The Borgarthing Law and the Eidsivathing Law

The Laws of Eastern Norway

Lisa Collinson, Torgeir Landro, Bertil Nilsson, Lisa Collinson, Torgeir Landro, Bertil Nilsson

• Publisher: Routledge
• Year: 2020
• Print ISBN:
  9780367646448
• eBook ISBN:
  9781000287462
• Topic: History
• Subtopic: History of Architecture
• Index: History

The Borgarthing Law and the Eidsivathing Law is dedicated to two closely linked medieval laws which were intended to cover adjacent legal provinces in eastern Norway, around and beyond the modern capital, Oslo.

The core of this book consists of new translations of the two laws, based on the recent editions and translations into modern Norwegian by Eyvind Fjeld Halvorsen and Magnus Rindal. Individual rules cover subjects such as Church rites, prohibitions, property, and payments, and shed light on medieval ideas relating to matters as diverse as disability, sexual relations, witchcraft, and forbidden foods. The volume contains a general introduction by Torgeir Landro and Bertil Nilsson, in addition to a translator's introduction by Lisa Collinson, summarizing in English some of the information on manuscripts and relevant linguistic studies outlined by Halvorsen and Rindal. The translated texts in English are also supplemented by footnotes, supplying key readings from the original, in some cases with significant variants from relevant manuscripts.

With a commentary on the individual chapters after each translation, drawing on recent scholarship on medieval law, Church history, and other relevant historical fields, this book is an ideal resource for students and scholars of medieval Norwegian legal history.

Part IGeneral introduction

Torgeir Landro and Bertil Nilsson

Thing organization and the Church

At the turn of the first millennium, Norway was divided into four legal provinces, each called a lǫg or lag (‘legal district’, ‘law-area’). Each lǫg had its own law, jurisdiction, and assembly (þing, anglicized as ‘thing’). The Borgarthing Law and the Eidsivathing Law were two of the four provincial laws of Norway and were valid in the southeastern parts of Norway. They are amongst the earliest extant written records from the kingdom as a whole. The kristinnréttr (‘Church Law Section’) was but one of several balkar (‘books’ or ‘sections’) of law material contained within the laws. The kristinnréttr was also called the kristinsdómsbalkr, and contained Christian legal material, written down in the wake of the early eleventh-century conversion of Norway (Rindal 2004).

The contents of the Church Law Sections include regulations relating to baptism rituals; building and maintenance of churches and churchyards; tithes; burial customs; the liturgical year, with its days of feasting or fasting; marriage regulations; holiday regulations; dietary regulations; and prohibitions against heathen customs. In general, the provisions are quite typical for a newly converted kingdom with a rudimentary Church organization; the initiation rites of the new religion are explained, and it is made clear that churches and churchyards must be maintained, and that heathen customs must cease.

The geographical boundaries of Church districts (dioceses) were established soon after the conversion. The newly established Church was first organized under the archbishopric of Hamburg-Bremen, and from 1103 or 1104 under the archbishopric of Lund (Denmark). Finally, the Norwegian kingdom became an archdiocese of its own with the establishment of the archbishopric of Niðaróss in 1152 or 1153. Interestingly enough, in Norway, ecclesiastical law was not shaped by diocese boundaries. Instead, Church organization was adapted to fit the existing thing organization, with its hierarchy of lower and higher thing assemblies. Consequently, the bishop of Oslo presided over both the Eidsivathing lǫg and the Borgarthing lǫg until 1152 or 1153, when the diocese of Hamar was created from part of the diocese of Oslo.

