This book seeks to understand the law in action and in context.
To that end the work collected here treats �the law’ in the broad sense of Recht, or le droit. It is in part a legal history, but one that goes beyond a history of doctrinal change, or even legal-philosophical intellectual endeavours (for instance, the process by which Roman law underwent a �reception’ in medieval and early modern Europe).1 It is concerned with legal elites and experts but also with wider social categories of users of law, and it draws upon historical research into conflict, dispute and normative frameworks, which remains a flourishing field of study and one in which law is, rightly, a vital feature.2 In particular, it draws attention to towns and cities as hubs of legal activity, where �townspeople lived cheek by jowl with the many legal institutions that they used’.3 To the extent that northern European societies were interconnected through trade, learning, conflict and diplomacy, shared aspects of law and legal change should be identifiable in urban records from the region, and shared questions may be asked of those sources and the languages contained within them.
Within the last decade major contributions in this direction have been offered in the study of medieval maritime law and the linguistic framework of law, both taking an important reference point in the Scottish urban context.4In Scotland, the Aberdeen civic archive is of major significance for such an effort. The town’s surviving council registers from 1398 to 1511 do suffer a gap (c.1414–c.1433), but still more records survive for Aberdeen before 1500 than for all other Scottish towns combined, and these registers received UNESCO UK Memory of the World designation in 2013.5 Internationally, they invite investigation and comparison with analogous materials from other towns. This was in part the purpose of the project Law in the Aberdeen Council Registers, 1398–1511: Concepts, Practices, Geographies.
That project concentrated on urban archives as records predominantly of a legal nature, being chiefly records of the business of various courts which exercised jurisdiction in the royal burgh of Aberdeen. This burgh by 1400 boasted a population of no more than a few thousand inhabitants, although it was counted among the four leading towns of Scotland.6 Many commercial disputes and cases of personal litigation came before the burgh courts, frequently involving merchants and sailors from abroad. These proceedings were almost entirely set down in Latin in 1400, but, by 1500, the use in the registers of Scots (the West Germanic vernacular language of northern Britain, known at the time as �Inglis’) had expanded dramatically. The Aberdeen Registers Online: 1398–1511 (ARO) is a 1.5-million-word digital edition of the text of these registers, created by the project.7Any investigation of �the law’ meets the wider problem of adequately explaining the context in which law operates. In other words, this prompts a need to examine cultures of law. Unlike �political culture’, which has produced a vast literature concerned with historical as well as present-day contexts,8 �legal culture’ is much less well developed as a historical subject.9 One description of legal culture emphasises not change but continuity – seeing it as �describing relatively stable patterns of legally oriented social behaviour and attitudes’.10 One of the earliest investigators of legal culture, Lawrence Friedman, defines it as �the network of values and attitudes […] which determines when and why and where people turn to law or government or turn away. It is thus the immediate source of legal change, whatever the ultimate source may be’.11 More recently, Jørn Sunde has set the idea in a historical perspective. In Sunde’s approach, legal culture is essentially about how law is understood and applied in practice.12 He has asserted that �legal culture represents ideas and expectations of law that are made operational by institutional(-like) practices’.13 In this assessment, legal culture is shaped simultaneously by institutional and intellectual structures, and Sunde observes the possibility of using the idea either in a narrow sense (being mainly about the law itself) or in a wide sense (as law relates to other aspects of society).
According to Harriet Rudolph, the use of this wider sense, taking into account various methodological problems, is necessary in order to deal satisfactorily with the complex relationship between law and society.14In considering all this it is important to distinguish our present particular focus on legal culture from other closely related areas of study. One is the broad academic field of �law and society’ which has existed since the 1950s and which is closely associated with the subject of the sociology of law.15 The other is the anthropology of law, with a strong legacy of comparative historical treatment which continues to thrive.16 For our purposes, the problem of legal culture is less about understanding how the social operations of law might be theorised or the ways in which legal ideas can function as conceptual tools, but is more precisely concerned with investigating the ideas, expectations and patterns that shape how law is put to work. Our approach to the topic is partly captured by Steven Winter’s observation that �law is constituted and sustained … in the forms of life that give meaning to our categories, concepts and values’,17 and is partly grounded in Lawrence Rosen’s approach to law as a way in which we order the world and achieve a categorisation of knowledge and the creation of facts.18 While we do not seek to provide a restrictive definition of legal culture to be rigorously observed in the contributions which follow, our goal is to allow the authors of this volume to open the problem up for interrogation from different perspectives.
