Germanic law
Germanic law is a scholarly term used to describe a series of commonalities between the various law codes (the Leges Barbarorum, 'laws of the barbarians', also called Leges) of the early Germanic peoples. These were compared with statements in Tacitus and Caesar as well as with high and late medieval law codes from Germany and Scandinavia. Until the 1950s, these commonalities were held to be the result of a distinct Germanic legal culture. Scholarship since then has questioned this premise and argued that many "Germanic" features instead derive from provincial Roman law. Although most scholars no longer hold that Germanic law was a distinct legal system, some still argue for the retention of the term and for the potential that some aspects of the Leges in particular derive from a Germanic culture.[1][2][3] Scholarly consensus as of 2023 is that Germanic law is best understood in opposition to Roman law, in that it was not "learned" and incorporated regional pecularities.[4]
While the Leges Barbarorum were written in Latin and not in any Germanic vernacular, codes of Anglo-Saxon law were produced in Old English. The study of Anglo-Saxon and continental Germanic law codes has never been fully integrated.[5]
Definition and controversy
As of 2023, scholarly consensus is that Germanic law is best understood in contrast with Roman law, in that whereas Roman law was "learned" and the same across regions, Germanic law was not learned and incorporated regional peculiarities.[4] This consensus has replaced an older one as a result of a reevaluation of notions of Germanic beginnings and the associated nationalist ideologies that they were attached to.[6] Earlier scholars, inspired by Tacitus and Julius Caesar, often conceived of the Germanic peoples as a unified entity, which, however, they were not.[4]
Although Germanic law never appears to have been a competing, unified system to Roman law, commonalities in the Germanic laws can still be described as "Germanic" when contrasted with Roman law.[7][2] These include emphases on orality, gesture, formulaic language, legal symbolism, and ritual.[8] Some items in the Leges, such as the use of vernacular words, may reveal aspects of originally Germanic, or at least non-Roman, law. Legal historian Ruth Schmidt-Wiegand writes that this vernacular, often in the form of Latinized words, belongs to "the oldest layers of a Germanic legal language" and shows some similarities to Gothic.[9][3]
Old Consensus and criticism
The study of "Germanic Law" arose in the modern period, at a time when scholars thought that the written and unwritten principles of the ancient Germanic peoples could be reconstructed in a reasonably coherent form.[10] Beginning in the Reformation, the study of "Germanic law" was typically conflated with "German law", a tradition continued by influential scholars Jacob Grimm, Karl von Amira, and Horst Brunner (Philologe) . This law supposedly revealed the national character of the Germans.[6] Until the middle of the 20th century, the majority of scholars assumed the existence of a distinct Germanic legal culture and law. This law was seen as an essential element in the formation of modern European law and identity, alongside the Roman law and canon law.[11] Scholars reconstructed Germanic law on the basis of antique (Caesar and Tacitus), early medieval (mainly the so-called Leges Barbarorum, laws written by various continental Germanic peoples from the fifth to eighth centuries),[12] and late medieval sources (mostly Scandinavian).[13] According to these scholars, Germanic law was based on a society ruled by assemblies of free farmers (the things), policing themselves in clan groups (sibbs), and engaging in the blood feud outside of clan groups, which could be ended by the payment of compensation (wergild). This reconstructed legal system also excluded certain criminals by outlawry, and had a form of sacral kingship; retinues formed around the kings bound by oaths of loyalty.[14]
