The Medieval Review 16.01.11

Brink, Stefan and Lisa Collinson. New Approaches to Early Law in Scandinavia . Acta Scandinavica, 3. Turnhout: Brepols, 2014. pp. x, 208. €70.00 (hardback). ISBN: 978-2-503-54754-1 (hardback).

Reviewed by:

Anders Winroth
Yale University

It is difficult to know what to do with this collection of essays, which ranges widely over the field of medieval Scandinavian law without any particular focus that I can discern. Among the eight contributions, some simply repackage research that is already known from elsewhere (so cannot be said to constitute "new approaches," as promised in the title), while some present new and interesting conclusions. Several chapters present work that their authors have already published elsewhere, although in some cases only in Scandinavian languages, so this volume does serve as an introduction in English to their previous publications. Before settling down to introduce each chapter separately, the introduction promises a book that addresses the opposition between the theory (popular in the early twentieth century) of an ancient common Germanic law that inspired the oldest legal monuments of Scandinavia, and the recent emphasis on the medieval reception of canon and Roman law in Scandinavian law. The editors think that in abandoning during the second half of the twentieth century the older theory of a Germanic Urrecht, scholars have thrown the baby out with the bathwater (2). Any reader skeptical of their claim will, however, not be persuaded by this collection, in which only a single contribution addresses it.

The papers making up the book were originally given at a conference about "Scandinavian Provincial Laws between Local Customs and European Traditions" held at Aberdeen University in 2008. This volume is an example of an unfortunate numbers-crunching recent trend in academia that values quantity of publication.

In the first chapter, "'The Truth Must Always Be Stronger': The Introduction and Development of Næfnd in the Danish Provincial Laws" (7-36), Per Andersen studies how the ordeal was replaced in Denmark by a system of juries, and the early development of that system in the great push towards codification of Danish provincial laws during the thirteenth century. He traces the inspiration for the new system to the 1215 papal prohibition of the ordeal. Interestingly, the juries initially worked rather differently in western and eastern Denmark.

The only chapter that really addresses what the editors describe as the rationale of the volume is written by one of the editors, Stefan Brink: "The Hälsinge Law between South and West, King and Church, and Local Customs" (37-56). He investigates a little studied law code from northern Sweden, the Hälsinge Law which was codified in the early fourteenth century at the initiative of the archbishop of Uppsala (to whose diocese the province belonged). It has long been known that the Hälsinge Law is closely related to the law written down in 1296 for the region of Uppland (encompassing the rest of the archbishop's diocese). Some scholars think of the Hälsinge Law as little more than a recension or edition of the Uppland Law, which in turn is indebted to the international learned law of the time (which Brink calls "Continental Law") as well as local customs. The relatively late Hälsinge Law might, therefore, not be thought of as the best place to find traces of ancient Germanic law. Unperturbed, Brink makes an attempt. He isolates passages in the Hälsinge Law which are not dependent on the Uppland Law. Brink admits that some of these might reflect negotiations between the province and the Swedish king or the archbishop of Uppsala, "but some definitely reflect old customary law for these provinces" (52). That is certainly a valid conclusion, but it does not actually go very far. It is a truism in legal history that every regional society will employ customs of varying age which will influence even the most radical attempts at codification. But if few will doubt that there were legal customs in Hälsingland before its law was written down and that some of those made it into the lawbook, that fact in itself does not tell us anything about how old those customs are, or whether they illuminate the idea of a common Germanic law. Customs constantly evolve. In this article, Brink does not present any evidence with bearing on that hoary question, with which he frames not only his discussion here, but also the entire book. That some of the Hälsingland laws not dependent on the Uppland Law contain unusual words that rather belong to Norwegian and West Norse legal language and not Swedish, do not prove a priori that the laws are common Germanic or even particularly old.

Jan Ragnar Hagland, "Town Law versus County Law: On the Kristindómsbalkr (church law) of Niðaróss Bjarkeyjarréttr and Frostuþingslög" (57-66), compares the Christian law sections of the town law for Trondheim (Niðarós) and law for the surrounding region. He concludes that, while the town law contains some regulations that for natural reasons applied only in the town, the two laws must reflect a single effort to legislate for the ecclesiastical matters of both town and country.

