Roman law in the early Middle Ages

In the years following the collapse of the Roman empire in the West (476 AD) the once universal system of Roman law was replaced by what may be described as a plurality of legal systems.

The Germanic tribes which settled in Italy and the western provinces lived according to their own laws and customs, whilst the Roman part of the population and the clergy continued to be governed by Roman law. This in effect amounted to a return to the principle of the personality of the laws which prevailed in early antiquity (before the third century AD), according to which the law applicable to a person was determined not by the territory in which he lived but by the national group to which he belonged. This arrangement was necessitated by the fact that in the regions under Germanic rule the vast majority of the population remained Roman, and the law of the conquerors was too rudimentary to replace the more refined Roman system. Added to that was the fact that the Germanic kings (with the exception of those of the Vandals), although in reality independent, considered themselves to be governing under the authority of the Roman emperors of the East. In this way a fiction of legal unity between East and West was maintained and Roman law was regarded as continuing, although in the course of time the effective control exercised by the Eastern emperors became more and more shadowy. However, the general deterioration of the Roman culture in the West and the confusion caused by the application of the principle of the personality of the laws made the administration of Roman law a task beyond the powers of the courts and lawyers of this period. As we saw in chapter 10, in response to this problem some Germanic kings ordered the compilation of codes containing the personal Roman law under which many of their subjects lived, as well as the writing down of the laws by which the Germanic part of the population was governed.

In the Visigothic kingdom of Gaul the law that applied to the Romans was set out in the Lex Romana Visigothorum, issued by King Alaric II in 506 AD. Other important compilations of this period were the Edictum Theodorici, enacted by the King of the Visigoths Theodoric II about the middle of the fifth century and applying to both Romans and Visigoths, and the Lex Romana Burgundionum, promulgated in the early sixth century by Gundobad, King of the Burgundians, for his Roman subjects.

After the conquest of Italy by the forces of the Byzantium, Justinian's legislation was introduced in that country by a special enactment, the sanctio pragmatica pro petitione Vigilii, issued by Justinian at the request of Pope Vigilius on 14 August 554. But shortly after Justinian's death the Lombards moved into Italy and occupied most of the peninsula. Under Byzantine rule remained Rome, the area around Ravenna, the southern part of Italy and Sicily. In the territories under their control the Lombards followed the custom of reducing their own customs to law, allowing their Roman subjects to continue living according to their own system. The majority of the Romans were governed by the Roman law of Justinian, whilst a smaller part of the Roman population followed pre-Justinianic (Theodosian) Roman law.^{^[1337]}[1338] The prevalent view among modem scholars is that of the legislation of Justinian only the Code, the Institutes and the Novels of the Epitome luliani gained practical significance. The Digest appears to have played no part as a source of law and remained virtually unknown for many centuries. In the areas under Byzantine control the Roman law of Justinian continued to apply until the middle of the eleventh century, when the last of the Byzantine possessions in southern Italy were lost to the Normans.^{^[1339]} In these areas were also introduced the Ecloga Legum of the Isaurians, and the Prochiron and the Eisagoge {Epanagoge) of the Macedonian emperors.

These furnished the basis for a number of compilations that appeared in Italy during this period, such as the Prochiron Legum, also known as Prochiron Calabriae, composed in southern Italy about the end of the tenth century.^{^[1340]} But it cannot be said with certainty whether the Basilica had ever been used as a source of law in Italy.^{^[1341]}

As in Italy, so in Gaul and Spain Roman law was preserved, even though in a vulgarised form, through the application of the principle of the personality of the laws, but also through the medium of the Church whose law was imbued with the principles and detailed rules of Roman law.^{^[1342]}Moreover, Roman law, either directly or through canon law, exercised an influence on the various codes of Germanic law which appeared in the West during the early Middle Ages, although this influence varied greatly from region to region and from time to time. Among the most important of the Germanic codes were the Codex Euricinianus, enacted about 480 AD by the King of the Visigoths Euric and drafted with the help of Roman jurists;^{^[1343]} the Salic Code {Pactus legis Salicae') of the Franks, composed in the early sixth century;^{^[1344]} the Lex Ribuaria, promulgated in the late sixth century for the Franks of the lower and middle Rhine region;^{^[1345]} and the Lex Burgundionum, issued in the early sixth century for the inhabitants of the Burgundian kingdom.^{^[1346]} Of the above codes, the Visigothic and Burgundian codes reflect a stronger Roman influence than the Salic and Ripuarian codes.^{^[1347]}

In the course of time, as the fusion of the Roman and Germanic elements of the population progressed, the division of people according to their national origin tended to break down and the system of personality of the laws was gradually superseded by the conception of law as being bound up with a given territory or locality.

As a result, Roman law as a distinct system of law applicable within a certain section of the population fell into abeyance in most parts of western Europe. A considerable degree of integration of the Roman and Germanic elements took place first in the Visigothic territory in Spain, where the Lex Romana Visigothorum of Alaric ceased to have any force and in its place a new code, the Lex Visigothorum.^v> which was applicable to all the inhabitants of the Visigothic kingdom, was introduced in 654.^{^[1348]}[1349] In the course of the ninth century the shift from the principle of personality to that of territoriality was precipitated further by the development of the feudal system. As has been noted before, the predominant feature of feudalism was an estate or territory dominated by a great lord (duke, count, baron or marquis), who was often the vassal of an emperor or king. Since the domain of a great lord constituted, economically and politically, a quasi-independent unit, the area that was controlled by a particular lord was decisive as to what law was to be applied. But the intermixture of races meant that the laws which were recognised in a territorial unit could no longer be those of a particular race. Instead, all persons living within a given territory were governed by a common body of customary norms, the latter varying from place to place and from time to time. In this way the diversity of laws persisted no longer as an intermixture of personal laws, but as a variety of local customs. Everywhere, however, the customary law that applied was a combination of elements of Roman law and Germanic customary law.

By the end of the tenth century vulgarised versions of Roman law had become so intermingled with Germanic customary law that historians tend to describe the laws of this period as either 'Romanised customary laws' or as 'Germanised Roman laws'. Moreover, Roman law exercised a strong influence on the legislation (capitularies) of the Frankish emperors, as well as on the development of the law of the Roman Catholic Church. Thus, throughout western Europe, Roman law continued to live and to serve both as a strand of continuity and as a latent universalising factor in what was to become known as the civil law tradition. Yet, in comparison with classical Roman law, the overall picture of early medieval law is one of progressive deterioration. The study of law was based on nothing but abstracts and ill- arranged extracts from older works^{^[1350]} and, as the surviving literature from this period shows, legal thinking was characterised by a complete lack of originality.^{^[1351]} It was not until the eleventh century that Roman law was rediscovered as a distinct system and made the object first of academic study and then of a reintegration as valid law in large parts of continental Europe.

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

Roman law in the early Middle Ages

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