David Nicholas

title.none: Kannowski, Die Umgestaltung des Sachsenspiegelrechts (David Nicholas)

identifier.other: baj9928.0810.004 08.10.04

identifier.issn: 1096-746X

description.statementofresponsibility: David Nicholas, Clemson University (Emeritus),

publisher.none: .

date.issued: 2008

identifier.citation: Kannowski, Bernd. Die Umgestaltung des Sachsenspiegelrechts durch die Buch'sche Glosse. Monumenta Germaniae Historica Schriften, 56. Hannover: Hahnsche Buchhandlung, 2007. Pp. xlvi, 655. $120 978-3-7752-5756-5. ISBN: .

type.none: Review

relation.ispartof: The Medieval Review

The Medieval Review 08.10.04

Kannowski, Bernd. Die Umgestaltung des Sachsenspiegelrechts durch die Buch'sche Glosse. Monumenta Germaniae Historica Schriften, 56. Hannover: Hahnsche Buchhandlung, 2007. Pp. xlvi, 655. $120 978-3-7752-5756-5. ISBN: .

Reviewed by:

David Nicholas
Clemson University (Emeritus)

This book discusses the transformation of the law of the Sachsenspiegel, compiled about 1230 by Eike von Repgow, by the Gloss of Johann von Buch, a Bologna-trained jurist in the service of the margraves of Brandenburg who wrote his Gloss between 1325 and his death around 1356. Although the Gloss was very influential in late medieval German legal thought (it had received its own glosses before 1500), it has been neglected by modern scholars. Kannowski's study shows that through Johann's Gloss Roman law was being used in German secular practice considerably earlier than most have thought.

The 78 complete surviving copies of the Gloss include some with material written by anonymous later compilers, but on textual grounds Kannowski argues that Johann's original work ended with his remarks on III 87 of the Sachsenspiegel and that he was the sole author of these passages. The Gloss includes only the Landrecht sections of the Sachsenspiegel, not Lehnrecht, but this involved Johann in considerable discussion of what would now be considered criminal law as well as civil actions. Kannowski bases his analysis on the edition of Frank-Michael Kaufmann, Glossen zum Sachsenspiegel- Landrecht. Buch'sche Glosse, 3 vols. (MGH fontes iuris N. S. 7, Hannover, 2002), but he supplements Kaufmann's work with discussions of other manuscripts that he thinks were either Johann's work or illustrate his later influence. Although he devotes considerable space to the issue, the manuscript provenance of the Gloss is so complex that Kannowski's editorial decisions will doubtless generate controversy among specialists, as Kaufmann's have.

Kannowski argues that Johann von Buch wanted to create a unitary statement of Saxon law while bringing the secular law being used in Saxon court practice into a form that could be used in both church and lay courts, and to couch Saxon legal terms in a Roman context, in some cases translating from Roman law and the work of the Glossators, particularly Accursius. Many of Johann's deviations from the Sachsenspiegel were already being used in church courts in his time and thus were not controversial to the scholars who would have read his treatise. Johann thus thought of the Sachsenspiegel as a kind of Saxon corpus iuris civilis. In principle he considered the Sachsenspiegel a German translation of a lost Latin privilege that Charlemagne had given to the Saxons, in which he recognized certain of their customs as permissible deviations from the Roman law of Justinian. He construed all Sachsenspiegel passages beginning nu vernemet as coming from Charlemagne, but Johann also claimed that specific other passages were not in Charlemagne's privilege but rather were the work of Eike (whom he never names, calling him "the Spiegler"). While the law of Charlemagne was inviolable, Eike's commentary could be challenged, and Johann was at some pains to point out that whenever he disagreed with the Sachsenspiegel it was in passages written by the Spiegler, for whom he nonetheless indicated great respect. He called learned or Roman law "imperial law" to include Charlemagne as well as the corpus iuris civilis, and to a lesser extent canonical practice. He considered the articles of the Sachsenspiegel after III 87 not as parts of Charlemagne's privilege but rather laws of later emperors, such as the novels of Otto I-II and Frederick I. The Sachsenspiegel was thus not identical to the presumed privilege, and the responsibility of Eike, like Johann as glossator, was to defend and explain, not to make law. Imperial law could alter and expand Saxon law, but specific provisions of the Sachsenspiegel, such as inheritance law, take priority for the Saxons over general imperial law (the corpus iuris civilis), for the privilege had been a "grace" to the Saxons.

