The Influence of the Principle "Necessitas Non Habet Legem" on Nordic Medieval Laws on Theft

INTRODUCTION

The chapter on theft in the Norwegian Code of the Realm, compiled through the initiative of King Magnus VI Lawmender (r. 1263–80) and promulgated by him in 1274, opens by declaring theft unlawful.¹ However, the Code goes on to stipulate that larceny would not merit punishment in the case of a starving man who steals food after unsuccessfully seeking gainful employment.² The Code of 1274 then prescribes the penalties for petit larceny for first-time offenders who do work to support themselves. Thus, the Code explicitly distinguishes between starving unemployed persons who steal food out of necessity and those who steal despite having access to a livelihood. It was a longstanding and widespread norm, as the Code was drafted for the whole of rural Norway and remained in force well into the seventeenth century. In this article, we consider whether this norm could have been inspired by the canonical maxim necessitas non habet legem (necessity knows no law).

In twelfth-century learned jurisprudence, criminal intent and will came to determine guilt, and discussions about culpability came to include also a concept of blamelessness.³ Many scholars have explored the intellectual history of the principle of necessitas during the early and high Middle Ages.⁴ Particularly Gilles Couvreur's important book Les pauvres ont-ils des droits? investigated the nexus of theft and extreme necessity between Gratian's (fl. ca. 1120–50) Decretum (ca. 1140) and the Liber extra (1234). Couvreur and Brian Tierney have analyzed the works of many theologians and canonists who accepted that starving people could take what they needed for survival as a natural right of self-preservation.⁵ Tierney as well as Virpi Mäkinen have investigated necessity as a natural right in several works regarding university discussions in later medieval theology and moral philosophy.⁶ These debates on natural law and the right of self-preservation were spurred by thirteenth- and fourteenth-century disputes on Franciscan poverty.⁷ The theme of poverty and necessity is another significant element of Tierney's work on poor law in medieval England.⁸

In medieval European laws, theft was deemed a severe crime, meriting fines, mutilation, and hanging.⁹ Yet, the literature on medieval legal practices regarding theft suggests that in some cases, hunger and need were considered mitigating circumstances during sentencing.¹⁰ But did the necessity principle have any influence on medieval legislation? Elizabeth A. R. Brown observed that moral norms were not always transmuted into law, "interesting and persuasive as they may [have] seem[ed]," and inspired no more than "a transient interest in the rulers that heard them."¹¹ According to Scott G. Swanson, who wrote more specifically on the principle of extreme necessity, it was "virtually the single basic moral principle of medieval canon law and theology resisted by the common laws of the various European states." In addition, he did not find any cases in which "judges ever considered applying the principle … in any secular law court in the Middle Ages."¹² On a similar note, Mäkinen has observed that, even if the necessity excuse became part of the European medieval ius commune, "it had hardly any justification in practice, and was thus more an ethical standard invoking moral statements."¹³

Nevertheless, the above-cited section in Norwegian law suggests that certain secular lawmakers made the principle more binding than a mere moral guideline. In this article, we examine the norms for sanctioning larceny in the Nordic medieval laws—the laws of the kingdoms of Denmark, Sweden, and Norway, as well as Iceland, which was incorporated in the Norwegian Realm in the thirteenth century—mainly focusing on the period of ca. 1100–1350. There are no existing Nordic court records from the period aside from some scattered documents. Consequently, no analysis of practice is possible.

This article argues that the canonical discussions of necessity were known in the medieval Nordic countries and they influenced sections on theft in certain secular laws. Through these laws, especially the Norwegian Code of King Magnus Lawmender, the canonical discussions were likely relevant to legal practice. We have found that in a Norwegian case in 1651—thirty-six years before the Code of 1274 went out of use in 1687—the theft of a sheep for consumption seems to have been excused because of poverty and hunger.¹⁴ However, our interest is not legal practice but legal norms. Therefore, we will analyze the laws, their background, and possible sources, and see how they fit in the larger framework on the influence of canonical learning on medieval Nordic legislation.

We briefly introduce the medieval Nordic laws under analysis and the context in which the laws were compiled and drafted. We also investigate contacts between Nordic clerics and major European seats of learning where necessitas was discussed. A proper analysis of the Nordic laws requires an understanding of how extreme necessity was construed, argued, and exemplified in major canonical and theological sources in Europe at the time. We will present the main arguments and discussions of the canonical principles of extreme necessity and necessitas non habet legem in medieval canon law and theology as these were likely conduits in the Nordic countries.

Then, we move on to analyzing the Nordic medieval laws (ca. 1100–1350). We begin our analysis with the earlier Norwegian and Icelandic laws before moving on to the Norwegian Code of the Realm from 1274. In this early law, we have found what seem to be the most enduring and relevant example of the necessity principle. We have identified only one Swedish law bearing minor influence of the canonical necessitas principle. Our research shows that law-drafters were aware of the principle when formulating sections on theft, regardless of whether it was adopted into law.

