Guest blog by Ross Macdonald
Your blogger had the pleasure this week of chairing one of the Legal History sessions at this year’s Edinburgh University Postgraduate Law conference. If there was a common theme linking the two papers, it was “people on the margins”. Keith Ruiter (Aberdeen University) in “Outlawry in Medieval Scandinavia” noted the liminal (both physical and social) status of outlaws pending their possible reintegration into society, the early terminology dehumanising them as “wolves” or the like. Eric Loefflad (Kent) – “A Swiss Jurist on the American Frontier” – stressed the use made in the early US Republic of Emer de Vattel whose treatise partly rested political rights on settled agriculture, thus depriving indigenous people of secure legal status.
Dr Stephen Neff (Edinburgh), the discussant, welcomed Loefflad’s contribution to the growing recent re-evaluation of Vattel as an original thinker straddling the period between earlier natural law scholars (such as Vitoria) and later positivism in a world of nation-states. But it remains arguable at what level he was actually influential – mainly perhaps at the level of shaping Jefferson’s vision of the Republic. American expansion would happen irrespective; Vattel’s views were just convenient. The subsequent discussion drew analogies to the medieval Crusades (in particular in Spain and the Baltic) where Christian expansion was driven forward without the need for a consistent intellectual justification.
As for Ruiter’s analysis – considering contemporary terminology, derived from early medieval poetry and sagas and later legal texts, to discover how the concept of outlawry may have changed and become more precisely focused on its effect on legal status – there was much for a Scots or comparative legal historian to find familiar and challenging. While Ruiter drew attention to regional variation within Scandinavia (too often, as he noted, not differentiated) some features appeared in the wider Scotto-Scandinavian area or beyond. Such as the “thing” or moot hill (Ruiter stressed the role of popular assemblies in enforcing early medieval justice), and places of sanctuary. There were tantalising points of terminology – “biltogh” (only found in Sweden, meaning obscure, but Ruiter suggested “protection”) brings to mind Dutch “borgtocht” (guarantee) and perhaps the Scots “bield”. All in all it was perhaps fitting that this paper was given just as Aberdeen University publishes its fine memorial volume to Professor Angelo Forte (“Continuity, Change and Pragmatism in the Law”, ed. ARC Simpson et al): this was a session that he would have enjoyed greatly.
Ross Macdonald is a doctoral candidate at Edinburgh Law School.