The Carolina and the Culture of the Common Man: Revisiting the Imperial Penal Code of 1532 [*].

The Carolina penal code of 1532, issued as a manual of court procedures for the Holy Roman Empire, offers an opportunity to examine connections between the legal text and broader cultural discourses. The code uses persuasive techniques that promote a vision of the rational layman as the exemplar of common sense and public order. The representations of the legal text parallel contemporary tendencies in fiction and pamphlet literature. Both authoritative and literary texts used print to promote identification with a universalized ideal, limited by class and gender but discursively constructed as common to all reasonable people.

In some ways there is nothing so bound to the gritty facts of life as a penal law code. A highly instrumental text, it directs official responses to crime. And unlike its distant cousins the cookbook or the auto repair manual, the penal code has the backing of force. The organized violence of governmental authority works through the text to suppress unauthorized violence and other violations of the law. Its instructions are not, or are not supposed to be, optional. Its enactment is a direct, concrete exercise of power in the everyday confrontations between lawbreakers and governors.

On the other hand, the order created in the legal text is obviously a different thing from real life. The code's prescriptions embody a conception of how things ought to be. Even if all courts could enact the code to the letter, this would not alter the character of the script as a construction of the mind; it would only make it a more remarkably powerful one. Further, this mental construction is not finished by the writing or promulgation of the code, but is re-enacted in the minds of those who read, absorb, and act upon it. This reception of the text is shaped by modes of understanding drawn from the culture at large, as well as by relations of power. From this point of view, the penal code reveals its kinship with works of the imagination. The means and function of the text make it a political document, engaged in the exercise of force; at the same time its building blocks -- its conceptions of social order and identity -- derive from the broader culture surrounding it.

What difference does this make? Historians have long investigated the gap between prescription and reality for all their sources. But focusing attention on the constructed quality of the prescription itself raises a different set of questions. What can a consideration of the law code's textual -- even literary -- characteristics and associations tell us about the assumptions behind it? How is cultural imagery related to such textual embodiments of social power? Can an investigation of these questions cast new light on important cultural connections or cultural shifts?

The revised penal code promulgated by Emperor Charles V in 1532, the "Carolina," offers a fruitful text for approaching these questions. Aiming to reform criminal court procedures throughout the Holy Roman Empire, the text was forced into a more literary and rhetorical role than most legal codes by the Empire's decentralized political structure. The text of the Carolina describes itself, in fact, not as a code of laws but as a compilation of legal rules, drawn up under imperial authority to spread legal knowledge more thoroughly among local officials and court personnel. The need for such a book, according to the preface, arose from the fact that local courts were typically staffed with people unlearned in the law. [1] The Carolina's publication and distribution as a practical guide for local authorities were thus essential to its reason for being. Its mission required the Carolina not simply to prescribe, but also to persuade: first, to persuade a literate but inexpert audience that reasoned legal principle s were indeed within their grasp, in the form of this plainspoken vernacular guide; second, and somewhat paradoxically, to persuade these same readers that, given their limited legal understanding, it behooved them to seek out expert advice; third, to persuade them that these universal legal principles should take precedence over their own predilections. Effective persuasion, of course, could operate partly through factors outside the text, such as the prestige of the imperial imprint, imposition of the code by territorial authorities, or the felt need for a reliable legal standard. But the text itself played a key role in this persuasive task.

The movement for legal reform that led to the issuance of the Carolina emerged from the confused state of German legal practice around the turn of the sixteenth century. Germany's reception of Roman law was already in progress, bringing book-learning imported from Italy to replace the lay decision making of traditional German justice. Along with this shift toward professionalization went increasing governmental responsibility for prosecuting crime, and increasing adoption of the Roman inquisitorial model in place of the traditional suit brought by injured parties. But while governmental structure and action increasingly followed the Roman model -- with investigation of crimes by public officials and use of torture to extract confessions -- the legal expertise that was supposed to accompany these procedures was still rare. Not only did local courts have a long-standing right to judge independently according to their own conception of law; but also the developing class of experts, trained in the Roman and canon law taught at universities, tended to focus on the more pleasant and lucrative civil law rather than on criminal matters. Complaints about arbitrary and abusive application of criminal laws multiplied. [2] By the late fifteenth century imperial diets were focusing their attention on the problem and passing resolutions for reform. [3]

The cause of judicial regularity and rational standards was taken up by Johann von Schwarzenberg, author of the Bamberg code that served as basis for the Carolina. This "Bambergensis," published in 1507, became a widely used manual even without imperial sanction, and much of it was incorporated verbatim into the imperial code. Like the later Carolina, the Bambergensis was directed against abuses caused by the legal ignorance of local court personnel, setting itself the task of informing unlearned practitioners about the rules of law. Though the thrust of the code draws heavily on Roman principles, Schwarzenberg himself had not been to law school and, by his own account, did not even read Latin. Rather, he was a living example of lay assimilation of learned standards. A nobleman who rose in the traditional way, he drew on his experience overseeing courts in Bamberg and on what the legal experts could teach him. He combined these elements into clear and direct vernacular expression, with a skill he later exerc ised in various literary genres. The publication of the Bamberg Halsgerichtsordnung even included woodcuts to appeal directly to the unlearned. Like his law code, Schwarzenberg moved into imperial politics in the 1520s, participating at meetings of the Reichstag where early versions of the Carolina were drafted. Even before its involvement in imperial affairs, the text that became the Carolina had a more basic goal: the educative and persuasive goal of inculcating common principles of law. [4]

