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67-622: The Lex Baiuvariorum was a collection of the tribal laws of the Bavarii of the sixth through eighth centuries. The first compilation was edited by Eberswind , first abbot of Niederaltaich , in 741 or 743. Duke Odilo , founder supplemented the code around 748. It is one of the most well documented bodies of Germanic tribal law. Parts of the Lex Baiuvariorum are identical with the Visigothic Code of Euric and from

134-413: A compromise. In other cases, social networks were enlisted to help a defendant, or the church lent money to end the feud. Payment could be taken in kind rather than in currency. When compensations could not be paid, the plaintiff had the option to enslave the defendant The ordeal ( judicium Dei "judgment of God") was a method used to cause God to reveal the guilt or innocence of a person accused of

201-501: A crime. It relied on the notion that God would intervene in the world to prevent the condemnation of an innocent person. Similar practices are attested in other cultures around the world, including in the Code of Hammurabi . Methods found in the Leges and in later medieval laws included the trial by hot water, in which a person dipped their hand into a boiling cauldron, of hot iron, in which

268-467: A form of marriage at all. Traditionally, the earliest state organization among the Germanic peoples has been described as a "tribe". "Tribes" were argued to have been stable, genetically and culturally united nations that had their own laws, territories, and state proto-state institutions. The use of the word "tribe" includes the implication that the various Germanic peoples were in fact subdivisions of

335-427: A great deal of legal 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,

402-469: A larger "Germanic" people. According to this understanding, the "tribes" would then go on to found the individual early Germanic kingdoms of Late Antiquity and the Early Middle Ages as "tribal states". Since the work of Reinhard Wenskus in the 1960s, scholars have begun to use the term gens (plural gentes ), communities claiming (rather than possessing) shared biological descent, as

469-520: A meeting of the great men of the kingdom, of its army, or of its people; whereas the southern Leges mention the role of the king, the northern ones do not. A word attested meaning "law" as well as "religion" in West Germanic languages is represented by Old High German êwa ; there is some evidence for the word's existence from names preserved in Old Norse and Gothic. Êwa is used in

536-451: A person carried a burning hot iron, and trial by combat , in which two fighters fought to determine the guilt or innocence of the accused party. The most important of these was the trial by combat. A Germanic origin for the trial by combat is generally accepted. It appears early and widely among many Germanic peoples. Dusil, Kannowski, and Schwedler write that it is an important difference between Germanic and Roman law, and derive it from

603-487: A variant of tîsdag ("day of Tyr"), has led to the theory that the thing stood under the protection of Tyr in pagan times. The Leges Alamannorum specified that all free men were required to appear at a popular assembly, but such a specification is otherwise absent for the Frankish Merovingian period . In later periods outside Scandinavia, the assemblies were composed of important persons rather than

670-416: A way to distance discussion of Germanic tribes from this earlier way of thinking. In this new understanding, Germanic peoples were not stable ethnic units, but were constantly breaking up and reforming in a process of ethnogenesis . Moreover, it is unclear whether the gentes formed the early Germanic kingdoms, or whether they were not instead created as part of the process of state formation. Besides

737-474: Is divided into 23 titles. Titles 1–6 regulate the law of the different social ranks. Titles 7-23 offer legal rulings on criminal and private law. In full, the different titles were ordered as follows: The laws remained in effect until 1180. The oldest manuscript dates from around 800 and is in the possession of the library of the University of Munich . "The research work of Konrad Beyerle indicates that

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804-402: Is explained by Ong as oral culture defined (implicitly influenced) by the written and printed word, and includes oral culture made possible by technology such as a newscaster reading a news report on television. In addition, 'residual orality' is also defined – it is the remnants, legacy, or influence of a predominantly oral culture carried over into the written realm – an example might include

871-468: Is not well attested outside of much later Scandinavian sources, whereas kingship for military leadership is. Dennis Howard Green argues for a development of the terminology from þiudans to truhtin to cuning , reflecting a change in the nature of Germanic kingship first to a primarily military institution and then to a more permanent, dynastic institution. The Germanic languages attest several words for clans or kinship groups, most prominently

