Law, Resistance, and the State: The Opposition to Roman Law in Reformation Germany

by Gerald Strauss

Overview

Gerald Strauss offers a comprehensive study of a phenomenon of great interest to scholars of early modern Europe: the widespread opposition to Roman law and lawyers in sixteenth-century Germany.

Originally published in 1986.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691610726
Publisher:	Princeton University Press
Publication date:	07/14/2014
Series:	Princeton Legacy Library , #95
Pages:	316
Product dimensions:	6.00(w) x 9.00(h) x (d)

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Law, Resistance, and the State

The Opposition to Roman Law in Reformation Germany

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By Gerald Strauss

PRINCETON UNIVERSITY PRESS

Copyright © 1986 Princeton University Press
All rights reserved.
ISBN: 978-0-691-05469-8

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CHAPTER 1

Lawyers: A Profession under Indictment

Power and position invite hostility. The ill will displayed toward a particular group or profession is often an index of that body's perceived place in society. In the abundant literature of antipathy aimed since ancient times at professional men and their vocations, lawyers and the law must be the leading recipients of ridicule, abuse, rage, and scorn, and in the sixteenth century the perplexed resentment with which their careers and activities were viewed by a large segment of the public reached a high point. What was said about them reflects the social and political power to which lawyers had risen; implicitly it also reveals the authority and prestige conferred by this power, the arrogance they exhibited toward their fellow men, and the flimsiness and artificiality of the legal edifice itself and of the operations that kept it standing. Jests and anecdotes convey the prevailing attitude. An angry prince warns his court jurist: "I'll be an ungracious lord to you!" "Then I shall be an ungracious doctor of laws to you" answers the lawyer, and the prince gives in. In another story a jurist demands of his sovereign that a mountain be moved because it blocks his view of the sunrise from his study window. A peasant woman sees young scholars issuing from a lecture hall. Who are they? Law students, she is told, who in time will be doctors of law, advocates, procurators, and notaries. "Pity us poor folk," she wails. "In my village we have only one advocate, the sexton, and he has confused us all and made a muddle of things. Once this horde of young men has been let loose, poor people like us will never have peace again." If God were in litigation against Satan, goes the question in a contemporary joke, who would win? Answer: the devil, for he has all the lawyers on his side. A page in an emblem book shows a peasant entering a lawyer's office bearing gifts: a rabbit, sausages, eggs. The lawyer is bent over a table, eating ravenously from delicacies served by a young woman, while behind him an apothecary inserts a huge clyster into his bottom. "What are you doing?" asks the peasant. "What I always do," replies the lawyer, "taking from both sides at once." "The more rigid the law, the greater the injustice," it was commonly said; on the other hand, "there is no law without a hole in it for him who can find it." "I appeal," cries the expiring lawyer on his death bed, or, in another version of this story, applies for a delay, confident that it will be granted.

The serious substance of these taunts suggests something of the misgivings stirred up in society by the phenomenon of proliferating legal experts and their growing prominence in public and private life. This book concerns itself with Germany — that is to say, the German-speaking regions of the Holy Roman Empire — but the problem, as it was understood at the time, touched all Europe in the early modern period, and most notably in the sixteenth century, the century of state building and dramatic realignments in the association of state and church. During this time, it has been observed, "lawyers became the technicians of politics and administration," increasing greatly in number and consolidating their corporate organization as a profession and their position as a class. A large army of experts with legal training was active in society, among whom holders of law doctorates from major European universities formed the proud elite. Earning a good income and gaining high honors in state, church, and municipal office, they developed a sense of themselves as indispensable to the functioning of a modern government. Even without holding a degree, a man who had heard law lectures was respectfully referred to as "learned." If he held a doctorate he became "most learned" as well as "noble," addressed as "Edel una hochgelert Hen so-and-so, der Rechten Doctor," a title proclaiming his profession's ascent to the ranks of the aristocracy. It was a good time for ambitious young men to choose the bar as a career. Martin Luther (though he himself had renounced it and elsewhere said some very nasty things about lawyers) made this argument a prominent part of the plea for academic schooling he issued in 1530. There has never been a better moment than this to let your sons study law, he exhorted parents. "Those who are students today will soon be in great demand. Two princes and three cities will compete for every one with a degree. Look around you," he went on, "countless positions are waiting to be filled by the learned" for whom good pay is in store

and much dignity in addition to honest rewards. For chancellors, secretaries, and jurists sit at the top, advising, counselling, ruling. ... In truth, they are lords on earth, though neither by birth nor by estate were they made for such rank.