Scholars have recognized the literary quality of the Carolina, but commentators have naturally concentrated on its importance for legal history. Eberhard Schmidt even compared its achievement in German prose with Luther's translation of the Bible. [5] For the most part, however, it has been read with an eye toward its legal principles and their influence on the later development of German law. Legal scholars have meticulously traced its textual history, its relationship to earlier medieval standards and to other legal texts, and its influence on later legal opinion. As an early attempt at imperial centralization, and a formulation of principles drawn from Roman law for use in Germany, the document has long been seen as a legal landmark. Legal scholars have widely praised its moderate and rational approach and its synthesis of Roman law with German practice, though they have differed on the extent of its application and influence. [6] Its clear goals of advancing central power and promoting reliance on learne d legal opinion place it firmly in the camp of the advancing early modern state. This paper argues, though, that its means of advancing these goals are more complicated than its legal content alone would suggest. Though it could certainly be an instrument of governmental power, it was also a text that addressed and engaged its audience with language linked to a broader discourse of common values.

In some ways the Carolina is an ambiguous text, despite its vigorous language. Imperial legal reformers had hoped to establish a new, universally binding code, one that would sweep away the confusions and errors of conflicting local practices. This ideal was not fully realized. A draft of the imperial legal reform proposed at Speyer in 1529 set forth an ambitious claim to supersede all local customs and privileges, but resistance from the imperial estates forced a retreat. The final version, approved at the Regensburg Reichstag of 1532, took a much more modest stand. [7] The foreword to the printed editions, after stating its goal of spreading the Carolina as a model throughout the empire, carefully provides for the preservation of local rights: "But we would in no way detract from the old, well-founded, lawful and just customs of electors, princes and estates through this our gracious reminder." [8] 'While it hoped to establish a common standard and eliminate errors, the Carolina fell short of overhauling traditional differences in customary law.

Scholars have differed on how seriously this "saving clause" limited the code's impact on legal practice: was it binding except where it conflicted with long-standing precedent, or was it merely an imperial advice book? The proviso that local customs must be well-founded, lawful, and just might seem like a broad ground for imposing the imperial standard, but as Schmidt pointed out, there was no authority in a position to enforce this rule effectively. [9] Legal historians of the late nineteenth and early twentieth centuries generally liked to view the Carolina as a binding imperial law; but despite this grand-sounding dignity, they had to admit that imperial law had limited force, occupying a second rank behind prevailing territorial law. More recent commentators have tended to demote the Carolina to a set of recommended guidelines, though one with substantial influence on legal practice and later legal developments. [10] Individual territories and cities continued to issue their own penal codes and ordinanc es, after the promulgation of the Carolina as before. While they often made reference to the imperial regulation or incorporated parts of it, they evidently did not feel bound to do so. [11] The legal faculty at Tubingen expressly stated in 1566 that the imperial code was binding only where it had been adopted by local authorities. [12] On the other hand, by the later sixteenth century the Carolina was commonly being cited as an authority even in a place like Basel, which was nor directly subject to imperial rule and had not formally adopted it. [13] All this suggests that its influence derived as much from its content and prestige as from an enforcing power behind it.

The prescriptive and persuasive powers of the Carolina were directed at an audience with at least three distinct levels of reception. At the highest level were ruling officials of the various territories and jurisdictions within Germany, who decided what place to give the Carolina in the judicature of their localities. In Frankfurt, for instance, the government referred its courts to the Carolina for criminal matters in its legal reforms of 1578, while other ordinances, such as that of Bavaria, ignored it. [14] These authorities, like professors adopting a textbook, formed a decisive audience -- certainly the audience with the greatest freedom of action -- but not the locus of the text's most direct and widespread operation. At the lowest level, on the other hand, the Carolina directed that portions of the guide should be made available to parties in legal cases, to inform them on the law that applied to their concerns. [15] Since the parties would have to request extracts and pay copying costs, this provisi on probably affected mainly the more literate and sophisticated sectors of the populace. Still, the general public was not only affected by application of the code, but could theoretically have access to the text.

The Carolina's central audience, however -- the group envisioned by the preface as most in need of it, and those for whom it was designed -- lay in between the governing authorities and the public, in the local criminal courts. The code is addressed, in principle, to all subjects of the empire with a role in the administration of criminal justice. The thirty-nine editions of the Carolina published during the sixteenth century were aimed at this broad group. [16] The core audience included particularly judges, jurors (Schoffen), and clerks. Of these, the clerks (Schreiber) were the most likely to have at least a smattering of legal training. Judges, whose role was becoming increasingly prominent with the spread of Roman law practice, still owed their positions to social status rather than legal learning. Johann von Schwarzenberg himself, as noted above, was not a learned jurist, but a nobleman who supplemented his own judicial experience with advice from academic experts. The Schoffen who traditionally determ ined the verdict in German courts, were not jurors in the modern (or English) sense. Rather, by the sixteenth century they were appointed officials, attached to the court, assigned to hear the evidence and render a judgment. In some areas they were members of the town council. Like judges, they were drawn from the more prosperous and prominent men of a locality, but they were even less likely than judges to have had formal legal training. In local social terms they were members of an elite, but to the Carolina they were laymen in need of rule and advice. [17]

