The settlement of disputes became a focus of social science research in the twentieth century and was pioneered primarily within the field of anthropology by Max Gluckman and others working to put legal processes within their societal contexts.Footnote 1 This led to an extremely important shift within the legal historical scholarship of earlier medieval Europe, as exemplified in the works of Susan Reynolds and the influential Settlement of Disputes in Early Medieval Europe edited by Davies and Fouracre.Footnote 2 The on-the-ground process of resolving a dispute was focused upon, recognizing the realities of local power, as well as the aspects that are only hinted at within surviving documentation, in particular, the great deal of putatively legal work that was not addressed in any “formal” fashion. Legal practice occurs in a much wider sphere beyond the formal domains of legislation, courts, and judges. The use of these prescribed legal institutions exists within wider problem-solving behaviors, which include resolving disputes through negotiated settlement and compensation and sometimes exchanges of “feud” violence, even within medieval polities overseen by authoritative royal power and robust legislative regimes.Footnote 3 The vast majority of legal business was likely handled “informally,” even for serious wrongdoing including violence, although surviving records rarely capture this and have often biased historians toward a “rule-centered paradigm.”Footnote 4 Even today, “law on the books” is often very different from law in practice.Footnote 5 Davies and Fouracre write that various societies might be “without formal procedures for judgement, …but there are none without legitimate procedures for mediation” and the means to end a dispute.Footnote 6 Anthropologists, and medieval historians following them, have sometimes used the language of “legal culture” to conceptualize this broader set of understandings and behaviors.Footnote 7
Within later twentieth-century historiography addressing dispute settlement in medieval Europe, the works of Michael Clanchy and Stephen D. White became highly influential by focusing upon the dichotomy of formal legal means arbitrated by courts with a role for the state and informal practices occurring outside of these. To conceptualize this binary, both scholars introduce their 1978 and 1983 papers by quoting from the same notable clause of the c. 1115 Anglo-Norman legal treatise Leges Henrici Primi: “Pactum enim legem vincit et amor iudicium, For agreement overcomes law, and love [overcomes] a judgment.”Footnote 8 “Love” referred to amicable settlements that could end a dispute informally, as opposed to formal “law/judgment” representing a more official court decision. Clanchy and White adapt this “law and love” language as a heuristic to categorize wider legal phenomena across medieval Europe, emphasizing the importance of “love” agreements, which are only rarely shown in surviving sources. Negotiated settlements between parties were likely very prevalent and preferred in many scenarios, particularly due to their flexibility, which could account for complicating circumstances.Footnote 9 “Such compromises were therefore regarded as being, if anything, firmer, more binding and more just than the court judgment,” hence the “love conquering law” sentiment.Footnote 10
The origins of the “law and love” dichotomy within the Leges Henrici, and this seemingly unique terminological construction in English medieval records, are unclear. Clanchy and White do not deeply engage with this vocabulary’s Anglo-Norman source or older roots, and these questions have not received adequate scrutiny from subsequent scholarship. Given the prominence of the paradigm in legal historical scholarship, this article will seek to outline and understand the compelling backstory of the phrase, which is maybe more accurately “love or law,” and what it can tell us of the ideology of dispute settlement in medieval England, as well as Scandinavia. An argument will be presented for a Viking-Age Scandinavian origin for both the unique terminology and concept, arising in England from the exchange of legal ideas occurring in the Danelaw, the English regions conquered and subsequently settled by Viking armies.Footnote 11 This particular dynamic of dispute settlement, characterized by explicit separations and pressuring dynamics between formal and informal methods, departs significantly from the norms of pre-Conquest England, in which negotiation and compensation are inextricably embedded within legal culture. This raises questions of fundamental Viking influence on the later form of dispute settlement in medieval England, which shifts away from earlier English practices and towards a “love or law” dynamic. This concept with Scandinavian roots may have then contributed to the grounding assumptions of English common law, particularly during its formative phase leading up to 1215.
England in the “Anglo-Saxon” period, with its relative abundance of early medieval sources, has been featured as a major case study in scholarship of medieval dispute settlement, and our discussion will first succinctly overview this in order to cast later English variations in sharper relief.Footnote 12 The role of feud has been particularly debated, but a broad scholarly consensus generally recognizes that feuding or “sanctioned violence” did exist, but early English societies were not completely dominated by interminable destructive cycles; feuds were an important cultural aspect that served as a mechanism for disputing.Footnote 13 Lambert outlines that “vertical” royal punishment and “horizontal” legitimate feuding both “play complementary roles in the maintenance of order.”Footnote 14 Royal law sets ground rules for disputing through the scheme of compensation, which was the central mechanism of formal legal practice, most famously represented by the standardization of a wergild payment for a killing.Footnote 15 Implicit in nearly all English legislation from the earliest in c. 600, this was a tariff of predetermined compensation values in extreme detail overseen by royal authority and executed in public courts.Footnote 16 A significant portion of King Alfred’s c. 890s Domboc meticulously explains what must be paid for injuries to all manner of body parts for individuals of various statuses.Footnote 17 The West Saxon kings who succeeded Alfred increased their legal authority over all of England across the tenth century, creating new royal crimes and punitive responses in select areas of jurisdiction, but even here the overall emphasis remains on mandated compensation to wronged parties.Footnote 18 This created a baseline for negotiations, making it simpler to find agreement and requiring these to be within an acceptable sphere approved by the king. In the way that it is carefully legislated for and overseen, often oriented around the “virtual presence” of the king, compensation was the law in pre-Conquest England.Footnote 19 Particularly in the tenth century, English kings took further steps to exert influence over dispute mechanics, and instead of attempting to end feud violence, they “write themselves in to the process.”Footnote 20 This included banning particularly disruptive behaviors and creating cooling-off periods, such as royally enforced places and times of sanctuary, which could break up tit-for-tat violence.Footnote 21 Edmund’s c. 942-6 code recognizes the legitimacy of feuding while setting “rules of engagement” to rein in excessive violence and mandate compensation values, with his “peace” established over the resolution process.Footnote 22 Balancing acts like this enshrine traditional methods of disputing while strengthening the king’s rights within them, a “channeling of impulses of self-help and vengeance to royal ends.”Footnote 23 Likewise, there are even specific legislative measures, as early as Ine’s c. 700 code, explicitly preventing the private settlement of disputes without royal oversight.Footnote 24 Unique in early medieval Europe, the robust hierarchical system of public and free courts, without the competition of private lordly courts, formed the primary “arenas of dispute settlement” occurring in the open and following “a defined set of formal procedures” mandated by the king.Footnote 25 At the core were quite local and frequent [monthly] hundred courts systematized across the country by Edgar in the 960s and under some degree of royal sway.Footnote 26 Overall, dispute resolution in early medieval England, as outlined above, falls heavily within the “law” side of the “law and love” binary discussed by Clanchy and White, with a quite wide spectrum of legal behaviors encompassed by the formal law practiced in public courts and influenced by royal authority.