THE INTELLECTUAL HORIZONS OF MEDIEVAL NORDIC LAWS

There are not sufficient sources to indicate precisely when Nordic medieval laws were put into writing. In Iceland, Norway, and Denmark, this probably took place in the twelfth century, while the trend seems to have reached Sweden in the following century. The oldest surviving manuscripts date mainly from the thirteenth and fourteenth centuries. Most of the Nordic laws are regional compilations, since each realm consisted of several provinces with their own unique laws. The laws contained different elements without clear distinctions: statutes, customs, previous rulings by the public assembly (thing), or borrowings from learned law. In Norway and Sweden, national laws for the whole realm gradually replaced provincial laws. The Norwegian Code of King Magnus Lawmender of 1274 was adopted in Iceland with some modifications as Jónsbók in 1281, and the mid-fourteenth-century laws of King Magnus Eriksson (r. in Sweden 1319–64, in Norway 1319–55) were adopted for towns and the countryside. In Denmark, each of the three provinces of the realm (Jutland, Zealand, and Scania) had their own provincial laws that remained in force until the seventeenth century.¹⁵

It is generally accepted that learned law—especially canon law—markedly influenced Nordic medieval laws, but researchers debate the extent of this impact. Family law and procedural law have been the subject of numerous studies, and our research adds new dimensions to the field.¹⁶ Lawdrafters or compilators belonged to the secular and ecclesiastical elite. As clerics were literate, they usually participated in the law-drafting processes. Unfortunately, almost no sources on the medieval law-drafting processes in the Nordic countries have survived. Likewise, the names of the persons—clerical or secular—involved in the drafting processes are also typically not known. Therefore, we will discuss the intellectual horizon of the ruling elites more broadly.

We have minimal evidence regarding the education of twelfth-century Danish, Norwegian, and Icelandic clerics. We are aware of only a few connections between the clerics and schools and monasteries in Paris, which was the most popular center of learning for Nordic clerics at the time and was famous for its teaching in the arts, theology, and canon law. Archbishop Eskil of Lund (archep. 1137–77) had strong connections to the Parisian schools and monasteries.¹⁷ Eskil's successor Absalon (archep. 1177–1201) is believed to have studied either at the monastery of Saint Victor or with the canons of Sainte-Geneviève.¹⁸ Later, around 1165, he invited the French Augustinian monk William of Æbelholt (ca. 1127–1203) to Denmark, with the aim of reforming Danish monasteries. William had studied at Saint-Germain-des-Prés before entering the secular canons of the Abbey of Sainte-Geneviève in Paris. The Danish kings entrusted William with several diplomatic missions to the papacy, Venice, and France.¹⁹

Archbishop Absalon's successor, Anders Sunesen (archep. 1201–28), may have first pursued his studies in Paris—possibly also England—and in Bologna, but there is very little hard evidence to that effect. Yet, Parisian influences have been identified in his poetry, and the influence of the famous canonist Huguccio (d. 1210) is evident in his legal learning. He penned the commentated translation (paraphrase) of the Law of Jutland into Latin.²⁰ Some Danes may have had a more thorough education in theology and law. The renowned French decretist Stephen of Tournai (1128–1203), known to have discussed necessity in his works, wrote to Archbishop Absalon of Lund around 1185 to laud Absalon's nephew Salomon's scholarly assiduity (in scholis assiduus) and to commend him to all.²¹ Apparently, Salomon had pursued his studies under Stephen at the Abbey of Sainte-Geneviève. Stephen had become abbot there in 1176, after studying the liberal arts at Orléans and Roman law in Bologna under Bulgarus (b. bef. 1100–d. ca. 1167) in the 1150s. Although Stephen embarked on a monastic career, his legal expertise was frequently used in litigation both before and after he became bishop of Tournai in 1192.²²

In Norway, the first influential archbishop of the diocese of Nidaros, Archbishop Eystein (or Øystein, archep. 1157–88), spent time at St. Victor in 1161. His two successors, Eirik Ivarsson (archep. 1188–1205) and Tore Gudmundsson (archep. 1206–14) had also studied at St. Victor.²³ Ernis, the abbot at St. Victor (1161–72), had a sister married to a Norwegian aristocrat, and this personal connection may have contributed to several Norwegian clerics residing there.²⁴ Early twelfth-century Icelandic bishops had, like their Danish and Norwegian colleagues, studied in Paris.²⁵ The connections between Nidaros and the Parisian schools continued to flourish in the late twelfth and thirteenth centuries; for instance, Bishop Peder of Hamar (ep. 1253–60) studied under Albertus Magnus (ca. 1200–80) at the university in Paris.²⁶ It is evident that Norwegian clerics had access to and knowledge of the latest learned discussions in Paris, where the main canonical sources, the Liber extra and Gratian's Decretum, were being taught.

By contrast, less is known of the twelfth-century Swedish prelates, partly because of the somewhat later Christianization and a lack of sources. Yet, we have evidence that several Swedes had studied in Paris in the latter half of the thirteenth century. According to his vita, Bishop Brynolf of Skara (ep. 1278–1317), son of the magnate and provincial judge (lagman) Algot Brynolfsson (ca. 1228–98~1302), had studied assiduously in Paris for eighteen years.²⁷ Another Parisian scholar, magister Andreas And (d. 1317), dean of the cathedral chapter of Uppsala, bought a house in Paris to be used by students (domus Upsaliensis). The dioceses of Skara and of Linköping had bought houses for their students in the early 1300s. Moreover, thirty-four Swedes and nine Danes studied in Paris in 1329.²⁸ Considering the preeminence of Paris as a seat of study for Swedish clerics, some Swedish medieval synodal statutes were unsurprisingly influenced by those of Bishop Eudes (Odo) de Sully of Paris (d. 1208). For example, statutes from Skara during Brynolf's episcopate contain several sections copied almost word for word from the Parisian statutes.²⁹

Bolognese sources surviving from the 1280s onward confirm especially the presence of Danes and Swedes living there, but also of Norwegians, possibly in pursuit of studies at the university. For example, legum doctor "Berengarius Lodouixij de Norvia" was mentioned in 1293 together with several other northerners, while dominus Karolus Erlandi (d. 1296), canon of Uppsala, and magister Henricus, archdeacon of Lund, were referred to as Bolognese students (scolaris bononie) the same year. Archdeacon Henricus was called doctor decretorum in Bologna five years later.³⁰ This suggests a growing awareness of canon law.