No wonder there was swift and lasting response. Throughout the fifteen hundreds, enrollment in law schools swelled, with the greatest increase coming in the last third of the century. The adage Dat Justinianus honores seemed to be borne out by experience, and many young men gambled on the prospect, exchanging years of tedium sitting over Justinian's Institutes and Digest for the promise of an exciting and lucrative career in the halls of power.

The German side of this story of a profession's climb to eminence accompanied by mounting resentment and distrust is of special interest. State building proceeded swiftly in Germany as political and ecclesiastical authority was concentrated as a result of the religious split in both Protestant and Catholic sections of the empire. Bureaucracies and bureaucratic procedures were rapidly advanced by this development. The deliberate effort on the part of church and state agents during the Reformation to reorient the thinking and alter the behavior of ordinary men and women brought the high issues of politics and doctrine down to the ward and village, where they aroused controversy and often heated passions. Lawyers — jurists, legal practitioners, functionaries with some legal training — played a leading role in these events, which is why their place and, more important, the principles governing their actions in courts, councils, and consistories, fell under so much questioning and met with such intense opposition. A full explanation of this resistance to law — specifically Roman law — and its agents will be unfolded in the course of the following chapters. The present one will illustrate the phenomenon itself.

"The word of God shall be preached faithfully and truthfully in the land, and all sophistry and lawyering [Juristerey] shall be rooted out and all their books burned." Article Seven of Michael Gaismair's draft constitution of 1526 for the County of Tyrol, part Utopia, part reform plan, written in the immediate aftermath of the great German peasant war, points to the ultimate source of distaste among laymen for professional law and jurisprudence. Truth and law — man-made law, that is — were opposites; faith and the legal mind stood as adversaries. So sweeping a rejection was, of course, not an inevitable or a universal lay reaction to the practice of law. In normal times law was accepted, utilized, even welcomed. But at moments of crisis, in adversity, a deep-seated, if latent, inclination to legal nihilism rose to the surface, not often declared with Gaismair's ruthlessness, but profoundly felt, and giving powerful expression to basic anarchic tendencies in society. To quote another instance, more obscure but no less evocative than Gaismair's, of the common disposition to see truth and law as antitheses: "We would dearly love to live by God's Word. ... But jurists and advocates are against it, for their law contradicts the Lord's command to 'do unto others as you would have them do unto you.'" Thus Argula von Grumbach, a Bavarian noblewoman, in a pamphlet describing the many burdens "with which Christ's people are being oppressed." Counterposing the enactments of men to divine commandments was a commonplace of preachers and theologians. Catholic and Protestant churchgoers were familiar with the accusation that jurists "stick to their texts" while ignoring "the principles and reasons of what is right and what is wrong." This explains the frequent citation of the ancient proverb summum ius, summa iniuria, regarded as a platitude as long ago as Cicero, but useful to sixteenth-century theologians and lay people as an argument for the superiority of equity over positive law. Trust and fidelity cannot flourish in the presence of human law; conversely, where faith and loyalty abound, no laws are needed. The equation epitomizes the moral gulf between the present time and better ages in the past. "Old chronicles," writes Johann Eberlin in A Lamentable Complaint Addressed to the Christian Roman Emperor of 1521, tell us how healthy our nation used to be. Now, however, we are beset by

false and bad faith, from which there is no escape because it is upheld by Roman law and church legislation so that no one can now be certain of his case owing to the loopholes that can always be found in it, through which common people are chased from pillar to post. Jurists and advocates go to school to learn such tricks, and they make good money from it. This is why our ancestors had little law, though they had much faith, which they kept well.

When commands of piety need to be circumvented for the sake of profit, the jurist's learning can show the way. Thomas Murner, the indefatigable Catholic publicist and pamphleteer, a doctor of laws himself but one who catered in most of his writings to common prejudices, made this one of his charges against the profession:

    And if a thing that God abhors
    You wish to gain and hold by force,
    Depend upon the jurist's books.

Law books, Jewish intrigues, and women's wiles, he says, quoting an old proverb, are the three destroyers that keep cities and countries divided against themselves.

