LÁSZLÓ PÉTER The Irrepressible Authority of the Tripartitum1 Hungary’s ancient constitution, as elsewhere in medieval Europe, was generated by custom. However, the Middle Ages lasted longer in some parts of Europe than in others; in Hungary they lasted well into the nineteenth century when, in sharp contrast to Austria,2 where customary law had faded away, custom was still the dominant source of law. Consuetudo regni, as a legal source, possessed greater vitality than royal decree, a decretum enacted by the king with the consent of the estates at the diet, royal privilege, or the judgment of a law court. Werbőczy’s Tripartitum, the work which for well over three centuries lent shape to Hungarian law more than any enactment, was a customary that made only passing nods to law as a deliberate expression of will, the so called ‘written law’, referred to by the author either as decreta or statuta or, more frequently, as constitutiones. These terms appear to be synonyms rather than exact equivalents, for they are not interchangeable. For statutes and constitutiones could be either general or local, whereas decree is invariably general and enacted by the king either on his own authority or with an assembly of the nobles. Notwithstanding these divisions, leges (törvények) were, in the Hungarian legal system, essentially customary precepts, a fact that has had far reaching consequences which may not yet have been sufficiently appreciated by modern scholarship. There are many reasons which could explain this omission, and the perplexities of Werbőczy’s use of terms provide an important one. Yet too much should not be made of the valid observation that Werbőczy introduced learned distinctions in the Prologue of the Tripartitum only to disregard them in the rest of his work.3 This criticism may be unduly severe at least in one respect: the Prologue contains an adequate frame of reference for the corpus as a whole. The conceptual basis of the Tripartitum is simple and consistent, although its consistency may partly be obscured by the medieval abundance of synonyms that adorn its three parts. The scholastic legal culture, already brought to its apogee by the ‘Angelic Doctor’ in the thirteenth century, inspired the selection of Werbőczy’s vocabulary. Accordingly, justice is the foundation and ‘enduring will’ that renders everyone his right (Prologus, Tit. .) Notably, in Hungarian somebody’s jussa, igaza, igazsága 1 This paper is an extended version of “The Primacy of Consuetudo in Hungarian Law,” in Martyn Rady (ed.) Custom and Law in Central Europe (hereafter Rady, Custom and Law), Centre for European Legal Studies, Occasional Paper no. 6, University of Cambridge, 2003, pp 0–. In writing this paper, I am grateful for the advice received from János Bak, Lóránt Czigány, Robert Goheen and Martyn Rady. 2 In nineteenth-century Cisleithania, custom even in civil law was not a recognized legal source (except when the law expressly referred to it—which it hardly ever did): Allgemeines bürgerliches Gesetzbuch (Vienna: Aus der k.k. Hof- und Staatsdruckerey, 8), para. 0. The 8 code refers to custom and use on two occasions only – in respect of local pasturing rights and of procedure for reporting ‘lost and found’ property. 3 György Bónis, Középkori jogunk elemei [Elements of Our Medieval Laws] (Budapest: Közgazdasági és Jogi Könyvkiadó 972), pp 237ff. In the past the Prologue was seen as the foundation of the work; Bónis, by contrast, emphasized that the ‘true Werbőczy’ could be found in the three parts, ibid., p. 26. [xiii] xiv László Péter conflate justice and truth—an indispensable feature (even today) of the Hungarian mental outlook. Werbőczy stresses that ius (right) is a nomen generale and therefore law is a kind of right which could be either a declared norm or custom, or to put it in practical terms, either statute (decretum) of some kind or unwritten law (consuetudo). But which is superior of the two? In the Prologue, Werbőczy, a sixteenth-century Hungarian Bracton, treats consuetudo and decretum as having the same force of law. He argues, not unlike Bartolus, that if a statute law is subsequent to contrary custom, then the statute should annul the custom. If, however, the statute precedes established custom, the latter prevails over the former. Approved general custom cancels the statute everywhere; local custom sets the statute aside only locally.4 Custom interprets, complements and may supplant statute law. We need not follow the large literature on Werbőczy ‘s foreign sources: what he took from Roman Law (passages from the Digest and so on) and from Canon Law. These influences were secondary. Hungarian law was overwhelmingly vernacular in form and content. Indeed, the Latin terms adopted from the Canonists and the Civilians sat rather uncomfortably on Hungarian social relations and indigenous procedures. Characteristically, Werbőczy in the so-called Operis Conclusio, which follows directly upon