There is little information about the ownership of canonical literature from the period. It is probable that the libraries of the archbishoprics contained the Decretum Gratiani and the main decretal collections in the early thirteenth century. The Decretum was known in Norway in the 1160s³¹ and extensively quoted in a long Norwegian political text, "The Speech against the Bishops" from ca. 1200.³² However, some surviving thirteenth-century wills and other sources indicate that those Nordic clerics who had studied abroad also owned at least the basic canonical sources, including the Decretum Gratiani and the Liber extra, sometimes with Ordinary Glosses, other summae, and commentaries by decretists and decretalists.³³ These learned prelates, belonging to the leading land-owning families, could through their studies and books act as conduits of high medieval intellectual currents and ecclesiastical doctrines. The cathedral cities were important literary centers from which texts and influences radiated to the secular elite—and to the compiled laws.³⁴

NECESSITY AND THEFT IN MEDIEVAL CANON LAW AND THEOLOGY

The seventh commandment of the Decalogue, "Thou shalt not steal" (Exodus 20:15), plainly ordered people not to appropriate property belonging to others. However, twelfth- and thirteenth-century scholars accepted that taking and consuming items necessary for the preservation of life originated in natural law. The right of self-defense (vim vi repellere) and the concept of necessity were the corollaries of the right of self-preservation. For example, wartime slaying ex necessitate was categorized separately from intentional killing, while the right of self-defense can be found in Roman law.³⁵

French twelfth-century theologians such as Peter Lombard (ca. 1096–1160) and Peter of Poitiers (ca. 1130–1215) debated whether it was sinful to steal in order to save one's own life or the life of one's father. They argued that the end did not justify the means and it was indeed a sin.³⁶ By contrast, canonists grasped and developed the necessitas principle, as observed by Gilles Couvreur and Franck Roumy, who patiently traced the intellectual history of the evolving concept through the early and high Middle Ages. After some initial hesitation, theologians followed, and the maxim became established by the later twelfth and early thirteenth century in theology, liturgy, moral philosophy, Roman law, and literature.³⁷ More generally, necessity and contingency were also debated in medieval philosophy.³⁸

Citing the Digest, Gratian observed in his authoritative Decretum that the right to legitimate self-defense was based on natural law. Commenting on this in his Summa (ca. 1160), Stephen of Tournai added that "all legislation and all law permitted one to repel force with force with moderation for one's protection."³⁹ Other dicta in the Decretum directly refer to the necessity principle. Discussing sacraments, Gratian built on an apparently well-known maxim: "As necessity knew no law, it itself could make law."⁴⁰ Stephen of Tournai rephrased the necessity principle as "A person in need is not subject to law," while canon lawyer Huguccio added that in situations of necessity, one cannot be called a law-breaker even if one does not obey the law.⁴¹

In addition, Gratian mentioned that while natural and divine law considered all things to be owned jointly (omnia sunt communia omnibus), human law (iure constitutionis) had created private property rights, the mine and thine.⁴² The notion of all being common in natural law originated in Roman law.⁴³ Gratian cited Ambrose (ca. 339–ca.397) arguing provocatively that just as stealing was as crime, so too was not giving one's excess property to those in need—not giving bread to the starving and clothes to the naked.⁴⁴ Larceny was defined as the unauthorized taking of something from an unwilling owner; thus, Huguccio reasoned that needy people would not be committing larceny if they thought or could think that an owner would have granted them permission to take a thing they needed.⁴⁵

Nevertheless, Gratian wrote elsewhere that "will, not necessity, makes robbers and thieves," Separating will from action is not an easy enterprise, and Stephen of Tournai seemed unsure about how to understand the distinction made by Gratian. However, Gratian quoted Luke 6:1–4/Matthew 12:1–8, referring to Christ's disciples who, compelled by hunger, ate ears of grain growing in a field on the Sabbath. Because of their hunger, Christ called them innocent of breaking the law.⁴⁶ Therefore, Gratian could be interpreted to mean that people who take what they need out of necessity are not to be considered actual thieves or robbers. The opinions of early decretists diverged on the sinfulness or sinlessness of theft out of necessity. However, the vast majority came to adopt the latter notions, expressed most thoroughly by Huguccio and Alanus Anglicus (fl. 1190–1215). By the time Raymond of Penyafort (ca. 1175–1275) wrote his Summa de casibus conscientiae (1226), the principle of extreme necessity excusing theft had become the communis opinio of canonists.⁴⁷

Consequently, the necessity rule was adopted in the Liber extra,⁴⁸ giving it papal authority and influence throughout Christendom. The necessity rule was attributed to the seventh-century Penitential of Theodore [of Canterbury], which, as cited in the Liber extra, imposed a relatively light three-week penance for persons stealing food, clothes, or a domestic animal because of hunger or lack of clothing. In case of a re-offense, fasting was not to be imposed. (Indeed, fasting may have been perceived as a useless form of penance for a sinner already suffering from daily starvation.) Yet, the necessity rule seems to be lacking in some versions of the Penitential of Theodore.⁴⁹

Nevertheless, the interpretation in the Liber extra went further than the referenced penitential authority, which does not go so far as to claim that theft would be completely sinless in case of urgent necessity. The title of the decretal, however, differentiates indirectly between "urgent necessity" and "not very urgent necessity" (ex necessitate non multum urgente) and deems theft motivated by "not very urgent necessity" to be a lesser sin meriting only light penance.⁵⁰ Later, Hostiensis (ca. 1200–71) deemed the less urgent necessity—"moderate necessity" (modica necessitas)—not completely blameless and requiring penance.⁵¹ Thus, the Liber extra suggested that theft in case of urgent necessity was pardonable and merited no penance.