Lufu or Lagu: From Scandinavia to England?
To orient our exploration of how medieval English dispute evolves from pre-Conquest norms, we shall next contextualize the language of “law and love,” which modern scholarship has adapted from the Anglo-Norman Leges Henrici, particularly the phrase “Pactum enim legem vincit et amor iudicium.”Footnote 27 This law/love binary for formal and informal legal processes actually appears throughout the text, and we should direct our attention to another clause with slightly different phraseology that offers further clues towards understanding where it may arise from.Footnote 28 One clause discusses the protocol for partners disputing over property owned in common, with amore mentioned as an agreement to resolve the disagreement.Footnote 29 This is then followed by: “Ubi uero aliquis eorum optionem habet per iustitiam, amicitie uel lage, et amicitiam elegit, stet hoc ita firmum sicut ipsum iudicium, Where any of them has the choice, in accordance with justice, of love or law, and he chooses love, this shall be as firm as a judgment itself.”Footnote 30 Clanchy notes that the Leges Henrici text here “recalls Anglo-Saxon law,”Footnote 31 but it should be observed that more than recalls, this seems like a very close translation directly from a pre-Conquest text, a law code known as III Æthelred or the Wantage Code of c. 997.Footnote 32 The Old English clause states: “⁊ þar þegen áge twegen costas, lufe oððe lage, ⁊ he þonne lufe geceose, stande þæt swa fæst swa sé dom, And where a thegn has two choices, love or law, and he then chooses love, let it stand as firm as the judgment.”Footnote 33 The connection between the Leges Henrici and Wantage clauses is obvious and even looks to be a word-for-word translation, with the same structure and vocabulary: lufe rendered as amicitie in the Latin, lage remaining the same, and dom as iudicium. The only substantive change is that the statement is directed towards anyone (aliquis) rather than a thegn (þegen). In fact, the Latin of the Leges Henrici section is nearly identical to the translation of this Wantage clause in the Anglo-Norman compilation Quadripatritus, unsurprising given that both were likely drafted by the same person.Footnote 34 As such, the Leges Henrici author undoubtedly had this Wantage clause in mind for this specific provision. It also seems quite likely to have influenced his overall use of the concept, which is eventually picked up by Clanchy and White, particularly because Wantage’s “love or law” phrase is the only one of its kind in any pre-Conquest text. Nowhere else is there a binary of love and law, nor such an implication of negotiated settlement with this “love” language. As such, our interpretation of this phrase and concept depends upon the idiosyncratic context of the Wantage Code, which represents not monolithic “Anglo-Saxon law” but instead the legal culture of England’s Scandinavian-settled and legally distinct region: the Danelaw.
The Wantage Code is a royal law code promulgated by Æthelred II, almost certainly at a 997 assembly, and a careful reading of the text soon reveals its singularity in the corpus of pre-Conquest legislation. It exclusively uses Scandinavian currency, deploys a high number of Old Norse terms (some for the first and only time with unspecified meanings), and mentions the Five Boroughs (a core region of the Danelaw in the East Midlands).Footnote 35 Wantage was drafted in parallel to another Æthelredian law, the Woodstock Code, with both implementing the same procedure for “accusation-busy men.” This other text stipulates it is “according to English law (Engla lage),” implying that Wantage is directed toward the Danelaw.Footnote 36 The particular legal procedures and details within the Wantage Code strongly distinguish it from the expected norms of English legislation on a number of fronts, which correspond with Scandinavian trends, from puzzling requirements to “buy law” to its most widely known feature: an accusing “jury” of twelve thegns, often pointed to within debates on the origins of the juries of presentment, which arise following the 1166 Assize of Clarendon.Footnote 37 Wantage is clearly not only connected to the Danelaw but also seems to offer a snapshot of this unique legal culture and some of its specific protocols, for which we otherwise have very few surviving sources. This seems congruent with King Edgar’s law in the 960s establishing near-total legal autonomy for the Danelaw by allowing the “good laws of the Danes” to stand, likely reflecting a complex and evolving compromise between West Saxon kings and Anglo-Scandinavian power brokers.Footnote 38 Later in the tenth century, this process is continued within the Wantage Code, where Danelaw legal concepts found themselves included within this royal text, bringing the region more closely within the legal system of the kingdom but also seemingly enshrining and facilitating their distinctive local practices and autonomy.
