CUSTOM AND LAW IN CENTRAL EUROPE Edited by Martyn Rady With an Introduction by János M. Bak Centre for European Legal Studies Occasional Paper no 6 Faculty of Law, University of Cambridge CUSTOM AND LAW IN CENTRAL EUROPE EDITED BY MARTYN RADY WITH AN INTRODUCTION BY JÁNOS M. BAK © Contributors 2003 Published by Centre for European Legal Studies Occasional Paper No. 6 Faculty of Law, University of Cambndge ISBN: 0-9546869–0–X All rights reserved. No part of this publication may be stored in a retrieval system or transmitted in any other form or by any means, electronic, mechanical, recording or otherwise, without the prior permission of the Faculty of Law of Cambridge University and contributors. Copies of this publication and others in the CELS series may be obtained on application to the Centre for European Legal Studies, Faculty of Law, 10 West Road, Cambridge, CB3 9DZ, United Kingdom (http://www.law.cam.ac.uk/cels/). Front Cover: from the original 1517 edition of Werbőczy's Tripartitum Typeset and Printed by Q3 Print Project Management Ltd, Loughborough, Leics. Preface Stephen Werbőczy's account of Hungary's laws and customs, the Tripar-titum Opus Juris Consuetudinarii Inclyti Regni Hungariae, was presented to the Hungarian diet in 1514 and printed three years later in Vienna. Although it never received the royal seal, the Tripartitum rapidly acquired authority and was republished in more than fifty editions. Until 1848, it retained a largely unimpaired influence in respect of Hungarian law and legal procedures. The present volume is a collection of essays drawn from papers delivered at a conference held in Cambridge in April 2003 under the title, 'Werbőczy, Custom and Hungarian Law'. The conference formed part of a much larger and continuing project, led by Professor János M. Bak of the Department of Medieval Studies of the Central European University in Budapest, which is aimed (among much else) at publishing an English-language translation and critical edition of Werbőczy's Tripartitum. The conference was supported by most generous funding from the British Academy and the Central European University. The organizers also gratefully acknowledge the help and support provided by the Faculty of Law of Cambridge University, Corpus Christi College, the Centre for the Study of Central Europe of the School of Slavonic and East European Studies, University College London, and the Faculty of Laws of University College London. This collection of essays, all of which have been substantially rewritten since they were first delivered as conference-papers, brings together much of the latest research on law and legal institutions in the kingdom of Hungary and in its sister-kingdom, the triune monarchy of Croatia, Slavonia and Dalmatia. Some of the contributions aim to bring to scholarly attention the legal sources, principal institutions and procedural developments relating to the history of this part of Central Europe. Others touch upon the nature and meaning of custom and of the relationship between custom, law and statute. All are, however, bound together by their recognition of the lasting importance of Werbőczy's Tripartitum for the legal history of Hungary and Croatia. The contributions offer a variety of different perspectives and, sometimes, contradictory assessments. The aim of the volume is not, however, to present a 'common front' but instead to offer new insights on the work, context and legacy of Hungary's 'Tribonian and Bracton'. Publication of this volume has been made possible by a generous grant from the Maitland Fund of the Faculty of Law, Cambridge University. Martyn Rady v Contents Preface v Introduction 1 János M. Bak Custom in the Tripartitum 13 David Ibbetson Administering the Law: Hungary's Loca Credibilia 25 Zsolt Hunyadi Hungarian and Croatian Customary Law: Some Contrasts and Comparisons 37 Damir Karbić Hungarian Procedural Law and Part Two of the Tripartitum 47 Martyn Rady Pergošić' s Translation of the Tripartitum into Slavonian 71 Nataša Štefanec Werbőczy's Reception in Hungarian Legal Culture 87 Katalin Gönczi The Primacy of Consuetudo in Hungarian Law 101 László Péter Contributors 113 Index 115 vii Introduction János M. Bak 1. The DRMH and the Tripartitum The present collection of papers has its origins in the series Decreta Regni Mediaevalis Hungariae / The Laws of the Medieval Kingdom of Hungary (DRMH), which is a Hungarian and Croatian project led by the Central European University and supported by British, German and North American colleagues, friends and foundations. DRMH is itself part of a much larger project, which was originally conceived by the publisher of Slavonic and East European literature and of a number of journals, Charles Schlacks, Jr (now located, after several moves, in Idyllwild, California). Almost twenty years ago, Schlacks set in motion an ambitious publishing enterprise, the