The New Condition in the West

Western Europe came to be inhabited by a number of new and “barbarian” populations. Anyone who was not “Roman” was a “bar­barian.” The term’s negative connotations came from a comparison of customs, always to the disadvantage of the “barbarians.” When each of these peoples had become established in a territory of its own—at times after long wanderings—it felt the need of a “law” to give order to its social life.

The attempt to crystallize the contents of such customs in written form was thus only indirectly presented as the projection of a ruling power; it was more directly linked to the will of a community work­ing to save its own patrimony of customs.

If we keep in mind that customary law was always highly uncertain in Europe between the sixth and the eleventh or twelfth centuries, that specific testimony was often needed to verify a precept (inquisitio per testes), and that written redactions of “Roman” customs were of­ten lacking, we can better circumscribe the field within which the bar­barian “laws” operated and better evaluate their historical impor­tance.

Analogous historical processes were taking place in Italy. In 643 the seventeenth Lombard king, Rothari, published ⅛nEdιctum and stated in its preface that he had been led to this act because the ex ertitales, the arms-bearing men (hence the greater part of the young male pop­ulation), felt a strong need for it. They wanted to have the genuine Lombard customs (cawarfidae), whose purity was threatened, set down firmly (adfixae) in a certain and authoritative written text. In reality a transformation was already taking place, accelerated by the use of the Latin language to translate the consuetudinary norms into legislative terms. The very idea of publishing the contents of custom­ary norms in the form of royal edicts, thus changing their juridical tide, contributed notably to changing them. The redaction of laws continued with Grimoald in 668 and, in particular, with the many Edicta OfLiutprand from 713 to 735. Liutprand was the first Lombard king to be converted to Catholicism, with the result that there was a constant tension in his legislative acts between the more intransigent and primitive point of view of some of his people attached to the pa­gan tradition and the point of view of the crown and the parts of the population that supported the monarchy and openly favored the Christianization and Romanization of everyday customs and habitual rites.

Further Lombard edicts were emitted under Rachis in 745 and 746, under Aistulf from 750 to 755 (the Regnum Iangobardorum), and later with the leges, capitula^ and pacta of princes and dukes in Benevento, Naples, and Spoleto, even after the Franks under Charlemagne had taken possession of the Lombard kingdom.

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