Reception of learned law, usually meaning the mixture of canon and Roman law known as theius commune and created in later medieval European universities, belongs to the classicaltopoi of medieval legal history. With his new book, Marvin Wiegand contributes to this research tradition with a fresh take. He researches late medieval Frisia, consisting of some practically autonomous provinces directly governed by the Holy Roman Emperor, on the rim of the North Sea.
Frisia had long documented legal traditions. The first source of the Frisian legal system dates roughly to ca. 800 when the text that is called the Lex Frisiorum was written. It is believed that the Lex Frisiorum was a compilation of legal customs made at the initiative of the Carolingians after Frisia and Saxony had finally been defeated by Charlemagne in 785. After this, the Frisians were left to adjudicate and administer themselves under the imperial supervision of a governor known as a count. Throughout the centuries, Frisian customary law developed organically at the local assemblies without any legislative authority. The legal expert or “law-sayer” (Old Frisian: asega) knew the local variant of the Frisian customary law and advised the judge or magistrate, known as skelta. From the tenth and eleventh century on, various other compilations on customary law were made, some containing mostly procedural or ecclesiastical law, others including articles on crime or succession.
Instead of the early Middle Ages, however, the author concentrates on Frisia, particularly “Westerlauwers Frisia” or West Frisia, in the late Middle Ages. At this time, Frisian customs had long interacted with the norms of the Church, known as canon law. As for Roman law that Wiegand studies separately, it influenced Frisian law later, in the fourteenth and fifteenth centuries. Wiegand argues that the study of the reception of Roman and canon law during this period is especially useful because there was no superior authority that would have been imposing its laws on Frisians. The region was largely autonomous until East Frisia became a County in 1464 and West Frisia was conquered by Saxony in 1499. Thus, the later medieval reception of the ius commune was a result of the activities of the Frisians themselves. Wiegand’s main research questions aim at answering “why and how Frisians altered their customary system of law” (3).
In the long introduction (1-48), Marvin Wiegand methodically discusses his approach, which is thoroughly comparative. While focusing on the layers of Frisian law (and in some chapters even legal practice), the author compares it to Roman and canon law in order to ascertain how the three interacted. To supplement this systematic comparison, he makes comparative excursions to other regions sharing the Germanic legal fundament. Therefore, he occasionally compares Frisian law to Flemish, Dutch, German, Danish and Norwegian medieval law. These comparisons are useful as they serve as a mirror to Frisia and an important analytical tool provoking explanations for observed similarities and differences.
Further, Wiegand presents the sources—especially the glosses and their history as well as the manuscript and print tradition (18-32). After a short introduction to the Frisian medieval political system and legal traditions, he finally engages in a discussion on legal reception, on the reception of Roman and more generally, learned law using the normal authorities and typologies. A reader who is well acquainted with reception research and methodologies may not find this part very innovative or revelatory. Nevertheless, the section (32-42) will be useful for someone wishing to have legal reception presented in a nutshell. After this, the author analyses the reception processes in depth in five fields of law whereby he aims at providing “an initial insight into the evolution of Frisian law regarding the reception of learned law” (48).
Although the author stresses that his book by no means is “a comprehensive overview of reception” (48), the reader gets no full explanation why these five topics have been selected for closer scrutiny. Are they particularly representative of Frisian legal traditions? Were they particularly important for Frisian late medieval legal life? Is the choice serendipitous? The reader gets no clear answer even if the author mentions, for example, the centrality of oaths as methods of proof and the longevity of the niarkap, a Frisian variant of the Germanic kin and neighborhood pre-emption rights.
Marvin Wiegand has chosen the law of contracts as his first topic of deeper analysis. As mentioned, his focus is on the niarkap (ch. 2, 49-105). However, he also discusses how the canon law principle of “pacta sunt servanda”—agreements must be honored—prevailed in Frisia as a result of local legal traditions. Unlike Roman law, Frisians considered agreements the Roman jurists called “nude contracts,” simple contracts without consideration, as enforceable. Here, Frisian law demonstrated clear influences of canon law.
