after justinian - miriam tveit(1)

7/27/2019 After Justinian - Miriam Tveit(1)

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After Justinian Legal development in Germanic west and Byzantine

east in the Early Middle Ages.

Lecture given at the Norwegian Institute of Athens, June 9, 2010

My field of research concerns transmission of law in the Early and High Middle Ages, and under

what circumstances law will influence other law codes. My research concentrates on the more

western and northern spheres of Europe as I have studied Roman laws influence on the early

Germanic law codes, and my current project concerns international influences on the Nordic

medieval legislation. The time span we are talking about is approximately 500-1300. I will here

concentrate on the period 500-900.

Despite my north-western focus, or maybe because of this, I find it crucial to implement the

legal development in the east. A problem of studying the Middle Ages is that scholars who do

research on the Latinized parts of Europe often will treat the Byzantine Empire as a transplanted

limb, if at all. The continuing east Roman Empire played an enormous economical, political and

cultural factor in Europe and Middle East until 1453. To disregard its influence would be ignorant,

and causes us to loose an aspect of the influencing factors in western medieval Europe.

After the fall of the Western Roman Empire in the late 5th century, the eastern provinces continued

to thrive. The centre of gravity already laid in the east, economically, demographically andculturally. Constantinople had long since assumed the position of political capital.

Historians tend to call the continuing Eastern Roman Empire Byzantium, a name thought

up in the 16th century. This to highlight the particular development in the following centuries and to

distinguish the realm and period from the earlier antiquity and later Ottoman Empire. Also to

distinguish between the continuing Roman Empire with other usurpers to the legacy of Rome, like

Charlemagne in the 800s and the Holy Roman Empire from the 10th century onwards. The opinion

of when exactly the Roman Empire should be named Byzantium differs among scholars. Many

start, as I will here, the period from emperor Justinians death in the 6th

century. My reason is legal,the development after Justinian moves in a different direction than earlier legal work.

Ernst Levy cemented the term vulgar law for the later Roman legislation in the west and the usage

of peregrine law among the people of the Roman Empire.1 Vulgarization has further been used

with a negative connotation on the legal development in both east and west after Justinian. The

immensely advanced and complex nature of Roman law seems like a lost past compared with the

simple lawmaking in the Germanic kingdoms and the continuing eastern Roman empire. This has

1Levy, Ernst 1951: West Roman Vulgar Law, The Law of Property, in Memoirs of the American Philosophical Society :

held at Philadelphia for promoting useful knowledge, Vol. 29, Philadelphia


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often been viewed as a barbarization of the high civilisation found in the Roman Empire at its

peak.2 Modern scholars who study the late antiquity and early middle ages, a field which has

developed mainly in the last 40 years, however has suggested a different view.

Scholars tend to claim that ones field of research and period is both significant and eventful,

with a lot to offer research on all other periods, and today I will be no different. I will claim that the

legal development after Justinian was not into vulgarisation and barbarisation, but a development

towards a conscious practical and substantial meaning. Further I will compare how the legal

process continued in the eastern Roman Empire and the forming states in the former western

provinces.

The starting point for both these larger regions, law-wise, was similar yet different. Similar because

the continuing administrative apparatus of notaries originated in the Roman legal culture, different

because while the settling tribes who established power in the western provinces had no tradition

of written law, the Byzantine Empire continued an unbroken line of the Roman Empire and its legal

heritage.

Roman law

The Byzantine Empire rested on, but still struggled with the Roman legacy. So also the

administration mirrored the earlier grandeur of the enormous Roman law which did not have its

like in this part of the world.

