Roman Law the Early Middle Ages

After the collapse of the Roman Empire in the West, the once universal system of Roman law was replaced by what may be described as a plurality of legal systems.

The Germanic tribes that settled in Italy and the former western provinces lived according to their own laws and customs, whilst the Roman part of the population and the clergy were still governed by Roman law. This in effect signified a return to the principle of personality of the laws that prevailed in early antiquity (before the third century AD). Accordingly, the law applicable to a person was not determined 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. The Germanic kings (except those of the Vandals) compounded the situation as they were in reality independent but considered themselves governing under the authority of the Eastern Roman emperors. In this way, a fiction of legal unity between East and West was maintained and Roman law was regarded as perpetual, although, the effective control exercised by the Eastern emperors became evermore shadowy over time. However, the general deterioration of the Roman culture in the West and the confusion ensuing from the application of the principle of personality rendered the administration of Roman law a task beyond the powers of the courts and lawyers of this period. In response to this problem, some Germanic kings ordered the compilation of codes containing the personal Roman law that governed many of their subjects and a written form of the laws that regulated the Germanic part of the population. As previously noted, in the Visigothic kingdom of Gaul, the law that applied to the Romans was elaborated in the Lex Romana Visigothorum issued by King Alaric II in 506—hence, this work is also known as the Breviary of Alaric (Breviarium Alarici).

Other important compilations of this period were the Edictum Theoderici, enacted by the King of the Visigoths Theodoric II in the second half of the fifth century that applied to both Romans and Visigoths; and the Lex Romana Burgundionum, composed during the reign of King Gundobad of the Burgundians and promulgated by his son Sigismund in 517 for use by the Roman inhabitants of his kingdom.

After the conquest of Italy by the forces of the Byzantium, Justinian’s legislation was introduced in that country by a special enactment (sanctio pragmatica pro petitione Vigilii) issued by Justinian at the request of Pope Vigilius on 14 August

554. ^{^[685]} However, shortly after Justinian’s death the Lombards invaded Italy and occupied most of the peninsula. Byzantine rule remained over Rome, the area around Ravenna, the southern part of Italy and Sicily. In the territories under their control, the Lombards adopted the custom of reducing their own customs to law and permitting their Roman subjects to live 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. The prevalent view among modern scholars is that the only materials of Justinian’s legislation that gained practical significance were the Code, the Institutes and the Novels of the Epitome Iuliani.^{^[686]} The Digest appears to have played no part as a source of law and remained virtually unknown for many centuries.^{^[687]} 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.^{^[688]} These areas were also introduced to the Ecloga Legum of the Isaurians, and the Prochiron and the Eisagoge 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 around the end of the tenth century.^{^[689]} However, it is uncertain whether the Basilica was ever used as a source of law in Italy.

New Roman">As in Italy, Roman law was preserved in Gaul and Spain in a vulgarised form through the application of the principle of personality and the medium of the Church whose law was imbued with the principles and detailed rules of Roman law. During the Middle Ages, the ecclesiastical courts had rights of jurisdiction over matrimonial cases, matters of succession to personal property and certain aspects of the criminal law. These courts consistently upheld the authority of the Justinianic legislation in cases that fell within their sphere of competence. Moreover, Roman law exercised an influence directly or through canon law on the various codes of Germanic law that appeared in the West during the early Middle Ages but this influence varied greatly between regions and stages of time. The most important Germanic codes embrace the Codex Euricinianus, enacted about 480 by Euric the Visigothic king and drafted with the help of Roman jurists; the Salic Code (Pactus legis Salicae or Lex Salica) of the Franks, composed in the early sixth century; the Lex Ribuaria, promulgated in the late sixth century for the Franks of the lower and middle Rhine region; and the Lex Burgundionum, issued in the early sixth century for the inhabitants of the Burgundian kingdom. Of the above codes, the Visigothic and Burgundian Codes reflect a stronger Roman influence than the Salic and Ripuarian Codes. Other law codes that exhibited a Roman influence include the Lombard Edict (643), the Alammanic Code (c. 720), the Bavarian Code (c. 750), the Frisian Code (c. 750) and the Saxon Code (c. 800).

Over time, the fusion of the Roman and Germanic elements of the population progressed and prompted a dissolution of the division of people according to their national origin.

The system of personality of the laws was gradually superseded by the conception of law as entwined with a certain 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 first occurred in the Visigothic territory in Spain. In this region, the Lex Romana Visigothorum of Alaric ceased to possess any force and a new code was introduced in 654 under King Recceswinth: the Lex Visigothorum (also known as Forum Iudicum or Liber Iudiciorum: Book of Judicial Actions). This code applied to all the inhabitants of the Visigothic kingdom.^{^[690]} In the course of the ninth century, the shift from the principle of personality to that of territoriality was further precipitated by the development of the feudal system. As 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 a quasi-independent unit in economic and political terms, the area that was controlled by a particular lord was decisive as to the form of law that should prevail. However, the intermixture of races meant that the laws recognized 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 that varied in regions and periods. In this way, the diversity of laws no longer persisted as an intermixture of personal laws but as a variety of local customs. In all the territories, 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 were 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, Roman law throughout Western Europe sustained its existence and served both as a strand of continuity and as a latent universalising factor. Yet, in comparison with classical Roman law the overall picture of early medieval law is one of progressive deterioration. The study of law, as part of a rudimentary education controlled largely by the clergy, was based simply on abstracts and ill-arranged extracts from older works. As the surviving literature from this period exhibits, legal thinking was characterised by a complete lack of originality.

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Roman Law the Early Middle Ages

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