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22.12.07 Walgenbach, Excommunication and Outlawry in the Legal World of Medieval Iceland

22.12.07 Walgenbach, Excommunication and Outlawry in the Legal World of Medieval Iceland

In Excommunication and Outlawry in the Legal World of Medieval Iceland Elizabeth Walgenbach sets forth the argument that outlawry in medieval Iceland was shaped by the conventions of excommunication. This legal history engages with developments in canon law, law codes from Iceland and neighboring countries, and contemporary sagas and their sources and transmission. In her argument, Walgenbach follows Eduard Eichmann (1870-1946) who emphasized the connections between secular and ecclesiastic law in high medieval Germany, maintaining that interpreting secular laws through the lens of contemporary canon law allows many otherwise thorny points to be understood.

Chapter 1 provides a brief discussion of excommunication in medieval Europe before tracing the documentation of excommunication in Iceland in extant written evidence, including a group of twelfth-century Latin letters preserved in a fifteenth-century manuscript, AM 186 4to (Hvanneyrarbók), which contains the earliest mention of excommunication in Icelandic in the c.1200 Icelandic Homily Book, and its incorporation into thirteenth- and fourteenth-century Bishop sagas. Walgenbach points out that in the Latin letters the terminology employed is inconsistent. Early developing law codes like Grágás show little interest in excommunication, though some phrasings may point to it. Later law codes, for example, Árni’s code, do address excommunication explicitly; and sagas likeÁrna’s saga and Lárentíus saga engage directly with newer canon law concepts of excommunication as expressed in later canonical codes and commentaries. Walgenbach notes that in the sagas, excommunication is typically employed in conflicts between churchmen, or between churchmen and laymen who opposed their claims and authority, threatening the individual in question’s standing in both community and afterlife as a means of punishment for insubordination to the bishop’s authority.

Chapter 2 presents a roughly chronological discussion of outlawry as it is attested in Germanic sources and defined in Icelandic legal and narrative sources. Beginning with a contextualizing overview of outlawry in Merovingian and Old English legal sources, and in conversation with contemporary Norwegian law codes, Walgenbach discusses Grágás as it appears in both Konungsbók and Staðarhólsbók, and the later Járnsiða and Jónsbók, regarding their presentation of outlawry. She points out that Grágás offers neither a single formula for full outlawry nor consistent or clear-cut consequences, but rather presents a collection of ideas about its permanence, enactment, and mitigation. Likewise, lesser outlawry is typically observed rather than explained; Walgenbach focuses attention here on the term fjǫrbaugsgarðr as sanction for a variety of offenses, noting it is useful for marking difference between relatively minor offenses and the highly serious ones such as murder, theft, and sexual offenses. She argues it can be understood in one way as a “translation of minor excommunication into the idiom of secular sanctions” (53) or, at least, evidence of influence from ecclesiastical law on the compilers of Grágás and that its value and use in actual practice is unclear. By comparison, in the outlaw sagas the offense leading to the sentence is not as important as the fact of outlawry, which carries with it stigma and dread, adding drama by rendering outlawry an event of fate, or even a curse, and aligning it with damnation. In the later contemporary sagas, this cursed or fated aspect gives way to a representation of outlawry as common and tied expressly to political concerns. The shift to a more political representation coincides with the development in later law codes of an emphasis on the role of the king as a possible means of clemency for outlawry and the idea that law and responsibility for Christian society is shared between king and bishop.

Chapter 3 provides the central argument of Walgenbach’s book, which, from the outset, she notes cannot be strictly proved, but is based on a comparison of the function and application of outlawry and excommunication in sagas and lawbooks, and the material philology of the relevant manuscripts. She argues for a direct intellectual influence of excommunication on outlawry, placing herself in juxtaposition against scholars who have argued that the framing of outlawry in the idiom of ecclesiastical law was done by clerics seeking a familiar means of expression, or that outlawry was used to render excommunication intelligible for a vernacular audience. It’s not clear that this juxtaposition--or the articulation of one approach as being more likely than another in the absence of clear proof--is necessary; much of her book argues for an appreciation of the complexities of language and interpretation, and here I think there is room for all of these possibilities behind the choices made to align excommunication and outlawry in the sources. Walgenbach does note that “it can be difficult to decide what is evidence of influence versus what is evidence for cooperation between two relatively dependent jurisdictions” (88), which points out that outlawry and excommunication are often presented together; for example, in the pattern of excommunication followed after a defined period by outlawry, and observes how outlawry has many of the same consequences as excommunication, particularly regarding the right to enter a church or be buried in consecrated ground. Importantly, Walgenbach argues that the sanctioning of offenses against Christian society with outlawry is a feature of local interpretations of Church law and how to enforce it, and potentially indicates a “colloquial understanding of outlawry as a type of excommunication” (97) and in light of the evidence presented, this idea seems wholly plausible.

