Germanic Codes (Germanenrechte)
1. Conceptual definitions
The term ‘Germanic codes’ (Germanenrechte) designates a variety of written, abstract-general rules dating from the 4th to 9th centuries, which were applied to a specific ethnic group. Usually, these laws were initiated by the rulers of those tribes, which were settling in the region of the former western Roman Empire. Of a similar nature are the Anglo-Saxon laws in England, which emerged in the period between the 5th century and the Norman Conquest of 1066.
Up to the 20th century, the ethnic groups to which these rules were applied were called ‘Germans’, groups related by common cultural traditions and similar forms of government whose ancestors had already been described by ancient writers such as Caesar, and in particular in the Germania of Tacitus (AD 55–116/120). Even though historical scholarship and legal history have demonstrated that there is no uniform type of ‘Germans’ (or ‘Teutons’ as they were called in older literature), there is still a broad debate on the ‘Germanic problem’ and it has been argued that the term ‘Germans’ (Germanen) should be abandoned. Nevertheless, the term ‘Germanic codes’ (Germanenrechte) apparently occupies a fixed position in legal history in particular. In that regard it is a telling fact that a frequently used series of editions of these laws, initiated by Karl August Eckhardt (1901–79), has been published under the title Germanenrechte (Germanic laws).
Closer to the historical sources, however, is the expression lex or leges (law or laws). This designation is not only applied in modern research; first and foremost it can frequently be found as a self-description of these texts. According to a scheme sometimes also used in these sources, the expression lex is usually combined with the name of the tribe which was the addressee of this ‘law’ (eg lex Alamannorum). If a lex pertained to the formerly Roman population in the lands of a tribe, next to the name of the tribe the addendum Romana was used (eg lex Romana Burgundionum). While the term lex, however, suggests acts of legislation, not a few of these leges were written records of already existing customs. The word lex is also adopted by the designation leges barbarorum, which emerged in 16th century humanistic jurisprudence, and was used in the 18th century mainly in the Romanic language area as a description of these texts. The term barbari named the tribes of the Migration Period which were responsible for the end of the western Roman Empire. Given the pejorative tendency of this expression in the German speaking area, the term ‘people’s laws’ (Volksrechte), created by Heinrich Brunner (1840–1915), became common in the late 19th century. By the middle of the 20th century the word ‘tribal laws’ (Stammesrechte) emerged as a competing designation. However, all these terms are problematic because, as mentioned, the leges were addressed not only to ‘tribes’ or ‘peoples’ but also to the formerly Roman population. But apart from these terminological discrepancies, there is a broad consensus on the subject of debate, which here shall be called lex (or leges).
2. Contexts of the origin of leges in continental Europe
It was the rise of new reigns during the Migration Period, starting in 375 in today’s Spain, France and Italy, and later also in Germany, which formed the background for the emergence of the leges. Usually, leges served the consolidation of monarchical control over tribes and Romanic populations. By their contents leges frequently mirrored this effort, particularly in many rules on the compensation of crime in the interest of internal peace. By establishing fines (compositiones), these rules were intended mainly to limit feuds, ie the violent revenge for wrongs suffered and undertaken to restore the harmed honour. Other provisions addressed court procedure and often also ordeals such as the ordeal by battle. There were also numerous rules on trade and commerce, on landed property, and on family law and the law of succession, which made the leges a very rich source of cultural history.
As a consequence of the personal basis of the monarchical claim to power, the leges followed the principle of personality; they did not apply to a territory but to certain groups of persons. Another characteristic element of the early medieval form of government comes to light in the descriptions of the creation of leges: prologues and epilogues sometimes stressed the joint acting of king and tribe (meaning its nobility), which found its semantic counterpart in expressions such as pactus or pactio. Regardless of such narratives, the central role of the ruler as supreme judge and as legislator was also highlighted with varying degrees of explicitness. It is, however, not quite clear to what extent these descriptions of monarchical power had their counterpart in the concrete application of leges. For it has been demonstrated that at least some leges were not used in legal practice; moreover, manuscript transmission has been proven only from the 8th century onwards. This had led to the conclusion that for some rulers the lex was little more than just a medium of their claim to power.
a) First period of rule making: 5th to 7th centuries
By the leges of the first period, the respective gens evolved into a legally structured association which tried to define its position towards the Romanic population and Roman law. This took place, on the one hand, by transmission of oral legal traditions into a lex scripta, whose form was inspired by the culture of written administrative records of the Roman chancelleries of late antiquity. On the other hand, and to different extents, elements of Roman law found their way into the leges, which thus also became impressive evidence for regionally different, intense combinations of (to use modern terms): national legal traditions and Roman legal culture.
