Land and Lordship 0812281837

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U niversity of Pennsylvania Press

Land and Lordship

MIDDLE AGES SERIES

Henry Charles Lea Professor of Medieval History University of Pennsylvania

Structures of Governance in Medieval Austria

A complete listing of the books in this series appears at the back of this volume

Otto Brunner

Edited by Edward Peters

Translated from the fourth, revised edition' Translation and Introduction by Howard l(aminsky and James Van Horn Melton

U niversity of Pennsylvania Press

Philadelphia

Contents Translated from Otto Brunner, Land undHerrschaft. Grundfragen der territorialen Verfassungsgeschichte Ósterriechs im Mittelalter. Unveranderter reprografischcr Nachdreuck der 5. Aufiage, Wien, 1965. Copyright © 1984 by Wisscnschaftliche Buchgesellschaft, Darmstadt. English translation copyright © 1992 by the University of Pennsylvania Press.

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

Ali rights rescrved

Printcd in the Unitcd States of America Library of Congress Cataloging-in-Publication Data Brunner, Otto, 1898[Land und Herrschaft. English J Land and lordship : structures of govcrnance in medieval Austria Otto Brunner ; translatcd from the fourth, rcv. ed., translation and introduction by Howard Kaminsky and James van Horn Mclton. p. cm. - (Middlc Ages series) Translation of: Land und Herrschaft. Includcs bibliographical rcfercnccs and index. ISBN 0-8122-8183-7 r. Fcudalism-Austria. 2. Fcudalism-Gcrmany-Bavaria. 3. Austria-Constitutional history. 4. Bavaria (Gcrmany)-Constitutional history. I. Titlc. II. Series. JN1623.B7513 1992 321'.3'09436-dc20 91-31649 CIP

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Chapter I. Peace and Feud r. Politics and the Feud. The history of power and the history of

law. Feud and plunder in political history. Four Feuds: An Introduction to the Problem. Wenzel Scharowetz von Scharowa against King Ferdinand I, 154!. Georg von Puchheim against Emperor Frederick III, 1453. The lords of Liechtenstein against Dukc 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 modcrn scnse. Persistence of the feud throughout the Middle Ages. Prohibitions of the feud. Al! 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 Foundatwn: Legal feuds and illegal, willful feuds (plunder, tyranny). The execution of "willful" opponents in a feud. The invocation of divine law. (b) The Obligatwn 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 thc empire, nobles, ecclesiastic 2.

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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 ofburghers and peasants. Peter Passler. The feud and the peasants' sense of Right. (e) The Challenge (Absage: "defiance"): The declaration of feud (challenge) as obligatory. "To maintain honor." Observance ofthe term before the feud would begin. Challenges of the supporters. Complaint of an "undeclared" feud. (f) The Means ofFeuding: Killing. Taking prisoners. Plundering and burning. Exaction of tribute. The rclationship 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 "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 privare law. Sovereignty. The principie of dclegation 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 tl1e usual terminology. 3. TheMedieval View ofLaw. God and law (dasRecht). The unity of law and the just. The rcligious foundation, the eternal divine I.

Contcnts

Contcnts

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 jurídica] person carne out of the poli ti cal issues of constitutionalism in nineteenth-century Germany. Conservative and liberal interpretations. Rudolph Sohm. Georg von Bclow. Otto von Gierke. Gerhard Seelinger, AdolfWaas, AdolfGasser. Max Weber. Otto Hintze. 5. Our Task. The demand for a conceptual vocabuláí-y in accord with tl1e primary sources. Structural history.

Chapter III. The Land and Its Law r. The Land, ora Unit ofTerritorial Supremacy? Territorial su90

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premaqr as "unitary governmental power." The problem of territorial supremacy in Lower Austria. What is a Land? 2. The Nature ofthe Land. Li:inder and lordships. The Landas thc política] unit of agriculturalists. "Tcrra," "provincia." The groups dcsignated as "the Land." 3. The Individual Territories. Lower Austria. Upper Austria. Styria. Carinthia. Carniola and thc Wcndish March. Cilli. Gorizia. Bavaria., Passau. Salzburg. Bcrchtesgaden. Tyrol. Voralberg et al. 4. The Constitution of the Land: Basic Features. Territorial supremacy (Landeshoheit) is a precondition. The Land, its law and its people. The Land as a community of law and of peacc. The individual member of the Land-community and his l10use.

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Chapter IV. House, Household, and Lordship i.