When Justinian came to power in 527 the thousand years of legislation and iushadamassed to a complexity that was unmanageable and unusable. There were not the equally

advanced apparatus or skilled lawyers and judges to handle the written laws. Justinian himself was

eager to raise the standards of the legal system to the standards of what is called the golden age

of Roman jurisprudence, the time of the jurists in the 2nd and 3rd centuries, and to mend the general

attitude towards lawyers and judges. He issued in the 530s the massive compilation we now call

Corpus Iuris Civilis(CJC). In this are remains of laws which origin from the law of the twelve tables

from around 450 BC (, and indeed Justinians Digest is next to Cicero the major source of the XII

tables). After centuries of law making without revision the Romans had an enormous amount of

law. Without going into details on the spread and usage of imperial enactments, we can simply say

that there existed no updated or coherent compilation to make jurists all over the empire employ

the same laws.3 Even though the law had an important place in the Roman society, it was unclear

in the large empire what was valid at all times. The jurists themselves had problems keeping

overview over which laws that existed, and what was in force, particularly since no legal record

was published. Judgement from specific cases was not distributed between the provinces. From

2

Mousourakis, George 2007: Epilogue, inA Legal History of Rome, Routhledge, London3Jolowicz, H.F. and Nicholas Barry 1972:Historical introduction to the study of Roman law,

Cambridge: 6, Robinson, O. F. 1997: The sources of Roman law: problems and methods for ancient historians,

London: 20


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the 3rd century judges gave verdict on tradition, custom and local enactments possibly extracted

from the praetorian, or in important cases by responsumfrom the emperors.

The emperor Theodosius II who reigned from 401-450 initiated a greater compilation of

imperial enactments. But Codex Theodosianusconsists only of edicts from Constantine until

Theodosius own, while republican material and law from the most active period of the jurists was

omitted. The code of 16 books was published in 438 and was spread all over the empire before the

western part disintegrated during the 5th century. Of this reason, several Germanic groups used

Theodosius laws either as a supplement or as foundation for their own written law, as I will return

to later.

By Justinians time jurists and lawyers had a questionable reputation of corruption and

incompetence. His desire to change peoples view on the courts made him order his quaestor

Tribonian and a group of jurists to start the work of compiling Corpus Iuris Civilis.

The compilation is an edition in four parts. The result consists of imperial enactments in the

constitutions, called Codex, secondly the Digesta, which is interpretations form the classical

Roman jurists from the first three centuries C.E. and which consisted of fifty books divided after

subjects. The third part being the Institutions, a summary of the laws in force which consists of four

short books. Further Justinian and his successor Justin II, issued own enactments including 168

constitutions, which have been labelled Novellae. These new constitutions were issued on Greek

or Latin according to whether they were addressed to prefects in eastern or western provinces and

have later been added to CJC.

Justinians compilation did not have an impact on the west as the Theodosian code, but itwas highly celebrated and spread in the east. Justinian described himself in the prologue of the

Digestahow he wanted the three first parts to be used. Further than systemizing the law system,

they would be pedagogical books for law students in the empire. This would be the new era for the

Roman jurists, the young lawyers he even wanted to be called Justinianos Novos, New Justinians.4

Justinian had taken precautions so that the chaos from earlier would not prevail by ordering that

only three types of amendments would be allowed to the laws: translation, comparison and

summary. But, even if changing the laws was not allowed, Justinian and his successor Justin II

issued as said 168 novellas that regulated earlier decisions. He even mortified his own legislation

in later novels.5

Although the efforts made the Justinian collection was still too big (Digestaalone being 1,5

times the size of the Bible), utterly complicated and proved again unmanageable for the unskilled.

Also, the traditions and norms in the Byzantine Empire were different than classical Roman law

imaged; therefore there was no new golden age for the jurists or a strong juridical stand of New

Justinians. And by the eight century a need for new revisions was urgent.6 This resulted in the

4 Justinian, The Whole Body of Law, Preface to theDigest, Watson, Alan (transl.) 19985 Example: Novellae.22.4 confirmed acceptance to get divorce by mutual consent. This section was mortified by

Nov.117.10. Further acceptance of divorce by mutual consent was introduced again by Justin II in Nov.140.6

Jolowicz 1972: 451-55


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Ekloga, issued by BasileusLeo III and his son Constantine V around 740 AD, a short compilation

of 18 chapters.

