Land and Lordship: Structures of Governance in Medieval Austria 9781512801064

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Land and Lordship

University of Pennsylvania Press M I D D L E AGES S E R I E S Edited by Edward Peters Henry Charles Lea Professor of Medieval History University of Pennsylvania

Land and Lordship Structures of Governance in Medieval Austria Otto Brunner Translated from the fourth, revised edition Translation and Introduction by Howard Kaminsky and James Van Horn Melton

liflft University of Pennsylvania Press Philadelphia

Translated from Otto Brunner, Land und Herrschaft. Grundfmgen der territorialen Verfassungsgeschickte Osterriechs im Mittdalter. Unveranderter reprografischer Nachdreuck der 5. Auflage, Wien, 1965. Copyright © 1984 by Wissenschaftliche Buchgesellschaft, Darmstadt. English translation copyright © 1992 by the University of Pennsylvania Press. All rights reserved

Library of Congress Cataloging-in-Publication Data Brunner, Otto, 1898[Land und Herrschaft. English] Land and lordship : structures of governance in medieval Austria Otto Brunner ; translated from the fourth, rev. ed., translation and introduction by Howard Kaminsky and James van Horn Melton, p. cm. — (Middle Ages series) Translation of: Land und Herrschaft. Includes bibliographical references and index. ISBN 0-8122-8183-7 i. Feudalism—Austria. 2. Feudalism—Germany—Bavaria. 3. Austria—Constitutional history. 4. Bavaria (Germany)—Constitutional history. I. Title. II. Series. JNI623.37513 1992 32i'.3'o9436—dc20 91-31649 CIP

Contents

List of Abbreviations Translators' Introduction Author's Preface to the Fourth, Revised Edition (1959)

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Chapter I. Peace and Feud

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1. Politics and the feud. The history of power and the history of law. Feud and plunder in political history. 2. Four Feuds: An Introduction to the Problem. Wenzel Schärowetz von Schärowa against King Ferdinand I,1541. Georg von Puchheim against Emperor Frederick III, 1453. The lords of Liechtenstein against Duke Albrecht III of Austria, 1394. The compact between King Sigismund of Hungary and Duke Leopold of Austria in regard to feuding in each other's territory, 1405. These actions cannot be comprehended in the concepts of modern public and international law. 3. Basic Concepts. "The state," power at the disposal of individuals, Territorial Peace (Landfriede}. The feud. Peace, friendship, enmity. Vengeance. Oaths renouncing the right to feud. Enmity and vengeance in modern legal thinking. Peace in the household and among kin. Peace in the land. The idea of the feud as a special case of "peacelessness" presupposes a positive legal order in the modern sense. Persistence of the feud throughout the Middle Ages. Prohibitions of the feud. All forms of feud and non-peace are "enmity." Terms for the feud in the primary sources. Can war and feud be distinguished? 4. The Feud in Practice and in Law. (a) The Legal foundation: Legal feuds and illegal, willful feuds (plunder, tyranny). The execution of "willful" opponents in a feud. The invocation of divine law. (b) The Obligation to Feud. (c) A Legal Complaint as the Precondition of a Lawful Feud: The feud was not merely a subsidiary legal recourse. Interruption of a feud by a legal complaint. (d) Those Entitled to Feud and Those Who Feuded: Knightly feuds and mortal enmity. Full and limited powers of feuding. Those who feuded: rulers, Estates of the empire, nobles, ecclesiastic

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seigneurs, towns. Border feuds. Feud against one's lord. Friends, partisans, and supporters. "Mortal enmity" on the part of burghers and peasants. The forbidden feud of burghers and peasants. Peter Passler. The feud and the peasants' sense of Right. (e) The Challenge (Absqge: "defiance"): The declaration of feud (challenge) as obligatory. "To maintain honor." Observance of the term before the feud would begin. Challenges of the supporters. Complaint of an "undeclared" feud. (f) The Means of Feuding: Killing. Taking prisoners. Plundering and burning. Exaction of tribute. The relationship between tribute and plundering and burning, the office of incendiary and incendiary rights in Carinthia. (g) Limits to the Feud: The house. Illegal force, deprivation of rights. The house of God. Those who do not have the right to feud. Exemption of enemy property granted to the church under advocacy. Property under guardianship and pawned property. During an expedition outside the territory. Transgression of these limits. (h) Consequences of the Feud: Escalation of sanctions. Impoverishment by feuds. Effects on nonparticipants, on peasants; consequences for their lords. Impact on the pattern of settlement (abandoned villages). (i) Peace (Reconciliation): Armistice. Reconciliation. 5. Feud, State, and the Law. Contemporary judgments of the feud. The feud presupposes an idea of law and rights different from the modern. The unity of power and Right in the feud. Feud, politics, constitution.

Chapter II. State, Law, and Constitution 1. "State” and "Society". The modern idea of the state. State and lordship. The disjunction of state and society. Political history, legal history, economic history. The carrying over of modern political, legal, and sociological concepts into the Middle Ages. 2. Constitutional History as the History of Constitutional Law. The manuals of German legal history are disposed according to modern categories. "The constitution" in these manuals is understood in the nineteenth-century sense. The separation of public and private law. Sovereignty. The principle of delegation of powers. The juridical personality of the state. History and dogmatic forms of thought. The manuals of Austrian imperial history. Disjunction of state and society, constitution and administration, in the modern sense. Separation of power and Right. Untenability of the usual terminology. 3. The Medieval View of Law. God and law (das Recht). The unity of law and the just. The religious foundation, the eternal divine

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Contents order (Ewa). No division between divine and positive order in the thinking of the laity. The Good Old Law. Resistance. The idea of sovereignty was alien to the Middle Ages. The historical reasons for this. The need to understand the medieval constitution on the basis of the medieval idea of law. 4. The Controversy over the German Medieval State. The distinction between a "patrimonial state" and the state as a juridical person came out of the political issues of constitutionalism in nineteenth-century Germany. Conservative and liberal interpretations. Rudolph Sohm. Georg von Below. Otto von Gierke. Gerhard Seelinger, Adolf Waas, Adolf Gasser. Max Weber. Otto Hintze. 5. Our Task. The demand for a conceptual vocabulary in accord with the primary sources. Structural history.

Chapter III. The Land and Its Law 1. The Land, or a Unit of Territorial Supremacy? Territorial supremacy as "unitary governmental power." The problem of territorial supremacy in Lower Austria. What is a Land? 2. The Nature of the Land. Lander and lordships. The Land as the political unit of agriculturalists. "Terra," "provincia." The groups designated as "the Land” 3. The Individual Territories. Lower Austria. Upper Austria. Styria. Carinthia. Carniola and the Wendish March. Cilli. Gorizia. Bavaria. Passau. Salzburg. Berchtesgaden. Tyrol. Voralberg et al. 4. The Constitution of the Land: Basic Features. Territorial suprernacy (Landeshoheit) is a precondition. The Land, its law and its people. The Land as a community of law and of peace. The individual member of the Land-community and his house.

Chapter IV. House, Household, and Lordship 1. Lordship over Peasants (Grundherrschaft, the Seigneury). (a) Seigneury or Great Estate?: Public and private lordship? Dominium and Imperium. Grundherrschaft not just an economic, private structure. Dispersion or dispersal? Grundherrschaft and the constitution of the Land. Dominion. Protection and safeguard. (b) The House as the Nucleus of All Lordship: The lordship takes its name from the lord's house. The house as an enclave of peace. The power of the house-lord. (c) The Substance of Lordship: The lord's favor or grace (Huld). Advocacy (Vogtei), wardship, power. The

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subject peasants (Holden). Loyalty. Homage. (d) Protection and Safeguard: From outsiders. Against other members of the community. (e) Aid and Counsel: Counsel in the general sense. Actions obligatory under this title. (f) Imposts, Corveé, Military Obligation: The prevailing theory of medieval imposts. Imposts in the individual Lander. Smuggling in of a modern concept of taxation. An impost is "aid." Kinds of imposts. Excises. Corvee. Hospitality. Military service. (g) Advocacy (Vogtei): Relationship between advocacy and imposts, corvee, military services. Advocacy is "protection and safeguard"; the power of the lord. Extension of advocacy over the dependents of others. Advocacy over foreigners, lodgers, hired-hands. Advocacy over holders of "free" tenancies. Advocacy over free peasants. (h) The Hierarchy of Lordship Rights: Seigneurial authority, authority over villages, administration and jurisdiction. These rights are not "delegated" rights. Their character as immunities. (i) Immunity: Origin of the legal institution. The privilege of immunity is not delegation of public rights in the modern sense. The limits of the house and the lordship vis-avis the Land. Protection and safeguard presupposed for the lord of an immunity. (j) The Structure of Seigneury (Grundherrschaft): Layers of density. Seigneurial authority. Ecclesiastical seigneury. Knightly seigneury. (k) The Relationship Between Seigneur and Subject Peasants: All relationships must be seen within the dialectic of protection and aid. Lord and peasant in literature. Influence of lords and peasants on peasant custumals. Peasant wars. 2. Town Lordship (Lordship over Burgher Communities). Town lord and burgher community. Burgher and burgher community. 3. Feudal Tenures: Ecclesiastical and Lay. The patronate. Feudalism.

Chapter V. Lordship over the Land; The Land-Community 1. Lordship over the Land: (a) The Territorial Prince (Landesherr) as Head of the Territorial Community: Magistrate in the high court of the Land. Head of the army. (b) The Land Lord (Landesherr) as Lord of the Land: His right of dominion over the Land. Advocate (Vogt) of the Land. (c) General Protection: Protecting the peace of the Land. The right of fortification. (d) Blood Justice (Blutbann) in the Lower Territorial Courts: Regalian Rights; Feudal Overlordship. (e) Specific Protection. (f) The Fisc in the Wider Sense: Prelates and Towns. (g) The Fisc in the Narrow Sense: The prince's own estates. Baillival courts (Pfleggerichte). Jews. Resident foreigners. Political importance of the fisc. The fisc and the juridical personality of the state. (h) The Concept of Lordship over the Land. (i) Lordship over the Land and Sovereignty: The formula "the prince is not bound by the laws" (princeps legibus solutus).

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2. The People of the Land. (a) The Theory of the Medieval Estates: The notion of "the Estates" based on the nineteenth-century concept of "society." (b) The Organization of the Land into Estates: Lords. Knights and squires. Prelates. Towns and Markets. Peasant courts. Foundations of the "Estates of the Land" The Estates of the Land and the fisc. 3. The Relationship Between the Lord of the Land and the People of the Land. (a) Diet and Estates in the Prevailing View: The usual definition presupposes the concept of princely sovereignty. The controversy in the Vormärz over the nature of the Estates. The Tezner-Rachfahl controversy. Otto Hintze. Deputation and representation. (b) The Oath of Fealty (Homage). (c) Joint Action in Judicial and Military Matters. (d) Reciprocal Transactions: Counsel and aid. The diet. Negotiation of counsel and aid. Tasks of the diet. Position of the Estates that pertained to the fisc in the broad sense. (e) The Development of the "Dualism" of Prince and Estates. 4. Summary.

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Glossary Bibliography Index

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Abbreviations

AISIGT AOG CA FRA HHStA HK HSM HZ JLNO MGH Const DD DtChron Ep SS SSrerGerm MGSL MIOG MonHa MLOO NWVSG NOUrk NotB OOUr OUrb OW

Annali deWIstituto storico italo-germanico in Trento Archivfur osterreichische Geschichte Codex Austriacus Fontes rerumAustriacarum. Osterreichische Geschichtsquellen Haus-y Hof-, und Sttwtsarchiv, Vienna A Hofkammemrchiv, Vienna Herrschaft und Staat im Mittelcdter, ed. H. Kampf, Wege der Forschung 2 (Darmstadt, 1964). Historische Zeitschrift Jahrbuchfiir Landeskunde von Niederosterreich Monumenta Germaniae historica Constitutiones Diplomats Deutsche Chroniken Epistolae Scriptores Scriptores rerum Germanicarum Mitteilun0en der Gesellschaft fiir Salzburger Landeskunde Mitteilungen des Institutsfiir osterreichische Geschichtsforschun0 bs Monumenta Habsburgica Mitteilungen des Landesarchivs von Oberosterreichs Neue Wege der Verfassungs- und Sozialgeschichte Niederosterreichisches Urkundenbuch l Notizenblatt. Eeilage zum Archivfur Kunde osterreichischer Geschichtsquellen k Oberosterreichisches Urkundenbuch Osterreichische Urbare Osterreichische Weistumer

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Abbreviations

SalzUr StUr VSWG ZBL ZRG

k Salzburger Urkundenbuch k Steierisches Urkundenbuch Vierteljahrsschriftfur Sozial- und Wirtschaftsgeschichte Zeitschriftfiir bayerische Landesgeschichte Zeitschrift der Savignystiftungfur Rechtsgeschichte

Translators' Introduction

Few works of medieval history in our century have had the immediate impact and long-term influence of Otto Brunner's Land und Herrschaft. First published in 1939 on the eve of the Second World War, crowned with the Verdun Prize by the Berlin Academy of Sciences in 1941, it went into a second printing in 1942 and a third revised edition in 1943. Interest in and demand for the work continued even after the war among successive academic generations in Germany and Austria. Hence a fourth edition was published in 1959, revised to take notice of new scholarship and to remove or replace terms and passages reflecting the cultural and political atmosphere in which the previous editions had appeared.1 This was to be the final version. It was reissued in a fifth edition of 1965, a sixth edition in 1973, and it is still in print. Discussion of the work continues, and if the tone has become increasingly critical, Brunner's theses nevertheless continue to define the critical issues and will do so for some time. Outside Germany, however, the book's cult has been limited to a relatively small number of scholars interested in its German and indeed Austrian subject matter, ready to read its often difficult German, and willing to consider an adventure in rethinking called for in 1939 under auspices that today seem more or less odious. But this may change: an Italian translation2 came out in 1983, and now there is the present English translation which, we modestly note, is unique in providing both an index and a bibliography. If we also offer this introductory discussion of the book's background, theses, and critical reception, it is because, like the sponsors of the Italian translation, we suppose that those unfamiliar with the past half-century of debate about German constitutional history may require such an access—especially, we may add, if they are to consider using Brunner's ideas in non-German contexts. It is not a matter of repeating what is stated clearly enough in the book itself, but rather of drawing attention to the problematics of the subject—both those responsible for Brunner's enterprise in the first place, and those generated by the book and its impact. This at any rate is why we have thought it necessary to include some explicit discussion of the Nazi matrix of the first three editions. The National

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Socialist context is evident not only in Brunner's own enthusiasm for the Anschluss and for the Third Reich itself, but also in the continued relevance of these matters to the scholarly controversies over the book's theses.

i. Otto Brunner (1898-1982): Life and Career Otto Brunner was born on 21 April 1898 in Modling, near Vienna. His father was a judge, his mother the daughter of a vineyard owner.3 Two years later his father died, and in 1909 his mother remarried, to a career officer in the Austrian army, of peasant origin and modest military rank. The family moved to Jihlava (Iglau) in Moravia, a city of twenty thousand Germans and four thousand Czechs, where Brunner attended the Gymnasium from 1909 to 1914. The family then moved to Brno (Briinn), an overwhelmingly Czech city with, however, a German Gymnasium that Brunner could attend. He graduated in 1916 and joined the army as a reserve officer trainee, subsequently seeing action in the World War. After that he entered the University of Vienna and in 1921 was admitted as a student to the university's Institutfur osterreichische Geschichtsforschung. At this time he married Stephanie Staudinger, the daughter of a district attorney. Both had been raised as Catholics but by the time of their marriage were registered as Protestants and were in fact anticlerical. A surviving friend from those days recalls that Frau Brunner was a Socialist.4 Brunner's doctoral dissertation "Austria and Wallachia, 1683-1699," written under Oswald Redlich, was completed in 1923. That year he also passed his state examinations and was given a post in the Vienna Haus-, Hof-y und Stctatsarchiv^ where his task was to catalogue the archives of Austrian noble families. At the same time he worked on his HMlitationsschrift, "The Finances of Vienna from Its Origin into the Sixteenth Century," which was accepted in 1929 on the strong recommendation of Alphons Dopsch. He could now teach at the university as a Privatdozent, then in 1931 he was appointed an "auxiliary" (extraordinarius} professor with the approval of Hans Hirsch, who had just become the Institute's director and who would remain Brunner's chief patron. By now, however, he also enjoyed the esteem of other scholars and when a "regular" (ordinarius) professorship fell vacant at the German Karlsuniversitat in Prague he was second on the list. He would in fact receive such an appointment at Vienna in 1941 after the incumbent Hans Hirsch died, and Brunner also succeeded his patron as director of the Institute.

