BARBARIAN LAWS. - By "barbaric laws" in the strict sense, therefore excluding the Romano-barbaric ones (v.), are meant those laws (also called Germanic or popular) that the barbarian peoples, settled in the various parts of Europe at the fall of the ancient world, dictated to themselves, reducing to writing, and often subsequently enriching, their ancient customs, which remained, as before, valid only for the members of the respective peoples.
To this codification, which took place essentially between the end of the 5th century and the early 9th, the barbarians were driven 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 necessity of harmonizing their primitive customs with the new conditions of social, economic, and religious life, to which they had been obliged to bend, as a result of those contacts, upon their very settling in the conquered territories. It is not by chance that all the barbaric laws, except those of certain peoples who had their abode in the extreme north, are written in Latin: in a Latin whose roughness, justified by the low conditions of literary culture and also by the difficulty of expressing concepts peculiar to the Germanic world, goes hand in hand with the naivety of the entire legislative technique, in which the incapacity for conceptual abstraction and systematic ordering is revealed in conspicuous forms.
But the Germanic characteristics manifest themselves above all in the substantive content of the barbaric laws: in the law of persons, where no subject of rights and obligations is conceived other than the physical individual; in family law, which is founded upon a patrimonial conception of marriage; in the law of succession, which ignores the testament, a projection of human will beyond death; in rights in rem, with regard to which no account is taken of the animus but only of the material relationship between man and thing; in the law of obligations, dominated by external formalities necessary for the arising of the bond; in criminal law (the principal object of the barbaric laws, as generally of every primitive law), which resolves itself into a minute casuistry concerning the material assessment of damage, nothing else being of interest; in procedural law, which entrusts decisions not to the knowledge and conscience of the judge but to the so-called judgment of God (v.). Even more than these concrete characteristics, 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 which distinguishes them all clearly from the authoritarian conception of the sources of law, carried to paroxysm by the Roman law of the late Empire.
The most common classification of the barbaric laws is based on ethnic groups: Frankish, Swabian, and Saxon for the Western Germans; Gothic and Scandinavian for the Eastern ones.
The Scandinavian laws (Swedish, Norwegian, Danish, Icelandic) were put into writing late and generally do not go back beyond the 12th century. Their importance lies in being a faithful mirror of the original Germanic customs, which were preserved more purely in those territories.
To the Gothic group belong the laws of the three peoples (Visigoths, Burgundians, Ostrogoths) to whom the Romano-barbaric laws are also owed. Of these, the Ostrogoths had no laws that were valid exclusively for them or that, in any case, went outside the usual frameworks of Roman legislation; whereas the case of the Visigoths and Burgundians is quite different.
The Visigoths (Spain and southern Gaul) had their own laws drafted in writing, first among all the barbarians, as early as the middle of the 5th century; if the oldest texts are lost, fragments nevertheless remain of the collection of King Euric (467-85) in the revision made of it by King Leovigild (568-86), which was taken as a model by other barbaric legislations; the attribution to Euric of further fragments, called Gaudenzian from the name of their discoverer A. Gaudenzi, is much disputed. But by Lex Wisigothorum is meant that one, ample and more complete than any other barbaric code, which Chindasvind began and Reccesvind published, perhaps in 654, under the title of Liber iudiciorum. Revised and enlarged subsequently by other kings (Wamba, Erwig, Egica, Wittiza), it contains, alongside a selection of antiquae constitutions from the collection of Euric and Leovigild, other more recent constitutions, owed to Reccared I, to Sisebut, to Chindasvind, to Reccesvind. With the publication of this law, of which a translation into the vernacular with adaptations is the thirteenth-century Fuero juzgo, a capital text of Spanish law, both the pre-existing Visigothic laws and the Roman law of the Lex Romana Wisigothorum were abrogated.
To the Burgundians (Burgundy) King Gundobad (474-516) gave a law that was originally called Liber constitutionum and then commonly, besides Lex Burgundionum, also Lex Gundobada or Lex Gumbata from the name of its author. Lost in its original drafting, it is known today in the form revised and extensively 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 written a first time in the times, it seems, of King Clovis (Pactus legis Salicae); a second time, perhaps under Charlemagne, in a more complete and less corrupt form (Lex Salica emendata). Drafted, like the other laws, in Latin, it is accompanied in some codices by glosses called Malbergic, which give explanations of the text with Frankish words. The constitution of the Holy Roman Empire under Frankish leadership increased the diffusion and authority of the Salic law even outside France; and the Carolingian capitularies themselves are in substance a development of Salic law, though they depart from the popular laws by their different juridical foundation.