Given the nature of the surviving evidence and the current state of legal and historical research, this "mass" audience of the Carolina in the local courts is difficult to approach. Most concrete evidence about the code's application comes from the upper reaches of the legal profession and from the period after about 1560. Thus, we know that the compilers of the many legal "reformations" of the later sixteenth century were familiar with the Carolina, recognizing it as a valid legal standard and often incorporating its provisions. We know that the council of Frankfurt, for instance, put most of its provisions into practice even before endorsing it in the legal reformation of 1578. [18] We know that lawyers were widely citing and studying it by the close of the sixteenth century. [19] We know that learned jurists like Benedikt Carpzov were commenting on it and analyzing its contribution to the body of common imperial law by the early seventeenth century. All these users were from a class of people who, at leas t according to the Carolina's rhetoric, were not those originally most in need of the new code. They were the already converted, the sort of experts whom the Carolina constantly urged its less learned readers to consult. They, like the authors of the Carolina, knew the importance of meticulous written records and standard authorities to back up legal reasoning, and with this knowledge they inscribed the Carolina's workings into the historical record.

Its uses by the broader audience of local criminal courts are harder to establish, not least because the maintenance of extensive written case records often came only with thorough-going adoption of the procedures recommended by the Carolina itself. Certainly local courts did not always follow it to the letter, even when they accepted it in principle. [20] It is to be hoped that further evidence on its reception by local courts in the 1530s, 1540s, and 1550s will emerge from the researches of social historians. Clearly it must have encountered at least some receptive local audiences in this early period. These decades saw a continuing stream of editions -- eight in the 1530s, four in the 1540s, four in the 1550s, five in the 1560s -- and its later success in infiltrating local ordinances would be surprising if it had not already gained some acceptance. [21] On the other hand, as part of the much-contested introduction of Roman law into Germany, the Carolina was hardly the neutrally rational text it pretended to be. Local lay officials did have something to lose in the professionalized jurisprudence it promoted, but opponents of Roman law apparently did not attack the Carolina itself. [22] Where local officials did resist the Carolina, their opposition probably took the elusive form of simply ignoring it. In any case, however well the Carolina succeeded in converting early local audiences, its key goal was certainly to have local courts take its prescriptions to heart and apply them in practice.

The Carolina's modes of addressing this audience -- its textual structure, rhetoric, themes, and language -- are central to its instrumental task of regularizing the administration of justice. At the same time, they parallel modes and themes current in the broader cultural discourse of crime and punishment. For my purposes here, the particular provisions of the Carolina, which have been analyzed by legal historians, are less central than its approach and assumptions. To begin with gross structure: the Carolina proceeds, after its opening preface, in 219 articles, organized in a fairly orderly progression. Items 1-5 focus on the personnel of the penal courts. Next come 27 dealing with general issues of procedure and evidence. The next 12 deal with types of evidence required for various different crimes, particularly with reference to the application of torture. A large number of articles are devoted to issues of how torture is to be used, including how those who confess to various crimes should be questioned t o insure that their confessions are true (articles 45-61). Then the document turns to other kinds of proof, particularly the use of witnesses (articles 62-76). Procedures for final judgment take up articles 77-103, followed by punishments for various crimes (104-198), with special sections on homicide (130-150) and theft (157-175), including grounds for leniency in extenuating circumstances. The final items return to miscellaneous general issues, including provisions for the building of gallows, and ending in article 219 with details on how and where to seek advice.

Such an organization by topic and number serves some obvious purposes both practical and rhetorical. As a practical matter, of course, this organization allows readers to consult the manual on a given point without reading it as a sequential text. Many of the articles are provided with descriptive headings to aid in its use as a reference work. The numerical headings were also useful for the citation of particular provisions (whether by legal practitioners, commentators, or historians). At the same time, the structure is an implicit analytical statement: issues of criminal law can be classified, labeled, and ordered, reduced to a rational system embodied in a printed text. The abstraction required for such analytical structure is a quality the text seeks to promote in its users: the concrete circumstances they encounter should be diligently examined, but then referred to the common standard for evaluation. Thus the mode of presentation serves also as a means of persuasion.

From a modern rationalist perspective, the behavior which the Carolina seeks to foster in legal officials can easily seem unproblematic -- a matter of common sense. This is the view that text and structure alike promote. You encounter a case in criminal justice, you examine it carefully, then you look it up in your manual (or in more complex cases seek expert advice), and you act accordingly. Obviously this sequence of actions presumes a ready reliance on written texts, but it also competes with alternative political and intellectual models. Certainly the centralizing and Romanizing tendencies of the Carolina were clear to contemporaries. On the one hand, there had long been calls for the reform of legal abuses, particularly of arbitrary inquisitorial procedures and the use of torture; these features of Roman law had been spreading in the fifteenth century without the control that a common standard could bring. The search for judicial regularity was the original impetus behind the Carolina. On the other hand , localities could be resistant to the imposition of rules from outside, however rational and consistent. Thus the wrangling at the diets and the introduction of the "saving clause." But the shift to reliance on a universal written law was not only a matter of conflicting political interests between central and local powers. It also implied a conceptual allegiance that denied alternative views of legal reason. In particular, officials using the Carolina were supposed to adhere to its analytical model in preference to two alternative criteria for judgment, each equally consistent with an alternative brand of common sense. The first was custom. In political terms custom represents local autonomy, but it also represents a different intellectual standard -- that of precedent and communal memory instead of abstract principle and uniformity. The Carolina gives lip service to customary rights in its "saving clause," but its own goal is standardization, and it tends to see divergent local practice as a habit born of ignorance and error. The second alternative standard is unaided reason -- the ordinary person's conception of equity, probably the most popular conception of common sense in the sixteenth century as in the twentieth. The Carolina is full of strictures on the errors to which this can lead, and it constantly reminds readers to seek advice when they are ignorant of the written law. The text persistently urges its audience to adopt its own standards -- text-based, uniform, and abstract -- while incorporating them into a transformed view of legal common sense. [23]