Writing in the 1220s, the theologian William of Auxerre (ca. 1150–1231) accepted the natural law principle of community of property in case of extreme need, because under such conditions, one's neighbor's life and health was to be prioritized over worldly private ownership of goods.⁵² Certain canonists went even further to suggest that the poor could take recourse to ecclesiastical courts, and the bishop could force the rich to donate some of their wealth to charity under threat of excommunication.⁵³ The necessities for subsistence were also determined in the context of ecclesiastical taxation in the Liber extra. Based on canon 5 from the Third Lateran Council (1179), the decretal permitted moderate taxation, covering the necessities of running the diocese, but no sumptuousness.⁵⁴

As to theft and other crime, how far did the exception of extreme necessity extend? In reference to natural law and the principle of communality in case of need, the canonist Huguccio referred to Mosaic law authorizing the picking and eating of grapes in another's vineyard.⁵⁵ Geoffrey of Trani (Goffredus Tranensis, ca. 1200–45) discussed this in his Summa on the decretals. He accepted the principle that one could be excused for a crime if forced to steal food or clothes in extreme necessity, as everything was common in time of need.⁵⁶ Geoffrey excused killing another in self-defense, but he did not extend the principle to starving women committing fornication.⁵⁷ Rather, he referred to the Digest and the classical Roman authority of the eminent Ulpian (d. 228) who stated that "a life in utter turpitude was not excused by the pretext of poverty."⁵⁸

In his Summa aurea, Hostiensis reiterated the notion that, in situations of great necessity, all was common according to natural law.⁵⁹ Necessity authorized primarily the use of consumables, including food and victuals, drink, clothes, and shoes, as well as shelter.⁶⁰ In the works of later medieval jurists such as Johannes Andreae (ca. 1270–1348), discussions on necessity were self-evident.⁶¹ According to the scholarly communis opinio, after all other reasonable avenues of help had been exhausted, people were allowed to act to save their lives.⁶² Conversely, the extreme necessity of others could signify a positive duty to act. People were absolutely obliged to help paupers in extreme necessity by giving of their own surplus property. This applied equally to doctors and lawyers who were expected to help the most needy, free of charge.⁶³ Thus, the necessity principle had become generally accepted in canon law.

In theology, the maxim necessitas non habet legem came to be adopted in the twelfth-century Glossa ordinaria of the Vulgate Bible, and draws from Venerable Bede's formulation: "What is not licit in law necessity makes licit."⁶⁴ In addition, Thomas Aquinas's (1225–74) Summa theologiae (1265–74) witnesses how mainstream theology had come to incorporate the principle of necessitas and permissibility of larceny in extreme need. Discussing theft and robbery, he asked (art. 7) whether it was licit to steal in case of need.⁶⁵ Aquinas presented several points as arguments against such permission: first, the ambiguity of the Penitential of Theodore in requiring penance as presented in the Liber extra. Second, that a thing that was bad in itself could not be rendered good even if it was done for a virtuous end.⁶⁶ Third, that if it was unlawful to steal for the purpose of almsgiving, as Augustine of Hippo (354–430) had written, the same also applied to stealing for one's personal needs.⁶⁷

Thomas then countered these three arguments. He observed that all property, including private possessions, became common in the case of need. Property rights were created by human law, which was inferior to natural and divine law; in turn, any superabundance was to be used for the subsistence of the poor. He cited Gratian on withholding bread from the hungry and clothes from the naked.⁶⁸ If the necessity was both manifest and urgent—for example, in the case of imminent danger that could not be otherwise remedied—it could be relieved by any possible means. One could take property belonging to other persons either secretly or openly. In cases where the intention was immediate survival, rather than stealing or robbing per se, the deed could not properly be called larceny.⁶⁹ Thus, urgent or extreme necessity (urgens necessitas; necessitatis extremae) made licit the taking of another person's property for the support of one's own life or that of another.⁷⁰

Bridging canon law, theology, and practical use in his handbook for priests hearing confessions, Raymond of Penyafort accepted that persons stealing food, drink, or clothes because of life-threatening need, hunger, thirst, or cold did not really sin or steal.⁷¹ His authoritative Summa de poenitentia (also known as the Summa casuum or Summa de casibus poenitentiae, 1224–26) cited the Penitential of Theodore and the example of Jesus's disciples in the field as a case when otherwise private property was turned into a common good in a situation of need. He also observed that necessity knew no law, but if the need was not great (magnam necessitatem), the person sinned but the need attenuated the sin.⁷²

There are echoes of the necessitas principle in secular law as well. Peter of Blois (ca. 1130–ca. 1211) presented the case of a destitute man who had been taken in the act of theft when stealing something of small value in order to save himself and his starving wife and children. Peter severely criticized the death sentence the man had received.⁷³ The English Tractatus de legibus et consuetudine Angliae or "Bracton" (bef. ca. 1235) mentions the necessity plea, albeit not in the context of excusing theft. However, Britton, the French-language summary of English law (ca. 1290~1329), suggests that the actions of starving burglars stealing less than twelve-pence worth of food may have been considered either justified or attenuating. The text mentions minor children, lunatics, and other groups "incapable of felony" as comparable with the starving, possibly suggesting that they could not be treated as felons, as their actions lacked criminal intent⁷⁴ Alternatively, they received a lesser penalty.

The same notions were reflected in the Romanistic Summa legum brevis, levis et utilis of Raymundus Parthenopensis or Neapolitanus (prob. fl. in the fourteenth century) that listed extreme necessity as a circumstance excusing punishment for crime. Raymundus referred to the oft-mentioned principle that everything was common in case of need and discussed how extreme necessity—hunger or cold—excused the theft of life-saving items specifically. However, it followed that only relatively worthless things, such as a tunic or cloak, could be stolen. Stealing good clothes or several pieces of clothing—first a tunic, then a cloak, and then furs or a hood—was punishable as theft.⁷⁵ Raymundus was in line with the French lawyer Jehan Boutillier (ca. 1340–95), the author of the Somme rural on the customs of Northern France. To Boutillier, necessity was not a valid excuse for stealing horses, fine robes, or expensive objects; theft of such items was a hanging offense.⁷⁶

During the high Middle Ages, the notions of necessity were first accepted in canon law, then theology. Brown, Swanson, and Mäkinen suggested that the principle of extreme necessity was little more than a moral social standard. However, it acquired practical relevance through penitential manuals and some legal commentaries in later medieval Europe. The next section will clarify the extent to which the discussions and arguments of the canonists were reflected in Nordic medieval law.

