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An examination of historical reconstruction's impact on modern customary international law via an analysis of medieval post-conflict ransoming of prisoners.

I. INTRODUCTION

Customary international law rests in an intriguing area of our legal world. It has been defined, redefined, and even its very existence rebuked. The beauty of customary international law as a whole rests in its interpretative nature. Whether depicted as a form of universal truth or a fluid stream that runs through our global societal constructions, there exists a fascinating nature to states' customary dealings on the international scale.

Fractious though it may be to point out, the study of history presents a similar nuance to its nature. This is aptly summed up by Samuel Butler, who said, "God cannot alter the past, but historians can." (1) The modern study of history is, in itself, an exercise in interpretative historical reconstruction, whereby the historical scholar attempts to explain, via her contemporary mindset, past events by using evidence collected through various other fields of study, including the auxiliary sciences of history such as historiography, archaeology, chronology, and sciences outside the historical field such as etymology, theology, and geology; however, this is by no means a negative reproach. Historical reconstruction is something that should be embraced as the appropriate understanding of a historian's field of work in that it brings the general study of history into the fold with a variety of forms of modern disciplines.

In relation, customary international law has, as its root, this element of historical reconstruction. Modern parties seek binding principals through an examination of past events with a focus on proffering the idea that a customary norm has been established. Essentially, customary international law and the study of history both involve a modern eye looking into the past.

This Article examines the connectedness of customary international law and the study of history. It focuses on a specific element in the past that links the two and by doing so further explores the current state of customary international law and the meaning of historical reconstruction. Moreover, this Article searches for the roots or elements of the modern principles of intentional customary law existed in medieval Europe and the Middle East in the form of a post-conflict prisoner exchange.

Part II of this Article discusses the definitions of customary international law and usage and their current state. Part III looks to the ransom culture of medieval post-conflict exchanges. Part IV then postulates that there is enough evidence to establish the existence of protocustomary international law or usage in the medieval ransom culture, by bridging issues such as the lack of formally nationalized states and evidence of legal obligation. Part V then returns to the present and analyzes whether this exercise sheds light on the current state of customary international law.

II. CUSTOMARY INTERNATIONAL LAW AND USAGE

A. Definition of Customary International Law

Customary international law is often considered one of the two main principals of international law (the other being treaty law). The widespread consistent state practice, "arising from a sense of legal obligation," supports the "view that a particular practice has become a rule of customary international law." (2) Yet it should be carefully noted that there is no universal formal definition of customary international law, which thus duly reflects its underlying fluidic nature.

Customary international law exists in codified form. In the realm of codification, it has been termed the "[c]ustomary ... practice of states followed ... from a sense of legal obligation." (3) Predominantly, Article 38(1)(b) of the International Court of Justice Statute lists customary international law as one of the sources of international law while noting "international custom[] as evidence of a general practice accepted as law." (4)

These codified definitions contain two parts: an objective and a subjective element. Cornell University Law School's Legal Information Institute notes that "[c]ustomary international law can be established by showing (1) state practice and (2) opinio juris." (5) Opinio juris, the long form of which is opinio juris sive necessitatis, i.e., an opinion of law or necessity, "denotes a subjective obligation, a sense on behalf of a State that it is bound to the law in question." (6) State practice thus refers to the objective measure of how states act or refrain from acting. (7) Nonetheless, the codified definitions are not the only definitions available.

In a sixteen-year committee project, the preeminent International Law Association (ILA) issued a comprehensive report (ILA Report) on the formation of general customary international law. (8) The ILA Report makes poignant reference to a quote from the ancient Roman jurist, Javolenus Priscus: "onmis definitio in iure civili periculosa est, parum est enim ut non subverti possit--every definition in the civil law is dangerous, for there is hardly one which cannot be undermined." (9) As such, the ILA Report's definition of general customary international law is meant merely as a working definition to help those who are new to the topic:
   [A] rule of customary international law is one which is created and
   sustained by the constant and uniform practice of States and other
   subjects of international law in or impinging upon their
   international legal relations, in circumstances which give rise to
   a legitimate expectation of similar conduct in the future.... If a
   sufficiently extensive and representative number of States
   participate in such a practice in a consistent manner, the
   resulting rule is one of 'general customary international law'....
   Where a rule of general customary international law exists, for any
   particular State to be bound by that rule it is not necessary to
   prove either that State's consent to it or its belief in the rule's
   obligatory or (as the case may be) permissive character. (10)


There is a stark and important difference between the codified definition above and the ILA report's definition. The ILA report maintains the element of state practice when it uses the language "constant and uniform practice of States" (11); however, the ILA Report's definition asserts that opinio juris sive necessitatis is in fact not necessary. In attempting to trace the subjective element's historical roots, the jurists at ILA fondly note that though opinio juris is Latin, its origins cannot be traced or found "in classical Roman law and appears to be of relatively recent and rather dubious provenance, especially when applied to international law." (12) The ILA report notes, "States actively engaged in the creation of a new customary rule may well wish or accept that the practice in question will give rise to a legal rule, but it is logically impossible for them to have an opinio juris in the literal and traditional sense...." (13) As such, it removes the requirement that states must feel the rule is legally binding from the building blocks of the customary international law foundation. The Legal Information Institute concurs, stating, "opinio juris is an unsettled and debated notion in international law." (14)

Further, it is not just the second prong of customary international law that is under revision. Opinio juris is also drawn into question. Roozbeh "Rudy" Baker (Baker) notes, "[i]ndeed, since the 1970s, a wide range of newer non-traditional scholarship has emerged arguing against a strict adherence to state practice and opinio juris in determining customary international law and advocating instead a more relaxed interpretive approach." (15) Baker finds jurists have contended that, "State practice, if it has any role at all to play, is a secondary factor in customary international norm formation in that it can be thought of as composed of a general 'communal' acceptance." (16) Even further, jurists have also postulated how a state, which is a political institution, as opposed to a sentient being, can be aware of anything, let alone have an opinion on something. (17)

