Category Archives: legal pluralism

Legal Pluralism and the Transformation of the Carolingian World

I had the pleasure of attending a work-shop/conference at the end of January on The Transformation of the Carolingian World. The workshop marked the impending end of the SCIRE research project of the Institute for Medieval Research, Vienna, but was used to outline and explore themes for the next major project that the Institute will hopefully hold. While some research in advanced stages was presented, many of the presentations focused on areas to explore within the scope of the new project, and the methodological and theoretical considerations that might underpin it. Although I am based in the Institute, it is not a project that I am formally associated with (yet). Throughout the conference, however, I felt multiple moments of belonging as the presentations and discussion repeatedly resonated with my own work and interests. Early medieval law played a recurrent role in the workshop: notably a paper from Karl Ubl outlining the manuscript contexts of the Lex Salica in the tenth and eleventh centuries, then a key note lecture on legal pluralism by Stefan Esders followed by a three-paper session on legal pluralism with contributions from François Bougard, Charles West and Helmut Reimitz. I will return to legal pluralism and my own research directions shortly. First, however, I want to note some discussion that arose surrounding the title of this new, proposed project.

The title of this new project is still provisional, and was repeatedly raised and discussed by participants and audience members alike. One problem raised with the ‘transformation’ aspect of the title, especially in relation to the ‘Carolingian world’, was the way in which it appeared to exclude research in areas that were never controlled by the Frankish hegemony. While it was emphasised that this was not the intention of the project, and it was hoped that the project would be wide-reaching, worries that researchers on, for example Visigothic Spain, Anglo-Saxon England or ninth and tenth-century Scandinavia might pre-emptively exclude themselves from participating before even realising their input was vital. One proposed response to this conundrum was to make the title The Impact of the Carolingian World instead.

Unfortunately, I had, and still have, my own problems with the use of the word ‘impact’ here. The impact of the Carolingians on the tenth and eleventh centuries, suggests to me that the agency of the developed being explored lay primarily with what the Carolingians themselves had done. The Carolingian world seems portrayed as a meteor, striking into the tenth and eleventh centuries, and scattering the people there. As a title, it removes the agency of the people in the tenth and eleventh centuries, suggesting that they were nothing more than the passive recipients of unchangeable events which had been predetermined in the eighth and ninth centuries. This implication of ‘impact’ stands at odds with what the organisers of the project repeatedly outlined as the intended focus of study, and was likewise contradicted by every presentation and research proposal. Always the focus returned to the ways in which people in the tenth and eleventh century looked back on the Carolingian inheritance, and then adapted, updated and appropriated it to suit their own immediate ends and historical contexts. As such, I hope that the term ‘impact’ will not be adopted by the project, although quite what term might be used instead I cannot say!

Stefan Esder’s keynote lecture focused primarily on Burchard of Worms  and his compilation of a major Canon Law collection around the turn of the tenth century, and Worms as a well-documented case-study for a detailed analysis of legal pluralism. The legal pluralism explored by Esders was very much the interplay of secular and ecclesiastical laws in the same area, and this theme seemed to me to be echoed to varying degrees in the other presentations that followed in the panel. My own research where it has begun to edge towards legal pluralism, has focused on the multiple use of barbarian laws across the Carolingian Empire and in the centuries following, as exemplified in the production of books containing copies of two or more barbarian law-codes. With a weather eye on future projects, I began assembling a few months back a research proposal relating to manuscripts containing a copy of the Lombard laws augmented with one or more other barbarian law-codes. The first manuscript that I considered for this list was, naturally, Paris, Bibliothèque, MS Lat. 9656 – one of the copies of the Liber Papiensis or Liber legis langobardorum which my current project focuses on, dating to the third-quarter of the eleventh century and containing in its final folios part of the prologue to the Lex Baivariorum (fol. 109r) and the Lex Salica Karolina (fols 109r-115v). Exploring further, I identified another five earlier manuscripts dating from the third-quarter of the ninth century through to the second quarter of the twelfth century, and, with the possible exception of one, having all been produced in northern Italy.

I feel that this corpus is suggestive of an important thread in the later development of the Lombard laws and hope to return to it in the future. For now, I include below the spiel on legal pluralism that I drafted for the project, to study and contextualise the following six manuscripts:

  • Wolfenbuettel, Herzog Augustus Bibliothek, MS Cod. Guelf. 130, produced in northern Italy in the third-quarter of the ninth century. Lombard, Ripuarian, Salic, Alamanic and Bavarian laws.
  • Paris, Bibliothèque Nationale de France, MS Lat. 4614, produced in Northern Italy in the tenth century. Lombard, Alamanic and Bavarian law-codes.
  • Modena, Biblioteca Capitolare, MS O. I. 2, produced at the end of the tenth century in northern Italy. Liber legum (Servatus Lupus’ ninth-century systemisation of the Lombard, Bavarian, Salic, Ripuarian and Alamanic laws).
  • Gotha, Forschungs- und Landesbibliothek, MS Memb. I. 84, produced in the tenth or early eleventh century, in either northern Italy or Mainz. Liber legum.
  • Paris, Bibliothè Nationale de France, MS Lat. 9656, produced in northern Italy (possibly Pavia or Verona) in the third-quarter of the eleventh century. The Liber Papiensis, prologue to the Bavarian laws, and the Salic laws.
  • Munich, Bayerische Staatsbibliothek, MS Lat. 3519, produced in northern Italy in the second quarter of the twelfth century. The earliest phase of Lombard law (the Edictus Rothari), and the Bavarian laws.

