Land and Lordship

254 Pages·24.39 MB·English

by  Otto Brunner

Land and Lordship
U niversity of Pennsylvania Press
MIDDLE AGES SERIES
Structures of Governance
Edited by Edward Peters
Henry Charles Lea Professor
in Medieval Austria
of Medieval History
University of Pennsylvania
A complete listing of the books in this series Otto Brunner
appears at the back of this volume
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 Óster
riechs 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 Xl
Ali rights rescrved Translators' Introduction Xlll
Author's Preface to thc Fourth, Rcvised Edition (1959) lxiii
Printcd in the Unitcd States of America
Library of Congress Cataloging-in-Publication Data
Brunner, Otto, 1898-
Chapter I. Peace and Feud
[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 r. Politics and the Feud. The history of power and the history of
Howard Kaminsky and James van Horn Mclton.
law. Feud and plunder in political history.
p. cm. - (Middlc Ages series)
2. Four Feuds: An Introduction to the Problem. Wenzel Scharowetz 9
Translation of: Land und Herrschaft.
von Scharowa against King Ferdinand I, 154!. Georg von Puch
Includcs bibliographical rcfercnccs and index.
ISBN 0-8122-8183-7 heim against Emperor Frederick III, 1453. The lords of Liechten
r. Fcudalism-Austria. 2. Fcudalism-Gcrmany-Bavaria. 3. Austria-Constitu stein against Dukc Albrecht III of Austria, 1394· The compact
tional history. 4. Bavaria (Gcrmany)-Constitutional history. I. Titlc. II. Series. between King Sigismund of Hungary and Duke Leopold of Aus
JN1623.B7513 1992 tria in regard to feuding in each other's territory, 1405. These
321'.3'09436-dc20 91-31649 actions cannot be comprehended in the concepts of modern pub
CIP lic and international law.
3. Basic Concepts. "The state," power at the disposal of individuals, 14
Territorial Peace (Landfriede). The feud. Peace; friendship, en
mity. 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 spe
cial 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: Le
gal feuds and illegal, willful feuds (plunder, tyranny). The exe
cution of "willful" opponents in a feud. The invocation of divine
law. (b) The Obligatwn to Feud. ( c) A Legal Complaint as the
Precondition ofa Lawful Feud: The feud was not merely a subsid
iary 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
v1 Contcnts Contcnts v11
seigneurs, towns. Border feuds. Feud against one's lord. Friends, order (Ewa). No division between divine and positive order in
partisans, and supporters. "Mortal enmity" on the part of bur the thinking of the laity. The Good Old Law. Resistance. The
ghers and peasants. The forbidden feud ofburghers and peasants. idea of sovereignty was alien to the Middle Ages. The historical
Peter Passler. The feud and the peasants' sense of Right. (e) The reasons for this. The need to understand the medieval constitu
Challenge (Absage: "defiance"): The declaration of feud (chal tion on the basis of the medieval idea of law.
lenge) as obligatory. "To maintain honor." Observance ofthe 4. The Controversy over the German Medieval State. The dis I24
term before the feud would begin. Challenges of the supporters. tinction between a "patrimonial state" and the state as a jurídica]
Complaint of an "undeclared" feud. (f) The Means ofF euding: person carne out of the poli ti cal issues of constitutionalism in
Killing. Taking prisoners. Plundering and burning. Exaction of nineteenth-century Germany. Conservative and liberal interpre
tribute. The rclationship between tribute and plundering and tations. Rudolph Sohm. Georg von Bclow. Otto von Gierke.
burning, the office of incendiary and incendiary rights in Carin Gerhard Seelinger, AdolfWaas, AdolfGasser. Max Weber. Otto
thia. (g) Limits to the Feud: The house. Illegal force, deprivation Hintze.
of rights. The house of God. Those who do not have the right to 5. Our Task. The demand for a conceptual vocabuláí-y in accord 137
feud. Exemption of enemy property granted to the church under with tl1e primary sources. Structural history.