The organization of thing assemblies

The eastern part of Norway was split into two different areas: the Borgarthing lǫg covering the coastal area around the Oslofjord, and the Eidsivathing lǫg for the inner part of eastern Norway. However, by the twelfth century, thing assemblies had operated more locally for centuries. These were held in meeting places of social and religious importance and were used for discussing and resolving conflicts – later as legislative and judicial bodies – with the farmers in charge (Øyrehagen Sunde 2010: 81–96). These so-called bygðarstefnur (‘community meetings’) were quite numerous and scattered, and every local man had a right and a duty to attend (Helle 2001: 27). By contrast, the later lǫg thing assemblies were representative bodies for larger geographical areas (Helle 2001: 32), with the thing-sites either strategically located in the fjords along the coastal shipping route or near internal waterways, such as the location of the Eidsivathing close to Mjøsa, the largest lake in Norway. And while the local thing assemblies were established to meet the needs of farmers, it would seem reasonable to regard the Church and kings as driving forces behind the development of the lǫg thing assemblies (lǫgþing, in both singular and plural forms). The creation of a hierarchical structure with the lǫg thing assemblies at the top happened along with the Christianization and the unification of the kingdom, which is why Church and kingdom play a rather prominent role in the laws (Helle 2001: 209–218). Hákon inn góði (r. ca. 933–961), one of the first kings to introduce Christianity into Norway, was allegedly the organizer of the Gulathing in western Norway (Helle 2001: 30–37). However, each of the four lǫg thing assemblies has a rather unique history. Although Hákon helped organize the Gulathing, it seems likely that the Frostathing in northern Norway came into being quite early, perhaps in the ninth century, without any initiative from either Church or kingdom (Hagland & Sandnes 1994: XII–XVII). The Borgarthing, on the other hand, was probably first established as a lǫg thing assembly around the middle of the twelfth century.

The Eidsivathing was originally a thing assembly for a smaller geographical area (Hedmark and Mjøsbygdene) with the thing site located outside Hamar. Saga tradition credits both Hálfdan svarti (ca. 810–860) and Hákon inn góði as organizers. In the beginning of the eleventh century, the legal district was extended and the meeting place moved to Eid (modern Eidsvoll) – a reorganization for which Óláfr Haraldsson (St Óláfr) was allegedly responsible (Norseng et al. 2003: 506). From this time onwards there was a single lǫg thing covering eastern – as opposed to southeastern – Norway (the Eidsivathing lǫg).

When did the Borgarthing reach the status of a lǫg thing assembly in the southeast? The so-called ‘Process of Sigurðr Hranason’, which outlines a legal dispute involving the king Sigurðr Jórsalafari around 1115, states that Norway consisted of only three legal districts at that time (Brandt 1880: 166–167). This suggests that the Borgarthing had not yet become a lǫg thing assembly by the early 1100s, and most scholars agree that the change of status took place in the decades around 1150 (Brandt 1880: 166–167; Eliassen & Norseng 2005: 34). Prior to the establishment of the archbishopric of Niðaróss in 1152/53, the bishop of Oslo had presided over all of eastern Norway, but Hamar then became a bishopric in its own right. This incident might have coincided with, or paved the way for, the acquisition of lǫg thing assembly status for the Borgarthing. Whether or not this was the case, in 1164, the jarl Erlingr skakki summoned a ‘four-fylki-thing’ at Borg (Eliassen & Norseng 2005: 33), probably modern Sarpsborg, which makes clear that the Borgarthing had become the centre of a wider geographical area by this time. Historia Norwegiæ, a Latin history of Norway probably written sometime between 1150 and 1200, also mentions Sinus orientalis (‘The Bay in the East’) as one of the main legal districts in Norway (Eliassen & Norseng 2005: 33). The process thus seems to reveal a deliberate attempt to harmonize the boundaries of the bishoprics with the legal districts of eastern Norway. Eliassen and Norseng argue that both ecclesiastical and secular motives might lie behind the reorganization: both Church and monarchy wanted tighter control and more efficient organization (Eliassen & Norseng 2005: 34).