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Land undHerrschaft had been published the year before, and we have already noted its extraordinary success. The book's acclaim was due not only to its scholarly merits and intellectual power, but also to the way it threw down a revolutionary challenge to the old order of historiography that seemed to correspond to the Third Reich's repudiation of the "bourgeois" order in general. So it must have seemed at any rate to Walter Frank, whose Reichsinstitut fur Geschichte des neuen Deutschlands was intended to mobilize the historical profession in a programmatically Nazi reconstruction of German history. In April 1941 he named Brunner to the institute's board (Beimt) and a few months later he congratulated him on his Verdun Prize, expressing the hope that scholars like Brunner would "help the ideas of a creative New Order to triumph even in the field of medieval scholarship."5 This picture of a Brunner firmly ensconced in the leading academic circles of the New Order seems confirmed by his other activities in the period. For example, Brunner collaborated with Hermann Aubin and others in editing Deutsche Ostforschung (two volumes appeared, in 1942 and 1943), a project intended to represent the progress of German scholarship on Eastern Europe in undermining the Versailles settlement of 1918. Profiting from the victories of the Wehrmacht after 1939, Ostforschung also sought to validate the extension of German Lebensmum to the east.6 Brunner was also sent to Ankara by the German government to lecture on German history, and he served in the army as a history instructor in Luftwaffe officer training schools. By this time he was a member of the Nazi party: his application for membership two months after the Anschluss of 1938 had made him a "candidate member" and so he remained for five years, until the application was first rejected in September 1943, then accepted in November 1943.7 The Austrian commission charged by the Allies with denazifying the University of Vienna after Germany's defeat found this record of National Socialist activity strong enough to justify suspending Brunner from his professorship, and on 28 August 1948, after a vain appeal, he was formally retired. So indeed were many other Vienna professors.8 Our own interest in the matter, however, lies not in what Brunner did or wrote to merit his suspension and dismissal, but only in how the National Socialist dimension of his thought and action figured in the genesis of Land und Herrschaft. This question will be addressed systematically further on in this essay. For the present we merely observe that the Vienna Institute in the interwar period was a center of rightist, German-nationalist sentiment yearning for the Anschluss that as a matter of fact would come about

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through the agency of the Third Reich and its Austrian Fuhrer. This would not have been clear in 1930, when Brunner contributed an essay, "The Historical Function of Old Austria," to a book on the Anschluss question, but it had certainly become clear a few years later when Brunner published his "The East Mark in History53 (the East Mark being Austria as seen from Germany) in Die Rasse. Monatschrift der nordischen Bewegung^ 2 (1935).9 The ardent pan-Germanists at the university, whose numbers included such leading professors as Alphons Dopsch, Hans Hirsch, Heinrich Ritter von Srbik, and Othmar Spann, as well as Otto Brunner, could not desire union with Germany without desiring to become part of Nazi Germany. Exactly what this implied would appear differently to different persons, and it must be said that in the early years of the Third Reich, the New Order seemed to promise everything to everyone who was disgusted by the apparent irrationality and unviability of the postwar republics in Germany and Austria, who yearned for an authentically German national experience, and who wanted to become part of history. That Otto Brunner was such a one cannot be doubted—we need only read the discourse he delivered at the German Historikertag in Erfurt in 1937 (hence before the Anschluss] to appreciate his triumphal sense of identity with the New Order and repudiation of the old: "It is intolerable that concepts stemming from a dead reality should still determine the problematic and standards for our own quite different time."10 This is in fact the point at which the National Socialist sense of regeneration enters the line of thought leading to Land undHerrschaft^ whose key theses formed the substance of the Erfurt address. The other Nazi involvements outlined above and responsible for Brunner's dismissal from his professorship were unrelated to the substance of his work, and one guesses that insofar as they were not merely Nazi forms of national service and careerism they were more or less ordinary. So for example Walter Frank's cultivation of Brunner was certainly due to the former's hope of halting his current fall from grace11 by touching the luster of a rising star; in any case the body of Land und Herrschaft contained nothing of what Frank called "the ideas of a creative New Order." And Brunner's collaboration with Aubin did not draw the former into the latter's chauvinistic celebration of German domination over the Slavs—such sentiments are lacking in Brunner's writings and actions, as indeed is anti-Semitism as such.12 Brunner's retirement, in any case, was easy and relatively short.13 In 1949 he was able to produce his little masterpiece, Adelines Landleben und europaischer Geist (Noble Rural Life and European Culture], in 1952 he could

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become a visiting professor at the University of Cologne, and in 1954 he succeeded Hermann Aubin as full professor at the University of Hamburg. Here he stayed until his retirement in 1967, after which, however, he continued to offer a seminar one term a year until 1973. Meanwhile he had been very active in promoting the new departures in historical thought that he had himself pioneered, although now in a wider German and indeed European context (as implied by the title of his 1949 book). In 1958 he co-founded the Heidelberg "Arbeitskreis" for the study of social history; from 1968 to 1979 he was an editor of the Vierteljahrschrift fur Sozialund Wirtschaftsgeschichte-, and he joined Werner Conze and Reinhart Koselleck in launching the multi-volume handbook, Geschichtliche Grundbegriffe.1* His essays developing and extending his original ideas into studies of the peculiar qualities of Western civilization were collected in the very influential Neue Wege der Sozialgesckichte (1956), and expanded in a second edition of 1968, Neue Wege der Verfassnngs- und Sozialgeschichte. By the time of his death in 1982 he was recognized as not only a leading figure in the profession but even a venerable one.15

2. The Critique of Traditional Constitutional and Legal History Although the substance of Land und Herrschaft consists of a reconceprualization of late-medieval constitutional history on the basis of Austrian evidence (with some Bavarian material drawn in), it begins with two chapters intended to demolish the old model of the subject generated in the nineteenth century. The implicit or explicit purpose of this model had been to find (today we would say construct) the late-medieval antecedents of the modern national state and its bourgeois-liberal societal order.16 That order had emerged out of and in antithesis to "Old Europe,"17 the corporate, hierarchical order of Europe from the twelfth into the eighteenth centuries. The foundations of this bourgeois-liberal order lay in the modern reality of the national state as a discrete bureaucratic apparatus, and in the corresponding realm of "society" as a dense, exigent, and rewarding sphere of individual action pursuing private gain and other satisfactions. The function of the state was to protect the order of society and the life and property of the individuals who made it up; the state thus occupied the public sphere with a monopoly of the public powers of legislation, police, warfare, justice, taxation, and administration. Society on the other

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hand represented the private sphere of individual action, which by the nineteenth century was thought of as par excellence economic. The ancient Greek "koinonia politike,55 rendered by the Romans as "societas civilis,55 had signified the whole order of the polis qua polity, above the level of the individual household or "oikos55 in which the citizens pursued their economic and familial interests.18 In the nineteenth century, however, "civil society55 lost its political dimension of reference and signified simply society in the disjunctive sense noted above, in German "burgerliche Gesellschaft,55 with "biirgerlich55 usually carrying both its meanings, namely "civil55 and "bourgeois.55 The disjunction of State and Society, respectively the public sphere and the private sphere, implied the restriction of the former to the protection of the latter; the nineteenth-century order was thus "liberal55 in the (European) sense that civil society was to be free of intervention by the state, the state was to be limited to protection of law and order. The disjunction was of course always sharper in theory than in fact, especially in the politically less developed German territories, but it was the theory that shaped historical conceptualization. Historians not only posed the problem of historical understanding as that of elucidating the medieval origins of the "modern55 nineteenth-century order—the State-Society disjunction—but thereby necessarily imposed the modern categories on the medieval reality, which was rendered into the typical disjunctions of state and society, public and private, might and right, idea and reality, legal and illegal.19 German "constitutional55 history (Verfassungsgeschichte)^ "traditionally studied in close connection with social and political history,5520 was drawn into the nineteenth-century mode of disjunctive thinking (Trennungsdenkeri). This occurred even though the sharp Hegelian antithesis of State and Society was not universally accepted and even though it was far more difficult, for both medieval and modern reasons, for German than for, say, French scholars to find the origins of a modern national state in the medieval monarchy. German legal history, on the other hand, had a built-in tendency to think in disjunctive terms, inasmuch as the manuals it produced had the primary function of educating lawyers and hence naturally tended to negativize or ignore all forms of legality that did not fit into the paradigm of the nation-state. Brunner directed his polemic against both lines of traditional history and showed that they could not deal positively—if at all—with the innumerable late-medieval structures in which "public55 functions lay quite legitimately with entities that in liberal disjunctive terms could only be deemed private. Nobles in their lordships,

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church corporations, and towns, all of which exercised jurisdiction, had military faculties for defense of their rights, raised money by taxation, and administered their subject peasants. The case par excellence was the feud or "Fehde" (usually called "private war," anachronistically, in English and French discourse), to which Brunner devoted the first chapter of his book. To modern eyes the spectacle of noble lords taking up arms against each other or against their prince, making alliances with foreign powers, and concluding peace treaties with their opponents can only appear as anarchy, the collapse of political and legal order. Brunner in effect decoded the feud by showing that behind the disorder and violence, which were of course quite real and painful enough, there lay a legal order of "Recht"— "Right," as in the Latin "ius," meaning variously or in synthesis not only justice but also rights and law. This was the Right implicit in lordship, "Herrschaft," of protecting one's subjects and defending one's own rights by force whenever the justice of law courts was lacking or rejected. Whatever this or that feud may have been in fact, it had the form of a legal recourse to trial by battle with victory taken as the verdict of divine justice. It had its own formulas for beginning, pursuing, and ending hostilities, its own laws specifying what might or might not be done to the enemy, and so on. This sort of thing is more widely understood today21 than it was when Brunner wrote his book or indeed when he wrote his "Contributions to the History of the Feud in Late-Medieval Austria," published in 1929 on the basis of his archival studies.22 His point, endlessly reiterated in Land und Herrschaft, was that Right was thought of as a transcendent order of divine justice. Actual or positive laws were a part of this order, but it also sanctioned all the rights enjoyed by "good old custom" whether or not positive laws of kings or princes provided for them. Indeed, the prime function of a king or prince as holder of lordship over his land was to secure all holders of rights in what was theirs. If, as Brunner wrote, modern constitutional and legal historians stood "peculiarly helpless" before the facts of the feud "because they approached them presupposing the modern state," this was only the case par excellence of their inability to deal with a societal order not based on the disjunctions between state and society, might and right, public and private. Brunner's argument (developed in Chapter II) was that late-medieval constitutional and legal history had to be conceptualized not only holistically (hence not in terms of the disjunctive categories that restricted constitution and law to the "public" sphere monopolized by the State), but also in cognitive categories derived as far as possible from the sources

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themselves—a "quellenmassige Begriffssprache." This was not a new idea— in the second half of the nineteenth century, Otto von Gierke had argued much the same in his critique of positivist jurisprudence.23 But Brunner gave it a polemical edge that in context was very creative, sometimes excessively so, as we shall see. Although he acknowledged that "nothing would be more wrong than to think that historical scholarship can dispense with modern concepts," he insisted that "these must be understood as themselves historically conditioned."24 So for example while historians must continue to use such modern concepts as, say, legitimacy or economy, they should not use them simply in their nineteenth-century senses as, respectively, signifying the exclusive legality of the central state and its laws, or the exclusively productive and chrematistic activities of modern economics.25 Brunner himself, in any case, did not shrink from proclaiming the "present-day relatedness" (Gegenwartsbezogenheit) of his own critique, as indeed we have seen in his statement at the Erfurt Historikertag of 1937. Two years later he amplified these thoughts in a programmatic article, "The Modern Concept of the Constitution and Medieval Constitutional History,"26 charging the old-line constitutional and legal historians with failure to realize "that they work according to a model that is not only unhistorical but cannot even claim to be oriented to the present." The function of history, he wrote, was "to understand the past and to serve the present"; as for the targets of his attack, "It cannot be long now until even they discover that the world they take as 'present' has long ceased to exist, and that their duty now is to discover the historical foundations of the Third Reich's law and constitution, not those of the 'bourgeois Rechtsstaaf and its basis in absolutism." Here he brought together two charges of anachronism: on the one hand the old-line historians were anachronistically forcing late-medieval constitutional reality into the disjunctive cognitive categories corresponding to nineteenth-century reality—the "bourgeois Rechtssttw?*-, on the other hand, these nineteenth-century categories had themselves become outdated inasmuch as the New Order of the Third Reich had replaced the bourgeois Rechtsstaat with a new reality. "For National Socialism the supreme principle of political thought is no longer the state but the people (das Volk) [emphasis added],... a reality of blood and race, living in a concrete order of the Volk and aware of its unity in its experience of its own community (Volbgemeinschafi)" and acting through its state, through the Nazi party, and through the army. "In this way the disjunction of State and Society has been transcended

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(aufyehoberi)^ and the central concepts of the constitution are Volk, especially the Volksgemeinschaft, and Fuhrung, leadership." The obvious question here would be whether a historical image constructed on the basis of the new present would not also one day seem anachronistic, in both senses just noted (see section 4 below). We can only observe that when Brunner declared in 1937 that "the need today is for a revision of our basic concepts (Grundbegriffe)" and when he called, in Land und Herrschaft, for a "quellenmassige Begriffssprache," a conceptual vocabulary in accord with the sources, he presumably took it for granted that the new basic concepts oriented to Volk, Volksgemeinschaft^ and Fuhrung would in fact correspond to the late-medieval sources. For he postulated a homology of the Third Reich and the latemedieval Land^ as two manifestations of basic Germanic principles of political and legal order. The late-medieval territorial polity, structured by land-community and lordship, "was not a modern type of state but a peace-community of the Germanic kind, always preserving the specific basic structures of Germanic political associations; it remained essentially a Germanic folk state (Volksstaai) which was not destroyed but only vaulted over by the post-medieval ruler-state (Herrschersttwf)"', it "can only be understood as coming out of Germanic roots."27 But so too "the basic political concepts of the Third Reich, Fuhrung and Volksgemeinschaft, are ultimately understandable only on the basis of Germanic foundations."28 The bourgeois Rechtsstaat^ on the other hand, had been spawned out of French absolutism, it was Western and un-German,29 and its sway over the German mind in the nineteenth century was responsible for the disjunctive problematics of old-line constitutional history: the search for the locus of sovereignty, the attribution of all "public" powers to the king/emperor or to the territorial princes, and the effort to prove that the exercise of such powers by nobles or other local entities could only have come about through delegation or usurpation. The problematics themselves appear in French and English historiography too, but without the stridency, elaboration, and strikingly fetishistic quality of German discourse about Staat, Genossenschaft, Recht, Steuer, Amt^ and so on. Brunner's reaction was correspondingly powerful, and there can be no doubt that if success is measured by the extent and duration of approval, then chapter II of Brunner's book must be deemed by far its most successful part. Few even of those who reject the alternative model of Land and Herrschaft^ or who repudiate Brunner's point of departure in the New Order, fail to acknowledge the utility of his critique of old-line constitutional and legal history.30

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And yet this critique consisted essentially of an application to medieval history of antiliberal, znti-Rechtsstaat ideas developed in a modern context by social scientists—Carl Schmitt, Ernst Huber, Hans Freyer, and others who attacked the Weimar order from the right and went on to become Nazis or fellow-travelers. An Austrian counterpart would be Brunner's older colleague Othmar Spann, who promoted a Catholic, corporatist political model that was similarly rooted in disgust with the post1918 Rechtsstaat. The defeat of the Central Powers in the First World War indeed brought the idea of the nation-state into a crise de conscience in every respect and at all levels. The Weimar state had to bear the burden of Germany's losses in historic territories and in their populations, of economic disaster, and of demoralizing defeat, along with the burden—common to all Western states—of carrying the nineteenth-century "liberal" idea of the State into a new era of what Carl Schmitt called "pluralism, polycracy, and federalism." This was an age in which the interpenetration of State and Society had replaced their liberal disjunction, a shift that in fact signified the victory of Society over State. The state was now "the self-organization of society," and this "society-become-state," this "welfare state," dissolved "the political" into the totality of social interests—economic, cultural, religious, and so forth. "Society organizing itself in the state is in the process of passing from the neutral state of the liberal nineteenth century into a potentially total state"',*1 Ernst Jiinger called it "total mobilization." Ernst Huber posited "totality" as the polemical counter-concept to the aufgehoben liberal disjunction of state and society;32 Hans Freyer, arguing that this liberal disjunction, although formulated by Hegel, was never fully accepted by German thinkers, traced the roots of a true "German sociology" to a series of nineteenth-century voices calling for the "reintegration of 'social' particular interests into the politically formed Volksgemeinschafi" that National Socialism would effect.33 These voices from the past can be topped off by the more recent verdict of Jurgen Habermas: "the disjunction (Trennung] of State and Society, typical for the liberal phase of capitalist development, has been superseded (aufyehoberi) by an interweaving of one with the other in the stage of organized capitalism."34 For Otto Brunner in Austria this dialectical self-negation of the liberal order, peculiarly visible in Weimar Germany, was reinforced by the selfcontradiction of an Austrian state that had no historical continuity with the multinational Habsburg Empire but no political community either with the state representing the German people. As he wrote in the preface to the 1959 edition of Land und Herrschaft, he had been brought to the

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study of the problems he dealt with in that book not only by his dissatisfaction with the traditional conceptualizations of constitutional history but also by his interest in the problematical "state" represented by the prewar Dual Monarchy. His conclusion (stated in the first three editions) that the traditional question of whether the medieval Reich was a true state institution, "made sense only in terms of the nineteenth-century opposition of state to society, but had lost that sense today," was obviously in line with the ideas of Schmitt, Huber, Freyer, and others noted above.35 Since these ideas are no longer in vogue, their importance in shaping Brunner's work can easily be overlooked. Their corrosion of the nineteenth-century idea of the state as, in Max Weber's terms, a discrete institution "possessing the monopoly of legitimate force and regularly, normally, and effectively exercising domination,"36 made it pointless to look for the elements of such an institution in the Middle Ages. Hence the problematics of the older line of German constitutional history, represented par excellence by Georg von Below's insistence on "proving that medieval German governments were true states,"37 were not to be pursued in their own terms but rather redefined, and the way was open for Brunner's reconstruction of constitutional history in the non-state terms of land-community and lordship. As Rolf Sprandel put it, "The relativization of the modern concept of the constitution that influenced Brunner's writings belongs to a post-constitutional 'Verfassungsgeschichte' that began perhaps in 1918."38 But if Brunner's politology was entirely derivative, his reconceprualization of medieval history in accord with it was something else, taking up the methods and concepts of German regional history (Landesgeschichte) and, with great originality, applying them to the problematics hitherto studied in the context of Reichsgeschichte^ the history of the medieval German kingdom or "empire."39 This will become more evident in the following section, but the general point belongs here as one of the factors involved in Brunner's critique of liberal-national constitutional history. The connection is spelled out in a passage unfortunately dropped from the fourth edition: "The more recent forms of scholarship devoted to Land and Volk are in the process of overcoming the fragmentation of history into the special subjects of economic, legal, constitutional, and political history, as well as the mere juxtaposition of these autonomous spheres as Kultur0eschichte\ instead they seek to describe the Land as a concrete order (Ordnun0)."*Q The theme also appears at the end of Chapter II, where (in the first edition) Brunner called for a comprehensive "folk history"