Legal Pluralism in Lombard Law-Books

Legal pluralism, the concurrent use of multiple laws or legal systems within a geographically defined territory (Davies, 2010: 805-27), was central to the legal culture of the Carolingian empire. At an assembly held early in the ninth century Charlemagne made explicit the ‘personality of law’ as the legal norm for the peoples within the Carolingian empire, whereby a person was expected both to know and to be accountable to the specific laws of the ethnic gentes with which they identified (for a nuanced discussion of this event in relation to the legal culture and texts, see Faulkner, 2013: 444-45). Those gentes in whose name a law-code had not already been written were instructed to draft and emend one as inappropriate. Although Northern Italy had come under Carolingian control following its conquest in 775 CE, the Lombards had already produced an extensive collection of laws, beginning with the Edictus Rothari, in 643 CE, and continued to be expanded and augmented through until King Aistulf’s last piece of legislation in 755 CE. Lombard law continued to be used in Carolingian Italy, and, although separate to this study, dukes in the unconquered south of Italy continued to promulgate law as Lombard rulers.

For those peoples who did not already have a law-code of their own, the Lex Salica (507-11 CE) served as a model for the later codifications of the law under Carolingian influence, as it had previously for the laws of the Alamans (early seventh century) and the Bavarians (ca 745 CE). Rather than Salic legal content being (directly) imposed on the new law-codes, local custom was retained and a variety of differing penalties can be seen across the law-codes for similar crimes, such as the injury tariffs which are characteristic of Germanic law (see Wormald, 2003; Oliver, 2011). While far from universally accepted, Patrick Wormald has argued for a relatively weak legal literacy in early medieval Europe. He proposed that rather than being used as legislation, the laws were primarily vehicles for royal ideology and that the differences in tariffs outlined in the laws functioned as markers, used for constructing ethnic identities between groups within the empire and identifying to which a person belonged (1977; 2003). In contrast to this view, Rosamond McKitterick, in particular, has argued for a much stronger legal literacy, combined with a role for written codifications of law that extended far beyond their symbolic value as emblems of royal ideology (1980; 1989; 1994a). Likewise, the underlying features common to the barbarian laws indicate the existence of what Marurizio Lupoi has argued was effectively an early medieval common law, shared across Western Europe (2000; 2007).

While the direct connection between legal cases and written law-books is not clear from the manuscript evidence in Carolingian legal culture, with no direct quote of law surviving in a recorded case, books of law nevertheless must have played a significant role as well over 150 manuscripts containing secular legal texts survive (Faulkner, 2013; McKitterick, 1994b). The ninth-century in particular saw the production of law books of multiple law-codes of the leges barbarorum from across the Frankish realms, with thirteen extant manuscripts which were produced in the leges scriptorium, first associated with Emperor Louis the Pious, and emphasising the overall scale of law-book production there (McKitterick, 1994a; McKitterick, 1994b). These manuscripts variously containing copies of the laws of the Franks, Burgundians, Alemans and Bavarians as well as capitulary collections, Roman law, and other related texts. Most interestingly, however, none of these ninth-century manuscripts include a copy of the Lombard laws, despite the legal pluralism of the Carolingian hegemony and northern Italy having been incorporated into the Empire for well over a quarter of a century when the earliest of these leges scriptorium manuscripts was produced.

However, at broadly the same time that scribes in the leges scriptorium were producing law-books, Servatus Lupus (ca. 805-62 CE), Abbot of Ferrière, was also working within a framework of legal pluralism. He arranged Frankish capitularies chronologically by the rulers who promulgated them; a systemisation which Patrick Wormald notes differed from the practice usually seen in manuscripts of the ninth century (1999: 33). Lupus also undertook the systemisation of various other Germanic law-codes that were in use within the Carolingian empire, including those of the Lombards, along with the codes of the Salic and Ripuarian Franks, Bavarians and Alamans, in a text known as the Liber legum. Lupus’ innovation in ordering the capitularies by promulgator remains as a feature in the later copies of the Lombard legislation. However, beyond two manuscript witnesses of the Liber legum produced in the tenth and eleventh centuries on which this study in part focuses, his systemisation does not appear to have served as a direct exemplar for the later surviving manuscripts of the Lombard laws or its later redactions. Nevertheless, Lupus’ systemisation of the leges barbarorum can be seen as the first steps in over three centuries of legal studies focusing on the Lombard laws.

