Download Property Law

Second workshop on the
Encounter of Legal Cultures in the Nordic Realms 1100-1400:
Property Law
The encounter of legal cultures in the Nordic realms was at its most intense in the twelfth to
fourteenth centuries. The reason is that familiar and traditional regional laws, statutes for the
realms made by monarchs and Church, and the learned law that was analysed, systematized
and professionalized through the university study of Roman and canon law, all played
simultaneously a role in the legal life and consciousness in the Nordic realms. By the
encounter of these three different sets of law, representing different legal cultures,
Nordic law in the High Middle Ages was reshaped.
Abstracts
Orazio Condorelli: On the role of the “ius decretalium” in the spreading of the culture
of the ius commune in Europe. Studies around a decretal by Innocent III addressed to
the Archbishop of Lund (Ex litteris, X.1.4.2, 1198)
1. Premise, to define an outlook
The idea that the rediscovered Justinian’s law and Canon Law formed European juridica
civilisation from the XII Century onwards is the basis of the scientific programme of the
workshop which sees us together here in Bergen. Likewise the idea is shared that the real
faces of Medieval European law are the fruit of the meeting and fusion between ius
commune (Roman and canon Law) with the laws of different particular institutions (iura
propria: local customs, city statutes, royal laws, etc.). These are articulated processes,
dominated by complex movements which entail actions and reactions. In the long run, these
processes model and sometimes transform the normative content of local laws; moreover,
linked to this first aspect, the application of these same local laws presupposes an
interpretation coming from a class of jurists educated in the culture of the ius commune.
From another point of view, the ius commune is defined as beginning with the Justinian’s
Corpus Iuris Civilis and the Church’s compilations; nonetheless, in the doctrine and in
Nordic Centre for Medieval Studies (NCMS), University of Bergen, P.O.BOX 7805, N-5020 BERGEN
Tel: (+47) 55 58 80 85 E-mail: [email protected], URL: http://www.uib.no/ncms
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practice it conforms to the experience of Medieval society, absorbing into its system the laws
of the particular institutions and those facts disciplined by these laws. New facts, or at least
facts extraneous to the panorama of the ius commune and at times incompatible with this,
find space in a juridical system which constitutes an original creation of the European Middle
Ages.
It is my aim to illustrate these relationships beginning with some sources which regard the
juridical history of the Nordic countries in the Middle Ages, with particular reference to
property law and inheritance law.
2. The decretal “Ex litteris” of Innocent III: the Germanic “scotatio” and the doctrine of
possession. The figure of the scotatio is absorbed into the “system of the ius commune”.
3. “Ius decretalium” and the development of inheritance law between Denmark and Sweden
(XII-XIII Centuries).
The analysis offers some elements to evaluate the role of canon law in the definition of the
law of successions in Nordic countries, in particular in Denmark and Sweden. It is probable
that in some cases canon law inspired the actual contents of local laws, as was thought had
happened for the Book of inheritance. But, beyond the question of the origins of local laws, it
seems evident to me that canonical law represents a thread which runs through the textile of
juridical practice: a thread which undeniably contributes to giving consistency, form and
colour to the textile itself. The ius decretalium sometimes complies with the process of
configuration of the norms of inheritance law: in this view the Gregory IX’s decretal In Litteris
(1230) is significant because it approved the Swedish customary law that regards the limit
within which pious bequests had to be contained. Other times the ius decretalium firmly
opposed such contrasting customs with fundamental principles of the ius commune: this is
the case of the decretals which condemn the Swedish custom which required the consensus
of the heirs for the validity of pro anima dispositions.