938-466: 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

1005-832: The Lex Alamannorum . The Bavarian law, therefore, is later than that of the Alamanni . It dates unquestionably from a period when the Frankish authority was very strong in Bavaria, when the dukes were vassals of the Frankish kings. Immediately after the revolt of Bavaria in 743, the Bavarian Duke Odilo was forced to submit to Pippin the Younger and Carloman , the sons of Charles Martel , and to recognize

1072-613: 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 sixth 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

1139-523: 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

1206-623: The Herules , the Gepids , and the Saxons . According to Tacitus kings were elected from a group of eligible candidates by the people, but had no power of command (Germania, 7). Walter Pohl argues that the authority of the king was probably personal rather than directly related to the office. The power of the kings grew over time: while they originally seem to have been mostly military leaders, they became more institutionalized, authoritative rulers in

1273-503: 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 (475), 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

1340-489: The Leges generally treated any legal matter as something that might be settled privately. While some scholars have argued that the feud may have originated in "vulgar Latin law," the feud is ubiquitous in the Leges and of later Germanic literature, making a non-Roman origin fairly certain. However, the different Leges make different assumptions about feuds and do provide a uniform picture of how they looked or functioned. The existence of feuds between kindred groups among

1407-468: The Leges , faida ) refers to a form of violent self-help whereby a wronged party sought to address a wrong by exacting violence or vengeance themselves. German scholars tend to understand the feud as a legal institution based on individual liberty, the lack of a powerful public authority, and the need for local conflict resolution, whereas Francophone scholarship has instead emphasized feuding as illegal activity. Whereas Roman law did not allow feuding,

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1474-483: The Leges , 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. Philologist and historian, D.H. Green , stated that the introduction of Germanic "vernacular legal terms, even in partly Latinized form" does not occur until

1541-466: The Lex Baiuvariorum uses some identical titles as Visigothic and Alamani texts, synodal texts and the Tradition Book of Freising indicate that it cannot simply be a copy. K. Reindels claims that the law could have been developed in stages, starting with the reign of Theudebert I (539–548) until we have the version that we know today created during the reign of Odillo. What is certain is that

1608-421: The Lex Baiuvariorum was created at the behest of the Frankish overlords. The Lex Baiuvariorum consists mostly of individual acts the penalty in cash to be paid to the victim or the victim's family as well as the public treasury. Many of the extant manuscripts are in a small format, a clear indication that the lawbook was at hand when the lord held court. The text is written in Latin. The Lex Baiuvariorum

1675-435: The blood feud outside of clan groups, which were settled via compensation in the form of ( wergild ). 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

1742-600: The early Middle Ages , the Friedelehe , Kebsehe , and polygamy were abolished in favor of the Muntehe through the attacks of the Church. None of the three forms of marriage posited by older scholarship appear as such in medieval sources. Academic works in the 1990s and 2000s rejected the notion of Friedelehe as a construct for which no evidence is found in the sources, while Kebsehe has been explained as not being

1809-633: The "gentile system" of laws, or whether such a system even lasted into the High Middle Ages with the Sachsenspiegel . Traditionally, the Leges have been understood as only applying to one ethnically defined gens within a kingdom, thus excluding Romans and any other gens that was incorporated into a polity - persons belonging to that group would be judged by their own law ("personality of law"). This principle originated in Roman law. However, scholarly disagreement exists whether

1876-478: The 1950s regarding print culture. 'Primary orality' refers to thought and its verbal expression within cultures "totally untouched by any knowledge of writing or print ." Ong argues that the immediacy of sound, and the longevity of writing, correspond to the intrinsically different ways in which oral and literate societies and people function. In his studies of the Homeric Question , Milman Parry

1943-550: 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. In contrast to Roman Law, which was generally created by the emperors, Germanic legal culture regarded