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Lordrhip over Peasants (Grundherrschaft, the Seigneury). (a) Seigneury or Great Estate?: Public and prívate lordship? Dominium and Imperium. Grundherrschaft not just an economic, prívate structure. Dispersion or dispersa!? Grundherrschaft and the constitution ofthe Land. Dominion. Protection and safeguard. (b) The House as the Nucleus ofAll Lordship: The lordship takes its namc from the lord's 110use. Thc l10use as an enclave of peace. The power ofthe housc-lord. (e) The Substance ofLordship: The lord's favor or grace (Huld). Advocacy (Vogtei), wardship, power. Thc

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Contcnts

Contcnts 2.

subject peasants (Rolden). 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 tl1e individual Lander. Smuggling in of a modern concept of taxation. An impost is "aid." Kinds of imposts. Excises. Corvée. Hospitality. Military service. (g) Advocacy (Vogtei): Relationship between advocacy and imposts, corvée, 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 ofLordship Rights: Seigneurial authority, authority over villages, administration and jurisdiction. These rights are not "delegated" rights. Their character as immunities. (i) Immunity: Origin ofthe 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: Ali relationships must be seen within the dialectic of protection and aid. Lord and peasant in literature. Infiuence of lords and peasants on peasant custumals. Peasant wars. 2. Tuwn Lordship (Lordship over Burgher Communities). Town lord and burgher community. Burgher and burgher community. 3. Feudal Tenures: Ecclesiastical andLay. The patronate. Feudalism.

notion of"the Estates" based on the nineteenth-century concept of "society." (b) The Or;ganization of the Land into Estates: Lords/ Knights and squires. P~elates. Towns and Markets. Peasant courts. Foundations of the "Estates of tl1e 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 Vormiirz over the nature of the Estates. The Tezner- Rachfahl controversy. Otto Hintze. Deputation and representation. (b) The Oath ofFealty (Homage). (e) JointAction in Judicial and Military Matters. (d) Reciproca! Transá'ctions: Counsel and aid. The di et. Negotiation of counsel and aid. Tasks of the di et. Position of the Esta tes tl1at pertained to the fisc in the broad sense. (e) The Development of the "Dualism,, ofPrince and Estates. 4. Summary.

Glossary Bibliography Indcx

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Chapter V. Lordship over the Land; The Land-Community

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Lordship over the Land: (a) The Territorial Prince (Landesherr) as Head ofthe Territorial Community: Magistrate in the high court of the Land. Head of the army. (b) The Land Lord (Landesherr) as Lord ofthe Land: His right of dominion over the Land. Advocate (Vogt) of the Land. (e) General Protection: Protecting the peace of the Land. The right of fortification. (d) BloodJ ustice (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. Política!

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importance of the fisc. The fisc and the jurídica! personality of the state. (h) The Concept ofLordship over the Land. (i) Lordship over the Land and Sovereignty: The formula "the prince is not bound by the laws" (princeps legibus solutus). .

ThePeople ofthe Land. (a) The Theory oftheMedievalEstates: The

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Abbreviations

AISIGT AÓG CA FRA

HHStA HKA HSM HZ JLNÓ MGH Const DD DtChron Ep SS SSrerGerm MGSL MIÓG MonHabs MLOÓ NWVSG NÓUrk NotBl OÓUrk ÓUrb ÓW

Annali delPistituto storico italo-germanico in Trento Archiv für üsterreichische Geschichte Codex Austriacus Fontes rerumAustriacarum. Ósterreichische Geschichtsquellen Haus-) Hof) und Staatsarchiv) Vienna Hofkammerarchiv) Vienna Herrschaft und Staat im Mittelalter, ed. H. Kampf, Wege der Forschung 2 (Darmstadt, 1964). ·. Historische Zeitschrift Jahrbuch für Landeskunde von Niederosterreich Monumenta Germaniae historica Constitutiones Diplomata Deutsche Chroniken Epistolae Scriptores Scriptores rerum Germanicarum Mitteilungen der Gesellschaft ftir Salzbui:ger Landeskunde Mitteilungen des Institutsfür osterreichische Geschichtsfarschung Monumenta Habsburgica Mitteilungen des Landesarchivs von Oberosterreichs Neue Wege der Veifassungs- und Sozia!geschichte Niederosterreichisches Urkundenbuch Notizenblatt. Beilage zumArchiv für Kunde osterreichischer Geschichtsquellen Oberosterreichisches Urkundenbuch Ósterreichische Urbare Ósterreichische Weistümer

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Abbrcviations

SalzUrk StUrk VSWG ZBL ZRG

Salzburger Urkundenbuch Steierisches Urkundenbuch Vierteljahrsschrift für Sozial- und Wirtschaftsgeschichte Zeitschrift für bayerische Landesgeschichte Zeitschrift der Savignystiftung für Rechtsgeschichte

Translators) I ntroduction

Few works of medieval history in our century have had the immediatc impact and long-tcrm influencc of Otto Brunner's Land und Herrschaft. First published in 1939 on the eve of the Second World War, crowned with the Verdun Prizc by the Berlin Acaderny of Seiences in 1941, it went into a second printing in 1942 and a third revised edition in 1943· Intcrest 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 cditions had appeared. 1 This was to be the final version. It was reissucd in a fifth cdition of 1965, a sixth edition in 1973, and it is still in print. Discussion of the work continues, and if the tone has becorne increasingly critica!, Brunner's theses neverthcless continue to define the critica! issues and will do so for sorne time. Outside Germany, however, the book's cult has been limited to a rclativcly small nurnber of scholars interested in its Gerrnan and ipdeed Austrian subject rnatter, ready to read its often difficult German, and willing to consider an adventure in rethinking called for in 1939 under auspiccs that today seern more or less odious. But this may change: an Italian translation 2 carne out in 1983, and now there is the present English translation which, we rnodestly note, is uniquc in providing both an index and a bibliography. If we also offer this introductory discussion of the book's background, theses, and critica! 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-Gerrnan contexts. It is not a matter of repcating what is stated clearly enough in the book itself, but rather of drawing attention to the problernatics of the subject-both those responsible for Brunner's enterprise in the first place, and those generated by the book and its irnpact. This at any rate is why we have thought it neccssary to include sorne explicit discussion ofthe 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.