More in general, it seems to me that the ius decretalium had a propulsive role in the
spreading of the culture of the ius commune: a ius commune which – from its origins and
above all through the work of the canonists – takes the form of a tangled web of Roman law
and canon law (utrumque ius). The local ecclesiastical hierarchies were called to put the
norms elaborated in the Papal Curia into practice. Through the ecclesiastical jurisdiction the
ius decretalium, with the culture which it expresses and of which it is in turn the expression,
spread out into the juridical experience with its moral principles and values, with its juridical
categories and with the operative tools suitable for single cases. Basically, the Church had
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an interest in promoting the spread of pious bequests, and therefore of guaranteeing their
effectiveness and stability. There were spiritual reasons linked to saving the souls of those
devisors, and material reasons, because the pro anima dispositions were a source of wealth
for the ecclesiastical patrimony. The effectiveness and stability of such dispositions
depended primarily on respect for the ultima voluntas of the devisor. For this ultima voluntas
the Church, in conformity with the principles of the ius commune, claims libertas. This
freedom, however, meets certain limitations: in natural law (the respect of the portion debita
iure naturae, to recall the words of Stephanus of Tournai), and in human laws which
underline the need, already present in natural law, that a parent not overlook his or her
children or spouse. The formulation of the ultima voluntas uses a tool of patrimonial
disposition which, in the juridical tradition of ius commune, is the testamentum.
4. Aspects of the practice: notes on two testaments (1201, 1203).
5. The importance of doctrine: the “Liber legis Scaniae” of Anders Sunesøn.
The Liber Legis Scaniae is the fruit of a learned reading of the Scania’s own legislation. The
juridical culture of the author, based on the ius commune (Roman and canon law),
permeates more or less intensely the whole work. He uses the categories and the doctrines
of the ius comune to interpretate and rewrite the Lex Scaniae. Analysis of two cases
regarding the scotatio and the pro anima dispositions.
Tore Iversen: Fom insecure to king-secure land lease
In my presentation I shall be looking into the concept of land lease connected to the concept
of land property in the three Norwegian High Medieval laws. The laws are the two regional
laws, the Gulathing Law (G) from the last part of the 12th and the Frostathing Law (F) from
the first part of the 13th Ch. as well as the National Law (N) for the entire kingdom from 1272.
My focus shall be on the development of the concepts. My main thesis is that the tenants´
possession of rented land moved from being a legally precarious land tenancy in the
Gulathing Law (G) to a more secure, which is proprietary protected land tenancy in the
Frostathing Law (F), and especially in the National Law (L). I will first give a historiographical
background for the very sparse treatment of these central concepts and their medieval
development by Norwegian historians and law historians from the 19th century onward.
Conclusions: There was a clear development of both land property and land leasing.
Earlier Norwegian historians’ notion of a constant and absolute conception of property is not
tenable. The first law, G, does not have an absolute, but a broad and vague, concept of
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property with no clear separation between having the right to rule and the right to own. Also
G has no firm and regulated system of concepts concerning land lease. The two 13th Ch.
laws demonstrate firm concepts of land property and land lease fixed by substantive
concepts and structured by contrasting ones. Above all the regulations on land tenancy
demonstrate that the right of possession has grown increasingly, and especially in the
National Law where there is a tendency of a legal approximation between the right to own
and the right to use land. Through dominium utile the tenants’ right of possession here has
become a more firmly regulated social concern, shown in the state tax as a base for the
kingdom. Since the dominium utile was an integrated part what is labelled “feudal”
conceptions of gradual property, we have to conclude that the Norwegian agrarian society
was not without “feudal” conceptions at all in the High Medieval period.
Thomas Lindkvist: Peasants and Property. The provincial law codes of Sweden
The property and dispositional rights of the medieval peasantry is discussed, mainly from the
provincial law codes of Sweden. The rights of the tenant peasants, landbor, will be
discussed, the terms of leases and their duties. The differences between the laws and the
development during the later middle ages will be discussed.
Differences between different categories of peasants will be observed, as well as the concept
of bonde.
The different rules concerning the dispositional rights of the tenant peasants is regarded as a
form of codification of established customs. It was a variant of a general pattern where
different dispositional rights of peasants were means of control, to secure the payment of fee
of different kinds.