The Carolina departs from customary German practice in making the judge the chief actor in legal matters; he is thus the central character, even the hero, and his actions are the text's central theme. Traditionally the judge presided in German courts but took no part in finding the verdict, which was the job of the Schoffen or other "Urteilsfinder" (verdict-finders). [24] The Carolina, following Roman law inquisitorial procedures, places him at the center of the investigation into truth and the court's deliberations. At the same time, it invites the other court members to model themselves after the judge's virtues. The code lays out oaths for each type of official, emphasizing the great trust they undertake. It calls for the filling of all criminal courts with the best people available: honorable, upright, experienced, intelligent. If court officials could be noble or learned that would be a plus, but the code recognizes well-intentioned laymen as the norm. Above all they must be "verstandig," sensible or in telligent -- a quality that recurs often in the code as a hallmark of the judge's craft and the key to his success. [25]

The Carolina's usage of the term "verstandig" carries some ambiguity, however, as it overlaps with the more specialized "rechtverstandig," which refers to the possession of legal expertise. "Verstandig" is a more flexible term that shifts its meaning with context. Thus, even women can be described as "verstenndige," when their knowledge is required for the examination of an infanticide suspect. [26] The general term sometimes moves close to the specialized one in meaning, as when only court personnel who are "verstandig" of the legal procedures for hearing testimony should be allowed to do so. [27] At other points in the text the term suggests the more general quality of good understanding. Thus the first article demands that all criminal courts should be staffed with "fromen, erbern, verstendigen vnd erfaren personen" (upright, honorable, intelligent, and experienced people), though the text notes throughout that they cannot all be "rechtverstendigen." [28] The overlapping of meaning offers a bridge to the lay audience from their natural "verstandig" quality into an understanding closer to the Carolina's ideal.

The text constantly encourages its readers to identify themselves with this model of rationality, partly by showing the beneficial effects and power of judicial reasoning and action, partly by the use of universalizing terms to describe its values. This rhetorical appeal appears already in the preface: the audience is to conduct itself justly and according to law, "as every man is doubtless inclined to do for himself and for which he hopes to receive his reward from the Almighty." [29] This upstanding everyman appears repeatedly in prescriptions on judicial activity. "Ein jeder fleissiger vnnd verstenndiger" (every diligent and sensible man) can well think out for himself, based on the examples provided, the various circumstances that may affect the credibility of an accusation elicited under torture. [30] Again, from the several examples given of how those who confess under torture should be questioned to ensure that their confessions fit the circumstances of the crime, "ein jeder verstenndiger (every sensi ble man)" can extrapolate to other cases. [31] The conscientious inquisitor will take nothing at face value, but will make detailed inquiry; he takes an active role in uncovering the truth through use of his rational understanding. The degree of torture is to be determined, according to the circumstances, "Nach ermessung eins guten Vernunfftigen Richters" (according to the judgment of a good, intelligent judge). [32] The text notes that many courts are staffed by people who are not "rechtverstandig" (legally knowledgeable), but it encourages its audience to identify themselves as "verstandig" enough to follow and apply the rules laid down in the Carolina itself-- and yet above all, perhaps, to know when to call on the experts, a course the document constantly recommends for doubtful cases.

In discussing the different levels of legal understanding in its audience, the text describes its readers, or at least some of them, as "der gemein man." This term, usually used to designate the social status of the "common man, here refers to the laymen sitting on criminal courts, "gemein" because of their lack of legal expertise. The Carolina's usage of it may serve as yet another warning against taking this term as necessarily reaching down to the lowest social levels. These men were of high enough social status to staff criminal courts, but for the Carolina their lack of legal training might lead them to make mistaken judgments. [33] Because of this concern it provided concrete examples on difficult issues, such as when to excuse accidental homicide and when to hold the culprit at least partly responsible on account of negligence. From the examples, "ein verstenndiger" could "wol mercken vnd erkennen" (well observe and understand) how to handle other cases. But the "vnverstendigen," who might otherwise d ecide inconsistently and unfairly because of their ignorance, could obtain at least the beginnings of understanding from the Carolina itself: "Thus the said short explanation and warning is given for a good reason, so that the ordinary man may get some understanding of the law from it." [34] Still, they should continue to look to the experts to help them with the fine points: "However, these cases sometimes have very subtle distinctions, which cannot be made comprehensible to the layman who sits on criminal courts; therefore the judgement-finders in the abovementioned cases, when it comes to judging guilt, in view of the above explanation, should not scorn the advice of knowledgeable people, but follow it." [35] The model legal everyman, then, is a man of reason, but one who is willing to recognize his own limits and defer to superior knowledge.