Given this context, where certain legal procedures encapsulated in the Wantage Code diverge from tenth-century English norms, they likely instead reflect Viking-Age Scandinavian legal thinking, especially when they can be linked to practices in later Scandinavian legislation and share the same vocabulary, such as for Old Norse lah-cop (“law-purchase”).Footnote 39 We are naturally left to ponder if the “love or law” concept and terminology might likewise result from Scandinavian influence. Further inquiry must begin with a focus on the clause’s textual setting and linguistic background. The section occurs within Wantage’s latter half of seemingly disconnected measures, which address wide-ranging themes, from punishing counterfeiters to the proper way to slaughter a cow.Footnote 40 This sub-clause in particular follows directly after one of Wantage’s most referenced sections, where a mysterious group of thegns seem to be voting and making judgment (dom).Footnote 41 As with its corresponding appearance in the Leges Henrici, the “love or law” clause may be tangentially connected to a specific context but seems phrased as a general statement on legal practice: that “love” should stand as firm as “law” or “judgment.” In the terminology used, some level of Scandinavian footprint is clear in lagu as a loan from Old Norse, from which the English “law” derives. Its first appearance in Old English reinforces its tenth-century Danelaw pedigree, within Edgar’s code directed at the Danes, where three times it refers to godum lagum “among the Danes,” while domum is purposefully used for law “among the English.”Footnote 42 Lagu then becomes more popular over the course of the tenth century, especially used within the legal writings of Wulfstan II, and comes to be the dominant term for law, replacing æ and dom.Footnote 43 The use of lagu in the Wantage Code, though at a period when the term was becoming common in Old English, has a clear and quite recent Scandinavian origin. Lufu is a more complicated picture as a native Old English word with quite early usage glossing Latin amor or amicitia in scriptural writings.Footnote 44 This appears occasionally in later law codes, often in evocative language calling for “amity” or ecclesiastic measures on tithes which exhort love for God.Footnote 45 A possibly relevant legal use is within the anonymous tenth-century code “Wergeld” where after making compensation payments, “…one may obtain / proceed / depart with love (mid lufe ofgan), if one wishes to have full friendship.”Footnote 46 The meaning here changes greatly upon the various translations of the verb ofgan modifying lufe, which if taken as “proceed with” might imply an agreement process.Footnote 47 This is far from clear, and the clause seems related to the friendship and good-feeling that engendered or followed a resolution, with Wormald rendering it as to “depart with love.”Footnote 48
Given the clear Danelaw implications of lagu and the strangeness of lufu in Wantage with no clear English precedents, the phrase “love or law” certainly begs a question of outside influence from Viking-Age Scandinavians. As Lady Stenton remarked, it “stands alone in pre-Conquest law” and “may well be a loan from Scandinavia.”Footnote 49 Further insight into these roots may be revealed by exploring the Old Norse term lof, distantly related but distinct from Old English lufu, which appears in Scandinavian legislation and seems to have little to do with “love” as affection or friendship. Instead, lof and its cognates appear throughout our earliest records from all the Nordic countries with a specific legal meaning of “consent, permission, license.”Footnote 50 Lof is used as “permission” for acts that might otherwise go against protocol, such as chieftains combining their assembly sites, as described within the voluminous Grágás, the earliest Icelandic laws likely first compiled in the twelfth century.Footnote 51 Notably, lof is used throughout the Grágás for permission to settle a dispute outside of court.Footnote 52 Even more striking, in very similar phrasing to “lufu or lagu” in Wantage, there are three instances within the Grágás of “logom oc lófom”…“lof eða log”…“lög oc lof.”Footnote 53 These are in reference to men gathering in a court to decide on “law and licenses,” with these licenses being “dispensation from legal rigor,” including pardons, forgiveness of penalties, and importantly, often permission to enter a private settlement which would otherwise be forbidden.Footnote 54 The Grágás, in several instances, mention de jure prohibitions on settlements for many serious crimes (such as grievous wounding),Footnote 55 even though settlements seem to have been very common de facto and heavily populate Icelandic saga narratives.Footnote 56 As such, seeking license to settle may have been quite common, at least formally, and settlement permission might have been the primary implication of lof as “license” in these provisions. The alliterative “lof or log” phrase seems used to sum up legal business within this binary and at least sometimes with lof explicitly meaning permission to negotiate a settlement. This can be seen elsewhere in Icelandic writings within this same context of established legal actions, such as twice within the narrative of Njáls saga, the longest and most prominent Icelandic saga. Here, lofum ok lǫgum and lofa eða í lög are discussed within regulations for the newly established Fifth Court, again with lof as license, possibly referring to permission to settle.Footnote 57
This is even a trend beyond Iceland, with the equivalent phrase loff æda løiif appearing in the slightly earlier Gulathing laws of Norway, seeming to refer to legal options that one has in the course of a suit.Footnote 58 In a similar manner, the phrase occurs in later Swedish laws, appearing six times in the Södermannalagen, where it is mentioned for offenses such as ploughing into the field of your neighbor, for which one must answer if they had done so by lof eller legha, seeming to refer to having a legal right or negotiated permission.Footnote 59 One instance includes “He defends himself with lof or legho,” reinforcing this as a binary in ways to end dispute.Footnote 60 To understand this phrase appearing similarly across Scandinavian lands, it is valuable to consider the use of alliterative pairs, which Olszewska considered a “characteristic of Norse legal phraseology,” including “blar ok bloðugr, bruised and bloody” as a specific legal designation of harm used more generally over time.Footnote 61 Some of these were even borrowed into Old English, such as “to mund and to maldage, marriage payment and contract,” and most notably “sake and soke.”Footnote 62 Beyond the legal realm, a handful of likely Norse-derived alliterative pairs generally became preserved in English writings, with a few like “friends and fellows” surviving into the modern era.Footnote 63 “Lof or log” seems to fit this pattern as a memorable Old Norse alliterative phrase that could function as an aphorism to represent a complex idea, here being two realms of legal business. This is even reinforced by a wider trend in the Grágás of alliterative legal formulae seeming to be an important tool for the oral recitation of the law in Iceland and likely elsewhere, often carried out by a Lawspeaker (Lögsögumaðr).Footnote 64