Legal development in the Byzantine Empire

Little is known about Byzantine laws because of few sources. It is also done relatively little

research on the legal development in the remaining eastern Roman Empire by historians and legal

historians. Further, there has not been a tradition for regarding the Byzantine empire as a natural

part of the European medieval history (or as a part of the Middle Eastern history for that matter).

For these reasons there is no tradition either to view the legal development in eastern and western

parts of medieval Europe together, or as deriving from the same background of Roman Law. The

Eklogafrom 740/1 is still regarded as a somewhat revolution in legal history, and as deserving

more attention by scholars of the Middle Ages. Not only because we here find the principles that

constituted the foundation of Roman law reduced in a highly functional direction, but also because

it further included receptions clearly influenced by the culture of the eastern Roman provinces.

Moreover the Eklogais the first systematic corpus issued fully in Greek and not Latin, something

which cemented the break with what we know as classical Roman culture. The process had

already begun under Justinian, but never on the whole.7 Finally it is the first consistent attempt to

fuse Christian principles with secular law. This was naturally a part of the legislation of the later

Roman emperors, but they were still bound by classical traditions. In the Eklogathe merge is

complete.

The law code is to a large extent regulated after the teachings of the Eastern Church, byway of implementing the emerging Christian ideology of humanism, not only Christian prohibitions. 8

A very interesting aspect is that we do not find a trace of the iconoclasm that is the very brand of

the rule of Leo III and Constantine V. Leo banned idolatry and the use of images in 730, a highly

unpopular and opposed decision in the empire where worshipping idols was a strong feature of the

religious practice. Since the iconoclasts rulers were utterly condemned by later emperors, few

sources remain from the supporters about the origins or reasons for the image-ban. Because this

ideology is further unmentioned in or maybe erased from the legal material, the origins and dating

of the Eklogaare debated. Edwin Freshfield, translator of several Byzantine laws into English in

the 1920s claimed the opus came to in 727, three years before iconoclasm was introduced.9 There

is now a consensus that the Eklogawas promulgated in 740/1 because of elements in the law and

the crediting of co-author Constantine V.

The judges of Constantinople and the provinces based their sentiments mainly on custom in the

seventh and eight centuries, and the compilation of Justinian that was aimed at unidirect the legal

7 Chrysos, Evangelos K. 1978: "The Title in Early Byzantine International Relations",Dumbarton OaksPapers (Dumbarton Oaks) 32: 328

Freshfield, Edwin Hanson 1927,A Manual of later Roman Law, The Ekloga ad Procheiron Mutata: x9

Freshfield, Edwin Hanson 1926:A Manual of Roman Law, The Ecloga, Cambridge:


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system, proved to be too unmanageable. 10 Emperor Leo took action to control the legal system

and wanted to create a law adapted to the new times, the society's needs, religion and the needs

of central authorities. In the preface Leo and Constantine explained:

[k]nowing moreover that the laws enacted by previous Emperors have been

written in many books and being aware that the sense thereof is to some difficultto understand, to others absolutely unintelligible, and especially to those who do

not reside in this our imperial God-protected city 11

Therefore they had called the patricians to examine the laws and to clarify and update. It was

necessary to minimize the gap between law and reality, law and society.

Since the Eklogais a law code meant for practical purposes and a reduction of the complex

material in Justinians CJC, the most interesting aspects of it are what areas were emphasized and

which principles from earlier legislation were included. This could depict what the foundation of a

society ideologically was supposed to be, and maybe offer some insights to the legislative circle of

the authorities, consisting of the basileusand his legal advisers. It could also reveal hints of what

were the areas of disputes in the diverse Byzantine society.

