The Germanic Invasions and Germanic Law

From the closing decades of the fourth century onward, the Roman Empire experienced a series of migrations in which non-Roman peoples forced their way into the imperial provinces of the West.

It is conventional to refer to the groups who migrated into the Western Em­pire and settled there as “Germans” or “Barbarians.” They were barbarians in the Greco-Roman sense of the term, because most of them did not speak Greek or Latin, and their customs were likewise alien to Roman sensibilities. As for their Germanic identity, the great majority of the immigrants apparently spoke tongues that fell into the family of Germanic languages, but they were by no means a homogeneous group, either in language or culture. Gonsiderable num­bers of non-Germanic people also participated in the invasions. Still, it is con­venient to have some common label for the migrants as a group, and “Ger­manic” describes the majority of them reasonably well.

By the beginning of the sixth century, Germanic kingdoms had supplanted the highest levels of imperial government in the West. In place of a single Ro­man government, the West was now divided into competing successor states, ruled by Anglo-Saxons in Britain, by Franks in Gaul, by Visigoths in Spain, by Burgundians in the Rhone valley, by Ostrogoths in Italy, and by Vandals in the old Roman province of Africa.^[521]

The Roman population of these regions, however, remained largely intact.

Roman law and Roman law courts continued to function and to deal with problems that arose among people of Roman heritage; Germanic law and Ger­manic courts simultaneously handled problems that arose among people of Ger­manic heritage. But although both Romans and Germans preferred to retain their ethnic identities, including their laws, there was inevitably some spillover from one group to the other and from one law to the other. Roman law in the West became simplified and, especially after the disappearance of the Roman law schools, vulgarized or barbarized. At the same time, Germanic courts and rulers adopted some Roman ways of doing things. Each law influenced the other, each was modified by the other.

What little we know about Germanic folklaw prior to the migrations indi­cates that it was based upon two foundations: the collective responsibility of the kindred for the actions of its members and the principle of reciprocal revenge. The extended kinship group was prominent in archaic German society and re­mained fundamental to Germanic institutions for generations following the in­vasions. The kindred bore responsibility for fulfilling the obligations incurred by any of its members and for seeing to it that each member both paid what he owed and received what he had a right to.

and the Beginning of the Middle Ages, trans. Philip and Mariette Leon (New York: Al­fred A. Knopf, 1931); J. B. Bury, The Invasion of Europe by the Barbarians (London: Macmillan, 1928); Robert Latouche, Les grandes invasions et la crise d’occident au Ne siecle (Aubier: Montaigne, 1946); Lucien Musset, Les invasions: Les vagues germani- ques (Paris: Presses Universitaires de France, 1965); Felix Dahn, Die Volkerwanderung: germanisch-romanische Friihgeschichte (Berlin: Safari, i960); E. A. Thompson, The Early Germans (Oxford: Clarendon Press, 1965); Pierre Courcelle, Histoire Iitteraire des grandes invasions germaniques (Paris: Hachette, 1948); and Francis Owen, The Ger­manic People: Their Origin, Expansion, and Culture (New York: Bookman Associates, i960).

²D. A. Bullough, “Early Medieval Social Groupings: The Terminology of Kinship,” Past and Present 45 (1969) 3-18.

By the time that Germanic peoples began to settle in the West Roman Em­pire these institutional pillars of archaic Germanic law were already beginning to crumble, and the migrations hastened the pace of change. The kindred grad­ually lost many of its earlier functions, especially the protection of its members from wrongs done by outsiders. Increasingly Germanic kings began to assert their authority to safeguard their subjects and to intervene in quarrels and dis­agreements between members of the various households they ruled.

At the same time, a system of compensation for wrongs gradually replaced reciprocal revenge. Compensation was based on a calculation of the severity of the injury, usually expressed in money terms as a fraction of the wergeld. The amount of the wergeld varied according to sex and social status.

Prior to the late fifth and early sixth centuries, Germanic law had been transmitted orally as custom from one generation to the next. Beginning in the late fifth century, Germanic kings in one region after another began to have their laws set down in writing in compilations that we usually refer to as the Germanic law codes. The codes that originated on the Continent were written in Latin; those from England, Iceland, and Scandinavia were usually written in the local vernaculars. These compilations furnish us for the first time with de­tailed evidence about the laws that Germanic courts were supposed to enforce. Germanic kings in the West, also authorized the publication of substantial ex­tracts from Roman law texts for use among their subjects of Roman descent. These manuals of elementary Roman law document the process by which Ro­manjurisprudence in the West was gradually vulgarized during the generations that followed the invasions.^[522]