The essays gathered here are by no means the first to venture into this territory for the late medieval and early modern periods.19 Unsurprisingly, given its rich source survival, England has featured prominently in work related to this theme. Anthony Musson, in his important investigation of the growth of legal consciousness in late medieval England, considered the law �in terms of its interaction with […] the political, economic, social and religious spheres’.20 Other studies, especially those concerned with aspects of political culture, have devoted significant attention to the social and cultural use of the law at different social levels.21 Equally, the relationship between law and literature, a subject of study with a long pedigree, is another possible way into the theme and is well developed in an English context.22 More generally, law has not been ignored as part of wider �cultural’ historical approaches to the past, for instance, in work that focuses on visual and material sources.23 And Tom Johnson’s new work on late medieval England focuses expressly on legal culture as a problem which in part entails considering �the ways in which legal meaning was created within everyday life’.24 The opportunity for this book to examine the topic from the perspective of Scotland and its northern neighbours is thus one which enables a broader set of European comparisons and investigations to be advanced.
In doing so we build on a perspective which has proved to be fruitful in other avenues of enquiry in the period.25�Cultures of law’ is, then, a topic which invites questions about how law �works’, what the expectations of people at different status levels were for the �use’ of law, what perceptions of justice and authority were among different groups, what their knowledge of law and procedure was (including options to conduct legal transactions and pursue or resolve conflicts out of court) and of course how different aspects of the law at work came to be recorded in writing, and how that writing itself became part of the work of the law. A brief illustration will help to ground what we mean at the outset. It is concerned with how actions could be initiated in Aberdeen’s town courts and how the language and quantity of recorded detail changed over time. J.D. Ford’s chapter in this volume discusses the Scots term �borgh’ which described, in the early sixteenth century, a document used to initiate a legal action but also the security parties gave to ensure their appearance in court. He notes that in some cases, the first-person assertion given in a written �borgh’ document was copied out into the municipal register.26 However, the ARO now allows the use of borghs to be traced even deeper in time. In fact, it appears that the earliest known occasion on which such a textual inclusion in the registers occurred was in 1476. In that year one Alexander Rede showed the town magistrates �that he had strekit ane borch in this maner videlicet I Alexander Rede strekis ane borgh in your hand Alexander of Chaumer [one of the town sergeands] that Johne Androson and Dauid Kyntor’ ought to fulfil various obligations to Rede. This borgh closed with the formula �and wrangis for thai do it nocht And tharto a borgh in your hand Alexander of Chaumer ane of the offisaris forsaidis’.27 Prior to this entry, the earliest description of the process in the vernacular dates from 1434, when the forespeaker of a merchant of Bruges �strekit a borch’ in the hand of one of Aberdeen’s bailies, that his claim should be heard at a court of superior jurisdiction. The entry recorded the rationale, which was
that the said prufe [offered in the form of witness testimony in favour of his adversary] was of na valu becaus the provarez deponit nocht in fourme of the rolment of the court that the cause was eraste [first] giffin.28
This was not quite the inclusion of a first-person assertion in the register, but it was nevertheless the first appearance in the vernacular of the more reticent description of the same process in Latin which is pervasive among entries from earlier decades.
Parties might �porrexit plegium’ (1409), �extendebat plegium’ (1406) or respond to a �plegium super ipsum inuentum’ by an opponent (1400).29 Even so, in 1505 Latin might still be used to record an action initiated with a �plegium porrectum’ by one party upon another.30All these examples raise questions about how linguistic change in the written record (by the increasing use of the vernacular Scots in addition to Latin) might relate to potential change in underlying procedure.31 For instance, it is unclear whether prior to 1476 in these courts a �borgh’ or �plegium’ was in fact also a written document which recorded a first-person statement. Did such terminology used prior to that date simply record that an oral statement had been made in court to the relevant officer? If so, at what stage, and driven by what relationship between spoken and written language, and between Latin and vernacular language, did these statements come to be written down? When did they first appear as separate documents? In the 1434 example just noted we can see reference made to the �rolment of the court’; a clear sign, at least, of how litigants used the written record for procedural argumentation. It would seem that the expanding use of the written record across the fifteenth century helped to drive such change, although even in 1317 the court roll was �inspected and read out in court’.32 Issues like these touch on the expectations of litigants for the �use’ of law, perceptions of justice and authority (including the authority of language in oral and written forms) and knowledge of law, particularly of procedural law.33 They also emphasise change over time. However, it is important to keep in mind that legal practices might also emphasise continuities, such as may be seen in the use of chirographs to record acts of voluntary justice in the towns of Picardy, especially Douai. It has been argued that this resulted from the fact that the general populace put more trust in chirographs than in the more efficient practice of recording acts in civic registers, the implementation of which was attempted by the town authorities.34
This book also sets out to place its approach to cultures of law within an urban context.35 We are working under the assumption that urban communities shared a legal culture that was different from, though potentially overlapping with, other legal cultures (for example the legal culture of the surrounding region if the overlord was a regional lord, or the legal culture of a wider polity if a town was subject to royal or princely overlordship).36 Many towns, though not all – as the contribution by Miriam Tveit on the Norwegian market towns also makes clear – had a more or less autonomous status, having been granted privileges to administer law to its citizens and, potentially, to be exempt from appearing in certain other courts (see also the contribution by Michael Brown).