Early ideas about Germanic law have come under intense scholarly scrutiny since the 1950s, and specific aspects of it such as the legal importance of sibb, retinues, and loyalty, and the concept of outlawry can no longer be justified.[15][16] Besides the assumption of a common Germanic legal tradition and the use of sources of different types from different places and time periods,[15] there are no native sources for early Germanic law. Caesar and Tacitus do mention some aspects of Germanic legal culture that reappear in later sources, however their texts are not objective reports of facts and there are no other antique sources to corroborate whether these are common Germanic institutions.[17][18] Reinhard Wenskus has shown that one important "Germanic" element, the use of popular assemblies, displays marked similarities to developments among the Gauls and Romans, and was therefore likely the result of external influence rather than specifically Germanic.[19] Even the Leges Barbarorum were all written under Roman and Christian influence and often with the help of Roman jurists.[20] Beginning with Walter Goffart, scholars have argued the Leges contain large amounts of "Vulgar Latin law", an unofficial legal system that they argue functioned in the Roman provinces.[21] This makes difficult to determine whether commonalities between them derive from a common Germanic legal conception or not.[22]
The Leges barbarorum
The term leges barbarorum, 'laws of the barbarians', used by editor Paolo Canciani as early as 1781, reflects a negative value judgement on the actual law codes produced by these Germanic peoples. It was retained by the editors of the Monumenta Germaniae Historica in the 19th century.[23] The law codes are written in Latin, often using many Latinized Germanic terms, with the exception of the Anglo-Saxon law codes, which were written in the vernacular as early as the sixth century.[12] The Germanic peoples associated with the laws were not homogenous ethnic or linguistic groups in the modern sense.[24]
The Leges share features such as orality, the importance of court procedure, and a reliance on compensatory justice to settle disputes.[25] The development of the different law codes shows a general trend away from an oral legal culture toward a text-based writing culture.[26]
The Leges are the product of a mixture of Germanic, late Roman, and early Christian legal cultures.[27] Generally speaking, the further on the periphery of the Roman Empire these law codes were issued, the less influence they appear to show from Roman jurisprudence.[28] Thus, Dusil, Kannowski, and Schwedler argue that the Visigothic law codes show a great deal of Roman influence, whereas the Lex Salica shows basically none.[29]
History
The earliest of the Leges dealt with Germanic groups living either as foederati or conquerors among Roman people and regulating their relationship to them.[30] These earliest codes, written by Visigoths in Spain (475),[a] were probably not intended to be valid solely for the Germanic inhabitants of these kingdoms, but for the Roman ones as well.[32][33] These earliest law codes influenced those that followed, such as the Burgundian Lex Burgundionum (between 480 and 501) issued by king Gundobad, and the Frankish Lex Salica (between 507 and 511), possibly issued by Clovis I. The final law code of this earliest series of codifications was the Edictus Rothari, issued in 643 by the Lombard King Rothari.[30][34]
The next set of law codes to be composed, the Lex and Pactus Alemannorum and the Lex Bajuvariorum, were written in the 8th century, probably at the behest of the Catholic Church.[35] The final set of law codes issued on the continent, the Ewa ad Amorem, Lex Frisonum, Lex Saxonum, and Lex Thuringorum, were written under the patronage of Charlemagne in the 9th century; these codes all show marked similarities to the early codes.[36]
Law code | People | Issuer | Year of completion/ approval |
---|---|---|---|
Code of Euric | Visigoths | Euric | c. 480 |
Lex Burgundionum | Burgundians | Gundobad | c. 500 |
Lex Salica | Salian Franks | Clovis I | c. 500 |
Law of Æthelberht | Kingdom of Kent | Æthelberht of Kent | early 7th century |
Pactus Alamannorum | Alamanni | c. 620 | |
Lex Ripuaria | Ripuarian Franks | 630s | |
Edictum Rothari | Lombards | Rothari | 643 |
Lex Visigothorum | Visigoths | Recceswinth | 654 |
Law of Hlothhere and Eadric | Kingdom of Kent | Hlothhere and Eadric of Kent | late 7th century |