It then seems quite likely that lufe oððe lage in the Wantage Code, as a c. 997 glimpse of Viking-Age Scandinavian legal thought, is a manifestation of this particular aphorism. Suggested by Spargo in 1937, in a linguistic process that seems quite reasonable given decades of Norse-English linguistic interface in the tenth-century Danelaw, Norse lof may have had its “technical legal sense” assimilated within Old English lufu’s quite wide range of meanings.Footnote 65 Lufu might have also had its legal connotations adjusted to include the concept of lof as permission often associated with settlement, along with the more common sense of Christian “amity,” with both later incorporated into Middle English loue and “love-days” for ending disputes.Footnote 66 It is possible that the initial rendering of lufu in Wantage might also have been a translation error or mishearing of Norse lof, something not impossible given this text being produced in a royal context in Wessex by a court scribe, but clearly with input (maybe dictation) from Norse speakers.Footnote 67 For whichever reason, lufu was recorded, leading the Leges Henrici translator to render amore/amicitia, while this linguistic broadening of the meaning of “love” also occurred in the vernacular with Middle English loue.Footnote 68 Despite past misgivings by scholars, it seems quite reasonable that “love or law” was introduced into England from Norse during this period, and found itself “stuck” as a catchy and “mnemonically easy” alliterative phrase which usefully articulated something: possibly a new and Scandinavian-influenced binary of dispute settlement.Footnote 69 Lufu and lagu is later loue and lawe in Middle English writings of Chaucer and Langland, with Clanchy pointing out that this pairing was “peculiarly suited to oral transmission in English” and fits the context of default practices at quite local levels.Footnote 70 This catchiness may have been central to the aphorism’s longevity, suggested by the conscious and puzzling decision of the Leges Henrici author to retain lage in his rendering rather than translating it into Latin.Footnote 71
Punitive Law and Negotiation in Viking-Age Scandinavia
With “love or law” seeming to have existed as a widespread term with legal currency among Norse speakers, indicated by its appearance in later legislation, it is worth examining if the implied dynamic is in effect within our impressions of early Scandinavian disputes. Specifically, we shall keep an eye to punitive formal law used as a threat in order to pressure disputing parties to negotiate and informally settle. The remarkable level of quite early documentary survival from Iceland, the highly litigious nature of this society, and its settlement by Scandinavians in a roughly comparable period make it an invaluable window into this Norse legal world, which can help us analogize the Danelaw.Footnote 72 This article will focus on the legal dynamics portrayed within the detailed law code, the Grágás, put in conversation with the most extensive and particularly law-focused saga, Njáls saga, a technique largely pioneered by William Ian Miller. All our Nordic sources are recorded later, but cautious applications to the Viking Age will be made, following in the footsteps of recent scholarly methodologies.Footnote 73 It quickly becomes clear that the depicted contours of dispute settlement within Iceland in its Commonwealth period (c. 930–1262) contrast sharply with those of Anglo-Saxon England. As presented in the Grágás, Icelandic law’s responses to wrongdoing do not deploy compensation in a manner closely analogous to early England’s predetermined wergild tariffs, where all acts of violence are valued and paid for in a prescribed protocol.Footnote 74 Instead, the law code presents Icelandic court responses as largely revolving around punitive measures for a wide range of crimes, particularly using a catchall sentence of outlawry, “the only punishment it knew,” in its forms of “full” and “lesser.”Footnote 75
Full outlawry, skóggangr (literally “a going to the woods”), is levied for serious crimes, including killing and maiming, and was a possible penalty for all manner of feud violence.Footnote 76 A full outlaw has their life and property made forfeit; they can be killed without recompense, and it is forbidden to aid them in any way, effectively a death penalty.Footnote 77 Lesser outlawry (fjörbaugsgarðr) of three year exile is much more common as the standard punishment for all sorts of minor procedural offenses and even accidental blunders. These heavily populate the assembly procedure section of the Grágás, being levied for not attending the beginning of a þing assembly or being absent for one night.Footnote 78 Both forms of outlawry were prominent features of early Icelandic culture, appearing throughout the sagas and with several works taking full outlaws as their heroic protagonists.Footnote 79 Erik the Red is even said to have discovered Greenland during a period of lesser outlawry.Footnote 80 We are offered a picture of strict sentences of outlawry if one is found guilty in court of seemingly all crimes, even quite minor ones. At least as presented de jure in the Grágás, a strict catchall sentence of outlawry was really the only successful outcome for one accusing another of a crime and bringing it to adjudication at an assembly.
With Iceland’s massive geographic size and small population, legal assemblies did not occur very often, with the national Alþingi for serious crimes being only once per year. Even the four provincial quarter courts are only three times a year.Footnote 81 The infrequency of assemblies seems to have rendered them quite solemn affairs when they do occur, with strict protocols punishing any missteps surrounding them, resulting in intimidating venues for dispute resolution. Likewise, their timing does not make assemblies ideal for handling disputes for which a more speedy resolution was desired; waiting for the next assembly to resolve a situation involving feud violence would mean living in continued danger.Footnote 82 Even if one did obtain a successful ruling from an assembly, there was no executive body to enforce any sentences. Recourse still fundamentally relies upon self-help and whatever support can be mustered to lawfully pursue and punish an enemy.Footnote 83 An assembly ruling could hold great sway by putting community weight behind one party and cutting off support to another, but enforcement was still no easy undertaking, particularly if the condemned enemy is powerful or part of an influential kin group. The sagas illustrate some full outlaws (legally condemned to death) continuing to live on their isolated farmsteads, with their enemies not confident enough to attack them; Gunnar in Njáls saga does so for a year before his rivals launch a surprise attack at night and when they know his dependents are away.Footnote 84
Due to this combination of factors, despite a complex Icelandic assembly system, “most disputes did not lead to adjudicated outcomes,” with negotiated settlements outside court instead as a prominent and preferred alternative.Footnote 85 This is puzzling given that settlement is not widely acknowledged by the Grágás with its adherence to a punitive legal system that answers seemingly all misdeeds with outlawry.Footnote 86 But compensation arrived at through informal negotiation is at the center of the legal practice shown throughout the early sagas, particularly the many detailed legal conflicts depicted in Njáls saga. The heinous crime of secret murder requires full outlawry within the Grágás and other Scandinavian laws, but the saga shows it compensated for back and forth, as in the famous exchanging of the same purse of silver between Njáll and Gunnar.Footnote 87 This might be explained by the depiction of Iceland as a venue of de jure outlawry for a wide series of crimes but de facto negotiated settlement for the vast majority. Rather than compensation handled in courts and regulated by official value schemes as in Anglo-Saxon England, here the settlement is occurring on the sidelines of court proceedings.
