BARBARIC LAWS. – In the strict sense, excluding therefore the Romano-barbarian laws (v.), the term barbaric laws refers to those laws (also called Germanic or popular laws) that the barbarian peoples who settled in various parts of Europe at the fall of the ancient world enacted for themselves by committing to writing, and often subsequently enriching, their ancient customs, which remained, as before, valid only for members of the respective peoples.
This codification, which took place essentially between the end of the 5th century and the beginning of the 9th, was prompted in the barbarians both by the desire to imitate the more civilized institutions of the Roman or Romanized peoples with whom they had come into contact, and by the need to harmonize their primitive customs with the new social, economic, and religious conditions of life to which, as a result of those contacts, they had had to adapt upon settling in their conquered territories. It is no coincidence that all the barbaric laws, with the exception of those of certain peoples who inhabited the far north, were written in Latin: in a Latin whose crudity, justified by the low state of literary culture and also by the difficulty of expressing concepts peculiar to the Germanic world, went hand in hand with the naivety of the entire legislative technique, in which the inability to engage in conceptual abstraction and systematic organization is strikingly apparent.
But the Germanic characteristics are manifested above all in the substantive content of the barbaric laws: in the law of persons, where no subject of rights and obligations other than the physical individual is conceived; in family law, which is based on a proprietary conception of marriage; in the law of succession, which ignores the will, a projection of human volition beyond death; in real rights, with regard to which no account is taken of the animus, but only of the material relationship between a person and a thing; in the law of obligations, dominated by external formalities necessary for the bond to arise; in criminal law (the principal subject of the barbaric laws, as of every primitive law in general), which consists in a minute casuistry concerning the material assessment of damage, nothing else being of interest; and in procedural law, which entrusts decisions not to the judge’s knowledge and conscience but judgment of God (v.). More than these concrete features, however, what is Germanic is the juridical foundation from which the barbaric laws derive their efficacy: the consensus populi, which justifies the name pactus borne by some of them and clearly separates all of them from the authoritarian conception of the sources of law, carried to a paroxysm by Roman law in the late Empire.
The most common classification of the barbaric laws is based on ethnic groups: Frankish, Swabian, and Saxon among the Western Germans; Gothic and Scandinavian among the Eastern Germans.
The Scandinavian laws (Swedish, Norwegian, Danish, and Icelandic) were committed to writing late and generally do not go back beyond the 12th century. Their importance lies in their being a faithful mirror of the original Germanic customs, which remained purer in those territories.
The Gothic group comprises the laws of the three peoples (Visigoths, Burgundians, and Ostrogoths) who were also responsible for the Romano-barbarian laws. Of these, the Ostrogoths had no laws that were valid exclusively for themselves or that, in any event, departed from the customary patterns of Roman legislation; the case of the Visigoths and Burgundians, on the other hand, was quite different.
The Visigoths (Spain and southern Gaul) had their own laws committed to writing, the first of all the barbarians, as early as the middle of the 5th century; although the oldest texts have been lost, fragments of the collection of King Euric (467–85) survive in the revision made by King Leovigild (568–86), which was taken as a model by other barbarian legislations. The attribution to Euric of further fragments, called Gaudenzian after their discoverer A. Gaudenzi, is highly disputed. But by Lex Wisigothorum is meant that extensive and complete body of laws, more so than any other barbarian code, which Chindasvindo began and Recesvindo published, perhaps in 654, under the title Liber iudiciorum. Subsequently revised and enlarged by other kings (Vamba, Ervigi, Egica, Vitiza), it contains, alongside a selection of constitutiones antiquae from the collection of Euric and Leovigild, other more recent constitutions attributable to Reccared I, Sisebuto, Chindasvindo, and Recesvindo. With the promulgation of this law, of which the Fuero juxgo dugentesco, a Spanish vernacular translation with adaptations and a foundational text of Spanish law, is a version, both the pre-existing Visigothic laws and the Roman law of the Lex Romana Wisigothorum were abrogated.
Among the Burgundians (Burgundy), King Gundobad (474–516) promulgated a law that was originally called Liber constitutionum and later commonly, in addition to Lex Burgundionum, also Lex Gundobada or Lex Gumbata, after its author. Having been lost in its original version, it is known today in the form extensively revised and reworked by King Sigismund (516–24).
The Frankish group comprises the Lex Salica, the Lex Ribuaria, and the Lex (or Esso) Chamavorum.