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. Im
Chapter III. The Land and Its Law 139
poverishment by feuds. Effects on nonparticipants, on peasants;
consequences for their lords. Impact on the pattern of settlement
(abandoned villages). (i) Peace (Reconciliation): Armistice. r. The Land, ora Unit ofTerritorial Supremacy? Territorial su 139
Reconciliation. premaqr as "unitary governmental power." The problem of terri
5. Feud, State, and the Law. Contemporary judgments of the feud. 90 torial supremacy in Lower Austria. What is a Land?
The feud presupposes an idea of law and rights different from the 2. The Nature ofthe Land. Li:inder and lordships. The Landas thc 152
modern. The unity of power and Right in the feud. Feud, poli política] unit of agriculturalists. "Tcrra," "provincia." The groups
tics, constitution. dcsignated as "the Land."
3. The Individual Territories. Lower Austria. Upper Austria. Styria. 165
Carinthia. Carniola and thc Wcndish March. Cilli. Gorizia. Bavaria.,
Passau. Salzburg. Bcrchtesgaden. Tyrol. Voralberg et al.
Chapter II. State, Law, and Constitution 95 4. The Constitution of the Land: Basic Features. Territorial suprem 192
acy (Landeshoheit) is a precondition. The Land, its law and its
I. "State'' and "Society". The modern idea of the state. State and 95 people. The Land as a community of law and of peacc. The indi
lordship. The disjunction of state and society. Political history, le vidual member of the Land-community and his l10use.
gal history, economic history. The carrying over of modern politi
cal, legal, and sociological concepts into the Middle Ages.
2. Constitutional History as the History ofC onstitutional Law. The !02 Chapter IV. House, Household, and Lordship 200
manuals of German legal history are disposed according to mod
ern categories. "The constitution" in these manuals is understood
in the nineteenth-century sense. The separation of public and pri i. Lordrhip over Peasants (Grundherrschaft, the Seigneury). (a) Sei 200
vare law. Sovereignty. The principie of dclegation of powers. The gneury or Great Estate?: Public and prívate lordship? Dominium
juridical personality of the state. History and dogmatic forms of and Imperium. Grundherrschaft not just an economic, prívate
thought. The manuals of Austrian imperial history. Disjunction structure. Dispersion or dispersa!? Grundherrschaft and the consti
of state and society, constitution and administration, in the mod tution ofthe Land. Dominion. Protection and safeguard. (b) The
ern sense. Separation of power and Right. Untenability of tl1e House as the Nucleus ofA ll Lordship: The lordship takes its namc
usual terminology. from the lord's 110use. Thc l10use as an enclave of peace. The
3. TheMedieval View ofLaw. God and law (dasRecht). The unity II4 power ofthe housc-lord. (e) The Substance ofLordship: The lord's
of law and the just. The rcligious foundation, the eternal divine favor or grace (Huld). Advocacy (Vogtei), wardship, power. Thc
vm Contcnts Contcnts 1x
subject peasants (Rolden). Loyalty. Homage. (d) Protection and 2. ThePeople ofthe Land. (a) The Theory oftheMedievalEstates: The 324
Safeguard: From outsiders. Against other members of the commu notion of"the Estates" based on the nineteenth-century concept
nity. (e) Aid and Counsel: Counsel in the general sense. Actions of "society." (b) The Or;ganization of the Land into Estates: Lords/
obligatory under this title. (f) Imposts) Corveé, Military Obligation: Knights and squires. P~elates. Towns and Markets. Peasant courts.
The prevailing theory of medieval imposts. Imposts in tl1e indi Foundations of the "Estates of tl1e Land." The Estates of the
vidual Lander. Smuggling in of a modern concept of taxation. Land and the fisc.
An impost is "aid." Kinds of imposts. Excises. Corvée. Hospital 3. The Relationship Between the Lord oft he Land and the People of 341
ity. Military service. (g) Advocacy (Vogtei): Relationship between the Land. (a) Diet and Estates in the Prevailing View: The usual
advocacy and imposts, corvée, military services. Advocacy is "pro definition presupposes the concept of princely sovereignty. The
controversy in the Vormiirz over the nature of the Estates. The
tection and safeguard"; the power of the lord. Extension of advo
cacy over the dependents of others. Advocacy over foreigners, Tezner-Rachfahl controversy. Otto Hintze. Deputation and rep
lodgers, hired-hands. Advocacy over holders of"free" tenancies. resentation. (b) The Oath ofF ealty (Homage). (e) JointAction in
Advocacy over free peasants. (h) The Hierarchy ofLordship Rights: Judicial and Military Matters. ( d) Reciproca! Transá'ctions: Counsel
Seigneurial authority, authority over villages, administration and and aid. The di et. Negotiation of counsel and aid. Tasks of the
jurisdiction. These rights are not "delegated" rights. Their charac di et. Position of the Esta tes tl1at pertained to the fisc in the broad
ter as immunities. (i) Immunity: Origin ofthe legal institution. sense. (e) The Development of the "Dualism,, ofP rince and Estates.