Primarily the Eklogaconsisted of three elements: The most prominent being family law

where the focus lies with marriage and inheritance. Then there is criminal law, devoted to

punishments for various crimes against fellow citizens and the state. Lastly the Eklogawas

permeated with Christian law, centred on ecclesiastical rights and influenced by the church

meetings of the age. The influence from the Eastern Church on the laws, or more likely on Basileus

Leo, brought the Christian concept of philantropia beneficence against humanity and

humanitas a focus on human life. This is revealed in a particular fashion in criminal law, where

what had earlier been given the death penalty now was punished with mutilation. This involves

cutting off the perpetrators nose or hand and also tongue, punishments considered merciful

compared with execution, since this gave the sinner time to remorse and to do penance for his or

her actions before standing trial on the day of judgement. The legal text consists of a long line of

breaches of the law, theft, rape, adultery and blasphemy, all damages to God and neighbour, and a

suitable punishment for such actions. The legislators describe the reason for this in simple terms:

so that the people should know what the punishment is. The classical Roman law were more

centred on the abstract aspects of the actions; degrees of breaches of the law and the juridical

rights of both parties including every possible variable that could be applied, but rarely gave the

anticipated punishment or solution, which would be a matter for the judge. The editors of Ekloga

also took the essence of the Justinian compilation and reduced it to its ground principles. The law

code became in this way was a handy manual for judge and jury, and also simple enough to make

commonly known among the general population. Rosemary Morris has criticised legal historians

10Laiou, Angeliki E. 1993: Sex, Consent and Coercion in Byzantium, in Laiou, Angeliki E. (ed.), Consent and

Coercion to Sex and Marriage in Ancient and Medieval Societies, Harvard:11

Freshfield 1926: 67, translation by Edwin Hanson Freshfield


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for calling this development vulgarization of the Justinian tradition, because of what she sees as

the usability of the new code.12 She also asserts that the ideology of the eastern Christianity now

actually became the continuer of classical legal institutions because of the merging of the two in

Ekloga.

The relatively strong focus on private law is interesting because structurally it could indicate a

development in society towards a weaker central power. Family or the kin could now have to a

larger extent play the role as foundation of society, and could seem more important than

regulations of public activities connected with central power, like trade and administration. The

absence of the latter in common law is regarded symptomatic for increased self government in the

provinces, and instead made efforts to see that private arrangements concerning marriage and

property would prevent conflicts. It is an aspect of the Eklogawhich is hard to explain for modern

scholars, but can easily be put in the category of degeneration of the structures of Byzantine

society in the 7th and 8th centuries. It could also be explained by the practical agenda behind the

work. It should be used in court and in education, and was not a political constitution for the

empire. Rather, central power did not need to indulge in constitutional enactments and public

rights. In the essence of clarifying valid law we find in the Eklogashort descriptions of who could

get married, and who could not, how to write a marriage contract, what happened with property

when the man or woman died first, how to deal with second marriages and third, and so on.13 This

basically follows Justinian law, but without the confusing possibilities. Further it included some

important revisions: The degrees on which relations could form a valid marriage were raised from 4degrees to 5, which is from forbidden between cousins, to also include cousins children.14 The

legal age was raised to 13 and 15 (from 12 and 14) 15, divorce was again prohibited and as a first,

male adultery was punished.16 The forbidden degrees were also higher in the Germanic laws, with

6 or 7 degrees. A general trend in European Christendom and believed to be an influence from the

Church.17 And what I believe to be the most important change from earlier Roman law: No taxes

should return to the state in private transactions. The same feature is found in the laws on

inheritance, where the treasury would no longer have a share of the inheritance if the deceased

had children. The right to inherit was equalized so that all children shared equally: both legitimate

and illegitimate (boys and girls already shared). The surviving spouse could remain in undivided

property. The state then abandoned all claims in private life with nothing but loss to the state

treasury. And in addition the laws stated that if some children were favoured by will, or children

