Product Code Database
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 Julius 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. 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 peculiarities.
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.
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. These include emphases on orality, gesture, formulaic language, legal symbolism, and ritual. Some items in the Leges barbarorum (laws written by various continental Germanic peoples from the fifth to eighth centuries), 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. The philologist and historian Dennis Howard Green stated that the introduction of Germanic "vernacular legal terms, even in partly Latinized form" does not occur until the early Middle Ages and that only "vernacular" terminology was "legally precise enough to convey what barbarian practice meant".
Scholars reconstructed Germanic law on the basis of antique (Caesar and Tacitus), early medieval (mainly the so-called Leges Barbarorum), and late medieval sources (mostly Scandinavian). According to these scholars, Germanic law was based on a society ruled by assemblies of free farmers (the things), policing themselves in clan groups (), and engaging in the blood feud outside of clan groups, which were settled via compensation in the form of (wergild). This reconstructed legal system also excluded certain criminals by outlawry, and administratively contained a degree of sacral kingship; formed around the kings bound by oaths of loyalty.
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 kinship groups, retinues, and loyalty, and the concept of outlawry, can no longer be justified. Besides the assumption of a common Germanic legal tradition and the use of sources of different types from different places and time periods, there are no known 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 there were common Germanic institutions.
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. Even the Leges Barbarorum were all written under Roman and Christian influence and often with the help of Roman jurists. Beginning with Walter Goffart, scholars have argued the Leges contain large amounts of "Vulgar law", a historiographic construct invented in 1880 to describe deviations from Classical norms found in law books and documents from the Roman provinces. This makes it difficult to determine whether commonalities between them derive from a common Germanic legal conception or not.
The Leges are the product of a mixture of Germanic, late Roman, and early Christian legal cultures. 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. 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.
The next set of law codes to be composed, the Lex Alemannorum and the Lex Bajuvariorum, were written in the 8th century, probably at the behest of the Catholic Church. 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.
| 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 |
| Lex 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 |
A word attested meaning "law" as well as "religion" in West Germanic languages is represented by Old High German êwa; there is some evidence for the word's existence from names preserved in Old Norse and Gothic. 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. Jacob Grimm argued that Êwa's use to also mean "religion" meant there was also a religious dimension to pre-Christian Germanic law; 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.
Due to the originally oral nature of Germanic law, the act of putting the Leges into writing was already an act of synthesis with the Roman legal culture. The development of the different law codes shows a general trend away from an oral legal culture toward a text-based writing culture. It is unclear to what extent the written legal texts were used in court: whereas Patrick Wormald and many German scholars have argued that the Leges texts mostly existed for reasons of representation and prestige, other scholars, such as Rosamund McKitterick, have argued that the number of surviving manuscripts and physical indications of their frequent use means that they were in fact employed in practice.
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.
None of the three forms of marriage posited by older scholarship appear as such in medieval sources. Academic works in the 1990s and 2000s rejected the notion of Friedelehe as a construct for which no evidence is found in the sources, while Kebsehe has been explained as not being a form of marriage at all.
Since the work of Reinhard Wenskus in the 1960s, scholars have begun to use the term gens (plural gentes), communities claiming (rather than possessing) shared biological descent, as a way to distance discussion of Germanic tribes from this earlier way of thinking. In this new understanding, Germanic peoples were not stable ethnic units, but were constantly breaking up and reforming in a process of ethnogenesis. Moreover, it is unclear whether the gentes formed the early Germanic kingdoms, or whether they were not instead created as part of the process of state formation.
Besides the claim of shared descent, Wenskus also saw the individual gentes as having and developing their own legal orders. Almost all gentes that became post-Roman polities adopted their own law, and the individual Leges, as well as other early medieval sources, mention that the laws belong to individual "people" under various Latin terms (including populus, natio, gens). However, disagreement exists about whether these written sources are still part of the "gentile system" of laws, or whether such a system even lasted into the High Middle Ages with the Sachsenspiegel.