The privilege of immunity is not delegation of public rights in 4. Summary.
the modern sense. The limits of the house and the lordship vis-a
vis the Land. Protection and safeguard presupposed for the lord
of an immunity. (j) The Structure ofS eigneury (Grundherrschaft):
Glossary
Layers of density. Seigneurial authority. Ecclesiastical seigneury.
Bibliography
Knightly seigneury. (k) The Relationship Between Seigneur and
Indcx
Subject Peasants: Ali relationships must be seen within the dialec
tic 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. 291
Feudalism.
Chapter V. Lordship over the Land; The Land-Community 294
L Lordship over the Land: (a) The Territorial Prince (Landesherr) as 295
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) Blood J 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!
importance of the fisc. The fisc and the jurídica! personality of the
state. (h) The Concept ofL ordship over the Land. (i) Lordship over
the Land and Sovereignty: The formula "the prince is not bound
by the laws" (princeps legibus solutus). .
Abbreviations
AISIGT Annali delPistituto storico italo-germanico in Trento
AÓG Archiv für üsterreichische Geschichte
CA Codex Austriacus
FRA Fontes rerumAustriacarum. Ósterreichische
Geschichtsquellen
HHStA Haus-) Hof) und Staatsarchiv) Vienna
HKA Hofkammerarchiv) Vienna
HSM Herrschaft und Staat im Mittelalter, ed. H. Kampf,
Wege der Forschung 2 (Darmstadt, 1964). ·.
HZ Historische Zeitschrift
JLNÓ Jahrbuch für Landeskunde von Niederosterreich
MGH Monumenta Germaniae historica
Const Constitutiones
DD Diplomata
DtChron Deutsche Chroniken
Ep Epistolae
SS Scriptores
SSrerGerm Scriptores rerum Germanicarum
MGSL Mitteilungen der Gesellschaft ftir Salzbui:ger
Landeskunde
MIÓG Mitteilungen des Institutsfür osterreichische
Geschichtsfarschung
MonHabs Monumenta Habsburgica
MLOÓ Mitteilungen des Landesarchivs von Oberosterreichs
NWVSG Neue Wege der Veifassungs- und Sozia!geschichte
NÓUrk Niederosterreichisches Urkundenbuch
NotBl Notizenblatt. Beilage zumArchiv für Kunde
osterreichischer Geschichtsquellen
OÓUrk Oberosterreichisches Urkundenbuch
ÓUrb Ósterreichische Urbare
ÓW Ósterreichische Weistümer
xu Abbrcviations
SalzUrk Salzburger Urkundenbuch
Translators) I ntroduction
StUrk Steierisches Urkundenbuch
VSWG Vierteljahrsschrift für Sozial- und Wirtschaftsgeschichte
ZBL Zeitschrift für bayerische Landesgeschichte
ZRG Zeitschrift der Savignystiftung für Rechtsgeschichte
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', atmo
sphere 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 con
tinue to define the critica! issues and will do so for sorne time.
