Out on a limb: International law in the earlier Middle Ages

I’m a bit nervous. Next week I’m presenting a piece from my forthcoming book at the ‘Law and Legal Agreements’ conference in Cambridge, organised by the Voices of Law international network. I will contend that there was a notion of international law in the earlier Middle Ages. It will be the first time I am presenting this idea in some detail and I know from talking to people about my research, that the idea will be contentious both in terms of theoretical framework and in terms of the evidence used.

No, I won’t discuss the meaning of the word ‘international’ or the supposed ‘universality’ of international law, nor the difficulty of applying these concepts to the medieval period. And, I won’t talk about the revival of Roman law and the contribution of Canon law to this topic either, nor about the fact that any assumption that there was no international law in the medieval period is currently not based on an examination of the two most important sources for it: treaties and custom. I feel like I’ve done that already and have nothing to add to anything I previously said!

Instead, I am following the very simple formula of Martin Dixon in his Textbook on International Law that ‘the most cogent argument for the existence of international law as a system of law is that members of the international community recognise that there exists a body of rules binding upon them as law’, and that the evidence of this can be seen through (1) its regular practise, (2) through the justification of action, and (3) through the fact that the majority of international legal rules are consistently obeyed (Dixon 2013: 4). My evidence is those treaties – or legal agreements – produced in the period c. 700 to c. 1200, as well as descriptions of customs, and their links to domestic laws and practices.

It will come as no surprise to many that I argue that one of the best ways to see (1) in the medieval period is to look at the practices surrounding displacement of people and in particular expulsion – exile, banishment, outlawry or whatever we want to call it. The expulsion of individuals who had committed reprehensible acts was one of the ways in which medieval rulers and communities dealt with law and order. As an alternative to corporal punishment, such as mutilation or death, expulsion from a political entity – whether we view this as a city, region or kingdom – was reserved for the most serious offences; those which could not be atoned for with compensation. However, while expulsion was intended to ensure law and order on a domestic level, it could result in becoming a threat to peace and security on an ‘international’ level. Primarily this was because, once expelled, such individuals often committed further reprehensible acts and/or engaged in conflict against the entity from whence they had come. The provisions for dealing with this threat in treaties, in customs, and in domestic laws and practices, show a more co-ordinated and systematic approach than medieval scholars have perhaps appreciated in the past. One could, and I will, argue similarly for other provisions, and, in my paper, I will use those for arbitration and trade to show some of the possibilities for (2) and (3).

In short, I will argue that as there were no nation states in medieval Europe, it is inevitable that traditional views of state-centred international law and institutions must give way to a different model – the one I’m presenting – which recognises the plurality of law and that the locus of political and legal power in the Middle Ages was multi-layered.

I hope to see some of you in Cambridge next week, prepared, as a very good friend and colleague told me today, with those awkward questions I often target at others. Well, I am not averse to taking risks and simply throwing myself down that ski slope that turned out to be off-piste or riding on that roller coaster that got stuck at the top for hours. Bring it on!


A Model Murder during the Nordic Civil Wars

This is greetings from Oslo! I am spending some time as a fellow at the Centre for Advanced Studies in Oslo, working on the Nordic Civil Wars project. One of the main reasons for being here in Oslo is that I am writing a chapter on the concept of ‘state’, its expectations and functions during times of civil wars. However, researching this topic has inevitably thrown up plenty of other intriguing pieces of evidence that I am also pursuing as part of the project.