Traditionally, the Leges have been understood as only applying to one ethnically defined gens within a kingdom, thus excluding Romans and any other gens that was incorporated into a polity - persons belonging to that group would be judged by their own law ("personality of law"). However, scholarly disagreement exists whether the earliest law codes, those of the Goths and Burgundians, were meant for all persons in their territory or only those of a particular ethnicity. The Lex Salica is far clearer in making ethnic distinctions in the text, perhaps encouraging assimilation to Frankish identity. By the Carolingian period, confusion between social status and ethnicity on the one hand and between ethnic and territorial law on the other had essentially turned the system into one of "mobile territorial law", in which a person could claim the law of their territory of birth.
The assembly stood under the protection of the gods, and feuding parties could visit it without fear of violence. The use of thing as an epithet in a 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.
The Lex 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. In later periods outside Scandinavia, the assemblies were composed of important persons rather than the entire free population. The Visigothic laws lack any mention of a popular assembly, while the and history show no evidence of any kingdom-wide popular assemblies, only smaller local or regional assemblies held under various names.
Not all Germanic peoples are attested as having had kings, and different kings seem to have different functions and roles. Peoples without kings included at various times the Herules, the Gepids, and the Saxons. According to Tacitus kings were elected from a group of eligible candidates by the people, but had no power of command (Germania, 7). Walter Pohl argues that the authority of the king was probably personal rather than directly related to the office. The power of the kings grew over time: while they originally seem to have been mostly military leaders, they became more institutionalized, authoritative rulers in the course of the migration period.
Scholars debate the origins of Germanic kingship. Tacitus makes a distinction between "kings" and "dukes", in that the kings were chosen because of their nobility and the dukes for their prowess in battle. This statement has been used to explain Germanic kingship as having had a sacral kingship and a military component, which were later united. However, more recent scholarship has shown that sacral kingship is not well attested outside of much later Scandinavian sources, whereas kingship for military leadership is. Dennis Howard Green argues for a development of the terminology from þiudans to truhtin to cuning, reflecting a change in the nature of Germanic kingship first to a primarily military institution and then to a more permanent, dynastic institution.
Current scholarship acknowledges the existence of clan groups as a social factor among the Germanic peoples, but argues that there was never organized, legally recognized clans as postulated by older scholarship. Both Germanic terms and those found in the Leges for kinship groups are not precise enough to indicate that the clans existed as legal entities: instead, the group of "relations" that a person could call on were not fixed or stable.
While some scholars have argued that the feud may have originated in "vulgar law," the feud is ubiquitous in the Leges and of later Germanic literature, making a non-Roman origin fairly certain. However, the different Leges make different assumptions about feuds and do provide a uniform picture of how they looked or functioned. 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. The post-Roman Barbarian kingdoms appear to have seen an increase in non-state violence and violent deaths with the decline in central authority. The various Leges show attempts to limit the practice in feuding, without, however, ultimately preventing it.
Patrick Wormald has emphasized the variety of compensations for various offenses and taken this as an indication of the absence of uniformity across the codes. More recent scholarship has instead argued that the range of enumerated offenses for personal injury is generally uniform or at least patterned 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..
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. Scholars debate if wergild was a traditional Germanic legal concept, or if it developed from a Roman law. 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 Burgundionum, while the Lex Salica shows no gradation among free males. The prices were sometimes higher than could readily be paid, which could result in a compromise. In other cases, social networks were enlisted to help a defendant, or the church lent money to end the feud. Payment could be taken in kind rather than in currency. When compensations could not be paid, the plaintiff had the option to enslave the defendant.
A Germanic origin for the trial by combat is generally accepted. It appears early and widely among many Germanic peoples. 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.
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. 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. 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.
In the Leges, but especially in Frankish law, the judicial oath often took the form of compurgation, an oath of innocence sworn by the accused with the help of oath-helpers. The exact age and origin of the oath-helpers is unclear; however, this institution was far more important in these law codes than in any other legal culture. The precise number of oath-helpers varied depending on what was being sworn, with some of the Leges also requiring different numbers for different social classes. These oath-helpers were not material witnesses to the accuracy of the oath, but rather simply support the swearer in his or her oath. They thus serve to attest the good character of the swearer; their own reputation will be harmed if he has lied.
In the earliest law codes, there does not seem to have been any judicial sanction for breaking a judicial oath. However, later leges show increasingly drastic punishments under the influence of the Church, including, in the death penalty in the Lex Saxonum.
|
|