12 Morris, Rosemary 1986: Dispute settlements in Byzantine Provinces in the tenth century, in Davies, Wendy & Paul

Fouracre (eds.): The Settlement of Disputes in Early Medieval Europe, Cambridge University Press: 12713

Ekloga.I-III14 Ekloga.XVII.3715 Ekloga.IV.116 Ekloga.XVII.1917 Ex: Leges Visigothorum.III.V.I, Leges Langobardorum, Rot.153, See also Tveit, Miriam 2007:Non enim coitus

matrimonium facit, sed maritalis affectio: Ekteskapslovgivningen i sen romersk og tidlig germansk rett, University of

Troms: 44


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before wife, officials would come and investigate if everything had happened in proper ways.18

Within inheritance laws it meant conflict averting were put in motion. Inheritance would come to

one joint of the kin instead of multiple, so that only the parents of a childless son would inherit, and

not the parents and the deceased's siblings. Apart from that the laws on inheritance were a short

summary of the main principles from Roman Law. The simplification made the inheritance laws

incontestable rights for the closest cognatic kin.

In the Ekloga, chapter 17 on criminal punishments are the most referred to by scholars because of

its grotesque character. Here as mentioned earlier, we find the infamous mutilations. The

punishment of noseslittings especially has caused attention. Nose slitting was stipulated for sexual

crimes, like adultery, incest in close degrees and rape of nuns, underage girls and betrothed or

married women. This is as said, assumed to be a result of strong Christian influence on penal law.

The perpetrator would have a hole in the face for the rest of his life, but could still get salvation. In

case of adultery, the married part would have his or her nose slit, and the married woman also

would be separated from her husband and children, unmarried fornicators would be flogged.

Homosexual acts were considered one of the most grave of offences, and given death penalty,

similar to earlier Roman legislation. We also see a strengthening of the condemnation the church

exercised on sexual relationships between spiritual kindred or affinal relations and adoptive

family.19 The sacred bond between godparents and godchild was already introduced by Justinian,

and can also be found in contemporary Germanic laws.20

The development after Ekloga

A second iconoclasm was introduced in the period 815-43, BasileusLeo V might have believed the

empires military loss in the decades before him, where the empire had been forced to compromise

with the Arabs in the Anatolian and suffered loss to the Bulgars in the Balkan, and there lost an

emperor Nikephoros in battle.21 Iconoclasm was therefore renewed, now with a harder impact.

Iconophiles and their icons were destroyed. This was as unpopular as the first wave of iconoclasm

and subsequently abandoned by his successors. Because of the political problems relating to the

iconoclasts rulers, later emperors needed to take a stand against the first iconoclast Leo III and

Constantine V. Emperor Basil I (867-86) banned all work remaining from them. This included the

Ekloga, which was to be replaced with a legal compilation from Basil: the Epanagogewhich was a

greater compilation containing earlier Roman law, and then later the Procheiros Nomos(or the

Procheiron), which was a smaller sized code much like the Ekloga.22According to Basils

introduction of the Procheiros Nomosthe Eklogawas to him a subversion of good laws, useless

18 Ekloga.V.519 Ekloga.II.2, Ekloga.XVII.25-2620 CJC Codex.5.4.25, Ex. Leges Langobardorum, Liutprandi.34.V from 72321 Gregory, Timothy E. 2005: A history of Byzantium, Malden, Oxford, Carlton, Blackwell Publishing: 20522Bachrach Bernard S. 1977:Early medieval Jewish policy in Western Europe, Minnesota, University of MinnesotaPress: 125-31 and n 107


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for the Empire But even though the Procheiros Nomosexplicitly ejected the Ekloga, the text is

almost a blueprint of the earlier corpus. As legal theorist Alan Watson has showed in his work

Legal Transplant, it is easier to copy law than make new.23 The Eklogawas probably not as

useless as Basil claimed, and was reluctantly copied. Eklogahad been popular and widespread

throughout the Byzantine provinces, and therefore was not easy to eliminate, neither would it have

been wanted, since its practical and standardizing impact was substantial. The basic principles

were therefore kept in the revision, but included some amendments in especially criminal law that

concerned injuries and also inheritance law. In the Procheiros Nomos, several of the punishments

that were prescribed mutilations were reversed to compensatory fines and the death penalty, and

new more detailed crimes was elaborated and prescribed fines, particularly relating to honour.