The Salic law, which was to remain the fundamental text of all Frankish law, was first written down, apparently in the time of King Clovis (Pactus legis Salicae); and a second time, perhaps under Charlemagne, in a more complete and less corrupt form (Lex Salica emendata). Written, like the other laws, in Latin, it is accompanied in certain codices by glosses called Malbergian glosses, which explain the text with Frankish words. The constitution of the Holy Roman Empire under Frankish leadership increased the dissemination and authority of the Salic law even outside France; and the Carolingian capitularies themselves are essentially a development of Salic law, although they depart from the popular laws in their different juridical foundation.
The law of the Ripuarians (the middle Rhine), preserved in a late redaction from the Carolingian period, was composed in several stages (traces of which remain in its definitive form) during the 6th and 7th centuries; it was strongly influenced by Salic law. The law of the Chamavians (the lower Rhine), very brief, was not committed to writing until the beginning of the 9th century, by order of Charlemagne.
The Swabian group includes the Lex Alamannorum (Swabia and present-day Switzerland) and the Lex (or Pactus) Baiuariorum (Bavaria). Both underwent various redactions. Their definitive forms, leaving aside a final Carolingian revision, date from the first half of the 8th century and are attributable: among the Alamanni, to Duke Lanfred (709–30), who replaced it with an earlier Pactus Alamannorum dating from more than a century before; among the Bavarians, to Duke Odilo (744–48).
Finally, the Saxon group includes the Lex Saxonum, the Lex Frisionum, the Leges Anglo-Saxonum, the Lex Anglorum et Werinorum hoc est Thuringorum (which some attribute to the Frankish group because of its affinities with the Ripuarian law), and, moreover, though with its own distinctive features, the Edictus Langobardorum.
The law of the Saxons, which stands out among the others for the severity of its criminal provisions, and the law of the Frisians, which is similarly distinguished by the minuteness of such provisions, both belong to the 8th century, and their definitive drafting is due to Charlemagne. At his command, the law of the Angles and Warini (Thuringia), which is the shortest of all, was likewise committed to writing. The laws of the Anglo-Saxons (England), published from the 6th century onward by various kings, constitute a group in their own right, also for geographical and linguistic reasons.
But Lombard law stands out above all the others, being the only one applied extensively and for a long period in Italian territory; it had quite particular relations with Roman and canon law, and was increasingly influenced by them. When the Lombards descended into Italy as conquerors in 568, they had no written laws. Three quarters of a century had to pass before a Lombard king, Rothari, felt the need finally to commit to writing the customs (caucarfidae) of his barbarians, as he did by promulgating on 22 November 643 an Edictus of 388 chapters, relatively well ordered and complete, which dealt successively with crimes, family and inheritance law, real rights, obligations, and procedure. Rothari’s legislative work was continued by some of his successors, who added further chapters to the Edictus: 9 by Grimuald in 668, 153 by Liutprand between 713 and 735, 8 by Ratchis in 746, and 22 by Aistulf in 750 and 754. But what in formal appearance is a continuation is in substance an evolution: over the course of a century, a law originally essentially Germanic increasingly admitted, especially under Liutprand, the influences of the Church’s ethics and of Roman law, which the Church had accepted and made its own. These influences manifested themselves not only in formal reminiscences of biblical and Justinianic (or pre-Justinianic) texts, but, more importantly, in concrete institutions, such as marriage, spiritualized through the subarthatio cum anulo, or the will, introduced initially in order to permit dispositions pro anima. The picture of Lombard legislation is completed, although remaining outside the Edictus, by certain minor measures, due in part to the kings (among them the Memoratorium de mercedibus magistri conunacinorum, concerning the wages of master masons, and the Notitia de actoribus regis, of 733, for the administrators of royal estates), and in part, after the fall of the kingdom, to the Lombard princes of Benevento, Arechis (774) and Adelchis (866).
The unification of western Europe in the Holy Roman Empire (800) and the written compilation of the last uncodified barbarian customs, ordered by Charlemagne (802), marked the end of the productive period of the popular laws. But they did not cause their decline in usage: bound to the principle of the personality of law, they long survived the cessation of the individual independent kingdoms and the changed direction of legislation, which in the Frankish capitularies once again became authoritative and supranational. St. Agobard of Lyon, deploring the harm caused by such a multiplicity of laws within a single Empire, proposed that Louis the Pious adopt only one of them: the Frankish law. That idea of unity had a very great future; but it would fall to another law, the Roman, to realize it in medieval Christendom.
More or less complete collections of the barbarian laws were produced by Sichard (1530), Herold (1557), Du Tillet (1573), Lindenbrog (1613), Baluze (1677), Georgisch (1738), Canciani (1781–92), and Walter (1824). The Leges section of the Monumenta Germaniae historica contains a critical edition of nearly all the barbarian laws, definitive in most cases; editions of more modest scope, such as the collections of the Fontes iuris Germanici antiqui and the Germanenrechte, are modeled on II.