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(Volksgesckichte) to replace the congeries of narrowly defined special subdisciplines generated by the disjunctive thinking of the nineteenth century; in the third edition he made it "political" Volksgeschichte. In the fourth edition, to avoid "misunderstandings," he changed the label to "structural history" (Strukturgeschichte)^ a term coined (by Werner Conze) for no other reason than to put the idea of a total or holistic history, designated before 1945 by the ^/^-terminology, under the aegis of the French "histoire structurelle" promoted by the Annales school.41 What is interesting in all this is that in the cited passages and elsewhere, Brunner made it explicitly clear that the kind of integral history he originally called Volksgeschichte could also and equally well be called structural history, social history, historical sociology, or indeed constitutional history ("in the wider sense of the term"),42 which is to say that all these were deemed to be mutually synonymous. Land undHerrschaft was not itself the comprehensive and integral Volksgeschichte that Brunner looked forward to, but rather its prerequisite: "the description of the inner Volksordnung in which the Volk undergoes its historical formation at a given time."43 As we have seen, this whole line of thought was closely tied to the right-wing and eventually National Socialist rejection of the bourgeois Rechtsstaat^ of its liberal disjunctive conceptualizations, and of the old-line constitutional history generated by these. Yet this line of thought would not have retained its attractive power after 1945 and still today had it not had much deeper roots. These lay in several intellectual currents developed in the century before 1945 as oppositional or alternative to the dominant line of history oriented to the modern national state. So the idea of studying the people rather than the state, Volksgeschichte^ can be usefully traced back to the publicist Wilhelm Heinrich Riehl (1823-97) and his reaction to the revolution of 1848, which he attributed to the dissolution of patriarchal social and economic relations in the countryside.44 He lamented the decline of the "integral household" (dasganze Haus)—the household as a set of familial, social, economic, and legal relationships in which the family and dependents lived and worked under the stern but benevolent authority of the Hausvater. He saw these bonds of mutuality dissolving under the influence of the cash nexus, the growth of cities, the centralized state, and in general all of the forces leading to deracinization and the decline of the peasantry. His program could not stand up to these forces in the second half of the nineteenth century, and it was devastatingly refuted by Heinrich von Treitschke in his 1859 Habilitationsschrift*s After 1918, however, the culture of the triumphant nation-state lost its dominant power

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and RiehPs ideas were revived by radical-conservatives in several academic disciplines, most notably by the Austrian agrarian sociologist Gunther Ipsen.46 With the German national state broken and contracted, the Austrian state now German but not significantly national, there were powerful reasons to turn from state to Volk as the proper object of German selfunderstanding. The point was put very explicitly in 1933 by the Leipzig historian Erich Keyser, a proponent of Volksgeschichte: "The Volk is more than the nation; it comprises the totality of those who, shaped by blood, soil, and culture, are the real subjects of history. The nation, on the other hand, is purely a political entity. Hence the concepts of nation-state and Volk are not synonymous. . . . The national idea is directed towards the state, while the idea of the Volk transcends the state and its borders." He had in mind particularly "the substantial part of the Volk not comprised within the borders of Germany, like the Austrians or the Baltic Germans who were foreigners in their own states."47 So Brunner would write in 1938: "Adolf Hitler, the creator of the Greater German Reich, is an Austrian. The most profound source of his volkisch thought was the political experience of his youth, for he grew up among the Germans of Austria. These Germans, much more than their counterparts in Germany itself, took the Volk rather than the state as their point of departure in political thought."48 This Volk was to be found above all in the peasant community, and such communities, uncorrupted by modern urban industrial society, existed most authentically in the German enclaves of East Europe.49 Hence came the drive to Ostforschung^ promoted in the Third Reich by a number of special institutes with overtly political and expansionist programs, but also—of more interest here—with a methodology insisting on a total, pan-disciplinary approach, in which history, sociology, the study of peasant mentalities and landholding patterns, the study of racial composition, all joined, preferably in the individual scholar versed in several disciplines.50 This holistic attack was also characteristic of German Landesgeschichte^ regional history, a movement of which Brunner was to become a leading representative. Landesgeschichte was highly developed at a number of German universities from the latter part of the nineteenth century on and presented the very paradigm of what is now called social history.51 Its regional and interdisciplinary focus bore remarkable similarities to the approach we have come to associate with the French Annales historians. Indeed, Reinhard Elze has thrown out the suggestion that the Annales school of social history and its program may well have derived from the

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experience of Marc Bloch and Lucien Febvre at the University of Strasbourg after 1918, when the French took over a German university with a seminar and library of Landesgeschichte that had no equivalent elsewhere in France.52 Fernand Braudel himself noted the links between the Annales school and German historical scholarship when he wrote in 1972: "Is it by chance that Henri Berr, Lucien Febvre, Marc Bloch, and myself all came from eastern France? That the Annales began at Strasbourg, next door to Germany and to German historical thought?"53 Geopolitical vicissitudes also shaped the methodology of Landesgeschichte, which after 1918 became especially concerned with those regions lying on the fringes of Germanspeaking Europe. Hence the leading practitioners of Landesgeschichte^ Brunner, Hermann Aubin, Rudolf Kotzschke, and Otto Stolz, focused respectively on Austria, the Rhineland, eastern Germany, and the Tyrol. Here it is no accident that these were regions whose borders were redrawn or (in the case of the Rhineland) threatened by the Versailles settlement of 1918, and the resurgence of Landesgeschichte in the interwar years reflected the German right's bitter rejection of the postwar order. This must be kept in mind when reading Land und Herrschaft, whose medieval context and scholarly erudition can otherwise obscure the "present-relatedness" of Brunner's equation of the Land not with territorial sovereignty but with a transcendent sphere of Right deriving from tribal-Germanic custom. Whatever the political agenda of Landesgeschichte^ its focus on border regions yielded methodological innovations that broke decisively with traditional models of political history. The nineteenth-century concept of the German nation-state was clearly problematic when applied to border regions, where state boundaries were historically more contingent and did not necessarily coincide with ethnic ones. An underlying principle ofLandesgeschichte was the conviction that the concept of the state could not adequately comprehend the historical experience of ethnic Germans living outside Germany. Its proponents turned instead to sociology, ethnography, historical demography—precisely those disciplines and methods that Bloch and Febvre were beginning to embrace in France.54 All of this points to an indubitable and important fact: the sociological reconstruction of history (with sociology understood not in its oppositional and critical mode but in a holistic, integrative sense), which we tend to associate above all with the Annales school and to regard as implicitly democratic, had different roots in Germany. Whatever their original character, the movements of Volksgeschichte, Ostforschung^ and

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Landesgeschichte could be taken up and greatly advanced under National Socialist auspices. This is not to say that Brunner's program of Volksgeschichte, alias social history, historical sociology, or Strukturgeschichte^ was "Nazi" in any other sense. For one thing, pretty much all the important German intellectuals who identified themselves with the New Order in the early 19308 found that by the end of the decade their ideas were no longer relevant to what the established New Order needed.55 Hence it is quite impossible to say what a "Nazi" intellectual culture would have turned out to be. For another, the orientation away from the nation-state and its central institutions, the rejection of disjunctive political history and the disciplinary fragmentation it symbolized, and the general search for wholeness and "totality" in a wide range of disciplines, can be seen in many contexts of Western culture after 1918.56 They marked the historical scholarship of Otto Brunner but also of Marc Bloch, the philosophy of Martin Heidegger but also of Georg Lukacs, the social science of Carl Schmitt but also of Max Horkheimer. Hence the Nazi repudiation of the bourgeois Rechtsstaat can best be understood as a special case, the highly crystallized form of what would have emerged one way or another even if the Weimar republic had survived.

3. The New Model of Land und Herrschaft If Brunner's critique of traditional constitutional historiography still finds widespread and even enthusiastic approval, his alternative model, the actual substance of his book, has always been controversial, increasingly so in the last two decades. A strictly objective verdict today would have to be that its indubitably enormous merits have rested above all in its power to provoke and focus the thought of adherents and opponents alike. The controversies have turned on two main questions: whether the constitutional model Brunner worked out in great scholarly detail for the latemedieval Austrian territories also holds for other German Lander (few question its Austrian validity), and whether the constructions and conceptualizations of Brunner's new model proceed as he claimed from the sources, or rather from his own present-day premises. Both issues will be taken up in the next section; in what follows here the key traits of the new model will be presented in their problematical aspect, repeating Brunner's own perfectly clear exposition only where necessary to make the picture whole. The problem in general lies in the extent to which Brunner's

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postulated tribal-Germanic origins and essence of late-medieval Land and Herrschaft^ land-community and lordship, can be accepted as true; one may also ask whether they are necessary. The primal module in Brunner's scheme is Germanic Hausherrschaft^ the household lordship enjoyed by each free member of the tribe who was married and had a house with its appurtenant land. His property right in the house and land and movables was not an abstract right like property today. Rather, it consisted in the rightful possession and use designated by the German term "Gewere," in medieval Latin "dominium," analogous to the French "seisin."57 But he also had the right and obligation of protecting all those living in and belonging to the house, including his wife, children, slaves, servants, relatives, and other dependents. This was the protective power known as "Munt," and its effective reality depended on the Hausherr's ability to use force in order to maintain order within the house and to protect it from outside threats. The house was a peace-area, preserved as such by its lord's own armigerous faculty and by such warriors as he could command. All these rights and powers were sanctioned by the tribe's transcendent Recht, a divinely ordained order of justice postulated by the Germanic "sense of Right," which also gave rightful, binding force to the mutualities constituting the essence of such lordship. So the lord provided protection (Schutz und Schirm; dominium quoad protectionem)^ in exchange for which his subjects owed him both moral and material support or aid (Rat undHilfe; consilium et awcilium). The mutuality itself consisted in Treue^ faithfulness, in both directions, which Brunner like very many other German historians regarded as a characteristic and specific Germanic quality in the sense defined by Wolfgang Fritze: "Germanic Treue can be defined as a relationship of reciprocal responsibility on the basis of which each part can claim the other's unlimited and all-around commitment to his welfare."58 Finally, the "house," understood as a peace-area, was a sacred immunity within which all enjoyed their rights and lives undisturbed; this peace was what the lord protected and maintained, within the house by administering justice and outside by defending the peace of the house against enemies. The house in this sense was the kind of integral societal structure that Brunner, as we have seen, posed in contrast to the "liberal" model of disjunctions. It included as so many aspects of a single whole the political element of rule and administration, the lord's judicial function within the house, the economic dimension of the house as a center of agriculture, stock-raising, manufacture, and concentration of booty; it also included

Translators' Introduction xxix the cultural complex of moral, religious, and legal ideas shared by all as the spiritual bases of the rest. And it included the lord's right and ability to use force to defend his lordship rights. To analyze this "total" or integral structure of lordship into parts taken as objects of study in their own right, and to stop there, would be to miss the historically fundamental sense of lordship as a single whole lying athwart the semantic fields of modern categories like economy, culture, law, power, and so on. Lordship, Herrschaft, in other words, is understood by Brunner as a cognitive category derived from the realities of "Old Europe," Alteuropa, to be defined holistically in order to correspond to the self-understanding of its medieval subjects and objects; modern uses of Herrsckaft are all disjunctive.59 And in this integral sense it can only be grasped as a Germanic structure, inasmuch as the relationships integrating its elements were rooted in the mentality of the Germanic tribal peoples and their medieval descendants. The movement from Hausherrschaft to more extensive constitutional forms was a historical process that can be schematized into a logical one. When the Germanic peoples settled into the Western Roman Empire, some of the Hausherren or indeed mere warriors acquired lordship over dependent peasants, singly or in villages. Hausherrschaft thereby expanded into Grundherrschaft, most conveniently rendered as "the seigneury," which had the same structure that we have already traced. The lord-peasant relationship was of course less intimate than that between lord and family, but its principles were still based on Recht, Treue, and protection requited by aid—this last now in the form of rents, dues, labor services, taxes. On the other hand the Grundherren were not just free warriors, they were nobles by virtue of their domination of others, and the military faculties of lordship were increasingly restricted to this class. From the ninth into the twelfth century the relations among such nobles were formalized into systems of reciprocity and leadership that are usually called feudalism, with a lord-vassal relationship that historians often derive from the Germanic comitatus or Gefolge. Brunner paid little attention to feudalism, regarding it as essentially little more than an amplification or specification of lordship in general.60 In any case from the twelfth century on we find the loose, indeterminate, and shifting feudal nexus giving way to stable territorial communities of Grundherren, joined by local common interests but also and decisively by their common customary law. Such a territorial community appears in the sources as a Land or terra, both terms referring to the community as well as the land itself; its law was the Landrecht. A Land, moreover, required its own lord, who would see to the

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preservation of Recht^ which is to say the Landrecht and the individual rights regulated by it; this lord was the Landesherr or prince. This construction of the Land out of Herrschaft and Kecht requires some amplification. On the one hand there was the land-community "of men cultivating and ruling the land'5; they were the people (Volk) of the Land in the legal sense, the seigneurs or Grundherren living under the law of the land, the Landrecht: these were the "essential features" of a Land. The prince and his "territorial supremacy" (Landeshoheit) were secondary; they can be understood only in terms of the nature of the Land^ not vice versa. But this point, which Brunner asserted against the older tendency to derive the territorial constitution downwards, so to speak, as a creation by statelike rulership, does not imply (as some of his critics charged) that he thought the Land was already there before the prince came. This may have been more or less true in some cases but in general there was a dialectic in play, in which princely policy often determined the extent of the Land^ integrated diverse elements into it, and brought about the consolidation of Landrecht into a unity.61 Furthermore, although the prince's Landesherrschaft was structurally similar to other levels of lordship, so that all of these can be thought of as differing rather in their respective objects than in their intrinsic nature,62 the prince in fact had to have the additional faculty of the bannum^ the power to command obedience, granted by the king or emperor.63 The critical questions just canvassed, as well as a number of others, prompted Brunner to add in the fourth edition that "our concern is not with the history of the territories but with the structural principle of 'the Land' working in very diverse ways in the process of the Land's construction."64 He thereby claimed the right to create a generalized and indeed reductive model of the late-medieval "constitution," in which the concrete historical development during earlier centuries would be scanted and in large part replaced by the genetic postulate of Germanic continuity— sometimes stated, more often tacitly presupposed. The Germanic sense of Right, Treue^ the mutualities of Herrschaft and its integral structure—such notions are not inferred from the empirical analysis of late-medieval realities but are postulated in the confident belief that they represented tribalGermanic traits which necessarily determined the later constitutional forms of German life, even down to the Third Reich. We shall return to this matter later on; the crucial point here is that among these postulates is that of "autogenic" Germanic lordship rights enjoyed by the tribal and later nobility, even at first by the ordinary free men of the tribe who had

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houses and families. Here again we find nineteenth-century foreshadowings of Brunner's ideas in the work of Gierke, above all in the latter's (differently oriented) concept of the free and autonomous "fellowship" (Genossenschafi) as the dominant and specifically Germanic form of political association in the medieval period. But Gierke's critics, above all Below, rejected this notion and insisted that individual noble or other rights of waging war, exercising justice, exacting aid, and the like had either been granted by a sovereign—the tribal community, a king—or usurped.65 Below's view, dominant also in French and English medieval historiography of the nation-state, carried the day and was obviously called for by the historistic program of finding the medieval origins of the modern state. It could also claim to be based on the sources, inasmuch as the political theories of ecclesiastics, Roman lawyers, and others with an interest in exalting a superordinate central power naturally tended to rationalize all "public" power in terms of sovereignty. Brunner and others who were now turning away from the axiology of the nation-state to that of Volk and Land could reject the former to the extent that they could find the rights and powers later to be monopolized by the sovereign state already possessed with autogenic legitimacy by the premedieval tribesmen, in particular by the tribal nobles who had the faculties to exercise them. Germanic continuity would then carry these rights down through the centuries. Such ideas had evidently been at work when Brunner was preparing his book, but they were laid out with decisive power by Heinrich Dannenbauer a few years later. Dannenbauer's article sought to establish the existence of a Germanic tribal nobility, dominating subjects from their fortress-houses, exercising lordship over their military followers (Gefolgschafi)^ and doing so on the basis of their actual power and noble quality.66 "The noble lords had their rights not by royal grant or commission from a sovereign people, but by force of their nobility, because they were of high rank and powerful." Walter Schlesinger, who figured with Brunner and Dannenbauer among the leaders of the new constitutional history, derived the medieval from the tribal: "The nobleman's power of lordship over land and people grew out of his household lordship and his lordship of a retinue."67 The implication is put by Karl Bosl: "Household lordship (Hausherrschafi) was the cradle in which the state developed."68 The nineteenth-century model of a disjunctively conceptualized "sovereign" state, to be located in the medieval monarchy (the "Empire"), with the state power of the territorial princes derived ultimately from royal

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grants of rights and offices, was thus replaced by a model of societal integration in which state power was a set of rights contained, along with other faculties, in Herrschaft^ subject to the mutualities inherent in Herrschaft^ and originally not a matter of sovereignty sui generis but rather of superiority or supremacy—a matter of degree. The prince's state power, Landeshoheit or territorial supremacy, was the true locus of the medieval German state and was at most amplified but not derived by delegation or usurpation from the king/emperor; it was rather generated out of the autogenic rights and powers of Herrschaft. Hence on the one hand the prince's function was defined by the transcendent order of Recht that he had to preserve, the Landrecht^ the law and rights of the land-community of, par excellence, Grundherren^ seigneurs. On the other hand the landcommunity's rights under the law of the land were autogenic, which is to say, concretely, that they were grounded in Germanic continuity. This reductive model of the late-medieval polity is evidently something of an abstraction, generated out of the masturbatory Germanistic mystique that seemed intensely "relevant" in the 19308. This is not to say that it is not vastly superior to the bourgeois-liberal national-state model that it was intended to replace, that is, not vastly more capable of doing justice to the late-medieval evidence. This point will be pursued in the next section; meanwhile it must be noted that Brunner was well aware of the need to bring the model down to earth in terms of the political realities that determined the balance between land-community and prince at a given moment. The question was, who had the right or power to define what was in fact in accord with Right, Recht, in cases of conflict* In the later Middle Ages the community of the Land had to be taken into account and was often decisive; by this time it consisted not only of the old nobility but also the "knights," now recognized as noble, and the prelates and towns, so that the prince was faced by a whole set of "Estates," meeting in diets that he had to summon when he needed more "consilium et auxilium," which is to say money and military support. All of these Estates exercised lordship and all had the right (in one way or another) of waging war in defense of their rights. The princes recognized this right in principle, however much they might try to limit or suppress it in practice, and in the dualist polity it had a political import: the community capable of feuding could rightfully resist a prince who violated Right, and if they won, the decision was theirs.69 From the last medieval century on, however, the balance shifted, and Brunner describes the lines along which the constantly growing apparatus of princely government grew to a point at

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which it could suppress the feud and hence claim for itself the right of determining Right. We must add, however, that Brunner's concentration on model building in the context of an Austrian Landesgeschichte led him away from all the elements in a royal or even princely polity that lay outside the scheme of a mutuality based on securing everyone's rights—such matters as the Christian and Roman ideal of the general good, the hegemonic import of the higher culture in all its forms, the tradition and mystique of monarchy, and the development of a (disjunctively) civil society more interested in being governed than in feuding or even governing. Anyone today who finds Brunner's model potentially valuable for contexts wider than the Austrian would have to address these questions.