EXTREME NECESSITY IN NORWEGIAN AND ICELANDIC MEDIEVAL LAW PRIOR TO 1274

Necessity as a concept had already appeared in Norwegian law before the Code of 1274. Norway consisted of four legal provinces, each with a public assembly and a provincial law. There are two surviving provincial laws, the Older Gulathing Law and the Frostathing Law. Both manuscripts date approximately from 1260, while the age of their contents varies. The Younger Gulathing Law from 1267 is lost along with all other Norwegian provincial law manuscripts. In both the surviving provincial laws, necessity was applied as a concept in some of the same contexts as they came to be found later, in 1274.⁷⁷ The surviving provincial laws also contain roughly the same definition of necessity as illness or injury as we find later in the Code of 1274:⁷⁸ "[I]t is a legitimate necessity for the one who is to pay if they are ill or injured, or some other necessities come up which good people testify that these prevented them from coming on the appointed payment day."⁷⁹ However, hunger and unemployment are first linked to necessity with the Code of 1274.

The Frostathing Law incorporated parts of a decree by Pope Alexander III (r. 1159–81). The decree permitted the inhabitants of the archdiocese of Nidaros (present-day Trondheim) to fish for herring even on holidays, except during the most prominent feasts like Christmas and Easter.⁸⁰ However, the Frostathing Law allowed the starving and the poor (the poor defined as families with no more than a cow and a calf) to fish for consumption even during these major feasts.⁸¹ Such a dispensation from the Church's own regulation is very different from exemption from punishment for theft, but it is still based on the same logic as necessitas non habet legem.

The Frostathing Law penalized all theft harshly, including theft of food. Theft of milk from cows out on the fields, vegetables, or hay were all punished with loss of legal protection.⁸² This punishment was a kind of outlawry, meaning that thieves had no right for compensation if beaten and all they possessed and wore could freely be confiscated.⁸³ Theft of an animal for food (dogs excepted), sheaves, or victuals from a storage shelter were punished with death if the value of the stolen goods exceeded one-third ounce of silver.⁸⁴ If the stolen food was worth less, the thief was to be "turfed," that is, he was to run between two rows of people throwing turf. From that moment on, the thief was without legal protection (eigi engan rétt á sér siðan), as was the case for theft of milk, vegetables, and hay.⁸⁵

Theft of food was less regulated in the Older Gulathing Law, which only imposed outlawry on those who stole animals for food. The Law also stated that theft of items worth less than one ounce of silver was punished with turfing, with stoning as an alternative, after the same procedure as in the Frostathing Law. If the value exceeded one ounce, the penalty was outlawry.⁸⁶ Therefore, stealing an animal for food was always treated as the most punishable of thefts.

Unlike the Frostathing Law, the Older Gulathing Law contains a specific rule on formerly enslaved people experiencing starvation. Though it was not directly related to the theft of food, it still displays the sentiment toward starvation and charity that existed before the Code of 1274. If a former slave and his family were starving, they did not have the right to beg for food from his previous owner and descendants. If they disobeyed, they became "grave men": the previous owner or descendants were to dig a grave in the churchyard, put the family inside it, and feed the last remaining survivor.⁸⁷ The law presented an alternative: to take the family in and make them "debt slaves" who worked for food or and lodging.⁸⁸ Debt slaves could be driven to work by beating.⁸⁹

The general negative sentiment toward theft of food and a duty to charity in the Older Gulathing Law and the Frostathing Law can also be found in Icelandic law prior to 1270.⁹⁰ All of these laws considered theft of food harshly punishable. The first surviving Icelandic compilation of law is Grágás (Grey Goose), supposedly revised and enacted in 1118, that have survived in two quite different manuscripts. One of the manuscripts, the Codex Regius (Konungsbók) declared: "It is possible to summon to full outlawry for theft of food, however much or little the quantity, whenever a man steals anything edible or freshly slaughtered."⁹¹

Iceland accepted the Norwegian king as their ruler in 1262–64. A new legal reform in Iceland followed quickly, and in 1271, a law code called Járnsiða (Iron Side) was introduced. Another code, Jónsbók, replaced the Járnsiða in 1281.⁹² Both Járnsiða of 1271 and Jónsbók of 1281 contain the fundamental rule on theft from the Code of 1274, based on the necessitas principle and operating with permissibility of larceny in extreme need: "[I]f someone steals food who is unable to get work to support themselves, and so, on account of hunger, saves their life, that theft is by no means worthy of punishment."⁹³ Since Járnsiða is regarded as a product of the legislative process that began with the issuing of a new law for Gulathing in 1267, it is highly plausible that the necessitas principle was introduced in Norwegian law before the summer of 1267. Since this rule was not included in the criminal law reform of 1261, we date the principle and permissibility of larceny in extreme need in Norwegian law to the period 1263–67, when the Younger Gulathing Law was prepared. For Icelandic law, the reform of Magnus Lawmender regarding necessity and theft was just as radical as for his Norwegian realm.