There is definitely a pervasive feeling of ambiguity that arises when discussing the definition of customary international law. The lack of a central authority, i.e., a unified government, is often a criticism of whether international law, as a whole, is indeed law. (18) Perhaps it is also because of the historical nature of customary international law that even allows jurists to review its very definition. Simply put, perhaps Javolenus Priscus was correct. (19)

B. Liberty of States

An important transition point worthy to note in the discussion of customary international law is the 1648 Treaty of Westphalia. (20) Westphalia ended the Thirty Years' War (1618-1648), which fractured the Holy Roman Empire along Protestant and Catholic lines, and the Eighty Years' War (1568-1648) between the Dutch Republic and Spain, in which Spain recognized the Dutch Republic's independence. (21) Nonetheless, Westphalia also set a milestone to which international law jurists point to as a transition to our modern nation state system.

The Treaty of Westphalia had a profound impact on the practice of international relations. It "embraced the notion of sovereignty," specifically encouraging the understanding that the sovereign enjoyed exclusive rights within a given territory. (22) Nevertheless, Westphalia "also established that states could determine their own domestic policies" within their own geographic sphere. (23) Westphalia essentially established the modern states that dominated Europe in the ensuing centuries, including Austria, Russia, England, France, Netherlands, and Belgium. (24)

Westphalia created the modern interstate system, which "confirmed the success of medium-sized states by eliminating rival power foci both above and below." (25) By "below," it is meant that states achieved acceptance of a centralized authority over that of, at times, loosely held together historical feudalistic models; whereas "above" meant the removal of the last vestiges of papal and empirical political supremacy. (26) The outcome has been labeled the "liberty of states." (27) The end result was the foundation of our modern day sovereignty laws. (28)

This revelation is important in that it gives us States to effectuate State practice as defined above. (29) One understanding prior to this point, is that there was no set basis for international law as reflected in modern-day definitions because, "[t]he mainstream of medieval European politics was not territorial in nature" but, instead, a looser amalgamation of personal loyalties and socio-religious constructs. (30) Thus, it can be argued that while there were customs and usage in medieval Europe, it was more in a "from the ground up" or localized sense differing from the current understanding of customary international law which is State produced, i.e., top down.

C. Definition of Usage

Black's Law Dictionary defines usage as "[a] well-known, customary, and uniform practice." (31) Black's makes reference to the Latin usu. (32) Usage is described in the commercial setting via the Restatement Second of Contracts, as follows: "[although rules of law are often founded on usage, usage is not in itself a legal rule but merely habit or practice in fact." (33) The Restatement continues, "[a] particular usage may be more or less widespread. It may prevail throughout an area.... Usages change over time, and persons in close association often develop temporary usages peculiar to themselves." (34)

The noted international jurist Ian Brownlie (Brownlie) formulates a succinct characterization of the difference between international custom and usage by stating that "[a]lthough occasionally the terms are used interchangeably, 'custom' and 'usage' are terms of art and have different meanings. A usage is a general practice which does not reflect a legal obligation." (35) Brownlie reinforces this distinction to draw attention to the fact that an essential element of customary international law is the sense of legal obligation, or opinio juris.

Kinji Akashi (Akashi)'s critical analysis of the writings of the late seventeenth century international law jurist, Cornelius van Bynkershoek (van Bynkershoek), discusses this divergence as well. (36) Akashi asserts U[u\sus has usually been translated into 'practice'" and also notes that the Latin term consuetudo has been translated to mean "custom." (37) "According to the modern theory of the law of nations, the term 'practice' may cover 'every activity of the organs and officials of a state in an international context' and 'custom' may indicate 'evidence of a general practice accepted as law'." (38) Akashi concludes that usus, as van Bynkershoek used the word, should be seen "not as a legally binding norm but as a point of reference." (39) Akashi concedes that van Bynkershoek's conflicting use of the term may leave "room for the interpretation that usus constitutes something more than mere practice without any legal implication," since van Bynkershoek does not provide any reference as to what that may mean. (40)

Still, it appears self-evident to Akashi that van Bynkershoek's use of the term "consuetudo implies a legally binding force." (41) Akashi quotes the jurist and says, "[j]ust as the consuetudo of the people, which binds individuals, is a part of civil law, so the consuetudo of nations, being based on the presumption of consent, binds individual nations." (42) Akashi does note ambiguities in van Bynkershoek's use of the term, in that consuetudo is not on par with the modern understanding of customary international law and may not require absolute conformity among the parties, and that at times the jurist uses the term to mean "practice." (43)

In using a definition of usage as a general practice without a sense of a legal obligation or essentially lacking opinio juris, an interesting conundrum is presented. Jurists, especially those at the ILA, (44) are not all in agreement that the lack of opinio juris automatically means that a rule is not an international customary norm. As such, jurists do not visualize a clear deviation as Brownlie does. To jurists, usage is not simply custom that lacks legal obligation.

Nevertheless, it is not necessary to rectify a hot button issue in international law, a need of opinio juris, to gleam a meaning behind the term "usage." Through a utilization of the commercial and common definitions, usage is not actually a law; instead, it is an observation on behavior. Further, usage is not limited to State practice; rather, it can be derived from individuals in close association, such as those in personal loyalties or bound by socio-religious constructs. In other words, various definitions of customary international law include elements of usage, but not all usage is customary international law. Although usage and customary international law are two distinct terms, they are intrinsically related.