4. The Scholarly Reception and the Critical Issues From today's vantage point Land und Herrschaffs appearance in 1939 seems clearly to mark the conscious reaction of a whole generation of German constitutional historians against the state-oriented conceptualizations of the "bourgeois liberal" era, which ended in 1918 but lived on in the thought and work of its scholarly survivors. That the new generation consisted largely of Nazi party members or fellow travelers, ideologically stimulated to reject "the state" in favor of Land and Volk and no doubt motivated by expected rewards for doing so, need not be counted against it in scholarly discourse, and outright attacks against Brunner's book on these grounds have been few in number and for the most part light in weight.70 But politicization is always costly to scholarship, chiefly because it leads to taking for granted what in fact has to be proven, and the present case is no exception. On the one hand the basic structures defined as Land., Herrschaft^ and Grundherrschaft^ as well as Landesherrschaft^ have been perceived to contain complexities not seen by the "new school" and indeed seem to be in some cases modern constructions rather than concepts deriving from the sources (or what Brunner called a "quellenmassige Begriffsprache"). On the other hand, the new school's interpretation of latemedieval phenomena on the basis of allegedly tribal-Germanic forms and their postulated continuity in the German soul—explanations that seemed wonderfully solid and appropriate before 1945—have come to seem disagreeably Romantic, arbitrary, and in most cases wrong. Reviewing these issues in the essay "Medieval Constitutional History" published in 1986, Frantisek Graus could conclude: "What these objections add up to is that

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the theoretical structure as developed after 1940 cannot stand in its current form—too many of its premises are untrue." He called for a new "paradigm" in which the whole idea of Verfassungsgeschichte would be given up as inept.71 Here, as we have seen, he was anticipated by Brunner himself, who in 1939 envisaged a Verfassungsgeschichte oriented not to the state but to the Volk as in fact a Volksgeschichte^ which he came to realize would turn out to be "social history" or historical sociology. One can pose the question: is Land und Herrschaft to be regarded as the "pivot" of a now outmoded "new school," or as the launching pad of a sociologized history that is still flying high? One answer is to discredit Brunner's approach to social history as a misguided variant of historical romanticism. Here for example critics have charged that Brunner, in stressing the legal norms and reciprocal obligations that bound lord and peasant, romanticized the rural medieval seigneury and minimized the conflicts within it.72 But Brunner recognized that these obligations were often ignored in practice, and that the respective interests of lords and peasants diverged in fundamental ways.73 The dialectic of noble "protection" and peasant "aid" did not eliminate conflict, but provided the framework within which disputes were carried on. Indeed, argued Brunner, the mutuality that governed lord-peasant relations established a sphere within which peasant resistance could legitimately take place—a function similar, say, to Eugene Genovese's planter paternalism in the antebellum South. This mutuality found expression in a passage from the thirteenth-century Schwabenspiegel, quoted by Brunner at the head of Chapter 4: "We should serve our lords for they protect us; if they do not protect us, justice does not oblige us to serve them." As for Brunner's Germanistic theses, a quite negative scholarly consensus seems clear. So the transcendence of Recht has been held to be a late phenomenon rather than a primitive one, indeed Christian rather than Germanic, and the very idea of custom as the embodiment of this Recht has been questioned inasmuch as the Old German word for custom, "giwonaheite," was a caique of the Latin "consuetude."74 The "so-called Germanic Treue" was savagely demolished by Graus in 1959, defended by Walter Schlesinger in 1963, redemolished by Graus in 1966, and again by Karl Kroeschell in 1970 ;75 its function in the Germanic "following" or war-band (Gefolgschaft, comitatus] had been seriously discredited in a now classic article by Hans Kuhn in I956,76 and replies by Schlesinger and others have not been generally convincing. As for Herrschaft^ Kroeschell has argued and Graus has agreed that there was no term for it in Old

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German, no evidence in the sources for a tribal-Germanic Hausherrschaft^ and Kroeschell and others have refuted Brunner's essential association of Herrschaft with Munt^ the allegedly general protective faculty of the lord.77 The closely related institution of the feud as a legal modality of the lord's defense of his rights, which Brunner derived from the Old German blood feud, was held by Heinrich Mitteis to have been a quite distinct phenomenon deriving from feudalism (which Mitteis, whose speciality this was, charged Brunner with generally disregarding); others have reemphasized the feud's destructiveness.78 As for the allegedly autogenic rights of the holders of Herrschaft^ they have been challenged by a number of scholars, although equally weighty voices still assert them.79 Finally, the fundamental concept of Grundherrschaft^ understood as fusing the seigneur's ownership of the land with his lordship over the peasants living on it, has been called into question: it is not as such to be found in the sources and it postulates as intrinsically unitary a combination of faculties that did not always exist and that could well have been put together in particular cases by particular conjunctions.80 Belief figures strongly in all this discussion, and a nonexpert can hardly judge the technical arguments just canvassed, beyond noting that the weight of scholarly opinion now seems on the side of skepticism. But it is hard to disagree with the main thesis of Mitteis's long review-article, devoted to the first edition of Land und Herrschaft^ that much which Brunner simply claimed to come from Germanic tribal institutions in fact arose in the context of feudalism. That is to say, even if one believes in Germanic continuity, as Mitteis notably did, one must not reduce concrete historical developments to mere epiphenomenal manifestations of an ethnic or racial constant. The point is paradoxically reinforced by Brunner's readiness to remove the Germanic-continuity thesis, along with terms like Volksordnung^ from the 1959 edition of his book by mere excision of overt phrases and passages in that sense, as well as of the whole original conclusion. As he put it in his preface to the fourth edition, he "thinks differently today." But how then, as Hans Boldt asked in 1987, is one to understand the continued success of Brunner's book in the 19505 and beyond, after its central explanatory categories had been taken out?81 Here we may cite the prescient words of Carl Brinkmann, writing—strikingly—in 1940, that the contemporary revolutionary transformation of "our" view of the past should not lead historians away from trying to understand things as they were. Brunner, in Brinkmann's view, had to some extent succumbed to

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such an "ideologizing" tendency, and his use of "fashionable slogans like 'Volksgeschichte, Volksordnung, Landvolk,' arouse suspicions fundamentally similar to those provoked by the criticized categories of liberal sociology."82 And we can add that the same applies to romanticized Germanic continuity. The fashionable slogans and Germanic postulates were obviously not necessary, for Land und Herrschaft retains its power even after they were removed. Peter Blickle in 1983 called the work "one of the most important works of German historiography in our century"; thanks to it, Othmar Hageneder wrote in 1987, "we all see the inner structure of the Middle Ages otherwise than before"; and in 1990 Thomas Bisson could still refer to the work as "a powerful if tendentious critique of prevailing modes of political history."83 So for example the far-reaching implications of Brunner's discussion of the late-medieval feud are not invalidated by tracing the feud back to feudalism rather than to the Germanic forests, and the constitutional import of the idea of Recht as divine and transcendent is not dissolved by locating this idea in the Christian rather than the tribal centuries.84 We shall return to the "present-relatedness" of Lund und Herrschaft in the next section. Although discussion of Brunner's concept of the Land has usually centered around his construction of Herrschaft, Brunner's treatment of the Land deals not with the abstractions involved in deriving late-medieval lordship from allegedly tribal mentalities, but rather with the actual institutional and legal structure of the late-medieval German territorial community and its princely government. He would no doubt have been delighted to ideologize it, but he was after all a scholar, devoted first and foremost to what he was studying. The most he could do was claim, as we have seen, that the Land was "a peace-community of the Germanic kind," "essentially a Germanic folk state (Volksstaat}" and as such homologous with the Third Reich's constitution of Volksgemeinschaft and Fiihmng. But as Heinrich Mitteis pointed out in his review of the first edition, Brunner's "L^wrf-community" was "nothing other than the association of the territorial nobility, consolidated by a natural unity based on ties of blood."85 In a number of short essays published in the late 19305 and early 19408, Brunner himself observed that the "people" of the Land (Landvolk., Landleute) were "only a very small stratum of nobles."86 This is not much of a Volksgemeinschaft. On the other hand, Brunner's idea of the Land as a system of lordships has seemed to some critics to be a projection of the "total" and integral—that is, not disjunctive—societal ideals of his mentors— Schmitt, Huber, Freyer, and Ipsen.87 This is not per se a point against

Translators' Introduction xxxvii Brunner's concept of the Land. But it does lead into the scholarly issue touched on above, namely whether Brunner's model does not imply the developmental priority of Land-community to prince. The implication is there inasmuch as the conceptual generation of the Land out of the basic Herrschaft module cannot be laid out in a meaningful syntax without evoking the image of generation in time. But we have already noted explicit acknowledgment of variety among the Lander^ some of which indeed owed their unity to the prince. In any case, as Brunner noted in his preface to the fourth edition, his original hope that his Land model based on Austrian evidence could be schematized into a typology comprising all the German Lander has had to be at the very least deferred. His later study of the northwestern territories showed him how different these were from his model, and similar observations have been made by others about Meissen and the lands between the Elbe valley and the Oder.88 The question as to whether Brunner's reductive model of the Land can be developed into a typology that could include other German Lander besides Austria (where recent scholarship confirms it),89 and even perhaps—we would suggest—the non-German polities of Western Europe, turns in part on whether it is possible or useful to pose the basic latemedieval political module of a land-community based on the common possession of a Landrecht^ the law of the land, by its noble members and others enjoying rights of lordship. This is partly a technical question, not to be gone into here except by reporting scholarly opinions. It is also a methodological question of whether more is gained than lost by positing common forms and regarding differences as so many variations to be accounted for in each case. There are, however, other lines running contrary to Brunner's model, foreshadowed by Mitteis's insistence on the continued importance of feudal relations and even by his then-opportune charge that Brunner underrated the importance of Fuhrung^ specifically the prince's role in constructing Landrecht^ developing a judicial system, promoting internal colonization and clearing, and in general consolidating the Land by the elaboration of government.90 Mitteis also pointed to the importance of both adversarial and collaborative relationships, usually feudal in form, between prince and Estates, leading up to the early-modern Standestaat.91 Postwar scholarship has confirmed these judgments along with other lines of emphasis on a princely power that transcended the dialectic generated by the Land-community. So Wilhelm Janssen, doubting the substantive importance of late-medieval feudal relations, has insisted on a

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historical rather than a schematic understanding of the political phenomenon of the Estates, whose political rights he sees not as autogenic but as the result of concessions made by the prince out of political necessity.92 And other scholars, enough to amount to a consensus, have not so much rejected Brunner's Land, which is indeed usually cited with respect, as moved beyond it into studies of how in this Land or that the decisive actions were those of the princes pursuing their own interests.93 We read, for example, of the "reification" of princely rights to be inferred from the princes' frequent grants, sales, and pawnings—not only of governmental rights pertaining to their territorial supremacy but also of parts of the territory itself.94 All this is, to be sure, compatible with Brunner's description of the constitution of the Land, inasmuch as he carefully distinguished between the prince's general and narrow spheres of lordship,95 the former over the L^d-community, the latter over those directly subject to him as constituting his fisc (Kammerguf). It was in the narrow sphere of lordship that he pursued his "own" policies, bought and sold rights, made use of feudal relations;96 with the people of the Land in general, however, his action was subject to the dualism of rights manifest in the diets. But the point here would be that insofar as scholars have pursued the actual history of this or that late-medieval territory, they have had to focus on the development of princely lordship in all of its complexity, little of which can be deduced from Brunner's structural model. While this is not to say that the pre-Brunnerian search for the elements of the modern state has returned in triumph, it does seem that the focus on princely action and initiative in developing Landesherrschaft involves an emphasis on what was or was becoming "public," in the sense that it had a different quality from the lordship rights held as property by the individual. In the case of the early-modern period, on the other hand, the tendency in the scholarly literature is somewhat different. Since in Germany this was the period of territorial state-building par excellence, early-modern historians have traditionally been less constrained than their medievalist colleagues in making princely policies and institutions the object of analysis. But recent decades have seen a shift in emphasis: historians have become far more sensitive to the obstacles to territorial absolutism, the continued vitality of "Old European" structures and mentalities, and the degree to which relationships of authority in early-modern Germany remained highly personal, reciprocal, and continuous with specific rights of property and lordship. Here Brunner's concept ofHerrschaft has proven

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especially fruitful, and it continues to figure prominently in discussions of territorial rulership, household structure, and lordship relations.97

5. Germany, Europe, Western Civilization Although B runner did not revise Land und Herrschaft thoroughly enough to relocate the work in the world after 1945, the essays he later published in his Neue Wege der Verfassungs- und Sozialgeschichte (New Paths of Constitutional and Social History) can be taken as a substitute. Here, always implicit and often explicit, we find the theme of European—or Western— civilization as unique, as a unity, and as the origin of a global culture: "Here and only here, on European ground, have there been breakthroughs and new forms whose fulfillment has taken over the whole world."98 Can this civilization be understood as rooted in the social structure of premodern Europe—"Old Europe" (Alteuropa), as Brunner called it, following Burckhardt?99 Brunner's answer was of course yes, but how do we get from the present-relatedness of Volksgemeinschaft and Fiihrun0 to the present-relatedness of Western Civilization as a world order:1 "Today Germany, tomorrow the world," as some will no doubt say, and rightly: but that is precisely the problem. Easy answers would be superficial even if true, for it is not basically a matter of one man's way of navigating the seas of life, but rather the question of how to understand the Nazi movement and Nazi Germany as an integral chapter of German and European history. Brunner's reconsiderations after 1945 were not a jump from one set of convictions to another. Rather, they were an elaboration of the European dimensions of historical views that had originally presented themselves to him in a German and indeed Austrian context, focused by the Nazi New Order but not otherwise related to it. More exactly, as Brunner himself stated, the relationship between the Third Reich and the latemedieval L#^-community did not lie in any historical continuity but only in their common Germanic roots,100 a kind of metaphysical essence that had more to do with faith than with scholarship and that Brunner could give up without apparent regret.101 The focusing effect of Nazism that has just been mentioned poses a practical problem that will no doubt someday become much less acute than it is today. This is the problem of "historicizing" National Socialism, or as Martin Broszat put it, "the necessity but also the difficulty of

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understanding National Socialism as an integral chapter of German history."102 The difficulty is of course easily avoided by taking Nazi bestiality as simply the supreme manifestation of German vices to be observed throughout German history. But this is no more historical than the invocation of Germanic continuity as a constant source of constitutional virtues like Treue and Recht. Another and more usual way of being nonhistorical is to diabolize the Nazis as so evil that historical understanding cannot grasp them in its normal categories of continuity, variation, and change. So, for example, Germans generally speak not of German crimes but of Nazi crimes, as though the Nazis were malignant beings from outer space who had somehow fastened themselves on the German people. On the other side there is the kind of historical explanation in terms of mass society favored by emigre sociologists, and best represented by Hannah Arendt's The Origins of Totalitarianism. This interpretation accounts for National Socialism as one exemplar—par excellence to be sure—of new movements and mentalities arising out of the inner disintegration of the bourgeois-liberal Kechtsstaat and its cultural order; totalitarianism is thus the political order of a mass society. The class society it replaced had had an inner principle of rationality, its forms and goals limited by the various interests of the several classes, but the rootless and atomized masses found their salvation in "the movement," a total drive to endless power, limited only by military defeat. As persuasive as this vision may be in its own context, it has not turned out to be generally definitive. For mass society elsewhere did not become totalitarian, and since 1945 we have seen the triumph in Germany and the rest of Europe of a mass-consumption society with a culture of permissive pluralism that is firmly tied to a democratic political order. Unless one is to regard the National Socialist period as an arbitrary deviation, one must somehow tie it into this history fore and aft. Such a "historicization" of the Nazi period would begin with the now obvious fact that the bourgeois-liberal order, with its dichotomy of State and Society, had already ended with the First World War. What followed in Weimar Germany and elsewhere was a state penetrated by social interests and forces, the early stage of what we have today.103 The Nazi movement responded to the needs and desires that the Weimar polity generated but did not satisfy. The extravagant ideology of National Socialism was much less important here than its "vaguely populist attraction," its ability to mobilize a potential for change at every level and in every local situation.104 Its "dynamic function in society"105 was also a "modernizing function";106 at the same time, of course, it also evoked and crystallized a

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sense of national power that the Germans had missed in the Weimar years. From 1933 to 1938 a relatively decent German could support the Nazis or even become a Nazi for these reasons, which is to say that the bestial criminality of the years after 1938 was not necessarily predictable before.107 Volksgemeinschaft and Fuhrung^ as alternatives to the free individual's pursuit of happiness and the free play of democratic political institutions, are today generally deprecated, but they were not per se criminal principles. It is true that the definition of the Volk in terms of "blood and race," which we have already seen espoused by Otto Brunner,108 obviously implied the anti-Semitism given effect in the Niirnberg laws of 1935. But "the future murderous radicalization of anti-Jewish measures could not be foreseen" therefrom.109 However far one is or is not willing to go along this line, the basic point remains: the National Socialist regime brought progressive, constructive changes in many fields, and their historical import cannot be adequately understood as merely functional elements of a Nazi New Order destined to perish amidst the wreckage of its crimes.110 These progressive constructions survived 1945 to become part of the democratic mass society of the German Federal Republic (and, mutatis mutandis, of the former GDR). In other words one can think in terms of basic continuities from 1918 to the present, not excluding 1933-1945.m So too with Otto Brunner's historical thought: its origins lay in the antiliberal thinking of pre-Nazi Weimar intellectuals like Carl Schmitt and Hans Freyer, and perhaps in the corporatist mood of the Catholic Othmar Spann and the volkisch social thought of Giinther Ipsen, both Austrians like Brunner. What the Nazi regime brought in 1933 was essentially a crystallization, perhaps a wise de conscience that made the basic issues stand out in their sharpest form.112 So indeed it seemed to Brunner himself, as we have seen. But the collapse of the Nazi order did not terminate lines of thought that had been flourishing before it. Indeed, one is struck by the apparent ease with which Brunner, like other postwar Germans and Austrians who had been compromised by their earlier complicity with the Nazi regime, was able to move from a Germanocentric perspective to a European and "Western" one. One could of course dismiss this shift as patently opportunistic, or—more generously—see it as an act of contrition on the part of defeated people now eager to embrace the liberal and Western values they had once repudiated. Neither possibility excludes the other, but both obscure the extent to which this new allegiance to Europe and the West was consistent and continuous with earlier lines of thought. Here an instructive example is Hermann Aubin and Ostforschung, which

