canon law than on the leges (roman law)5.
From the thirteenth century onwards, starting with eike of repgow's
Sachsenspiegel (Saxon Mirror) in ca. 1220, customary laws were written
down in compilations, which strikingly quickly gained massive success,
albeit written by authors with no training in legal issues and no political
authority6. These law-books blossomed by no means exclusively in medieval Germany. We can spot similar developments in thirteenth-century
France, in england, the Scandinavian kingdoms, and also on the Iberian
Peninsula7. Such a striking synchronicity then may add to the suspicion
that rather pan-european movements or institutions may have fostered
their occurence - and of course, universities with their learned culture of
law and writing may well be a plausible candidate for that ; if not directly,
then at least as motors of a professionalization process.
At this point of the argument, we can already spot one of the pitfalls
of the term "popular jurisprudence". For no scholar, as far as I can see,
has ever attempted to coin the medieval law-books as "popular jurisprudence". They were certainly "popular" in a sense, but seemingly did not
count for "prudence", not as being learned. rather, they were seen as (at
times "strangely" successful) books of unlearned practicioners for readers
of their actual own peer group.
4. It seems plausible, however, that knowledge of the learned laws and their respective codices could have influenced authors of law-books in systematic respect
- cf. G. Theuerkauf, Lex, speculum, compendium iuris : Rechtsaufzeichnung und
Rechtsbewußtsein in Norddeutschland vom 8. bis zum 16. Jahrhundert (Cologna : Böhlau,
1968) ; P. Landau, „Der entstehungsort des Sachsenspiegels. eike von repgow, Altzelle
und die anglo-normannische Kanonistik, "Deutsches Archiv für Erforschung des Mittelalters
61 (2005), pp. 73-101.
5. P. Landau, "Die Anfänge der Verbreitung des klassischen kanonischen rechts
in Deutschland im 12. und im ersten Drittel des 13. Jahrhunderts, "Chiesa Diritto e
Ordinamento della „Societas Christiana "nei secoli XI e XII (Milano : Vita e Pensiero,
1986), pp. 272-290.
6. H. Kümper, Sachsenrecht : Studien zur Geschichte des Sächsischen Landrechts in
Mittelalter und früher Neuzeit (Berlin : Duncker & Humblot, 2009), pp. 22-51.
7. H. Hattenhauer, Europäische Rechtsgeschichte, 4th rev. ed. (Heidelberg : Müller,
2004), pp. 326-347.

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