Law of Wihtred | Kingdom of Kent | Wihtred of Kent | after 690 |
Lex Alamannorum | Alamanni | 730 | |
Lex Bajuvariorum | Bavarians | c. 745 | |
Lex Frisionum | Frisians | Charlemagne | c. 785 |
Lex Saxonum | Saxons | Charlemagne | 803 |
Lex Thuringorum | Thuringians | Charlemagne | 9th century |
Ewa ad Amorem | Part of the Low Countries |
Unknown | 9th century |
Common elements
Feuding
The feud (in the Leges, faida) refers to a form of violent self-help whereby a wronged party sought to address a wrong by exacting violence or vengeance themselves.[37] German scholars tend to understand the feud as a legal institution based on individual liberty, the lack of a powerful public authority, and the need for local conflict resolution, whereas Francophone scholarship has instead emphasized feuding as illegal activity.[38] Whereas Roman law did not allow feuding, the Leges generally treated any legal matter as something that might be settled privately.[37]
While some scholars have argued that the feud may have originated in "vulgar Latin law," the feud is ubiquitous in the Leges and of later Germanic literature, making a non-Roman origin fairly certain.[39] However, the different Leges make different assumptions about feuds and do provide a uniform picture of how they looked or functioned.[40] The existence of feuds between kindred groups among the earlier Germanic peoples is mentioned by Tacitus in Germania chap. 12 and 21, including the various steps taken for conflict resolution.[41] The post-Roman Barbarian kingdoms appear to have seen an increase in non-state violence and violent deaths with the decline in central authority.[42] The various Leges show attempts to limit the practice in feuding, without, however, ultimately preventing it.[43]
The Assembly
In common with many archaic societies without a strong monarchy,[44] early Germanic law appears to have had a form of popular assembly.[45] The earliest attested term for these assemblies in Germanic is the thing.[b] According to Tacitus, during the Roman period, such assemblies were called at the new or full moon and were where important decisions were made (Tacitus, Germania 11–13).[45] Germanic assemblies functioned both to make important political decisions—or to legitimate decisions taken by rulers—as well as functioning as courts of law.[48] In their earliest function as courts, the assemblies do not appear to have had presiding judges. Rather, the members collectively came to judgments based on consensus and acted more as arbiters than as courts in the modern sense.[49]
The assembly stood under the protection of the gods, and feuding parties could visit it without fear of violence.[50] The use of thing as an epithet in an 3rd-century AD inscription dedicated to "Mars Thingsus", apparently referring to the Germanic god Tyr, as well as the translation of the Roman dies Martii ("day of Mars", Tuesday) as dingsdag ("day of the thing", modern German Dienstag) as a variant of tîsdag ("day of Tyr"), has led to the theory that the thing stood under the protection of Tyr in pagan times.[51]
The Leges Alamannorum specified that all free men were required to appear at a popular assembly, but such a specification is otherwise absent for the Frankish Merovingian period.[52] In later periods outside Scandinavia, the assemblies were composed of important persons rather than the entire free population.[53] The Visigothic laws lack any mention of a popular assembly,[54] while the Anglo-Saxon laws and history show no evidence of any kingdom-wide popular assemblies, only smaller local or regional assemblies held under various names.[55]
Germanic legal language
Germanic legal vocabulary is reconstructed from multiple sources, including early loanwords in Finnic languages, supposed translations of Germanic terms in Tacitus, apparently legal terms in the Gothic Bible, elements in Germanic names, Germanic words found in the Leges barbarorum, as well as in later vernacular legal texts, beginning with Old English (7th–9th centuries).[56] There is no evidence for a universal Proto-Germanic legal terminology; rather the individual languages show a diversity of legal terminologies, with the earliest examples lacking even a common Germanic word for "law".[57] There are, however, many examples of Germanic legal terms shared across the diffent early codes which point to shared legal traditions.[58][59]
