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!

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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!