In his contribution, "Civil and Clerical Homicide in Late Medieval Norway" (67-87), Thorstein Jørgensson draws on his work editing the notices concerning Norway in the archives of the Papal Penitentiary. After presenting the penitentiary material and giving some examples from his earlier work, Jørgensen addresses the important but difficult issue of how secular and ecclesiastical authorities dealt with cases when a cleric had been violent. The church insisted on the privilegium fori, which meant that any case involving clerics must be handled in church courts, while secular powers favored their own courts. Jørgensen discusses a 1357 document which shows that the priest Guttorm Thorlaugsson, who admitted to having killed a man, was prosecuted through the ordinary procedures of a civil homicide case. Since the Penitentiary archives lacks documents from the fourteenth century, Jørgensen cannot say whether Guttorm also supplicated for a papal pardon, and he leaves open the question of what was normal in this situation. He might have looked to a better documented case from the early fifteenth century in Sweden, which shows the priest Jacob Starlung in Växjö killing a man and then settling matters with his victim's heirs at civil court "according to the laws and customs of the land" as well as appealing to the papal Penitentiary for a dispensation.

Thomas Lindkvist discusses "The Land, Men, and Law of Västergötland" (89-99), focusing in particular on the earlier of two provincial lawbooks collecting local law, but also containing the first Swedish attempt at history-writing in the form of lists of kings, bishops, and lawmen. He finds that the book provides evidence of the local aristocracy striving for legitimation through expressing a regional identity. In this scenario, the king is distant, but Lindkvist sees the ambitions behind the lawbook as feeding into state-building and Europeanization.

Anne Irene Riisøy, "Outlawry: From Western Norway to England" (101-129), surveys carefully the terminology used in Scandinavian sources for various kinds of outlaws. Her purpose is to examine the thesis put forth by Elisabeth van Houts that the Old English word utlaga (the ancestor of modern 'outlaw') was borrowed from Old Norse in order to discipline with a word they recognized Scandinavian mercenaries working for English kings in the late tenth century. Riisøy demonstrates that the loan was earlier, so van Houts' thesis does not hold. The article will be particularly useful for its up-to-date survey of the confusingly many words employed in Scandinavian laws to refer to outlaws.

The long, complex, and sophisticated contribution of Jørn Øyrehagen Sunde suggests nothing less than a new theory of legal developments in the Middle Ages, applicable in the first place to Scandinavia, but surely also elsewhere: "Daughters of God and Counsellors of the Judges of Men: Changes in the Legal Culture of the Norwegian Realm in the High Middle Ages" (131-183). Sunde focuses on the first "national" law of Norway, the Code of the Norwegian Realm, issued by King Magnus VI "the Law-Mender" in 1274, and in particular on a chapter (4.18), which is central for the new procedural law introduced with the Code. That chapter maps out the acceptable limits of judicial discretion, and was read aloud to the jurors before they passed judgement. It is here that the allegorical four daughters of God pedagogically enter the story: Mercy, Truth, Justice, and Peace. Sunde sees this paragraph as a key text in a transformational moment in Norwegian legal history, when the old idea of equivalence (as in the custom of blood feuds and wergild or blood payment) was replaced by the legal idea of equity. That change is, in his theoretical model for developing legal cultures, accompanied by the introduction of proper law courts, replacing panels of mediators, and of law books containing "chunks of law" in the place of "fragments of law." Sunde also traces the intellectual precedents for the general idea of royal legislation and the particular ideas in chapter 4.18, in English, Spanish, and Roman law as well as in theology (canon law gets relatively short shrift). This highly interesting article is, with more than 50 pages--by far the longest in the book, but it still feels too short. It is full of fruitful ideas (sometimes too many at once, producing small digressions) and valuable insights which I hope the author will develop at greater length.

The last chapter is Helle Vogt, "Danish Penal Law in the Middle Ages: The Cases of Homicide and Wounding," which is a clearly written survey of punishments stipulated for homicide and wounding across Danish lawbooks for towns and countryside. The author concludes that criminal cases in medieval Denmark were in principle settled through the payment of wergild and/or fines. It is, however, likely that corporal punishments were increasingly imposed towards the end of the Middle Ages, but mostly as punishments for soldiers, outsiders, and the poor, who could not afford the fines. The results are, thus, in line with what is known about criminal law from the rest of Europe.

Copyright (c) 2016 Anders Winroth

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