One sentence in the Prologue of the Law of Jutland (1241) has caused much scholarlydiscussion since the nineteenth century. Did it say that “the law which the king givesand the land adopts, he [i.e. the king] may not change or abolish without the consentof the land, unless he [i.e. the king] is manifestly contrary to God” – or “unless it [i.e.the law] is manifestly contrary to God”? In this article it is argued that scholarly conjectures about the original sense of the text at this point have paid insufficient attentionto the textual history of the law-book.On the basis of Per Andersen’s recent study of the early manuscripts of the Lawof Jutland, it is shown that the two earliest surviving manuscripts both have a readingthat leaves little doubt that the original text stated that the king could not change thelaw without the consent of the land unless the law was manifestly contrary to God. Theequivocal reading that has caused the scholarly controversy was introduced by a conservativerevision of the law-book (known as the AB text), which is likely to have originatedin the aftermath of the great charter of 1282, which sealed the defeat of the jurisdictionalpretensions of King Erik V. A more radical reading, leaving no doubt that the kingwould be acting contrary to God in changing the law without consent, occurs in an earlyfourteenth-century manuscript and sporadically throughout the fifteenth century, butit never became the generally accepted text. On the contrary, an official revision of thelaw-book (the I text), probably from the first decade of the fourteenth century, sought toeliminate the ambiguity by adding “and he may still not do it against the will of the land”,thus making it clear that it was the law that might be contrary to God.Due to the collapse of the Danish monarchy in the second quarter of the fourteenthcentury, the I text never superseded the AB text. The two versions coexistedthroughout the fourteenth and fifteenth centuries and soon produced a number ofhybrid versions. One of these gained particular importance, since it was the text thatwas used for the first printed editions of the Law of Jutland in 1504 and 1508. Thus itbecame the standard text of the law-book in the sixteenth century. The early printededitions also included the medieval Latin translation of the Law of Jutland and theLatin glosses to the text. The glosses are known to be the work of Knud Mikkelsen,bishop of Viborg from 1451 to 1478. Based on a close comparison of the three texts, itis argued here that Bishop Knud was also the author of the revised Danish and Latintexts of the law-book that are included in the early printed editions, and that the wholework was probably finished in or shortly after 1466. Bishop Knud included the I text’saddition to the sentence about the king’s legislative powers.An effort to distribute Bishop Knud’s work as a new authoritative text seems tohave been made in 1488, but rather than replacing the earlier versions of the Lawof Jutland, this effort appears to have triggered a spate of new versions of the medievaltext, each of them based upon critical collation of several different manuscripts.In some of these new versions, a further development in the sentence on the king’slegislative power brought the sentence in line with the political realities of the late fifteenthcentury. Instead of having “he” [i.e. the king] as the agent of legal change, theyattribute the initiative to the indefinite personal pronoun man: at the time, any suchinitiative would require the agreement of the Council of the Realm.Only the printing press brought this phase of creative confusion to an end in theearly sixteenth century.Finally, it is argued that the present article’s interpretation of the original senseof this particular passage in the Prologue is in accordance with the nature of Danishlegislation in the period from c.1170 to the 1240s, when most major legislation happenedin response to papal decretals and changes in canon law.
Prawo cywilne PRL — wybrane zagadnienia prawa autorskiego