The starting point of these developments was set by the Visigoths who, with the Tolosan realm (418/19–507), which had its centre in Toulouse, and the Toledan realm (507–711), centred around Toledo, reigned over large regions of today’s south-western Europe. Here, the Visigothic kings created a number of different rules which, partly only indirectly transmitted, are nowadays designated leges Visigothorum. The prelude to this series of laws was the Codex Euricianus, which was named by its presumed author, King Euric (466–484), and probably emerged somewhere between 469 and 477 (recent research has ascribed it to Alaric II, 485–507). Influenced by Roman law, its rules are preserved only in fragmentary form by a palimpsest (Paris, Bibl Nat, Ms lat 12161). With more than 70 manuscripts, incomparably better is the transmission of a code of Alaric II, issued in 506. Its contents are indicated by the designations of this law, used in the manuscripts, as lex Romana, liber legum or—referring to the codex Theodosianus, issued in 438 by the Roman Emperor Theodosius II (408–450)—as Corpus Theodosianum. Based especially on the Theodosian code, on collections of imperial laws from late antiquity (codex Gregorianus and codex Hermogenianus) and on subsequent editings of the writings of the Roman jurists Gaius and Paulus, the later so-called lex Romana Visigothorum established rules with binding force for only the Romanic population, which was thus granted its own legal sphere, as distinct from the Visigothic law. Nearly 150 years later, however, both spheres had apparently converged, as is proven by another great Visigothic code: around 654 King Reccesvinth (653–672) issued a Liber Iudiciorum (so named in a segment of the transmitting manuscripts) which adopted some rules of former Visigothic kings as so-called Antiqua.
Essential in the immediate context is the ban on the application of Romanae leges seu alienae institutiones (Roman laws or foreign institutions), which, at the same time, gave way to the principle of territoriality. Consequently, what might be termed the duality of the legal order in the Visigothic reign came to an end. This was only possible due to the desired—if not fully achieved—rapprochement of Romans and Visigoths. The nearly complete lack of manuscript evidence of the lex Romana Visigothorum suggests that Reccesvinth’s order was followed. Beyond the Visigothic reign, however, the Breviarium Alarici, as Alaric’s code was also called, spread with more than 70 manuscripts, in particular throughout Italy and in the Frankish realm. It is still one of the most important sources for the pre-Justinianic law (Corpus Juris Civilis). The spread of Alaric’s breviarium was additionally supported by the creation of extracts of its texts (so-called epitomae, derived from the Greek ἐπιτομή) in the 8th century. A special case of this type of text collections is the so-called lex Romana Curiensis, which presumably was created in the 8th-century province of Raetia (the territory of the then-diocese of Chur). By also including Frankish customs this epitome demonstrates the efforts of its author to combine elements of the lex Romana Visigothorum with Frankish legal culture and language.
Also appearing largely dependent on Roman law in terms of content is the edictum Theoderici. Nevertheless, its 154 provisions, mainly concerning criminal law, were to be applied to Romans as well as barbari. Localization and historical classification of the edictum Theoderici is disputed due to the fact that the available text is based on an edition of 1579 which, in turn, rests on two lost manuscripts. In particular, German historical scholarship has credited Theoderic the Great (474/493–526), king of the Ostrogoths, who settled in Italy, with the authorship of the edictum. Other writers have argued that this code was created in Roman Gaul or in the Tolosan realm of the Visigoths, where it is supposed to have been issued by the Visigothic King Theoderic II (453–466) between 459 and 461.
Probably largely independent of the gothic legal traditions, two laws emerged in the Burgundian kingdom (434–534) in the Rhone area. They were shaped by the tension between an affinity to Roman legal culture on the one hand and the dissimilarity of Burgundians and Romans on the other. Probably sometime before 501, King Gundobad (480–516) issued a law which, although called lex Gundobada in Carolingian sources, is usually referred to as lex Burgundionum (the latter title appears only in one single manuscript). Gundobad’s son Sigismund (516–523) apparently arranged in 517 for a redraft of this law, whose rubrics, however, used the name liber constitutionum. In both its forms, the lex Burgundionum was applicable only to Burgundians but could also be applied in cases of legal controversies between Burgundians and Romanic individuals. This distinction between former Romans and Burgundians found its expression in the lex Romana Burgundionum, which was issued by Gundobad probably sometime before 506.