The most original parts of Johann's Gloss are those in which he justified rejection of aspects of Eike's work and those where he simply inserts learned law on topics that were scarcely if at all mentioned in the Sachsenspiegel but were necessary for a compendium of what Saxon court practice had become by Johann's time. The Gloss includes both short commentaries on the Sachsenspiegel and extended treatments of topics not found there. A major difference between the text and its glossator was that Johann gave primacy to written law, while Eike gave the written text no authority in itself. It follows that legal opinions that were not in an authoritative written text, such as the Sachsenspiegel itself and the corpus iuris civilis, carried no weight for Johann.

Kannowski's book has seven chapters and a conclusion. His Index is exceptionally detailed; readers whose principal interest is in the impact of other sources on German law can find at a glance where specific distinctions and clauses of canon and civil law were used. A long opening chapter discusses the Glossator's career, chronology of composition, and editorial problems. A chapter on procedure is followed by a brief one on kingship. The next chapters concern freedom, bondage, and "natural law"; settlement of wrongs and public criminal law; private law; and the thought process of the Glossator, which discusses general issues ranging from world view to arrangement of clauses and literary conventions. Kannowski begins sub-topics within chapters with the relevant passages from the Sachsenspiegel, then contrasts the Gloss to them. From the perspective of showing Johann's Gloss as the major conduit for the penetration of German customary law by learned jurisprudence, Kannowski's book displays an overwhelming level of scholarship, not only of the Sachsenspiegel and the Gloss, but also of the theological, Roman, and canonical sources from which Johann von Buch derived his ideas.

Some of Johann's most important departures from the Sachsenspiegel are in the area of procedure. He inexactly equates the Roman appelatio with the Saxon ordelsceldent (the practice of contesting an unjust verdict before the judge promulgated it). The Sachsenspiegel had made the judge a presiding officer and promulgator, while the Schoeffen "created" the law and rendered the verdict; the judge had a much more active role in the Gloss, which has the Schoeffen (who do not appear in Roman law) stating what the law was, leaving the judge to gather evidence, hear witnesses, and determine individual cases to the judge. Johann left little room for the community in reaching verdicts, contrary to the practice in most German courts of his time. The judge must decide according to law, not according to his personal knowledge of the facts. The Gloss devotes considerable space to arbitration, which figures largely in Roman and canonical practice (Johann's interpolations are almost verbatim German translations from the Digest) but is absent from the Sachsenspiegel, although it was being used in Saxon lay courts. Yet his notion that Saxon deviations from imperial law were justified by Charlemagne's privilege afforded him leeway; while learned law permitted a majority of arbitrators to carry, Johann retained the old Germanic requirement of unanimity.

While Johann had little trouble with such notions as arbitration, where he was filling a gap in German secular law, he had more difficulty with the law of proof, where he made more deviations from the Sachsenspiegel. The judgment of God was unknown in Roman law, but Johann reserved it for extreme cases that could not be settled by other evidence. There is little in the Sachsenspiegel about the use of written proof (there is more in the slightly later Schwabenspiegel), and although canon law preferred written evidence, Johann retains the Saxon preference for oral proof. Yet he differs more from Eike in preferring physical proof and the testimony of witnesses to the practice of clearing oneself by oath. Johann was trying to avoid doing violence to Saxon practice in this area; he could have filled more gaps in the Sachsenspiegel with Roman notions than he did.

Johann's Gloss deviates significantly from the Sachsenspiegel regarding freedom, serfdom, and the "natural law." Eike used "before God all are equal" as the basis of what in terms of the time was a rather limited notion of unfreedom. Johann used a theological argument (slavery was permitted in the Bible), but more important was the fact that imperial law countenanced it. Thus he simply denied that Eike's passage had been part of Charlemagne's privilege and rejected it.