D. Current State of Customary International Law

The reality is that the current state of customary international law still deals with its fluidic nature. As can be seen with conflicting definitions, there is an underlying flavor akin to the apt quote, "I know it when I see it...." (45) The ILA report finds four main difficulties in determining what exactly is the current state of customary international law. (46) Firstly, "customary law is by its very nature the result of an informal process of rule-creation, so that the degree of precision found in more formal processes of law-making is not to be expected here." (47) Secondly, the issue is wrapped in "deep legal theory and ideology." (48) Thirdly, there are practical political concerns. (49) Finally, the ILA notes jurists' lack of authoritative determinations. (50)

One of the biggest changes to customary international law has been the acceptance that "human rights norms found in international treaties actually form a key component" of it. (51) With this, Baker contends,
   the old debate between the non-traditional scholarship and its
   critics can safely be said to be over. The balance of methods
   advocated by the non-traditional scholarship in its
   reinterpretation of the sources of international law has been
   adopted within the field. (52)


Meaning that State practice and opinio juris are no longer to be deemed sacrosanct and that human rights, such as beliefs like the rights expounded in the Convention Against Torture, (53) should be seen as norms of customary international law.

Baker points specifically to the adoption of the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) into customary international norms. (54) "While the majority of ICTY and ICTR jurisprudence follows generally accepted international law, certain case law does not, and in fact conflict with long-held international norms." (55) The issue Baker concludes reflects that jurists and international commentators grab on to ICTY and ICTR jurisprudence as effectively established customary international law and, "[w]hen this happens with respect to newly articulated rules which, however understandably, run counter to long-held customary international law norms, the consequences can be problematic." (56)

A portion of the title to Baker's law review article speaks to the heart of this piece, "Old Challenges and New Debates." (57) There is nothing new about the idea that customary international law is interpretative, and in fact, the central ethos of this Article includes an underlying attraction to that nature. It can be argued that the consequences of customary international law have always been problematic. This problematic nature is a result of an attempt to apply historical tendencies to a contemporary issue, and the situation not only lends itself to reinterpretation but also dictates the need for historical reconstruction of past events beyond one party. Thus, it creates an amalgamation of past historical events that includes varying, and at times contrary, points of view.

Furthermore, it is helpful when discussing customary international law, to focus on an important point about its nature, which is best described by the following twelfth century legal quote concerning the unsteady state of legal affairs in the Latin Kingdom of Jerusalem: "[t]he usages and laws of the kingdom ... are not written down, nor are they made into canons, nor are they authorized by agreement...." (58) Thus, customary international law at its very core, is neither a statute nor is it an arbitrary decision as it carries immense value. It is what was and what should be. It is what the collective, whatever that collective may be, agrees for it to be. It can be expanded or contracted as long as the collective deems it so based on their historical understanding of what was once or what is found customary.

The idea that customary international law holds such a high standard in our international law framework is marvelous, because it is both so simple yet so entirely complex. The ILA Report notes that scholars and jurists can at times get lost in the nuances, and essentially they have failed to address "the forest from the trees." Nevertheless, what may in fact be occurring, is that with each jurist's pen stroke, and with each international handshake, a new tree is planted, and the forest that is customary international law is nothing more than just a collection of many different trees.

III. THE MEDIEVAL POST-CONFLICT RANSOM CULTURE
   Nowadays we have abandoned the ancient rules of making slaves of
   prisoners and of putting them to death after they have fallen into
   our hands. [Instead], by written law, good custom and usage, among
   Christians great and small, there exists the custom of commonly
   taking ransom from one another. (59)


This section examines various scholars' historical reconstruction of the aptly termed "ransom culture" of the Medieval Age. The ransom culture refers generally to the European medieval practice of post-conflict release via ransom of prisoners of war, prisoners made up namely, but not exclusively, of the noble class. The impetus of using this specific element of medieval warfare derived from a quick glimpse of the above cited quote from Honore de Bouvet (Bonet), a late fourteenth century French scholar, especially the use of the phrase "good custom and usage." (60) As such, a look into what exactly the ransom culture of the Medieval Age entailed, via examination of its origins and its practice, is merited.

A. Divergent Origins of the Ransom Culture

Almost poetically at the outset a divergence of opinion exists regarding the origins of the ransom culture of medieval Europe. This divergence is noted with precision by Remy Ambuhl (Ambuhl), who stated "[t]here is still debate amongst historians as to when widespread recognition and acceptance of ransoming occurred in medieval Europe." (61) It had been posited that the ransom of medieval prisoners arose from the Christian doctrine of mercy, effectively a "dramatization of the Christian's personal and corporate experience of redemption by Christ from captivity to sin and death." (62) Nonetheless, Ambuhl notes four general theories in search for the origins of the move towards ransoming in medieval Europe. (63)

The first theory is that the practice developed in northern France, specifically Normandy, in the tenth and eleventh century. (64) The central ethos behind this theory is the connectedness of ransoming to practical needs of increased wealth resulting from castle based warfare, the Christian prohibition on slavery, and the overall chivalric ethos which was later enthused throughout Europe. (65) The second theory, however, visualizes the elements of ransom were most likely '"borrow[ed]'" from outside of Europe, namely the Muslim world. (66) The emerging idea regarding the practice, which had been well settled in the Muslim world, was either directly adopted by Europeans during the Third Crusade or gradually infused itself into European culture from an earlier time period. (67)

Ambuhl sets forth the two remaining theories with a proper acknowledgement that both are worthy of discussion, but yet are speculative in nature. (68) The second to last theory notes that with the rise of public wars waged by sovereigns in the thirteenth century, a view of the soldier as upholding his duty to his respective sovereign began to arise, placing the soldier on a different plain than previous feud based warriors, a plain that was worthy of ransom as opposed to punishment. (69) The last theory focuses on the rise of tournaments in chivalric medieval culture during the twelfth and thirteenth century, and the rules borne thereupon, whereby the main focus of many tournament melees was to capture and ransom. (70) This theory concludes that this practice spread out into the actual battlefield. (71)

It is worth analyzing the first two theories in detail. The first two theories are important because they directly counter each other and present a fantastic jumping point into the measure of historical reconstruction as the means of studying history. An examination of the sources and methods used by both theories will help explore how a divergence grows in the historical scholarly world. For practical purposes below, the first theory is termed the "independent" theory and the latter theory is referred to as the "borrowed" theory.