Although the Borgarthing became a lǫg thing assembly as late as the 1150s, it had probably been a thing assembly of some importance in the preceding period. According to sagas, both Knútr inn ríki and Haraldr harðráði (‘the Ruthless’) were hailed as kings at the Borgarthing assembly in 1028 and 1047 respectively – incidents which might indicate that the Borgarthing had a prominent position in the eastern coastal area (Eliassen & Norseng 2005: 32). Besides, a law-learned man called Bessi, who probably lived in the area around Borgarthing in the late eleventh century, is referred to in one of the paragraphs in two copies of the Borgarthing Law (AM 31 8o and Holm 28 4o). This provision strengthens the suspicion that legal activities of enduring character took place at the Borgarthing as early as the eleventh century (Eliassen & Norseng 2005: 32).

A mix of secular and ecclesiastical law

The term ‘canon law’ usually refers to independent ecclesiastical legislation (Ericsson 1967: 1–2). In this respect, the various Norwegian Church Law Sections cannot be labelled as canon law in the strictest sense of the term. The Norwegian Church Law Sections belong, in their written form, to secular law; each is the first section in a lost legal compilation comprising various sections dealing with topics such as inheritance and commercial law, and presumably promulgated and sanctioned by a secular thing assembly. There is no evidence for the existence of ecclesiastical courts in the first couple of centuries after the conversion, and the Eidsivathing Law explicitly witnesses that the farmers (bœndr) were in charge of judging violations at the thing. Fines were to be divided into three, and one third had to go to the ‘farmers who were involved in the judgement’ (E 25). Thus, adaptation of ecclesiastical law to Norwegian conditions meant that it became mixed with secular law (Hellström 1971: 143).

Based on supposed contributions by the laity to Norwegian Church law (both as judges of transgressions and as active participants in the formulation of the Church Law Sections) some scholars have advanced a theory that the Norwegian Church laws were the products of compromises between the clergy and the laity. According to this theory, the laity had a great deal of say in legal matters, and scholars have contended finding evidence of strong and resistant Norwegian farmers in the regulations in the Church Law Sections concerning diet, procedure, and infant exposure (Seip 1942: 17; Jochens 1998: 90–92; Sanmark 2004: 225–227; Landro 2010: 23–24). This notion has been strongly contested, since many of the regulations supposedly forced through by the laity actually have parallels within medieval canon law (Landro 2010: 210–219). This does not mean, however, that there are no lay elements in the Norwegian Church laws. Concepts and terms borrowed from secular law do provide evidence of lay participation. But this probably took the form of peaceful and cooperative collaboration between clerics and people with special knowledge of local secular law (Foote 2003: 12). In fact, passages in the provincial laws provide glimpses of the collaboration in practice. The Frostathing Law states that Cardinal Nicholas Breakspear (later Pope Adrian IV (1154–1159) and Archbishop Jón of Niðaróss (archbishop 1152–1157) advised that amendments should be formulated ‘together with the wisest men’, bearing in mind the good of all the inhabitants of the province. Also, the same law testifies that Archbishop Eysteinn of Niðaróss (archbishop 1161–1188) gave advice and prescriptions ‘with the approval of the wisest men’, which seems to describe exactly the same procedure. The Church thus seems to have followed a deliberate strategy to involve people who were especially knowledgeable about local law in the processes of shaping and authorizing legislation (Landro 2010: 129–130).

Another facet to be considered is the term kristinnréttr itself. Why is the Old Norse term réttr preferred to denote the Church Law material, and not lag/lǫg (‘law’), which is more common in medieval Scandinavian laws (Vogt 2005: 38–39)? In line with the distinction between the Latin legal terms, lex and ius, one would expect ‘law’ to be used in this case. Lex was used to denote a single law or a book of law, while the term ius more often referred to what is just, or, as Murphy puts it: ‘to the body of law as a whole, or indeed, to the rule of law in general’ (Murphy 2006: 111; Landro 2013: 125). The distinction between lex and ius is still present in most modern European languages, except in English: the Germans distinguish between Gesetz (lex) and Recht (ius), likewise the French between loi and droit, the Italians between legge and diritto, and the Scandinavians between lov/lag and rett (Murphy 2006: 108; Landro 2013: 125). Helle Vogt has suggested that kristinnréttr could refer to ‘the Christian legal order’, without giving any further explanation of what this might imply (Vogt 2005: 39). Perhaps a statement from Archbishop Jón’s Church Law from the thirteenth century sums up the meaning of this legal concept: ‘God’s law in every Christian country’ (NgL II: 372, § 46). If so, was the term kristinnréttr deliberately chosen to underline the fact that the Church Laws, unlike secular laws, belonged to a different legal order, with roots outside the Norwegian provinces (Landro 2013: 126)?

