The power of fathers over their children – especially over their daughters – is a central theme of Boccaccio’s ‘Decameron’. Novella V,7 situates the ‘patria potestas’ in a tension-filled position between honour and law, vigilante justice and public prosecution. The legitimation of cruelty and violence by invoking the ‘patria potestas’ is questioned through the confrontation with poetic justice.
The chapter argues for a more nuanced and empirically based understanding of the discourse on law and socio-cultural norms in Old Icelandic literature on the grounds of a narratological reading of ‘Færeyinga saga’ as a case study. It has often been claimed that Icelandic sources express an ideal of freedom based on communality as guaranteed by the law. By contrast, ‘Færeyinga saga’ represents a cynical discourse on power politics that renders law as an invariable concept obsolete and works solely on the principle that ‘might is right’. This cynicism, however, is presented in a form that leaves the narrative open to interpretation, showing that regardless of its possible dating, narrative literature can serve as a starting point for social discussion. Consequently, the discourse on law in medieval Iceland must be perceived as more polyphonic than has been allowed for by previous unifying readings in scholarship.
The society depicted in the Icelandic family sagas has often been characterised as the archetype of a ‘feuding society’. The disputing strategies found in the sagas have therefore served as an argument that the prescriptions of the laws which curb revenge were irrelevant in socio-legal practice. This dominance of the feud as the actual ‘law’ crystallising in saga disputes is questioned through a close analysis of gender roles. While ‘classical’ sagas frequently apply the motif of the female whetter who forces a male character to take action or lose his manly honour, thus stabilising the feuding mechanism, the contemporary sagas and non-canonical family sagas display a wide variety of male-female interaction in the negotiation of social resources and legal obligations. The systematic look at non-canonical passages reveals a discourse of counsel, in which gender roles are fluid and interchangeable. This fluidity reveals an implicit theory of ‘law’ in the sense of doing conflict which stresses the stabilising forces supporting written law opposed to the motif of the whetter, which comes to form a central element of the imagination of the Icelandic heroic age.
Since the Middle Ages, hospitable courts played a central role in the complex judicial landscape of the pre-modern age for the conflict resolution of parties of different regional origins, because civil disputes could be dealt with more quickly if at least one plaintiff or defendant was a (legal) stranger. With the obvious relationship between (social) belonging and law established by these courts, questions of asymmetries in law come to the fore, which under the common keywords of inequality, integration and exclusion are a leading interest of research in the history of law, culture and crime, but which have so far hardly been dealt with in research within the framework of civil court practice. The Duisburg Hospitable Court shows that the historical civil proceedings concerning non-repaid loans, undelivered goods or disputed estates were no less important for social stability and order in the pre-modern period than criminal proceedings, even though social integration and exclusion were not the core issues of a civil lawsuit. Since the Middle Ages, hospitable courts concerned themselves with communication and trade practices and at the same time constituted an institution that offered legal security for both foreigners and locals. This was still true in the early modern period, which generally stands for a time that became increasingly hardened towards strangers and people on the move.
Merchants in late medieval Antwerp worked with a number of different representatives: They appointed proxies to trade on their behalf, to collect debts in their name or to represent them in court. If a merchant wanted to authorize another person to act on his behalf, he went to a notary who issued a letter of procuration. The article discusses the role of Roman law in these procurations. It contrasts the procurations issued by the notaries with other models for procurations found in a form book for notaries in Antwerp. The analysis comes to the conclusion that the basic idea of installing a proxy did not rely on Roman law. However, knowledge of Roman law was crucial if someone wanted to be represented in a Roman law court. Furthermore, concepts derived from Roman law were applied when complicated problems or phenomena had to be shortened to a few words. In sum, the practice of including phrases and concepts of Roman law wherever they proved useful can be regarded as a part of the lex mercatoria, the customary law of merchants.