B. Independent Theory Borne Out of Fear of God and Fellowship in Arms

The year 1066 is undoubtedly one of the most well-known and important years in the British chronology. It is this year that provides a spring board for the examination of the infusion of Norman ransom culture into Anglo-Saxon England. Matthew Strickland (Strickland) points to a curious change in the pattern of warfare by the kings of England during the eleventh century. (72) This change, he concludes, was brought about as a result of the established ransom culture carried over by the invading Normans. (73)

"On 25 September, 1066, the forces of King Harold II of England fell upon the unsuspecting Norwegian army of Harald Hardraada at Stamford Bridge in Yorkshire. In the fierce battle which ensued ... the Norwegians virtually annihilated." (74) Strickland notes that according to the Anglo-Saxon Chronicle, the English king gave quarter to some of the Norwegians not directly engaged in the battle; however, there are no recordings of prisoners or ransom of any kind. (75) Traversing to approximately sixty years later, in 1119, "another king of England, Henry I, but now also duke of Normandy, met an invading French army [and] [t]he battle was [a] resounding victory for the Anglo-Normans, yet of the 900 or so knights engaged only, three were killed." (76) Strickland points to Orderic Vitalis, the monastic chronicler, and his version of events,

'They were all clad in mail and spared each other on both sides, out of fear of God and / fellowship in arms (notitia contubernii); they were more concerned to capture than kill the / fugitives. As Christian soldiers, they did not thirst for the blood of their brothers, but rejoiced / in a just victory given by God for the good of Holy Church and the peace of the faithful.' (77)

Strickland properly notes that Orderic's interpretation should be taken with caution as it is flavored with his monastic outlook and a desire to paint Henry I as protector of the Christian ethos, but "[n]evertheless, the contrast with the battle of Stamford Bridge highlights one of the fundamental distinctions between Anglo-Scandinavian and Franco-Norman conduct in warfare...." (78)

So where did this practice begin? Strickland notes that while it is possible that interactions with the Vikings may have infused the French with the practice of ransom, it was likely already developing in pre-Norman Northern France via the Christian ethos of mercy. (79) The Vikings were notorious for what Strickland labels '"corporate ransom'," which was the requiring of great sums of wealth, in lieu of promises not to raid particular areas, and for the "ransoming of individuals on a scale greater than can be seen in earlier warfare." (80) Frankish, Irish, Welsh, and English sources indicate the practice of Viking ransom on both of these levels. (81) Nonetheless, the main host of Viking captives were not ransomed but sold as slaves abroad. (82) The Vikings had an internationally complex and lucrative slave trade. "[E]arly Viking raids on Ireland and Scotland resulted in large numbers of captives, which the Vikings sold as slaves to the Byzantine and Muslim Empires." (83) The transport of slaves through present-day Russia via the Volga River resulted in significant Viking influence in the region, so much so there was the "substitution of the ethnic word slav to replace the Latin servus for 'slave'." (84)

Returning to Northern France, in 911, the Viking Rollo entered into an agreement with the Frankish King Charles the Simple that allowed for a permanent Viking settlement in Normandy. (85) The Viking settlers, however, more readily adopted their newly found neighbors and subjects' habits and culture, more than the alternative. With Viking aristocracy overseeing a majority Frankish population, Rollo and his successors found it expedient to absorb Frankish culture and language, and thus, little lasting impact beyond place-names can be seen. (86)

Although the Vikings practiced ransoming, even ransoming on a significant and sophisticated scale, and had established a presence in Normandy in the tenth century, Strickland does not attribute the ransom culture in eleventh century Normandy to them. Strickland instead points to elements such as the Christian ethos of mercy or clemency that had begun to permeate in the area already. The Vikings' main form of prisoner treatment was slavery, and the Viking settlers in Normandy absorbed their subjects' culture as opposed to infusing their own into the region. Strickland points to these elements as means of addressing the belief that ransom culture may have developed independently in the region.

Under the independent theory, the ransom culture developed in Normandy via "[t]wo crucial factors ... the changing nature of warfare and the changing nature of the enemy." (87) In regard to the changing nature of warfare, Strickland points to "the fragmentation of centralized authority" in Northern France in the early eleventh century. (88) "[T]he rise of banal lordship created a political environment in which rival castellans needed to finance both castle-building and growing number of milites required to garrison them." (89) The funds needed for castle construction and military recruitment were initially raised via tax collection and labor services; however, there appears to be the eventual switch to a much quicker form of fund procurement, that of ransoming fellow nobility. (90)

Strickland returns to Orderic Vitalis for evidence of the foregoing. The process is illustrated by Orderic's account of William the Conqueror's siege of Sainte Suzanne, which attracted local nobles loyal to the besieged Hubert of Maine's service in search of funds and ransoms, thereby strengthening Hubert's position and prolonging the siege. (91) "As Orderic noted[,] wealthy Norman and English lords were frequently captured 'and Hubert ... made an honourable fortune out of the ransoms of these men.'" (92) The rise of castles and siege warfare may have actually given rise to the spread of chivalric conduct of regulating respites, truces, and organized surrender. (93) Increased and prolonged interactions, through parley and negotiations, during sieges "helped to disseminate and develop the 'customs of war'...." (94) One of these ransomed customs was thus spread throughout the region.

