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Legal custom and Lex Castrensis?: Using law and literature to navigate the North-Sea neighbourhood in the late Viking Age

Keith Ruiter

Abstract: In his Lex Castrensis, the twelfth-century Danish writer Sven Aggesen tells the story' of the creation of a law that he attributes to Knútr inn riki (Cnut the Great) as a means of governing his substantial military following of retainers, known as the hird. As unlikely as it is for Sven to claim that he preserves the law exactly as it was in Knútr’s own time, the text’s focus on process and punishment raises an intriguing question: can evidence be seen for shifting punitive attitudes and legal exchange in the late Viking-Age period of intense contact, interaction, and accommodation between Scandinavia and the British Isles? This chapter will offer a first step in considering the possibility for the exchange of legal practices and concepts in this context, and present a newly refined picture of England and its Scandinavian neighbours - one which points to sophisticated legal interchange happening much earlier than usually thought.

Introduction

Lex Castrensis (hereafter LC) is a vexing source. Written in the late twelfth century, this Latin text purports to be a short, contemporary' Latin translation of a set of Danish legal provisions dating back to the time of Knútr inn riki (Cnut the Great), promulgated for the purpose of keeping his military following (Old Norse: hird) in check. It recounts the story' of infighting within the hird, the king’s interest in bringing his following into concord, his consultation with legal experts to draft provisions to do so, and an exploration of notable cases of transgression of these provisions. However, the matter is not so straightforward. In the introduction to his translation of LC, in English called the Law of the Retainers, Eric Christiansen comments bluntly' that the text is ‘a strange production’.1 It is a fair judgement, and doubly so from the perspective of legal history.

Despite its claim to record accurately these Viking-Age legal details, LC also claims that the law ‘went out of date and was forgotten’,2 that it was rediscovered by' Absalon (Archbishop of Lund 1178-1201) who wrote it down in the vernacular during the reign of Knútr VI (King of Denmark from 1182-1202), and perhaps most confusingly, that these same legal principles and precedents, despite being purportedly forgotten, were consulted during the reign of Nicolaus (King Niels of Denmark, reigning 1103/4—1134).3 Consulting the life of the author of the document, Sven Aggesen, does not clarify these matters. Almost nothing is known about him except that he was a contemporary of medieval Denmark’s most famous historian, Saxo Grammaticus. He came from a powerful political family (Sven was nephew to Archbishop Eskil of Lund), he witnessed the surrender of the Pomeranians to Knútr VI, and he wrote LC, Compendiosa Regum Daniae Historia (sometimes called Brevis Historia Regum Dade), and a now lost genealogy of the kings of Denmark - all of which are details only contained in his own writings.4 Christiansen lays out a compelling case for Sven to be an archdeacon at Lund, who ‘put his legal expertise, such as it was, at the service of the new archbishop’.' However, LC is not actually a law text in the conventional sense.

Precious little attention is paid in Sven’s work to the provisions themselves, and far more detail is given to the story of the events surrounding their promulgation. LC states that the law at the heart of its discourse was a means by which Knútr, as king of England and its neighbours, Denmark and Norway, would be able to keep order in his substantial and diverse hird. Due in part to this lack of attention to the legal provisions themselves, Christiansen argues that the text is a legal tractus, seeing it as something of a thinking exercise focused on the stipulated origin of this set of rules, their subsequent modifications, the logistics of trial and punishment, and the ethics of these provisions, all set in a narrative frame/’ However, in the context of the present volume, LC itself provides room for a new thinking exercise. In the intense and sustained contact, interaction, and accommodation that we can see in the late Viking Age - something LC clearly recalls with some accuracy - can evidence be seen for shifting attitudes to punishment and legal exchange between England and its Scandinavian neighbours? This discussion will use Sven’s text as a point of departure from which to consider how legal ideological exchange might have been possible in Kmitr’s reign.

 
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