r. Otto Brunner (1898-1982): Life and Career Otto Brunner was born on 21 April 1898 in Módling, 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 bis 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 (Brünn), 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 Institut für 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 Prau Brwmer 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> und Staatsarchiv, where his task was to catalogue the archives of Austrian noble families. At the same time he worked on his Habilitationsschrift, "The Pinances 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) profcssorship 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 Ij:irsch died, and Brunner also succeeded his patron as director of the Instií:ute.

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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 Prank, whose Reichsinstitut für 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 (Beirat) 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 ficld of medieval scholarship." 5 This picture of a Brunner firmly ensconced in the lcading academic circles of the New Order seems confirmed by his other activities in the period. Por examplc, Brunner collaborated with Hermann Aubin and others in editing Deutsche Osiforschung (two volumes appeated, in 1942 and 1943), a project intended to represent the progress of d.erman scholarship on Eastern Europe in undermining the Versailles settlement of 1918. Profiting from the victorics of the Wehrmacht after 1939, Ostforschung also sought to validate the extension of German Lebensraum 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 Luftwaffi officer training schools. By this time he was a member of the Nazi party: his application for membership two months after theAnschluss 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 thc University ofVienna after Germany's defeat found this record ofNational Socialist activity strong enough to justify suspending Brunner from his profcssorship, 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. Por 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 Führer. This would not have been clear in 1930, when Brunner contributcd an cssay, "The Historical Function of Old Austria," to a book on the Anschluss qucstion, but it had certainly become clcar a fcw ycars later when Brunncr published his "The East Mark in History" (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 wcll as Otto Brunner, could not desire union with Gcrmany without desiring to become part of Nazi Germany. Exactly what this implied would appear diffcrently to different persons, and it must be said that in the carly years of the Third Reich, the New Ordcr 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." rn This is in fact the point at which the National Socialist sense of regeneration entcrs the line of thought leading to Land und Herrschaft, whose key thcses 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 ofhis work, and one guesses that insofar as they were not mercly Nazi forms of national service and careerism they were more or less ordinary. So for example Walter Frank's cultivation of Brunner was certainly duc to the former's hope of halting his current fall from grace 11 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 rclatively short. 13 In 1949 he was ablc to produce his littlc masterpiece, Adeliges Landleben und europiiischer Geist (Noble Rural Lije andEuropean 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· Meanwhilc 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 für Sozialund Wirtschaftsgeschichte; and he joined Werner Conze and Reinhart Kosclleck in launching the multi-volume handbook, Geschichtliche Grundbegrijfe. 14 His essays developing and extending his original ideas into studies of the peculiar qualities of Western civilization wcre collected in the very influential Neue Wege der Sozialgeschichte (1956), and expanded in a second edition of 1968, Neue Wege der Veifassungs- und Sozialgeschichte. By the time of his death in 1982 he was recognized as not only a lcading figure in the profession but even a venerable one. 15

The Critique ofTraditional Constitutional and Legal History

2.

Although the substance of Land und Herrschaft consists of ':l. reconceptualization of late-medieval constitutional history on the basis of Austrian cvidence (with sorne 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 becn to find (today we would say construct) the late-medieval antecedcnts 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 statc as a discrete bureaucratic apparatus, and in the corresponding realm of "society" as a dense, exigent, and rewarding sphere of individual action pursuing prívate gain and other satisfactions. The function of the state was to protect the order of society and the lifc 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," rendered by the Romans as "societas civilis," had signified the whole order of the polis qua polity, above the level of the individual household or "oikos" in which the citizens pursued their economic and familia! interests. 18 In the nineteenth century, however, "civil society" lost its political dimension of reference and signified simply society in the disjunctive sense noted above, in German "bürgerliche Gesellschaft," with "bürgerlich" usually carrying both its meanings, namely "civil" and "bourgeois." The disjunction of State and Society, respectively the public sphere and the prívate sphere, implied the restriction of the former to the protection of the latter; the nineteenth-century order was thus "liberal" 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, especialJy in the politically lcss devcloped German territories, but it was the theory that shaped historical conceptualization. Historians not only posed the problem of historical understanding as that of clucidating the medieval origins of the "modern" 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 prívate, might and right, idea and reality, legal and illegal.19 German "constitutional" history ( Veifassungsgeschichte), "traditionally studied in close connection with social and political history," 2 º was drawn into the nineteenth-century mode of disjunctive thinking (Trennungsdenken). This occurred even though the sharp Hegclian antithesis ofState 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, hada 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