the Third Part, affirmed that his work was written non nisi nostratium usui futura erant. For this reason he did not shrink from bringing in words used in Pannonia rather than among the Latini. (Even without the benefit of Wittgenstein let alone Gadamer, Werbőczy showed a notable sensitivity towards the use of language). After the Prologue, as soon as he starts describing the Hungarian system, Werbőczy abandons the view that custom and statute are different and equal sources of law.5 Consuetudo lies behind and is paramount over all other forms of law: royal edicts, letters of privilege, judgments of the court and decreta regni. The Civilian Béni Grosschmid, by reference to Pt.2. Tit.6, concluded that Werbőczy understood by consuetudo the legal system as a whole; György Bónis, a legal historian, pointed out that consuetudo freely selected for adoption from decreta, including even the incumbent king’s.6 Law is not made or created; it is not an expression of will—not even the deliberately expressed will of the community. Law is ius, right, which exists as the approved habits and usages of the community.7 The statutes only record and promulgate customary rights recognized as already 4 Prologue, Tit. 2 5 For a fine analysis of Werbőczy’s use of custom, pointing out the direct or indirect influence of Bartolus in the Prologue and its abandonment in the main text, see David Ibbertson “Custom in the Tripartitum,” in Rady, Custom and Law, pp 3–23 (p. 9). 6 Béni Grosschmid, Magánjogi előadások [Lectures in Private Law] (hereafter Magánjogi) (Budapest: Athenaeum 905), p. 405. György Bónis, “Törvény és szokás a Hármaskönyvben,” in Elemér P. Balás et al., Werbőczy István (hereafter Balás, Werbőczy), Acta Juridico-Politica 2, 942 (Kolozsvár), pp 2–40 (p. 28). 7 The Tripartitum itself was the best example: a personal rather than ‘official’ publication, it became ‘law’ and was frequently republished together with the decreta regni, which sometimes even referred to it, as Werbőczy’s work had acquired general approval even before its first publication in 57. Yet, notwithstanding its authority, the Tripartitum, by not being an officially approved text, allowed open debate on the law. János (Joannes) Kitonich’s work (Directio Methodica Processus Judiciarii, Nagyszombat: Mollerus, 69), for instance, generated a literature well before the nineteenth century, giving a good start to the growth of Hungarian jurisprudence. The Irrepressible Authority of the Tripartitum xv binding. Not unexpectedly, near contemporary translations of Werbőczy’s customary titled the book as the Magyar Decretum or Törvény Könyv.8 Ius, for Werbőczy, is not unchanging: it adapts to varying circumstances. But the adaptation is not judicial. Ius is not judge-made law: judicial practice is merely evidence rather than the cause which generates ius.9 For Werbőczy and for his successors over three centuries, the authority behind ius non scriptum as much as written law is the approval of the community, the tacitus consensus populi. Werbőczy’s populus, however, is made up by the nobility only; the ignobles, the plebs are excluded from the ‘people’. The ‘lawmaker’ is to discover and express and the judge merely to apply that consensus of the noble community. Art. X of 492 ordains the judges to administer justice juxta antiquam et approbatam consuetudinem. Political authority, as much as all the other concerns of law, was founded on ius. It could not have been otherwise because before the nineteenth century the legal system was not even differentiated into ‘public’ and ‘private laws’. A learned man, Werbőczy in the Prologue distinguished ius publicum from ius privatum only to ignore the distinction subsequently. Succession in the royal office,10 the coronation, the royal oath, the Inaugural Diploma, the constitution of the diet and also the ambit of the diet’s authority were largely regulated by custom. And so were the rights of the king to rule and govern as much as the rights of the nobles and other privileged groups and those of the counties and sedes of the districts. Decreta regni In the fifteenth century the decretum generale became a kind of contract between the king and the diet of the ország (noble community) rather than, as it had been earlier, a letter of privilege issued by the king. From this time onwards the totum corpus of the ország appeared to be an independent partner. After the Habsburg dynasty had acquired the throne in 526, the authority of the diet and that of the decretum increased without, however, leading to a statutory system of law. The decreta regni, the statute laws, which had accumulated in manuscript collections for centuries, were published for the first time by two bishops in 584 in Nagyszombat (Trnava).11 Like the Tripartitum, this was not an authorized publication, although 8 The title of Balas Weres’s translation of theTripartitum was Magyar Decretvm (Debrecen: Hoffhalter, 565); Gaspar Heltai’s was Decretvm.