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Lex Castrensis: a fictionalised solution to a factual Viking-Age problem?

Close attention should be paid to the story - rather than the history - of LC. The scholarship of Indigenous law highlights the importance of considering narratives and stories as expressions and articulations of customary law,49 and there is much in this approach that can inform the study of early medieval law. Focusing on Sven’s story in LC presents us with a number of key details that require unpacking.

First, the setting of Sven’s narrative should be reflected on. The text claims that Kniitr ‘was resting amid his warlike enterprises in the calm of peace’.3" This places the legislative events to come in an ideal setting. Knutr is not making rash reactive decisions, but rather is a successful king without the distractions of war or uprisings. However, it would seem that this idle time is when his military following is most in need of governing. We are told that these events unfold in England when his forces were assembled; however, Kniitr clearly has a problem before him that requires specialist guidance and counsel as he purportedly calls for a certain ‘0pi the Wise of Sjaelland and his son, Eskil’.51 So despite being in England with his diverse following and presumably his English legislative advisers, Sven importantly includes Danish legal specialists in these matters as well.

The problem to be solved is similarly international: how to govern the hird. As mentioned above, if we accept Sven’s story' for its internal logic, this is not a problem that could be solved with a regional approach. Knutr’s followers would.

true to form, follow him as he moved throughout his realm and, being full of heterogeneous people jockeying for position, he would indeed require a way to dissuade members of his hird from transgressing legal and social norms.

Sven presents the solution to this problem as a series of newly ratified provisions that are primarily based on punishing transgressors by displacing them in a highly stratified seating arrangement and thus a lasting and visible mark of dishonour. There are distinctions between greater and lesser transgressions, but the kernel of the system revolves around the proximity of Kmitr’s retainers to his person. Fittingly, in special cases the king would also be able to pardon the wrongdoer.

Knútr's punitive attitude and a case for legal exchange in the late Viking Age

Consulting Kniitr’s second English law, the facticity of these matters is up for some debate. On the one hand, it seems that fighting in the hird may have been very harshly punished:

Concerning those who fight at the king’s Court.

If anyone fights at the king’s court, he shall lose his life, unless the king is willing to pardon him.52

Yet, on the other, there seems to have been room for minor violent transgressions of the king’s peace to be pragmatically punished according to severity:

Breach of the peace.

If anyone is guilty of a capital deed of violence while serving in the army, he shall lose his life or his wergeld.

§1. If he is guilty of a minor deed of violence, he shall make amends according to the nature of the deed.53

While it remains unlikely that this was done by demoting retainers in the order of seating arrangements, as LC claims, the bones of Sven’s narrative remain strong enough to bear the weight of conceivability. It seems that governing the hird was indeed likely accomplished by way of punishments that were ‘severe enough to restrain their bold delinquency’,'4 but also that the king had pragmatic ways of interpreting the law, as well as mitigating or nullifying these punishments. These details are important because, given the fact that the Scandinavian provincial laws prefer outlawry to judicial violence, 5 it would make sense that such legal details would leave a mark on the cultural memory of Danes associating Knutr with uncharacteristically punitive legal provisions. It is to these that we should now turn.

These details thicken Sven’s plot considerably. It turns out that Knutr himself is the first to break this new law and in spectacular fashion. While still in England and still in peacetime, Sven’s Knutr kills one of his own retainers and the whole hird flies into an uproar; first for justice, and then, once they realise the identity of the perpetrator, for a solution to a vexing issue:

For their opinions were divided, and their verdict was doubtful and uncertain: whether to punish the king with death on account of the novelty of the crime, or was he entitled to pardon? For if the king were to undergo the prescribed sentence, they would be driven out of this foreign country as leaderless fugitives; but if they were swayed by their reverence for the king, the example of their corrupt indulgence would enable others to commit the same offence.36

Sven’s legal narrative here presents a curious thought-experiment: how does an international following of an international king navigate an international legal solution when the king, who legitimised the law and grants legitimacy to his legally empowered hird, has, in a moment of weakness, undermined all these structures? The problem articulated by Sven is that if justice is passed according to the letter of the narrated law, the hird will be responsible for the death of the king, making themselves fugitives. How might it be possible to solve the quandary?

Once more, the system presented in Sven’s narrative appears to be rooted fairly convincingly in customary law. In fitting fashion, the hird ‘gathered into a body and made careful inquiry into what they were to do’.57 Again, this is not a rash, reactive decision; rather, this diverse group of retainers comes together in a microassembly of sorts and renders a communal judicial decision based on the king’s provision that is in their best interest. It is, in fact, an extension of precisely the early medieval system of ‘collective responsibility and private prosecution’ described by Christiansen in his introduction.58 Even more interesting is the fact that Kniitr seems to willingly give himself over to the judgement of the collective in the narrative even if it might result in his death. He is presented as both a careful law-maker and as deferring to the legal decision-making of the collective in matters of interpreting that law and weighing justice.

These details are illuminating from the perspective of early medieval law, and it warrants a pause for further reflection. Sven’s version of events has Kniitr, as king of England and its Scandinavian neighbours, inviting legal specialists to join him and his hird in England to develop and pronounce legal innovations. His punitive strategy seems to lie within the actual English tradition of the late Viking Age, relying on severe and visible punishment to dissuade transgression, but he balances this with an apparent appeal to his Danish legal specialists.39 And yet, when he himself transgresses the law while still in England, he gives himself over for judgement to the collective he has wronged. Despite a seemingly more English character to the prescribed punishments associated with these new laws, the process by which the case is tried is decidedly in the Scandinavian tradition. It focuses not on centralised authority, but rather on diffusive legal decision-making in a collective assembly. The story certainly fits very well alongside the highly international character of Kniitr’s reign and with recent suggestions that especially his English reign was likely a nexus of Scandinavian and English legal practice.60

This interaction of Scandinavian and English legal ideas and practices is especially detectable in England where a larger corpus of texts survive. Sara Pons-Sanz, for example, has pointed to clear places in the vocabulary of English legislation where Norse-derived legal vocabulary was creeping into the English legal tech-nolect.61 While this process had already begun before the time of /Ethelred and Kniitr’s famous legal advisor Wulfstan II, there is a distinctly high number of Norse-derived terms in I-II Cunt. Pons-Sanz herself argues that this is most likely due to their official character and the breadth and diversity of their intended audiences;62 an observation that sits well with the discussion of that legislation, above. We can also see sources like the Anglo-Saxon Chronicle presenting Knutr as having a rather distinct approach to punishment in his English reign. For example, /Ethelred is recorded in the Chronicle as potentially ordering judicially violent punishments in 993, 1002, 1006, 1014, and potentially 1015.63 Knutr, by comparison, is only associated with violent punishment in the tumultuous years of his early reign, specifically 1016—18 where he appears to have been putting down an uprising,64 and then again in 1021-22, where he outlawed I'orkell and Leofwine only to reconcile with both of them.65 Compared to his predecessor, Kniitr’s personal approach to punishment in England is actually less severe, potentially hinting at deference to the legal customs of local collectives, as is suggested in LC, rather than imposing a centralised punitive strategy of his own.

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