A word attested meaning "law" as well as "religion" in West Germanic languages is represented by Old High German êwa;[c] there is some evidence for the word's existence from names preserved in Old Norse and Gothic.[61] Êwa is used in the Latin texts of the Leges barbaroum to mean the unwritten laws and customs of the people, but comes also to refer to the codified written laws as well.[62] Jacob Grimm argued that Êwa's use to also mean "religion" meant there was also a religious dimension to pre-Christian Germanic law;[63] Ruth Schmidt-Wiegand argues instead that the legal term êwa was given a Christian religious significance by Christian missionaries, in common with other legal terms that lacked any pagan religious significance that acquired Christian meanings.[64]
Marriage
Modern scholarship no longer posits a common Germanic marriage practice,[65] and there is no common Germanic term for "marriage".[66] Until the latter 20th century, legal historians, using the Leges and later Norse narrative and legal sources, divided Germanic marriages into three types:
- Muntehe, characterized by a marriage treaty, the granting of a bride gift or morning gift to the bride, and the acquisition of munt (mundium in the Lombard Laws, meaning "protection", originally "hand"),[67] or legal power, of the husband over the wife;[68]
- Friedelehe, (from Old High German: friudila, Old Norse: friðla, frilla "beloved"), a form of marriage lacking a bride or morning gift and in which the husband did not have munt over his wife (this remained with her family);[69]
- Kebsehe (concubinage), the marriage of a free man to an unfree woman.[69]
According to this theory, in the course of the early Middle Ages, the Friedelehe, Kebsehe, and polygamy were abolished in favor of the Muntehe through the attacks of the Church.[70][71]
None of the three forms of marriage posited by older scholarship appear as such in medieval sources.[72] Academic works in the 1990s and 2000s rejected the notion of Friedelehe as a construct for which no evidence is found in the sources,[73] while Kebsehe has been explained as not being a form of marriage at all.[74]
Compensatory justice
All of the Leges contain catalogues of compensation prices to be paid by the perpetrator to his victims or the victim's relatives for committing a personal offense.[76] In the West Germanic languages, this payment is known by the term Old High German: buoza, Old English: bōta.[77] This form of legal reconciliation aimed to prevent the erupting of feuds by offering a peaceful way to end disputes between groups.[78] The codification of these catalogues was encouraged by the kings of the individual Germanic kingdoms, who had an interest in preventing bloodshed. Some of the laws, such as the Lex Salica and the Lex Thuringiorum, require that part of the compensation for theft be paid to the king. Later, some kings attempted to replace the compensation system with other forms of justice, such as the death penalty.[79]
Previous scholarship had emphasized the variety of compensations for various offenses and taken this as an indication of the absence of uniformity across the codes.[80] More recent work has shown that the range of enumerated offenses for personal injury is generally uniform across the codes and that the compositions mirror one another closely if calculated as a percentage of an individual's Wergild value, indications of a shared tradition.[81]
In the event that a person was killed or wounded, an animal was stolen, or other offenses committed the compensation is referred to as wergild.[d] Scholars debate if wergild was a traditional Germanic legal concept, or if it developed from a Roman predecessor.[83] The various codes uniformly gradate compensations according to whether an individual was fully free, half free, or enslaved. Some also make distinctions by status among free persons, as with the Lex Burgundonum, while the Lex Salica shows no gradation among free males.[84] The prices were sometimes higher than could readily be paid, which could result in a compromise.[85] In other cases, social networks were enlisted to help a defendant, or the church lent money to end the feud.[86] Payment could be taken in kind rather than in currency.[85] When compensations could not be paid, the plaintiff had the option to enslave the defendant [87]