Sigbjørn Sønnesyn: Thomas Aquinas on private ownership
Within the differing traditions from which medieval thinkers composed their notions of private
ownership there were a number of potential conflicts and tensions. The concept of justice
which the Fathers of the Church adopted from classical thought was summed up in the tag
‘suum cuique tribuere’ – justice meant to give to each what was his or her due. This had
worked as a distributive principle of material goods and social and political power in Roman
society. But when combined with a Neo-Platonist aversion to matter and material things, and
a Biblical doctrine that every created thing belonged to God as their Creator – principles
which were also fundamental to medieval thought – the idea of private ownership could
become very problematic indeed. My paper looks in detail at Thomas Aquinas’ discussion of
private ownership, seen in the context of his general discussion of justice within which the
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more specific accounts of private ownership are found. Thomas provides us with one way of
resolving the tensions that the notion of private ownership could produce within the
philosophical traditions of the Middle Ages.
Jørn Øyrehagen Sunde: Tradition, reception and innovation concerning fixed time
periods as a criteria for the acquisition and loss of rights according to Norwegian law
ca. 1200 till 1274
Law changes over time slowly. It changes because its first and main objective is not to be
stabile, but to promote stabilisation in society by settling conflicts. To be able to meet this
objective law has to change with the changing needs of conflict settlement in society. In a
historic perspective these changes are slow. This does not mean that abrupt changes do not
take place in law, which it had done over and over again. The point is only that abrupt
changes are not followed by abrupt changes in a chain of sudden changes, but rather
followed by stabile periods before new abrupt changes in law take place. That is why law,
over time, changes slowly.
The changes in law take place on the basis of experience rather than of experiment.
Since the objective of law is to settle conflicts to stabilize society, it has to do so in a
foreseeable manner. In this context it is sufficient to operate with only to main categories:
domestic and foreign experience. Domestic experience is mainly made up of local customs,
the legal practice of local courts, lectures in law, legal literature, regional laws and existing
laws. Foreign experience includes especially lectures in law, legal literature and laws –
especially laws of universal character.
Both categories of experience might be turned into law in action through three main
channels: Practice in courts, legal teaching (lectures and literature) and laws. To keep the
two transformation processes from each other, it might be asserted that domestic sources of
experience are turned into law in action by adoption, while the foreign sources of experience
are transformed by reception. Adoption and reception of law are the very motors in the, over
time, slow changes in law. They are equally frequent, natural and forceful, but each might at
different time periods, in different places or in different fields of law dominate the other.
The adopted or recepted legal material has to pass throug a legal cultural covering
the terretory they are to be applied in. The main working factors in such a filter are the ideas
of and expectations to law in the society the receipted material will be turned into law in
action. The nature of the ideas of and expectations to law will vary from society to society,
over time and from field of law to field of law. By passing through a legal cultural filter the
legal material is altered. This alteration might be seen as vulgarisation or adjustment. And
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when it has passed through it will take a place in the legal cultur, and by this the legal cultur
itself will be altered.
This process I will try to display and examplify in my paper by studying fixed time
limits as a criteria for the acquisition and loss of rights according to Norwegian law ca. 1200
till 1274. Such fixed time limits were probably received in the Norwegian provincial codes
from Roman and canon law in the early 1200s. They were again altered as all four provincial
codes were succeeded by the Norwegian Code of the Realm in 1274, and partly again
through the legal practice in the 14th and 15th century. But the introduction of the time limits
also changed the notion of authorative understanding of time in the Norwegian legal culture.
Miriam Tveit: Legal principles of inheritance in medieval Western Europe –
development according to regional or structural influences?
The presentation will deal with possible influences on medieval inheritance laws, and
possible problems relating to how to assess such influences. Through some highly different
examples of change and diversion in inheritance laws from medieval Europe I will address
certain questions raised when examining the sources. These examples are the Lombard
introduction of right to inherit property for daughters in 713, the particular principles of
inheritance in some 13th and 14th century English boroughs, and finally, the adjustments of
principles of inheritance in the Norwegian Law of the Realm from 1274.