The second element of Strickland's independent theory delves into the nature of the enemy. "For warfare within France itself in the later tenth and eleventh centuries now generally lacked the religious dimension which lent so much bitterness to wars against the heathen [i.e., pagan Vikings]...." (95) Thus, Strickland begins to see a shared common nature between belligerents. He notes that evidence from "William of Poitiers and Orderic Vitalis suggests that by the mid-eleventh century at the latest, the heavily armed and well-mounted warriors operating within the territorial principalities were conscious of common membership of a military elite...." (96) With this common recognition "open warfare could be [pronounced] by formal challenges" and was often more about "the seizure of [weaponry], horses and prisoners for ransom," than about killing one's fellow colleague in arms. (97) Strickland appropriately notes that though, "[i]t would, of course, be misleading to suggest that all warfare fought either within the Anglo-Norman regnum ... was so restrained ... some conflicts were waged in a spirit of bitter hostility, not that of a brotherhood in arms ...," (98) He further notes that chivalry was not immediately expanded to non-Christians, nor the benefits of ransoming. (99) He reiterates, however, that the melting pot of chivalry, professional solidarity, Christian mercy, and the taking of noble opponents as prisoners for ransom was imported into England in 1066 and it became established with the ascendancy of the new Franco-Norman ruling elite in England. (100)

The independent theory, as championed by Strickland, mixes in the practical notion of the rise of castle warfare and the social notion of chivalry to form a root at the base of the ransom culture expansion. The importance of the Norman invasion of England to the independent theory cannot be overstated because it provides a strategic breaking point upon which to show prior to the invasion, the kings of English did not employ the ransom culture; however, after the invasion, the ransom culture emerged. Thus, it is argued that the Normans must have carried over the ransom culture. This allows then for an examination of Norman culture prior to and around the time of the invasion. Strickland then uses a collection of sources to postulate the independent theory and dissuade from other potential origins.

The key with developing a historical theory, such as the independent theory, is the use of multiple sources-not just multiple written sources, but sources from multiple fields of study. A scholar can add weight to her argument through her venturing outside the realm of historiography, i.e., the study of literary history. The historical reconstruction that the independent theory engages in uses of a variety of fields of study and sources to extrapolate its own unique particular idea of what occurred in Normandy during the eleventh and twelfth centuries.

Strickland clearly indicates his reliance on three main written sources: the primary and secondary histories of Orderic; the Anglo-Saxon Chronicles; and William of Poitiers. Although the independent theory does not mention specific reliance upon archaeological records concerning the rise in construction of castles in Normandy, it is clearly evident that tracing the origin of castle construction applies in the theory and Strickland's work. Furthermore, etymology can be used to support the idea that the ransom culture did not come from the Viking settlers in Normandy. Chronology can also be lumped in via the dates of battles. As such, there are

four main fields used to develop this historical theory: historiography; archaeology; etymology; and chronology.

Dealing with the historiographic sources first, the Gesta Guillelmi of William of Poitiers (c.1045-c.1080) and the Historia Ecclesiastica of Orderic Vitalis (1075-1142) remain vital resources to historians of the Norman conquest and in particular, from the Historia, Norman, English, and French history in the period 1082-1141. (101) After serving as William the Conqueror's chaplain, William of Poitiers "became archdeacon of the episcopal church at Lisieux, and there he wrote his epic work." (102) Much of what is known of William of Poitiers "comes from Orderic, whose Abbey of St. Evroul stood in the diocese of Lisieux and whose history of the Conqueror is through a long passage so closely based on the Gesta that it likely includes the otherwise lost ending of the archdeacon's text." (103) The Anglo-Saxon Chronicle is the earliest known history of England written in the vernacular, and represents a collection of various versions. The Chronicle was probably first compiled at the behest of King Alfred (848/9 to 899), with various versions then circulated throughout England, with each version then being added to. (104) Most of the versions end circa 1066; however, one version continued until as late as 1154.105 "Eight manuscripts of the Chronicle [have] survivfed], [of which] six are in the British Library." (106) These three historical sources do represent the pinnacle of historiographical research for eleventh and twelfth century Anglo-Norman culture. Strickland does a sufficient job in curbing absolute trust in these sources noting at times the outside factors that could have attributed to each work's point of view. (107) This is extremely important, because blind reliance can be detrimental to any theory; however, the pieces in conjunction with each other and the other multitude of written sources Strickland references, and undoubtedly researched, can help to build +a strong fundamental foundation.

By turning next to sources outside of the written word, sources either obviously used by Strickland or that can be used to bolster the independent theory, it is possible to portray a more well-rounded picture of the time period. This again lies at the base of historical reconstruction, as the use of multiple sources from various fields of study resonating off of each other can be used to create a more detailed core image. As many residents of Normandy and tourists to the region are aware, castles still dot the Northern French landscape. (108) The archaeological record shows that castles developed earlier in Normandy than in England. (109) Though many of the early castles were made of timber and earthen works, beginning in the eleventh century, the formation of predominantly stone castles began. (110) It is from the various methods of archaeology, the sciences employed in dating physical remains, and the cross referencing of historiographic records, that scholars are able to track the creation of castles. (111) This type of research helps to support Strickland's references regarding the changing nature of castles in eleventh century Normandy.