As discussed, there are practical reasons why this might be appealing, such as the infrequency of courts and their lack of executive authority. The various Icelandic family sagas, which are heavily focused on narratives of feud violence and resolution, certainly indicate that a decision at a þing rarely brought about a successful conclusion.Footnote 88 Further, there does seem to be a specific dynamic where the Icelandic legal system even pushes disputants towards negotiation, particularly pressuring defendants to avoid the harsh punitive sentences they might suffer. Miller explains that disputants over violence had little incentive to take a matter before a court: “At law a party won or lost, and losing in Iceland meant outlawry if a defendant and humiliation if a plaintiff.”Footnote 89 With a court decision, a defeated defendant had little reason to comply with a sentence of outlawry ensuring their death, while an unsuccessful plaintiff’s honor might demand that they resort to violent vengeance in the future.Footnote 90 In the prelude to Njáls saga’s climax (the killing of Njáll and his family), compensation negotiations break down, and Njáll’s son Skarphéðinn remarks unworriedly that “they can never prosecute us, according to the laws of the land”; a foreshadowing Njáll responds, “then what will come will be worse for everybody.”Footnote 91 In contrast to adjudication, settlement through negotiation seems much more attractive, bringing less severe consequences for a defendant and allowing the plaintiff to materially benefit by receiving compensation. Negotiation creates a continued opportunity to end the dispute in a flexible manner, where compensation amounts and conditions could be adjusted for circumstances and mitigating factors rather than blanket outlawry, allowing both sides to save face. Settlements seem much more likely to actually bring compliance and establish a lasting end to what could be cyclical feud violence, reasoning exercised by Njáls saga characters who are depicted as logical and sympathetic.Footnote 92 One example from the narrative shows the flexibility of settlement, which made it so useful, with the legal expert Njáll defending his friend Gunnar. Although they have a solid defense for court and will likely win, they still choose to come to an agreement, which included a payment and Gunnar accepting lesser outlawry of a three-year exile.Footnote 93 Here a compromise, even with a punitive condition, is shown as preferable to allowing the conflict to fester through a court decision, and outlawry pronounced by settlement is also corroborated by the Grágás.Footnote 94
The harsh conditions of the Icelandic court system, particularly the chance that defendants would be branded as full outlaws, created dynamics that induced settlement, possibly by design. The law is used as a threatening “stick,” which might have been an intentional aspect encouraging community self-regulation without the oversight of a governing body, since essentially none existed nor was practical for the sparsely populated Icelandic countryside. Miller writes that, as seen in the sagas, plaintiffs often brought lawsuits “with the sole intention of coercing the recalcitrant defendant to agree to submit to arbitration” and offer compensation, a kind of blackmail suit backed by the punitive implications of court.Footnote 95 Arbitration by third-party groups seemed to be a particularly prominent form of negotiation, as is shown in detail within the Grágás and Njáls saga, with twelve arbitrators often featuring.Footnote 96 This is likewise the case in wider Scandinavian contexts and seems to have been one of the roles played by “panels of twelve” throughout later legislation in Denmark, Norway, and even Sweden.Footnote 97 This may likewise be pertinent to legal practices in the Danelaw, particularly the twelve thegns who appear to vote on matters in the Wantage Code, as well as groups of twelve “lawmen” (Norse-derived lagemen) shown in Danelaw sections of the Domesday Book.Footnote 98 The Wantage voting group comes directly before and is possibly connected to the “love or law” clause within the text, so it might be associated with wider Scandinavian practices of third-party arbitration. Private settlement in Iceland seems to primarily occur flexibly outside of the purview of prescriptive legislation but is mentioned occasionally (called sátt, sætt) in the Grágás as another option outside of the detailed protocols of punitive measures. One chapter outlines some relevant protocols and opens by establishing that if parties agree to come to a settlement “that is all to be binding” (oc aþat alt at halda) as much as a court adjudication, a general sentiment that seems akin to the establishing of “love” is to be firm and binding within the Wantage Code, as replicated by the Leges Henrici.Footnote 99 As mentioned, lof “license” from a court is sometimes required for a settlement to be made in the Grágás, demonstrating its contrast to court decisions, something that seems summed up by “lof or log” and is mirrored by our English sources.Footnote 100
Beyond the explicit discussion of “love or law” in the text, the Wantage Code’s various provisions might also articulate a comparable dynamic in the tenth-century Danelaw of punitive law compelling settlement among Viking-Age Scandinavians. Scholars have long commented on the increased harshness of the Code’s criminal measures, which seem to represent unique Danelaw legal conditions.Footnote 101 This is most clearly demonstrated through a detailed protocol on the prosecution of tihtbysian (“accusation-busy”) men highly suspected of theft: defendants have significantly reduced legal options, particularly when subtle divergences are identified from the implementation of these measures in the parallel code of Æthelred meant for non-Danelaw areas. The Wantage section begins idiosyncratically with the “twelve thegns” making a group accusation, which might be akin to those seen in later Nordic laws, and such a charge made communally was inherently more damning and dangerous.Footnote 102 Following this, the accused can only defend themselves and avoid execution by making extra payments to “buy law”Footnote 103 in order to face the painful triple ordeal rather than having any option of an exculpation oath, with swearing being a core aspect of Anglo-Saxon legal procedure and a central right of free men.Footnote 104 The addition of a fee for legal access and no oath-taking abilities both stand out starkly from how this exact procedure is applied in Æthelred’s other code.Footnote 105 More broadly, this is completely incongruent with the overall tenor of Anglo-Saxon legislation by this period, where inalienable legal rights (folc-rihtes) for free men are enshrined, specifically the robust ability to defend oneself by oath.Footnote 106 Where an exculpation oath does appear once in Wantage in a different context, it requires 36 oath-helpers to join, an incredibly high bar without precedent in pre-Conquest legislation.Footnote 107 One of Wulfstan’s legal writings even seems to corroborate this impression by criticizing the reduced legal protections for those who are prosecuted “in the north” (i.e. the Danelaw), calling it unlagu (“injustice”).Footnote 108 Likewise, Wantage seems to show heightened penal measures in effect, including a unique form of immense fines which seem to have been paid communally (levied against all living within a “small hundred”),Footnote 109 as well as the increased targeting of outlawry, in line with the development of the category in tenth-century England along with the incorporation of the term utlah from Old Norse.Footnote 110 These factors combined depict Danelaw legal dynamics harshly handling wrongdoing, where procedures were more difficult to access and held higher threats of severe punishment. This may then help us to understand Wantage’s “love or law” phrase referring to this binary form of dispute resolution with intimidating lagu pressuring negotiation and lufu settlements, particularly when analogous processes are at play in wider Scandinavian contexts like Commonwealth Iceland. As particularly seen by comparing our various Icelandic sources, formal law here seems to form a smaller proportion of day-to-day disputing in comparison to Anglo-Saxon England, where protocols regulated by the king and in-court compensation were much more fully integrated into legal behavior. As such, Danelaw and Icelandic records may offer insight into a particular legal dynamic and vocabulary that seems spread across the Viking World, characterized by harsh hypothetical punishments through formal law which push disputants towards informal settlements outside of the courts.
