Letter from the Editor
Andrew Rabin
University of Louisville
§1. "It is a remarkable, indeed an appalling fact," Patrick Wormald writes in The Making of English Law, "that hardly more has been written on early English law since 1916 than in the century before" (Wormald 1999, 24). Wormald's complaint will be an obvious and familiar one to any reader familiar with the critical literature on English law before the thirteenth century. Not only has early law largely been neglected by literary scholars and legal historians, but much of what has been written is openly dismissive and often inaccurate. One commonly-used textbook on English legal history by a prominent historian even goes so far as to assert that the early English court should not be understood as "a court of law" since "it had no judge and there were no lawyers" (neither of which was in fact true). The laws themselves, he claims, seem "calculated to avoid reasoned decision-making" (Baker 1990, 4–5). This attitude is hardly a recent phenomenon: of the twenty occurrences of the adjective "archaic" in the first volume of Maitland and Pollock's History of English Law Before the Time of Edward I, seventeen refer to pre-Conquest legal practice. Not surprisingly, the term appears twelve times—by far its greatest concentration—in Pollock's chapter on "Anglo-Saxon Law," his only contribution to the text (Maitland and Pollock 1968, 1: viii, 6, 29, 31, 36, 37, 38, 43, 44, 47, 55, 56, 57, 60, 187, 221, 25, 355, 549, and 620; Wormald 1999, 15–16). Maitland himself lamented the indifference of Anglo-American legal historians towards early medieval English law (as well as the fact that it took a German, Felix Liebermann, to finally produce a comprehensive edition of pre-Magna Carta legislation) (Maitland 1911, 447); yet, with few exceptions—Dorothy Whitelock, A. J. Robertson, and Florence Harmer being among the most notable—his complaint fell upon deaf ears.
§2. In the last few years, however, this situation has begun to change. Largely due to the work of such scholars as Wormald, James Campbell, Janet Nelson, Susan Kelly, Julia Crick, Simon Keynes, and Pauline Stafford, Anglo-Saxonists are coming to recognize the value of early English legal texts as well as the potential of such texts to illuminate other aspects of pre-Conquest culture. The introduction of methodologies and interpretive frameworks drawn from other disciplines—what might be called the "anthropological turn" in early legal studies, of which Wormald (under the influence of his tutor at Oxford, J. M. Wallace-Hadrill) was a leading proponent (Foot 2009, 16–17)—has influenced both recent analyses of Anglo-Saxon legal culture and approaches to editing the texts themselves, most notably Lisi Oliver's edition of the Kentish codes, The Beginnings of English Law (2002). Likewise, the papers presented at the 2008 conference, "Early English Law: A Centenary Conference on Die Gesetze der Angelsachsen of Felix Liebermann (1903–1916)," illustrate the level of interest pre-Conquest legislation now garners and the range of questions yet to be answered (Jurasinski, Oliver, and Rabin, forthcoming). Many of these questions will be addressed by the Anglo-Saxon Charters series and the new Early English Laws project; nonetheless, the sheer number of issues still unresolved is vast (and thus all the more exciting).
§3. The essays gathered in this section of Heroic Age offer a picture of the many ways in which the current Anglo-Saxonists approach the problems raised by early legal texts. The articles have been selected because they draw upon a range of critical strategies—from traditional philology to contemporary literary theory—and because they situate early law and its study in a variety of contexts, including early medieval medicine, sixteenth century proto-nationalism, and early twentieth century Germanic philology. In bringing these essays together, my goal has been both to showcase the range of contemporary approaches to early medieval legal culture and to convey a sense of some of the problems—interpretive, textual, and historical—yet to be explored.
§4. Textual and linguistic problems are at the center of Lisi Oliver's "Æthelberht's and Alfred's Two Skulls," which attempts to resolve the questions surrounding a terminological ambiguity in the Kentish and West Saxon injury schedules. Oliver suggests that early medieval understandings of bone structure and medical treatment may have been more sophisticated than hitherto realized; just as importantly, though, her analysis highlights the extent to which evidence drawn from archaeology, anthropology, and modern medical research can shed light on the texts of early medieval law.