Outside Germany, however, the book's cult has been limited to a rcla
tivcly small nurnber of scholars interested in its Gerrnan and ipdeed Aus
trian 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 trans
lation 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 Brun
ner'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 en
terprise 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 ex
plicit discussion ofthe Nazi matrix of the first three editions. The National
x1v Translators' Introduction Translators' Introduction xv
Socialist context is evident not only in Brunner's own enthusiasm for the Land undHerrschaft had been published the year before, and we have
Anschluss and for the Third Reich itself, but also in the continued relevance already noted its extraordinary success. The book's acclaim was due not
of these matters to the scholarly controversies over the book's theses. 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 "bour
r. Otto Brunner (1898-1982): Life and Career geois" order in general. So it must have seemed at any rate to Walter Prank,
whose Reichsinstitut für Geschichte des neuen Deutschlands was intended
Otto Brunner was born on 21 April 1898 in Módling, near Vienna. His to mobilize the historical profession in a programmatically Nazi recon
father was a judge, his mother the daughter of a vineyard owner. 3 Two struction of German history. In April 1941 he named Brunner to the insti
years later his father died, and in 1909 bis mother remarried, to a career tute's board (Beirat) and a few months later he congratulated him on his
officer in the Austrian army, of peasant origin and modest military rank. Verdun Prize, expressing the hope that scholars. like Brunner would "help
The family moved to Jihlava (Iglau) in Moravia, a city of twenty thousand the ideas of a creative New Order to triumph even in the ficld of medieval
Germans and four thousand Czechs, where Brunner attended the Gym scholarship."5 This picture of a Brunner firmly ensconced in the lcading
nasium from 1909 to 1914. The family then moved to Brno (Brünn), an academic circles of the New Order seems confirmed by his other activities
overwhelmingly Czech city with, however, a German Gymnasium that in the period. Por examplc, Brunner collaborated with Hermann Aubin
Brunner could attend. He graduated in 1916 and joined the army as a re and others in editing Deutsche Osiforschung (two volumes appeated, in
serve officer trainee, subsequently seeing action in the World War. After 1942 and 1943), a project intended to represent the progress of d.erman
that he entered the University of Vienna and in 1921 was admitted as a scholarship on Eastern Europe in undermining the Versailles settlement
student to the university's Institut für osterreichische Geschichtsforschung. At of 1918. Profiting from the victorics of the Wehrmacht after 1939, Ostfor
this time he married Stephanie Staudinger, the daughter of a district at schung also sought to validate the extension of German Lebensraum to the
torney. Both had been raised as Catholics but by the time of their marriage east.6 Brunner was also sent to Ankara by the German government to lec
were registered as Protestants and were in fact anticlerical. A surviving ture on German history, and he served in the army as a history instructor
friend from those days recalls that Prau Brwmer was a Socialist.4 in Luftwaffi officer training schools. By this time he was a member of the
Brunner's doctoral dissertation "Austria and Wallachia, 1683-1699," Nazi party: his application for membership two months after theAnschluss
written under Oswald Redlich, was completed in 1923. That year he also of 1938 had made him a "candidate member" and so he remained for five
passed his state examinations and was given a post in the Vienna Haus-> years, until the application was first rejected in September 1943, then ac
Hof> und Staatsarchiv, where his task was to catalogue the archives of cepted in November 1943.7
Austrian noble families. At the same time he worked on his Habilita The Austrian commission charged by the Allies with denazifying thc
tionsschrift, "The Pinances of Vienna from Its Origin into the Sixteenth University ofVienna after Germany's defeat found this record ofNational
Century,'' which was accepted in 1929 on the strong recommendation of Socialist activity strong enough to justify suspending Brunner from his
Alphons Dopsch. He could now teach at the university as a Privatdozent; profcssorship, and on 28 August 1948, after a vain appeal, he was formally
then in 1931 he was appointed an "auxiliary" ( extraordinarius) professor retired. So indeed were many other Vienna professors.8 Our own interest
with the approval of Hans Hirsch, who had just become the Institute's in the matter, however, lies not in what Brunner did or wrote to merit his
director and who would remain Brunner's chief patron. By now, however, suspension and dismissal, but only in how the National Socialist di
he also enjoyed the esteem of other scholars and when a "regular" ( ordi mension of his thought and action figured in the genesis of Land und
narius) profcssorship fell vacant at the German Karlsuniversitat in Prague Herrschaft. This question will be addressed systematically further on in this
he was second on the list. He would in fact receive such an appointment essay. Por the present we merely observe that the Vienna Institute in the
at Vienna in 1941 after the incumbent Hans Ij:irsch died, and Brunner also interwar period was a center of rightist, German-nationalist sentiment
succeeded his patron as director of the Instií:ute. yearning for the Anschluss that as a matter of fact would come about
xv1 Translators' Introduction Translators' Introduction xvu
through the agency of the Third Reich and its Austrian Führer. This become a visiting professor at the University of Cologne, and in 1954 he
would not have been clear in 1930, when Brunner contributcd an cssay, succeeded Hermann Aubin as full professor at the University of Hamburg.
