Dynamic Elements in Germanic Law: Christianity and Kingship

The Germanic folk assembly, or moot, not only issued dooms (judgments) in particular cases but also issued general decrees, which were likewise called dooms. The dooms, however, were not considered to be legislation in the modern sense; they were regarded rather as divinely inspired affirmations of ancient custom.

Two closely interconnected factors, however, made for conscious, overt change: one was the influence of Christianity on legal concepts; the other was the development of the kingship as a translocal and transtribal institution, uniting large areas containing various peoples.

One might suppose that the new religion which gradually spread through Europe between the fifth and tenth centuries would have threatened the very existence of the Germanic folklaw, founded as it was in tribal myths of warring gods; in worship of rivers, woods, and mountains; in concepts of the divine descent of the tribal kings; in absolute loyalty to kinship and lordship ties; and in an overriding belief in fate. Christianity replaced the old myths with the gospel of a universal creator, father of all men, who once appeared on earth in the form of his son, Jesus Christ, worship of whom brings freedom from bondage to all earthly ties, freedom from fate, freedom from death itself.

Yet Christianity also taught a more practical doctrine -- that hills, valleys, forests, rivers, rocks, wind, storm, sun, moon, stars, wild beasts, snakes, and all the other phenomena of nature were created by God to serve man and were not haunted (as the Germanic peoples believed) by hostile supernatural deities, and that therefore it was possible for the wandering, warring tribes to settle on the land without fear. This was both preached and lived out in the fifth, sixth, seventh, and eighth centuries by tens of thousands of monks, who themselves settled in the wilderness, first as hermits and then in monastic communities, and who attracted many others to join them in tilling the soil. Thus Christian monasticism was one of the factors contributing to the emergence of the European peasantry. Spreading across Europe from Ireland and Wales, the monastic movement fought the superstitions of

-62- nature that dominated Germanic religions, and it opposed to the pagan calendar, based on nature and the four seasons, a Christian calendar based on biblical events and the lives of the saints. ²⁹ Moreover, Christianity appealed to the Germanic peoples by its concept of a community, the church, which transcended kindred, tribe, and territory. On the one hand, Christianity, in contrast to Germanic paganism, treated kings not as descendants of gods but as human beings, subject like all other human beings to punishment by God for their sins. On the other hand, the Germanic rulers remained the supreme religious heads of their respective peoples, appointing bishops and dictating liturgical and other religious matters. In addition, they could begin to make wider claims to the allegiance of people of other kindreds, tribes, and territories: to bring them to the true faith, or, if they were already converted, to unite them in the true church.

In general, Christian beliefs and practices had a great appeal to Germanic man.

Yet why, if Christianity constituted a threat to Germanic social institutions, did it succeed in making converts among Germanic tribal chiefs and ruling families? The question rests on a false premise. Christianity did not, at first, constitute a threat to Germanic social institutions.

It is important not to confuse Germanic Christianity with modern Western Christianity, whether Roman Catholic or Protestant. It was, in fact, much closer to Eastern Orthodoxy -- both as it was then and as it still is in some countries today. Germanic Christianity was hardly concerned with the reform of social institutions. Nor was it primarily oriented toward ecclesiastical unity and ecclesiastical power. Its message concerned the life of the world to come -- heaven and hell -- and preparation for that life through prayer and through personal humility and obedience. ³⁰ The highest Christian ideals in the first thousand years of church history, both in the East and in the West, were symbolized above all by the lives of holy men and by monasticism, with its emphasis on spiritual withdrawal from the temporal world. But apart from monasticism, the church as an organization was almost wholly integrated with the social, political, and economic life of society. It did not

-63- stand opposite the political order but within it.

The church taught sanctity and produced saints; this was something new for the peoples of northern and western Europe, who had previously glorified only heroes. But the church did not oppose heroism and heroes; it only held up an alternative, a higher ideal. Similarly, the church did not oppose blood feud and ordeals; it only said they could not bring salvation, which came from faith and good works. The majority of bishops and priests of the church became, in fact, wholly involved in the corruption and violence that characterized the age; this was inevitable, because they were generally appointed by leading politicians from among their friends and relatives. Christianity was Germanized at the same time that the Germanic peoples were Christianized. 31.It is true that the monastic movement, by its example as much as its doctrine, attempted to teach Christian ideals of sacrifice and service and love of one's neighbor -- and, at the same time, improved techniques of agriculture-to the Germanic peoples. But the monasteries that sprang up all over Europe between the sixth and tenth centuries, at first each with its own rule, offered no program of secular law reform; they offered, instead, an ascetic life of work and prayer, in preparation for the life of the world to come. This, too, had the effect of devaluing Germanic legal institutions without replacing them.