2010-1011: The Benedictine monastery at Niederaltaich on the Danube played an important part in the drafting of this lex...which was established in 741. It seems highly probably that the Lex Baiuvariorum was compiled between 730 and 744, that is, presumably under the rule of the Bavarian duke Odilo." Early Germanic law 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. As of 2023, scholarly consensus

2077-823: The Burgundian Lex Burgundionum (between 480 and 501) issued by king Gundobad , and the Frankish Lex Salica (between 507 and 511), 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

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2144-515: The Frankish suzerainty. About the same period, too, the church of Bavaria was organized by St Boniface , and the country divided into several bishoprics; and we find frequent references to these bishops (in the plural) in the law of the Bavarians. On the other hand, we know that the law is anterior to the reign of Duke Tassilo III (749-788). The date of compilation must, therefore, be placed between 743 and 749. Wilhelm Störmer claims that though

2211-708: The Latin texts of the Leges barbaroum to mean the unwritten laws and customs of the people, but comes also to refer to the codified written laws as well. Jacob Grimm argued that Êwa 's use to also mean "religion" meant there was also a religious dimension to pre-Christian Germanic law; Ruth Schmidt-Wiegand  [ de ] argues instead that the legal term êwa was given a Christian religious significance by Christian missionaries, in common with other legal terms that lacked any pagan religious significance that acquired Christian meanings. The Germanic peoples had an originally entirely oral legal culture , which involved

2278-405: The Leges barbarorum, as well as in later vernacular legal texts, beginning with Old English (7th–9th centuries). There is no evidence for a universal Proto-Germanic legal terminology; rather the individual languages show a diversity of legal terminologies, with the earliest examples lacking even a common Germanic word for "law". There are, however, many examples of Germanic legal terms shared across

2345-450: The Leges contain catalogues of compensation prices to be paid by the perpetrator to his victims or the victim's relatives for committing a personal offense. In the West Germanic languages, this payment is known by the term Old High German : buoza , Old English : bōta . This form of legal reconciliation aimed to prevent the erupting of feuds by offering a peaceful way to end disputes between groups. The codification of these catalogues

2412-408: The Roman provinces. This makes it difficult to determine whether commonalities between them derive from a common Germanic legal conception or not. The term leges barbarorum , 'laws of the barbarians', used by editor Paolo Canciani  [ it ] 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

2479-426: The absence of uniformity across the codes. Noel Lenski has instead argued that the range of enumerated offenses for personal injury is generally uniform across the codes and that the compositions mirror one another closely if calculated as a percentage of an individual's Wergild value, indications of a shared tradition. In the event that a person was killed or wounded, an animal was stolen, or other offenses committed

2546-520: 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

2613-420: The basis of antique (Caesar and Tacitus), early medieval (mainly the so-called Leges Barbarorum , laws written by various continental Germanic peoples from the fifth to eighth centuries), and late medieval sources (mostly Scandinavian). According to these scholars, Germanic law was based on a society ruled by assemblies of free farmers (the things ), policing themselves in clan groups ( Sippes ), and engaging in

2680-482: The claim of shared descent, Wenskus also saw the individual gentes as having and developing their own legal orders. Almost all gentes that became post-Roman polities adopted their own law, and the individual Leges , as well as other early medieval sources, mention that the laws belong to individual "people" under various Latin terms (including populus , natio , gens ). However, disagreement exists about whether these written sources are still part of

2747-564: The cognates of Old High German sibba and kunni , found in this meaning in all Germanic languages. According to the traditional understanding of Germanic law, the clan contained all blood relations and was essential for the protection and help of the individual. Individuals were argued to have no relation to the larger tribal state outside of the clan. It aided him in seeking revenge (see feuding ), receiving wergild for those who were slain or injured (see compensatory justice ), and acted as oath helpers. Current scholarship acknowledges

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2814-642: The compensation is referred to as wergild . Scholars debate if wergild was a traditional Germanic legal concept, or if it developed from a Roman predecessor . The various codes uniformly gradate compensations according to whether an individual was fully free, half free, or enslaved. Some also make distinctions by status among free persons, as with the Lex Burgundonum , while the Lex Salica shows no gradation among free males. The prices were sometimes higher than could readily be paid, which could result in