Tied to the principle of personality were also the leges emerging in the Frankish kingdom, which expanded under the kingship of Clovis I (d 27 November 511) from northern Gaul. In particular, the lex Salica, created between 507 and 511, establishes the transition between orality and writing: a defining mark of this lex was its elaboration of the vernacular by including Frankish expressions (indicated by the term in mallobergo—in free translation: “in the language of the court”). This approach was without prior example in the tradition of the leges, at least on such scale. The combination of Frankish orality and the Latin language used for writing appears only in early texts of the lex Salica, while the editions created after 763/764 in the Carolingian period are more strongly shaped by written Latin (which perhaps is explained by the Carolingian renaissance). In terms of content, the lex Salica shows a comparatively marked distance from Roman law of late antiquity, in spite of its being influenced by the Burgundian laws and the codex Euricianus. At the same time, the lex Salica is an early example of the reference to special experts in leges, who are described here as electi of the Frankish rectores.
Sometimes referred to as lex Salica revisa, the rex Ribuaria was issued for a small Frankish kingdom around Cologne. Its provisions on the compensation of wrong were shaped by the lex Salica. It was already rudimentarily created in the time of Chlothar II (584–629), but apparently only took on its final form in the period of Dagobert I (523–639), who acted initially as Chlothar’s subordinated king.
The joint acting between rulers and the ruled became more apparent in the most important lex of the Lombards who governed Italy between 552 and 774. Named after the Lombardic King Rothari (d 652), the edictum (sometimes edictus) Rothari was issued in 643. The prologue as well as the epilogue emphasized consilium and consensus of nobility and iudices. Additionally, a confirmation of the Lombardic army was reported, which took place secundum ritus gentis nostrae (according to the custom of our people) and was performed by gairethinx (a ritual banging of spears and shields whose exact meaning is strongly disputed). The edictum combines in its 388 capitula many different layers of contemporary law: while it was intended to preserve oral Lombardic customs (cauuarfida), it also adopted elements of Roman law from the Codex Theodosianus and Justinian’s legislation (Corpus Juris Civilis), and it included material from the Visigothic leges. Rothari’s successors, in particular Liutprand (712–744), issued supplementary provisions which were added to the edictum as volumina, thus leading to the emergence of a uniform Edictum regum Langobardorum. In the 11th century its texts, together with other materials, were to become (as liber legis Langobardorum) the foundation for the so-called ‘School of Pavia’ and the early jurisprudential activity which was to constitute one of the roots of the ius commune.
b) Leges of the 8th century under ecclesiastical influence
Clerics had always been important aides of legislating rulers due to their educational background. Therefore, Christian ideas were present in the leges more or less at all times. But in the 8th century leges the church gained more influence. The lex Alamannorum is dedicated in its entire first part to the privileged position of the church, while its second part tries to elaborate the ruling position of the Alemannic duke. With provisions on the compensation of wrong, the third part of the lex refers to the pactus legis Alamannorum, its antecedent which was probably initiated by the Frankish King Chlothar II (584–629), and thereby transmits legal traditions of the Frankish realm also into the lex Alamannorum. The prologue of the lex Alamannorum also corresponds to the leges tradition: most manuscripts explain the creation of the lex by an imperial assembly, thus referring to the traditional idea of a joint acting of nobility and kingship. For a considerable time it has been argued that Duke Lantfried of Alemannia (712–730) was the author due to his mention in the lex, even though his name was substituted with a reference to Chlothar II after the duke’s conflict with the Franks. In the meantime, however, it has been increasingly argued that the lex is a forgery which was created presumably between 735 and 740 in the Reichenau monastery (near today’s Constance).