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in postwar Germany obtained a new lease on life as Eastern Europe became the focal point of geopolitical conflict between the Soviet Union and the West. Where Ostforschung in the interwar period had served to justify German claims to the east, it now acquired a new legitimacy through its ideological service in the Cold War.113 What made the "new" Ostforschung different, as Aubin noted in 1952 in the newly launched Zeitschriftfur Ostforschung, were the dialectical oppositions on which the discipline now rested: the antagonists were no longer Germany and the East, but Europe and Soviet communism.114 The decidedly European dimension of Brunner's postwar scholarship, its preoccupation with the uniqueness of European civilization, must be seen in the same light. His essay "Europaisches und russisches Burgertum" (1954), for example, distinguished the European city of the medieval and early modern period from its "oriental" counterpart in Russia.115 In the new conditions of postwar Europe, of course, the volkish terminology that had pervaded German-language scholarship under the Nazis was now suspect and had to be modified accordingly. Hans Freyer, for example, had defined his subject in the Nazi years as "das politische Volk"; after 1945 he changed this to "mature (ausgereifte) industrial society."116 We have already discussed Brunner's terminological shift from "folk history" to a variety of alternatives, and he observed in the Neue Wege that one could hardly speak of a "Volksordnung" when dealing with Europe.117 But the real point here is that Brunner's Land und Herrschaft never really described a Volksordnung either, since the Volk was only a very small group of nobles. Nor was the prince a Fuhrer, and as Mitteis and others charged, even the "leadership" that the prince in fact exercised had been slighted in Brunner's account. Here we may add that Brunner's idea of the Germanic sense ofRecht as a transcendent, divine order sovereign over and determining the actions of both Land-community and prince was quite alien to the National Socialist sense of Recht. In National Socialism, as Ernst Huber put it, "Justice . . . is not some abstract idea above the state and above the people; . . . it is rather the people's justice (die volkische Gerechtigkeii] whose highest values are the people and the state."118 Whatever appearance of Nazi trailblazing Brunner lent to his book by salting it with "fashionable slogans" and giving it a rousing Germanist-New Order conclusion, it was in fact a profoundly aristocratic construction of the latemedieval order. In the fourth edition he could strip away the modish jargon without affecting the substance. Or rather: once these elements were removed, it became clear that what Brunner had understood as the

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manifestation of Germanic continuity had to be understood in terms of the late-medieval societal reality itself, by means of a sociology of power, legitimation, and interest. Brunner moved a long way in this direction in his Neue Wege essays, which still move on the axis of lordship and nobility but without the narrowing imposed by Austrian and Germanist conceptualizations. Here Brunner's thought could range over the whole of Western civilization, and his interest in "the constitution" could give way to a more ambitious interest in how the paradigmatic human material of Western civilization—the noble man and his noble virtues—was formed. Burghers and peasants appear here in important contexts, but always in relation to their noble models or lords.119 A still wider problem posed by Land und Herrschaft appears when we forget the Third Reich and ask what is implied by the movement from the "developmental paradigm,"120 in which the story of the past was told as a sequence leading up to the nation state, to the "historical sociology" of Brunner's Landesgeschichte writ large. For this poses the same problem inhering in the historical sociology of the Annales school, whose parallels to Brunner were noted uncomfortably by Fernand Braudel.121 Brunner's framework of "Old Europe" from the twelfth to the eighteenth centuries is the longue duree par excellence, and it has aroused the same criticism among Germans that has accumulated around the French program, namely that a structural analysis of long-term constants is not history.122 Brunner would no doubt agree: as we have seen, he thought of Land und Herrschaft as the description of the Volksordnung^ not as itself the Volksgeschichte that the description would make possible. At any rate, it is far from clear whether social historians today have proven any more successful in reconciling the analysis of structures with the study of historical change. A German case in point is the "historical social science" of the so-called Bielefeld school, whose leading representatives (e.g., HansUlrich Wehler and Jiirgen Kocka) rose to prominence in the 19705 and were themselves critical of the static conservatism they associated with Brunner's variant of structural history.123 Yet they have hardly had the last word: their attempt to blend "synchronic" and "diachronic" analysis, rooted as it is in a model of development derived from Weberian sociology and modernization theory, has been challenged in terms not unlike Brunner's earlier critique of nineteenth-century historical scholarship. In this case, however, the most trenchant challenges have come from the left rather than the right. The chief target has been the attempt by Bielefeld historians to explain Germany's "special path" (Sonderweg] to National

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Socialism as a historical divergence from the "normal path" of Western modernization. Just as Brunner had attacked traditional constitutional historians for viewing late-medieval political reality through the distorting prism of the nineteenth-century bourgeois Rechtsstaat^ critics have charged that the Bielefeld model implicitly enshrines the liberal, AngloAmerican path of modernization as the historical norm against which all forms of social and political order are to be evaluated.124 The pronounced ethnographic turn in recent German historical scholarship, as seen in the movement known as Alltagsgeschichte (the history of everyday life),125 has likewise attacked "historical social science" but on somewhat different grounds. Here the target is the alleged tendency of Bielefeld historians to package historical experience into the tidy but abstract processes of modernization, industrialization, bureaucratization, urbanization, and so forth. These critics call instead for an ethnological hermeneutics capable of decoding the "otherness" of a past whose density and complexity will inevitably elude the presentist categories of the modern social sciences. "It is no solution," as one proponent of Alltagsgeschichte has written, "simply to appropriate or borrow concepts and theories from the social sciences and then integrate them into works of history."126 All of this evokes a sense of deja vu for the reader of Land undHerrschaft. Brunner's ideas still resonate amidst the methodological debates of the present, and as the post-1945 order unravels in the wake of German unification, the reemergence of independent nation-states in Eastern Europe, and the projected unification of Western Europe, the issues addressed in Land und Herrschaft remain as topical today as they were in 1939. For now too, the passage from an old order to something new requires a rethinking of cognitive and explanatory categories previously taken for granted. All of this testifies to the depth and originality of a historian whose work, as mentioned earlier, has largely been the province of German-language scholarship. It is our hope that this translation will help put an end to this scholarly isolation, and that those who read Brunner will find him as rich in insight as we have.

6. The Present Translation This is a translation of the fourth and definitive edition of Land und Herrschaft (the fifth and sixth editions are reprints of the fourth). Brunner's work on this revision was necessary not only for scholarly reasons but for

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the political reasons noted earlier in this introduction. It seems obviously to have been done rather economically, as a substitute for the full-scale reworking that would have been ideal. As a result one often finds the flow broken by insertions and excisions; we have sometimes had to resort to the third edition to establish logical continuity, although we have only rarely given third-edition readings, and always in brackets. Brunner's German style, moreover, is recognized even by Germans as difficult and rough, and like much German academic discourse it runs to an amplitude of wordy particularization that would, if reproduced literally and in order, read strangely in English. We have tried to cope with this incongruity by recasting his sentences into good English ones that still preserve what he has in fact said. Often enough, indeed, we have had to recast his paragraphs to make the sentences flow in logical sequence, again without sacrificing fidelity. In translating the extensive quotations of Austrian Middle High German material we have had recourse to some expert advice as well as to Lexer's glossary; we can only hope that we have done well. As for the many medieval terms that appear not only in the quoted sources but in Brunner's own discourse, we have accompanied our translation of them with the German terms in parentheses; when a given term appears frequently in a short space we sometimes give it in German after the first translated case; all of these difficult or technical terms are explained in a glossary. Finally, our provision of an index and bibliography has made it possible to eliminate a number of cross-references in the footnotes. We had hoped that the Italian translation of 1983, noted above, might be of some help at hard passages, but it turned out not to be. It is in fact extremely unhelpful, not only because the really hard passages from the sources are left in German but also because of its curious alternation of exact translation with mistakes that are unbelievably frequent and often ludicrous. There are hundreds of such and there is no point in making a list of examples. We offer but two, to indicate the level of despair: (i) On p. 351 ofL&H there is mention (n. i) of property lying outside the area of a town (so handelt es sich um ausserhalb des Stadtgebietesgdegene Grunde)', on p. 498 n. 388 of the Italian version we read, "cio awiene per ragioni estranee all'ambito cittadino." (2) On p. 370 ofL&Hwc read of a conflict about an islet or island meadow in the river (um eine im Strom gelegene Au); the Italian version has, p. 526, "a causa di una quantita d'oro trovata sul fondo del fiume." With this melange of chemistry and Nibelungenlied we take leave of the matter. We wish to thank those who have helped us in our work in one way

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or another: Dr. Hedwig Brunner who supplied documents and information relevant to her father's life and career; Dr. Herwig Wolfram, director of the Institut fur osterreichische Geschichtsforschung in Vienna, for hospitality and other aid; Dr. Herwig Weigl, also of the Institut, for bibliographical assistance; Dr. Antonin Hruby for help with Middle High German; Dr. Otto Gerhard Oexle, director of the Max-Planck-Institut fur Geschichte, who shared his ideas about Brunnerian issues; Patsy Stockbridge of the Emory University History Department who typed the manuscript; Andrea Kluge, who helped track down some of Brunner's more obscure bibliographical references; and the Institute for Advanced Study (Princeton), Florida International University, and Emory University for financial support.

Notes 1. The first edition: Land und Herrschaft. Grundfmgen der territorialen Verfassungsgeschichte Sudostdeutschlands im Mittelalter. Veroffentlichungen des Instituts fur Geschichtsforschung und Archivwissenschaft in Wien. Band i. Baden bei Wien, 1939. The third edition, with the same title: Briinn-Miinchen-Wien: Rudolf M. Rohrer Verlag, 1943. The fourth edition: Land und Herrschaft. Grundfragen der territorialen Verfassun0s0eschichte Osterreichs im Mittelalter. Wien-Wiesbaden: Rohrer Verlag, 1959. (Note that in the first three editions, after the Anschluss, Austria was deliberately called Southeast Germany.) In what follows, L&H alone will refer to the fourth edition; the first and third editions will be so indicated. 2. Terra e Potere, trans. Giuliana Nobili Schiera and Claudio Tommasi, Arcana Imperii, 3 (Milan, 1983); Italian interest in Brunner's thought has led to the translation of all of his books and, most recently, to an Otto Brunner Conference of German and Italian scholars in Trent, 1987; the proceedings are published in Annali deW Istituto storico italo-germanico in Trento 13 (1987): 9—205 [henceforth "AISIGT13"]. For an instructive report on the conference see Reinhard Blankner, "Spat-Alteuropa oder Fruh-Neuzeit?" Geschichte und Gesellschaft 13 (1987): 559-64. 3. Here and below, data not otherwise documented come from James Melton's investigations in the Archiv der Universitat Wien (Personalblatter Otto Brunners), in the Vienna Allgemeines Verwaltungsarchiv (Bundeskanzleramt: Personalakten Otto Brunners), in the Vienna Krieysarchiv (Kriegsministerium: Militarische Personalunterlage und Versorgungsakt Josef Eder), from his conversations with Heinrich Fichtenau and Erich Zollner, and from documents kindly provided by Otto Brunner's daughter, Dr. Hedwig Brunner. See also Robert Jiitte, "Zwischen Standestaat und Austrofaschismus. Der Beitrag Otto Brunners zur Geschichtsschreibung,"/#/;?*&//£/; des Instituts fiir Deutsche Geschichte 13 (1984): 23762; also Otto Gerhard Oexle, "Sozialgeschichte—Begriffsgeschichte—Wissenschaftsgeschichte. Anmerkungen zum Werk Otto Brunners," VSWG 71 (1984):

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305—41. Oexle's essay remains the only comprehensive discussion of Brunner's thought. 4. Statements by Heinrich Fichtenau to James Melton, 20 July 1986. 5. Helmut Heiber, Walter Frank und sein Reichsinstitut fur Geschichte des neuen Deutschlands (Stuttgart, 1966), 609, 711, 927. 6. H. Aubin et ah, eds., Deutsche Ostforschung i (1942): editors' preface; cf. n. 12 below on Aubin, and n. 50 below on Ostforschung. Brunner was also active in Ostforschunpj as the first director of the Southeast German Research Association (SudostdeutscheForschungsgemeinschafi), a joint creation of the German Foreign Office and the Ministry of the Interior. Formed in 1940, the association included among its duties "the preparation of scholarly materials [to aid in] political decisionmaking." Cited in Gernot Heiss, "Von Osterreichs deutscher Vergangenheit und Aufgabe. Die Wiener Schule der Geschichtswissenschaft und der Nationalsozialismus," in Willfahrige Wissenschaft. Die Universitat Wien 1938 bis ip4S, ed. Gernot Heiss et al. (Vienna, 1989), 53—54. 7. Brunner's initial difficulty in obtaining party membership owed partly to his wife's apparent opposition to the regime. In response to Brunner's application, the local party organization noted on 21 September 1938 that Stephanie Brunner "even now [rejects] the folk community (Volksgemeinschaft)" that is, the Nazi regime. See Heiss, "Von Osterreichs deutscher Vergangenheit und Aufgabe," 52. That Brunner did not apply for party membership until after the Anschluss was also held against him (ibid). The Nazi Party in Austria tended to look upon post-1938 applicants as opportunistic "March Nazis" (Marznationalsozialisteri), March being the month of the Anschluss; these were compared invidiously with the "old fighters" (alte Kampfer)^ who had joined the party earlier and were presumably more committed to the movement. 8. Jiitte, "Zwischen Standestaat und Austrofaschismus," 248—Of 130 Vienna professors, 71 were compulsorily retired in 1945, 15 suspended; only 41 could continue as untainted by complicity in the Nazi regime. Of the four full professors on the Vienna history faculty, three (Brunner, Wilhelm Bauer, and Heinrich Ritter von Srbik) lost their positions. See Heiss, "Von Osterreichs deutscher Vergangenheit," 399. "Die geschichtliche Funktion des alten Osterreichs," DieAnschlussfrqge in kultureller, politischer und wirtschaftlicher Bedeutung, ed. Kleinwachter-Paller (Vienna, 1930), i-u; "Der ostmarkische Raum in der Geschichte," Die Rasse 2 (1935): 397-401. 10. O. Brunner, "Politik und Wirtschaft in den deutschen Territorien des Mittelalters," Vergangenheit und Gegenwart 27 (1937) 1404-22, the quoted passage on p. 422. Cf. Heiber, Walter Frank, 711, on the Erfurt Historikertag as the theater of struggle between Walter Frank and the academic establishment, which resisted his efforts to radicalize and ideologize it; Brunner's address, which made an impression that is still recalled, seems to have been under Frank's aegis. n. Heiber, Walter Frank^ 928—from the end of 1937 on, Frank's failure was decisive and "practically the whole edifice of a new historical scholarship reconstructed according to the National Socialist ideal. . . lay in ruins." 12. Klaus Schreiner, "Wissenschaft von der Geschichte des Mittelalters nach

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1945," in Deutsche Geschichtswissenschaft nach dem Zweiten Weltkrieg (1945-1965), ed. E. Schulin (Munich, 1989), 87-146, esp. on Aubin p. 94 n. 22, with a selection of Aubin's dicta rejoicing in the German conquests in Poland and looking forward (in 1940) to the extension of Germany's "protective and ordering hand" over the whole "East" (Ostraum), into which German "blood, spirit, and work" had been invested in earlier centuries. Aubin indeed understood this German domination as requiring an actual "contest of the peoples" in birth-rates and settlement. Brunner may well have shared the premises of such ideas, as did most German intellectuals, but he never expressed himself in these tones. Cf. the concessions of Jiitte, "Zwischen Standestaat und Austrofaschismus," 261: "Brunner's ideas were not always in conformity with National Socialist ideology—for example the characteristically Nazi biological-materialistic concept of race does not appear in his work, nor, except for a few 'mistakes,' does any antisemitic undertone." The "mistakes" are not specified and we have found none, unless it be Brunner's formula of the German Volk as "a reality of blood and race" (below, at n. 26), which would certainly exclude Jews. 13. Cf. Winfried Schulze, Deutsche Geschichtswissenschaft nach 194-5 (Munich, 1989), 127—"In general one is surprised by how quickly the suspended or definitively dismissed historians were reintegrated into the profession." 14. See Keith Tribe, "The Geschichtliche Grundbegrijfe Project: from History of Ideas to Conceptual History," Comparative Studies in Society and History 31 (1989): 180-84; Melvin Richter, "Begriffigeschichte and the History of Ideas," Journal of the History of Ideas 48 (1987); Irmline Veit-Brause, "A Note on Begriffsgeschichte," History and Theory 48 (1987). 15. We refer generally to these notable obituary essays: Ludwig Buisson and Giinther Wolgast, Zum Gedenken an Otto Brunner (1898-1902), Hamburger Universitatsreden, 40 (Hamburg, 1983); Erich Zollner, "Otto Brunner," MIOG 90 (1982): 519—22; Otto F. Winter, "In memoriam Otto Brunner," Mitteilungen des Osterreichischen Staatsarchivs 36 (1983)-.557-63; Adam Wandruszka, "Otto Brunner," Almanach der Osterreichischen Akademie der Wissenschaften 132 (1982): 387—97. 16. The following discussion is based on L&H, amplified by consideration of Brunner's essays in NWVSG and the essays of Huber, Freyer, and Riedel noted below. 17. For this long-term context see esp. O. Brunner, "Inneres Gefiige des Abendlandes," Historia Mundi 6 (Bern, 1958): 319-85, and NWVSG, passim. 18. See esp. O. Brunner, "Das 'ganze Haus' und die alteuropaische 'OkonomikS" NWVSG: 103-27. 19. On the State-Society dichotomy as nineteenth-century reality and idea, see the essays in E.-W. Bockenforde, ed., Stoat und Gesellschaft, Wege der Forschung 471 (Darmstadt, 1976); Manfred Riedel, "Der Begriff der 'biirgerlichen Gesellschaft5 und das Problem seines geschichtlichen Ursprungs," ibid:77-io8, is especially instructive on the changes in meaning (due to Hegel) of "biirgerlich" from a political to a disjunctively social reference. See also Riedel, "Der Staatsbegriff der deutschen Geschichtsschreibung des 19. Jahrhunderts in seinem Verhaltnis zur klassisch-politischen Philosophic," Der Stoat 2 (1963): 41-63; and James Van

