Contextes - Littératures populaires du droit - 75

IMPLeMeNTING JurIDICAL reFOrM

Obviously, this situation of fragmented legal cultures did not meet the
requirements of growing commerce and an increasingly interconnected
empire, not to say an interconnected europe. Moreover, it did not quite
match with a growing glorification of sovereignty (while not yet termed
this way) and the exercise of royal, and even more so imperial power.
Certainly the roman emperors and German kings would not have been
able to unify the empire in terms of positive, applicable law. However,
they tried in terms of legal procedure and the systematization of law. The
learned laws, in this respect, laid the groundwork fort he establishment of
the bureaucratic state - in the long run for both, the king and the princes11.
From the late thirteenth century onwards, a rising claim for imperial
authority over the law gets increasingly visible - even in the law-books :
Somewhen in the 1280s, probably in Augsburg, a law-book was crafted,
building up eike's Sachsenspiegel, that was circulated in probably hundreds
of manuscripts under the title of an Imperial land law and feudal law.
Only centuries later, the considerably more imprecise title Schwabenspiegel
("Swabian Mirror") came up for this law-book, rightly stressing its affinitiy
to the Sachsenspiegel, yet burrying its claim to mirror the law not only of
the Swabian region, but of the whole empire12. A few decades later, in the
first half of the fourteenth century, a learned jurist in Brandenburg, Johann
von Buch, who had studied the laws in Bologna, wrote his influential
gloss on eike's Sachsenspiegel, not only assidiously setting it in relation
to both roman and Canon law, but also emphatically insisting that eike's
mirror was based upon Carolingian, in other words : imperial law13. For an
average forensic practicioner within the vast expansion of the terra juris
saxoniae, I dare to suppose, this would probably not have been an argument for anything. He would have consulted the Mirror anyway. But for
the learned jurist, Johann von Buch made traditional Saxon law a subject
worth knowing and worth taking into account. And he laid the path for the
learned laws to enter traditional law courts, masking them as not so distant
as they would have seemed to. In other word : he moved both groups of
experts closer to each other.
Indeed, the later Middle Ages were a story of success for the learned jurists
as a professional group, gaining increasing respectability and expanding
occupational areas in both towns and courts14. One telling example is the
11. Cf. P. Stein, Roman Law in European History (Cambridge : uP, 2004), pp. 91-93.
12. Kümper, Sachsenrecht, p. 364-387.
13. For more details, see B. Kannowski, Die Umgestaltung des Sachsenspiegelrechts durch
die Buch'sche Glosse (Hannover : Hahn, 2007).
14. Cf. H.-G. Walther, "Learned jurists and their profit for society : Some aspects of
the development of legal studies at Italian and German universities in the late middle ages,
"Universities and Schooling in Medieval Society, ed. by William J. Courtnay (Leiden et al. :
Brill, 2000), pp. 100-126.

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