Etymology, the study of the origin of words, provides quantifiable evidence of Viking impact concerning settlers in various regions of Europe, such as the Danelaw in England and Normandy in France. Etymologists traced the origin of approximately six hundred words that were loaned or borrowed into English from Old Norse. (112) These include everyday words such as "take," "window," "egg," "ill," and "die." (113) In comparison, there is very little incursion of Old Norse into French, with the limits being place names (114) and also a few common nautical terms, for example, cingler (to sail) and vague (wave). (115) Sources note that though this is a measurable element, care needs to be taken, as some loan words may have variant origins. (116) Yet, language infusion provides an essential piece to analyze and measure the Vikings' impact as settlers. As such, it lends credence to the idea that though the Vikings did settle in Normandy, as they also had in the Danelaw, their impact was much less in France than in England. Thus, perhaps, their own cultural identity was not readily adopted in France. Specifically, Strickland has further evidence to discount the ransom culture originated from the Viking settlers in Normandy, hence, boosting his independent theory.

The last bit is chronology, which is the science of arranging events in order of occurrence in time. Chronology has become so common place in the study of history that it often is forgotten that it is an independent field of study. James Marsh's 1837 introduction to his translation of D.G. Hegewisch's Introduction to Historical Chronology contains verbiage that remains true today, "[c]hronology, as a distinct science, holding the same general relation to history which geography does, is indeed but little known in our elementary systems." (117) Chronology, however, plays such a pivotal role in the independent theory and it is worthy of its separate distinction herein. The independent theory would be circumspect without the proper investigation and then the aligning of dates between the Battle of Stamford Bridge and the subsequent battles in the Norman Vexin engaged by King Henry I. It is because King Henry I's battle occurred sixty years after the Norman invasion of England that the first key to the puzzle of the origins of the ransom culture occurred in Normandy, as opposed to originating in England. As such, historians, thanks to chronologists, can pinpoint the general time frames of various medieval battles, and then use those dates to support theories, just as Strickland has done.

Strickland highlights another possible, however, at least to him, not probable, origin of the ransom culture in Normandy: "Saracen brigands had long been involved in the seizure of captives from the Mediterranean litoral for ransom." (118) Strickland nominally notes the possibility that interactions with Muslim raiders in the Mediterranean as an originator; however, he dismisses such a theory postulating, as he did with the Viking origin, that while it may have broadened the social basis, it did not create the culture in Normandy. (119) Nonetheless, not all scholars agree with this and the independent theory itself.

C. Borrowed Theory

The idea that the ransom culture in Europe grew out of interactions with Muslim society forms the basis of the borrowed theory. The borrowed theory is best illustrated by Yvonne Friedman (Friedman)'s monograph on captivity and ransom in the Fatin Kingdom of Jerusalem. (120) The borrowed theory contains many similar necessary plot lines and milestones that are used in the independent theory. It shall be as equally important to also engage in the same examination of the source work used in the borrowed theory. Freidman begins her theorem by taking the basic view that there is a progression from European Crusaders' unwillingness to ransom captives to an eventual adoption of an institutionalized ransom culture and infrastructure. (121) As Strickland focused on change with the kings of England in their post-conflict prisoner resolutions, Friedman focuses on a similar change to Crusaders' interacting in the Fevant.

Freidman further extrapolates, "[f]rom the first encounters in 1095 to 1101 until the gradual change during the second and third generations of settlers in the Fatin Kingdom, a transformation is discernable." (122) She asserts the Battle of Hattin in 1187 served as a watershed moment after which required European recognition of the necessity of a proper institutionalized ransom mechanism. (123) As such, there exists a similar argument structure as seen in the independent theory. Whereby, specific geographical areas and characters initially evidences the absence of ransoming only to be presented with proof of its existence with those same characters at a later date.

As previously pointed to with Strickland, ransom was absent at the Battle of Stamford Bridge in 1066 and appeared approximately sixty years later during the battle in the Norman Vexin. (124) As such, the intervening moment for Strickland was the Norman conquering of England, subsequent to the Battle of Stamford Bridge. (125) With Friedman, the presence of Crusaders in the Fevant and the absence of ransoming in post-conflict dealings in their early engagements were only to be followed by subsequent adhesion to the principals of ransoming. The intervening moment is thus related as interactions with their Muslim counterparts. (126) It is excellent that both the independent theory and the borrowed theory share the same general framework for their discussions. It provides a proving ground to examine how each engages in historical reconstruction by examining determinations made from various fields of study and applying those determinations to fit their mold.

Before delving into the elements that make up the borrowed theory, some background on the Crusades and the Latin Kingdom of Jerusalem is warranted. The Crusades, in their most generalized sense, refer to a series of medieval religiously bound Catholic military campaigns in various theatres throughout the Middle East and Europe. Most commonly, the Crusades are delineated into seven campaigns, (127) and deal mainly with incursions by medieval European nobility, via Papal encouragement, into the Middle East. Nevertheless, noted historian Jonathan Riley-Smith urges a word of caution, "[f]inding an acceptable general definition of crusading has always been so difficult that it has often been considered best to leave it well alone." (128)

Research into the Crusades varies over the last several centuries and is naturally colored with contemporary ideals. Thomas Madden does an excellent and succinct job in reviewing the changes in Crusades research ideology in his introduction to Crusades. (129) He notes that early historiographic sources, such as Thomas Fuller's Historie of the Holy War (1639), coming from a Protestant view point, centered on the uselessness of the Crusades which, "in his view, had spent European lives and wealth for nothing more than a faraway plot of land and a few relics." (130) Jonathan Riley-Smith, in his authoritative The Crusades: A History, notes how nineteenth century historians treated the causes for the Crusades, "disapproval was reinforced by a Protestant conviction that crusading was yet another expression of Catholic bigotry and cruelty." (131) In the early twentieth century, a neo-imperialist flavor championed by liberal and Marxist viewpoints was given to the Crusades, whereby the materialistic nature of European nobility and the Papacy was seen as a fledging proto-colonialism. (132) Madden contends, however, that current scholarship has now begun to look at the individual makeup of the Crusaders, looking "into the identity, methods, and motivations of those who took the cross." (133) As such, "[t]his has led many historians to the conclusion that the overriding motivation for crusaders to the East was not greed but pious idealism." (134) The question begets itself as to how future historians may view these current historical scholars' biases as affecting their work. (135)