"The Historical Function of Old Austria," to a book on the Anschluss Here he stayed until his retirement in 1967, after which, however, he con
qucstion, but it had certainly become clcar a fcw ycars later when Brunncr tinued to offer a seminar one term a year until 1973· Meanwhilc he had
published his "The East Mark in History" ( the East Mark being Austria been very active in promoting the new departures in historical thought
as seen from Germany) in Die Rasse. Monatschrift der nordischen Bewegung, that he had himself pioneered, although now in a wider German and in
2 (1935).9 The ardent pan-Germanists at the university, whose numbers deed European context (as implied by the title of his 1949 book). In 1958
included such leading professors as Alphons Dopsch, Hans Hirsch, Hein he co-founded the Heidelberg "Arbeitskreis" for the study of social his
rich Ritter von Srbik, and Othmar Spann, as wcll as Otto Brunner, could tory; from 1968 to 1979 he was an editor of the Vierteljahrschrift für Sozial
not desire union with Gcrmany without desiring to become part of Nazi und Wirtschaftsgeschichte; and he joined Werner Conze and Reinhart
Germany. Exactly what this implied would appear diffcrently to different Kosclleck in launching the multi-volume handbook, Geschichtliche Grund
persons, and it must be said that in the carly years of the Third Reich, the begrijfe. 14 His essays developing and extending his original ideas into stud
New Ordcr seemed to promise everything to everyone who was disgusted ies of the peculiar qualities of Western civilization wcre collected in the
by the apparent irrationality and unviability of the postwar republics in very influential Neue Wege der Sozialgeschichte (1956), and expanded in a
Germany and Austria, who yearned for an authentically German national second edition of 1968, Neue Wege der Veifassungs- und Sozialgeschichte. By
experience, and who wanted to become part of history. That Otto Brun the time of his death in 1982 he was recognized as not only a lcading figure
ner was such a one cannot be doubted-we need only read the discourse in the profession but even a venerable one.15
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 stem 2. The Critique ofTraditional Constitutional
ming from a dead reality should still determine the problematic and stan and Legal History
dards 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 lead Although the substance of Land und Herrschaft consists of ':l. reconcep
ing to Land und Herrschaft, whose key thcses formed the substance of the tualization of late-medieval constitutional history on the basis of Austrian
Erfurt address. The. other Nazi involvements outlined above and respon cvidence (with sorne Bavarian material drawn in), it begins with two chap
sible for Brunner's dismissal from his professorship were unrelated to the ters intended to demolish the old model of the subject generated in the
substance ofhis work, and one guesses that insofar as they were not mercly nineteenth century. The implicit or explicit purpose of this model had
Nazi forms of national service and careerism they were more or less ordi becn to find (today we would say construct) the late-medieval antecedcnts
nary. So for example Walter Frank's cultivation of Brunner was certainly of the modern national state and its bourgeois-liberal societal order. 16 That
duc to the former's hope of halting his current fall from grace 11 by touch order had emerged out of and in antithesis to "Old Europe," 17 the cor
ing the luster of a rising star; in any case the body of Land und Herrschaft porate, hierarchical order of Europe from the twelfth into the eighteenth
contained nothing of what Frank called "the ideas of a creative New Or centuries. The foundations of this bourgeois-liberal order lay in the mod
der." And Brunner's collaboration with Aubin did not draw the former ern reality of the national statc as a discrete bureaucratic apparatus, and in
into the latter's chauvinistic celebration of German domination over the the corresponding realm of "society" as a dense, exigent, and rewarding
Slavs-such sentiments are lacking in Brunner's writings and actions, as sphere of individual action pursuing prívate gain and other satisfactions.
indeed is anti-Semitism as such. 12 The function of the state was to protect the order of society and the lifc
Brunner's retirement, in any case, was easy and rclatively short.13 In and property of the individuals who made it up; the state thus occupied
1949 he was ablc to produce his littlc masterpiece, Adeliges Landleben und the public sphere with a monopoly of the public powers of legislation,
europiiischer Geist (Noble Rural Lije andEuropean Culture), in 1952 he could police, warfare, justice, taxation, and administration. Society on the other
xvm Translators' Introduction Translators' Introduction x1x
hand represented the private sphere of individual action, which by the church corporations, and towns, ali of which exercised jurisdiction, had
nineteenth century was thought of as par excellence economic. The ancient military faculties for defense of their rights, raised money by taxation, and
Greek "koinonia politike," rendered by the Romans as "societas civilis," administered their subject peasants. The case par excellence was the feud
had signified the whole order of the polis qua polity, above the level of the or "Fehde" (usually called "prívate war,'' anachronistically, in English and
individual household or "oikos" in which the citizens pursued their eco French discourse), to which Bmnner devoted the first chapter of his book.
