By Andrew R C Simpson, Professor in Scots Private Law, School of Law, University of Aberdeen
Between 20th and 21st August 2019, in the wonderful setting of the Hardangerfjord in Norway, a group of scholars gathered to compare aspects of Norwegian and Scottish history and legal history. The seminar was organised by Professor Jørn Sunde, and generously supported by the Barony Rosendal and the Stiftinga Hardanger og Voss Museum. It approached comparison of the histories of Norway and Scotland by asking speakers to give papers on historical phenomena or themes that seemed – prima facie – to be common to both nations. For example, Dauvit Broun (Glasgow) and Erik Opsahl (Trondheim) were asked to speak on the Treaty of Perth of 1266, which was agreed between Norway and Scotland in the wake of conflict over the Hebrides. Other themes included the development of administrative structures in Scotland and Norway during the thirteenth and fourteenth centuries; the development of apparently common town laws across both kingdoms; and migration across the North Sea and the regulation of trade (particularly in timber) between the two nations during the early modern period. The papers presented constituted a sufficiently illuminating exercise in comparative legal history as to merit publication in a volume. The result is the book Comparative Perspectives in Norwegian Legal History, Trade and Seafaring, 1200-1800, which is shortly to be published by Edinburgh University Press in the Edinburgh Studies in Law series.
The contributions to the volume are all united by two broad methodological assumptions. First, they are all concerned with the study of the past for its own sake. For example, when studying legal texts, the aim of the contributors is to recover what the texts might have meant to contemporary audiences. Second, they are all concerned with national histories. Each contributor writes primarily about the history of Norway or Scotland; this reflects the original structure of the seminar in the Hardangerfjord in 2019. Nevertheless, the assumption that runs through the whole volume is that the medieval and early modern legal histories of both countries may receive some light from the comparison. Comparison can make historians aware of the possibility that things could have been done differently in individual jurisdictions. For example, if law was changed in one way to address a particular problem in one jurisdiction, and in a different way to deal with the same problem in another, then one might be prompted to ask which factors might have caused the different approaches. Consider a more concrete example, which is addressed in this volume. Thirteenth-century Norway produced a text known as the Code of the Realm (Landsloven); thirteenth-century Scotland did not, at a time when there were significant contacts between the two realms. Why is that so? The result of asking such questions can be that one looks again at national legal histories with fresh eyes, all to the end of better understanding the past on its own terms. Put in more abstract terms, comparative history – as with all comparison – depends upon identifying comparators that are sufficiently similar, and sufficiently different, so that the act of comparison generates useful information (see C. Valcke, Comparing Law: Comparative Law as Reconstruction of Collective Commitments (CUP 2016) 61-70). If one finds national legal histories with genuine points of contact or similarities, then the useful information that results may take the form of reflection on what caused particularly distinctive developments in individual jurisdictions. The book therefore illustrates some themes pursued in the growing literature on the method of comparative legal history; for detailed studies of these methodological issues, see, e.g. J. Hudson and W. Eves, ‘Introduction: Situating, Researching and Writing Comparative Legal History’ in W. Eves, J. Hudson, I. Ivarsen and S. B. White (eds), Common Law, Civil Law, and Colonial Law: Essays in Comparative Legal History from the Twelfth to the Twentieth Centuries (CUP 2021) 1 and O. Moréteau, A. Masferrer and K. Modéer, Comparative Legal History (Elgar 2019).
In the comparative historical exercise pursued in Comparative Perspectives on Norwegian and Scottish Legal History, Trade and Seafaring, one theme – or recurrent question – that emerges relates to what past generations actually meant by “law”. It is trite to acknowledge that the historian needs to be mindful of the different ways in which the word could be used over the centuries. Illuminating remarks on the subject are made by, for example, David Ibbetson, in his article ‘What is Legal History a History of?’ 6 (2003) Law and History Review 33-40, and these are explored further in the introduction to this volume. One of the things that the volume underlines, time and again, is that understanding the historical meaning of the term “law”, and indeed the meaning of individual “laws”, depends in large measure upon identifying and understanding the minds within which ideas and expectations of the law were made operational. An example drawn from the book will illustrate the point.
In both Scotland and Norway, the idea of law as a symbol of political unity was negotiated with elites. However, in each realm the manner and institutional structures within which this negotiation took place were different, and this had consequences for the manner in which the idea of legal unity was articulated. For instance, in both Norway and Scotland there developed an idea that the towns possessed their own common laws. In Norway, this was articulated in the Code of the Towns (Byloven) of 1276, and in Scotland, the idea was perhaps most powerfully stated in the textual Leges Quatuor Burgorum (also known as the Leges Burgorum Scocie), which was definitely taking shape from the mid-thirteenth century onwards. However, there arise difficult questions in relation to both jurisdictions when one thinks about the extent to which the idea of a unitary law of the towns was actually a reality. In Scotland, the concept of a unitary set of “laws of the burghs of Scotland” seems to have been known in legal practice from the 1310s at the latest. However, the relationship between the contents of those laws as applied in the courts and the textual Leges Burgorum Scocie is far from simple. The best explanation for the development of the idea of a unitary set of burgh laws for the realm seems to be that it emerged through the work of a royal officer known as the chamberlain. The chamberlain had a supervisory role in the enforcement of law and order across the realm, and successive chamberlains and their clerks may have made the idea of a common law of the burghs of Scotland something of a reality. They, in turn, may have gradually enhanced the role of the text known as the Leges Burgorum Scocie as a touchstone for the contents of the laws of the burghs of the realm. In Norway, by contrast, there was certainly a moment in the 1270s when a common set of Norwegian town laws were articulated, and one might think this makes it easier to identify the substantive content of those laws, at least in the late-thirteenth century. However, while there is evidence of the common application of the town laws in practice, there is also evidence of the negotiation of the meaning of those laws with different communities in individual disputes. Precisely who was responsible for that process of negotiation and application of the law must be understood before the contemporary meaning(s) of the Norwegian laws can be recovered. One needs to understand these aspects of Norwegian and Scottish legal cultures before one can understand the historical meaning of the laws they produced; and only then can one engage in meaningful historical comparison of those laws.
The results of this preliminary comparison of the legal histories of Norway and Scotland are promising. They lay the foundations for a properly historical appreciation of the similarities and differences between the procedural and substantive laws of the two countries. The dialogue has also opened up other potential fields for comparison, for example in understanding developments in conciliar government in both Norway and Scotland prior to the Reformation. Of course, rigorous understanding of the legal cultures of Norway and Scotland in the medieval and early modern periods enables one to make better sense of the interaction of those two legal cultures in Orkney and in Shetland during the fifteenth and sixteenth centuries. More importantly, this volume contributes to the literature on the practice of comparative legal history, and its potentially powerful role in sharpening and deepening understanding of national legal histories.