Law and Law Codes
- Prior to their contacts with the Roman Empire in the migration period, the Germanic, or barbarian, peoples of Europe had no written laws or legal codes. The nature of the law was customary. Law was remembered and passed along through an oral tradition that stretched back for generations. Although customary, the law was not simplistic; it included a well-defined set of procedures, such as the use of the oath. Although the extent of influence varied, depending upon when and where the invaders made contact, contact with the Romans, who had a great legal tradition and had prepared important legal codes already in the third century, profoundly altered the nature of the laws of the various barbarian tribes. The Germanic peoples who entered the empire learned the tradition of written law and the practice of codifying the law, and kings of the Franks, Visigoths, and other peoples issued laws and law codes as their kingdoms were established. Exposure to the Romans and other barbarian peoples also led to the emergence of the principle of the law, a development that remained important long after the initial contact with the empire. According to this principle, each person was bound by the laws of his own group.Like the conquest of the Roman territories on the Continent by various barbarian peoples, the conquest of England by the Anglo-Saxons in the fifth century introduced important challenges for the tradition of the law. The Anglo-Saxon accomplishment, however, is unique among the various peoples that created kingdoms in the former Western Empire because Roman contact and influence had been on the wane even before the arrival of the invaders, and in the fifth century little of the Roman legacy survived. There were no Roman jurists, and there was no Roman legal inheritance to speak of. As a result, Anglo-Saxon laws were issued in the vernacular, were little influenced by Roman traditions, and reflected long-standing Germanic customary law. Furthermore, the Anglo-Saxon kings of England issued no special laws for the Romans, as did their contemporaries on the continent. Æthelberht of Kent was one of the early kings to issue important laws in the vernacular, and his laws were recognized as statements of his royal authority. They were the king's laws and were to be followed as such. The early laws dealt with such matters as the wergeld, feud, personal injury, and payment of fines to keep the peace. They also addressed the nature of royal and local courts and instituted the necessary regulations that emerged from the conversion to Christianity. Beginning with Alfred the Great, however, Anglo-Saxon kings showed Roman influence issue written laws, called belagines (although these are sometimes thought to have been Ostrogothic laws only).Illustration from Alaric's Breviary (Paris, Bibliothèque Nationale)As the Visigoths became more settled and expanded into Spain, creating the kingdom of Toulouse (418-507), a more sophisticated legal code became necessary, in part to regulate the relationship between the Goths and the Romans living in the kingdom. There is some evidence to suggest that the legal code took shape by the mid-fifth century, when the king, Theodoric II (d. 466), issued written legal statutes. Although once associated with the Ostrogothic king Theodoric the Great, the Edictum Theodorici (Edict of Theodoric) now is believed to have been issued around 458 by the Visigothic king. The edict was intended to resolve various issues between Romans and Goths, but was in no sense a complete code of laws. It was under Theodoric's brother and successor, Euric, that the legal code now known as the Codex Euricianus (Code of Euric) most likely appeared. Sometime around the year 475 and possibly as late as 483, Euric, or perhaps his son Alaric II a generation later, issued this code of laws, which remained influential into the eighth century. The code, written in Latin, became the personal law of the Visigoths thus establishing the principle of personality, and it dealt with disputes between Romans and Goths that arose out of their cohabitation in the same kingdom. It addressed such matters as loans, gifts, purchases, wills, interest payments, and charters.The Codex Euricianus was not, however, a universal legal instrument that was territorial like the Code of Justinian, nor was it a complete compilation of all Gothic law, but rather a collection of royal statutes. Consequently, a second legal document was necessary and was issued by Alaric, probably in 506, to be applied to his Roman subjects. The Breviarium Alaricianum (Breviary of Alaric), or the Lex Romana Visigothorum (Roman Law of the Visigoths), was compiled by a number of jurists commissioned by Alaric who borrowed from the imperial Theodosian Code of 438. These two codes were in effect throughout the Visigothic realm by the early sixth century and were replaced only in the mid-seventh century, when King Recceswinth issued a unified code