2881-451: The course of the migration period. Scholars debate the origins of Germanic kingship. Tacitus makes a distinction existed between "kings" and "dukes", in that the kings were chosen because of their nobility and the dukes for their prowess in battle. This statement has been used to explain Germanic kingship as having had a sacral and a military component, which were later united. However, more recent scholarship has shown that sacral kingship

2948-399: The different early codes which point to shared legal traditions. Modern scholarship no longer posits a common Germanic marriage practice, and there is no common Germanic term for "marriage". Until the latter 20th century, legal historians, using the Leges and later Norse narrative and legal sources, divided Germanic marriages into three types: According to this theory, in the course of

3015-467: The earlier Germanic peoples is mentioned by Tacitus in Germania chap. 12 and 21, including the various steps taken for conflict resolution. The post-Roman Barbarian kingdoms appear to have seen an increase in non-state violence and violent deaths with the decline in central authority. The various Leges show attempts to limit the practice in feuding, without, however, ultimately preventing it. All of

3082-523: The earliest law codes, those of the Goths and Burgundians, were meant for all persons in their territory or only those of a particular ethnicity. The Lex Salica is far clearer in making ethnic distinctions in the text, perhaps encouraging assimilation to Frankish identity. By the Carolingian period, confusion between social status and ethnicity on the one hand and between ethnic and territorial law on

3149-516: The early Burgundian, Alemannic, Bavarian, and Kentish law codes and therefore cannot have a pan-Germanic origin. Heinz Holzhauer instead argues that ordeal by fire and water was a common Germanic, pre-Christian method of trial, which he connects to the casting of lots found in Tacitus. Orality Orality is thought and verbal expression in societies where the technologies of literacy (especially writing and print) are unfamiliar to most of

3216-469: The early Middle Ages and that only "vernacular" terminology was "legally precise enough to convey what barbarian practice meant". 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"

3283-943: The entire free population. The Visigothic laws lack any mention of a popular assembly, while the Anglo-Saxon laws and history show no evidence of any kingdom-wide popular assemblies, only smaller local or regional assemblies held under various names. Germanic languages attest many different terms that mean king, including þiudans , truhtin and cuning . Terms for Germanic rulers in Roman sources include reges ("kings"), principes ("chieftains"), and duces ("leaders/dukes") - however, all of these terms are foreign ascriptions rather than necessarily reflecting native terminology. Stefanie Dick suggests that these terms are not used with any real differentiation in Roman sources and should all be translated as "leaders". Not all Germanic peoples are attested as having had kings, and different kings seem to have different functions and roles. Peoples without kings included at various times

3350-446: The existence of clan groups as a social factor among the Germanic peoples, but argues that there was never an organized, legally recognized clan organization as postulated by older scholarship. Both Germanic terms and those found in the Leges for kinship groups are not precise enough to indicate that the clans existed as legal entities: instead, the group of "relations" that a person could call on were not fixed or stable. The feud (in

3417-459: The law as unchanging, and it was thus necessary to find the law in any individual case. Laws existed because they were traditional and because similar cases had been decided before. This is clearly displayed in the prologue of the Lex Salica , in which four men are described as having ascertained what the law was rather than creating it. Most of the Leges refer to having been composed through

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3484-654: 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,

3551-436: The modern sense. The assembly stood under the protection of the gods, and feuding parties could visit it without fear of violence. The use of thing as an epithet in a 3rd-century AD inscription dedicated to " Mars Thingsus ", apparently referring to the Germanic god Tyr , as well as the translation of the Roman dies Martii ("day of Mars ", Tuesday) as dingsdag ("day of the thing ", modern German Dienstag ) as

3618-468: The new or full moon and were where important decisions were made (Tacitus, Germania 11–13). Germanic assemblies functioned both to make important political decisions—or to legitimate decisions taken by rulers—as well as functioning as courts of law. In their earliest function as courts, the assemblies do not appear to have had presiding judges. Rather, the members collectively came to judgments based on consensus and acted more as arbiters than as courts in