Although most of the Gloss concerns civil law in the modern sense, Johann also discusses the atonement of misdeeds and public criminal law as aspects of Landrecht. Under the Sachsenspiegel death was prescribed for intentional homicide, but it and most other acts of violence, regardless of intent, could be atoned by property compensation if the victim or his kindred agreed to it. The public authorities could not bring charges unless the victim made a complaint. Breach of the peace and intentional homicide were always punished with outlawry and loss of honor, even if the corporal punishment was remitted, and the perpetrator was excluded from the community. Atonement of some offenses, however, required a payment to the judge in addition to that to the victim or his kindred. The Gloss envisages ex officio prosecution of some offenses against the community whether the directly offended party pressed charges or not, for example rape, murder, unbelief, adultery, and counterfeiting. Johann broadened the concept of warlose into a general principle by which a person who committed such an act was not punished corporally but still paid a fine to the victim and to the community. The Sachsenspiegel, Roman law, and the Gloss all categorize offenses less from material right than from the nature of the legal action. The Gloss introduced more Roman legal principles in the distinction between actio civilis, which results from an attack on property, and actio criminalis, which results from an attack on honor, including personal injury. The Gloss, but not the Sachsenspiegel, also raises the possibility of a "mixed complaint" in which both corporal punishment and fine could be applied. The Gloss also made will the determinant between civil and criminal prosecution. Neither the Sachsenspiegel not the Gloss excludes payment of a fine, in addition to punitive damages to the victim, from the punishment for deeds that did not result from evil intent. Homicide and other serious infractions without intent were punished by a fine, with intent by death. Corresponding to the growing use of corporal punishments by courts in Johann's time, he broadened the list of misdeeds that could be punished corporally from what the Sachsenspiegel envisaged. Where the Sachsenspiegel saw peacekeeping as essentially a private concern, the notion of "public peace" imposed by the ruler or the courts had become more current in the intervening century. Johann assumed that in most cases a trial could be avoided by private agreement, which generally would involve a payment to the plaintiff and the court, but the judge had the option of ordering the trial to go forward, for example if the defendant had offered an inadequate compensation, even if the plaintiff had been satisfied. The Gloss adds deeds that are punishable under learned law but not under the Sachsenspiegel, and also punishments that the Sachsenspiegel did not have, specifically exile.

Johann's sections concerning private law contain material almost ignored in the Sachsenspiegel, which was compiled after monetary obligations became common in German commercial practice but before a law had developed to regulate them. By Johann's time, however, there was considerable precedent concerning debt, market practices, wages, labor, and sureties. Roman law, in contrast to the Sachsenspiegel, developed in a commercial economy and thus provided after-the-fact for what was happening in Germany. Although Kannowski argues that Johann had no notion of historical development and thus did not think of the changes that he was codifying as the natural consequence of the passage of time, the economic changes between the periods of composition of the two texts gave Johann an opportunity simply to add Roman notions to Saxon practice without needing to reconcile the two. He made massive interpolations from the corpus iuris civilis, usually with a synchronous use of Latin and German, but sometimes he inserted the Latin without German translation. His language for contracts was Roman, because German at the time had no such words. Johann's reliance on Roman law for his sections on debt was so total that he scarcely bothered to reference the Sachsenspiegel since it was new law for the Germans. His translations of Latin commercial terms into the evolving Saxon dialect bent contemporary practice and provided an important channel through which Roman notions came to Germany. He dealt with sales, rents, and leases entirely through Roman law. Much of what he says concerning the business partnership is a free translation of the Institutes clause De societate. His sections on the law of debt were so original for the time that later commentators on the Gloss in turn developed them more than his other themes. This is one of the few sections where Kannowski devotes much space to the later textual tradition.

While the sections of the Gloss on commercial practice were Roman, Johann's views on the law of inheritance diverged less from prior German practice. He followed Roman law in allowing sons and daughters and their descendants to inherit equally, while the Sachsenspiegel gave priority to the male line. Johann also has the child inheriting the parent's civil status. The testament is a Roman device, and the Sachsenspiegel accordingly does not mention it; Johann permits it, but only if the action was taken before a court, adding that disinheriting children is against nature and that such alienations can only be done between living persons and only if the donor is still competent. In other respects, Johann generally argued that Charlemagne's privilege had exempted the Saxons from strict adherence to the corpus iuris civilis regarding inheritance practices.

Kannowski concludes that "Johann's purpose was not to present the law as a contradiction-free system, but rather to present it in its totality. That includes far more than just the Sachsenspiegel (593)," notably marriage law, appeal before church courts, and grounds for invalidity of charters. He dealt not only with conflicts between the Sachsenspiegel and learned law, but also conflicts within Roman and canon law that concerned issues that the Sachsenspiegeldid not discuss. He thus was adding topics to German law that the Sachsenspiegel did not cover, giving them authority by putting them into writing, and making minor modifications to the rest of the Sachsenspiegel, specifically those parts that he considered Eike's glosses on the privilege of Charlemagne.