The law of the Ripuarians (middle Rhine), which has come down in a late redaction of the Carolingian age, was composed over several periods (and traces of this remain in its definitive form), throughout the 6th-7th centuries; it was strongly influenced by the Salic law. The law of the Chamavi (lower Rhine), very brief, was not written until the early 9th century by order of Charlemagne.
Belonging to the Swabian group are the Lex Alamannorum (Swabia and present-day Switzerland) and the Lex (or Pactus) Baiuariorum (Bavaria). Both had various redactions. The definitive ones, setting aside a final Carolingian revision, go back to the first half of the 8th century and are owed: for the Alamanni, to Duke Lanfred (709-30), who replaced with it a Pactus Alamannorum more than a century earlier; for the Bavarians, to Duke Odilo (744-48).
Finally, to the Saxon group belong the Lex Saxonum, the Lex Frisionum, the Leges Anglo-Saxonum, the Lex Anglorum et Werinorum hoc est Thuringorum (attributed by some to the Frankish group because of its affinities with the Ripuarian law), and moreover, but with its own peculiar characteristics, the Edictus Langobardorum.
The law of the Saxons, which stands out among the others for the severity of its penal provisions, and the law of the Frisians or Frisones, which similarly is distinguished by the minuteness of such provisions, are both from the 8th century, and their definitive drafting is owed to Charlemagne. By order of the latter was also put into writing the law of the Angles and Warini (Thuringia), which is the shortest of all. The laws of the Anglo-Saxons (England), published from the 6th century onward through the work of various kings, stand apart by themselves, also for geographical and linguistic reasons.
But above all, Lombard law stands apart from the others, as the only one applied extensively and for a long time in Italian territory, which had quite particular relations with Roman and canon law and was subject to ever-increasing influences from 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 king of the Lombards, Rothari, felt the need finally to put into writing the customs (caucarfidae) of his barbarians, as he did by issuing on 22 Nov. 643 an Edictus of 388 chapters, relatively well ordered and complete, which dealt in turn with crimes, family and inheritance law, rights in rem, obligations, and procedure. Rothari's legislative work was continued by some of his successors, who added further chapters to the Edictus: 9 by Grimoald in 668, 153 by Liutprand between 713 and 735, 8 by Ratchis in 746, 22 by Aistulf in 750 and 754. But what is in formal appearance a continuation is in substance an evolution: in the course of a century, a law originally essentially Germanic came increasingly to absorb, especially under Liutprand, the influences of the Church's ethics and of Roman law, accepted and made its own by the Church; influences that manifest themselves not only in formal reminiscences of biblical and Justinianic (or pre-Justinianic) texts, but, what matters more, in concrete institutions, such as marriage, spiritualized by means of the subarthatio cum anulo, or the will, introduced at first for the purpose of permitting dispositions pro anima. The picture of Lombard legislation is completed, though remaining outside the Edictus, by certain minor provisions, due in part to the kings (among others the Memoratorium de mercedibus magistri conunacinorum, on the wages of master masons, and the Notitia de actoribus regis, of 733, for the administrators of the royal courts), 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 redaction 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 bring about their decline from use: 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 returned to being authoritarian and supranational. St. Agobard of Lyon, deploring the harms of such a multiplicity of laws in a single Empire, proposed to Louis the Pious that he adopt only one: the Frankish. That idea of unity had a very great future: but it was to another law, the Roman, that the destiny of realizing it in medieval Christendom would fall.
More or less complete collections of the l. b. are owed to Sichard (1530), Herold (1557), Du Tillet (1573), Lindenbrog (1613), Baluze (1677), Georgisch (1738), Canciani (1781-92), and Walter (1824). The section of the Leges of the Monumenta Germaniae historica contains a critical edition, in most cases definitive, of nearly all the l. b.; on it are modeled editions of lesser pretensions, such as the collections of the Fontes iuris Germanici antiqui and of the Germanenrechte.
Bibliography12 works
Piero Fiorelli