3685-513: The number of surviving manuscripts and physical indications of their frequent use means that they were in fact employed in practice. Germanic legal vocabulary is reconstructed from multiple sources, including early loanwords in Finnic languages , supposed translations of Germanic terms in Tacitus, apparently legal terms in the Gothic Bible , elements in Germanic names, Germanic words found in

3752-440: The other had essentially turned the system into one of "mobile territorial law", in which a person could claim the law of their territory of birth. In common with many archaic societies without a strong monarchy, early Germanic law appears to have had a form of popular assembly. The earliest attested term for these assemblies in Germanic is the thing . According to Tacitus, during the Roman period, such assemblies were called at

3819-416: The population. The study of orality is closely allied to the study of oral tradition . The term "orality" has been used in a variety of ways, often to describe, in a generalised fashion, the structures of consciousness found in cultures that do not employ, or employ minimally, the technologies of writing. Walter J. Ong 's work was foundational for the study of orality, and exemplifies the fact that despite

3886-538: The previous three decades as well as the work of numerous other scholars. With regard to oral tradition and primary orality he draws on pioneering work by Milman Parry , Albert B. Lord , and Eric A. Havelock . Marshall McLuhan was among the first to fully appreciate the significance of the Ong's earlier work about print culture and the written and printed word as a technology . In his work, The Gutenberg Galaxy McLuhan 1962 , McLuhan quotes and discusses works by Ong in

3953-548: 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. The earliest of

4020-397: The striking success and subsequent power of written language, the vast majority of languages are never written, and the basic orality of language is permanent. In his later publications Ong distinguishes between two forms of orality: 'primary orality' and 'secondary orality'. Primary orality refers to thought and expression un-touched by the culture of writing of print; secondary orality

4087-457: The time prior to Germanic contact with the Romans. Unlike for the trial by combat, scholars debate whether the trials by fire and water were inspired by Christianity or derive from pre-Christian Germanic tradition. Robert Bartlett argues for a Frankish origin of the practice of trial by fire and water, with Frankish influence spreading it around Europe. He argues that the practice is absent in

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4154-519: The use of dialogue as a philosophical or didactic tool in written literature, such as used by the Greek thinker Plato . Before writing became a way for many cultures , we had orality. Unfortunately much of the retained orality has been lost or drastically changed. Those that were able to be preserved gives us insight to past cultures and just how much we have evolved since then. In Orality and Literacy (2nd ed. Ong 2002 ), Ong sums up his own work over

4221-543: 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 Latin law", an unofficial legal system that they argue functioned in

4288-485: The use of these technologies in their daily lives. As a culture interiorizes the technologies of literacy, the ‘oral residue’ diminishes. It has been a habit of literate cultures to view oral cultures simply in terms of their lack of the technologies of writing. This habit, argues Ong, is dangerously misled. Oral cultures are living cultures in their own right. While literacy extends human possibilities in both thought and action, all literate technologies ultimately depend on

4355-798: Was able to show that the poetic metre found in the Iliad and the Odyssey had been 'packaged' by oral Greek society to meet its information management needs. These insights first opened the door to a wider appreciation of the sophistication of oral traditions , and their various methods of managing information. Later, ancient and medieval mnemonic tools were extensively documented by Frances Yates in her book The Art of Memory ( Yates 1966 ). ‘Residual orality’ refers to thought and its verbal expression in cultures that have been exposed to writing and print, but have not fully ‘interiorized’ (in McLuhan's term)

4422-547: Was encouraged by the kings of the individual Germanic kingdoms, who had an interest in preventing bloodshed. Some of the laws, such as the Lex Salica and the Lex Thuringiorum , require that part of the compensation for theft be paid to the king. Later, some kings attempted to replace the compensation system with other forms of justice, such as the death penalty. Scholarship had emphasized the variety of compensations for various offenses and taken this as an indication of

4489-574: 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

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