THEFT AND NECESSITY IN THE NORWEGIAN CODE OF 1274

We have argued so far that the idea of extreme necessity and licit larceny was adopted in Norwegian law during the reign of King Magnus Law-mender in 1263–80. We know little of King Magnus's early life beyond that he studied at the Franciscan monastery in Bergen.⁹⁴ He apparently kept close ties with the Franciscans. He chose their Church of St. Olaf as his final resting place—breaking with the tradition of Norwegian kings. The Church of St. Olaf was one of the beneficiaries of his estate. Norway's poor also benefitted from King Magnus's will: all of Norway's approximately fifty administrative units received funds to be distributed among the poor.⁹⁵

In the Code of 1274, moral concerns for the starving poor were inscribed into law. The Code consists of nine books, a tenth containing additions. Norms on theft were included in the ninth book and, as discussed at the beginning of this article, it begins with the most fundamental rule on theft (IX-1) categorically forbidding stealing. However, the Code stipulates an important exception to the rule, also quoted above: "if someone steals food who is unable to get work to support themselves, and so, on account of hunger, saves their life, that theft is by no means worthy of punishment."⁹⁶ Hungry unemployed thieves were not free to steal; theft was still a crime and a sin. However, they could not be punished for theft when experiencing extreme necessity. Even if the term necessity was not used here, it was well known and applied in thirty-eight instances in the Code, when exceptions were made to a main rule.⁹⁷ Examples of this include when men attended military musters, when persons had caused someone's death, or when persons failed to claim their inheritance within the time limit.⁹⁸

In another case, larceny was also excusable because of starvation and unemployment. Book seven on natural resources in the Code contains a rule on the theft of herring: "Now, people take herring from other people's nets and they are not beggars or their servants, and this is confirmed with witness testimonies, then the owners of the nets are to receive all the herring that the other person had moved on land, and that they scooped out without permission."⁹⁹

Thus, beggars could take herring from other people's nets without legal penalties. This would be a typical theft by the hungry in a part of Europe where fish in general, and herring specifically, belonged to the staple diet. Grain harvests were always precarious this far north and thus theft of grain was more problematic than theft of fish. Again, this paragraph appears as a specified rule supporting the more general main rule (IX-1). Another example is the legal protection of beggars: "Every person of age who goes between houses and receives alms has no right to personal compensation while they go with a beggar's staff—even though they are forcefully driven away—and they are healthy and fit to work, unless they ask for work with board and lodging and are refused."¹⁰⁰ Beggars fit to work enjoyed no legal protection, even if beaten and driven away, unless they asked for work. By contrast, the rule implies that beggars unfit for work could not be so mistreated but had a right to receive alms. Thus, beggars, who could take herring or other food without being punished, were to be unfit for work.

These two rules operated independently of each other in different parts of the Code of 1274 but were closely related in suggesting that starvation and poverty constituted exceptions from sanctions. Other rules regarding larceny, such as theft of seed grain, are based on the same ideas.¹⁰¹ If harvest failed and there was not enough seed grain in a locality, others who had more grain than they needed were obliged to sell their surplus of seed grain and flour for the market price.¹⁰² The law called this situation stornavðsyníum, meaning "large necessity," probably the Old Norse translation of extreme necessity.¹⁰³ It resembles the magnam necessitatem making all goods common, the idea that we have seen promoted by canonists and theologians such as Geoffrey of Trani, Raymond of Penyafort, and Thomas Aquinas.

According to the Code of 1274, if owners failed to sell their surplus, the king's sergeant was to confiscate and divide it among the needy. If the king's sergeant failed to assist those in need, the needy were authorized to break in and take what they needed. If the those holding the surplus defended their surplus grain with armed force, the defenders lost their rights to compensation for any received injuries. If the defenders of the grain died, the king had the power to decide the consequences.¹⁰⁴ The fact that this rule has no precursor in the Frostathing nor the Older Gulathing Law and is not found in Járnsiða indicates that the idea was introduced in Norwegian law from learned law between the issuing of the Icelandic lawbook in 1271 and the Code of 1274. It can also be noted that Icelandic Hoensa-Þóris saga (The saga of Tore the Chicken) seems to be written to explain this new idea of community of property in case of extreme need, which was introduced in Iceland with Jónsbók in 1281, to a wider audience.¹⁰⁵

Later, a rule on the return of cattle (VII-12) in the Code of 1274 was based on the same necessitas logic. According to the general rule, cattle that broke through fences and damaged neighbor's fields could be kept by the injured neighbor. However, the neighbor had to return the cattle if sureties guaranteed the eventual payment for the damage. If the injured party still failed to return the cattle, causing the owner and his family to face hunger, the king's sergeant was to muster all the local men and reclaim the cattle by force. If anyone who opposed the cattle's release was killed or injured, their families forfeited the right to compensation. In this case, the Code does not apply the term "necessity," but again we see poverty and hunger justifying radical action. Although poverty was not explicitly mentioned, here, it was implied through the owner's inability to pay for the damage and starvation if the animals were not returned. In four of the forty-one surviving manuscripts of the Code, the rule was explicitly said to apply to a poor (fætakr) person's cattle.¹⁰⁶ As with the seed grain and hunger, this rule justified the use of force with killing as a possible outcome in extreme cases, but presupposed the participation of the king's sergeant, meaning that such action was officially authorized.

In sum, the influence of the principle of extreme necessity can be observed in the Norwegian Code of 1274, which did not penalize the hungry and unemployed poor for stealing food to save their lives. Unlike its predecessors, the Code recurrently uses the Old Norse words for necessity, repeatedly linking hunger and extreme necessity in discussing exceptions to theft. In addition to great or extreme necessity, the notion of everything being common in the time of crop failure and famine suggest the influence of learned doctrines on Norwegian and Icelandic law. The adoption of the necessitas principle considerably changed the norms regulating theft in Nor-way and Iceland.