A substantial addition to the bulk of Byzantine law came in end of the 9th century from BasileusLeo

VI (887-912), called the Wise or the Philosopher Under his rule the Basilicawas promulgated, a

corpus of 60 books of edited Roman law from the compilation of Justinian. Besides the controversy

of icons, Leo the wise wanted a renaissance for what he saw as classical Roman, the Roman law

and administration as it was under Justinian in the 6 th century. The Basilicais an attempted sorting

of the Justinian compilation. Leo also gave 113 constitutions of his own, where he reached back to

the glorified days of Justinian legislation and reintroduced the legal concept of actio.

The need for a handy look-book was still eminent and several manual-sized codes for

practical usage continued to appear. The difference between them were few, they were all copies

of the Ekloga, which itself had been an extract from the earlier Roman corpus. The Procheiron

Nomosshould also be an instructive book for the students of law, before they dived into theBasilica. Like Justinian, Leo had hopes for the legal profession. Still, it seems the Basilicaagain

was too complex for the agents of the legal system to wield, and the Procheiron Nomoswas the

code cited, together with the Ekloga, which apparently was still in use if officially invalidated and

banned.24 Basically, the change to the small scale law code with lists of rules was the best tool to

uphold an efficient, practical and standardized Byzantine legal system.

I will stop here, in the beginning of the tenth century with Leo the Wise. Not because the

further development is without interest, but to use the rest of the time given to look at the

development in the western spheres.

Legal development in the western kingdoms

The Germanic kingdoms in the west emerged in the wake of the deteriorating western empire. I am

going to use as examples three Germanic groups that established successor states within earlier

Roman boundaries: the Visigoths, which occupied southern Gaul and most of the Iberian peninsula

during the 5th century, also the Lombards who in 568 walked into the demolished remains of

northern Italy (which was abandoned by Roman emperor Justin II who, after destroying the region

23 Watson, Alan 1974:Legal Transplants, An Approach To Comparative Law, Edinburgh, Scottish Academic Press,

Watson, Alan 2006: Legal Transplants and European Private Law, Beograd, Univerzitet u Beogradu24

Morris 1986: 129


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in the quest to drive out the Ostrogoths, had to divert his forces to the ever important border of

Persia). And also the Franks. Frankish leaders established a kingdom in northern Gaul and parts of

Germania in the 5th century from where the kingdom expanded in the following centuries

Early Germanic legislation in from the 5th to the 7th centuries had its genesis in legal

landscape of the complex Roman Law. The Roman legal corpus played a major factor as a model

for the Visigothic codes, and Roman principles also influenced the first written Frankish and

Lombard laws. These newcomers inherited the standing Roman administration. Thereby they

continued the Roman structure, but lacked the written tradition. With the Roman administration

came Roman law. Primarily the Theodosian code was kept to please the part of the population in

the kingdoms that identified themselves as Roman and not a Frank or a Goth. But for the first time

in Western Europe, Non-Roman legislation also emerged. As a reaction to the old culture,

Germanic king began issuing laws of their own to legitimize their authority.25 The perception of the

role of the legislating ruler was inherited from the Romans. As active administrator of society,

legislation itself gave kings authority. Still, Germanic law in its early stage was highly ethnical and

not territorial, which means that for instance the Lombard laws applied to the Lombards only, not

everyone living inside the Lombard kingdom or claimed territory. Romans inside Lombard territory

were left with Roman laws, Theodosius Code, and were probably satisfied with the arrangement.