One such unexpected finding relates to the killing of King Harald Gille in 1136 by his half-brother and rival for the Norwegian throne, Sigurd Slembe. The account in one of the kings’ sagas known as Morkinskinna, composed c. 1220, goes something like this:  Having discovered that Harald was staying the night with his mistress ‘Sigurd went to the lodging where the king was sleeping, and they began by first killing the guards and breaking down the door. Then they entered with swords drawn. The king had gone to bed after heavy drinking and was fast asleep. He awoke only as they attacked him…There King Harald lost his life…After that Sigurd and his men left. He summoned the men who had promised to support him if King Harald was killed. They took a ship, had the oars manned, and rowed out across the bay past the king’s residence. It was then beginning to dawn. Sigurd stood up and spoke to the men on the quay, identifying himself as Harald’s killer. He asked that they accept him as their chieftain, as his birth entitled him to be. Then large numbers arrived from the king’s residence, and they were all in agreement. They said that they would never serve a man who had murdered his brother…They all proclaimed that the killers should be outlawed and subject to death. Then the king’s trumpet was sounded, and all the district chieftains and retainers were assembled. Sigurd and his men saw that their only chance was to depart’ (Adapted from Morkinskinna, tr. T. M. Andersson and K. E. Gade (Cornell University Press, 2000), pp. 371-2).

There are lots of things in this account that is of interest. For me – no surprises – the description of an unemendable crime and the outlawing of the perpetrator was what originally caught my eye. The description in Morkinskinna has all the hallmarks of a more formal, legalised, process, with emphasis on certain elements – the breaking into the chamber, the witnesses, the consultation and agremeent, and the judgment of outlawry. The account clearly deals with the crime of treason – a hotly debated topic in twelfth- and thirteenth-century Europe and characterised in works such as John of Salisbury’s Policraticus (VI:24), following the Digest of the Emperor Justinian. But despite these exciting features, my question after reading the account in Morkinskinna, and remembering a similar description in one of the eighth-century entries of the Anglo-Saxon Chronicle (ASC), which I use in one of my third-year lectures as an example of how to become king in the early Anglo-Saxon period, leaned more towards: Did the Icelander writing the saga have access to the ASC?

The short answer is ‘no’. Or, not that we know of anyway. The accounts are not exactly the same, but at the core there are some very close similarities, suggesting the use of a textual model. I will be exploring some of the possibilities and problems of the origins of the account in Morkinskinna in a forthcoming paper to be given to the Graduate seminar at the Department of Anglo-Saxon, Norse and Celtic, Cambridge on Monday 6 November. Hope to see you there!

What does that word mean, really?

All medieval historians engage with translation in some way to do research; whether it is simply to read primary sources or secondary literature, to write up research based on variations in translation, to edit translations already made, or to create new translations. Medievalists spend years honing their translation skills and I think it would be fair to say that translating, in its various forms, is one of the hardest parts of my job, not only because it requires significant skills but because it demands space in time and in mind – the two commodities hardest to juggle in my role as a lecturer in a busy history department.

'Oh great, this book's in cow.'

‘Oh great, this book’s in cow.’

My own experience with translation clearly began before I decided to go into research. As most of you will know, I’m a non-native speaker of English and this means that I continuously engage with translation by copying, editing and thinking about the way native speakers use English in speech and in writing. It has often been a process of trial and error – really, lots of errors (so many horror stories that are not suitable to write about here!). Nevertheless, by the time I started my postgraduate studies, this process had left me fairly confident that I could tackle any text with a good dictionary and patience. For several years, I felt that this worked like a charm – mostly – until my research took me in new directions and I had to make completely new translations of the sources I was working with. Honestly, my postgraduate training and a PhD had not prepared me for this. Even small practical things like whether to indicate variations in spellings in the word document using square or round brackets or footnotes became a matter to ponder for days, weeks and months. And, the more translations I did, the less I felt I knew.translation-is-a-puzzle It has resulted in me becoming more pedantic about words and phrases in general and those students and colleagues who know me well, can attest, with great exasperation, to the fact that I start almost every question or objection with “but what does that word mean in practice?”

Next week I, together with the Leverhulme-funded international network ‘Voices of Law: Language, Text and Practice’, will be hosting a postgraduate workshop on editing, translating and using medieval documents. I will be sharing some of the basic problems of translating (yes, maybe I’ll divulge some of those horror stories too), focusing on problems relating to purpose, time, knowing too much/too little, and logistics. I’ll be joined at the workshop by some more experienced colleagues from Cambridge, Copenhagen, Glasgow, and the Frisian Academy, who also grapple with translations. Afterwards, the papers from the workshop will be made available in an online booklet, which will, hopefully, provide postgraduates with some useful guidance on this topic.

