Contextes - Littératures populaires du droit - 78

LITTÉrATureS POPuLAIreS Du DrOIT

IV - THE BIRTH OF THE "POPULAR" TRADITION
Still, popular literature stemmed from educational purposes. But it
stressed application and usability over learned systematics. ruth SchmidtWiegand, therefore, has pointed at the roots of popular legal literature in
the tradition of the artes-literature and especially the ars memorativa, the
art of memorizing22. The popular tradition, she argues, still aimed at legal
experts - or at least those who were about to become such experts - but
sought to narrow the tresholds of a learned academic education in favour
of the broad variety of possible professional fields such legal experts would
later occupy.
If we take the vernacular to be one of the central modes of popularization, then Conrad Heyden's Clagspiegel ("Mirror of court procedure") must
be addressed as the first in the row of works that constituted what was later
coined "popular jurisprudence". Heyden was born ca. 1385, had studied
the laws at erfurt for probably only one (!) semester in 1403/04, and served
most of his life as a town clerk of Schwäbisch Hall. Insofar he represents the
characteristic type of a half-learned professional in the legal administration.
Circa 1436 he finished his handbook on all aspects of juridical practice,
explicitly drawn from both roman and Canon law23. Though already an
influential book in the manuscript tradition, the Clagspiegel became even
more of a bestseller in print, after well-known humanist Sebastian Brant
issued his slighly revised edition of the text in 1516. More than twenty
more editions were to follow up to the year 1612. Among the many works
inspired by the Clagspiegel counts ulrich Tengler's Layen Spiegel, also
published by Sebastian Brant only a year later24, as well as a number of town
laws, Justin Gobler's Gerichtlich Proceß of 1536, and ultimately even the
Constitutio criminalis Carolina of 1532, the first imperial penal law code.
When at the turn of the fifteenth to the sixteenth century more and
more learned jurists entered German law-courts, also juridical practice
absorbed an increasingly learned style. This was not so much about the
actual normative basis, which - when cited at all - still rested much upon
regional custom and traditional law books, but rather about written records,
their formulars and rhetoric, the way of finding an argument, and the idea
22. r. Schmidt-Wiegand, "Populärjurisprudenz zwischen Artesliteratur und
richterlichem Clagspiegel, "Strukturen und Funktionen in Gegenwart und Geschichte :
Festschrift für Franz Simmler zum 65. Geburtstag, ed. by Claudia Wich-reif (Berlin : erich
Schmidt, 2007), pp. 537-554.
23. For more details, see A. Deutsch, Der Klagspiegel und sein Autor Conrad Heyden :
ein Rechtsbuch des 15. Jahrhunderts als Wegbereiter der Rezeption (Cologne : Böhlau, 2004).
24. u. Tengler, Layen Spiegel von rechtmässigen ordnungen in Burgerlichen und peinlichen regimenten (Augsburg : rynmann von Öhringen, 1509).

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