aim of which was to bring into print the laws of Central and Eastern Europe, both historical and contemporary.1 For Hungary, he won the cooperation of Peter Hidas of Montreal, a historian of nineteenth- century Hungary, who agreed to serve as editor. In turn, Peter Hidas found the best person to start the series off with the laws of medieval Hungary. This was György Bónis, the most distinguished historian of law and institutions, and pupil of Ferenc Eckhart. Bónis had the additional advantage of being able to utilize the notes and readings of the late Ferenc Dory, who had long before planned a new edition and Hungarian translation of the medieval laws. In turn, György Bónis turned for help to James Ross Sweeney (of Pennsylvania State University), whom he knew from Sweeney's work on the Hungarian implications of the decretal Intellecto. Having surveyed the material prepared by Bónis, Sweeney decided that yet more help was required, and it was through this route that the present author was enlisted to the task. (He, in turn, knew Sweeney from their time in Germany, when the latter, 1 Besides DRMH, two volumes of Russian laws (incorporating the early laws of Kievan Rus' and the Ulozhenie of 1649) were published. 1 2 Introduction a Tierney-pupil, was working on his dissertation as a Humboldt- Stipen-diat). To make an already long story short, we realized that a volume of the 'laws' (the quotation marks will be explained below) of the first historical period of the kingdom, the so-called Árpádian Age (1000-1301) needed further refinements over and above what Bónis had been able to achieve. The first volume of DRMH appeared, after several years of work by the original Bak-B6nis-Sweeney 'triumvirate', in 1989 but sadly a few months after Bónis's own death.2 For DMRH 1, we tried to sort out what was traditionally regarded as 'law', legal norm and practice in the first three centuries of the kingdom. Had we been purists, we would have had to make a very slim volume and to content ourselves with the decrees passed by king and noble assemblies in the late thirteenth century (under Andrew III, 1290-1301). For, by the rigorous definition of, for example, Armin Wolf, earlier texts could not be termed 'legislation' in the strict sense.3 Nevertheless, a part of the collections (libri) of legal texts attributed to the founder king, St Stephen (1000-1038), survive in a late twelfth- century manuscript; others from thirteenth-century collections. Moreover, references to the 'laws of the holy king' were frequent from the late eleventh century. So, we finally included the collections of St Stephen, as also of Ladislas I (1077-95) and Coloman (1095-1116), as well as the 'privileges' of Andrew II (1205-35), the so-called 'Golden Bulls' (1222, 1231, and their addition in 1267). In the Appendix, we edited synodal statutes of the eleventh and early twelfth centuries which contained both spiritual and secular matters, a charter issued for the nomadic Cumans even though we suspected it to be a forgery,4 and a text that was dated by Döry and Bónis (although known only from a later formulary) to 'c. 1300'.5 Whether the relegation of the synodal statutes under King Ladislas I and Coloman into the Appendix was well founded is debatable. (György Györffy, a leading medievalist of Hungary in the last decades of the twentieth century queried this decision of ours in a review which he planned to write, but which was not, as far as we know, published.) Annotations, glossary and 2 The Laws of the Medieval Kingdom of Hungary/Decreta Regni Medicevalis Hungarian, vol. 1 (1000-1301) with an essay on previous editions by Andor Csizmadia, (ed. and trans.) János M. Bak, György Bónis and James Ross Sweeney, Salt Lake City, 1989. 3 See thus Armin Wolf, Gesetzgebung in Europa 1100-1500. Zur Entstehung der Territorialstaaten, Munich, 1996, p. 266. 4 As since convincingly argued by Nora Berend, At the Gate of Christendom: Jews, Muslims and Pagans in Medieval Hungary, c. 1000 - c. 1300, Cambridge, 2001, pp. 89-92. János M. Bak 3 whatever else belonged to a scholarly edition were included. And, while the contents were praised, the format, the typos and layout were criticized – and rightly so. To set the record straight, however, this was one of the earliest attempts at computerized typesetting, printing, and production, and under these circumstances glitches were bound to occur. (We were ten years later fortunate enough to obtain financial assistance for a corrected and revised edition, which we offered gratis to all owners of the first).6 The subsequent volumes followed in due course: one for the 'Age of Kings of Diverse Houses' (as the old category ran), that is from 1301 to 1457, and one for the reign of Matthias I Corvinus, 1458-90.7 These were initially supported by the National Endowment for the Humanities Translation Projects (in the USA), and some other grants.