English Dispute under the Shadow of Law up to c. 1215
With “love or law” possibly representing a distinct dynamic of Viking-Age Scandinavian dispute practice, we will now explore where we might see this concept’s lasting role in England, both involving this particular terminology and being more broadly evident in our case records of early common law disputes. A dichotomy of love and law is depicted seventeen times in the Leges Henrici Primi, whether ending a contract dispute ex amore, or that parties per amorem procedere after paying compensation for a killing.Footnote 111 The text’s author shows a clear preference for the benefits of love, twice remarking that love unites (congregat) while law separates (sequestret),Footnote 112 and also famously stating that love “conquers” (vincit) law, picked up by Clanchy and White to coin their model of medieval dispute practice.Footnote 113 As discussed, one of these Leges Henrici clauses states that both options shall be valid, a direct translation from Wantage’s description of the options of lagu or lufu in the Danelaw and suggesting a Scandinavian background to this nomenclature overall.Footnote 114 It is possible that the adoption of such terminology could be due in part to the influence of canon law,Footnote 115 and English ecclesiastical courts did become important venues for arbitration by the later medieval period,Footnote 116 but as noted by John Baker, the particular language of love does seem “peculiar to England” and is not found in Continental sources.Footnote 117 Within the late twelfth century’s major legal treatise, Glanvill, “love” no longer appears, but the same sentiment of “settlement overcomes law” continues with new terminology (primarily pax), along with references to amacabilem compositionem and finale concordiam.Footnote 118 Indications of the “love or law” binary having wider currency are revealed within case records, which seem to show it in action, such as a c. 1121–6 dispute in the Shrewsbury Cartulary where ownership of a village is in contention and can either be resolved per amorem or per placitum (“by plea”), phrasing also found in the Leges Henrici.Footnote 119 Rather than formal legal action here in the form of a plea, a settlement prevails with one party retaining the village after paying an agreed amount to the other. A c. 1126–30 land dispute between the abbot of Ramsey and the lord Simon de Beauchamp is resolved when the abbot pays silver and horses in order for Simon to grant the land “with love” (cum amore) and declare the dispute settled.Footnote 120 Love is clearly an established avenue for legal resolution, likewise echoed by a 1282 Wiltshire case pointed to by Clanchy where a lord is summoned to “make law” (facere legem), which then “was waged in love” (vadiata fuit in amore) with a mention of this being decided “outside court” (extra curiam).Footnote 121 These processes seem at work even with other stand-ins for the word love, such as in an 1174 letter by English abbots discussing that a land dispute between rival houses should be settled “by agreement (compositione) if possible, otherwise by judgment (iudicio).”Footnote 122
Van Caenegem remarks that there was a “strange dualism” to disputes in this period: “On the one hand the law knew a process full of formalism and rigour, while on the other hand we see that in fact a very informal kind of pleading often prevailed, motivated by good sense and the desire for mediation.”Footnote 123 Informal negotiation continued to play a large role in England, being “accommodated by common law,” and was at least sometimes expressed in records as a contrast to formal legal decisiveness within a “love vs law” binary.Footnote 124 The connection of love to negotiation here seems strong and ongoing, even continuing with clear procedural descriptions of “love-days” (Latin dies amoris, French jour d’amour) as a day for the arbitration of disputes into the thirteenth century and beyond, occasionally seen occurring in manorial court rolls and high-profile suits between nobles.Footnote 125 Sometimes arranged by a court or justice, the agreements were determined by the parties themselves and only occasionally recorded.Footnote 126 In Bracton, dies amoris are incorporated into certain protocols and are given lasting authority, as in a provision disallowing one to plead the illegality of a summons if they previously accepted a love-day.Footnote 127 The Middle English loueday occurs in localities throughout the thirteenth century and later, seeming to have been a wide feature of English culture as suggested by its presence in literary works and particularly those of Chaucer.Footnote 128
Beyond explicit uses of this “love” terminology for negotiated settlements, we may be able to see the “love or law” dynamic within English dispute settlement in practice more widely, in a manner that recollects the Scandinavian paradigms observed above, particularly in the later twelfth century, when our case evidence greatly increases. By this period from which common law will emerge, the legal environment has shifted dramatically from Anglo-Saxon norms, with power in criminal cases having been rebalanced away from defendants and towards accusers in important ways. One accused was now in a much more threatened position, with reduced opportunities to clear themself by oath, instead being increasingly forced into less desirable proof procedures such as the ordeal and trial by combat.Footnote 129 Likewise, public prosecution had increased substantially to form a robust infrastructure for pursuing cases by the late twelfth century, including juries of presentments and royal justices.Footnote 130 The king’s peace had also been heavily expanded, increasing the number of actions that faced royal punishment.Footnote 131 Sentences moved away from the pre-Conquest compensation-based system and generally become harsher, with stricter applications of execution or maiming for serious crimes, communal fines on a locality such as murdrum, and an expanded system of outlawry and forced exile. This is all to say that in later twelfth-century England, progressively punitive law existed as a heightened threat within criminal cases as a factor exerting pressure. This may have been particularly potent for private criminal appeals, which by this period were decided by trial by battle with its physical dangers, while losing had serious consequences of perjurious infamy for either side.Footnote 132 This is a baseline of intimidating “law,” which may have been poised to push disputants towards “love,” maybe not unlike the factors surrounding disputes in Commonwealth Iceland.
Roger D. Groot, in a series of 1980s studies, has played a critical and under-appreciated role in illuminating court dynamics in the early common law period. In particular for our discussion of disputes surrounding violence, his dissection of private criminal prosecution outlines the appeal process and subtextual dynamics, including highlighting a jury decision as a de facto option through the de odio procedure.Footnote 133 The high stakes of an appeal, with the proof procedure being combat and serious punishment for losing, might have fostered an environment where parties are coerced to settle before continuing on. Ongoing negotiation is facilitated by the multi-step structure of an appeal, with procedural hurdles, waiting time, and third-party deliberation all interspersed and encouraging resolution to occur at various junctures. Hurnard argued that bringing a “blackmail appeal” in these contexts was a common tactic, beginning a proceeding with the expectation of later settling, using the “threat of appeal on a capital charge,” a dynamic that might recollect our impression of Commonwealth Iceland as discussed above.Footnote 134 We can see this at work in a number of cases, but maybe a particularly compelling example is from Norfolk in 1208, where an appeal for manslaughter is set to be decided by a duel in the Easter term but by Trinity term is shown to have resulted in an agreement.Footnote 135 After all, Glanvill even expresses the general statement that “it often happens that cases begun in the lord king’s court are ended in amicable composition.”Footnote 136
It seems likely that a great number of private criminal cases, even for quite serious wrongdoing, were not fully prosecuted in court and instead settled outside.Footnote 137 It is difficult to gain a quantifiable view of this, and our records of course cannot account for disputes sorted before a formal appeal was made, but Kerr calculates that for appeals brought between 1194 and 1256, about 50% were then abandoned by the appellor.Footnote 138 At least officially, dropping a prosecution was illegal and resulted in a fine, while a settlement (reconciliationem) should only be made with a royal justice’s license.Footnote 139 But cases from 1130 on show these fines only rarely applied.Footnote 140 A “license to concord” could be obtained from a justice for a fee, likely in an attempt to exert royal control over and obtain profits from ongoing practices that were occurring unofficially alongside court business.Footnote 141 The rolls after 1181 show a significant increase in payments pro licencia concordandi,Footnote 142 and likewise fines for “withdrawing from justice without a license” appear more often from this point forward.Footnote 143 Licenses to concord seem to be a semi-official avenue where disputants could receive permission to settle out of court, which does seem to quite closely resemble similar dynamics in Iceland where lof signifies a “license” to likewise come to an agreement, with this Norse word itself then likely interpreted as “love” in England.Footnote 144
Further insight into these dispute behaviors is provided by Groot’s survey of pre-1215 English private prosecutions, which finds quite a high number of appeals that were begun but do not proceed or were retracted, often for quite serious crimes such as armed robbery or bodily harm. For 267 of these, the cases were simply not prosecuted, often for unstated reasons, with only about a dozen being later taken up for inquests and continued prosecution, heavily implying that the remainder were settled outside of court in “unlicensed concords.”Footnote 145 Of those 267 with recorded results, 134 cases ended with the defendant being deemed “without day,” meaning an indefinite adjournment (which is never resumed), rather than a formal retraction or expression of innocence. Groot argues convincingly that the many “without day” occurrences suggest a system where out-of-court settlements are occurring, with an agreement made and a case dropped, as part of standard daily practice.Footnote 146 This is particularly encouraged by the fact that even though there was a fine for dropping a case once it was begun,Footnote 147 these were rarely exacted, and justices seldom took up a prosecution.Footnote 148 Given the relatively small size of fines for non-prosecution, it seems reasonable that these amounts were often built into a settlement agreement, with a defendant reimbursing a fined plaintiff. Likewise, the cost of a license was usually the same amount as the amercement for retracting an appeal, making them functionally identical as a fee accompanying an out-of-court settlement.Footnote 149 In practice, licenses to concord might have been obtained by disputants who wanted to end a case by-the-books and pay for it as stipulated, while others, maybe the more cash-strapped, attempted to do so without paying the king and simply abandoned an appeal (often leaving the appellee “without day”). The rarity of being amerced for this might have made it a calculated risk that often seemed worthwhile.
