Germanic law

Germanic law is a scholarly term used to describe a series of commonalities between the various law codes of the early Germanic peoples. These were compared with statements in Tacitus and Caesar as well as with high and late medieval law codes from Germany and Scandinavia. Until the 1950s, these commonalities were held to be the result of a distinct Germanic legal culture. Scholarship since then has questioned this premise and argued that many "Germanic" features instead derive from provincial Roman law. Although most scholars no longer hold that Germanic law was a distinct legal system, some still argue for the retention of the term and for the potential that some aspects of the Leges in particular derive from a Germanic culture. Scholarly consensus as of 2023 is that Germanic law is best understood in opposition to Roman law, in that it was not "learned" and incorporated regional peculiarities.
While the Leges Barbarorum were written in Latin and not in any Germanic vernacular, codes of Anglo-Saxon law were produced in Old English. The study of Anglo-Saxon and continental Germanic law codes has never been fully integrated.

Definition and controversy

As of 2023, scholarly consensus is that Germanic law is best understood in contrast with Roman law, in that whereas Roman law was "learned" and the same across regions, Germanic law was not learned and incorporated regional peculiarities. This consensus has replaced an older one as a result of a reevaluation of notions of Germanic beginnings and the associated nationalist ideologies to which they were attached. Earlier scholars, inspired by Tacitus and Julius Caesar, often conceived of the Germanic peoples as a unified entity, which they were not. Because of this, Germanic law was not a single legal system, but a group of related systems.
Although Germanic law never appears to have been a competing, unified system to Roman law, commonalities in the Germanic laws can still be described as "Germanic" when contrasted with Roman law. These include emphases on orality, gesture, formulaic language, legal symbolism, and ritual. Some items in the Leges barbarorum, such as the use of vernacular words, may reveal aspects of originally Germanic, or at least non-Roman law. Legal historian Ruth Schmidt-Wiegand writes that this vernacular, often in the form of Latinized words, belongs to "the oldest layers of a Germanic legal language" and shows some similarities to Gothic. The philologist and historian Dennis Howard Green stated that the introduction of Germanic "vernacular legal terms, even in partly Latinized form" does not occur until the early Middle Ages and that only "vernacular" terminology was "legally precise enough to convey what barbarian practice meant".

Old consensus and criticism

The study of "Germanic Law" arose in the modern period, at a time when scholars thought that the written and unwritten principles of the ancient Germanic peoples could be reconstructed in a reasonably coherent form. Beginning in the Reformation, the study of "Germanic law" was typically conflated with "German law", a tradition continued by influential scholars Jacob Grimm, Karl von Amira, and Heinrich Brunner. This law supposedly revealed the national character of the Germans. Until the middle of the 20th century, the majority of scholars assumed the existence of a distinct Germanic legal culture and law. This law was seen as an essential element in the formation of modern European law and identity, alongside Roman and canon law.
Scholars reconstructed Germanic law on the basis of antique, early medieval, and late medieval sources. According to these scholars, Germanic law was based on a society ruled by assemblies of free farmers, policing themselves in clan groups, and engaging in the blood feud outside of clan groups, which were settled via compensation in the form of blood money. This reconstructed legal system also excluded certain criminals by outlawry, and administratively contained a degree of sacral kingship; retinues formed around the kings bound by oaths of loyalty.
Early ideas about Germanic law have come under intense scholarly scrutiny since the 1950s and specific aspects of it such as the legal importance of kinship groups, retinues, and loyalty, and the concept of outlawry, can no longer be justified. Besides the assumption of a common Germanic legal tradition and the use of sources of different types from different places and time periods, there are no known native sources for early Germanic law. Caesar and Tacitus do mention some aspects of Germanic legal culture that reappear in later sources; however, their texts are not objective reports of facts, and there are no other antique sources to corroborate whether there were common Germanic institutions.
Reinhard Wenskus has shown that one important "Germanic" element, the use of popular assemblies, displays marked similarities to developments among the Gauls and Romans, and was therefore likely the result of external influence rather than specifically Germanic. Even the Leges Barbarorum were all written under Roman and Christian influence and often with the help of Roman jurists. Beginning with Walter Goffart, scholars have argued the Leges contain large amounts of "Vulgar law", a historiographic construct invented in 1880 to describe deviations from Classical norms found in law books and documents from the Roman provinces. This makes it difficult to determine whether commonalities between them derive from a common Germanic legal conception or not.