Indeed, Christianity supported the Germanic legal institutions of ordeal and compurgation by reinforcing the Germanic concept of divine immanence that underlay them. It was presupposed both by Germanic religion and by the Christianity which initially replaced it that supernatural powers were immanent within the natural sphere, and that the world accessible to the senses was, in Marc Bloch's words, a "mask behind which the truly important events take place." The judicium dei was based on the belief in such immanent, indwelling supernatural powers.

This is not to say, however, that Christianity prior to the eleventh century had no positive effect whatever on the folklaw of the European peoples. On the contrary, it produced substantial changes. In the first place, conversion to Christianity gave an impetus to the writing down of the tribal customs: one sees this in the Salic Law adopted by Clovis, the first Christian king of the Franks; in the Laws of Ethelbert, ruler of Kent, who was the first Christian king in England; ³³ and four centuries later in the Russkaia Pravda of the first Christian princes of Kievan Russia. ³⁴ For one thing, Christianity brought writing, and writing made

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it possible to fix customs (and especially customary monetary sums) that might otherwise have been uncertain. This facilitated the negotiation of dispute settlements; also it strengthened the incipient jurisdiction of public authorities to punish the most serious forms of crime. In addition, the sacred writing of the Bible suggested a way of attaching a new kind of sanctity to custom________________________________________________________ the writing was

itself a ritual. In the second place, the writing down of the customs gave an opportunity to make some subtle __ as well as some not_so_subtle __ changes in them. The Christian clergy, who becam e the king's advisers, and who had the gift of writing, wanted protection. Indeed, the monks in particular needed special protection since they were, in a sense, outside the tribal system; they were to some extent a people without kin. (The "secular clergy"__ nonmonks _were generally married.) It

is no accident that the Laws of Ethelbert begin: "Theft of God's property and the Church's, to be compensated twelvefold."

Nor were all the changes which Christianity wrought in the folklaw attributable to political factors.

Christianity broke the fiction of the immutability of the folklaw. Gradually, between the sixth and the eleventh centuries, Germanic law, with its overwhelming biases of sex, class, race, and age, was affected by the Christian doctrine of the fundamental equality of all persons before God: woman and man, slave and free, poor and rich, child and adult. These beliefs had an ameliorating effect on the position of women and slaves and on the protection of the poor and helpless. Also Christianity had an important effect on judicial proof by oaths, since the swearing of oaths began to take Christian forms and was supported by ecclesiastical sanctions. Oaths were administered by priests in churches, at altars, on relics, and through appeals to divine sanctions against falsehood; and false swearing was subject to discipline through ecclesiastical penances. Indeed, oaths took a place alongside ordeals as a principal mode of trial. Ordeals were retained for trial of those who had no kin to swear for them (or who for some other reason failed to produce the necessary oath helpers), and for those of ill repute whose oaths were wholly unreliable, as well as for certain designated crimes; but in other cases an equally common method of proof came to be that of compurgation. As before,

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oath helpers were drawn chiefly from kinfolk, and there remained a strong element of loyalty in it, which is implicit in the concept of oathhelping. But the church added the risk of offending God by perjury, and the duty, if one did perjure himself, to confess the sin to his priest and be subjected to penitential discipline. Moreover, not only the false swearing of oaths but also all other obstructions of justice were considered to be sins subject to penitential discipline. For example, persistence in blood feud after a reasonable offer of satisfaction was an offense against God which was to be confessed to a priest and atoned for by fasting and other forms of penance.

Christianity also enhanced the role of kingship in the development of the folklaw during the period prior to the late eleventh century, and especially the king's responsibility to see that tribal justice was tempered with mercy and that the poor and helpless were protected against the rich and powerful. In the eighth, ninth, tenth, and eleventh centuries, Frankish and Anglo-Saxon kings were considered to be appointed by God to act as judges in extraordinary cases. As they moved about their realms -- and they were continually moving, for there were few means of communication -- they heard cases for mercy's sake: cases of widows or orphans or men who had no families to protect them, or no lords; cases of the very worst crimes for which no money payment could make satisfaction. This was part of their spiritual jurisdiction as patriarchs of their people.

Politically, too, Christianity served to transform the ruler from a tribal chief (dux) into a king (rex). Once converted to Christianity, the king no longer represented only the deities of his tribe: he represented, in addition, a universal deity whose authority extended to all tribes, or at least to many tribes. He became, in effect, the head of an empire. Christianity was a unifying ideology. Under its banner Charlemagne, who ruled the Franks from 768 to 814, and who was crowned Emperor in 800, mobilized the various people of his empire into a unified army for wars against Arabs, Saxons, Danes, and Slavs, while across the Channel Mercian kings (and a century later the Saxon king Alfred the Great) established military hegemony over the various races of England and ultimately drove out the Scandinavian invaders. The universality of the imperial kingship came to prevail -- at least for various periods of time -- over tribal, local, and household loyalties: a universality based not only on military power but also on the spiritual authority of the king (or emperor) as head of the church. Charlemagne called church councils and made church law-even before he agreed to be crowned Emperor by the Bishop of Rome. As Christopher Dawson has put it, "Charles regarded the Pope as his chaplain, and plainly tells Leo III that it is the King's business to govern and defend the Church and that it is the Pope's duty to pray for it." Similarly, Alfred was head of the church in England. ³⁶ As stated in the laws of Ethelred (about 1000 A.D.), "A Chris-

-66- tian king is Christ's deputy among Christian people and he must avenge with utmost diligence offenses against Christ." 3 7 On the whole, despite some tensions between popes and emperors, the clergy supported the imperial concept, including imperial leadership of the church itself.

