Germanic law

Germanic law, the law of the various Germanic peoples from the time of their initial contact with the Romans until the change from tribal to national territorial law. This change occurred at different times with different peoples. Thus some of the characteristics of Scandinavian legal collections of the 12th century are similar to those in the Visigothic laws of the 6th century.

Knowledge of the early Germanic period is derived mainly from the observations of tribal life contained in Julius Caesar’s Gallic War and Tacitus’ Germania. The first written collections of Germanic law are the so-called Leges Barbarorum, which date from the 5th century until the 9th century. They are written in Latin and show Roman influence by their use of the technical terms of Roman law. The Anglo-Saxon laws and the laws of the North Germanic group, on the other hand, are in the vernacular and owe their written form largely to the advent of Christianity.

For all of the Germanic peoples, law (West German, reht and êwa; High German, wizzôd; North German, lagh, from which the English word law is derived) was basically not something laid down by a central authority, such as the king, but rather the custom of a particular nation (tribe). It was essentially unwritten, being derived from popular practices, and was not sharply distinguished from morality; it was personal in the sense that it applied only to those who belonged to the nation. Thus each man followed his own law, a notion appropriate to a nomadic people who originally did not live in a clearly defined territory. When, after the fall of the Roman Empire in the West, Germanic tribes took over former Roman provinces, they did not attempt to apply their laws to their Roman subjects, for whom Roman law remained applicable.

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Thus the earliest Germanic code, that of Euric, king of the Visigoths in Spain and southwestern Gaul in the late 5th century, applied exclusively to Visigoths. The Lex Romana Visigothorum, or Breviary of Alaric, was issued in 506 ce for their Roman subjects. It was a compilation of “vulgar law”—Roman law adapted to fit the social and economic conditions of the late Roman Empire—and was later the main source of Roman law in the Frankish kingdom. Only in the 7th century was Visigothic law applied to Visigoths and Romans alike, the two peoples by then having substantially fused. The Lex Burgundiorum and the Lex Romana Burgundiorum of the same period had similar functions, while the Edictum Rothari (643) applied to Lombards only.

The Leges Barbarorum, then, were not legislation in the modern sense but rather the records of customs that were first collected and then declared as law. The prologue to the Salic Law (the law of the West, or Salic, Franks) recounted how four chosen men collected the original practices in particular cases, having first discussed them with the presidents of the local popular assemblies. The Leges Barbarorum did not seek to set out all of the main rules of law as modern codes do. They were not concerned with what everyone took for granted but concentrated on matters that, perhaps as a result of migration or conquest, had become doubtful and needed authoritative exposition. They dealt with specific situations rather than general rules and focused particularly on court procedure, monetary compensation for acts of violence, and succession on death.

The initiative for declaring law usually came from the king, but the resulting laws normally required approval by the popular assemblies. Because of this collaboration between king and people, a compilation was sometimes referred to as an “agreement,” or pactus. The Visigothic laws were an exception; they always appear to have been formulated by the king and chief landowners without popular participation. Gradually, first the Lombard and then the Frankish kings overcame their people’s aversion to central government and began to legislate unilaterally. The Lombards, who invaded Italy in 568, had no single code of custom, but their kings issued edicts from the mid-7th century onward. In the Frankish kingdom the Merovingian kings called their legislation edicta or praecepta, but the succeeding Carolingians characterized them as capitularia—i.e., royal ordinances divided into articles (capitula). These included modifications of the leges of the Franks or other nations in the Frankish kingdom, administrative orders to officials, and independent legislation. Like the Roman emperors before them, Charlemagne and his successors claimed the power to make laws for all their subjects, irrespective of nation, and without the consent of any assembly. The validity of the law depended solely on the oral act of the king who promulgated it.