To return to the 1208 Norfolk case mentioned above as an exemplar, the appeal was made by John Chamberlain against Herbert of Patsley for the killing of John’s brother, which, instead of a duel, resulted in a license to settle (convenit per licenciam domini regis).Footnote 150 The agreement involved Herbert paying a fine and significant compensation to the Chamberlain family but also agreeing to go to Jerusalem for seven years, facing executed if he returned sooner. This seems like a telling example where even punitive conditions are negotiated and added on to a settlement, with the threat of the duel and strict de jure royal punishment inducing Herbert to accept a lesser penalty, maybe a wise decision if he was not confident in his fighting abilities. Hyams noted that “here the threat of public justice provided a sanction to further the goal of a satisfactory peace.”Footnote 151 The extra detail in this 1208 concorded appeal offers a view into settlement dynamics that are otherwise rarely recorded, with the vast majority of non-prosecuted cases receiving little or no further official discussion. The stipulation of exile particularly demonstrates that negotiated dispute settlement was occurring and covered a much wider swath of legal activity than is otherwise indicated in legislation, including punitive measures. While maybe a matter of limited evidence, it should be noted that such behavior is rarely recorded in England but again recollects trends that seem typical in early Iceland, even specifically a limited term of exile being negotiated within a settlement as seen in Njáls saga.Footnote 152 Another English case where the dropping of an appeal is accompanied by an explicit discussion of the agreement is from Lincolnshire in 1202, where Thomas Sote accuses two men named Robert of seriously assaulting (breaking his arm) and robbing him, which the jurors verify. Thomas then drops his case, and the jurors report that they came to terms (Dixerunt etiam juratores quod fecerunt concordiam) for an undisclosed amount.Footnote 153 Here may be another of our few windows into what may have been widespread norms of dropped appeals, specifically in contexts of pressure to settle informally once a formal process has been initiated.
By the late twelfth century, parties in a private prosecution were quite incentivized to come to a settlement in ways that might not be immediately obvious from the records. This nuance is easily missed by studying legislation and legal treatises extolling the normative law of the king. Instead, it is implicit within details of early cases, of which we gain our first extensive view during this period. These dynamics likewise seem in conversation with wider English legal trends across the c. 900–1200 period, namely an increasingly harsh formal law that empowered accusers, reduced defensive options, and held severe penalties for those found guilty.Footnote 154 Groot argues that appellors used the expanding rights to sue under the Angevins as a new means of extracting compensation because “fear of that [royal] penalty plus fear of performing physical proof gave the appellee a powerful incentive to offer reparations to the appellor.”Footnote 155 This system relied upon the threat of punitive law and its processes, which encouraged a particular style of dispute behavior, as Hyams remarks: “All private efforts, whether to seek or to offer either vengeance or compensation, now occurred under the shadow of a general, public system of downward justice.”Footnote 156 This behavior “under the shadow” was even partly acknowledged and regulated through licenses to concord, but the majority of settlements likely occurred outside of this in the many abandoned appeals, to which royal officials may have turned a blind eye. This does not even account for how much settlement activity must have occurred without the formal lodging of an appeal at all, with both sides intimidated by the notion of even initiating a process that could result in trial by battle and serious consequences for defeat. This could also avoid making extra payments to the crown for a license or an amercement. In early English common law, likely the great majority of cases were settled; for the rest, progressing all the way through an appeal “became the remedy of choice for the really angry or the very desperate.”Footnote 157 Starkly different from compensation embedded within Anglo-Saxon formal law, such dynamics now occurred on its fringes thoroughly within informal practices that are either tacitly accepted or ignored by courts.Footnote 158 While this article has focused upon private appeals, comparable pressuring factors were likewise at play within public prosecution of crime. Angevin reforms such as the 1166 Assize of Clarendon established new stringent protocols such as group accusation by a presenting jury, which forced suspected criminals to make proof in the ordeal; a painful process after which one could still be exiled even if cleared of wrongdoing.Footnote 159 These procedures then also contained multiple steps that a case needed to proceed along, where the approval of various local groups was needed (i.e. twelve jurymen followed by men of four vills), providing ample pauses as well as opportunities for negotiation and the dropping of a case.Footnote 160 This is in need of further inquiry, but public prosecution likewise appears to be a fertile environment for stern “law,” which implied both high penalties and dangerous proof criteria, to motivate defendants to seek “love.”