Translators' Introduction

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Horn Melton, "The Emergence of 'Civil Society3 in Eighteenth- and NineteenthCentury Central Europe," in Language, History, and Class, ed. Penelope Corfield (London, 1991). Jiirgen Habermas, Strukturwandel der Offentlichkeit. Untersuchun0en zu einer Kategorie der burgerlicben Gesellschaft (Darmstadt/Neuwied, 1962), goes deeply into the subject and draws on Brunner's book. See also the essays by Huber and Freyer cited below. 20. Giovanni Tabacco, "La dissoluzione medievale dello stato nella recente storiografia," Studi medievali i (1960): 426; cf. Frantisek Graus, "Verfassungsgeschichte des Mittelalters," HZ 243 (1986) 1543-45, on the German idea of constitutional history as, peculiarly, the study of the structure of the whole sociopolitical entity; cf. also Brunner's exposition in L&H, chap. 2. 21. The decoding of apparently atavistic and irrational behavior as manifesting an underlying realistic rationality is now in vogue, e.g., in studies of crowd behavior and popular festivals. Cf. Tribe, "The Geschichtliche Grundbegriffe Project," 182—"Indeed, Land und Herrschaft represents theoretical positions more familiar to an Anglo-American readership through the work of legal and economic substantivists working in social anthropology during the 19605." 22. "Beitrage zur Geschichte des Fehdewesens im spatmittelalterlichen Ostermch" Jahrbuch fiirdie Landeskunde vonNiederosterreich, NF 22 (1929) 1431-507. 23. See Otto von Gierke, Das deutsche Genossenschaftsrecht, Vol. 2: Geschichte des deutschen Korperschaftsbegriff (Berlin, 1873), 6: "In order to understand an age whose way of thinking is different from our own, we must operate only with the concepts of that age. Insofar as we are concerned with the genesis and nature of older legal concepts, we must therefore try to set aside our own more fully developed concepts. . . . " On Gierke and legal positivism see Antony Black's introduction to Community in Historical Perspective: A Translation of Selections from Das deutsche Genossenschaftsrecht (The German Law of Fellowship) by Otto von Gierke, trans. Mary Fischer (Cambridge, 1990), xiv-xxx; see also Antony Black, Guilds and Civil Society in European Thought from the Twelfth Century to the Present (London, 1984), 210-17, and Otto Gerhard Oexle, "Otto von Gierkes 'Rechtsgeschichte der deutschen Genossenschaft.' Ein Versuch wissenschaftsgeschichtlicher Rekapitulation," in Deutsche Geschichtswissenschaft um 1000, ed. Notker Hammerstein (Stuttgart, 1988), 193-217. 24. L&H: 163 (also in earlier editions); cf. Oexle, "Sozialgeschichte," citing this passage against those who have wrongly accused Brunner of simply rejecting modern conceptualizations. 25. See, e.g., Brunner's brilliant relativization of Max Weber's concept of legitimation, in "Bemerkungen zu den Begriffen 'Herrschaft' und 'Legitimitat,'" in NWVSG:64-79; on economics see "Das 'ganze Haus,'" ibid: 103 ff. 26. "Moderner Verfassungsbegriff und mittelalterlichen Verfassungsgeschichte," MIOG, Erg. Bd. 14 (1939) 1513-28; reprinted with Third Reich passages cut out in H. Kampf, ed., Herrschaft und Staat im Mittelalter, Wege der Forschung 2 (Darmstadt, 1964), 1-19. 27. Brunner, "Politik und Wirtschaft" (n. 10)1405; L&H, 3d ed.:524. Cf. Gierke's Genossenschaftsrecht for similar ideas of Germanic continuity manifested in

1

Translators' Introduction

constitutional structures—as in the translation (and Black's introduction) noted above, n. 23. 2S.L&H, 3d ed. 1526. 29. Ibid:5iyfF.; L&H:ii4; cf. Huber and Freyer cited below. 30. Brunner's refutation of the disjunctive cognitive categories of liberal, national-state constitutional and legal history was praised by most reviewers of the first (1939) edition (as would be expected). So, e.g., Heinrich Mitteis, "Land und Herrschaft. Bemerkungen zu dem gleichnamigen Buch Otto Brunners," HZ 163 (1941): 273—74; repr. HSM: 39; Carl Brinkmann, in Schmollers Jahrbuch 64 (1940): 117 (Brunner's "great if not perhaps total success"); Karl Jordan, in DeutschesArchiv 4 (1941)1557 (the exceptional importance of Brunner's achievement "in replacing the juristic-systematic and state-oriented mode of thought by a historical-dynamic one"); H. Zatschek, in Zeitschrift fur sudetendeutsche Geschichte 4 (1940) 1299. But similar approval was given to the fourth edition: e.g. Helmut Feigl, in MIOG 70 (1962)1126-27 (the scholarly discussions of L&H from 1939 to 1959 "have confirmed the correctness of Brunner's basic conclusions"); Friedrich Liitge, in Schmollers Jahrbuch 80 (1960)187-88 ("It can be said today that Brunner's thesis [refuting nineteenth-century historical categories] has prevailed to an evergrowing degree"); Walter Schlesinger, in Das historisch-politische Buch 8 (1960): 73-74 (Brunner's alternative concepts "have proven themselves"). 31. Carl Schmitt, DerHuter der Verfassung (Tubingen, 1931), 71, 78-79, where the following dictum of Jiinger is quoted. 32. See esp. Ernst Rudolf Huber, "Die deutsche Staatswissenschaft," Zeitschrift fiir die gesamte Staatswissenschaft 95 (1935)11-65, esp. p. 32. Huber's essay offers the elaborate analysis of ninteenth-century Trennungsdenken and its consequences that Brunner repeats and builds on in L&H, with due acknowledgement; Hans Boldt's characterization (at the Trent conference) of Brunner's discourse here as "surprisingly similar" to Huber's is superfluous—AISIGT:^—49. 33. Hans Freyer, "Gegenwartsaufgaben der deutschen Soziologie," Zeitschrift fiir die gesamte Staatswissenschaft 95 (1934)1116-44, esp. pp. 134, 143. On Freyer's idea of "German sociology" as the holistic study of the whole German societal order, rather than the critical, abstractive, oppositional sociology of the (largely Jewish) Frankfurt School in the 19208, see Jerry Z. Muller, The Other God That Failed: Hans Freyer and the Deradicalization of German Conservatism (Princeton, 1987); Otthein Rammstedt, "Theorie und Empiric des Volksfeindes. Zur Entwicklung einer 'deutschen Soziologie,'" in Wissenschaft im Dritten Reich, ed. Peter Lundgren, Edition Suhrkamp 1306 (NF 306) (Frankfurt, 1985), 253-313; also Rammstedt, Deutsche Soziologie 1933-1945^ Suhrkamp Taschenbuch, Wissenschaft 581 (Frankfurt, 1986). 34. Habermas, Theorie und Praxis, 3d ed., Suhrkamp Taschenbuch 9 (Frankfurt, 1974), 228. For Habermas's reception of the ideas of Carl Schmitt et al., see Ellen Kennedy, "Carl Schmitt und die 'Frankfurter Schule.' Deutsche Liberalismuskritik im 20. Jahrhundert," Geschichte und Gesellschaft 12 (1986): 380-419, esp. pp. 402ff.; the critique by Ulrich Preuss, ibid 13 (1987) .-400-418, esp. pp. 4O9ff. is good on the differences between Schmitt and Habermas but does not invalidate Kennedy's basic point.

Translators' Introduction

li

35. L&H, 3mmer0ui}^ subject for low justice to the duke's official. Its special status is clear from the privileges it received and from their frequent confirmations in the fifteenth and sixteenth centuries—indeed Maria Theresa confirmed them in 1742. At a community diet (Banntaiding) of 1529, these rights of "the privileged freedom of the hereditary subjects of Gleisenfeld" were specified as exemption from customs duties and from taxation by any lord (except for a tax on the Land by the prince), exemption from corvee except for three days "when the prince entered the land," and 254. OVF8:985ff.; Stowasser (igzya), pp. iff. Cf. G. Winter (1877), pp. 105!?., no. 15 (19 June 1453)—King Ladislas confirms the rights and liberties of the free people of Schrick, including blood justice. Subject peasants of outside lords pay taxes to these lords when the prince levies a tax on free persons. This document has verbal echoes of the confirmation of privileges to the burghers of Gaunersdorf (25 June 1360), to whom Duke Rudolf confirmed inter alia that they were to be free of tolls like the people of Schrick—ibid., no. 7. 255. Hodl-Pichler (1914), pp. I47ff. 256. Leeb (1911), pp. 29off. [Elizabeth's tide as queen was derived from Frederick's (ultimately unsuccessful) claim to the German kingship—trans.] 257. Ibid., p. 301; Regesta Habsburgica 3: no. 1478.

Lordship over Peasants 265 enjoyment of lesser hunting and fishing rights for their own use. For the rest they were under the advocate in Pitten.258 The import of an advocate's protection or lack of it, even in later times, appeared during the Turkish invasion of 1683, when no castle would take them in because they did no corvee for any lord. The government finally appointed the castle of Seebenstein as their refuge.259 In Upper Austria the free peasants were more numerous. They were all under advocacy,260 in most cases under the lord of the local territorial court, on whose bench they sat as assessors.261 In Styria we find the socalled Freisassen, peasants with free holdings—151 of them still in 1692, of which 44 lay in the Judenburg district, 19 in the Ennsthal, 52 in the district between Mur and Drau, and 36 in the Cilli district.262 The village of Tuchern bei Tiiffer, first named in 1362, formed an independent peasant community of high status (an "Edeltum") with very substantial rights of self-government, attested in a privilege granted by Ferdinand I in 1537. Although living by ordinary peasant agriculture, they were what Mell calls lesser freemen, with definite military, quasi-knightly duties as "shooters" (Schutzeri) ,263 Pirchegger placed the Freisassen of upper and middle Styria in the same category as the "Edlinger" (see below), who were responsible for military service on horseback and with armor.264 This is not the place to go into the origins of the Edlinger, which is 258. OTFinpff. 259. Leeb (1911), p. 313. See Grund (i9i2a), pp. 4O3ff., on other groups of free peasants in Lower Austria. Domainal listings (Schematismeri) from the first half of the nineteenth century include a larger number of free peasant communities. The majority of them had originated in the eighteenth and early nineteenth centuries through the purchase of rights of village authority (Dorfobrigkeii}. Cf. Lechner (19373), p. 275, and Barthenheim (1838), i: 10546°. These were predominantly villages and market communities under the authority of the princely lieutenancy. The rights of authority were sold to these villages with the sale of camera! domains, in the wake of the administrative reforms of Maria Theresia. See Starzer (1911), p. 47; Pich (1947), p- 162. 260. Strnadt (1909), i68ff.; idem (1911), pp. 427ff. The 1371 extent of the counts of Schaunberg (Linz, Oberosterreichisches Landesarchiv) reads: "Note that freeholds and the other properties are grouped under the same territorial court, because the lords of Schaunberg held the advocacy over it, so that both jurisdictions merged." Cf. R Schmidt (1941). 261. Hageneder (1957), pp. 22iff. 262. A. Mell (1929), p. 78; R Posch (i95ia), p. 74. See H. Klein (1933), PP- 125,129: in the Salzburg lordship of Haus in the Ennsthal, freeholders are listed who pay taxes and in 1333 are distinguished from subject and servile peasants (homines prediales, homines proprii). But these must be free peasants in the sense ofthe Salzburg sources, namely bondsmen of one lord holding their land on another estate. See OW 6: 7fF. for the custumal of the free valley of Kleinsolk belonging to the office ofthe Styrian hereditary marshall. 263. A. Mell (1894), pp. i46ff; Pirchegger (1936), 1:306; (1931-34), 2:157; A. Klein (1923), p. 7. 264. Pirchegger (1931-34), 1:79.

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much disputed.265 What concerns us is rather their legal status in the later Middle Ages, which is tied to the question of the free peasants of Inner Austria.266 The Edlinger formed a definite peasant "estate59267 to be found nowhere but in Styria, Carinthia, and Carniola—thus in the old Carantania. In Carinthia they seem always to have pertained to an official, a lordship, or a castle. They and their property are designated in the sources by terms derived from the adjective edel, "noble" (Edlinger, Edeltum, Edelgutj Edlingsrecht^ and so forth)—in the basic sense of having free status (as in the Latin "libertinus"), that of the Edlingsrecht. There were whole communities of such "Edlinger," most notably the "Edeltum" of Tuchern in south Styria, that under the counts of Cilli, counting 100 farms, and that of Sagor with 175. The privileged legal status inhered in the property and not the person of its holder, who was simply a peasant cultivating his own or (in most cases) another's land, paying his renders to the lordship. The properties owed much lighter dues than normal peasant holdings and had a correspondingly higher market value. Originally at least, they seem to have been held under family rights of inheritance. It was perhaps as possessors of these rights that the Edlinger formed separate judicial communities. Those of Tuchern held the local court; those of the Carinthian lordship of Moosburg were subject to the prince's justice only in blood cases, and that by a privilege from Rudolph IV; otherwise they were under their own elected judges (Edlingsmeister). Such judicial communities functioned as corporations. In Tuchern, for example, the community chose functionaries, subject to confirmation by the Cilli lieutenant, to whom they rendered their rents in money or in kind, their taxes, and their labor services. In time of war they had to appear in arms to defend the castle of Obercilli. The Edlinger of Sagor had similar obligations to the lordship of Gollenberg, including rights, taxes, corvee, tithes, and military defense.268 The Edlinger around Klagenfurt, on the other hand, had quite large farms and apparently lived in fortified houses. They would not have been, at least originally, mere petty-peasant settlements. But the large communities of Edlinger around Moosburg and those in the Klagenfurt plain were subject to the advocacy of the Karlsburg lordship. Here we see at work the common tendency of lords, from the end of the Middle Ages on, 265. 266. 267. 268.

For a survey of the debate see Ebner (1956), pp. gff. Klebel(i942b); Ebner (1956). Puntschart (1899), pp. i74ff., the source for most of what follows. Ibid., pp. i86ff.

Lordship over Peasants 267 to assimilate "Edlings" under their advocacy to the legal status of subject peasants, sometimes with success.269 Apart from the Edlinger we also find free peasants (Freisasseri) and peasant "proprietors" in Carinthia and Carniola. But they seem to have been late developments—people who had bought their freedom from their lordships and who thereupon came directly under the Estates' taxation and jurisdiction.270 In the Tyrol, significant numbers of free peasants could be found in the Lechtal, the Oberinntal west of Imst, the Vintschgau, and the Meran burggravate; they were rare in the east.271 They had free allods subject to the territorial courts: as a privilege of Meinhard II for the abbey of Stams in 1275 put it, they belonged "to the counties of our lordship by a special sort of right" (ad comitatus dominii nostri iure quodam speciali).272 In 1315 the Tyrolean prince spoke of "our bondmen (aigenmanri)^ or subjects of our advocacy, or freemen"—here the three categories were distinct. But in a levy of 1320 taxes were demanded from "every man belonging to us, by bondage (Aygenschafi) or by advocacy, in towns or on the land." Here there was no mention of freemen, presumably because they were included among those belonging to the prince by advocacy.273 There is in fact other evidence that those directly subject to the prince were considered as subject by advocacy. It is true that a roll of subjects in 1427 calls these people, including the freemen, "bondmen (aigenleui) of my gracious lord of Austria," but that was because actual bondage—serfdom (Leibeigenschafi)— no longer had any real importance. The sense of the term was attenuated and merged with that of other forms of subordination, and by the sixteenth century it no longer existed. But the fact that free men were included with advocatial subjects in the fourteenth century, and with bondmen in the fifteenth, shows that the "special sort of right" (ius speciale, supra) by which free men belonged to the comital lordship was actually a special sort of protection, advocacy in the general sense of the term. It was in this sense that the documents of 1359 and 1363 (probably drafted in the Austrian ducal chancery) regulating the passage of Tyrol to the Habsburgs referred to "subjects and other people living on the land" (holden und 269. Zenegg-Scharfenstein (1933), pp- 4iff270. Fresacher (1950-55), vol. i; Klebel (i942a), p. 105. Vancsa (1901), p. 459: a tax decree (5 October 1502) for the five Lower Austrian Lander lists "free peasants" (frei nngesessene Bauersleut) among those with income from rents. 271. Stolz (i949a), pp. 83ff. 272. Stolz (1927-34), 4:83273. Stolz (i949a), pp. 99ff.

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under lantsazzen und Iciuteri),274 If they used the term "subjects" (holderi), which was not current in Tyrol, it was evidently because this special relation of protection was taken for granted. We have been considering the relatively small groups of people who were called "free." By this time it was not a matter of the old contrast of free to unfree, with unfreedom understood as personal servitude and with the personal quality of freedom belonging to very diverse strata of peasants and nobles. Neither should all peasants be called "free" who had their own free, hereditary holdings, subject not to a seigneur but to the lordship of the territorial court. In the late-medieval sources the term rather applied only to peasants who possessed their own freehold property but stood under a lord's advocacy or lordship.275 Within this category there was a smaller group of freemen who were not noble, but nevertheless possessed the right to bear arms and had the duty of active military service. They included the Styrian "shooters," the Edlings (at least in part), and the Tyrolean free peasants (Freisassen). These freemen were destined either to sink into the status of subject peasants, or to rise into the nobility.276 Modern scholarship tends to see them as the residues either of older groups of peasants in the king's service, the royal freemen (Konigsfreie) attested already in Carolingian times, or of peasants settled on cleared land under especially favorable conditions (Kodungsfreie) ,277 Both groups were under the specific lordship of advocacy. One must still ask, however, how old or original were the rights that we find such free peasants enjoying in the later Middle Ages,278 and how one is to explain the clear relationship to "counties" that we have noted, for example, in the freemen of the county of Weiteneck and the "domanial peasant holders" (Inwertsaigner} of the county of Peilstein. It seems evident that only lords possessing high justice could have "freemen," whose free property belonged to a territorial judicature and who were under the advocacy of its lord.279 274. Ibid., p. 113. 275. E. Mayer (1898-99), i:i6fF.; K. Beyerle (1914), pp. 2i2ff.; Heck (1927); cf. K. Beyerle (1928), pp. 49iff.; Hasenohrl (1909), p- 36; Granichstaedten-Czerva (1954), p. 229; idem (i949). 276. See Stolz (i926b), p. 770, on the Tyrolean free peasants in Nauders, Glurns, Goldegg, and Schlanders, who paid taxes with the nobility and were justiciable in the nobility's court. Cf. Klebel (i93»a). 277. Dannenbauer (1955), PP- 57ff. We do not take a position on the matter here. 278. Klebel (19383), p. 61, has pointed to the importance of a communal association for the persistence of free property holding. 279. Ganahl (1941), pp. io3ff.