In addition, though town and countryside were everywhere inextricably linked, the urban experience, with its focus on commerce and manufacture, with the close cohabitation of its citizens, and (in a medieval context) with its relatively high share of educated and moneyed – that is, elite – men (and some women), was decidedly different from the rural experience. For one, there were many more legal transactions conducted in a town than there were in the countryside. This was partly a result of the higher concentration of people in a town, but also and especially a consequence of the specific activities in which these people were engaged. In addition, towns were regularly the seat of regional courts such as, for example, the sheriff court of Aberdeenshire which sat in Aberdeen. Through ports and markets, moreover, influences from abroad could enter the urban consciousness. As such, urban legal cultures may also have been more open and susceptible to change than those of other local or regional courts. There certainly existed an urban awareness that laws and legal practice might be different elsewhere.37 Towns were also points of jurisdictional intersection. In many of the towns of the Low Countries and the German Empire, a single overarching â€?national’ jurisdiction was not relevant in the middle ages. Instead, there may have been regional dimensions, such as in Flanders and Mecklenburg; the strong influence of a Teutonic overlord, like in Prussia and Livonia; and still other towns were (almost) completely autonomous, like Lübeck and the Dutch town of Kampen. As Musson has stated with regard to England, these jurisdictions may have produced and utilised â€?distinct types of law, sometimes competing, occasionally overlapping, invariably invoking different traditions, jurisdictions and modes of operation’.38Another aspect that was specific to the urban experience is that the elite itself was involved in both the promulgation of at least some of its laws and the administration of law, while at the same time being the group that in all probability used the courts most often of all in order to pursue claims, to resolve conflicts or to confirm transactions. As such, it might occur that a person ended up before a court, in which they might also have a function as an official, having gone against a regulation that they themselves had helped create.39 Overall, members of the urban elite might be highly legally active, even though many of them, at least in the period before c. 1500, did not have a legal education (see the contribution by Andrew Simpson). On the other hand, they might have had relevant experience, which was potentially more valuable, especially when it came to matters of trade and shipping (see the contribution by J.D. Ford). In addition, urban inhabitants on the whole were involved in some sort of legal activity on a more or less regular basis: buying, selling, exchanging, settling disputes, contracting work or marriage, or getting into trouble. These activities were not necessarily conducted in official spaces, but could in principle take place almost anywhere in town, provided there were witnesses (see the contribution by Edda Frankot).
A recent examination of medieval urban culture by Andrew Brown and Jan Dumolyn has taken care to underscore the diversity of towns and cities, that not all were of the same size and status, and that not all regions exhibited similar levels of urbanisation. They argue that urban culture may be defined by its hybridity, amalgamating and adapting various ecclesiastical, noble, princely and rural cultures to urban spaces, and urban forms of social and political interaction.40 In line with the observation made earlier, political culture has been the subject of a tremendous amount of recent work on late medieval towns.41 Law and justice in towns have long flourished as an area of historical investigation, one which remains particularly well served in the Italian context, for example in treatments of Bologna and Florence.42 Nevertheless, towns have had relatively little said about them with an explicit focus on legal culture.43 Of signal importance as a groundbreaking study of urban legal culture is Daniel Smail’s exploration of the language and social structures of emotion, and the publicity of this phenomenon which the tools of the law provided to litigants in medieval Marseille.44 Relevant too is work on the Hanseatic region and the role of legal rules in urban society.45 The most explicit and recent treatment, however, is Tom Johnson’s investigation of a �local culture of law’ in the English city of Hereford. Johnson argues that the particular �institutional density’ of towns helped to intensify government, such that use of various urban law courts drew inhabitants into relations between authorities. Moreover, he treats urban legal culture as primarily concerned with the �spatial ordering’ of social relations.46 These points are particularly pertinent to several of the contributions in this book. What the present contributors share is an idea that the study of the late medieval and early modern urban experience adds significantly to the understanding of how law works in society, concerning especially expectations of law, legal knowledge and expertise, and the use of law at different status levels and across different linguistic contexts. What follows by way of illustration of an aspect of legal culture from a northern European town is a short study of practices associated with appeal against judgements in Scotland.