Both the royal authority and the ecclesiastical authority were dynamic factors in the development of legal institutions. Especially from the eighth century on, the kings extended their peace -- their household law -- beyond their own families, courts, friends, servants, and messengers. Even in the sixth and seventh centuries they had made very strong efforts to regulate and limit the blood feud; they had, for example, exacted payment from persons and households for certain offenses even when their own royal household peace had not been violated. Gradually, more and more offenses became triable before the king. Treason, intentional homicide, and adultery were made capital offenses. In the eighth and ninth centuries the Frankish emperors, and in the ninth and tenth centuries the Anglo-Saxon kings as well, openly undertook responsibility for maintaining the king's peace throughout their territories. In the oath composed by Archbishop Dunstan of Canterbury for the coronation of King Edgar in 973, Edgar swore that "true peace" should be assured to all "Christian people" in his kingdom, that robberies and "all unrighteous deeds" should be forbidden, and that "justice and mercy" should govern all judgments. ³⁸ The Frankish emperors had for some time sworn similar oaths. Eventually, ways were found to implement such oaths through the appointment of royal officials to supervise local assemblies and through other administrative devices for maintaining royal influence over the tribes and localities. In addition, an incipient feudalism, in which the king had the role of chief lord, served to reinforce his peacekeeping function.

Kings and bishops issued new laws and held court. The needs of the royal and ecclesiastical bureaucracy generated new legal institutions, more sophisticated than those of the tribal, local culture. For example, royal delegates summoned inquests (juries) and interrogated witnesses. Royal edicts as well as ecclesiastical decisions and decrees come to constitute an important source of law. Thus an official law (Amtsrecht, as Rudolph Sohm called it) grew up alongside the folklaw (Volksrecht). ³⁹ The official law and many features of the folklaw were influenced by the Roman law as it existed in the territories conquered by the invading Germanic peoples. Many Roman rules were kept: for example, that an immoral or unlawful transaction should be void, that a sale or gift made under violence or threat should be invalid, that a debtor in default should pay interest on his debt. There was, in effect, a reception -- and at the same time a vulgarization -- of Roman law. ⁴⁰ A modern analogy is the reception of a Western type of law in Japan and China in the late nineteenth and early twentieth centuries -- a Western type of law which

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governed certain official and upper_class relations but which left virtually unaffected the traditional legal order among the people as a whole.

So in Europe, until the latter part of the eleventh century, the basic contours of the folklaw remained tribal and local, with some feudal elements. The kinship bond continued to provide the primary definition and the primary guarantee of a person's legal status. 41_The kings took little initiative in making the folklaw. There was virtually no royal law of contract, or of property, or of landlord and tenant, and very little royal law of crime and tort. When kings did succeed in establishing some degree of administration of the localities by royal delegates, the latter either tended to be swallowed up by the localities which they were supposed to administer in the king's behalf or else they became their own masters. The written collections of laws which kings occasionally promulgated, setting forth customs that needed to be better known or more firmly established, were not legislation in the modern sense but were rather exhortations to keep the peace and do justice and desist from crime. The king had to beg and pray, as Maitland put it, for he could not command and punish. Indeed, Germanic laws contain provisions stating that when a person has exhausted his opportunities in the local courts, he should not go to the king for a remedy.

Undoubtedly, one factor in the weakness of the central authority was economic and technological: despite some increase in commerce and some growth in the number and population of towns during the eighth, ninth, tenth, and early eleventh centuries, despite the improvement of agricultural technology, despite the growth of handicrafts and a general advance in the arts and in learning, the economy remained almost entirely local and the existing technology did not permit efficient communication between the center and the periphery. These economic and technological factors were connected with underlying religious and political factors: the legitimacy of the central authority was based on Christianity, whose world outlook was in sharp conflict with that of Germanic tribalism, with its belief in honor and fate; and at the same time the central authority lacked a concept of the independent role of law as a means of effectuating Christian concepts and values and of rationalizing and controlling social, economic, and political processes. The dynamic elements of the law were unsysternatized and weak; the static elements predominated. Law was conceived primarily as an expression of the unconscious mind of the people, a product of their "common conscience" (in the words of Fritz Kern), ⁴² rather than primarily as a deliberate expression of conscious reason or of will. It was, in that respect, like art, like myth, like language itself.