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269

In any event the core of lordship appears everywhere as the power of protection and safeguard, "advocacy55 in its general sense. This was what gave permanence and effectiveness to the lordship rights held by a lord. For claims to rights in the absence of protection could not be enforced, and where the lord failed in his task of protection his lordship dissolved. h) The Hierarchy of Lordship Rights However central the importance of protection and safeguard in the sources, it would be wrong to derive all the rights exercised by a lord in his lordship from advocacy or even guardianship (Munt), the legal institution out of which advocacy emerged. For the extent of these rights varied to an extraordinary degree in different times and places, and the rights themselves fell into several groups. Along with the rights and claims issuing from lordship over land in the specific sense of the seigneury (Grundherrschafi)^ and over unfree persons (Leibherrschaft), there were the seigneurs' rights of administrative competency and of jurisdiction,280 which we may now survey. Paul Osswald's studies of Lower Austria281 described conditions as they appeared in the Tractatus de iuribus incorporalibus of 1679 and in peasant custumals, few of which are of much earlier origin. Osswald followed the Tractatus in treating seigneurial, village, and advocatial authority separately, with relatively little concern for the relationship between them. For him, seigneurial authority consisted of all the powers exercised by the lord over his subject peasants: the right to demand taxes and labor services, the right to install and evict, and jurisdiction over disputes or other legal matters related to his tenancies. The seigneur also had penal authority over subjects who attacked him and in matters within their households that were subject to fines of less than 72 Pfennigs. Here the household, whose spatial limits extended as far as the drip line, appears as an area of immunity. More extensive was the low-justice jurisdiction of lordships and monasteries, which extended to penal authority over delicts within the drip 280. In distinguishing between administration and jurisdiction, our primary point is that in the medieval world all action involved Recht^ even the measures proceeding from the lord's "grace." For by their nature, relations based on homage and loyalty could include only what "could legally and morally be expected" (Mitteis). Even administration created or decided Right. Jurisdiction differed from administration in that it decided between parties or publicly concluded a legal case. 281. Luschin (1879); Osswald (1907); Dopsch (i928e), pp. i83ff.; Adler (1902); Klebel (i93ob), p. 38.

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line subject to fines up to five pounds. This included all cases except for crimes against life and limb, over which territorial courts of high justice held competence. Alongside seigneurial authority was authority over the village,282 which has already been discussed in detail. It included low justice outside the drip line, over village roads and common lands, and in some cases blood jurisdiction. There was also a power of lordship over the village that in many ways resembled advocacy, and Osswald in fact often equated the two. Thus the village lord enjoyed custodial rights—indeed lordship— over village common lands, pasture and forests, and he also had the administration of village affairs and extensive police powers. These extensive powers of village jurisdiction were peculiar to Lower Austria, but otherwise conditions were similar in other Lander.283 In Styria, too, the rights of lower jurisdiction appertained to landed property.284 Here one distinguished between the drip-line jurisdiction over the houses of subject peasants on dispersed lordships and the peace of the castle (Burgfriedsrecht), comprising a compact district of lower jurisdiction belonging to a castle or to a noble's household. This district was often consolidated through the advocation of peasants who resided in the district but were subject to other lords. Insofar as it was not, jurisdiction by other lords over peasant households had the same relationship to castle jurisdiction as it had in Lower Austria to village jurisdiction; both the latter appeared as forms of advocacy. But village courts existed in Styria as well, especially in cleared areas where seigneurs possessed entire villages. Conditions in Carinthia, Carniola, and Gorizia largely conformed to those in Styria. In the Tyrol the equivalent of the peace of the castle and village courts were the domanial districts (Hofmarken), which comprised one or more communities.285 Their lower jurisdiction also extended to the dispersed possessions of ecclesiastical and secular lords, and corresponded to the drip-line jurisdiction we have described for Lower Austria and Styria. But while seigneurs in these LUnder consolidated and expanded the jurisdictions of their lordships, Tyrolean lords lost their juridical rights over their dispersed possessions to territorial courts, and indeed even lost juris282. Klebel (1944), pp. 6sff. 283. A. Mell (1929), pp. 20iff., 2i7ff.; A. Mell-Pirchegger (1914); Dopsch (1910), pp. Ixxxvff.; A. Klein (1955), pp. 52ff. 284. A. Mell (1929), p. 201. 285. Stolz (1913), pp. i4iff.

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diction over the peasants in their seigneuries proper. Both the Tyrolean domanial district and the Styrian peace of the castle were areas of immunity: they possessed not only lower jurisdiction but also all administrative competencies otherwise (in the Tyrol) belonging to the territorial court. But the number of domains was small, while the peace of the castle often applied to only a few individuals.286 In Salzburg we also find domanial districts, but these were held by a small number of ministerial families that died out by the fifteenth century.287 In this respect the position of seigneurs was much stronger in Bavaria, where domanial districts were more numerous and where their "nobleman's justice" also extended to peasants whose holdings lay outside the Hofmark^ in the district of the territorial court.288 This extended justice existed before the so-called Judicial Purchase (Gerichtskauf) of 1311, which confirmed but did not create it.289 The administrative and judicial rights of seigneurs bore common features, and if they differed it was often in name rather than in substance. All appertained to the lord's house and were immune from the territorial court. This immunity existed at two levels, and the administrative competency of the lord varied accordingly. The first level was that of the subject peasant's household, which was immune from the territorial court as well as from lower jurisdiction in general. Here the competency of the seigneur was limited to cases arising out of the conditions of land tenancy. The second level, the broader sphere of lower jurisdiction, comprised one village or several villages within a castle peace or domanial district. Here the seigneur's administrative competency extended to matters of police and village economic administration. It was the power of lordship that imposed administrative authority on its villages; this administrative competence could then pass to the village communities that collaborated in its exercise.290 The seigneur who possessed these various forms of jurisdiction was not just a magistrate but a judicial lord. In the conduct and execution of justice he could always use the coercive power at his disposal, protecting rights by not merely declaring justice but also by enforcing it. This same power enabled the lord to carry out administrative tasks pertaining to his sphere of lordship. He had the right of command and prohibition (Gebot und Verbot}^ and those who violated it were subject to 286. 287. 2»8. 288. 289. 290.

Stolz (19493), p. 318. H. Klein (1943), PP- 4, 9i^aii Rail (1952;, (1952), pp. 479II479ffWohlhaupter (1929); cf. Lieberich (1954), pp. 323ff. Steinbach (1932); Bader (1937), pp- 26sff.; Becker (1941).

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penal sanction. In Swabia we find this power expressed in the formula "to compel and command" (Zwing undBanri)^ and it was identical to the lordship exercised over a village.291 This power of command was a part of the lord's immunity, and he conceived of it as inherent and "patrimonial." Historians are divided as to how these districts of lower jurisdiction and administration came into being. Most distinguish between a narrower, "private" sphere of seigneurial jurisdiction and a higher sphere of low justice, public in origin and deriving from the territorial prince. The latter was acquired by monasteries through charters of immunity; the nobles (for whom we do not have such charters) acquired it through "a gradual evolution of customary law" that brought exemption from comital power. Here historians have tacitly assumed that such fundamentally public rights originally belonged to the "state," understood in contrast to private landholders; if such rights were held apart from the state, they must have been delegated by it. This original condition is supposed for the territory where territorial supremacy (Landeshoheit) arose in the twelfth century.292 But this view is highly questionable. It remains to be proven that lower jurisdiction was concentrated in the hands of the rising territorial princes of the twelfth century. It is known that house-lords (Hausherreri) had always possessed penal power over family members and unfree persons in their households, and that this was included in in the subsequent "criminalization of penal law." Such seigneurial exemptions existed above all in relation to the lower courts that dispensed justice to peasants and burghers. These judicatures, which contained a strong element of lordship and cannot simply be identified with the older comital powers,293 did not belong to the territorial prince alone. Indeed all kinds of judicial lords could grant immunity.294 In any case, a prince who granted a monastery under his advocacy immunity from his local courts was acting in a capacity different from that of his princely role as, say, defender of the Land or presider at the territorial assembly. He granted the immunity in question not as a territorial prince, but as the holder of blood justice and advocacy over the monastery. 291. Rennefahrt (1952), pp. 22ff., with the references cited there. 292. Ganahl (ipssa), pp. 356ff., has sought to determine this point in time; cf. Lechner (i937b), pp. 568ff. 293. H. Hirsch (1922), pp. 1256°. 294- Lechner (i93?a), pp. 155,161: grant of a lower court to a knight by the ministerial (of old-noble family) Heinrich von Kuenring in 1255; a similar grant in 1248 by Hugo Turs von Lichtenfels, whose legal position was the same, for the parish of Friedersbach.

Lordship over Peasants 273 The emergence of lower jurisdiction, then, was something much more complex than simply a "delegation" of comital "state" power or territorial supremacy. Such an explanatory model based on modern public law is inapplicable for several reasons: 1. The judicial and administrative districts we have discussed were a form of immunity and pertained to the "private" sphere of the lord's house. The legal concept of "delegation," founded as it is on modern public law, is not applicable to a constitutional structure that included such immunities and special peace districts.295 2. The range of rights pertaining to lower jurisdiction and administration differed according to time and place, and their competence visa-vis territorial jurisdiction (Landgerichtsbarkeit) varied enormously. It is true that the possession of blood justice gave territorial courts the exclusive right to impose capital punishment and decrees of outlawry. But all other competencies could fall to lower jurisdictions as well.296 In Styrian courts, for example, when a highway robber was to be convicted by the seven-witness procedure (Ubersiebnen)^ five of the witnesses would be heard by the lower court, the other two by the territorial magistrate.297 Capital criminals in Carinthia had to be delivered by the territorial courts to the special magistrate for outlawry (Bannrichter),298 and the Tyrolean "accusatories" (Schubgerichte) show a similar procedure.299 3. The respective competencies of these jurisdictions were constantly in flux. In the Austrian Lander to the east, lower jurisdiction became increasingly important; moreover, knights were acquiring powers originally enjoyed only by lords and monasteries.300 In the Tyrol, on the other hand, the competency of the territorial court steadily expanded during the fourteenth and fifteenth centuries to include all dispersed seigneurial possessions outside the domanial units (Hofinarkeri). Indeed, it even penetrated the "private" sphere of the seigneury.301 These aspects of lower jurisdiction and administration, which played 295- Cf. Triepel (1942). 296. H. Hirsch (1922), pp. 6off. 297. A. Mell (1929), p. 122; Schwind-Dopsch, no. 93 (1337). 298. M. Wutte, in Erlauterungen 1/4:121. 299- Stolz (1913), p-157300. Luschin (1879), p. 179; Lechner (1937*), p- 175; Adler (1902), p. 44; cf. Strnadt (1909), pp. iSoff., on the tendency of Upper Austrian abbeys to extend their low-justice competence beyond the sphere granted to them by the territorial court ordinance of 1299 (Schwind-Dopsch, no. 79). 301. Wopfner (19080), p. 168; Stolz (1913), pp. i39fF.; Klebel (1936), pp. 2O9ff., on the analogous thrust of the Bavarian territorial courts in the fifteenth century.

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a crucial role in the political and constitutional development of the individual Liinder, cannot be grasped in terms of the delegation of sovereign rights. It was not a state's transfer or withdrawal of competencies that was at work, but rather the historical process of a constant struggle that pitted the holders of lordship rights against each other and the territorial prince. Crucial here was the reality of protection and safeguard, of "advocacy" in the broad sense. i) Immunity These matters can only be understood in relation to immunity, while the concept of immunity, along with seigneury (Grundherrschaft) and advocacy, can in turn be understood only in terms of their common roots and not as separate legal structures. So Hans Hirsch showed how immunities tended always to extend their scope, while Adolf Waas emphasized the nexus embracing immunity on the one hand, protection, guardianship (Munt), and advocacy on the other.302 If church bodies usually received grants of immunity and grants of protection as separate legal faculties, it was because the special legal status of the clergy made the separation necessary. But the kind of lordship thus created was modeled on the secular lordships, which already possessed immunity and themselves exercised rights of protection, as two aspects of a single basic power. But the only documents of immunity we have are grants to ecclesiastical bodies: we have no secular grants for the Prankish realm or the "territories" of the central Middle Ages, the two formative stages of the institution of immunity on church lands.303 The absence of such grants cannot be explained by the fragmentary preservation of secular archives. For even if one were to assume that Prankish grants of immunity to secular magnates had all been lost, along with the references to them that we should expect to find in later documents, we can make no such assumption for the period after the twelfth century. And yet there are virtually no secular grants of immunity known from the later Middle Ages or the earlymodern period.304 One need only look through the Austrian registers of 302. Waas (1919-1923); H. Hirsch (1922), pp. soff., i32ff. 303. The point is made explicitly by Dopsch (i928h), p. 481; he was of course well versed in the sources for both the earlier period and the period of Austrian territorial development that concerns us here. 304. Dungern (1910), p. n. A single exception would be the oft-cited charter of Duke Albert I of Austria, 27 September 1284 (Schwind-Dopsch, no. 71), which confirms (rather than newly grants) freedom from tolls and low justice to Ulrich von Kapellen; such "liberties and immunities as he is known to have received from the liberality and favor of the princes

Lordship over Peasants 275 the imperial chancery in the sixteenth century to see that while the privileges of monasteries and towns were regularly confirmed, the nobility had only its toll exemptions confirmed, never its immunities.305 On the other hand the territorial lawbooks and statutes of the thirteenth and fourteenth centuries presuppose a universal low-judicial immunity, excluding only blood jurisdiction, for counts, nobles (Freie), and ministerials (Dienstmannen).306 The inference is inescapable: the rights of "immunity," advocacy, and low justice were not created by grants from a territorial prince but already inhered in certain status-specific kinds of property.307 This means that the origin of such noble property rights (Herreneigeri] is to be sought not in the central or early Middle Ages, but in the Prankish period at the very latest.308 Alfons Dopsch proposed that "just as in the territorial-state law of the central Middle Ages, so too in earlier times the secular aristocracy's right of immunity developed by being exercised and so becoming tradition."309 But this fails to explain how such "autogenic" immunity rights arose in the first place, and on what grounds such a tradition could establish itself. For Right was not produced by "tradition" and "custom"; rather good custom was Right.310 This question must be addressed if we are to avoid the facile explanation of immunity as a usurpation subsequently sanctioned by weak kings. The answer will not be found if one imagines the scheme of a state power, concentrated in the of the land" (libertates et immunitates, si quas . . . ex liberalitate etgratia, principum terre habuisse dinoscitur). The particular reasons for issuing this charter remain to be determined. The Bavarian "Judicial Purchase" of 1311 was no novelty in principle (see above). From the fourteenth century on, there were frequent grants of castle jurisdiction (Eurgfriede) in which the prince granted exemption from his lower territorial courts, but these presuppose the previous existence of such exempt districts. A. Mell (1929), p. 201; Erliiuterun0en i/4:i6ff.; Adler (1902), pp. 1156°.; Stolz (1913), PP- i43ff- There were also grants of "princely exemption," the right to invoke the prince's Bann sanctions (Bannbusse) for breach of the immunity's peace—NotBl 9:286; many examples in OW. 305. Vienna, HHStA. The same picture appears in a manuscript of the Krems Stadtarchiv, a copy of the documents examined by the prince's commissioners for the reform of the fisc in 1523. 306. Urkunden und Regestenbucb des Herzogtumes Kmin 2:70, no. 96, the law code for ministerials of Counts Ulrich and Wilhelm von Heunburg (1237). Cf. Erlauterungen, 1/4:413; OsterreichischesLandrecht I, section 46, in Schwind-Dopsch, no. 34; FRA II/n: 164 (commune ius ministerialium terrae, 1265); Lechner (i937a), p. 161; Steiermtirkisches Landrecht des Mittelalters^ p. 112. 307. Dopsch (i928g), pp. 456°308. Schlesinger (1941), pp. i44ff. For Mitteis (i94ia), p. 60, the old Germanic constitution was characterized by "the coexistence of the monarchy and a nobility not derived from it." 309. Dopsch (i928g), p. 49310. See above, Chapter II, 3.

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Prankish king or a territorial prince, that stands over against "private landowners." In older311 law there was no concept of the purely private person or of purely private property. To put it another way, the modern disjunction between public and private law can be applied to our period only if concepts like person and property are treated from the standpoint of constitutional as well as private law. In any case, the numerous privileges of immunity that have survived for ecclesiastical lordships312 exempt them not from princely power itself, but from the lower territorial courts. And they were in fact privileges, granting immunity: an enclave of special peace immune from the intervention of the local court's magistrate, to whom, however, the immune lordship was still required to hand over those accused of crimes outside its competence. This situation lasted down into the eighteenth century for both secular and ecclesiastical seigneuries.313 The historical development of the immunity was intensively studied earlier in this century and its main lines are clear enough.314 It developed out of the "private" lordship rights of the Prankish magnate: lordship over land and serfs, and a "private" protective authority over freemen subject to his protection. At the same time the "public" courts of the counts and hundredmen retained cognizance over cases involving conflicts between those within and those outside the lordship, as well as all cases involving freemen under guardianship (Mundlinge). The lord represented his people before the court and had to hand them over to it unless he chose himself to stand surety for them. In addition to his "private" powers of land lordship, seigneury, and protective lordship, the lord now acquired "immunity" (emunitas): a degree of freedom, varying over time, from intervention by "public officials," whose faculties thus passed to the "private" lords. This process, known to us from ecclesiastical privileges of immunity, is often taken as a delegation of the counts' state power to the private lord, 311. ["Germanic" in 1943 ed.—trans.] 312. H. Hirsch (1913)313. Custumals from the seventeenth and eighteenth centuries show this well enough. Cf. that of Erla abbey, i May 1724 (OW 9:8491!*.), which declared that a man guilty of homicide was to be delivered to the territorial court "with only the clothes on his back." Regarding the procedure for delivering a criminal to the territorial court, the Lower Austrian court statute of 1656 forbids the use of straw or twine to tie him up (in other words, letting him go); it regulates in detail the immunity relationship of seigneurial, village and advocatial lordship vis-a-vis the territorial court—CA i: 660. 314. Dopsch (1922-24), 2:92, inff., I36ff.; (i928g), pp. nff.; H. Brunner-Schwerin (1928), 2:3821!.; Dungern (1914), pp. 53iff«; Dopsch (1939).

