03.02.14, Fuhrmann, Theorie and Praxis in der Gesetzgeburng des Spatmittelalters

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Richard Ernest Walker

The Medieval Review baj9928.0302.014


Fuhrmann, Joelle. Theorie and Praxis in der Gesetzgeburng des Spatmittelalters in Deutschland am Beispiel der Ingelheimer Schoffenspruche. Bern: Peter Lang, 2001. Pp. 172. ISBN: 3-906765-71-7.

Reviewed by:
Richard Ernest Walker
University of Maryland

As the title indicates, this book has two parts, theory and practice, of which the latter may have greater appeal to the non-specialist reader. Its subject, the development, impact, and codification of a body of laws in late medieval Germany (fourteenth-fifteenth centuries), based on the verdicts of the Ingelheim lay judges, or jurymen, is in fact broader than the title suggests. The nature and structure of the court system in medieval Germany reflected the hierarchical, male-dominated social and cultural structures from which it emerged and which it served. The analysis of the theory underlying the selection and appointment of judges, or jurymen, for example, draws attention to the cultural biases that resulted in a judicial system in which males of a particular class and social status became enfranchised supporters of the system but also, through hereditary customs, perpetuators of its exclusivity.

The book has four divisions: I. an overview of the methods and criteria used in the selection of court officials; II. a survey of the significance and function of jury verdicts, based on Ingelheim court documents; III. a review of the differences and similarities of the Ingelheim verdicts and other ocntemporary civil and penal code judgments; and IV. summary observations and a bibliographic apparatus of primary and secondary literature. The first division provides culturally significant information concerning the historical transition of Germanic court locales from mountain tops to meadows, or fields, and finally, under Charlemagne, to indoor locations as well. It also examines the role of the Schultheiss (bailiff), literally debt collector, a surrogate judge or stand-in for the king or his designee, who became an indispensable court official, essentially a supervisory presence over the eleven jurymen. A clear distinction is made between the administrative role of the Schultheiss and the deliberative, judgmental role of the jurymen, or Schoeffen. In either case, social criteria play a major role: being free-born, being male, having wealth, though the latter differed in degree among the Schoeffen. The distinctions related to royal service, land wealth, and noble rank are too complex to be discussed here, but it is worth noting that the privileges and obligations of bailiffs and jurymen became hereditary at an early stage, passing on to the eldest son upon the death of the father.

More than half of this book is devoted to a survey of unusual, in the sense of non-traditional, legal views and judgments relative to the role and treatment of women and children in late medieval Germany. The documentation offered here of the institutionalization of gender inferiority is instructive; a few examples will suffice: women were prohibited from acting as witnesses, except in cases involving pregnancy, and even then the confirmation of two males was required; no woman, whether young girl, wife/mother, or widow was legally permitted to speak on her own behalf but only through a male spokesperson, i.e., a husband, son, or male relative (Geschlechts-vormundschaft). Likewise, the cases cited here remind us of the legal context of the wedding night, when entering the man's bed was not just an act of physical submission for the woman but also an act of legal obligation by which she became essentially his property. In an interesting insight on this aspect of marital relations, the author discusses the concept of "tying the knot" and its connection to the blessing of the marital bed. Contrary to the typical, modern understanding of this term, the medieval belief was that under the influence of the Devil a spell could be cast on the male (nouer l'aiguillete; Nestelknoepfen) which had the effect of "knotting" him so as to cause impotence; the blessing of the bed by the priest beforehand was designed to undo such a spell, had it already been cast by witches or other evil-minded persons, thus enabling the man to perform his nuptial duties.

The Ingelheim verdicts, as the author points out, are not well known and may seem to be too regionally limited to be of value in making general assumptions about the judicial system in late medieval Germany. However, it is the strength of this book that the presentation of legal theory as embodied in the Sachsenspiegel of Eike von Repgow, the Corpus Iuris Canonici, and other medieval German codified legal sources, alongside actual case verdicts from Ingelheim and other regional courts, allows for enlightening comparisons between theory and practice.

Ingelheim's geographical location in the vicinity of Frankfurt/Main, Mainz, and Wiesbaden and its accessibility to smaller jurisdictions in the area as a source of judicial authority gave it importance in the development of legal precedents and also provided a perspective on differences of legal attitudes between northern and southern Germany in the late medieval period. At the same time, the author is careful to emphasize the regional nature of the Ingelheim verdicts and cautions against extrapolating from them to broader generalizations about Germany as a whole. Nevertheless, the point is made that Ingelheim's position and location suggest a receptivity to humanistic ideas emanating from Italy through southern Germany, a point which is used to explain aspects of liberality in comparison with older Germanic customary and codified law in the north. In a more general theoretical sense, the author addresses the increasing role and influence of the Catholic Church in the assumption of jurisdictional control in areas formerly covered by the secular courts and the gradual replacement of Germanic legal decisions with canon law precedents.

Joelle Fuhrmann's approach to legal history is interesting, embracing a range of topics including the etymological and historical development of terminology, a brief survey of the social evolution of the position of juryman, comparative references to an impressive number of medieval legal codes, and, as has been mentioned, more extensive discussion of the impact of judicial verdicts on the lives of females as wives, mothers, and widows. This latter aspect is especially important since it illustrates that the verdicts of the Ingelheim judicial system were in a number of cases significantly more liberal than traditional, customary law or contemporary law in other regions of Germany. Fuhrmann's suggestion that this hint of liberality could be traced to the influence of the humanistic tendencies moving northward from Italy during the Renaissance is provocative and merits further consideration.

It is noteworthy that a survey of this type, the establishment of legal precedents and the assessment of their social impact, even considering the selective judgments of the author, offers a wealth of information on inheritance laws, the rights of illegitimate children, the marital and extra-marital sexual behavior of women, the punishment rights of fathers over their children, and divorce laws. The substance of the text, the comparative presentation of judicial verdicts, takes up approximately 150 pages, the apparatus a modest three pages, which is to say that the areas of research suggested by the inquiry far exceed the actual material being offered. Fuhrmann's book is valuable as a starting point for inquiries related to cultural studies, legal history, the development of Old High- and Middle High German legal terminology, and studies of the role and treatment of women in medieval and late medieval German society.

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Author Biography

Richard Ernest Walker

University of Maryland