Roman law was to the Germanic rulers the only known lex scriptum, although unsystematic canon

law may have been in circulation within the network of bishoprics and monasteries. When Roman

notaries and clergy also were the ones able to write in the Germanic kingdoms and involved in the

lawmaking process, it is natural that the first legislation looked to Roman Law. We can se thisamong other things in how some of the Germanic codes open with Justinians wording: We have

perceived it necessary to improve and to reaffirm the present law, amending all earlier laws by

adding that which is lacking and eliminating that which is superfluous,26 But also in the west courts

had long been unable to wield the contradicting bulks of Roman legal material. Neither did the laws

treatment of complex economical systems and private transactions not fit well with Germanic

culture, together with the degree of governmental intervention in family matters. Further, the

Roman Empire in the east was a threat to these kingdoms existence, and thereby it could have

been less wanted to use the existing legal material, made by the enemy. If we look at the laws of

the Visigoths, Lombards and the Franks, we can generalize by saying that the character of the

legal development was marked by the given society's level of conflict with the Romans.27 Times of

war and political tension, like we see in the 5th and 6th centuries, gave a high degree of

independent legislation with the Germanic kings, and a lower level of conflict, or cooperation meant

that influences from Roman law where strong. It is worth noticing that these kingdoms in the 7th

25Wormald, Patrick 1979: Lex Scripta and Verbum Regis: Legislation and Germanic Kingship, from Euric to Cnut, i

Sawyer, P. H. and I. N. Wood (eds.),Early Medieval Kingship, Leeds26 Novellae.VII, Justinian: The whole body of law, introduction to the Digest, Rothairs Edict.Intro. See furtherWormald 1979: 113.27

Tveit 2007: 63-67, 102-109


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and 8th centuries move further away from the Roman culture, but at the same time their laws

resembled Roman Law more than earlier.

The earliest versions of Germanic legislation can be interpreted to be ad hoc legislation

because of its apparently non-existing system or logic. These early codes are pretending to be

written custom, but are rather what was wanted to be custom.28 They are seemingly written in a

longstanding tradition, rather than new invention. When combining Roman influence, need for

regulations in the new kingdoms and the Germanic culture, the results were, compared with the

Roman material, a short manageable code in each realm. A law code which lawyers and judges

would easily get to know. With detailed, but unmistakeable principles given by successive

lawmakers. There seem to have been a strong knowledge to what was ever the law in force, since

later laws continuously refers to earlier sources and that we do not find the texts spotted with

contradicting rules. For instance, when the Lombard king Liutprand in 713 introduced the right to

inherit for daughters, the edict gives reference to several earlier stages of inheritance laws and

afterwards modifies these.29 A legislator announced if an earlier rule was abolished or revised. The

Frankish king Pepin, and his son Charlemagne simply had earlier Salic laws republished with a

editing in the logical sequence of the sections.

The main subjects of the Germanic laws are as in the Byzantine Ekloga, the family and private

transactions/controversy and conflict settlements of private character. Also problems relating to

slavery and criminal law were extensively treated. Except from the Visigothic law, the Germanic

laws are not particularly marked by the Church in the early period. Not by the Arian church whichthese groups belonged to at an early stage or the Catholic church which the Roman notaries was

influenced by and that the Germanic rulers would confess to later on.

The laws themselves are characterized by originating in a kin based society. Much of the law

making aims at preventing conflicts and feud (faida). However we also find an increasing degree of

compensation based penalties where the parts of the compensation were due to the state

authority.