for Romans and Visigoths. Nonetheless, the Codex Euricianus and the Breviarium Alaricianum are the most important and influential of the early Germanic legal codes and are in many ways as significant an achievement as the Bible of Ulfilas, the translation of the scriptures into Gothic that laid the foundation for the written language.Less influential but still important laws and legal codes were issued by the Burgundians, Ostrogoths, and Vandals. The Burgundians entered the Roman Empire and settled for a time along the Rhine River, and then for a much longer period along the Rhone River, where they were heavily exposed to Roman influence. Like the Visigoths, the Burgundians had followed the tradition of customary law and were now faced with the need to provide a legal tradition for a mixed population of Burgundians and Romans. In the late fifth and early sixth centuries, two Burgundian kings, Gundobad and his son Sigismund, issued legal codes intended to resolve that problem. Gundobad, around the year 500 or slightly before, issued the Lex Gundobada (Law of Gundobad), or Liber constitutionem (Book of Constitutions), which applied to the Burgundian peoples of the kingdom and was further refined by Sigismund. In 517 or 518, Sigismund issued the Lex Romana Burgundionum (Roman Law of the Burgundians), which, following Visigothic precedent, applied to the king's Roman subjects and was most likely drawn up by Roman legal scholars. The existence of these two codes thus confirmed the principle of personality.The codes had a mixed fate once the Burgundians were conquered by the Frankish king Clovis (r. 481-511). The Lex Gundobada remained the personal law of the Burgundian peoples under Frankish rule for centuries, but the Roman law was quickly replaced by the Breviary of Alaric. In similar fashion, the laws and legal compilations that had been issued in Ostrogothic Italy and Vandal Africa were replaced by their conquerors. In Italy, Theodoric the Great preserved what he could of Roman administration and law, and in Africa, the Vandals faced the problem of ruling a mixed barbarian and Roman population. In each case, however, the conquests of Justinian eradicated whatever legal reforms took place in the kingdoms. With the exception of the personal law of the Burgundians, the laws of the Burgundians, Ostrogoths, and Vandals had a lesser impact than did the laws of the Visigoths.Despite their important legacy in many areas, the Ostrogoths had a much less significant impact on the history of law in Italy than the Lombards, who entered Italy not long after the end of the wars between the Goths and Byzantines. Like the Visigoths and other peoples who established themselves in former imperial territory, the Lombards were faced with the challenge of ruling over a diverse population. The solution the Lombards seem to have adopted, like that of their predecessors throughout the former Western Empire, followed the principle of personality; the Roman population followed Roman law and the Lombards followed Lombard customary law. The king remained the source of new law and continued to produce new laws and legal traditions. In the seventh century, however, the Lombards went beyond what other peoples had done. Lombard law was codified by King Rothari; and he produced the most complete set of laws of any of the barbarian kings, including nearly all of the royal law and codifying Lombard legal principles nearly in full. In 643, Rothari published, with the help of Roman jurists, the Edictus Rothari (Edict of Rothari), which addressed family and property law and civil laws concerning personal injury and property damage. Rothari's code was clearly influenced by Roman law, and many of the prologues of the laws followed the formula of imperial legal preambles.The Edictus Rothari remained the fundamental legal code of the Lombard kingdom until the kingdom was conquered by Charlemagne, and Rothari's successors preserved the code and added new laws to it as needs arose. These new laws too show the influence of Roman law, as well as the growing influence of the Catholic church on the Lombards and their legal tradition. Moreover, even after Charlemagne's conquest of the kingdom, Lombard law continued to be the law for most of the population of Italy and was only supplemented by Carolingian law. The laws of the Lombards remained an important legal tradition even after the collapse of the Carolingian Empire, and became one of the important traditions studied by lawyers in the High Middle Ages.As in many other areas, the Franks left a lasting impact on medieval law and law codes. The most famous of Frankish law codes is the Salic law, which was compiled by the first great Merovingian king, Clovis, in the early sixth century; it is a collection of the laws of the Salian Franks, although it does not include all the laws of the Franks. Like the laws of the Visigoths and others, the Salic law was most likely codified by a team of