Contextes - Littératures populaires du droit - 72

LITTÉrATureS POPuLAIreS Du DrOIT

the law to those who are not professionally engaged with it. "Prudence"
(prudentia) then is another term for "professional" - "popular" comprises
everything that is not. "Popular jurisprudence" brings both together to
a certain extent ; and consequently, it bears a certain tension in it.
Plausible as this binary may seem at first glance, such definition will
end up in numerous pitfalls - even more so when medieval, and especially
medieval German history is concerned. For clearly defining a group of
professionals in contrast to those who were not will be extremely hard
and debatable for most of the period, and even beyond, once juridical
practice outside the universities is considered. After the Fall of rome,
professionalization of jurists in terms of standards for education, exams, or
any other kind of authorization markers only had just started again in the
High Middle Ages throughout europe. Juridical practice in secular courts
was - not only in Germany - essentially carried out by non-academics
and was based upon customary rather than the learned laws, as they were
taught at the law schools in Italy and France.
For early modern england and its legal tradition grounded in common
law, Penelope Geng has argued that popular jurisprudence derived from
the incommensurability between two differing understandings of jurisprudence2. First, those of the common lawyers from the royal Inns of Court
and its intellectual surrounding, who defined it as the "a knowledge of or
skill in the law acquired through study and experience", mainly based on
precedent legal cases. And second, those of the many unlearned others,
including amongst others pamphleteers, playwrights, and theologians, who
perceived jurisprudence as some kind of legal wisdom, at times certainly
also including knowledge of predecent cases, but rather built upon inner
qualities, fostered by moral and religious standards, thus arguing that
every man possessed the ability to "do" law. Taking over the custody
of a community's legal matters then would by and large be a question of
legitimate respect.
At first glance quite similarly, throughout the Middle Ages, German law
remained largely traditional and local3. That is not to say that there were no
interactions, intertextual affinities, and even transplantations of laws from
one region to the other. But in contrast to england (as well as France and
other medieval realms) there was much less of a stimulus towards any kind
of unity from the central. Both the emperors of the Holy roman empire of
as well as the German kings - theoretically, and by and large also in reality,
2. P. Geng, Popular Jurisprudence in Early Modern England (Diss. phil. university of
university of Southern California, 2014), pp. 1-2.
3. For a comprehensive overview, see K. Kroeschell, Deutsche Rechtsgeschichte, vol. 1,
rev. ed. (Cologne : Böhlau, 2005), and esp. pp. 237-244 for the few examples of earlier
reception of roman law in Germany.

Contextes - Littératures populaires du droit

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