Richard I on tarring and feathering

Occasionally something comes along in the sources that just catches your attention. Take this short legal text issued by Richard I to his followers just before setting out on the Third Crusade:

‘Richard by the grace of God king of England, and duke of Normandy and Aquitaine, and count of Anjou, to all his subjects who are about to go by sea to Jerusalem, greeting. Know that we, by the common counsel of upright men, have made the laws here given. Whoever slays a man onboard a ship shall be bound to the dead man and thrown into the sea. But if he shall slay him on land, he shall be bound to the dead man and buried in the earth. If anyone, moreover, shall be convicted through lawful witnesses of having drawn a knife to strike another, or of having struck him so as to draw blood, he shall lose his hand. But if he shall strike him with his fist without drawing blood, he shall be dipped three times in the sea. But if any one shall taunt or insult a comrade or charge him with hatred of God: as many times as he shall have insulted him, so many ounces of silver shall he pay. A robber, moreover, convicted of theft, shall be shorn like a hired fighter, and boiling tar shall be poured over his head, and feathers from a cushion shall be shaken out over his head,-so that he may be publicly known; and at the first land where the ships put in he shall be cast on shore. Under my own witness at Chinon.’ (Chronica Magistri Rogeri de Houedene, 4 vols., ed. William Stubbs (London, 1868-71) iii, p.36; Translation from: E. F. Henderson, Select Historical Documents of the Middle Ages, London, 1896)

Initially, what caught my eye about this short text was the reference to tarring and feathering. Partly because it conjured up memories of my primary school library and the many hours I spent there, reading the comics series Lucky Luke – the cowboy known to draw faster than his own shadow, and who was rather fond of tarring and feathering the villains. On a more serious note, my interest was piqued simply because it struck me as an unusual punishment, even for the Middle Ages.

We know that some of the crimes described in the text were so called ‘unemendable’, that is they could not be atoned for with fines but only with life or limb. More commonly, of course, the eyre rolls from the early thirteenth century tell us that those accused of killings, woundings or robbery were outlawed and their property confiscated, primarily because they fled rather than face trial.

In any case, what is clear is that the punishments outlined in the text above do not compare to the punishments for similar crimes elsewhere in English legislation from the twelfth century. The method of accusation, ‘by lawful witnesses’, is similar to what we find in the assizes and the legal treatise known as Glanville, but the punishments are very different. Of course, there would have been good reasons why King Richard needed to keep strict discipline among his fellow crusaders. Lots of fighting men together in a confined space for days on end while on sea probably calls for something stronger than what could be found in current laws.

More surprising, however, is that none of the English laws of the twelfth century contain details of how to deal with transgressions and crime on military expeditions. Given the amount of warfare we encounter in the twelfth century, this is curious, I think. We know that other kings certainly issued laws that contained provisions for military expeditions. For instance, the Law of Jutland, issued by the Danish king in the early thirteenth century, has two small paragraphs relating to crimes committed while on military expeditions. The first one states that if a man in military service is accused of theft by a steersman then he should defend himself with the two men who are closest to him on the thwart, that is, those who sit next to him at the oars. If they convict him, then they should fare with him as with other thieves and he would have forsaken both the goods he had on the ship and the capital lot at home. Here, the punishment was thus mainly confiscation of land and chattels. Another paragraph details how if a man kills another while in military service he should always pay forty marks to the kin and also to the king, in addition to paying the appropriate man worth. What is evident from these provisions is that matters that occurred while men were on a military expedition were expected to be resolved in a similar way as when a man was not on an expedition. For instance, if found guilty one’s fate would be decided by a board of nominated men who could either swear you to compensation or to something infinitely more horrible.

There are no similarities to these provisions among the English laws, although we occasionally get tantalising glimpses referring to the customs of the military household. Most of these glimpses, however, come not from laws but from treaties. More on this anon.