Friedman's time period of reference starts with the First Crusade (1096-1099), which resulted in the establishment of the Latin Kingdom of Jerusalem. The impetus behind the First Crusade centers upon an appeal for assistance by the Byzantine Emperor Alexius I Comnenus (1081-1118), who "had stabilized [his] empire and was keen to take military advantage of the chaos in the Islamic lands...." (136) Alexius I was short on manpower but undoubtedly did not expect the enthusiastic response from the West, as spearheaded by Pope Urban II (1088-99). (137) Pope Urban, "called for a great expedition that would not only help Alexius but also liberate the holy city of Jerusalem." (138) Several high-ranking European nobles answered the call. They included Hugh of Vermandois, younger brother of King Philip I of France, who lead a contingent from northern France; Godfrey of Bouillon, Lord of Bouillon and Duke of Lower Lorraine, leading an army from northern France and Belgium; Bohemond of Taranto, an existing antagonist to the Byzantine Empire, who led Normans from southern Italy; Raymond of Toulouse, Count of Toulouse, Duke of Narbonne, and Margrave of Provence, led an army from southern France; and Robert of Normandy, Duke of Normandy and brother to the King of England, who led an army from Normandy in northern France. (139) The First Crusade was a success from the European standpoint and saw the capturing of Jerusalem on July 15, 1099, and the establishment of the Latin East, consisting of four independent but connected crusader states: the County of Edessa; Principality of Antioch; County of Tripoli; and the Kingdom of Jerusalem. (140) It is from the states of the Latin East and their subsequent interactions with Muslims that Friedman asserts from the cultural exchanges that are at the heart of the borrowed theory.

As mentioned previously, Friedman views the Battle of Hattin in 1187 as a watershed in the movement towards adopting the Muslim practice of ransoming. (141) The Battle of Hattin was a great success for the Muslim opposition to the Latin Kingdom, whereby the Muslim force under Saladin effectively destroyed the entire Latin Kingdom army; however, numerous high-ranking nobles were taken captive. (142) The problem was so pressing for the Latin Kingdom that a change in dealing with captives was needed. This solution came about in reaching back to Europe and the papacy. The Pope responded and "[i]n letters addressed to the Sultan, especially the later letters of Innocent III, the need to release the Christian captives features prominently." (143) As such, it is pertinent to examine the world before, after, and during the Battle of Hattin.

In looking at the initial development of the ransom culture in the Middle East, Friedman looks to its presence along the borders of the Byzantine and Muslim empires. "During the eight and ninth centuries an established praxis of mutual behavior toward prisoners of war emerged and became institutionalized." (144) Friedman specifically points to the Muslim fida' provision. (145) The provision that calls for the inclusion of an exchange or ransom of captives as part of a treaty was seen as an acceptable prelude to temporarily halting a jihad against the Byzantines. (146) "The importance of the redemption of captives in Muslim thought is demonstrated by the fact that these transactions were not only executed, they were recorded both by contemporary and later [Islamic] chroniclers." (147) Friedman adeptly notes the sophisticated nature of the Muslim ransom culture during this time, citing the role of the Muslim military and political leadership in ransom exchanges, the development of valuation for captives, and the roles of mediators. (148)

A strong portion of the borrowed theory lies in the apparent absence of ransoming as a main form of post-conflict prisoner resolution with the incoming Crusaders. Freidman posits three sources that led to the conclusion of this absence: (1) the absence of captivity as a possible outcome in preaching the First and Second Crusades; (2) the reactions of Crusaders to captives, both fellow Europeans and Muslims; and (3) literary sources referencing the lack of ransoming as an option. (149) Examining each prong in kind will help stabilize the borrowed theory.

Prior to the start of the First Crusade, Pope Urban is quoted saying, "'[i]t is necessary that we suffer greatly for Christ's sake.'" (150) The list of sufferings include, "'misfortune, poverty, persecution, want, illness, nakedness, hunger, thirst, and other tribulations....'" (151) Freidman notes, "that captivity does not appear among the possible hardships ...," (152) Freidman impressively asserts that the author of Pope Urban's quote, the historian priest Peter Tudebode, actually wrote in hindsight, "so [the] lacuna does not stem from [a] lack of experience." (153) This is important because the quote is examined in addition to the context beyond the historiographic source. On the eve of the Second Crusade, Bernard de Clairvaux saw only two end results of the knights of the Crusades: "either victory or the crown of martyrdom." (154) Incidentally again the term "captivity" is left out. So with absence of captivity as a presumed result of the early Crusades, Freidman finds that "the crusaders had to create their ideology and practice dealing with captivity in response to events." (155) This leads then to Freidman's second prong which examines the results of this ad hoc reaction to captivity, both their own and those of their enemies.

