Law or treaty? Defining the edge of legal studies in the early and high medieval periods

Abstract

This article is an attempt to define treaties in a legal context, thereby re-aligning the medieval historiography with its modern counterpart, and to explore some of the textual and practical possibilities and problems of this context. It considers why some treaties in the early and high middle ages have been regarded as laws while others have not and argues that while the modern concept of international law is based on the three principles of treaties, practice and custom, and general principles of law (including canon or Roman law), medieval scholars have only looked to the latter principle, thereby disregarding the treaties themselves and legal practice.Treaties have attracted far more attention from historians, lawyers and political theorists studying the early modern and modern periods than they have from medieval scholars. Although in the last twenty years a number of historians have examined those occasions when treaties were negotiated and concluded in the middle ages, these studies, including my own, have mostly focused on the location of the conferences, the relationship between the parties -generally centred on notions of who held the upper hand in the negotiations -or on the so-called 'rituals' and ceremonies that inevitably surrounded such grand occasions. 1 In 2008, John Watkins highlighted this dearth of research into pre-modern diplomacy and suggested that the time has come for a multi-disciplinary re-evaluation of 'one of the oldest, and traditionally most conservative, sub-fields' of history. He pointed out that the history of pre-modern diplomacy has not been subjected to some of the 'theoretical and methodological innovations that have transformed almost every other sector of the profession', with scholars interested in race, ethnicity, gender, sexuality, literary studies and new modes of intellectual history often steering clear of diplomacy and diplomatic practices. Furthermore, Watkins rightly noted that 'the modern cross-disciplinary study of international relations has broadened the discussion of diplomatic issues for later historical periods, but the presentist biases of that conversation -centred on nineteenth-century understandings of the nation -have limited its application to the medieval and early modern periods'. 2