Specific Performance

by Andreas Thier

1. Conceptual definitions

The term ‘town law’ (Stadtrecht) encompasses different meanings in the context of European legal history: from a more technical perspective it designates all rules that apply only to a town and are thus distinct from the law of the land around this town. In terms of their binding force, town laws encompass a bundle of rights that are granted to the members of a municipality by a ruler as privileges; they have been shown to exist since approximately the 12th century, when they were termed libertates. Apart from exemption from the law of the land and the conferring of individual rights (such as the guarantee of personal freedom or free disposition of land holdings) these kinds of ‘liberties’ also include the power (iustitia) to make laws and to enforce them. In that sense town law might be understood as the description of a special legal status of a municipality and its inhabitants, which characterized it as a ‘town in a legal sense’ (H Planitz). Town law also refers to the autonomous law making of an autonomous town corporation or its organ, ie its council; this type of town law was designated by expressions such as Willkür, kore, decreta, statuta, mandata or arbitria. In terms of systematic classification, this kind of statutory law is related to customary law. The latter can evolve in a municipality and is, in that sense, also a type of town law. A last meaning of town law is revealed by the substantive content of rules for the internal legal order of municipalities. These rules (frequently called iura or ius civile) deal particularly with matters of pri- vate law, criminal law, procedure, and later also all areas of municipal and police administration.

2. Manifestations and contents of medieval town law

Viewed from the perspective of urban settlement developments, two regions can be distinguished in medieval Europe: in Italy and southern France the continuity of Roman civitates continued to exert its influence. North of the Alps and also in England, however, this tradition was not present; here, municipal settlements evolved frequently nearby bishop’s sees, royal palatinates or from fortified market places. Beginning sometime around the 12th century, existing and newly emerging settlements began to grow in size. This corresponded to the increasing long-distance trade and the ascension of universities which, however, found better conditions in the already urbanized regions of southern France and northern Italy than north of the Alps. It was against this background that town law would unfold its multiple dimensions, described above.

a) Town law: between privilege and autonomous rule making

The origins of town law privileges go back to the Carolingian period. Since that time merchants had been granted royal protection in the form of privileges, for instance exemption from customs duties and freedom of trade, and they received preferential procedural treatment such as the exemption from ordeal by battle. Moreover, since Carolingian and particularly since Ottonian times, market privileges had been granted which would guarantee royal protection for the privileged market place, invest the privileged person(s) with the right of coinage for the respective market (so that revenues from currency exchanges could be drawn), and which would oblige all market actors to comply with the market rules. As first seen in the 11th century and as later routinely done in the 12th century, such concessions were extended to boroughs through wider-reaching liberties, including in particular the ius statuendi et iudicandi, which formed the basis of autonomous rule-making and jurisdiction. In more than a few instances, existing local customs or rules, created by the burghers, were confirmed by municipal charters.

Autonomously created town law, in German called Willkür (‘resolution’ (original etymological meaning); ‘arbitrariness’ (modern meaning)), Einung (‘union’) or Satzung (‘statute’), was grounded in the idea of the citizens’ association as a so-called ‘sworn union’ (coniuratio). Understood in Carolingian times as a potentially dangerous ‘conspiracy’ and therefore banned, associations created by oath became more frequent in the age of truces and king’s peaces beginning in the 10th century; they also came to exist as associations of merchants in the form of guilds. Here, the oath of allegiance to jointly enacted rules formed the basis of their validity. The strong presence of this kind of legitimation, which also reveals early modern ideas of a social contract, became particularly clear in the well-evidenced duty of town citizens to take the oath of citizenship anew every year (coniuratio reiterata). In the legal practice of towns, town law was frequently promulgated as the ‘union’ of the elected council, which would however evolve into an autonomous authority that from the 14th century claimed the power to decree governmental ‘precepts’.

Besides its normative status as precept or union, town law obtained a new quality compared to the law of the land: it was—similar to the law of the church (canon law)—significantly characterized by written transmission, whereas oral custom had much more importance in rural areas and also in the context of feudal law. Similar to canon law, positive town law was also easier to change and could thus be adjusted better to changing social and economic conditions. This evolutionary dynamic of town law was reflected in town law records from the 12th century onwards, and in its application. In the Stadtbücher (city records), initiated by town councils, emerging in the 12th century (Schreinsbücher in Cologne, c 1130) and spreading particularly in the Hanse area (Hanseatic League and pre-modern commercial law), municipal statutes, acts of town administration and also citizens’ legal transactions (mainly pertaining to land holdings) were documented. In towns without this kind of officially ordered written records, Stadtrechtsbücher (records of town law) were created as private documentations of town law and legal practice, usually by town chroniclers (eg Freisinger Rechtsbuch of 1328 or Zwickauer Rechtsbuch of 1348). This type of writing was influenced in its origins by the efforts of learned lawyers to bring systematic order into the legal rules. Moreover, it shared the overall tendency towards written transmission of regional oral customary law, as represented particularly by the Sachsen- and the Schwabenspiegel, whose texts were frequently added to these Stadtrechtsbücher.