Principles of inheritance together with the
strategies of marriage represent for many scholars the key factors that define a society’s
structure. It has been demonstrated how different systems of inheritance made the different
participants in the medieval society act accordingly to secure position and wealth. Did these
participants also determine which principles that would be recorded by legislators? One
would think of the laws on inheritance as an aspect of the written law which most
represented factors of local conditions and structures, either by customary traditions, political
power struggles within the jurisdiction or particular needs of the legal subjects (often linked to
the aristocracy). Still, principles of inheritance would possibly be object of influence from
neighbouring regions, outside influences or general intellectual and ideological currents in
medieval Europe. Would laws on inheritance in similar manner as other institutions be object
of legal transmission?
The presentation will raise many questions to the
subject of influence in laws on inheritance, and provide few answers. Still I hope to discuss
some of my preliminary thoughts with you in the workshop.
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Dirk Heirbaut: Flemish medieval poperty law
The word feudalism has many meanings, but no one can deny its central concept is the fief.
After all, the word feudalism itself is derived from feodum, the Latin word for fief. The
breakthrough of feudalism around 1000 led to several changes in Flanders, the most
important one being the triumph of the heritable fee. By the beginning of the eleventh century
heritability of fiefs was accepted in Flanders. This was dramatically to change the character
of feudalism. From a relationship between a man and his lord, it evolved into a relationship
between a family and a lord, and the family’s interests, not those of the lord, would shape the
feudal law of inheritance in Flanders. Originally, the corner-stone of the family’s policy was
an absolute male primogeniture. The eldest son, excluding the other relatives, inherited all
the fiefs, without any exception. The principle of the concentration of the feudal inheritance
was so strong that it applied even to daughters or collaterals, who could by the eleventh
century inherit fiefs in the absence of closer relatives. Through the passage of time, absolute
male primogeniture was bound to destroy itself. The eldest son received all the fiefs,
whereas he took an equal share with his siblings in the non-feudal goods. As a result, the
eldest son had less non-feudal goods to give to his younger children than his father, his
eldest son would have even less, and so on. By the middle of the twelfth century the situation
of the younger children had become so precarious that feudal law had to change.
Thenceforward the eldest son was charged with providing for his siblings. He could do so by
giving them a share in the fiefs or by any other means possible. In the last quarter of the
thirteenth century new rules on the rights of the younger children appear. Unlike the vague
norm they replaced, these new rules circumscribe very precisely how the eldest son has to
provide for his siblings. As such the new rules reveal a tendency towards a more concrete
and less vague legal system. They are also linked to the splintering of Flemish feudal law at
the end of the thirteenth century. Even though it had to undergo some modifications,
concentration of the inheritance remained the central principle of Flemish feudal law.
Everything else had to give way to it. A will, for example, could not be used to deviate from
the customary rules of inheritance. Even the lord was secondary to the family. The lord, not
the heir, was seized at the death of the latter’s ancestor; and the heir had to ask the lord to
grant the fief anew. The lord had to do so, but he was entitled to a relief. However, this tax
had to be modest, so that the heir would have no financial difficulties paying it. The
concentration of the feudal inheritance in the hands of the eldest son could clash with the
natural willingness of a husband to bestow a gift on his wife. Originally, that was not much of
a problem, as a man still had non-feudal goods that he could give his wife in full property.
When fiefs became predominant, the interests of the family and those of the wife were
reconciled by the institution of the customary dower. From the 1160’s on a widow had a right
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to the income of one half of her late husband’s fiefs, but only for as long as she lived. Thus,
the family would only temporarily be inconvenienced by an outsider. Like the rules on
inheritance and matrimonial property, in Flanders the law on transactions concerning fiefs
served the goals of the family. The potential heirs of the fief, after 1200 the closest heir, had
to give their permission for any transaction concerning the fief. By the second half of the
twelfth century they no longer needed to intervene when the vassal had to sell his fief for
financial reasons. These might consist of poverty, but also of a need for cash to finance a
purchase. Yet, even in this case, the fief was not always lost to the family. Before 1200 the
relatives of a vassal had a right of pre-emption to any patrimonial fief he wanted to sell.