Lordship over Peasants 277 whose previously "private" rights fused with his new "public" rights into a single, unitary, power of lordship. In fact, however, the grant of immunity was not a transfer of public powers but rather an exemption from certain rights of intervention lying with royal officials.315 If, then, a lord receiving such an exemption was capable of exercising the rights himself, it must have been because he already had the prerequisites thereto; but these could only have lain in his "private" rights of lordship. Indeed, the "public" jurisdiction acquired by the immune lord was over those already in some sort of "private" dependency on him. These included his subject peasants and bondsmen, as well as the freemen who had entered into his "private" protection (Munt) and were in this sense no longer fully free. This "private" lordship, in all of its manifestations, came down to protection and safeguard—over persons (Munt) and over things (Gewere). It was centered in the lord's house, which was itself a free precinct, an immunity, according to the constitution of the land. I deliberately employ the word immunity for the legal status of the house even though the documents use the term only for the wider sphere of rights comprised in the grant of privilege. For house lordship was not private in the modern legal sense of standing quite outside the sphere of public law and public power, but was rather itself a public power, albeit secondary. For the public sphere then was that of the Land, within which the house lordship figured as private only in the sense of being below the "public" higher authorities of the Lund. In the modern legal order, on the other hand, the private sphere is not so much below the public as radically different from it. That is why "private" and "public" faculties of lordship could fuse into an indivisible unity and thus appear as the several effluences of a single power. That is why they all came to inhere in the land and why they were regarded indiscriminately as duly acquired private rights. And, finally, that is why secular lords could "take over" the rights of immunity, command (Banngewalf), and low justice without any explicit notice by the sources—so that scholars up to now have been forced to assume that the sources attesting delegation by the state have been lost, or that these rights had been usurped, or both. Already in pre-Carolingian times there was a distinction between the 315. Stengel (1929), pp. i97ff., and the references cited there; Schwerin (1936), pp. nff., 50, 93; Amira (1913), p. 264; Mitteis (1953), PP- 5iff-

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"public court" (mallus publicus) and the "private assize" (privata audientia).316 We find it later, for example, in Emperor Frederick IPs charter for Withering abbey in 1237, which distinguished the territorial court (placiturn commune) from the lordship's court (placitum privatum)—the high court of the lords (later counts) of Schaunberg.317 The language may tempt us to identify this distinction with the modern division between public and private law, and this in turn with the distinction between ius publicum and ius privatum found in Roman law. But as Siegfried Rietschel already observed in reference to the immunity, "our concepts of public and private law presuppose the idea of the state as a public body and a juridical person, with the ruler figuring as an instrument of the whole."318 Since this concept of the state did not exist in the Middle Ages, however, "we can think of medieval legal institutions as public or private only by imagining them in terms of the modern political order." This is not too difficult for institutions that have lived on into the present, but efforts to define the immunity in this sense have been inconclusive. The point is not to determine whether the immunity was public or private, but rather to describe the rights it comprised as exactly as possible. Although most of them would belong to the sphere of public law in a modern state, the lord of the immunity possessed them in what we would call the private nexus of property rights. It is therefore pointless to ask, as the modern literature does in one way or another, whether the immunity as such, or the various rights it included at one stage or another of its development, was an elevation of originally private rights into the public sphere, or the privatizing of public rights. The more important question would be what were the premises of a constitutional order in which the institution of immunity could exist. Like advocacy, the immunity can only be understood in the broader context of lordship (not just the seigneury) and its center, the house. The house and the lordship were always enclaves of special peace (Freiung) in the Land. They must therefore be understood in the context of the whole constitutional structure of the Land as a peace community and a community of law, whose members had the right to use force.319 What an im316. Schwerin (1936), p. 12. 317. OOUrk 3:51, no. 47; Hageneder (1957), pp. i93ff., and 215: Duke Albert I speaks of his "defensio privata" over the abbey of Wilhering (1297), due to the bishop of Passau's having transferred to him the status of a founder. 318. Rietschel (1906), pp. 4o8ff. 319. Cf. Gernhuber (1952), pp. 5ff.

Lordship over Peasants 279 munity did was define the limits of a lordship vis-a-vis the Land. These boundaries varied with time and place, and there might also be a certain stratification of the rights composing the immunity—the well-known difference between restricted and broad immunities, the former associated with the house or some other narrowly defined peace precinct. But all immunity presupposed the efficacy of rulership, guardianship (Pflege), and advocacy. The essential thing is to understand seigneurial lordship, immunity, and advocacy not as so many legal institutions in the context of a dogmatic system of juristic concepts, but in their function within the total structure of lordship. Advocacy made immunity real and brought the very diverse rights collected in the hands of a lord into a complex structured unity. Guardianship (Munf) and advocacy were not the "origin" of these rights, in the juristic sense of a source from which the rights would have been "derived"; they were rather, once acquired, parts of the lord's dominion (Gewere), which he strove to protect. The core of his "patrimonial" power did not lie in the lord's "private" person, which could not exist in the modern sense. Nor was it "delegated" by a public authority whose action somehow ceased with the act and allowed the delegated public rights to become "private." The lord's power was centered rather in the position that he and his house enjoyed within the constitutional structure of the Land. In so far as this lord exercised rights that once belonged to the public sphere of the Land, it was only over people who were in some way under his "advocacy." So the central concepts of "private-law," namely guardianship (Munf) over persons and dominion (Gewere) over things and rights, turn out to be the core of all lordship relations, without which the constitutional structure of the Land cannot be understood. What they are is power, legitimate power, "dominium quoad protectionem," protection and safeguard. The important thing for us is this element of protection and safeguard, common to Munt and Gewere, not the question of which legal institutions can be "derived" from the Munt or the Gewere. Perhaps indeed both of these went back to an originally unitary power of lordship, as Ulrich Stutz and Leopold Wenger thought very probable.320 In any case they did not consist merely of claims to rights but also of the ability to 320. Stutz (1937), p- 45; Wenger (1924), pp. iff.; Legras-Herm (1935), p. 196; Schwerin (1936), pp. rzff., 23. But cf. Schlesinger (1941), p. 115. See Dopsch (1922-24), 2:ii9ff., on protection and safeguard as basic in feudalization, although he sees "economic" needs as the primary factor (p. 135). Franz (1935), p. 25, on a complaint of the Salzburg towns (1495) which puts it pithily: "the priest should pray, the noble protect."

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IV. House, Household, and Lordship

exercise them in fact—they were at once right and might. From the standpoint of a strict legal positivism they appear as "metajuristic55 concepts, with a structure analogous—among modern legal concepts—only to "sovereignty55 from which all legitimate power is held to be delegated.321 But the nature of lordship cannot be grasped by inference from this insight into its core; it must be described in terms of all levels of rights pertaining to it.322 j) The Structure ofSeigneury fGrundherrschaft,) Turning now to the stratification of lordship, we find the same pattern of dispersal that we discussed earlier. Here conditions in late-medieval Lower Austria can serve as an example. At the center of the lordship was a house, which may or may not have been a castle; around it lay a largely compact area in which the lord exercised village authority.323 Within this area there was a narrower sphere, usually close around the Iord5s place of residence, within which he not only possessed village authority but was also the sole seigneur (Grundherr). Such a core would constitute the greatest imaginable concentration of lordship rights. It would make little difference if the seigneur lacked the right of blood justice, since the territorial magistrate did not have the right to intervene directly against accused criminals but could only require the lord to hand them over. The situation was hardly different in those villages whose lord was also the predominant seigneur, especially if he also held advocatial rights over the subject peasants of other lords in the village, or, in the case of ecclesiastical subject peasants, possessed the rights of patronage and advocacy. There did exist cases in which the village lord was not the predominant seigneur, but only the biggest among several, or indeed not even that. But these instances were as rare as those in which a village had several lords exercising their rights at alternate intervals. Cases like these may be quite interesting from 321. See above, Chapter II, 3. 322. See Freyer (1933), on the concept of lordship in general. The phenomenon of lordship largely remains a mystery for modern sociology, which works with historical typologies modeled on bourgeois society. An exception would be Max Weber (1956), 4:5416°. But here the relevant chapters on patrimonialism and feudalism (pp. 633ff.) as well as his typology of lordship in general, are based on the various forms of administration evaluated according to the most rational one, bureaucracy. Weber too considered the household to be the original organizational form of prebureaucratic lordship. But he views this lordship as continuously rooted in the reverence of the household members for their lord, not in the nexus of protection and aid. 323. Cf. the maps cited in note 30 above. On the problem in general see Klebel (i938b), pp. 88iff.

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the standpoint of legal history, but for the historian they are significant only according to their ascertainable extent. The lordship exercised in the core area described above embraced every aspect of peasant daily life. If farms of peasants subject to other lords lay within it, such separate peace-precincts were like little islands in a sea. Within the core the lord held full rights of lower jurisdiction, except for cases involving land holdings and the lesser criminal cases arising within the houses of other lords' subjects. His own peasants owed him rents and dues, while those under his advocacy owed him advocatial payments. He exercised full police powers and highly diverse forms of lordship over the village's common forest and pasture. Within this nucleus of lordship, it was possible for him to provide direct and effective protection in cases of feud. Here too he could call on his subjects in case of need to provide aid in the form of military service, special taxes in money, and corvee— emergency aid whose import as such would have been well understood. So unless one enjoyed a decisive military advantage over his opponent in a feud, it must have been hard for him to penetrate the core of his enemy's lordship, break the resistance of lords and peasants, and force the opponent's subjects to submit and pay tribute (Huldigung}. It was different in a .lordship's peripheral possessions. Normally a lordship held scattered possessions outside its core area, isolated subject peasants who lived in villages belonging to other lords. Here the lord's jurisdiction was limited to his peasants' holdings and to minor criminal cases within the drip line of their houses. These peasants were still subject to their lord, just as in the core area, but he often could not protect them; in the event of a feud between their lord and the village lord, it would be the latter to whom they would have to submit and pay tribute (Huldigung). It is therefore understandable that a lord might try to dispose of his subject peasants on particularly remote holdings, or place them under another's advocacy. To some extent, ecclesiastical seigneuries deviated from this pattern. Their structure allowed for a looser organization with a plurality of nuclei. This was partly because they had originated out of numerous grants of property, but there were other reasons as well. The incomes required for the large number of incorporated parishes were most easily raised in the immediate vicinity. At the same time, the military character of the ecclesiastical seigneury was less pronounced, for the prince exercised a protective advocacy, effective except in periods of political crisis or rampant feuding, and it could also enjoy the protection of a neighboring lord's advocacy. Of

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course the power of these noble advocates posed a potential threat to monasteries, which in the late Middle Ages therefore worked to restrict nobles' advocatial rights and subordinate them to the protective advocacy of the prince. The abbey of Gottweig exemplifies the more diffuse structure of ecclesiastical seigneuries. In the Gottweig mountain officialty (Amt), the area immediately surrounding the mountain on which the fortified monastery stood, the abbey's possessions were highly concentrated. Here and in the Plankenstein officialty, the abbot himself exercised advocacy. Another part of the abbey's estates, the area beyond the Danube north of Spitz, was centered around the lordship of Niederranna. But numerous dispersed holdings in the Weinviertel and south of the Danube, a large area extending from the Traun to the Leitha rivers, were organized into officialties and placed under the protection of numerous local advocates.324 The lordship of the Klosterneuburg abbey presents a similar picture. Its possessions around Vienna, in the Tullnerfeld, and in the Weinviertel were organized into numerous officialties whose seats were usually a village where the chapter exercised authority and possessed a large contingent of subject peasants. In between these districts were scattered possessions, unattached to major nuclei. Even in the area surrounding the abbey, no large nucleus of lordship was ever fully consolidated. For the town of Klosterneuburg came into the hands of the territorial prince, who was the advocate, and the peculiar conditions in the wineproducing districts around Vienna had induced a heavy fragmentation of landholdings.325 The knightly seigneury was altogether different. Originally it had not been a lordship at all, but was more likely subject to the advocacy of a feudal lord and hence a part of his lordship.326 A knight who did possess a village, the village lordship, and a large number of subject peasants would thereby have at least the core of a true seigneury (Grundherrschafi)^ however modest. But a good number of knights must have merely had a "free" house or noble residence in a town, market borough, or village belonging to another lord; they would have had as well a few scattered subject peasants and a demesne economy not radically different from a peasant's way of life. But the fully armigerous knight still had the quality of lordship, indeed seigneury, even if his peasants were under another's 324. OUrb III/i; FRA 11/52:664ff., no. 1684, appendix II. 325. Ludwig (1913), pp. 1856°. 326. Cf. Klebel (i942a), p. 94.

Lordship over Peasants 283 advocacy. For at least his own land seat (Hof) constituted a "dominium" whose peace he protected under the territorial law.327 k) The Relationship Between Seigneur and Subject Peasants At this point one might object that as far as peasant life was concerned, the aspects of lordship we have just described were important, indeed more so than usually recognized, but hardly decisive. Here one could argue that other interests, concerns, and activities were more important determinants of peasant daily life; that the bonds and conflicts between peasants and seigneur were "economic" in character; that conflicts over rights, over the level of dues and rents, over the use of forest and pasture, were what actually shaped the peasant's life. All of this is true, but the course of these conflicts and the forms they assumed were determined by the framework we have just described. Only if we understand the structure of the peasant household, the village, the seigneury, and finally the Land itself, can we begin to grasp the real character of lord-peasant relations. The seigneury was not an essentially economic unit nor an essentially political one, but an inseparable combination of both. Central to the seigneury were the ideas of protection, homage, fidelity, and aid. Homage (Huld) and fidelity (Treue) constituted a mutual relationship, predicated on law, within which conflicts between lord and subject played themselves out. If "protection and safeguard" tended toward the lord's exploitation of his rights and expansion of his power, his demands for "aid" from his subjects could enable them to alleviate and secure their own position. The process whereby lords constantly consolidated and expanded their rights is familiar enough.328 The lord's aim was to induce the peasants under his protection and command to transfer their property to him and hold it from him by rent. He sought to reduce them to the same status, weaken their property rights, increase their obligations,329 and ultimately enserf them. In isolated instances all of this actually occurred. Lords successfully asserted their power, threatening to deprive their peasants of all rights.330 This would have been impossible had not the existence of the peasant depended on the lord's protection. 327. Kroissmayr (1904), pp. I39ff. 328. Rorig (1920), pp. 5iff.; K. Beyerle (1914), pp. 2i2ff. Heinrich derTeichner (Karajan [1855], p. 163) said: "Seldom is a lord so good that he does not oppress the poor." 329. See OUrb IV/i: 231, for a typical case from 1438. 330. The coercion was exercised chiefly by imprisonment of peasants resisting their lord's command, as many complaints in the Lower Austrian Herrschaftsakten show. In 1492

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The peasant, however, was by no means helpless in the face of seigneurial force. To be sure, the position of the "little man" (firmer Mann) was less favorable than that of other groups, since his right to bear arms was all but non-existent. But the lord needed his peasants and was dependent on their aid, especially in emergencies. Describing his experiences during the Venetian war of 1509, Siegmund von Herberstein wrote in his autobiography: "I seized Michael Markhesn's cattle and took some of his men prisoner, but because not all of them could be kept in my castle [Mahrenfels (Lupoglava) in Istria], I had them transported to friends and kinsmen in other lands. So when the enemy besieged my castle, there were only three able-bodied men at arms in my household. My sole consolation was my peasant subjects, whom my brother looked after well and who remained faithful to me."331 There were indeed limits to the lord's caprice. A lord whose peasants hated him or were recalcitrant exposed himself to serious danger if he was engaged in a feud. Moreover, peasants whose lord was unable to protect them regarded themselves as released from their obligations to him. In numerous instances peasants subjected themselves to the advocacy and guardianship of another lord, or they might also flee to a town or to distant areas of colonization. Here the consequences were serious as far as lords were concerned, since the reservoir of manpower in the Middle Ages was by no means inexhaustible.332 For this reason a lord had to exercise caution in dealing with his peasants, who could stubbornly defend their customary rights and even exact concessions. Peasants attempted to strengthen their property rights, appropriate uncultivated seigneurial land,333 expand their rights over forest and pasture at the lord's expense, and preserve the existing level of money rent, whose real value was steadily diminished by debasement of the coinage. In all of this they invoked the "good and old law," which was quite often not old at all but merely an expression of their wishes.334 Hence lords and peasants alike sought to expand their respective rights, and the outcome depended in each case on the local situation—one Bishop Sixtus of Freising wrote of peasant unrest in Carniola: "We are displeased that the captain has imprisoned the obedient peasants. We could have accepted it for disobedient peasants, but he perhaps thinks that he stands in the place of God who on occasion punished the guilty and innocent alike"— F. Mayer (1886), p. 497. 331. FRA 1/1:75; cf. Rensing (1935). 332. Hauptmann (1913), p. 60; Helleiner (1935), p. 138; A. Mell (1897), pp. 2096°. 333. There are numerous cases in the Lower Austrian "Herrschaftsakten" of the Vienna Hofkammemrchiv. 334- Dopsch.(i93o), pp. I46ff.

Lordship over Peasants 285 cannot speak of the condition of the peasantry. Indeed, lord-peasant relations in this intimate little world depended to a large degree on the person of the seigneur. A harsh and shortsighted seigneur could find himself confronted by obdurate and recalcitrant peasants, while the situation could change radically if the estate changed hands. In general, however, the condition of the peasantry would deteriorate during the early-modern period, when the decline of the feud reduced the lord's dependence on the aid of his peasants. Moreover the state, to which the protective powers previously exercised by lords had increasingly devolved, did not yet intervene in peasant-seigneur relations. Neither can one speak of the relationship between lord and peasant in the late Middle Ages. Modern concepts are not helpful. It was not a matter of "Gemeinschaft" or "Gesellschaft," as elaborated by German sociologists at the beginning of this century, but rather of Hemchaft, lordship, which had its own structural laws. The lord was the master and the peasant his subject, and a deep divide separated the knightly and courtly culture of the former from the "torpid" world of the latter. Nowhere is this discontinuity more evident than in late-medieval literature. Here the peasant was generally an object of hatred or contempt, even though some works idealized him. Of course the portrayal of the peasant in aristocratic and burgher literature was a counter image, not an accurate representation of lord-peasant relations. Those who portrayed the peasant in a negative light were often petty nobles who saw wealthy peasants joining their ranks, while a great lord was secure in his status and therefore had no need to despise the peasant. But however deep the chasm between courtly culture and peasant life, lord and peasant depended on each other in their daily lives.335 This dependence, this mutual bond of protection and aid, even prevailed over the countless conflicts that inevitably erupted between them. Relevant in this regard is the much-discussed problem of peasant village law codes, or custumals (Weistumer). The custumal was neither simply an expression of peasant communal life, nor exclusively or predominantly an order imposed by lordship.336 It was rather shaped by both elements, and the extent to which one or the other predominated varied from case to case. It is nonetheless remarkable how even in custumals of very late origin, which were very much determined by seigneurial interest, 335. Martini (1944); Radbruch (1941). 336. Baltl (1951), pp. 3