This quality of understanding expected of legal personnel is not an elevated intellectual one; rather it is ordinary reason, even common sense -- but a common sense informed by and receptive to literate culture. The framers of the Carolina could not hope to staff all courts with educated men, but did hope to staff them with the educable -- people who would look to a model endorsed by experts and emperor and envision themselves as cooperators with them in a common enterprise. The common law as depicted here is a rational script enacted by a hierarchy of actors, from the local Schoffen up through imperial counselors. The core intended audience of the Carolina is the bottom layer of this hierarchy, depicted as a stratification not of status but of objective knowledge. The text recruits the locals' loyalty by inviting them to identify themselves as the sensible, honest, diligent practitioners modeled there. Further, it invites them to assume those qualities to be common, natural, the normal qualities shared by " em jetlicher" (every man). [36]

Not that they shouldn't take pride in them as well: for the actions and qualities of local officials are depicted in the Carolina as making all the difference in the law's success and the triumph of truth. The Carolina, as model of correctness, generally shows them proceeding in a reasonable and dignified fashion, acting according to the proper formulas and applying the proper rules, so that each crime is punished exactly as it ought to be. They must be honest, diligent, and careful in order to make this happen, and the Carolina warns too that judicial malpractice is punishable: in particular, judges who apply torture without proper attention to the rules of evidence may face unspecified punishment and payment of damages. [37] But the possibility of going astray merely underlines the standard of virtue and reasonableness portrayed here as the norm.

The common sense applied by the model judge in the Carolina not only guides him in the application of written rules to concrete circumstances, but also draws on his everyday social expectations to help him make judgements about people. This is particularly important in deciding whether to apply torture. Some cases were open and shut: if, for instance, a murderer was caught with the murder weapon. But if the direct evidence was not enough for torture by itself, other suspicious factors came into play, first among them the character and reputation of the accused: "First, whether the suspect is such a rash or heedless person, of bad name and repute, that one might expect the crime of them." [38] Even though the text is laying down this criterion as a legally applicable rule, it takes no specialized legal training to judge what sorts of persons were likely to commit crimes. A person with a bad reputation had already forfeited his honor and was thus not entitled to the legal protections extended to the honorable. This is not one of the numerous issues on which local authorities were advised to seek expert advice; rather, it is assumed to be part of common knowledge. The man of sense knows a disreputable fool when he sees one. [39]

The exercise of reason depicted in the Carolina is of course also the exercise of power, the use of governmental force. As in all legal codes from Hammurabi on down, the impression created is one of inevitability: for every crime there is an authoritative action, for every contingency a procedure. The effect could be both reassuring and formidable. But for all the violence depicted in the Carolina, from homicide to the various forms of official execution, power is never portrayed as dependent on physical force. Rather, the judge is powerful because he knows how to find out the truth. He separates groups of criminals after their arrest to keep them from cooking up lies together. He hides all details of the crime until the suspect has confessed, so he can be sure the confession comes from real, guilty knowledge and not just fear. He checks details of the confession against the facts to make sure they are true. He refrains from applying torture until he has precise and adequate presumptions of guilt. Such fact- finding ability, far less relevant to older jurisprudence, was essential to the newer inquisitorial model. The Carolina offers its audience both the model and a tool for realizing it, with the promise of power, not only over disorder and violence but also over doubt. When individuals applying the Carolina were still unsure, the experts would know what to do.

Though the Carolina is a highly instrumental text with a specialized audience, its model of the rational lay judge echoes elements found in more general texts aimed at a public literate in the vernacular. This text participates in both the assumption and the creation of a common discourse of reasonable people -- those who have common sense, as well as those who are orderly and help to preserve order. It asserts and embodies the idea that the complexities of law and the disorders of crime can be made intelligible, not just to experts in either law or sin, but to the ordinary person -- at least to the point that he can recognize when to call on expert help. To convey this it uses a style that was becoming popular in literature addressed to a general audience, from the Narrenschiff of Sebastian Brant to the Buchlein vom Zutrinken written by the Carolina's author, Schwarzenberg himself. [40] The straightforward German of the Carolina is more formal than the language of popular literature, but similar in its assum ptions of shared values and meanings, and in its careful avoidance of anything obscure. In marked contrast to real social intercourse, the language of these texts elides status differences and instead promotes an image of universalized human values. Here reason triumphs over folly, order over disorder, the rational judge over the senseless criminal.

In some ways, of course, such universalizing discourse is not new. The ideal of Christendom had long offered a means of asserting an essential bond linking all Christians together. Indeed, the Carolina draws on this tradition in its preface, where everyman is expected to adhere to its values partly out of his hope in Christian salvation. But at base this discourse is a secular one whose voice is that of the layman. It assumes a shared moral orientation, but places particular stress on mental qualities. The rational lay hero differs from the traditional Christian everyman in emphasizing the right and ability of the layman to think and act for himself. He also is less universal, despite the rhetoric of inclusiveness. For one thing, of course, the very need for the Carolina's brand of hero is predicated on the existence of his opposite. Every Christian is a sinner, but the lay everyman is the antithesis of the criminal. This marks a real divergence between the discourse of sin and the discourse of crime. Furthe r, the rational lay hero is strictly limited by gender and class. In the Christian tradition no one could seriously deny women souls, but it was easy to deny their intelligence, and the heroic model of rational virtue essentially excludes them. The barrier of class was just as real, though the discourse worked harder to obscure it. The shift into vernacular greatly expanded the spread of written discourse, but not necessarily its social level, at least not at first. Although the literate public was growing, it was still socially limited, concentrated in towns and in the more prosperous sectors of urban society. Oral traditions were extended to reading aloud from written works, but at base the audience, and the imagined everyman of this discourse, is a man conversant with texts. Not everyone could be everyman. [41]