b) Town law families

Town law had binding force only within the town limits. But in many cases the texts or at least the content of individual town laws were adopted by other towns. This spread of town law texts principally took place through two mechanisms. (1) The transfer of one town law text to another town could happen as a result of a legislative act. This occurred mainly in the case of towns founded by a ruler who would expressly adopt the laws of another town as the basis for the law of the new town or who would simply refer to another town law. A typical example is a provision in the town law of Freiburg im Breisgau (1120) that disputes should be resolved not by arbitrium of the lord of the town, but by the law of Cologne and the general law merchant: non secundum ... arbitrium ... sed pro consuetudinario et legitimo jure omnium mercatorum precipue autem Coloniensium examinabitur judicio (Tennenbach text of the town law of Freiburg, c 5). (2) The transfer could also occur as a consequence of a request of a younger town to an older one regarding individual legal problems. This widespread practice resulted in the rise of filiations of town law texts and the emergence or consolidation of special instances such as the so-called Schöffenstühle. Special authority was gained by the texts of town laws (as in the case of Lübeck, Magdeburg and Frankfurt) whose status was based on imperial privilege, and which could therefore claim a special legal status with the result that judgments based on these legal texts promised security against critical objections.

For the description of these phenomena, which mark an early but distinguished example of legal transfer (reception), a widely used, if sometimes disputed, nomenclature has evolved: a family of town law (Stadtrechtsfamilie) is the designation of those town laws that can be traced back to the text of a single town law as in the case of the Lübisches Recht, derived from the law of Lübeck. The town where the respective law originated is called the mother town, as was the case with Magdeburg as the point of origin for Magdeburg law, which spread mainly in eastern Europe. The recipient municipalities are called ‘daughter towns’.

c) Substantive content of town law

Despite their broad variety and vast multiplicity, town laws have some common fields of application: essential was the individual freedom of citizens from any rule by outside powers. This becomes especially apparent in the principle ‘city air makes you free’; although the exact formulation of the original maxim is not known, its meaning and existence dates back to approximately 1150. In particular, this rule meant that peasants subjected to manorial jurisdiction were freed from the bonds of servitude and could even enter the association of citizens provided the seigneurial claim was not asserted for a given period of time (‘a year and a day’). Another defining element of town law was its provisions on the protection of the free disposal of property rights. In newly founded cities, the lord of the town often granted its inhabitants property in return for the payment of a low interest (interest). The needs of the urban property market led to the development of land registers and fostered the evolution of legal concepts concerning secured interests in land. This phenomenon demonstrates the importance of business-law related issues for the evolution of town law. This corresponds to the fact that in addition to contract law, the law of the guilds and the commercial law were of special importance in this context. The emergence of rules about foreclosure and bankruptcy completed this picture of a legal regime that even limited the medieval inequality of gender by re-evaluating the legal status of women in the context of economic activities so as to support urban economy.

Procedure formed another issue prominently featuring in town law. It frequently substituted the older traditions of purgative oath and ordeal with provisions on testimony and documentary evidence. Bans on violence and numerous criminal law rules served to keep the urban peace.

These developments were sometimes influenced by the ius commune. Roman law found its way into Stadtrechtsbücher such as the Hamburg Ordeelbook (1270), and it was able to obtain strong influence when the position of the town clerk was occupied by learned jurists as in the case of Italian, southern and western German cities. At the turn of the late Middle Ages to the early modern period, Roman law gained additional weight in the so-called ‘town law reformations’, such as those occurring in Frankfurt (1609, 1678), Freiburg (1520) and Nuremberg (1478).

3. Town law in the modern age

During the early modern period, medieval traditions of town law continued to exercise their influence until the 18th century. Nevertheless, town law was now also shaped in the 16th and 17th centuries by Polizeiordnungen (‘police’ regulations), which dealt with all areas of economic and social life. Town law was an important factor in the introduction of the Reformation, which spread throughout central Europe mainly via towns and cities. The legal distinction between town and country remained unchanged throughout early modern times, even though the enlightened codifications of the late 18th and early 19th centuries brought the idea of legal equality to the fore; but it was only the constitutional state of the 19th century that would ultimately implement this ideal (while limiting at the same time municipal legal autonomy). The last vestiges of the remaining town law traditions were eliminated by the codifications of the late 19th century.

Literature

Wilhelm Ebel, Der Bürgereid als Geltungsgrund und Gestaltungsprinzip des deutschen mittelalterlichen Stadtrechts (1958); Gerhard Dilcher, ‘Stadtrecht’ in Albrecht Cordes and others (eds), Handwörterbuch zur Deutschen Rechtsgeschichte, vol 4 (1990) cols 1863 ff; Karl Kroeschell, ‘Stadtrecht, -sfamilien’ in Lexikon des Mittelalters, vol 8 (1997) col 24; Susan Reynolds, Kingdoms and Communities in Western Europe 900–1300 (1997). Sources. For a collection of medieval town law texts see Friedrich Keutgen, Urkunden zur städtischen Verfassungsgeschichte (1899). For a survey of medieval town laws see Richard Schröder and Eberhard Freiherr von Künssberg, Lehrbuch der Deutschen Rechtsgeschichte (7th edn, 1932, reprinted 1965) 379 ff, 1063 ff; For town law reformations see Wolfgang Kunkel and Hans Thieme (eds), Quellen zur neueren Privatrechtsgeschichte Deutschlands, vol 1/I (1938). For a collection with reference to the European context (still in the process of being developed) see Elenchus Fontium Historiae Urbanae, vols 1–3 (1967–2005).