ROMAN LAW AND GERMANIC LAW IN THE WEST

From the sixth century until the eleventh, a reference to Roman law in Western Europe was normally understood to be to the law of the so- called barbarian codes, in particular the Roman law of the Visigoths.

In the early middle ages, the imperial system of courts, staffed by pro­fessional judges who represented a state machine that could enforce their decrees, disappeared. In its place were groups of freemen from the local­ity who sought to settle disputes in such a way that the disruption of com­munity life would be minimised. The assemblies of freemen had to establish the customary rules relevant to the case before them. These rules were not applied rigidly but provided a background against which the dispute was to be settled, often by compromise. Instead of the sense of belonging to a world empire, the individual had more of the sense of being part of a community of people of similar ethnic origin with similar customary traditions.

Where the parties could not be reconciled, the community courts decided on the method of proof, often leaving vital points to be estab­lished by the ‘judgment of God'. This was ascertained by ordeals, by battle or by the production of oath-helpers, who swore to their belief in the truth of their party's assertions; the party producing the larger number of oath-helpers won the case. The final judgments were enforced by community pressure, with the ultimate threat of being ‘out­lawed' from the community.

It is in this context that the law in the early middle ages must be con­sidered. It is misleading to think of a sharp division between Roman law, on the one hand, and the Germanic customary laws, on the other. The courts would attempt to make the parties recognise the traditional rules that applied in the communities to which they belonged, but they were free in unusual cases to cite relevant rules taken from other tribal laws or from Roman law. In the sixth century, Roman law was still applied to the affairs of the ‘Roman’, that is, the Gallo-Roman, subject peoples of the Germanic conquerors, but gradually, with the fusion of popula­tions, the personal principle gave way to the territorial principle, by which all those living in a particular area were subjected to the same law.

The law that prevailed in this period was essentially the Germanic custom of the rulers, which hitherto had been orally transmitted but now was collected together and recorded in writing. As in the case of Euric’s law, the authorities enlisted the aid of the Gallo-Roman lawyers and scribes and the language of the text was Latin. These laws were con­cerned mainly with the money compositions that were payable to the victim or the victim’s family in respect of various offences, such as theft, damage to property, personal injury, sexual offences and homicide. The rules in this regard were very detailed, specifying precise penalties which reflected the relative significance of different kinds of theft or injury, and show little Roman influence. There were some rules on family status and on procedure but very few on contracts and property.

From the eighth century, traces of Roman influence in the substance of the Germanic laws are more noticeable but often the Roman texts were not understood. The ‘Lex Romana Curiensis’ was a collection made at the end of the eighth century for the romanised population of Rhaetia in eastern Switzerland. It contains a reference to the Law of Citations of 426, which provided that when juristic opinions were cited in court, the judge should follow the majority view and, if the numbers were equal, the view of Papinian should prevail.

In Italy a better comprehension of Roman law survived and the Edict of the eighth-century Lombard king Liutprand indicates that reference was being made to Roman law in commercial matters, which were hardly touched on by Germanic laws. Where, as in Lombardy, there was a strong tradition of reliance on formal written documents to attest transfers of property and the creation of debts, the relevant deeds were normally prepared by professional notaries, who adhered to the tradi­tional formularies. Liutprand's Edict provides that written documents made before Roman notaries had to conform to the rules of Roman law and Lombard deeds had to conform to the rules of Lombard law; one party to a transaction, however, with the consent of the other party, might give up his personal law and follow another. This must refer to a practice which had grown up to avoid the inconveniences of the per­sonal principle, where a transaction involved parties from different com­munities.

Italy was an exception to the rule that Roman law meant exclusively the law of the barbarian codes. In 553, at the end of a long and disas­trous war with the Ostrogothic kingdom, Justinian's generals had briefly brought the whole of Italy under Byzantine rule and the following year, ‘at the request of Pope Vigilius', Justinian promulgated the ‘pragmatic sanction' providing for the extension of his compilation to Italy. Even after the Lombard invasion in 568 certain parts of the peninsula, espe­cially the south, much of which was Greek-speaking, and the region of Ravenna, seat of the Byzantine exarch, maintained regular contacts with the Byzantine empire.

The main custodian of the Roman legal tradition was the Church. As an institution, the personal law of the Church throughout Europe was Roman law. In the words of the law of the Ripuarian Franks (61 (58)1), ‘the Church lives by the Roman law'. The Church continued to build up its own special law in collections of relevant texts. As the problems facing the Church increased in complexity, so the references to Roman law increased. Broad statements of principle were specially prized but there was specific material dealing with the ecclesiastical matters, such as the legal status of monks, especially in the Novels. The Roman material rel­evant to the Church was brought together in particular collections, such as the ‘Lex Romana canonice compta' of the ninth century.

The level of legal expertise was highest in Italy, but the Church carried some knowledge of Roman legal notions even to remote parts of Europe, where Roman institutions had disappeared after the end of imperial rule. The Anglo-Saxon kingdoms in England did not make any special legal provision for what remained of their Gallo-Roman subjects. After the evangelisation of England from Rome in the seventh century, however, the Church did not confine its teaching to the Gospel. We hear of teaching on a variety of subjects, including Roman law, at the school set up by Theodore of Tarsus in Canterbury. Some idea of the substance of such instruction may be derived from Theodore's Poenitentiale, which contains the master's answers to legal problems about such topics as the requirements for a marriage, the status of slaves and compensation for injuries.

Although there is no evidence of serious study, it was felt that at least some familiarity with Roman law, as an integral part of the Roman her­itage, was a necessary part of a sound education, especially of church­men. A major source of reference for elementary Roman law throughout Europe outside Italy was the encyclopedic Etymologiae of St Isidore of Seville, written in the 620s. St Isidore's knowledge of the subject was derived from the vulgar law of the western empire and, in listing the great legislators, he does not mention Justinian. The number of surviving manuscripts throughout Europe demonstrates that it was to this work especially that literate clerics went to find the meaning of tech­nical legal terms and abbreviations.

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