For the law of proof (ch. 3, 106-166), the author discusses oaths and ordeals. Indeed, theFreeska Landriucht (Frisian Land Law)—and especially its so-called Older Skelta Law—contains mentions of a rich array of different types of ordeals. As is well known, the use of ordeals was waning already in many parts of Europe before the Fourth Lateran Council of 1215 prohibited ecclesiastical participation in the ordeal procedure. As a result, the later medieval learned glosses observed that ordeals had fallen into desuetude because of the ban. As to omnipresent oaths, they were reframed in accordance with canonical terminology.
The classifications of various types of theft and the rules of house search—searching for the stolen goods in the suspected thief’s house—are analysed in chapter 4 (167-216). Weigand observes that even if Frisian classifications of theft were largely similar to those in Roman law, there were some telling differences. The chapter demonstrated that Frisians developed “a hybrid legal system” by actively selecting “the elements to adopt and retain” such as the house search that had long been abandoned in Roman law (216).
Weigand concentrates on family law, testaments (ch. 5, 217-278) and widows’ rights (ch. 6, 279-334), in the two last main chapters. In these, he also analyses legal practice and particularly surviving wills. However, true to his style, he contextualizes testamentary practice by first outlining the Frisian intestate succession rules. One of the somewhat paradoxical results of chapter 5 is that fact that based on surviving wills, Frisian testamentary practices were strongly influenced by Roman law (for example as to number of witnesses and designating heirs). Why is this paradoxical? Because the will was brought to Frisia by the Church, monasteries were the centers of canonical legal learning and studies in Frisia and four-fifths of most of late medieval wills were written in the presence of clerics. Initially, there was more canonical influence especially in testaments for pious uses, but then Roman testamentary law largely took over.
Chapter 6 discusses widows as guardians of their children and widows under guardianship. The author also presents the Frisian traditional matrimonial property system which undoubtably contextualizes the agency of women and widows in medieval Frisia. In analysing both Frisian and Roman legal arguments in a real legal case, Weigand demonstrates how litigants used arguments from both legal systems in their own advantage in law cases—even occasionally misinterpreting them in their favor. This highlights the actor perspective of reception processes. While late medieval Frisian jurists tended to “reinstitute gender-based guardianship” through Roman law, widows still enjoyed guardianship rights over their children—sometimes over others, too—in defiance of the rigid rules of the Ancient Roman Empire (334).
The concluding analysis of the reception of the ius commune in late medieval Frisia forms chapter 7 (335-345). The author distinguishes between a reception of systems, methods and norms—all of which intensified towards the end of the period. In addition, reception motivated by need and authority are considered. The mere age of the core of Frisian customary law explains much of the need to update traditional law. In the conclusion, Wiegand refrains from much discussion of the fields of law that were outdated by ca. 1400. There were also reasons why the reception of learned law was resisted. Many traditional customs were still relevant and central for the transfer of property such as the right to pre-empt land.
In this thought-provoking book, Marvin Wiegand has used the comparative method as a means of analysing Frisian law. On the whole, Wiegand’s analysis and argumentation style is careful and detailed. He does not jump into vast generalizations based on flimsy material, and consequently, his conclusions are largely sound and solid. The book also has the usual list of abbreviation (x-xi) and a short glossary (xii). The fact that the book contains a multitude of long citations in Old Frisian and Latin and their English translations in the main text might provoke criticism in some readers. Admittedly, they add considerably to its length. However, they simultaneously increase the usefulness of the book for future research. The book will probably particularly interest legal historians and researchers of Frisian history; perhaps also historical linguists and gender historians.
The perseverance of judicial oaths in legal proceedings is mentioned and explained by the honor culture of medieval Frisia (341). Though no expert on Frisian law, I am not quite convinced whether the honor culture alone suffices as explanation. For example, in Sweden, where first instance courts were also largely dominated by lay judges (in the sense of non-university-trained judges and jurors as their co-judges), the age-old use of oath-helpers was abolished only in the 1690s. While Viking Age Sweden may have been dominated by a warrior ethos and honor culture, this factor does not explain the continued use of compurgation especially in the countryside almost to 1700.
This is only one example of the questions such comparisons evoke. For a researcher on Swedish legal history, reading this book was very exciting. For me, Frisia inspires new questions and serves as a lens for analyzing the medieval Swedish legal system with all its differences. It is easy to join with Marvin Wiegand in wishing for more comparative research using Frisian medieval law in the future.