§5. Nathan Breen's contribution, "The King's Closest Counselor: The Legal Basis of Wealhtheow's Comments to Hrothgar, Beowulf 1169–87," examines how the legal records of pre-Conquest England inform the most famous of Old English poems. He argues that underlying Wealhtheow's speeches in the poem are legal debates over property, inheritance, and succession reflecting those found in extant legislation, charters, and writs. This legal context indicates Wealtheow's political savvy and influence at the Danish court while also highlighting the extent to which the epic world of Beowulf is grounded in social concerns of immediate relevance to its Anglo-Saxon audience.
§6. Jay Gates' "Ealles Englalandes Cyningc: Cnut's Territorial Kingship and Wulfstan's Paronomastic Play" returns us to the legislation itself with an analysis of how I–II Cnut redefine the discourse of sovereignty to ground kingship in territorial jurisdiction rather than ethnic or tribal governance. Drawing on contemporary literary theory as well as traditional legal historiography, Gates argues that Cnut's unique status as a foreign conqueror provided his chief advisor, Archbishop Wulfstan of York, with the opportunity to reimagine the concept of political identity in Anglo-Saxon legislation.
§7. Kathy Powell, in "The 'Scipmen' Scribe and Cambridge, Corpus Christi College 383," considers the circumstances under which the Anglo-Saxon laws were preserved and transmitted by Anglo-Norman scribes in the twelfth century. Powell here not only provides new insight into one of the texts copied alongside the laws—and thus into the scribal practices that underlay the production of legal manuscripts—but she also offers a compelling argument for the value of a manuscript often seen as subordinate to the more famous Textus Roffensis.
§8. Rebecca Brackmann turns our attention to the role played by pre-Conquest legislation in the cultural world of the sixteenth century in "Laurence Nowell's Edition and Translation of the Laws of Alfred in London, British Library Henry Davis 59." Brackmann highlights the ways in which Nowell's edition of Alfred's laws not only foreshadow the work of later scholars, but also reflect the social concerns and literary investments of its Elizabethan milieu. Situating Nowell's work on Alfred in relation to the scholarship of Roger Ascham and the classical translations of Arthur Golding, Brackmann demonstrates the extent to which early Old English legal scholarship both drew upon and contributed to Renaissance literary production.
§9. The final essay, Daniela Fruscione's "On 'Germanic'" locates the linguistic challenges involved in studying early medieval legal texts against the larger history of nineteenth and twentieth century Germanic philology. Offering first a history of the term "Germanic" itself, she argues for the continuing relevance of such cultural designation in the increasingly multicultural or postcultural world of early twenty-first century scholarship. Turning then to a case study of the word cawarfida, which appears twice in Liutprand's Law, Fruscione considers how "Germanic" features manifest themselves even in ostensibly "Roman" laws.
§10. I would be remiss if I concluded this introduction without two expressions of gratitude. This section would not have come to fruition without considerable effort on the part of the contributors and, most especially, the encouragement and advice of Heroic Age's general editor, Larry Swain. I am grateful to these scholars, not only for their work here, but also for their efforts to ensure that the Wormald statement with which I began this introduction will—unlike the rest of his scholarship—very soon become out of date.
Works Cited
Baker, J. H. 1990. An introduction to English legal history. London: Butterworths. [Back]
Foot, Sarah. 2009. Patrick Wormald as historian. In Early medieval studies in memory of Patrick Wormald, ed. Stephen Baxter, et al. Farnham, UK: Ashgate. [Back]
Jurasinski, Stefan, Lisi Oliver, and Andrew Rabin. Forthcoming. English law before Magna Carta: Felix Liebermann and Die Gesetze der Angelsachsen. Leiden: Brill. [Back]
Maitland, Frederic William and Frederick Pollock. 1968. The history of English law before the time of Edward I. Cambridge: Cambridge University Press. [Back]
Maitland, Frederic William. 1911. The laws of the Anglo-Saxons. In The collected papers of Frederic William Maitland, ed. H. A. L. Fisher. Cambridge: Cambridge University Press. [Back]
Oliver, Lisi. 2002. The beginnings of English law. Toronto: University of Toronto Press. [Back]
Rabin, Andrew. 2007. Old English forespeca and the role of the advocate in Anglo-Saxon law. Mediaeval Studies 69:223–55. [Back]
Wormald, Patrick. 1999. The making of English law: King Alfred to the twelfth century. Malden: Blackwell Publishers. [Back]