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The Function of Kinship in Medieval Nordic Legislation Medieval Law and Its Practice

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The Function of Kinship in Medieval Nordic Legislation Medieval Law and Its Practice The Function of Kinship in Medieval Nordic Legislation Medieval Law and Its Practice Managing Editor John Hudson (St Andrews) Editorial Board Members Paul Brand (All Souls College, Oxford) Dirk Heirbaut (Ghent) Richard Helmholz (Chicago) Caroline Humfress (Birkbeck, London) Magnus Ryan (Cambridge) Stephen White (Emory) VOLUME 9 The Function of Kinship in Medieval Nordic Legislation By Helle Vogt Leiden • bosTON 2010 On the cover: Fragment from Digest ca. 1300, re-used as cover to the accounts from Hatzburg county. The Danish National Archive, Fragmentsamlingen, Aftagne fragt- menter no. 294. © Photo Mia Münster-Swendsen Translation: Jens Ulff-Møller Language-editing: Juleen Audrey Eichinger (Eichinger Communications, LLC) Part of the translation was paid by Ernst Andersen’s Foundation This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Vogt, Helle. The function of kinship in medieval nordic legislation / by Helle Vogt. p. cm. — (Medieval law and its practice ; 9) Includes bibliographical references and index. 1. Kinship (Law)—Scandinavia—History—To 1500. 2. Domestic relations (Canon law)—History—To 1500. 3. Canon law—History—To 1500. 4. Law, Medieval—History. I. Title. KJC1100.V625 2010 346.4801’5—dc22 2010032783 ISSN 1873-8176 ISBN 978 90 04 18922 5 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Brill has made all reasonable efforts to trace all rights holders to any copyrighted material used in this work. In cases where these efforts have not been successful the publisher welcomes communications from copyrights holders, so that the appropriate acknowledgements can be made in future editions, and to settle other permission matters. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. CONTENTS Abbreviations ..................................................................................... ix Kings of Denmark ............................................................................. xi Kings of Norway ................................................................................ xiii Kings of Sweden ................................................................................. xv Maps ..................................................................................................... xvii Introduction ........................................................................................ 1 Area of examination ..................................................................... 4 Methodology .................................................................................. 5 PART ONE THE IDEOLOGICAL AND PRACTICAL BACKGROUND FOR THE LEGISLATION OF THE PROVINCIAL LAWS Chapter One Kinship as Strategy ................................................. 9 Elective- and alliance-based kinship .......................................... 11 Canonical kinship .......................................................................... 14 Chapter Two The Legal Sources .................................................. 27 Chapter Three The Scandinavian Societies at the Time of the Provincial Laws .............................................................................. 33 Scandinavia as model of analysis ................................................ 33 The genesis of the Norwegian laws ............................................ 37 The genesis of the Danish laws ................................................... 44 The genesis of the Swedish laws ................................................. 49 Construction of the society ......................................................... 53 Resources and prestige—the importance of land in the . provincial laws ........................................................................... 57 Chapter Four The Emergence of the Provincial Laws and their Dating .................................................................................... 61 Customary law or newly developed law? .................................. 61 vi contents The dating of the provincial laws ............................................... 63 The dating of the Danish laws .................................................... 64 The dating of the Norwegian laws ............................................. 73 The dating of the Swedish laws ................................................... 75 Chapter Five The Fathers of the Laws ........................................ 81 Chapter Six The Peace Ideology ................................................... 87 Chapter Seven The Legislator and the Law ................................ 95 The king as legislator—The ideological construction ............. 95 The king’s power to legislate ....................................................... 101 Chapter Eight The Application of the Provincial Laws ........... 105 The functions of the laws—Ideology or practice? ................... 105 PART TWO THE FUNCTION OF CANONICAL KINSHIP IN THE PROVINCIAL LAWS Chapter Nine The Function of Kinship in Legal Disputes ..... 111 Structure and context ..................................................................... 111 The kin’s board .............................................................................. 114 Land and inheritance .................................................................... 116 Violence and homicide ................................................................. 118 Marriage and incest ...................................................................... 121 Chapter Ten Collective Sanction ................................................. 125 Crimes that could not be atoned by a fine ............................... 127 Wergeld .......................................................................................... 133 The Danish legislation .................................................................. 133 The Swedish legislation ................................................................ 138 The Norwegian legislation ........................................................... 143 Personal guilt, collective responsibility, and theological . reflections ................................................................................... 150 Chapter Eleven Inheritance Law in the Provincial Laws ......... 155 Dowry .............................................................................................. 157 The capital portion ........................................................................ 157 contents vii Sons and daughters as joint heirs ............................................... 160 Marriage presents ............................................................................ 168 Male right of priority to inheritance .......................................... 170 Inheritance rights before the arrival of the provincial laws .... 175 Patrilineal tendencies and female inheritance rights .............. 177 Chapter Twelve Donations, Pious Donations, and the Right of Disposal of Property ................................................................ 185 Danish materials ............................................................................ 190 Swedish materials .......................................................................... 198 Norwegian materials ..................................................................... 204 Chapter Thirteen The Right of Allodium ................................... 209 Odelsret ............................................................................................ 211 Lovbydelse ....................................................................................... 215 Bördsrät ........................................................................................... 218 The right of first refusal and the tax base ................................. 222 Chapter Fourteen Fledføring—Elder Care .................................. 225 Chapter Fifteen Marriage .............................................................. 235 Marriage based on agreement—canonical prescriptions ........ 235 Marriage law in the provincial laws ........................................... 239 Marriage by force .......................................................................... 245 Incest, marriage, and canonical kinship .................................... 249 Incest in the provincial laws ........................................................ 253 Nordic or canonical marriage law? ............................................ 255 Conclusion .......................................................................................... 259 Bibliography ........................................................................................ 267 Sources ............................................................................................ 267 Literature ......................................................................................... 268 Index of Names and Places .............................................................
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