nomic and familia! interests.18 In the nineteenth century, however, "civil To modern eyes the spectacle of noble lords taking up arms against
society" lost its political dimension of reference and signified simply soci each other or against their prince, making alliances with foreign powers,
ety in the disjunctive sense noted above, in German "bürgerliche Gesell and concluding peace treaties with their opponents can only appear as
schaft," with "bürgerlich" usually carrying both its meanings, namely anarchy, the collapse of political and legal order. Brunner in effect decoded
"civil" and "bourgeois." The disjunction of State and Society, respectively the feud by showing that behind the disorder and violence, which were of
the public sphere and the prívate sphere, implied the restriction of the course quite real and painful enough, there lay-a legal order of "Recht"-
former to the protection of the latter; the nineteenth-century order was "Right," as in the Latín "ius," meaning variously or in synthesis not only
thus "liberal" in the (European) sense that civil society was to be free of justice but also rights and law. This was the Right implicit in lordship,
intervention by the state, the state was to be limited to protection of law "Herrschaft," of protecting one's subjects and defending one's own rights
and order. The disjunction was of course always sharper in theory than in by force whenever the justice of law courts was lacking or rejected. What
fact, especialJy in the politically lcss devcloped German territories, but it ever this or that fcud may have been in fact, it had the form of \1 legal
was the theory that shaped historical conceptualization. Historians not recourse to trial by battle with victory taken as the verdict of divine justice.
only posed the problem of historical understanding as that of clucidat It had its own formulas for beginning, pursuing, and ending hostilities, its
ing the medieval origins of the "modern" nineteenth-century order-the own laws specifying what might or might not be done to the enemy, and
21
State-Society disjunction-but thereby necessarily imposed the modern so on. This sort of thing is more widely understood today than it was
categories on the medieval reality, which was rendered into the typical when Bmnner wrote his book or indeed when he wrote his "Contri
disjunctions of state and society, public and prívate, might and right, idea butions to the History of the Feud in Late-Medieval Austria," published in
and reality, legal and illegal.19 1929 on the basis of his archival studies.22 His point, endlessly reiterated
German "constitutional" history ( Veifassungsgeschichte), "traditionally in Land und Herrschaft, was that Right was thought of as a transcendent
studied in close connection with social and political history,"2º was drawn order of divine justice. Actual or positive laws were a part of this order,
into the nineteenth-century mode of disjunctive thinking (Trennungsden but it also sanctioned all the rights enjoyed by "good old custom" whether
ken). This occurred even though the sharp Hegclian antithesis ofState and or not positive laws of kings or princes provided for them. Indeed, the
Society was not universally accepted and even though it was far more dif prime function of a king or prince as holder of lordship over his land was
ficult, for both medieval and modern reasons, for German than for, say, to secure ali holders of rights in what was theirs. If, as Brunner wrote,
French scholars to find the origins of a modern national state in the me modern constitutional and legal historians stood "peculiarly helplcss" be
dieval monarchy. German legal history, on the other hand, hada built-in fare the facts of the feud "becau se they approached them presupposing the
tendency to think in disjunctive terms, inasmuch as the manuals it pro modern state," this was only the case par excellence of their inability to
duced had the primary function of educating lawyers and hence naturally <leal with a societal order not based on the disjunctions between state and
tended to negativize or ignore all forms of legality that did not fit in to the society, might and right, public and prívate.
paradigm of the nation-state. Brunner directed his polemic against both Brunner's argument (d eveloped in Chapter II) was that late-medieval
lines of traditional history and showed that they could not <leal posi constitutional and legal history had to be conceptualized not only holisti
tively-if at all-with the innumerable late-medieval structures in which cally (hence not in terms of the disjunctive categories that restricted con
"public" functions lay quite legitimately with entities that in liberal dis stitution and law to the "public" sphere monopolized by the State), but
junctive terms could only be deemed prívate. Nobles in their lordships, also in cognitive categories derived as far as possible from the sources
xx Translators' Introduction Translators' Introduction xx1
themselves-a·"quellenmassige Begriffssprache." This was nota new idea (aufgehoben), and the central concepts of the constitution are Volk, es
in the second half of the nineteenth century, Otto von Gierke had argued pecially the Volksgemeinschaft, and Führung, leadership." The obvious
much the same in his critique of positivist jurisprudence.23 But Brunner question here would be whether a historical image constructed on the
gave it a polemical edge that in context was very creative, sometimes ex basis of the new present would not also one day seem anachronistic, in
cessively so, as we shall see. Although he acknowledged that "nothing both senses just noted (see section 4 below).