Similar to the Byzantine laws the Germanic codes include prescribed punishment for different

criminal acts. A feature that shows the laws intended usability. But where the Byzantine laws

changed the death penalty and implemented mutilation as punishment, the Germanic law ended

punishment by mutilation and introduced monetary compensation for most crimes. Especially in the

Lombard and Salic law we find this feature. The Visigoth law still kept flogging and burning for

serious crimes like forgery and abduction, but apart from that, most acts of violence could be paid

off with a fine. In Lombard law compensation was used in all cases except high treason and

adultery by the wife.30 Murder, stealing, rape and injury were all compensated according to written

law. Reality might have been somewhat different; we see clear signs of self justice and settlements

28 Ex. Edictus Rothari, Prologus in Leges Langobardorum29

Liutprand.I-V,30

Edictus Rothari.1-7, 13, 211-13


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by vengeance, duels or other types prevailing in the Lombard society in the 7 th and 8th centuries.

The fines prescribed must have been thought as a nice income for authorities, as mentioned

earlier. Still the prices were high, too high for most people. To abduct a woman should be punished

with paying 900 solidii (gold coins) half to the state and half to the victim. Only the richest could

have afforded such fines, and possibly custom could have been flogging, execution or mutilation,

or slavery as alternative punishments.

The Germanic laws origin in the kin based structure and the honour system is also shown in

the legal material in the focus on honour and insults. To call someone a rabbit for instance would

by Salic law be fined 3 solidii, but to call someone a whore would be considered an accusation,

and if tried and falsified, penalized with 45 solidii.31 The Lombards, which name Langobard means

long beard had two laws containing fines for pulling a mans beard.32 This shows how the honour

system prevailed in the successor states and that private honour was stronger than authorities, to

the extent that it was treated in the laws by royal government.

A central theme of the Germanic laws was private violence, or to avoid the use of

vengeance as punishment. The subject apparently needed minute regulations in the Germanic

kingdoms, which lacked law enforcements to deal with private conflicts both inside and outside

court. To look for inspiration for specific regulations on vengeance in Roman law would give

meagre results. This was not a factor of concern for the Roman lawmakers, as the judicial system

would only accept public proceedings in all offences.33 (But we do find in classical law the

acceptance of killing an adulterous wife or daughter with her lover, if they were caught in the act

and he killed them both instantly.34

) In contrast, the topic of private violence permeated all aspectsof Germanic law. The Lombard Rothairs Edict has a major bulk of the code addressing violence,

where 102 of 388 sections deals with cases cutting off every kind of limb, breaking bones or skull

or just expose the bone, gouging out eyes, being drunk or sober while fighting and deciding who

had to pay the doctor. It contains 15 sections of injured fingers, and 15 of injured toes, but no

mentioning of general administration.35 Like Byzantine laws, the Germanic kingdoms did not

develop something like constitutional law. Even so, the whole corpus represented the rights and

regulation for a specific people.

Family matters and sexual crimes had a more prominent position in the Byzantine laws from the 8th

to the 10th centuries, and settlements of private disputes were also a major concern of the

Germanic legislators. Both in eastern and Western Europe punishments for crimes was concretely

addressed and made uniform, a novelty from earlier Roman law.

31 Pactus Leges Salica.XXX/Lex Salica Karolina.LXX32 Edictus Rothari.38333 Digesta.48.8.334

Digesta.48.5.21-22, Digesta.48.5.25-26, Digesta.48.8.3.535

Fingers Edictus Rothari.63-67, 89-93, 114-118, Toes: Edictus Rothari.69-73, 96-100, 120-124


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In the east there was for centuries a development against a simplification of existing material that

simultaneously could be united with Christian ideology. Concentrating on private law, this was still

in relation to the individual responsibility, i.e. crimes were treated as public offences. In the west,

step by step legal material was developed when needed, and regulations for settling disputes

between private parties, and ending kin-based violence. To put it very roughly, the west stood for

expansion and novelty, east for simplification and concentration. After Justinian both east and west

faced trouble in using the existing material in the legal system, which gradually led to legal

invention in European history. The legal development after Justinian until the beginning of the tenth

century can in general be said to take a practical direction, which cannot necessarily be labelled

vulgarization of the advanced Roman law.

after justinian - miriam tveit(1)

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