Boundaries of the Law Geography, Gender and Jurisdiction in Medieval and Early Modem Europe Edited by ANTHONY MUSSON The University of Exeter, UK ASHGATE Chapter 9 Rules for Solving Conflicts of Law in the Middle Ages: Part of the Solution, Part of the Problem Dirk Heirbaut To many laymen 'law in the Middle Ages' seems to be a contradiction in terms, as to them, the defining element of medieval society is its violence, and thus its lack of law as a mechanism for ordering society. There are several problems with this widespread view of medieval reality. First of all, it can be disputed whether the Middle Ages were any more violent than our own times. Even more, it is beyond doubt that medieval society rather than having not enough law, had too much of it. Law could depend on a person's status, hence another law for the peasant than for the city dweller, another law for the nobleman than for the villein, another law for the merchant than for the cleric and so on. The status of land could also intervene, for example, land could be free or unfree, noble or not and so on, sometimes without any regard to the status of the person holding it, as was the case when a non-noble held noble fiefs. On top of all that, most legal systems were very limited in geographical terms, they were applied in a very small area. The next principality, the next barony, the next town, village or even hamlet, might have a completely different set of legal rules. In practice, this meant a legal pluralism in which hundreds of legal systems were competing. I Consequently, medieval law was something of a huge warehouse, in which anyone could find something to his liking. In any dispute both parties could be sure to find at least one legal rule which was to their advantage.' This put the dispute on another level, where the issue was no longer who was favoured by the law, but who was favoured by the best, Le. the applicable, law. To solve this 'dispute in the dispute', rules were needed for solving conflicts of laws. The 'common law of Europe', the ius commune, had developed a set of legal principles for exactly this kind of problem,' but in the Middle Ages most of Europe outside the Mediterranean was not that much influenced by the ius commune. Customary law was still dominant, and it is to this customary law one must turn if one wants to study conflicts of law in the Middle Ages," As customary law was so varied all over Europe it is necessary to limit oneself to a specific case, in this article Flemish feudal law during the High Middle Ages. The choice of Flanders was determined by the extremely high number of Rules for Solving Conflicts of Law 119 local legal systems in this county. In the sixteenth century, when local customs were officially written down in the Netherlands, Flanders yielded more than two hundred of them.' Feudal law was chosen because it offers more chances for transboundary situations of all kinds. If a lord gives a fief to a man, it is perfectly possible that both the lord and his vassal come from the same place as the one in which the fief is situated, but it may be that the lord or the vassal or both of them are not and then problems can arise, even more so when one or more overlords, who mayor may not be locals themselves, come into play. Things can get even more complicated if one adds buyers of fiefs, and so on. To keep complications within limits, this article will not deal with transactions concerning fiefs, but rather with established relations between overlords, lords, vassals and fiefs. It will also restrict itself to conflicts of a geographical nature, leaving disputes about status, whether of goods or persons, unstudied. Local and Regional Conflicts of Law A conflict of feudal laws was caused by a transboundary element in the feudal relationship, in which either the lord, the vassal or the fief was the foreign element, and thus there was a conflict between foreign and local law. In Flanders however, the nationalities of lords and vassals were not important for determining the law to be applied to a fief.6 If a lord gave a fief to a vassal, the lord's feudal court was competent for this fief.' Thus, only two elements could determine the law to be applied to this fief: the situation of the fief and the competent feudal court. If both were in the same place, no conflict could arise. If they were not, two types of conflict were possible: local and regional. In a local conflict both the fief and the court were situated in Flanders but in different parts of it, so that only local Flemish laws were set against one another. It could be however that either the fief or the court were situated outside Flanders, in which case a Flemish custom was confronted by the law of another region (if both were outside Flanders, there was no problem, at least for Flemish law). The first type of conflicts one might call 'intercustomary' and the second 'interregional '.8 Table 9.1 Intercustomary and Interregional Conflicts of Law Location offief Feudal court Outcome Flanders Same part of Flanders No conflict Flanders Another part of Flanders Intcrcustomary conflict Flanders Elsewhere Interregional conflict Elsewhere Flanders Interregional conflict Elsewhere Elsewhere No conflict 120 Boundaries of the Law This terminology of 'intercustomary' and 'interregional' law is different from the specific term 'private international law' . It is, however, in a medieval, and certainly in a feudal, context hard to use the latter term, The later (Continental) distinction between private law and public law was not very important in the Middle Ages9 and it would be impossible to fit feudal relationships into this framework anyway. Another problem is 'international', as it implies conflicts of national laws, which are absent in this part of Europe at the time. Intercustomary and interregional, without any mention of 'private', are better able to express medieval realities. Solving Problems: Intercustomary Law Originally, intercustomary law was not needed in Flemish feudal law. The count of Flanders was the dominant feudal lord in his county'? and, therefore, his feudal court, the curia, led the way for all others which resulted in a uniformity of feudal law in Flanders. But, from the middle of the 12th century a network of local comital feudal courts in the castellanies of Flanders gradually came into existence, a process completed in 1244 when the central curia relinquished almost all its feudal powers to these local courts, so that one generation later the original unity of Flemish feudal law starts to disappear. For example, in inheritance law the rule used to be that the eldest son, as principal heir, had to provide for his siblings, but now this rule was to be formulated in more detail: in some parts of Flanders the eldest had to cede a third of the fiefs, in others a fifth; his siblings, in return, handed over their non-feudal goods, or not; they had an equal share in their third or fifth, or not, and so on. The reason for this divergence is that the feudal courts of others lords no longer looked to the central curia for guidance, but to the comital feudal court in their casteIlany, which was eagerly developing its own variant of what before then had been a uniform law for all Flanders. Although in many cases a feudal court in one castellany was competent for fiefs situated in another, this led to very little, if any trouble. The 'law of the court', the lex curiae" was applied." There were exceptions to this rule. In Aalst the special law of succession (younger children received one third of the fiefs which had to be divided equally among them) was applied to all fiefs, whether the competent feudal court was an Aalst court or not.13 It remains unclear why the normal rules were not followed in Aalst and why the exception to them was so limited. Another exception was Lille, where originally the same rule as elsewhere was applied, but at the beginning of the fourteenth century this was changed. The lex loci, the law of the place where the fief was situated, was henceforward applied'" for reasons which will be explained below. Even taking into account these exceptions, intercustomary law did what it had to do: solve a conflict of laws by determining the applicable law in a way which left no room for further disputes. Rules for Solving Conflicts of Law 121 Creating Problems: Interregional Law as an Instrument of Power For interregional conflicts it was necessary that contemporaries perceived not only differences between feudal courts, as they did for intercustomary conflicts, but also differences between larger entities, regions, and their legal systems. For Flemish feudal law to be in conflict with foreign feudal law, it was necessary that the Flemings perceived Flanders as a separate entity, which moreover had its own law. The former was present as early as 1127-28 when Galbert of Bruges saw Flanders as a 'land' (patria), even a 'realm' (regnum),1S and it would remain so in the centunes. thereafter. 16 One may, however, wonder whether this also implied a consciousness of a specifically Flemish law. After all, there is great similarity between the laws of Flanders and neighbouring regions." Yet, already in 1127 Galbert of Bruges stressed that the Flemish vassals did homage to their new count 'according to the custom of the counts of Flanders, his predecessors' (secundum omnem modum praedecessorum suorum comitum Flandriae),18something which would have gone without saying, if not for the fact that the new count, WiIliam Clito, was of Norman origin.19 Regular references