would be more wrong than to think that historical scholarship can dis We can only observe that when Bnmner declared in 1937 that "the
pense with modern concepts,'' he insisted that "these must be understood need today is for a revision of our basic concepts ( Grundbegriffe)," and
as themselves historically conditioned."24 So for example while historians when he called, in Land und Herrschaft, for a "quellenmassige Begriffs
must continue to use such modern concepts as, say, legitimacy or econ sprache," a conceptual vocabulary in accord with the sources, he presum
omy, they should not use them simply in their nineteenth-century senses ably took it for granted that the new basic concepts oriented to Volk) Volks
as, respectively, signifying the exclusive legality of the central state and its gemeinschaft, and Führung would in fact correspond to the late-medieval
laws, or the exclusively productive and chrematistic activities of modern sources. Por he postulated a homology of the Third Reich and the late
economics.25 medieval Land, as two manifcstations of basic Germanic principlcs of po
Brunner himself, in any case, did not shrink from proclaiming the litical and legal order. The late-medieval territorial polity, structured by
"present-day relatedness" ( Gegenwartsbezogenheit) of his own critique, as land-community and lordship, "was not a modern type of stat~. but a
indeed we have seen in his statement at the Erfurt Historikertag of 1937· peace-community ofthe Germanic kind, always preserving the speCific ba
Two years later he amplified these thoughts in a programmatic article, sic structures of Germanic political associations; it remained essentially a
"The Modern Concept of the Constitution and Medieval Constitutional Germanic folk state ( Volksstaat) which was not destroyed but only vaulted
History,"26 charging the old-line constitutional and legal historians with over by the post-medieval ruler-state (Herrscherstaat)"; it "can only be un
failure to realize "that they work according to a model that is not only derstood as coming out of Germanic roots."27 But so too "the basic po
unhistorical but cannot even claim to be oriented to the present." The litical concepts of the Third Reich, Führung and Volksgemeinschaft, are
function of history, he wrote, was "to understand the past and to serve ultimately understandable only on the basis of Germanic foundations."28
the present"; as for the targets of his attack, "It cannot be long now until The bourgeois Rechtsstaat, on the other hand, had been spa'Yned out of
even they discover that the world they take as 'present' has long ceased to French absolutism, it was Western and un-German,29 and its sway over the
exist, and that their duty now is to discover the historical foundations of German mind in the nineteenth century was responsiblc for the disjunctive
the Third Reich's law and constitution, not those of the 'bourgeois Rechts problematics of old-line constitutional history: the search for the locus of
staaf' and its basis in absolutism." Here he brought together two charges sovereignty, the attribution of all "public" powers to the king/emperor or
of anachronism: on the one hand the old-line historians were anachro to the territorial princes, and the effort to prove that the exercise of such
nistically forcing late-medieval constitutional reality into the disjunctive powers by nobles or other local entities could only have come about
cognitive categories corresponding to nineteenth-century reality-the through delegation or usurpation. The problematics themselves appear in
"bourgeois Rechtsstaaf''; on the other hand, these nineteenth-century cate Prench and English historiography too, but without the stridency, elabo
gories had themselves beco me outdated inasmuch as the New Order of the ration, and strikingly fetishistic quality of German discourse about Staat)
Third Reich had replaced the bourgeois Rechtsstaat with a new reality. Genossenschaft) Recht) Steuer, Amt, and so on. Brunner's reaction was cor
"Por National Socialism the supreme principle of political thought is no respondingly powerful, and there can be no doubt that if success is mea
longer the state but the people (das Volk) [emphasis added], ... a reality of sured by the extent and duration of approval, then chapter II of Brunner's
blood and race, living in a concrete order of the Volk and aware of its book must be deemed by far its most successful part. Pew even of those
unity in its experience of its own community ( Volksgemeinschaft)," and who reject the alternative model of Land and Herrschaft, or who repudiare
acting through its state, through the Nazi party, and through the army. Brunner's point of departure in the New Order, fail to acknowledge the
"In this way the disjunction of State and Society has been transcended utility of his critique of old-line constitutional and legal history. 30