"There is no feeling of uneasy moral judgment when contemporary chroniclers describe warfare with no quarter given." (156) Invariably the sack and massacre of a besieged city was part and parcel of warfare during the medieval era. (157) Friedman uses Albert of Aachen's contemporary description of the treatment of the denizens of Jerusalem after its fall to the besieging Crusaders to further explain the lack of concern with captives. (158) "[Albert of Aachen] thought that human pity for the captives would in this case have been 'avarice or sloth.'" (159) Although some prisoners "were in fact ransomed," Albert finds that "this was contrary to crusader ideology...." (160) Friedman examines other literary sources that confirm the crusader ideology that Albert expressed as "[t]he notion of giving quarter to a vanquished enemy was clearly not part of their mores." (161) At an early point, the Crusaders presumably became aware that their enemy did deal in captivity. "Albert claims that Kerbugha [of Mosul] prepared large numbers of fetters before his departure for Antioch...." (162) These chains and fetters were discovered by the Crusaders in the Muslims' tents after their victory in Antioch. (163) In some instances, the Byzantines played a role in the ransoming of captured Christians. (164) Whereas, the Crusaders' reaction to captivity "was [a] total refusal to negotiate ransom, even if it meant jeopardizing the lives of their comrades." (165) Friedman appropriately notes the existence of some ransoming performed by the Crusaders but finds that "if the crusaders did ransom captives in Antioch, the chroniclers failed to dwell on this." (166)

Thirdly, in ensuring the validity of the borrowed theory, Friedman also visits literary sources in Europe prior to the Crusades and specifically the Battle of Hattin. (167) Freidman notes that the ninth century poem from Ermoldus Nigellus and a tenth century drama from Hrotsvita of Gandersheim both deal with narratives of interactions with Saracens. (168) "In both narratives, the Saracen enemy offers to ransom a Christian captive," but upon the refusal of ransom, the captive is killed. (169) These literary entertainment examples supply an excellent window into the European ransom ideology that the Crusaders carried with them back to Europe after dealing with Muslims on crusade. Freidman notes there Crusaders made a steady movement during the eleventh and twelfth centuries towards Muslims' norms of ransoming, yet captives were still not a major concern for the Crusaders up until the Battle of Hattin. (170)

The Battle of Hattin in 1187 served as focal point for a change. After the Battle of Hattin, Crusader ideology towards ransom shifted. Friedman cites to specific examples that demonstrate the change in Crusaders' treatment of captives: (1) letters both from the Latin Kingdom and Europe mention the need to help important captives; (2) creation of charitable ransom orders; and (3) changes in liturgy. (171)

Letters written to Europe from the Levant prominently mentioned the need to assist captives. (172) As result of the disasters of losing the True Cross and so many knights, the Pope found it necessary to communicate directly to Muslim leaders. (173) These papal communications contained direct references to the release of captive Christians. (174) As such, captives and ransom appear more in than they had prior to the Battle of Hattin.

To support the borrowed theory, Friedman also highlights the post-Battle of Hattin establishment of the Trinitarian Order. (175) "The [Trinitarian] Order and the Rule of St. John de Matha were approved by Pope Innocent III on December 17, 1198." (176) "The founding intention of [St. John de Matha] was the ransom of Christians held captive by nonbelievers, a consequence of crusading and pirating along the Mediterranean coast of Europe." (177) "The [Trinitarian O]rder fulfilled a need that had always been there, but never so urgently needed as after [the Battle of] Hattin." (178)

The final proof of the stabilizing of the ransom culture in the Latin Kingdom comes from changes in liturgy. "A prayer for the release of captives had been formulated already in the early centuries of Christianity, but it was not a regular part of the liturgy. After the Battle of Hattin, in the votive missae said for the liturgical commemoration of the destruction of Latin Jerusalem, a prayer for captives was part of the weekly program of daily masses celebrated in Westminster Abbey...." (179) Later, in 1188, Pope Clement III included prayers for captives as part of the standard "liturgy for the Holy Land." (180)

The borrowed theory stands on strong ground by comparing the culture of the Crusaders before and after the Battle of Hattin. In conjunction with this comparison, an authoritative argument of the existence of the ransom culture in the Muslim East is then used to proffer the idea that ransoming was borrowed from the East. The borrowed theory utilizes, either directly or indirectly, historiography, archival studies, theology, study of literature, and chronology. As with the independent theory, it is important to look at the variety of source material used in the borrowed theory in more detail.

At the outset, historiographic sources play a prominent role in the borrowed theory. Freidman utilizes not only the sources themselves but also appropriately analyzes the context that the authors wrote in. (181) Freidman specifically references Albert of Aachen's Historia Hierosolymitana (1125-1150) and Peter Tudebode's Historia de Hierosolymitana itinere (1110). (182) These chronicles of the First Crusade help shed light on the crusader mind set. Starting with the latter, Peter Tudebode (Tudebode) went on the First Crusade and wrote his account later than many other contemporary sources. (183) Scholars have argued that Tudebode's account is likely based upon an earlier account, the Gesta Francorum, which an anonymous crusader, who was presumably from Bohemund of Antioch's camp, wrote around 1100-1101. (184) Yet, Tudebode's eye-witness account of the siege of Antioch has proved extremely valuable to historians. (185) Albert of Aachen's Historia Hierosolymitana presents the story "of the First Crusade and ... of the first generation of Latin settlers in the [Levant] (1099-1119)." (186) "Volume 2, The Early History of the Latin States, provides a surprising level of detail about the reign of King Baldwin I (1100-1118), especially its earlier years and the crusading expeditions of 1101." (187) Its value lies in that "[i]t offers much more information than the only other substantial Latin account of the same events, by Fulcher of Chartres, and where it can be tested against other narratives, including Arabic and Greek sources, it proves to be worthy of both trust and respect." (188) There have been criticisms leveled against the historical value of the work because of inaccuracies with chronology and issues with topographical references. (189) "But the work is to be looked on as the outpouring of a deeply religious and poetic heart, which saw in the contemporary Christian knighthood the salvation of the civilization of Christendom." (190) As can be seen, both historiographic sources do contain value. More importantly, Freidman notes that these sources are more valuable because they provide insight about their authors as well. (191) An example of such notation has already been mentioned but bears repeating: "Tudebode wrote with hindsight." (192) By examining the context of the author of the work and not just the work itself, the historiographic value is increased.
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Title Annotation:p. 271-302
Author:Alton, Richard A.C.
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2016
Words:9127
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