NECESSITAS AND THEFT IN SWEDISH AND DANISH MEDIEVAL LAW

Four of the eight existing Swedish provincial laws, largely surviving in manuscripts dated ca. 1280–1350, each contain a special chapter on theft.¹⁰⁷ The other four provincial laws incorporated the norms on theft in chapters with a more mixed content.¹⁰⁸ King Magnus Eriksson's Law of the Realm (ca. 1348~50) included a special chapter on theft. These chapters, like book nine in the Code of 1274, discuss larceny and its punishments, the procedure for searching a house for stolen goods, stealing special types of property, finding property, and lawful purchase.

Swedish laws graded sanctions depending on the value of property as was typical of medieval law on theft in Europe. Field theft—stealing growing produce from fields, gardens, and orchards—was separately penalized in most laws. Swedish provincial laws held in unison that picking heads of grain in fields was a serious offence as in the Frostathing Law. Some laws used a special word, agnabak (agnæ bakær), for grain thieves.¹⁰⁹ Growing crops were vulnerable to theft as they could not be protected under lock and key. Stealing from a field was punishable, but the fine could be smaller if the field had already been harvested.¹¹⁰ Thus, medieval canonists and theologians may have cited Jesus's disciples as an example of the hunger and necessity rule, but it was emphatically repudiated in Swedish medieval law.

Instead, discussing paupers stealing food, the Younger Law of Västgötaland (West Gothia) contains an equivalent to the necessitas and theft section in the Norwegian 1274 Code. According to that law, if a poor man stole a loaf of bread or a full meal, he would not be punished. However, the law stipulated he had to be a "true eleemosynary man," living on alms and unable to work for a living. In addition, he could steal food only three times. After that, he would be considered a pilferer and punished with fustigation and the amputation of ears.¹¹¹ Thus, the Law impeded abuse of the exception of extreme need, preventing beggars from becoming customary thieves.

Certain French mid-thirteenth-century customary laws were concerned with recidivism. The customs of Orléans were designed to show clemency to pilferers: if they were taken for petit theft (petit larrecin) and apparently motivated by poverty, they were only to be exiled from town. However, this was only possible if the thief had "neither been mutilated nor banned"—probably meaning that habitual thieves and other criminals forfeited the right to use this excuse. Certain other coutumiers considered necessity an extenuating circumstance meriting lenience for first-timers while recidivists could expect hanging.¹¹² According to Parisian fourteenth-century practice, beggars stealing bread were consequently searched. If they possessed enough money to buy the stolen bread, the noose awaited them, but had they no money, they went unpunished.¹¹³

Some manuscripts of the Law of Västgötaland had rubricated the section: "If a 'stave man' steals" equaling them with "eleemosynary men."¹¹⁴ "Stave men" (stafkarl), wandering beggars, were also mentioned in several provincial laws, including both Laws of Västgötaland, in the context of what priests received for their burial—their staves and pouches, as they had practically nothing else.¹¹⁵ Thus, the Younger Law of Västgötaland differentiated between the deserving poor, beggars unable to work and living on alms, and underserving vagabonds (nokkædrumber; ældæræ) who did not pay taxes or rent and refused to take on work. The former could merit compassion if starving, while anybody could whip the latter with impunity just for being beggarly vagrants.¹¹⁶

No other Swedish provincial law contains a similar norm clearly connecting poverty with stealing food. Moreover, when the law commission created what became King Magnus Eriksson's law for the countryside in the 1340s, this section about impunity for hungry paupers stealing a small amount of food was omitted.¹¹⁷

Generally, Swedish medieval laws do not link extreme need such as poverty to cases of field theft.¹¹⁸ Nevertheless, the Law of Dalarna contains an oblique reference to need when allowing travelers with exhausted (þröttan) horses to help themselves to fodder from another person's hay barn. If they took only as much hay as the horses ate, they escaped fines. However, if thieves broke into the barn "without necessity" (at oþrængdo mali) and took more hay, or transported it away on pack animals or carts, they were fined.¹¹⁹ In this case, the concept of need may not directly match the spirit of the necessitas principle, as it could have been limited to the specific circumstances of traveling long distances in isolated regions with limited resources.

Yet, medieval Swedish laws contained other examples of necessitas. For example, the Chapter on Land of the Younger Law of Västgötaland forbade a woman from selling land unless "she was forced to do it through hunger, lack of clothing or other dire necessity." The following section mentions the same compulsion, a need to obtain food or clothes, authorizing the sale of land by both men and women.¹²⁰ The reference to food and clothing implies a link to the necessity principle. The concept of necessity was also referred to in special circumstances (þrang; þranglöso) that could prevent people from harvesting before Michelmas.¹²¹

The necessity exception in the case of theft only appears in Sweden in this clear-cut form in the Younger Law of Västgötaland. The Older Law, dated to the first half of the thirteenth century, does not contain a similar section. Thus, it was only introduced in the Younger Law, traditionally dated to the 1290s.¹²² Even if a later, post-1315 dating is proposed,¹²³ the norm is clearly later than the Norwegian Code of 1274. We suggest the Younger Law of Västgötaland may have been influenced by the Norwegian Code. Alternatively, close ecclesiastical and social contacts between the diocese of Skara (Sweden) and the archdiocese of Nidaros (Norway) may have inspired similar legislation, including the sections of necessity and theft. Västgötaland shared a long border with Norway, and it its provincial law has similarities to Norwegian laws.