Frankish officials and Roman lawyers; it included Frankish custom and the royal edicts of Clovis. The Salic law is not an orderly codification of the law, but a collection of important laws and customs that was intended, among other things, to preserve the peace in the Merovingian kingdom. The law also concerns royal rights and prerogatives and imposes higher fines for crimes against the king, his property, and agents. Moreover, although designed to cover all those living in the Merovingian kingdom, the Salic law, like the laws of the Visigoths and others, recognizes the principle of personality. The code imposes different penalties for crimes, depending on whether they are committed by Franks or by Romans and provides a legal distinction between Romans and barbarians. Originally compiled before 511, the Salic law was revised and expanded by later Merovingian kings, including Chlotar I and Chilperic I, in the later sixth and seventh centuries, and a prologue and epilogue were added in later versions. It was also revised by the Carolingians and was much studied in the eighth and ninth centuries.The Carolingians inherited the Salic law, just as they inherited the kingdom from the Merovingian kings. The first Carolingian king, Pippin the Short, was also the first Carolingian to reform the law. In 763-764, Pippin produced a law book of 100 titles-and often called the 100-Title Text-that included all Frankish law. Charlemagne too produced a shorter version of the code, in 70 titles, in 798, and ordered, according to a contemporary source, a revision of all the laws of the empire made in 802, two years after his imperial coronation. The Carolingian version of the Salic law seems to have lost its personal character, no longer to have been based on the principle of personality; rather it had assumed territorial status; that is, the law was now over all peoples living in the empire and not just the Franks, presenting itself as applying equally to all peoples in the empire and making no distinction between Franks and others. It continued to be concerned with peace and order and assessing fines and wergelds, but it gave much greater weight to the authority of the king than earlier revisions had. It also expressed a number of Roman legal ideas, including the idea that royal land belonged to the office, not the person, of the king.Charlemagne's legal reforms were not limited to revisions of the Salic law; he also oversaw the codification of the laws of the Alemanni and the Bavarians, probably in 788, after they had been conquered by the great Carolingian king. Charlemagne, and his successors Louis the Pious and Charles the Bald, also issued new laws in the capitularies, which contained the word of the law as expressed by the king. The capitularies were often stated at royal councils and then written down and disseminated throughout the kingdom.See alsoÆthelberht of Kent; Alemanni; Alaric II; Alfred the Great; Anglo-Saxons; Capitularies; Carolingian Dynasty; Charles the Bald; Clovis; Charlemagne; Euric; Gundobad; Justinian; Lombards; Louis the Pious; Merovingian Dynasty; Ostrogoths; Pippin III, Called the Short; Rothari; Salic Law; Sigismund, St.; Ulfilas; Vandals; VisigothsBibliography♦ Attenborough, Frederick L. ed. and trans. The Laws of the Earliest English Kings. Cambridge: Cambridge University Press, 1922.♦ Drew, Katherine Fisher, trans. The Burgundian Code: The Book of Constitutions or Law of Gundobad and Additional Enactments. Philadelphia: University of Pennsylvania Press, 1972.♦ ---. The Lombard Laws. Philadelphia: University of Pennsylvania Press, 1973.♦ Ganshof, François Louis. Frankish Institutions under Charlemagne. Trans. Bryce Lyon and Mary Lyon. Providence, RI: Brown University Press, 1968.♦ Heather, Peter. The Goths. Oxford: Blackwell, 1996.♦ King, Peter D. Law and Society in the Visigothic Kingdom. Cambridge: Cambridge University Press, 1972.♦ McKitterick, Rosamond. The Carolingians and the Written Word. Cambridge: Cambridge University Press, 1989.♦ Pollock, Frederick, and Frederic W. Maitland. The History of English Law before the Time of Edward I. 2d ed. 2 vols. London: Cambridge University Press, 1968.♦ Rivers, Theodore J., trans. Laws of the Alamans and Bavarians. Philadelphia: University of Pennsylvania Press, 1977.♦ ---. The Laws of the Salian and Ripuarian Franks. New York: AMS, 1986.♦ Wallace-Hadrill, J. M. The Long-Haired Kings. Toronto: Toronto University Press, 1982.♦ Wood, Ian. The Merovingian Kingdoms, 450-751. London: Longman, 1994.♦ Wolfram, Herwig. The Roman Empire and Its Barbarian Peoples. Trans. Thomas J. Dunlap. Berkeley: University of California Press, 1997.♦ Wormald, Patrick. "Lex Scripta and Verbum Regis: Legislation and Germanic Kingship from Euric to Cnut." In Early Medieval Kingship, ed. Peter Sawyer and Ian N. Wood. Leeds, UK: University of Leeds Press, 1977, pp. 105-138.
Encyclopedia of Barbarian Europe. 2014.
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