Chapters 4 and 5 present case studies for Walgenbach’s suggestion to understand outlawry as secular excommunication based on contemporary sagas, those written in the twelfth and thirteenth centuries about recent events and people. Chapter 4 discusses Sturla Þorðarson’s Islendinga saga, arguing that throughout the ongoing conflict between Bishop Guðmundr and Kolbeinn excommunication and outlawry are used for political purpose, to assert jurisdiction and punish disobedience back and forth, and that there is “little distinction between them except that a bishop excommunicates, while a chieftain outlaws” (125). This saga showcases the similarity in implementation and consequences of excommunication and outlawry observed in chapter three. In chapter 5, Walgenbach turns to stories of the thirteenth-century outlaw hero Aron Hjǫrleifsson, arguing that the various texts containing his stories depict his outlawry as having spiritual consequences as much as political ones, and that pilgrimage and royal favor could mitigate those consequences. She posits that Aron’s story indicates the concept of a redeemed outlaw as holding cultural value in the late thirteenth and early fourteenth century, and observes they reflect the ideas found in the later legal codes, Járnsiða and Jónsbók,regarding the role of a king’s mercy in mitigating the consequences of a sentence of outlawry. As she notes, this is not particular to Aron’s story; Grettir, for example, also has a strong and friendly connection with the Norwegian king. However, in Aron’s case he has the support of Bishop Guðmundr, and he takes a pilgrimage to further enhance his spiritual redemption. The pilgrimage renders him in a state of grace, cleansing him of his outlawry, here conflated with sin. Following his pilgrimage, he becomes a retainer in King Hákon’s court, completing his redemption arc. This saga therefore associates outlawry with damnation and the Norwegian king as the ultimate arbiter of fate where outlawry is concerned.

In addition to the argument’s being not expressly provable, important considerations for this study pointed out by Walgenbach are the limited number of sources available for investigation, the fact that her sources were all produced by elite writers for elite audiences, and that these sources look back on historical events rather than recording current instances of outlawry; as she notes, this is “more of a literary phenomenon than a legal one” (155) despite being presented as a legal history. She concludes with the observation that her argument for viewing outlawry as secular excommunication in part accounts for the viewing of outlaws as being not quite human--because it was a sanction that removed outlaws from Christian society, outlawry effectively stripped them of the rituals and protections of that society, including salvation through burial in consecrated ground with the appropriate final rites. This idea is handled in highly cursory fashion within a single paragraph, and thus problematically conflates excommunicated Christian with not-quite-human in unfortunate ways perhaps not intended by the author.

Walgenbach thoughtfully approached the preparation of this book for primarily English-speaking audiences, opting to quote from published translations of the sagas she employs as case studies and including a guide to Icelandic/Old Norse alphabetical order at the beginning of the index for ease of reference in locating original language terms and names. There are a few typos sprinkled throughout, and at least one footnote the full contents of which appear in the main text, thus negating the need for the footnote. I note these minor infelicities simply because of their presence; they do not detract from the overall monograph’s interest or readability. It must be pointed out that this book, written in 2021, retains the use of the term “Anglo-Saxon” in discussion of early English materials, with no mention of the problematic nature of the term; I hope future studies take this into account. Even a note as to why she chose to employ it and acknowledging the fraught history of its use would be a welcome addition demonstrating awareness of current field concerns regarding the term’s racist connotations.

This is an interesting book, and I do find the central argument compelling, particularly in light of the case studies presented in its defense. It will be of interest to scholars of legal history, outlaw studies, and Old Norse/Icelandic literary and cultural studies, and stands to produce further and lively scholarly discussion regarding the relationship between canon and secular law in medieval Iceland.