The Germanic Codes of Roman Law
As we saw in chapter 9, by the end of the fifth century the western provinces of the empire had fallen into the hands of various Germanic tribes and a host of new kingdoms had arisen in the West.
Despite the fact that large numbers of Germans had settled in the lands of the former Roman empire of the West, the majority of the population remained Roman. In most of the newly established kingdoms Germans and Romans lived side by side as separate peoples, each governed by its own laws and customs. In general, the Germanic kings did not attempt to impose their own systems of law upon the Romans, nor did they adopt Roman law for their own subjects.[1257] Thus, in the West the once universal system of Roman law was replaced by what may be described as a conglomeration of legal systems: the Roman part of the population and the clergy continued to be governed by Roman law (leges romanae), whilst the Germanic tribes were observing their own systems of law (leges barbarorum). The principle that now prevailed was that of the personality of the laws: 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. However, the confusion surrounding the state of the law that resulted from the deterioration of the Roman culture in the West made the administration of Roman law very difficult for the courts and lawyers of this period. To deal with this problem some German kings considered it necessary to lay down, alongside their own Germanic laws, codes of Roman law for their Roman subjects. Of these codes the most important were the Lex Romana Visigothorum, the Lex Romana Burgundionum and the Edictum Theoderici. Although the law contained in these compilations was only a crude version of the classical system, their importance for the study of Roman law is great. Besides providing a picture of the state of the law and society at the beginning of the Middle Ages, they preserved for us a number of Roman legal texts which cannot be found in any of the surviving Roman sources.[1258]The Lex Romana Visigothorum
The Lex Romana Visigothorum, also known as the Breviary of Alaric (Breviarium Alarici), was issued in 506 by the king of the Visigoths Alaric II for his Roman subjects. It contains materials from the Gregorian, Hermogenian and Theodosian Codes, a number of post-Theodosian constitutions, an abbreviated version of Gaius's Institutes (Epitome Gai), fragments from the Sententiae of Paul and a short responsum of Papinian as a conclusion. The various passages appear largely unaltered but many of them are accompanied by interpretations, i.e. summaries or paraphrases of the original texts aimed at facilitating their understanding and application.[1259] As the Lex Romana Visigothorum was intended to replace all other sources of law, it was proclaimed that imperial constitutions and juristic opinions not included in it had no binding force in the courts of law.[1260] But in the middle of the seventh century, with the shift from the system of personal laws to a territorial system, it was replaced by another lawbook, known as Codex Legis Visigothorum (or Lex Visigothorum Recesvindiana), which was to apply to both the Roman and Gothic subjects of the Visigothic kingdom in Spain.[1261] In France, however, the Lex Romana Visigothorum continued to be used for almost five hundred years after its enactment (even though no longer as an official code) and contributed to the preservation of the knowledge of Roman law and its later reception in that part of western Europe.[1262]
The Lex Romana Burgundionum
The Roman Law of the Burgundians (Lex Romana Burgundionum) was drafted during the reign of the Burgundian king Gundobad and was enacted by his son Sigismund in 517 AD for use by the Roman inhabitants of his kingdom. Like the Visigothic Code of Roman law mentioned above, it draws on the Gregorian, Hermogenian and Theodosian Codes, an abbreviated version of the Institutes of Gaius and the Sententiae of Paul.
But, unlike the former compilation, it contains no extracts from the original Roman sources; instead, the materials are incorporated into a set of newly formulated rules which are systematically arranged and distributed over forty-seven titles.[1263] As a source of information on the Roman system the Burgundian lawbook is inferior to the Lex Romana Visigothorum for, besides lacking direct references to the original Roman sources, both its contents and structure reflect a stronger Germanic influence. The Lex Romana Burgundionum fell into abeyance soon after the Burgundian kingdom was taken over by the Franks in the middle of the sixth century, and does not appear to have had any notable influence on legal developments during the Middle Ages.[1264]The Edictum Theodorici
The Edictum Theodorici was issued in the second half of the fifth century and is probably the earliest of the Germanic compilations of Roman law. In the past it was believed that it was the work of the king of the Ostrogoths Theodoric the Great (493-526 AD) and that it had been issued for the Roman subjects of the Ostrogothic kingdom of northern Italy. The current view, however, is that it was enacted by king Theodoric II (453-466 AD), ruler of the Visigothic kingdom of southern France, and applied to both Romans and Visigoths alike. The Edictum Theodorici is made up of 154 titles and contains extracts from the Sententiae of Paul, the Gregorian, Hermogenian and Theodosian Codes and some post-Theodosian constitutions.[1265]
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- The Gregorian and Hermogenian Codes
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