Oral Laws: Custom; the Verbum regis and the Carolingian Capitularies
The laws of the “barbarian” peoples, and among them those of the Lombards in Italy, were like an archipelago of tiny islands in the vast sea of custom. Moreover, in a society that had almost totally lost its centers for primary schooling and where illiteracy was rampant, it would have been difficult for contemporaries to know the written text of those laws.
Only a few of the clergy, studying in extremely modest monastic or episcopal schools, learned the elements of writing and could manage to read the liturgical texts. ccGrammar55 had been deeply corrupted and both barbarian and Latin words had undergone deformation. Even syntax had become deformed. Everything was moving precipitously toward the highly mobile and uncertain turmoil out of which the new vernacular tongues (the Romance and national languages) arose in the various lands of Europe between the tenth and the twelfth centuries.Even someone who knew how to read and write would have found direct acquaintance with a copy of the Lombard edicts extremely difficult. The later Lombard compilation called the LiberPapiensis had a limited circulation as well.
This was the situation that Liutprand sought to remedy. First he prohibited the scribae (roughly, notaries) from compiling cartulae (written acts documenting a juridical act) without direct vision and an actual reading of the text of the law, Lombard or Roman; next, he established that cartulae could be written if the legislative text was known at least from the report and testimony of someone who had actually seen it; finally, he established severe penalties for nonobservance of these measures.[42] This edict clearly shows that the very idea of a ccIaw55 was by and large beyond the ken of populations that had lived for centuries by orally transmitted customs, and for whom it seemed (and in fact was) a great novelty to rely on a written text, search out a copy of it, or at least have sure evidence of it from a trusted person who might have seen such a copy.
The orality of customary law, which was widespread in most sectors of European society from the sixth to the eighth centuries, emerged on higher levels during the Carolingian age from the eighth to the tenth centuries.
In the later period, however, orality was combined with an attempt, in part new, to conceive of the ccIaw55 not as a text to certify popular custom but as the expression of a sovereign’s will. Although it may have been a pale reflection of the Roman and Byzantine concept of imperium^ this tendency dissolved and was lost in the practical process of the creation of oral norms. The ccIaws55 of Charlemagne (768-814) and his successors, which were called capitula, or capitularia^ were always oral. What counted was the spoken will of the king, the verbum regis. Those who were privileged to hear the sovereign’s commands could make notes, and they might write a “text” for themselves and for others that gave proof of the verbum regis. That text did not in itself constitute the law, however, hence the wording of the text could be modified, if the content of the precept was not altered—a condition that was violated, maliciously, by error or inadvertence, or perhaps when it proved convenient. As a result, current attempts at historical reconstruction are necessarily uncertain, as uncertain and diverse as the extant texts, not one of which permits knowledge of the true, genuine, original verbum regis that launched such a varied textual tradition.7.