The absence of the Lombard laws in the ninth-century law-books of the leges scriptorium taken alongisde Lupus’ systemisation suggest (at least) two parallel paths in the development of the legal culture of the personality of law in the Carolingian period. While the leges scriptorium appears not have valued the Lombard laws, Lupus dedicated relatively more attention to thm and the Salic laws than to any of the other of the leges barbarorum, with Wormald describing these as the only laws which were ‘thoroughly overhauled’ by him (1999: 34-35). These two threads appear to have merged by the end of the ninth century, at least in northern Italy where the Lombard laws were still in use, and continuing well into the twelfth-century. The production of manuscripts of the Lombard legilsation within a frame work of secular legal pluralism, then had a long tradition in the later transmission of the laws, continuing through the incorporation of Carolingian Italy into the Holy Roman Empire under Otto I in 962 CE, and the razing of the palace in Pavia in 1024 CE during a revolt by the local inhabitants, from which point onwards Chris Wickham argues, Italy hardly existed as a state (1981: 168). Despite, or perhaps because, of this law-books continued to be produced and the laws were studied and used. New redactions of the Lombard laws were produced and developed, in a thriving culture of legal scholarship (Gobbitt, 2014; Radding, 1997; Radding and Ciaralli, 2007: 67-92).

The role of Lombard law-books augmented with other barbarian law-codes throughout this period and before, legal pluralism and the appropriation of the Carolingian world, then clearly mark significant threads the development of Lombard law and of Lombardist legal studies in particular. A manuscript-led study of the complicated material and historical contexts of these six surviving law-books produced across a period of some two and a half centuries will undoubtedly be informative and rewarding.


References

Davies, Margaret, ‘Legal Pluralism’, in The Oxford Handbook of Empirical Legal Research, ed. by Peter Cane and Herbert M. Kritzer (Oxford, 2010)

Faulkner, Thomas, ‘Carolingian Kings and the Leges Barbarorum’, in Early Medieval Law in Context, ed. by Jenny Benham, Historical Research 86 (2013), 443-64

Gobbitt, Thom, ‘Materiality, stratigraphy and artefact biography: codicological features of a late-eleventh-century manuscript of the Lombard laws’, Studia Neophilologica 86 (2014), 48-67

Lupoi, Maurizio, The Origins of the European Legal Order (Cambridge, 2000)

Lupoi, Maurizio, ‘A European Common Law before Bologna’, in Law Before Gratian: Law in Western Europe c. 500-1100, ed. by Per Andersen, Mia Münster-Swendsen and Helle Vogt (Copenhagen, 2007), pp. 1-20

McKitterick, Rosamond, ‘Some Carolingian Law Books and their Function’, in Authority and Power. Studies on Mediaeval Law and Government presented to Walter Ullmann on his 70th birthday, ed. by Peter Linehan and Brian Tierney (Cambridge, 1980), pp. 13-27

McKitterick, Rosamond, Carolingians and the Written Word (Cambridge, 1989)

McKitterick, Rosamond, ‘Script and Book Production’, in Carolingian Culture: Emulation and Innovation, ed. by McKitterick (Cambridge: University Press, 1994a), pp. 221-47

McKitterick, Rosamond, ‘Some Carolingian Lawbooks and their Function’, in Books, Scribes and Learning in the Frankish Kingdoms, 6th – 9th Centuries, ed. by McKitterick (Aldershot, 1994b), pp. 13-27

Oliver, Lisi, The Body Legal in Barbarian Law (Toronto, 2011)

Radding, Charles, M., ‘Petre te appellat Martinus. Eleventh-century judicial procedure as seen through the glosses of Walcausus’, in La Giustizia nell’Alto medioevo II (secoli IX-XI), XLIVa Settimana di Studio sull’Alto Medioevo, Spoleto, 11-17 aprile 1996 (Spoleto, 1997), 827-61

Radding, Charles, M. and Antonio Ciaralli, The Corpus Iuris Civilis in the Middle Ages: Manuscripts and Transmission from the Sixth Century to the Juristic Revival (Leiden, 2007), pp. 67-92

Wickham, Chris, Early Medieval Italy: Central Power and Local Society 400-1000 (Michigan, 1981)

Wormald, Patrick, ‘Lex scripta and verbum regis: legislation and Germanic kingship from Euric to Cnut’, in Early Medieval Kingship, ed. by Peter H. Sawyer and Ian N. Wood (Leeds, 1977), pp. 105-38

Wormald, Patrick, The Making of English Law From King Alfred to the Twelfth Century, vol. 1: Legislation and its Limits (Oxford, 1999)

Wormald, Patrick, ‘The leges barbarorum: law and ethnicity in the medieval west’, in Regna and Gentes: The Relationship Between Late Antiquity and Early Medieval Peoples and Kingdoms in the Transformation of the Roman World, ed. by Hans-Werner Goetz, Jörg Jamut and Walter Pohl (Leiden: Brill, 2003), pp. 21-55

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