Around 1200 this was replaced by a right of substitution to any buyer after the transfer of the
fief. Whatever the role of others, the leading part in the real aspect of Flemish feudalism was
reserved for the family. The eldest son inherits all the fiefs and all other legal rules
concerning fiefs are determined by that. Nothing is allowed to hinder the concentration of the
fiefs in the hands of the eldest son. Real feudalism in Flanders was no more than an
instrument of the family. Thus, whereas feudalism is in theory about vassals, lords and fiefs,
in Flanders during the High Middle Ages it was about fiefs and families.
Helle L. m. Sigh: Constructing children’s property rights in the Danish medieval laws
and the meaning of paternity
This paper reflects a not yet completed investigation of Danish medieval laws and has focus
on the provincial laws. What I am going to present is thus a preliminary examination of the
construction of legitimacy and illegitimacy in the Danish legal discourses.
The question about legitimacy/illegitimacy was a difficult area of Danish law, touching on
important areas of social and legal life; namely inheritance. This paper investigates how the
laws looked on children and fashioned different legal identities or status personae, and the
determination of the effect of those differences in relation to inheritance. It is my thesis that a
child was marked with the relationship at play in conception and it was the father’s identity
that affected the lack of legal personhood of the illegitimate. But the influence of canon law
made illegitimacy a matter of not only paternity but also a matter of maternity.
Lars Ivar Hansen: Strategies of inheritance and social reproduction among the
freeholding peasants of Telemark, Norway
In this paper I will discuss the relationships which the peasants in some interior parts of
Southern Norway had to landed property in general, and in particular to the farms that they
cultivated themselves. I will also focus upon what kind of strategies for social reproduction
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that can be deduced from the observed patterns. The valley to be presented in this paper, is
called Fyresdal and is situated in the South-western part of Telemark county.
Concerning property distribution in Medieval times and Early Modern times, the
general picture in Norway and the Nordic countries, was that the land primarily was held by
the church (21 – 40 percent), the nobility (20 – 38 percent) and the monarchies (5 – 15
percent), whereas the peasants in general may be said to own between 12 percent
(Denmark) and up to 50 percent (Sweden). Contrary to this general picture, 90 – 96 percent
of the land could be owned by the local peasants in those interior areas that are being
focused here.
However, due to an institutional arrangement that may be rendered as the “rent
ownership sysem” (Holmsen), these peasants did not necessarily own the farms that they
resided on and cultivated, at least not fully, in their totality. In stead, their property was
distributed in the form of small property shares among several farms all over the valley and in
some of the neighbouring valleys. – At any given moment of time, an analysis of the property
structure and ownership relations attached to each farm, will demonstrate clearly how the
farms – as property objects – appear as “nodes” or “meeting places” for networks of
kindreds, that to greater or lesser degree were tied together by inheritance and marriage
bonds. For each individual farm, various kinds of detailed and specified property relations are
displayed, which had been established by such mechanisms as inheritance, marriage,
exchange, or by buying and selling, and even mortgaging.
Taking this as my point of departure, I will discuss how this social field – constituted by
kinship relations, inheritance law, marriages and property taken together – offered the
peasant means (that is: rules, norms and constrictions, which just as well functioned as
resources and capabilites) for employing their own strategies for social reproduction, and
what results that led to. – In these efforts, the peasants seem to have made extensive use of
1) The bilateral kinship system,
2) The primarily bilateral inheritance system based on Magnus the Lawmender’s
National Law Code for Norway ( - though with certain patrilineal elements, i.a. a
priority given to male heirs at any level, in securing them double as great inheritance
shares, as their female counterparts)
3) The “rent ownership system”, where proportional shares of annual rent obligations
could serve as an inheritance form for relative/inheritors who did not have the rank to
be allotted the main residence and thereby providing them future income from
stipulated inheritance shares in the farm, and thus avoiding it from being split up into
concrete, divided portions.