    And even if the text is sound
    A crooked gloss is quickly found,

an allusion to the familiar complaint that judicial interpretation serves mainly to twist and subvert the law. "Let us therefore take our direction more from ancient customs than from the written laws," wrote Duke Georg of Saxony in an instruction to the justices of his appellate court in 1532, "seeing that these laws, needing interpretation, have come down to us as fabricated opinions [gemachte opinion]." For this reason, both poets and jurists are banished from the perfected societies masquerading as dream visions that were so popular as a sounding board for reform ideas at the time: both are purveyors of fiction. In one of the most far-reaching of these scenarios to appear in Germany on the eve of the Reformation, a long narrative poem called Welsch Gattung, first printed in Strasbourg in 1513, law, particularly Roman law, is portrayed as one of the chief promoters of misfortune and wickedness in the land. It crushes right and suppresses truth by enabling lawyers to turn bad into good and good into bad. "Poor old Justice" is shown as a forlorn exile, cast out of a world that has been taught to prosper without her:

    They say I'll not be missed among
    The great and eminent who throng
    High councils, learned men of fame
    Who put plain honesty to shame.
    In jurisprudence they are schooled,
    Experts in how the world is ruled.
    Against my judgment, straight and true,
    They send forth an appeal or two
    And win it in another court:
    I'm no match for this wily sort.
    For councils also I'm unfit,
    Where none but "Highly Learned" sit
    With stacks of books and a degree
    From Padua in Italy.
    They call me simple, less than bright,
    Unfit to say what's fair and right, ...

because guile and cunning are the only qualities now in demand.

Said to have turned against the ideals of truth and justice, jurisprudence was held in deep suspicion by social reformers striving to improve men and women by raising the conditions of their lives. As a human artifact, law could be no better than men themselves. Legal codes and their interpreters cannot therefore contribute to the betterment of humankind. True justice needs no stated rules and no explanations, while written law inevitably creates occasions for deceit. "Hence the proverb inventa lege, mox fraus inventa est," wrote Justin Gobler in 1550, in the preface, addressed to the emperor Charles V, to his Mirror of Laws, "which means that as soon as law and justice are brought into being, Dame Duplicity joins the company." As a jurist in high position in the city of Frankfurt, Gobler believed that adequate internal safeguards were available to protect the law from human self-serving. But laymen often thought otherwise, seeing the written law as both a product of, and an incentive to, nefarious manipulation.

These suspicions were formidably reinforced by the rhetoric of the religious reformers, especially by Martin Luther himself, who — as will be shown in detail in a later chapter — although remaining ambivalent on the social function of law and lawyers, frequently allowed his instinctive distaste for the profession to darken his references to them. Luther was emphatic on the intimate links that wedded law to power. "Whoever holds the law in his hands has power," he said, "and only God knows whether such power is right." He added: "Law rests on the fist. Turn the word ius inside out, and it spells vis, might." Lacking inherent moral force, the law can offer no instruction to wielders of power. "This is why I have no laws to suggest to a ruler. I wish only to inform his heart" — an organ open to the preacher but inaccessible to legal counsel. It was Luther's theological starting point that laws were the consequence of mankind's fallen condition and cannot therefore contribute to its improvement. "Politics and law," he preached, "don't follow from grace; they are the products of wrath." In his preface to the Old Testament of 1523 he declared that "God gave the imperial laws [that is to say Roman, or "common," law] for the sake of the wicked. ... They are laws to defend ourselves with, not laws that can teach us anything." Like the code laid down by God through Moses, the laws of civil society serve to ensure "that man learns through the law how false and evil is his heart, how far he is still from God." Luther sometimes spoke admiringly of cultures that managed to live without written codes, informed solely by their spiritual resources, and he held right reason to be a standard much superior to positive law. But where, he asked, would we today find lawgivers capable of rational legislation? In the absence of reason, we must resort to written laws for the pöbel, the common crowd. Melanchthon (who was later to develop a much more subtle view) advanced the same argument in his loci communes of 1521. "Laws and courts are necessary in order to coerce evil men," he wrote. Coercion aiming at control, then, not enlightenment leading to amelioration, is the object of legislation: a starkly negative view of the place of law in human affairs. This constricted sense accounts for Luther's and other reformers' frequently expressed disdain for civil lawyers, "whose office it is ... to teach and judge nothing but mortal, fleeting, wretched, worldly things such as lending at interest, especially where the text offers them opportunities for quibbling and hair splitting." So dismal a view so often and so forcefully expressed did much to sharpen older suspicions and prejudices in the community.

(Continues...)

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Excerpted from Law, Resistance, and the State by Gerald Strauss. Copyright © 1986 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

• FrontMatter, pg. i
• Contents, pg. vii
• Preface, pg. ix
• List of Abbreviations, pg. xi
• One. Lawyers: A Profession under Indictment, pg. 1
• Two. Law: Views And Disputes, pg. 31
• Three Reception: The New Law in Germany, pg. 56
• Four. Custom, Privilege, Freedom: The Conservative Society, pg. 96
• Five. Law and Politics: The New State, pg. 136
• Six. Careers And Social Place: Lawyers as a Class, pg. 165
• Seven. Law and Religion: The Reformation, pg. 191
• Eight. Estates: The Heart of Resistance, pg. 240
• Index, pg. 297