Adapted from Hyams, the “shadow of law” framing seems fitting for disputes over wrongdoing in the early common law period and is reminiscent of the “love or law” dynamic, which seems to be characteristic of Viking-Age Scandinavian dispute resolution. In both, harsh de jure law engenders negotiated settlements that might include compensation as well as punitive aspects (especially exile), but in ways that are preferable to both parties rather than proceeding to the strict decisiveness of a court. Reinforcing this comparison are relevant linguistic connections surrounding the “love or law” phrase, deriving from Old Norse but summing up the balance of these options not only in Scandinavia and the Danelaw but also occasionally within our records of later English dispute practice into the thirteenth century. Explicit linkage comes from the Leges Henrici replicating this exact terminology from Wantage, possibly an important entry point from which the dispute connotations of “love” expand within English legal writings and culturally (i.e. “love-days”). There may be particular significance to Norse lof in Iceland being for licenses, which must be obtained in order to come to a settlement, since this exact situation is very much at play in England under the Angevins. The “license to concord” was an important mechanic in English dispute practice, which demonstrates an underappreciated relationship between a normative legal system and default traditional practices of negotiation. As in granting licenses in Iceland, this allowed for at least the impression of overseeing influence upon compensation practices between parties. For Henry II, this was one of many methods of exerting greater control over legal processes and extracting further revenue, through the sale of the license or by adding this to the long list of actions which amercements were levied against.Footnote 161 As with other Angevin reforms, most famously Clarendon’s juries of presentment, exact origins are unclear and likely arise from a milieux of legal influences; this study urges at least a consideration of Viking-Age Scandinavians, for whom about half of England was termed “Dane-law,” as contributors to this area of legal vocabulary and thought.
Conclusion
Through novel comparative analyses, this work has attempted to outline disputing dynamics over wrongdoing within Commonwealth Iceland as well as the c. 1000 Danelaw, possibly giving a representative impression of behaviors across the Viking World. Both of these case studies suggest a major, maybe even default, aspect of dispute behavior hinging on punitive formal “law” steering disputants towards informal “love,” where compromise is found through negotiation and arbitration outside of court. This may conform with a general Viking-Age Scandinavian understanding of the law as an intimidating domain to which one had a variable relationship, with “the law” and legal rights able to be concretely gained and lost.Footnote 162 Various early Nordic sources indicate that “law or love” was a binary of legal options for settling a dispute and seems to at least sometimes have meant this choice between formal and informal avenues. This is in stark contrast to Anglo-Saxon England, where compensation and the wider sphere of daily legal practice were more thoroughly covered by formal [and royal] law in public. There surely was some degree of legal measures impelling parties towards settlement in this society, with the threat of penal servitude or corporal punishment possibly serving this role to a degree.Footnote 163 But the pre-Conquest English system primarily revolved around prescribed compensation arranged in court within structures overseen by the king, rather than overwhelmingly punitive legal processes that compelled disputants to come to agreements outside of the formal framework.
In later England, within dynamics pointed to by Groot up until 1215, out-of-court settlement practices can be seen within an increasingly harsh system of punitive consequences and tightened royal control. These altered incentive structures may have actually led to a narrowing of formal law in its coverage of English dispute practice, with informal agreements now occurring outside of court to a greater degree than they did in pre-Conquest England. In this way, there may be a greater degree of continuity from earlier compensation-centric England than previously thought, helping to explain the “marvelous suddenness” with which Angevin reforms otherwise seem to have brought a sweeping erasure to feuding and compensation practices.Footnote 164 This hybrid system “under the shadow of law” was only occasionally acknowledged officially and recorded (in licenses to concord). To use the “court as a lever to force an equitable compromise” was not an uncommon practice in legal dynamics across medieval Europe,Footnote 165 but there is a striking connection in the particular mechanism at play here where a strict criminal code of punitive measures formed a threat that brought parties to negotiate outside of court in Iceland, the Danelaw, and later England; sometimes using shared “love or law” vocabulary. In these contexts, which diverge sharply from Anglo-Saxon England, formal law constitutes a separate and intimidating sphere that was often avoided: access to proceedings was less universal, court protocols were more strictly controlled and enforced, and overall the stakes of both the procedures (e.g. trial by combat) and resulting penal sentences (e.g. execution) were much higher.
The “love or law” phrase is relevant here, a major feature of legal historiography since Clanchy and White, which has not had its firm foundations in the Danelaw and Scandinavia adequately recognized. This terminology may represent a throughline for this particular type of dispute behavior in England. Scandinavian legal contact in the tenth century, a snapshot of which is represented by the Wantage Code, resulted in the “love or law” phrase, which may be our first indication of a broader transformation of how English disputes were to be settled. With roots as a legal binary across Viking-Age Scandinavia, this Norse aphorism is rendered not only into Latin within Anglo-Norman legal texts but is also picked up more broadly in English, with the alliteration continuing and contributing to its oral applicability. Into the common law period as seen in case records, a particular dynamic of informal settlement “under the shadow” of punitive formal law now existed, as an innovation upon earlier practice. It seems unlikely that there was any intention behind this gradual reorientation, but it does appear to be occasionally connected to the adoption of this specific Norse-linked “love or law” terminology, which may continue to be a valuable heuristic in our reflections on medieval law. While the exact vocabulary of the love/law binary did fade away, the “love-day” continued as a major English legal and cultural feature for centuries.Footnote 166 In terms of the overall shifts within English disputing culture, proving direct causation is unrealistic, but this is an instance where we might consider the “Scandinavianization” of how this core aspect of English law came to function. Rather than a particular institution that can have its Scandinavian origins pondered, such as Wantage’s twelve thegns as a precedent for common law juries, this is a much larger shifting of the legal ground that altered the baseline of daily practice, even if it went largely unnoticed at the time. The adoption of a “love or law” dynamic in criminal cases may represent a subtle and yet consequential realignment of English legal culture. The long-term inheritance of this transition could have been quite sweeping, especially if we recognize how much the Anglo-American legal system today mirrors these mechanisms: a criminal justice system that can be too obtuse to understand for many that encounter it and carries very harsh penalties, driving the vast majority of defendants to instead avoid a contest in court and come to a settlement. As highlighted recently by a deeply critical American Bar Association report, around 95% of criminal convictions in the United States come from guilty pleas, primarily through plea bargaining.Footnote 167 Even for those who profess innocence and may have a strong case, the risk of overwhelming penalties after a defeat at trial might intimidate one into a plea, not unlike both medieval Icelandic and English accounts discussed above.Footnote 168 Perhaps a system “under the shadow,” which predominantly regulates wrongdoing and distributes punishment through negotiation (“love”), compelled by the pressure of strict “on-the-books” protocols (“law”), is not so remote to us after all.
Acknowledgements
Thank you to Tom Lambert for the development of this work’s premise during his supervision of my PhD, funded by the Cambridge Trust. I am also grateful for seminar feedback from members of the Cambridge Centre for English Legal History, as well as to Daniel Lord Smail and Elizabeth Papp Kamali for support while a visitor at Harvard. My thanks to the anonymous reviewers; all errors and shortcomings remain my own.
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