Clearly influenced by the ecclesiastical sphere was also the lex Baiuvariorum. Its origins are highly disputed, even though a text of the lex was already available for the Aschheim synod of 756. Similar to the lex Alamannorum and structured in three parts addressing the church, the Bavarian duke and rules regarding the Bavarian tribe, the lex reveals its close connection to the church, in particular by the provision that clerics should be dealt with secundum canones and hence be excluded from secular jurisdiction. The apparent goal of this provision, the use of the Ethymologiae of Isidor of Seville in the prologue, and the very differentiated use of a copy of the codex Euricianus suggest the authorship of highly educated persons having numerous texts available. This confirms the argument that the lex was the product of Bavarian clerics. At the same time, however, the lex Baiuvariorum uses elements of the leges tradition when it refers to the importance of elected viri sapientes in its prologue or stresses the idea of legal improvement by monarchical legislation as it had already been emphasized in the edictum Rothari.
c) The Carolingian leges
Probably in 802/803 at the instigation of Charlemagne, the lex Francorum Chamavorum, the lex Frisionum, the lex Saxonum and the lex Thuringorum were created as rules for peoples subjected by the Emperor. These rules, transmitted by only a few manuscripts, were issued in a period when a new type of law making had already begun to arise: the capitularies, ie acts of rulers which were similar to laws and were structured in capitula, had first been seen in the Merovingian era and increasingly became the common device of monarchical ruling. It was revealing of this development that the leges were now also supplemented by capitularies (capitula legibus addenda). The issuing of the four leges in 802/803 was apparently part of Charlemagne’s efforts to base law on writing ‘so that the judges will deliver their judgment only according to written law and not according to their discretion’ (ut iudices secundum scriptam legem iuste iudicent, not secundum arbitrium suum (Capitulare missorum generale, 802)).
3. The leges Anglo-Saxonum
Contrary to the leges of the continental tradition, the laws of the Anglo-Saxon kings were usually written in vernacular. They begin around 615 with the legislation of Aethelbert of Kent (580/ 590–616). Similar to continental developments, early Anglo-Saxon rule-making reveals transitions from oral customs to the royal making of written laws. This corresponds to the main topics of these provisions, which dealt with feuds and fines. Under Alfred the Great (871–901) and Cnut of Denmark (1016–1035) the royal prosecution of wrong gained more importance: fines were owed to the king and not the violated person, numerous wrongs were sanctioned with the death penalty. This prominent royal position had its counterpart in the growing importance of a royal jurisdiction, which was to become one of the institutional cornerstones of the common law.
Very instructive discussion of the problems of law-making, leges and the ethnic identities by Patrick Wormald, ‘Lex scripta and verbum regis: Legislation and Germanic Kingship from Euric to Cnut’ in Patrick Wormald, Legal Culture in the Early Medieval West: Law as Text, Image and Experience (1999) 1 (originally in Peter H Sawyer and Ian N Wood (eds), Early Medieval Kingship (1977) 105). For surveys on continental leges see the articles in Handwörterbuch zur deutschen Rechtsgeschichte, vol 2 (1978) col 1879 ff; for the edictum Theoderici Hans-Jürgen Becker in Handwörterbuch zur deutschen Rechtsgeschichte, vol 1 (1971) col 801 ff; essential: Patrick Wormald, The Making of English Law (1999); very detailed recent survey in Reallexikon der Germanischen Altertumskunde, vol 18 (2001) 195 ff, 201 ff, 208 ff, 305 ff. For the leges Anglo-Saxonum see Patrick Wormald, ‘Leges Anglo-Saxonum’ in Reallexikon der Germanischen Altertumskunde, vol 18 (2001) 205 ff. Excellent survey by Patrick Wormald, ‘The Leges Barbarorum: Law and Ethnicity in the Post-Roman West’ in Hans Werner Goetz, Jörg Jarnut and Walter Pohl (eds), Regna and Gentes: The Relationship Between Late Antique and Early Medieval Peoples and Kingdoms in the Transformation of the Roman World (2003) 21. For a short survey on the problem of the term ‘Germanic’ see Guy Halsall, ‘The Barbarian Invasions’ in Paul Fouracre (ed), The New Cambridge Medieval History, vol 1 (2005, reprinted 2006) 35–7.
Texts of continental European leges in their Latin version are available in the editions of the Monumenta Germaniae Historica. Relevant editions are listed in the contributions to the Handwörterbuch zur Deutschen Rechtsgeschichte and the Reallexikon der Germanischen Altertumskunde. English laws are available in the edition by Felix Liebermann, Die Gesetze der Angelsachsen, vols 1–3 (1903–16). A list of English translations of these texts is given by Patrick Wormald, ‘Leges Anglo-Saxonum’ in Reallexikon der Germanischen Altertumskunde (2nd edn, 2001) 205–8.