Ages, who based their law codes on Continental judicial patterns? In the nineteenth
century and more or less up to the middle of the twentieth century, the common stance
held, in principle, to the former, whereas today there seems to be solid consensus that
the Scandinavian provincial laws mirrored medieval judicial ideology, with a solid
foundation in Continental law and jurisprudence. Today researchers are – still – very
much occupied with comparing medieval Scandinavian laws with medieval Continental
(and Roman and Canon) law, trying to prove Continental influence on Scandinavian
laws.
A consequence is that in recent decades a focus has been on the Church laws (ON
Kristinn réttr, OSw Kirkiu balker) within the provincial laws, rules of law which, of
course, have a background in Canon and Continental law. In recent times there have
been few analyses of other parts of the law, such as the behaviour between neighbours in
hamlets (Viþerboa balker), the rural system and maintenance of arable fields and meadows
(Iorþar balker) etc. (one exception is Hoff 1997 , 2006 ). In these cases it would not seem
improbable that old, domestic customs are to be found.
With the massive reaction from the 1950 s and onwards against earlier sloppy and
uncritical views on the medieval Scandinavian laws as codified oral law, mirroring a
prehistoric legal society – and more links between Scandinavian provincial laws and
Continental law will be found, no doubt – we have today a situation when it is time to
turn the whole question around and ask if there are any early intrusions or relics in the
laws that have been taken over from a customary, oral legal society.
The historian Elsa Sjöholm ( 1988 ) has been the most persistent in declaring that the
provincial laws of Scandinavia mirror medieval law, and that it is not possible to trace
earlier, prehistoric law. Sjöholm’s negative stance for finding early traces in the medieval
laws has probably been important for the lack of interest in the provincial laws during
the past decades. However, a few have continued to discuss law and legal practice in pre-
medieval Scandinavia, first and foremost the Danish legal historian Ole Fenger ( 1971 ,
1983 , 1987 , 1991 ), but also for example Peter Foote ( 1987 ), Bo Ruthström ( 1988 ),
Martina Stein-Wilkeshuis ( 1982 , 1986 , 1991 , 1993 , 1994 , 1998 ), Anette Hoff ( 1997 ,
2006 ), Birgit Sawyer ( 1997 ) and Stefan Brink ( 1996 , 2003 a); cf. also Sverre Bagge
( 1989 , 2001 ), Jan Ragnar Hagland and Jørn Sandnes ( 1994 : ix ff.) and Magnus Rindal
( 1994 ). Recently there has been a revival in interest in medieval laws around a research
group in Copenhagen (Ditlev Tamm, Michael Gelting, Helle Vogt, Per Andersen;
cf. Tamm and Vogt 2005 ).
TRACES OF PREHISTORIC LEGAL CUSTOMS
IN ICELANDIC SAGAS?In the Icelandic collection of sagas, Heimskringla, we have the famous story told by
Snorri Sturluson about Thorgny, a lawman among the Svear and at their assembly in
Uppsala (Óláfs saga ins helga ch. 78 ), in a sub-province in Uppland. His forefathers had
been lawmen for generations, according to Snorri. Thorgny was known as a rich,
important and wise man and he had a large military escort (hirð). In the same episode
Snorri gives us a description of an assembly meeting at the Uppsala þing (ch. 80 ): ‘On
the first day, when the thing was opened, king Olafr sat in his chair and his hirð around
him. On the other side of the thing site sat Ro ̨gnvaldr jarl (from Västergötland) and
Thorgny in a chair, and in front of them sat the hirð of the jarl and the housecarls of
–– chapter 2 : Law and society––