The ''Leges Barbarorum''

The term Leges Barbarorum 'laws of the barbarians', used by editor as early as 1781, reflects a negative value judgement on the actual law codes produced by these Germanic peoples. It was retained by the editors of the Monumenta Germaniae Historica in the 19th century. The law codes are written in Latin, often using many Latinized Germanic terms, with the exception of the Anglo-Saxon law codes, which were written in the vernacular as early as the 6th century. The Leges share features such as orality, the importance of court procedure, and a reliance on [|compensatory justice] to settle disputes.
The Leges are the product of a mixture of Germanic, late Roman, and early Christian legal cultures. Generally speaking, the further on the periphery of the Roman Empire these law codes were issued, the less influence they appear to show from Roman jurisprudence. Thus, Dusil, Kannowski, and Schwedler argue that the Visigothic law codes show a great deal of Roman influence, whereas the Lex Salica shows basically none.

History

The earliest of the Leges dealt with Germanic groups living either as foederati or conquerors among Roman people and regulating their relationship to them. These earliest codes, written by Visigoths in Spain, were probably not intended to be valid solely for the Germanic inhabitants of these kingdoms, but for the Roman ones as well. These earliest law codes influenced those that followed, such as the Burgundian Lex Burgundionum issued by king Gundobad, and the Frankish Lex Salica, possibly issued by Clovis I. The final law code of this earliest series of codifications was the Edictus Rothari, issued in 643 by the Lombard King Rothari.
The next set of law codes to be composed, the Lex and Pactus Alemannorum and the Lex Bajuvariorum, were written in the 8th century, probably at the behest of the Catholic Church. The final set of law codes issued on the continent, the Ewa ad Amorem, Lex Frisonum, Lex Saxonum, and Lex Thuringorum, were written under the patronage of Charlemagne in the 9th century; these codes all show marked similarities to the early codes.

Law code	People	Issuer	Year of completion/ approval
Code of Euric	Visigoths	Euric	c. 480
Lex Burgundionum	Burgundians	Gundobad	c. 500
Lex Salica	Salian Franks	Clovis I	c. 500
Law of Æthelberht	Kingdom of Kent	Æthelberht of Kent	early 7th century
Pactus Alamannorum	Alamanni		c. 620
Lex Ripuaria	Ripuarian Franks		630s
Edictum Rothari	Lombards	Rothari	643
Lex Visigothorum	Visigoths	Recceswinth	654
Law of Hlothhere and Eadric	Kingdom of Kent	Hlothhere and Eadric of Kent	late 7th century
Law of Wihtred	Kingdom of Kent	Wihtred of Kent	after 690
Lex Alamannorum	Alamanni		730
Lex Bajuvariorum	Bavarians		c. 745
Lex Frisionum	Frisians	Charlemagne	c. 785
Lex Saxonum	Saxons	Charlemagne	803
Lex Thuringorum	Thuringians	Charlemagne	9th century
Ewa ad Amorem	Part of the Low Countries	Unknown	9th century

Common elements

Orality and literacy

The Germanic peoples had an originally entirely oral legal culture, which involved a great deal of legally significant ritual, gesture, language, and symbolism, in order to create a specific legal procedure. Because oral law can never be fixed in the same way as written law, the use of correct procedure was in fact more important than the ultimate legal decision reached, and the law was ultimately whatever the community decided was valid at a given time.
Due to the originally oral nature of Germanic law, the act of putting the Leges into writing was already an act of synthesis with the Roman legal culture. The development of the different law codes shows a general trend away from an oral legal culture toward a text-based writing culture. It is unclear to what extent the written legal texts were used in court: whereas Patrick Wormald and many German scholars have argued that the Leges texts mostly existed for reasons of representation and prestige, other scholars, such as Rosamund McKitterick, have argued that the number of surviving manuscripts and physical indications of their frequent use means that they were in fact employed in practice.