Familiarity with the written or printed word is of course not simply a matter of skill in decoding signs. The act of reading itself involves the imagination, conjuring up a multitude of meanings from shapes, just as oral language does with sounds. But this early modern textuality goes beyond these basic imaginative qualities, to demand a more systematic and socially directed use of the imagination, even for so seemingly dry a text as the Carolina. The demand for rational abstraction from concrete circumstances itself requires an imaginative leap, and the admirable figure of the capable judge provides an embodiment of values to promote that leap. While seeming to ask for a purely intellectual adherence, a recognition of its objective value, it actually courts psychological commitment to an elevated model of the judicial self (and implicitly promises political and personal rewards for that commitment). The imaginative quality of literature is more obvious, but its kinship with such instrumental texts as the Ca rolina is easy to overlook. The uses of imagination in more popular works, and in particular their uses of crime, suggest how cultural imagery intertwined with relations of power. [42]

It is no accident that Johann von Schwarzenberg, author of the text that eventually became the Carolina, also pioneered in new genres of popular moral literature. In addition to his extensive judicial and political activity, Schwarzenberg produced a German version of Cicero, a satire against drunkenness, a poetic meditation on grief inspired by the death of his wife, and, from the early 1520s, pro-Reformation propaganda. His combination of interests reads almost like a catalogue of emergent bourgeois moralism: civic humanism, sobriety, domestic affection, lay religious reformism. Schwarzenberg himself, of course, was no burgher; his activities in centralizing imperial politics led one contemporary to describe him as "der Feind aller Stadte" (the enemy of all cities) . [43] But a central thrust of these emerging values was precisely the denial that status should determine values. Instead, such works invited recognition of a common identity based on objective reason and virtue.

Such concerns informed a multitude of works in the first half of the sixteenth century. The connections between this set of ideas and the cultural uses of crime are made clearer by Georg Wickram's 1556 novel Von Guten und Bosen Nachbaurn (Good and bad neighbors). This is a work that forms a bridge between the world of officialdom, which Wickram like Schwarzenberg inhabited, and the broad public that read Wickram's popular stories and novels. Wickram held respectable official positions in Colmar and later in Burkheim. As Stadtschreiber he was probably familiar with the Carolina, but the cultural parallels are more important than any direct contact. Von Guten und Bosen Nachbaurn is a multigenerational saga of friendship and family life, directed, like Wickram's other works, to a largely bourgeois audience. Given the almost uniformly amicable relationships of the friends and family members, the story's main conflicts come from outside threats of theft, assault, and murder; that is, from crime. The heroes are pr osperous merchants; the story shifts from one main character to another across generations, but these upstanding men are virtually interchangeable in their qualities of prudence, intelligence, and loyalty, which they use to foil attempted crimes. [44]

The first assault is averted through forethought. A jealous rival attempts to murder the hero Richard, only to find that he is by no means a helpless victim even to surprise attack: he never ventures out at night without armor hidden under his clothing, and he always carries some lead-filled balls to defend himself. Not only does he succeed in staving off his assailants with the aid of a friend, he pursues the crime further. Knowing that one of the attackers was wounded, he visits all the barber-surgeons in town next day to trace the culprit. Similarly, in a later case of jewel theft, the hero frees a friend from suspicion by setting an elaborate trap for the real thief. The novel's chapter headings advertise how the heroes "kumen... auf die spur" (followed the trail) and recover the jewel "mit geschwinder practic" (with clever methods). Like the diligent inquisitor, they pursue and uncover the true evildoers. This is only the most rudimentary of detective fiction, but it illustrates the combination of the v alues of the rational lay hero with the triumph over crime. Wickram's novel can be seen as combining the rationalist imagination of the Carolina with the social conscience of moralist literature. [45]

Another rising genre of the mid-sixteenth century approached crime from the opposite direction but offers instructive parallels. Beginning in the 1550s, German presses poured out increasing numbers of sensationalist crime pamphlets recounting "warhafftige und erschreckliche" (true and horrifying) incidents. Unlike rationalist law codes and stories, these pamphlets created powerful pictures of unreason and chaos, as they focused on the most horrific crimes -- particularly bloody murders of close relatives and children, or multiple murders and mutilations. [46] The reports worked to stir up strong emotions of sympathy for victims and fear of senseless violence, but in the end the forces of order prevailed, with the culprit condemned to a grisly execution. Though they exploited their audiences imagination very differently from the Carolina and moralistic fictions, these works of course upheld the same social order. More importantly, they did so by implicitly constructing a similar rational hierarchy, in which s ocial rule represented impartial justice and reason, and power flowed from better thinking as well as force. Crime was senseless, devilish, and incomprehensible, the stuff of fear; only a vigilant governmental authority could neutralize it and restore the sensible everyday world.