Judicial ordeal
The ordeal (judicium Dei "judgment of God") was a method used to cause God to reveal the guilt or innocence of a person accused of a crime. It relied on the notion that God would intervene in the world to prevent the condemnation of an innocent person.[88] Similar practices are attested in other cultures around the world, including in the Code of Hammurabi.[89] Methods found in the Leges and in later medieval laws included the trial by hot water, in which a person dipped their hand into a boiling cauldron, of hot iron, in which a person carried a burning hot iron, and trial by combat, in which two fighters fought to determine the guilt or innocence of the accused party.[90] The most important of these was the trial by combat.[88]
A Germanic origin for the trial by combat is generally accepted.[91] It appears early and widely among many Germanic peoples.[92] Dusil, Kannowski, and Schwedler write that it is an important difference between Germanic and Roman law, and derive it from the time prior to Germanic contact with the Romans.[93]
Unlike for the trial by combat, scholars debate whether the trials by fire and water were inspired by Christianity or derive from pre-Christian Germanic tradition.[94][95] Robert Bartlett argues for a Frankish origin of the practice of trial by fire and water, with Frankish influence spreading it around Europe. He argues that the practice is absent in the early Burgundian, Alemannic, Bavarian, and Kentish law codes and therefore cannot have a pan-Germanic origin.[96] Heinz Holzhauer instead argues that ordeal by fire and water was a common Germanic, pre-Christian method of trial, which he connects to the casting of lots found in Tacitus.[97]
See also
Notes
- ^ A second early listing of some laws, the fragmentary Edictum Theodorici, is either ascribed to the Ostrogoths in Italy (probably in the reign of Theodoric the Great) or is another example of a Visigothic code by their king Theodoric II.[31][32]
- ^ Probably related to þeihs "time" (from PGmc *þinhaz) and meaning originally the time at which the assembly was appointed to meet.[46] In the Lex Salica and laws influenced by it, the Latinized vernacular term mallus or mallum, from PGmc *maþla- "speech, assembly", is used to refer to the assembly instead.[47]
- ^ The etymology is unclear but probably represents a Proto-Germanic *aiwa-, which may have been a combination of two roots, one related to Sanskrit eva (law) and one related to Latin aevum eternity.[60]
- ^ The term is the most frequent one found in Old English and Old High German. In the Nordic languages the term mangæld is used. Alternative terms in the Leges include leudardi, from leod ("man").[82]
References
- ^ Dilcher 2011, p. 251.
- ^ a b Fruscione 2010.
- ^ a b Timpe & Scardigli 2010, p. 801.
- ^ a b c Dusil, Kannowski & Schwedler 2023, p. 78.
- ^ Shoemaker 2018, pp. 251–252.
- ^ a b Kalb 2016.
- ^ Dusil, Kannowski & Schwedler 2023, pp. 78–79.
- ^ Dilcher 2011, pp. 246–247.
- ^ Schmidt-Wiegand 2010a, p. 396.
- ^ Shoemaker 2018, p. 249.
- ^ Dilcher 2011, pp. 241–242.
- ^ a b Schmidt-Wiegand 2010a, p. 389.
- ^ Lück 2010, p. 423.
- ^ Timpe & Scardigli 2010, pp. 790–791.
- ^ a b Timpe & Scardigli 2010, p. 811.
- ^ Dilcher 2011, p. 245.
- ^ Timpe & Scardigli 2010, pp. 798–799.
- ^ Dilcher 2011, p. 243.
- ^ Timpe & Scardigli 2010, pp. 811–812.
- ^ Lück 2010, pp. 423–424.
- ^ Lenski 2023, pp. 357–358.
- ^ Timpe & Scardigli 2010, pp. 800–801.
- ^ Shoemaker 2018, p. 251.
- ^ Schmidt-Wiegand 2010b, pp. 585–586.
- ^ Dusil, Kannowski & Schwedler 2023, p. 79.
- ^ Schmidt-Wiegand 2010a, pp. 394–395.
- ^ Schmidt-Wiegand 2010b, p. 585.
- ^ Drew 1991, p. 21-22.
- ^ Dusil, Kannowski & Schwedler 2023, p. 86.
- ^ a b Schmidt-Wiegand 2010a, p. 392.
- ^ Drew 1991, p. 22.
- ^ a b Wormald 2003, pp. 27.
- ^ Lück 2010, pp. 425–426.
- ^ Lück 2010, p. 426.
- ^ Schmidt-Wiegand 2010a, p. 393.
