The Concept of the Jurist: Significance and Limitations of a Generic Activity

That both customary and imperial norms were oral, that written texts of the barbarian laws were exceptional, that there were varia­tions in content in orally transmitted norms or norms for which a written version was not readily available are all phenomena that we need to take into account when we consider the concept of the jurist in the early Middle Ages in Europe.

There were no “jurists” in royal courts in which royal advisors worked modestly to enable some barbarian kings to give “laws” to their kingdoms. The written redactions of the laws that have come down to us show that the authors of those texts did not have a cultural heritage adequate to the task, either from the point of view of a com­mand of grammar and syntax or from the legal point of view, and that they encountered grave difficulties when they transliterated into Latin—the language that was used and had to be used—terms from languages totally different from Latin. Obviously, this did not pre­vent some redactors of edicts from understanding their times well or from interpreting and lucidly synthesizing the particular motivations of the civilization to which they belonged.

On the level of activity we might call “legal,” the concept of the jurist did not exist. It is true that the term iudex recurs in Liutprand⁵S Edicts^ but if we recall that for Liutprand the iudex was the person who certified the outcome of a judiciary duel, we will have to define this Latin word in conformity with the ideal representations that the populations in question assigned to it and according to the practice to which it corresponded. With the possible exception of the royal courts (which, in Italy, meant the royal court at Pavia), “judges⁵⁵ were simply “those who judge”; people who, in real life and at a specific moment and a particular time in their lives or their daily activities, found themselves in the position of having to adjudicate.

Such a “judge” had little acquaintance with the customs of the place in which he lived, and if he had memory of them it was because he had become one of the persons who had lived longest in that locality (putting him among the antiquiores loci'). He often had doubts, or doubts were suggested to him by the litigating parties affected by his decision, about the content of consuetudinary law or even about the existence of a specific norm. In such cases the “judge” might suspend the “trial” and call on the testimony of others among the older and more trustworthy men from the same place or a nearby place—that is, he might open an inquisitio per testes (investigation through wit­nesses) to ask such men what information they could offer on the pre­cept that required clarification, thus guiding his decision.

These “jurists” did not “interpret” a norm or a law. Or rather— which amounts to the same thing—the possibilities for interpretation were so broad and gave so much liberty to the “judge” as to lose all sense of specificity or of following rules that might take textual form into account, look for substantive meaning, or seek the internal logic of the norm or of similar norms. It is difficult to imagine that the “judges” in Lombard or other European lands, many of whom were illiterate, were capable of posing sophisticated problems of that sort. It is easier to imagine them as respectable persons occupied in the exercise of arms (milites) in carrying out the responsibilities of reli­gion (the clergy), or more generally in pursuing the peaceful labors of a landowner and proprietor of fields and houses—persons, in short, who, out of necessity and because of the respect they enjoyed in the community, took on the trappings of a “judge” and were indeed “judges” for a day or an hour.

The role of the notary was similar. Actually, other terms are fre­quently used in the sources—scriba or scriptor^ for example—to desig­nate someone who knew how to write and could put his efforts at the service of anyone who wanted to document an intended transaction in writing—a barter exchange, a donation, a sale, a debt to be in­curred, and so forth. These scriptores had modest talents when it came to composing a text; their hesitant grammar and spelling made their phrases unclear. Their capacities as “jurists” were even more modest, if not nonexistent. They did not know the “laws,” to the point that Liutprand threatened them with severe penalties when they failed to become acquainted with them or at least seek information from someone who knew them, and they took the precaution of declaring that they were “following the customs of the Roman laws” (secundum consuetudines legum Romanorum). Furthermore, they were totally ig­norant of both the concrete concepts that had been elaborated by Ro­man legal science and the concepts incorporated into the various bar­barian norms (gewere, wadiatio, thingatio, etc.). This led them to jumble together in one act legal concepts or terms whose names they recalled, for instance designating the same legal act as a transaction, a donation, a sale, or a barter exchange.^[43]

8.