How Nordic are the old Nordic Laws?
| Autor | Ditlev Tamm |
| Páginas | 9-22 |
Page 9
Medieval legislation plays a peculiar and very important role in Nordic legal history. These laws are important landmarks or lieu de memoire, which to a high degree have been used for centuries as a symbol of a legal culture different from the European continent. Written in the vernacular and even if not always too easy to understand these laws are still quoted as models of how to write legal texts in a short, clear style accessible to everybody. Due to a strange mixture of ingenuity and romanticism these medieval laws still hold a position as testimonies of a legal culture on a high level. They came into being at the same time as thousands of churches were erected, golden altars were forged and Saxo Grammaticus in his elaborate silver age Latin capolavoro with the title Res Gesta Danorum gave the Danish people a past even if not necessarily a past that could stand for modern critics based as it was on a common European partly legendary tradition. Also the medieval churches built all over Denmark in the 12th century were part of a European tradition. And then why not the medieval legislation? How Nordic are the Nordic laws actually?
"Why Nordic medieval law?". This question must necessarily precede the question posed above: "How Nordic are the Nordic laws?". The study of Nordic medieval law once had its heyday. For a time it was more or less neglected by legal historians. The time has come to assess whether new knowledge actually has been produced or whether we are just discussing old and well known topics in an apparently new context without really doing progress in our understanding of those legal texts from the past that once were the pride of Nordic legal history. Does a renewed study of old Nordic law really give us any new information or are we just left in a situation where it is not our level of knowledge that is increased but only our level of interpretation? And can we distinguish between these two levels?
Page 10
The scientific discussion in the Nordic countries when it comes to new knowledge of medieval law differs from the situation in other countries. In the Nordic countries the discussion is basically a discussion about normative texts. It is about legislation as legal texts. The way in which the old legislation was actually interpreted and used in legal practice of the Middle Ages is practically unknown due to the lack of a sufficient amount of sources. We can read the texts but we cannot ascertain to which degree the texts reflect any kind of living legal order. The scientific discussion and also new interpretations therefore to a high degree centre themselves around the situation out of which the medieval laws actually did come into being.
The gaps in our knowledge as to what constituted the reality of medieval legal order probably explain why the legal texts themselves have been in the focus of interest. We even know that ecclesiastical courts existed in all Nordic countries but nearly no sources to inform us about the practice of these courts or about the interplay between secular and ecclesiastical courts. In Denmark, Norway and Sweden more or less critical editions of the legislation as well as modern translations have been provided 1. However, recently the study and interpretation based on a reading of the texts seems to have given way to considerations as to the position of Nordic medieval law in a broader European context. This is how the question arises: "How Nordic are the old Nordic laws?".
This discussion is not new either but it was enriched and placed in a new context by the Swedish legal historian and later professor in Munich Sten Gagnér in his book Studien zur Ideengeschichte der Gesetzgebung from 1960. Gagnér`s studies on the idea of positivism in the Middle Ages and his general European outlook on the sources placed the Nordic legislation in a much broader context than had hitherto been the case. If one of the questions earlier discussed in the Nordic countries had been the possible extent of influence from foreign law the situation was now reversed. The position of Nordic law in a general European pattern was now taken as a fact. Nordic medieval legislation was part of a general movement of legislation in the 13th century. A question was now how to define what was particular Nordic in the Nordic law once it was stated that these laws do form part of European legal history.
Also modern research into the concept of ius commune has been an important source of inspiration. The dichotomy of the universal ius commune opposed to the local iura propria has been refined in later years. It does not make sense to discuss whether the Nordic countries were countries of ius commune or not. Roman law was not part of the law of the land but legal thinking influenced from the centres of learning in Southern Europe definitely had a great impact as had canon law on Nordic medieval legal thinking. It may still be considered a valid observation when Calasso Page 11in order to desribe the situation in the Nordic countries quotes the 17th century lawyer Besold: "Corpus iuris numquam receptum instar legis sed loco artis iuris" 2, however this point of view has been infinitely refined since that time not least in the research of Manlio Bellomo that has added valuable new points of view to the understanding of ius commune. However it is important to stress that in Nordic legal history the figure of the learned or scientific lawyer only appears in the Middle Ages in the role of a leading ecclesiastical figure. We do not find a tradition of secular lawyers trained in the aulas of European universities. The opposition of a learned tradition, which Paolo Grossi calls a scientific laboratory, as opposed to an unlearned legal practice has a completely other and much lesser relevance in the Nordic countries than in the other Western European tradition.
For quite some time time Nordic law has been neglected by European legal historians. The language is one of the reasons. The gradual softening of the opposition between a Germanistic and a Romanistic branch of legal historians has been another. There was a time when at least certain leading German legal historians showed an interest in Nordic law and dedicated their scientific skills to the study of those old laws. Great names of the 19th century as Konrad von Maurer who possessed an enormous learning of old Norwegian and Icelandic law and especially Karl von Amira may here be mentioned as examples of a method in legal history that considered Nordic medieval legislation as a examples of a legislation that might be rather young compared to other "Germanic" laws but which reflected layers of law that could lead to the understanding of the original Germanic law supposed to be an archeological layer that could be dug out partly through deductions from Nordic legal texts partly through texts like Tacitus` Germania. This way of thinking lead to imposing scholarly works like von Amira`s two volumes on North Germanic law of obligations, Nordgermanisches Obligationenrecht, that today may stand as monuments of great learning but even if the do contain valuable information are hardly consulted by modern researchers. Nobody today seriously believes in the Germanic Urrecht any more and it also is common knowledge that the Nordic laws in no way can be considered especially pure examples of old Germanic law. Since at least the 1920ies and 30ies it has been acknowledged in Nordic legal history that the medieval laws do reflect a society in brutal change, that the law written down was not necessarily very old, that many changes were brought into the laws in the 12th and 13th Centuries, and -not least important- that many institutions thought to be very old, actually were quite new. In later years we have learned to question whether even one of the cornerstones of the old Nordic society, the idea of kinship was really as the basis of old Nordic society.
In the field of criminal law old Germanic concepts played a significant role. However concepts like Friede, Treue or Gefolgschaft or similar words connecting Page 12 the old law with certain values are hardly found in Nordic law, and when found they can be identified as an influence either form canon law or as a consequence of a structure in which the position of the King was highly strengthened and thus be seen as more recent contributions to medieval legal order. That goes particularly for the use of the death penalty (die germanische Todesstrafe) and the concept of outlawry (Friedlosigkeit). Since the 1920ies and 1930ies it has been the position in Danish legal history that the ideas of a sacred death penalty as described by von Amira or the idea of outlawry as an old institution linked to a specific Germanic concept of peace and security in the society was not in conformity with the existing Danish medieval sources. Nordic legal history thus long ago has emancipated itself from ideas of the medieval legislation as a reflection of a particularly old and pure legal order. The connection between Nordic legal history and German legal history was thus severed. It does not make sense to study the medieval laws on a comparative basis aiming at excavating common roots. This position to a certain extent brought the study of the old Nordic laws to a stand still.
Today the research in the Nordic medieval legislation must be done by Nordic scholars. Gone with the wind is the idea of "Germanic law" and Nordic law therefore does nos not really belong in any legal kinship or specific European legal family any more. Nordic law constitutes its own family as is also recognized by modern legal comparativists like the leading manual by Konrad Zweigert and Hein Kötz. Nordic scholars have to dig out their own past. In this sense the Nordic laws are so much more Nordic today that only Nordic historians and legal historians can be supposed to take more than a distant...
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