The cultural complex at work in public discourse is one that works in the law code as well. Though Schwarzenberg and the framers of the Carolina were certainly members of a ruling elite, the Carolina is much more than just an instrument of rule. Its hegemony acts partly through rhetorical strategies that enlist the sympathies and aspirations of its audience and encourage them to identify themselves, not as members of a particular estate or class, but as men who hold to a common set of values, virtues, and standards of reasoning. Thus it serves the framers' purposes to include the common man," even if only the relatively few who served on penal law courts. Of course, these lay jurists were near the top of the social scale in their own localities. Yet in identifying them with men in general and with a common-sense standard of judgment that recognizes its own limitations, the Carolina was not only encouraging the application of its own rules, but also promoting a broader cultural ideology.

The sense of common culture advanced by the Carolina on the one hand, and by the growing number of secular works addressed to the literate public on the other, has broadly political implications, but does not fit neatly into a model of communal autonomy vs. statist centralization. The world created by these texts recognizes that social differences exist, just as it notices the gap between local practices and the will of higher authorities; yet it persistently depicts these differences as overridden by common consensual values. In doing this, it imagines a common man who is neither the independent political actor of revolutionary ideology nor the helpless victim of oppressors. Rather, his common quality is his shared reason and reasonableness, his common sense, which leads him to collaborate with both political and moral authorities. This discourse seeks, in effect, to coopt communal values by attaching them to the larger statebuilding enterprise.

All this analysis suggests that the study of legal texts connects with broader cultural issues at a number of points. Not only do legal provisions draw on accepted social norms -- including those that inform literary texts -- but the textual modeling of legal procedure both assumes and promotes a set of common values about the most desirable human qualities and their social application. Of course, this discursive strategy of reason and cohesion could not really erase conflicts of status and political interest. Yet in a sense the strategy worked, and not only to the extent that court personnel toed the Carolina's line, as according to legal historians they increasingly did. Despite the diverse audiences for different sorts of early modern texts, the appearance of this ideal in so specialized a text as the Carolina testifies to its broad appeal. Its genre-crossing can be seen as a measure of its pervasiveness as well as its multiple uses. At least for the literate classes to whom it appealed, the common sense of the upstanding commoner offered a powerful conception of social identity. [47]

The uses of crime and of the imagination examined here suggest ways in which early modern cultural changes were intertwined with political and social change. Scholars have long debated the character of the transition to modern Western culture, from Burckhardt's thesis on individualism to discussions of the rise of the novel. The discourse examined here offers another piece to this larger puzzle, and suggests connections between the imagination and the political uses of public culture that need further exploration. The increased mobilizing of the imagination evident in these works and in the expanding public discourse suggest a shift -- not in the inherent qualities of the human imagination but in social demands on, and exploitation of, its use. Promoting reliance on texts for guidance about issues from legal procedure to social identification, this shift required people to move outside their immediate circumstances and identify with a remote situation or ideal. This imaginative leap applies to rationalist re liance on written standards as well as to empathic reception of literature. Of course, members of literate classes had long been making such leaps, but with nothing like the public scale and potential for orchestration of the early modern period. Elizabeth Eisenstein has pointed to the connection of this change with the new technology of print; but both the technological advance and the new uses of the imagination were responding to the demands of an increasingly complex society. One can even suggest a parallel with Norbert Elias's conception of the civilizing process: as against the increasing rules and boundaries placed on physical comportment from table manners to sex, people were offered -- and were expected to absorb -- an increased range of vicarious experience. [48]

The theme of crime, so strongly imprinted in both instrumental and fictional texts of the modern world, offers an especially marked view of the connections between cultural imagination and power structures. In the larger picture of the history of crime, the shift in imagination plays a role along with the more recognized changes in institutional action. In the private justice of the Middle Ages, those directly wronged by the lawbreaker had the onus of taking action; in essence, crime was their business. With the gradual expansion of the state's role it became public business. But with the expansion of public discourse it became everybody's business. Criminal justice was no longer private justice, but it was still something to be taken personally -- not just by the victims, and by the punishing authorities, but by those whose vicarious participation involved them in the maintenance of order. The element of personal engagement derived not only from concern with particular cases, but from the sense of a rationa l and moral identity opposed to crime. While the Carolina recast the administration of justice as a hierarchy of reason, and early fictional crimefighters reinforced the congruence of rational intelligence and social power, early sensationalism recruited wider social circles to look to authority for protection against unreason. The modern control of crime enlisted the imagination of the law-abiding, as well as their allegiance to the authority empowered to suppress it. These sixteenth-century texts form part of an expansion in public uses of the imagination that drew reason and emotion, fact and fiction, into closer relationship than we often recognize.

(*.) Research for this article was supported by the American Council of Learned Societies, the National Endowment for the Humanities, and Rowan University. My thanks also to: Max Reinhart and Tom Robisheaux for generously commenting on early drafts of this work; Gerald Strauss and an anonymous reader for Renaissance Quarterly; Amy Burnett, Mickey Smith, and participants in sessions at the Sixteenth Century Studies Conference and the Rowan Professional Conference.

(1.) Kohler, 1900, 4-6; see Dawson, 96-109.

(2.) Stintzing, 39, 43-45, 607-11.

(3.) See Langbein, 155-62.

(4.) See Scheel; Kohler, 1902, esp. 4.

(5.) E. Schmidt, 1965, 110.