The similarities may also derive from the close links between Västgötaland's ecclesiastical and secular magnates and Norway. When Archbishop Jon (Johannes) Raude (archep. 1267–82) of Nidaros fell afoul of first King Magnus and then of Norwegian secular magnates on ecclesiastical privileges, he was outlawed. However, he found refuge in Skara in the autumn of 1282. There he probably resided with Bishop Brynolf of Skara for some months until he died in December 1282. Later, during and after 1288, Brynolf's father and several brothers came to reside in Norway.¹²⁴

We know nothing about the person(s) behind the updating of the Law of Västgötaland. While Bishop Brynolf is known to have issued synodal statutes for his diocese, it has been suggested he also played an active role in the revision of the secular law in the province.¹²⁵ However, the existing sources remain silent. Nevertheless, it is worth observing that the most obvious examples of the adoption of the necessitas principle in the medieval Nordic countries can be found in pieces of legislation reputedly influenced by persons with known ties (in the case of King Magnus, as discussed above) or alleged ties (Brynolf) with the Franciscans. As mentioned above, disputes about Franciscan poverty and the right of self-preservation fueled thirteenth-century scholarly discussions on the necessitas principle.

Researchers have disputed whether or not the Franciscans, whose convent had been established in Skara in 1259, influenced Brynolf. Sven-Erik Pernler dismissed the notion of clear influences as "unfounded in the source material."¹²⁶ However, the Skara Franciscans were actively involved in Bishop Brynolf's canonization process by collecting miraculous stories and preserving the tradition.¹²⁷ Consequently, direct Franciscan influence on theft legislation through connections with key persons linked to the laws seems merely circumstantial. The Danish laws were largely compiled prior to the establishment of the country's first Franciscan monastery (1232) even if the Danish kings patronized them in the second half of the thirteenth century. Several Swedish kings favored the Franciscans during the same period, and the Franciscan convent church in Stockholm became the royal burial place in the later Middle Ages.¹²⁸ Yet, the link between necessitas and theft in Danish and Swedish law is only slight. Thus, Franciscan influences alone cannot sufficiently explain the adoption of the necessitas rule in certain laws.

As for Denmark, the only law referring to necessity was an addition from 1241 to King Valdemar's law for Zealand. It contains a lengthy rule on theft. The main principle is that thieves could not be tied and brought to the public assembly unless the stolen property was worth five pence. Grain thieves (agnbak) were an exception, with more severe punishment. They could be tied even if they stole only half a bushel of grain.¹²⁹ After long discussions on several aspects of theft, such as the procedure for searching for stolen goods, the chapter ends with the following reflection: "But if any man steals food for himself or his wife in a year of hunger because he cannot feed them otherwise, then he is harsh, both before God and before men, who lets him hang or causes him great suffering when it was done out of hunger's need."¹³⁰ Thus, hanging a starving thief for stealing food was considered harsh, but not forbidden. Apparently, the principle of extreme necessity was not unknown in Danish law but only considered an attenuating circumstance applicable at the judges' discretion.

CONCLUSION

Current scholarship has argued that the necessitas principle was more a theoretical and moral rule than it was a law. Nevertheless, as we have demonstrated, necessitas influenced norms and practice on larceny in medieval Europe. An examination of theft and necessity norms in Nordic medieval laws determines that the principle of necessity left its imprint on these to a varying degree.

In Norway and Iceland, the principle of extreme necessity came to play a central role in the theft of food. The Norwegian Code of 1274, meant for the whole country, and the Icelandic codes of 1273 and 1281, all issued by King Magnus Lawmender, endorsed the principle of necessitas non habet legem. For Swedish law on theft, the principle was less influential, mainly confined to the Younger Law of Västgötaland, influenced by Norwegian law. The similarities may be explained by close ecclesiastical connections between Norway and Västgötaland, and the Franciscans may have had additional influence. Moreover, the norms differentiated between poor that were able to work and deserving beggars. By contrast, the necessitas principle's influence on Danish medieval law was at best trivial.

Nordic law did not excuse stealing clothes despite the inclement climate. Canonists used the biblical example of Jesus's hungry disciples eating grain to authorize the use of another person's property in a state of necessity. Nevertheless, picking heads of grain was explicitly forbidden and fineable in many Nordic medieval laws.

Although Nordic twelfth- and early thirteenth-century prelates and their circles studied in Paris, why did the earlier Danish and Norwegian provincial laws not discuss necessity in connection with theft? When these earlier Nordic laws were compiled, theologians—unlike most canonists—had not yet universally accepted the excuse of necessity, as Couvreur has shown. Whether need made theft of necessities permissible was disputed by twelfth-century scholars. Gratian accepted the principle in his Decretum, and decretists largely confirmed the principle with arguments like everything being common in need, drawn from the Bible, Roman law, and penitentials. "Necessity knows no law" was included in the Liber extra in 1234. Theologians embraced it after some initial hesitation. The principle of necessity recurred in lively scholarly discussions by jurists, theologians, and philosophers, and was echoed in medieval secular literature—in works such as William Langland's Piers Plowman (ca. 1370–86) and popular religious works like Henry Parker's (d. 1470) Dives et pauper.¹³¹ It permeated many fields of late medieval society.

However, by the later thirteenth century, the Liber extra and theological authorities had confirmed the principle. Changes in European intellectual horizons probably partly account for the use of necessitas in certain later medieval Nordic laws, while political will probably accounted for its omission in later national Swedish law. This analysis of Nordic medieval law demonstrates that learned discussions and canon law could have direct legal effects on secular law even in the most remote parts of medieval Christendom.

As Kenneth Pennington has observed, one of the most piercing and influential aspects of ius commune jurisprudence on medieval and early modern European legal institutions was the "creation of norms, maxims and rules of law. Scholars ignore the power of these norms to mould thought and institutions at their peril."¹³²

This is very true when searching for traces of necessity in medieval legal norms on theft. The necessity principle's clear influence on King Magnus Lawmender's legislation in the 1270s is not without parallel in European legal history. Yet, later medieval natural rights debates influenced more pronouncedly early modern scholarly discussions on the nexus between self-preservation, necessity, and theft.¹³³