- ^ Schmidt-Wiegand 2010a, p. 394.
- ^ a b Shoemaker 2018, p. 253.
- ^ Dusil, Kannowski & Schwedler 2023, p. 135.
- ^ Wormald 2003, p. 30.
- ^ Meineke & Kaufmann 2010, p. 569.
- ^ Meineke & Kaufmann 2010, pp. 564–565.
- ^ Dusil, Kannowski & Schwedler 2023, pp. 130–131.
- ^ Meineke & Kaufmann 2010, pp. 5676–570.
- ^ Beck & Wenskus 2010, p. 887.
- ^ a b Hardt 2010, p. 1177.
- ^ Beck & Wenskus 2010, pp. 886.
- ^ Schmidt-Wiegand 2010b, pp. 381–382.
- ^ Beck & Wenskus 2010, pp. 900–901.
- ^ Dusil, Kannowski & Schwedler 2023, pp. 131–133.
- ^ Dusil, Kannowski & Schwedler 2023, p. 131.
- ^ Green 1998, pp. 34–35.
- ^ Hardt 2010, p. 1178.
- ^ Hardt 2010, p. 1179.
- ^ Drew 1991, p. 23.
- ^ Beck & Wenskus 2010, p. 896.
- ^ Naumann & Schmidt-Wiegand 2010, pp. 535–537.
- ^ Naumann & Schmidt-Wiegand 2010, p. 537.
- ^ Munske 1973, p. 537.
- ^ von Olberg 1991.
- ^ Schmidt-Wiegand 2010d, pp. 70–71.
- ^ Green 1998, pp. 31–32.
- ^ Schmidt-Wiegand 2010d, p. 70.
- ^ Green 1998, pp. 31–34.
- ^ Schmidt-Wiegand 2010d, p. 72.
- ^ Karras 2006, pp. 124.
- ^ Schulze 2010, p. 480.
- ^ Karras 2006, p. 128.
- ^ Schulze 2010, p. 483.
- ^ a b Schulze 2010, p. 488.
- ^ Buchholz 2008, p. 1193.
- ^ Schulze 2010, p. 481.
- ^ Karras 2006, pp. 124, 127–130, 139–140.
- ^ Schumann 2008a, pp. 1807–1809.
- ^ Schumann 2008b, pp. 1695–1696.
- ^ Esders 2021, p. 1.
- ^ Körntgen 2010, p. 359.
- ^ Schmidt-Wiegand 2010e, p. 917.
- ^ Beck 2010, p. 215.
- ^ Körntgen 2010, pp. 459–460.
- ^ Wormald 2003.
- ^ Lenski 2023, pp. 384–400.
- ^ Schmidt-Wiegand 2010e, pp. 914–915.
- ^ Schmidt-Wiegand 2010e, pp. 922–923.
- ^ Schmidt-Wiegand 2010e, p. 915-917.
- ^ a b Schmidt-Wiegand 2010e, pp. 917–918.
- ^ Esders 2021, pp. 1–2.
- ^ Lenski 2022, pp. 262–265.
- ^ a b Kalb 2016a.
- ^ Bartlett 1986, p. 2.
- ^ Holzhauer & Pesch 2010, pp. 301–304.
- ^ Holzhauer & Pesch 2010, pp. 299–300.
- ^ Bartlett 1986, p. 103.
- ^ Dusil, Kannowski & Schwedler 2023, pp. 140–141.
- ^ Holzhauer & Pesch 2010, p. 298.
- ^ Pohl 2016.
- ^ Bartlett 1986, pp. 5–7.
- ^ Holzhauer & Pesch 2010, pp. 298–299.
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External links
- Leges Romanae barbarorum
- Volterra Project at UCL
- Information on the leges Barbarorum and the respective manuscript tradition on the Bibliotheca legum regni Francorum manuscripta website, A database on Carolingian secular law texts (Karl Ubl, Cologne University, Germany, 2012).