My relentless progress through my seminar report backlog now finally leaves me looking at the last seminar I went to in Oxford, something of a milestone. The person who had the dubious honour of that slot in my academic life was the estimable Dr Alice Taylor, one of Kings College London’s regiment of Alices and an acquaintance of long standing from the Institute of Historical Research but here presenting to the Medieval History Seminar at All Souls with the title “Lex scripta and the Problem of Enforcement: Anglo-Saxon, Welsh and Scottish law compared”. This was a version of a paper she’d given in Oxford the previous year, but I’d missed it then and there was plenty of debate this time round…
It has so far been Alice’s most widely-recognised achievement to convince people that there even was such a thing as early medieval Scottish law, which she has had to retrieve from contextually-undatable references in much later manuscripts, but when you’ve done that, as she explained, you start to wonder about how the system worked and since, if that was your best evidence, you have no case-law or documentation by which practice might be examined, you have to start comparing. So, after a brief run-through of the different schools of historical thought on how written law relates to what people actually do to maintain social order in their communities, from the minimalist Patrick Wormald thesis that legislators of such law were not after judicial effects so much as the promotion of the legislators’ position above society to the somehow more spiritual one that written law reflects the wider community ideology as it was lived, she adopted a position for debate that written law was in these cases the top of an iceberg of unwritten legal practice, both part of the same corpus of social ideology, but more similar between her areas at the bottom than at the top.1
The three corpora do certainly differ, not least in preservation—Wales has various thirteenth-century redactions of what purports to be a royal lawcode of the tenth century, the Laws of Hywel Dda, Anglo-Saxon England has a large corpus of summative royal lawcodes with additional provisions also largely issued in royal council in what we now recognise as a fairly Carolingian way and in Scotland, as said, there are thirteenth- and fourteenth-century references to laws that in some cases probably go back rather further—but also in the legislative process: Welsh law names a king but its real developers were specialist lawyers, Anglo-Saxon England places the king first and foremost and Scotland is somewhere between the two. Alice argued, however, that all three corpora have references in that imply strongly that the legislators expected the initial action against criminals to come from the communities in which the crimes were committed, and the royal or state process would only creak into operation when that failed. The English laws are full of communal obligations for default of which the king can penalise, at what after the tenth-century is usually a flat fine of 120 shillings; Welsh law has a whole set of pay-scales for abetting crimes, which are charged at the same rate as the crimes themselves but to the state, rather than the victims; and the more shadowy Scottish references still assume posses who might hang a thief if he was caught, in a style quite similar to the Anglo-Saxon laws. All, or so Alice argued, expected the most immediate action to be taken in community, leaving royal justice as a superstrate over a bustle of quite various local enforcement of communal solidarities. For this reason, the main focus of the laws in all three areas is on persons, not communities, who have broken out of their social bonds by reason of their actions.
This met with some opposition and refinement in discussion. Paul Brand pointed out that despite the texts’ focus on individual actions, royal enforcement was carried out against whole communities, such as the harrying of Worcestershire in 1041 by King Harthacnut’s orders to pick just one.2 Mark Whittow suggested that the real rôle of law in these cases was to penalise action on behalf of the kindred, i. e. feud, as opposed to action on behalf of the community; and Wendy Davies evinced scepticism that the local community existed in these areas as a group so clearly defined as that it could be expected to act as a body. To the last, Alice (correctly, it seems to me) said that the texts nevertheless envisage such a group with mutual knowledge, though this doesn’t remove Wendy’s objection that it’s hard to show that was really there on the ground. Thomas Charles-Edwards and Tom Lambert both raised the question of change, however, and here there seemed to be more room for modification at least about what the royal law was for: Tom has after all argued something not dissimilar to this but both he and Professor Charles-Edwards emphasised that the lawcodes we have (i. e. the English ones) develop new terms over the course of the tenth century, as the kings try and open up space for themselves in what had previously been community action.
My notes no longer make it clear to me exactly how the three positions differed here, but the focus of disagreement seems to have been on whether the legislators, in all three cases, were trying to use what the communities over whom they legislated already did, to support it or to change it. I think Alice was arguing for the first two options, but for England the swell of opinion elsewhere around the table seemed much more on the first plus the third. It did seem to me (what my notes do reflect) that the English laws have as a big part of their agenda to regularise and eliminate local variation in custom, and the detailed provisions of the Welsh laws look like that to me also; the Scottish stuff I know much less well, but since we don’t have it as issued (if it was) it’s harder to say. The differences in practice here may not matter very much, but the Oxford scholarship seems even now to be very keen on knowing the minds of rulers, and it does seem as if law should be a way one can do it; to that way of thinking, Alice’s paper was probably more subversive than it initially appeared…
1. Alice here contrasted Patrick Wormald, The Making of English Law: King Alfred to the twelfth century. 1: Legislation and its limits (Oxford 2001) with Ruth Mazo Karras, Slavery and society in medieval Scandinavia (New Haven 1988). Patrick’s book is certainly where to start for more on any of the lawcodes mentioned in this post. As for Alice, her beacon work so far might be “Leges Scocie and the lawcodes of David I, William the Lion and Alexander II” in Scottish Historical Review Vol. 88 (Edinburgh 2009), pp. 207-288, but this paper itself is out, since last month only, as “Lex Scripta and the Problem of Enforcement: Welsh, Scottish and Anglo-Saxon Law Compared” in Judith Scheele & Fernanda Pirie (edd.), Legalism: justice and community, Legalism 2 (Oxford 2014), pp. 47-76!
2. So recorded in The Anglo-Saxon Chronicle in its entry for the year 1041. in whatever edition or translation you prefer to use; mine of resort is Michael Swanton (transl.), The Anglo-Saxon Chronicle (London 1996, repr. 1998).