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Agnes S. Arnórsdóttir: Canon law and marital property
When the Church gained jurisdiction over marriage, and the Church courts became
established in every part of Western Christianity, the process of change in marital life
according to canon law had just started. Regulation of marriage not only concerned the
question of mutual consent of the couple, but also how a particular couple would share
and rule over their property. It is change in property arrangement of marriage I shall
discuss here today. Throughout the married life of a couple, and during the period after
one of the partners had died, it was possible to maintain the household through the use
of joint ownership, or through the use of the wife’s separate ownership, strengthened
by some of the marital gift. Remarriage was deemed legal, although considered sinful.
It had not been a problem under older marriage rules, and in practice it continued to be
common to marry a widow in the Late Middle Ages. My hypothesis is that canon law
did, however, influence the economical situation of a widow or a widower in the late
middle Ages. Court cases from fifteenth century Iceland show that it was for instance
seen as important to maintain the property from a man’s first marriage as separate to
that from his second marriage. Here I want to discuss how the marital economy in both
the meaning of how to share and rule over property during marriage, became directly
affected by canon law. And secondly, I shall discuss the change in the gift giving
system through the Christianization of marriage.
Jørn Øyrehagen Sunde: Tradition, reception and innovation concerning fixed time
periods as a criteria for the acquisition and loss of rights according to Norwegian law
ca. 1200 till 1274
Law changes over time slowly. It changes because its first and main objective is not to be
stabile, but to promote stabilisation in society by settling conflicts. To be able to meet this
objective law has to change with the changing needs of conflict settlement in society. In a
historic perspective these changes are slow. This does not mean that abrupt changes do not
take place in law, which it had done over and over again. The point is only that abrupt
changes are not followed by abrupt changes in a chain of sudden changes, but rather
followed by stabile periods before new abrupt changes in law take place. That is why law,
over time, changes slowly.
The changes in law take place on the basis of experience rather than of experiment.
Since the objective of law is to settle conflicts to stabilize society, it has to do so in a
foreseeable manner. In this context it is sufficient to operate with only to main categories:
domestic and foreign experience. Domestic experience is mainly made up of local customs,
the legal practice of local courts, lectures in law, legal literature, regional laws and existing
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laws. Foreign experience includes especially lectures in law, legal literature and laws –
especially laws of universal character.
Both categories of experience might be turned into law in action through three main
channels: Practice in courts, legal teaching (lectures and literature) and laws. To keep the
two transformation processes from each other, it might be asserted that domestic sources of
experience are turned into law in action by adoption, while the foreign sources of experience
are transformed by reception. Adoption and reception of law are the very motors in the, over
time, slow changes in law. They are equally frequent, natural and forceful, but each might at
different time periods, in different places or in different fields of law dominate the other.
The adopted or recepted legal material has to pass throug a legal cultural covering
the terretory they are to be applied in. The main working factors in such a filter are the ideas
of and expectations to law in the society the receipted material will be turned into law in
action. The nature of the ideas of and expectations to law will vary from society to society,
over time and from field of law to field of law. By passing through a legal cultural filter the
legal material is altered. This alteration might be seen as vulgarisation or adjustment. And
when it has passed through it will take a place in the legal cultur, and by this the legal cultur
itself will be altered.
This process I will try to display and examplify in my paper by studying fixed time
limits as a criteria for the acquisition and loss of rights according to Norwegian law ca. 1200
till 1274. Such fixed time limits were probably received in the Norwegian provincial codes
from Roman and canon law in the early 1200s. They were again altered as all four provincial
codes were succeeded by the Norwegian Code of the Realm in 1274, and partly again
through the legal practice in the 14th and 15th century. But the introduction of the time limits
also changed the notion of authorative understanding of time in the Norwegian legal culture.