(6.) See Landau; Schroeder; for fuller discussion and references on the legal historiography of the Carolina, see Langbein, 140-204; see also E. Schmidt, 1965, 464-67. Langbein also offers a translation of much of the code into English; Langbein, 259-308.

(7.) E. Schmidt, 1933, 8; Hippel, 173; Stobbe, 2:247-50.

(8.) "Doch wollen wir durch disc gnedige erinnerung Churfursten, Fursten vnd Stenden an jren alten wolherbrachten rechtmessigen vnnd billichen gebreuchen nichts benommen haben"; Kohler, 1900, 6; Weber.

(9.) E. Schmidt, 1933, 9.

(10.) See Schroeder.

(11.) The Carolina was adopted into territorial laws in, for example, Cologne 1538, Pomerania 1566, and Brunswick-Wolfenbuttel 1564, and was cited in codes including those of Wurttemberg 1551, Mecklenburg 1570, Munster 1571, and Frankfurt 1578; Hippel, 223-24. But Bavarian law omitted it, and other localities, such as Freiburg, Zwickau and the Palatinate, used it selectively or only occasionally; C. Schmidt, 249-51; Weber, 302; see also Kunze, 1984, 203.

(12.) Stintzing, 627n.

(13.) Nagler, 43-49; on its reception generally see Schroeder; Weber; G. Schmidt (both also reprinted in Schroeder).

(14.) G. Schmidt, 249-50.

(15.) Kohler, 1900, 46-47 (art. 83).

(16.) Ibid., xix-xxxix; Kohler lists some 350 copies of these sixteenth-century editions still extant in Germany as of 1900.

(17.) Dohring, 9-16, 50-52; Maurer, 3:576-80; for thorough examination of the composition of courts in one locality, see Weiss.

(18.) Meinhardt.

(19.) Nagler; Kunze, 1987, 32; Ruping; for intensive archival investigation of one court's use of the Carolina in the early seventeenth century, see Kunze, 1984.

(20.) In Reutlingen the local authorities often imposed milder punishments than the Carolina, and in Frankfurt too it was tailored to local usage; Allen; Meinhardt; see also Kunze, 1984.

(21.) Kohler, 1900, xix-xxxvi.

(22.) On the contested reception of Roman law see Strauss, esp. 31-55.

(23.) See Strauss; Stintzing, 39, 43-45.

(24.) Maurer, 3:570-80; Dohring, 35-37; Radbruch, 21.

(25.) Richter (judge) is the most common noun in the Carolina, and straffen (punish) one of the most common verbs; see Saueracker. Kohler, 1900, 7 (art. 1); on the Carolina's elevated standard for judges see E. Schmidt, 1965, 137-39.

(26.) Kohler, 26 (art. 35).

(27.) Ibid., 41-42 (art. 71-72).

(28.) Ibid., 7 (art. 1); see also Saueracker; Grimm. Langbein translates "verstandig" as "knowledgeable." The best English equivalent would actually be the literal "understanding," except for this word's connotation of sympathy in modern English.

(29.) "Wie eyn jetlicher on zweifel fur sich selbst zu thun geneygt vnd desshalben von dem Almechtigen belonung zu empfahen verhofft"; ibid., 6.

(30.) Ibid., 24 (art. 31).

(31.) Ibid., 35 (art. 53).

(32.) Ibid., 37 (art. 58).

(33.) "See also Lutz; Blickle, 4-5.

(34.) "Jst die anngezeigt kurtz erclerunge vnd warnung derhaib vss guten vrsachen geschehenn, Damit der gemein man etwas verstanndts der Rechten daruss neme"; Kohler, 1900, 77 (art. 146).

(35.) "Jedoch haben disse felle zu zeitten gar subtile vnnderschidd, die dem gemeinen man, so ann den peinlichen gerichten sitzenn, verstenndig oder begrifflich nit zu machen sein: Hierumb sollenn die vrteiller jn disen obgemellten fellenn allen, wan es zu schullden kompt, angezeigter erclerung halb, der verstenndigen leuthe Rat nicht verachten, sondern geprauchenn"; ibid., 77 (art. 146).

(36.) The Bambergensis provided woodcuts and rhymes as well as the legal text, with the explicit statement that they would communicate more effectively to the common man ("vmb eigentlicher merckung vnd beheltnus willen des gemeinen mans"); Kohler, 1902, 4.

(37.) Ibid., 38-39 (art. 61).

(38.) "Erstlich, ob der verdacht ein solliche verwegene oder leychtfertige person von bosem leymadt vnnd geruch sey, das man sich der Missethat zu jr versehen mocht"; ibid., 20 (art. 25).

(39.) The criterion of reputation could also be used by lesser courts in deciding whether to hand culprits over to the criminal courts that applied the Carolina; see Wettmann-Jungblut, 141.

(40.) The kinship between popular literature and legal discourse is partly a product of shared personnel; as the rising profession of literate laymen, legal officialdom produced many authors, including Brant, Schwarzenberg, and Georg Wickram (see below).

(41.) See Schilling; Engelsing; Chrisman.

(42.) My thinking here is indebted to (among others) Darnton; see also Weisberg, 61-62; Schonett.

(43.) Scheel, 79; see also Wolf.

(44.) See Waghall Christ.

(45.) Wickram.

(46.) See Wiltenburg.

(47.) See Chrisman.

(48.) See Eisenstein, esp. 1:132, 150-52; Elias.

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