Another way to approach the concept of kristinnréttr is to take into account the variations and synonyms found in the manuscripts (Landro 2005: 20, 2013: 126). The final and concluding paragraph in the Borgarthing Law states: ‘Now, the Christian Law (kristinnréttr), as we recall it, has been recounted’ (Borg. 18). In one of the manuscripts, however, the term kristinnréttr has been replaced by kristindomr (kristinndómr ModE. ‘Christendom’): ‘Now, our Christendom, as we recall it, has been recounted’ (AM 31 8o; Halvorsen & Rindal 2008: 198; NgL I: 363). Apparently, the term kristinndómr conveys the same meaning as kristinnréttr. It also appears in the introduction to one of the manuscripts of the Eidsivathing Law, ‘Here is told of our old Christendom’ (NB 317 4o; Halvorsen & Rindal 2008: 64), thus confirming that the alternation between these two terms should not be seen as an isolated case in the AM 31 8o copy of the Borgarthing Law. What does this mean? One should be careful and not draw overly dramatic conclusions based on this switch of terms alone, but the term kristinndómr evokes other associations and can be interpreted as a more all-encompassing concept, including doctrine in addition to the legal sphere of Christianity (NgL V: 364, s.v. kristinn dómr). There are admittedly few, if any, other traces of doctrine or dogma in the old Church laws. Nevertheless, this fact should not lead to a subordination of the laws as sources for medieval Christianity. The Norwegian historian Andreas Holmsen claimed that the laws were only concerned with outward conduct, and provided no clues to the question of whether the Norwegians were really Christians in the Middle Ages (Holmsen 1961: 188; Landro 2013: 127). He thus revealed an understanding, maybe inspired by Protestantism, of Christianity as mainly consisting of inner beliefs (Bagge 1998: 97, 108–110; Landro 2013: 128). Perhaps the occurrence of terms like kristinnréttr and kristinndómr (concepts which are rather vague and open in character) should be a warning not to interpret the content of the Church laws as a sphere of its own, distinct from dogma and doctrine, but as an integral and essential part of medieval Christianity as a whole.

Origins and development over time

The extant manuscripts of the Borgarthing Law and the Eidsivathing Law can be dated to the time period between 1300 and 1350, based on palaeographical evidence. In spite of this, the core of the content of the Norwegian Church laws has for generations been linked to the missionary and legal activities of Óláfr Haraldsson, king of Norway from 1015 until 1028. Óláfr was among the first Norwegian kings to make a serious attempt to promote Christianity and was killed in the battle of Stiklastaðir in 1030, thereby acquiring the status of martyr and saint. The notion that he lay behind the core of the Borgarthing Church Law Section is mainly based on two arguments. Firstly, four different chapters in the Gulathing Law, valid in the Gulathing legal district on the west coast of Norway, refer to St Óláfr and Grimkell, an English bishop, as lawgivers. Secondly, it has been claimed that comparison of Norwegian and Anglo-Saxon ecclesiastical laws reveals great similarities between these (Taranger 1890; Helle 2001: 180–182; Tveito 2007; Landro 2010: 20–21). Given Óláfr’s connexions with England, this is then claimed to confirm the validity of the references in the Gulathing Law to St Óláfr as lawgiv...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• A general introduction to the Medieval Nordic Laws translations
• Foreword
• Part I General introduction
• Part II Translator’s introduction
• Part III The Borgarthing Law
• Part IV Notes on the text
• Part V The Eidsivathing Law
• Part VI Notes on the text
• Part VII Sources, literature, and abbreviations
• Glossary
• Index