18  

More influential in the Middle Ages—and current even today!—

is Paul the Deacon’s perception of the Empire’s disturbing role in
the formative development of the regna. In his much-quoted Historia
Romana he replaces the regnal years of the emperors with incarna-
tion chronology after Theoderic’s takeover in Italy in A.D. 49214 (the
Imperium Romanum is replaced by the Imperium Christianum!). Hence
he regards Justinian’s reconquista as a subjugation (servitium) of the
“Romans” by the “Greeks” and consequently labels Justinian’s suc-
cessors as “Greek” emperors, and thus no longer “Romans”.15 Over
the next centuries questioning the Romanitas of the Empire of New
Rome will remain a frequently applied method for pushing Constan-
tinople to the periphery as an exotic and anachronistic survival from
the past.
The next two alternative stages would take us beyond the period
under investigation:

• The Franks, to be followed by others, set as their final goal, the

translatio imperii. On the basis of the ideas introduced with the
Constitutum Constantini, a text fabricated in the eighth century to
serve papal aspirations of political hegemony in Italy, but which
at the same time helped to re-arrange the world-system in favour
of the Frankish interests, the Franks claimed the imperium, at least
a Frankish imperium, and the nomen imperatoris, for their king. Many
centuries later, in A.D. 1202, this attitude was to be followed by
Pope Innocent III with his claim of the translatio imperii ad Germanos.16
(Two years later, the fourth crusade brought the sack of Cons-
tantinople and the establishment of a Latin Empire on the shores
of Bosporus!).

Das Werden des Abendlands im Geschichtsbild des frühen Mittelalters”, Deutsches

Archiv 9 (1952) pp. 353–401, here pp. 363–4; G.B. Ladner, “On Roman Attitudes
toward Barbarians in Late Antiquity”, Viator 7 (1976) pp. 1–26.
14
Paul the Deacon, Historia Romana, ed. A. Crivellucci, Fonti per la storia d’Italia
51 (Rome 1914): cessante iam Romanae urbis imperio utiliusque aptiusque mihi videtur ab
annis dominicae incarnationis supputationis lineam deducere.
15
On this see now H. Hofmann, “Roma caput mundi? Rom und Imperium
Romanum in der literarischen Diskussion zwischen Spätantike und dem 9. Jahr-
hundert”, Roma fra oriente e occidente, Settimane di studio del centro italiano di studi
sull’alto medioevo 49 (Spoleto 2002) pp. 493–556, here pp. 534–5.
16
H. Beumann, “Unitas Ecclesiae—Unitas Imperii—Unitas Regni. Von der impe-
rialen Reichseinheitsidee zur Einheit der Regna”, Nascita dell’Europa ed Europa Carolingia:
Un’equazione da verificare, Settimane di studio del centro italiano di studi sull’alto
medioevo 27 (Spoleto 1981) pp. 531–71.
   19

• Those kings of the early medieval states who could not claim or
dream of a translatio imperii for themselves would be consoled with
the principle of—to use a medieval expression—rex superiorem non
recognoscens, imperator est in regno suo.

The picture of the emergence and the shaping of the regna in con-
stant and close connection with the Empire as suggested in this paper
could create the wrong impression that the Empire remained through-
out the critical period a static structure with no changes in form and
life. On the contrary, it is true that the Empire was itself subjected
to these developments. The idea and the functioning of the emper-
orship, the social structure of the Roman population, the role of the
army, the principles and the trends of the policy towards the neigh-
bours, the cultural values and tastes, the impact of religion on every-
day life and many other practical and theoretical aspects of public
interaction underwent substantial changes. Some of these aspects in
the Empire were directly or indirectly affected by the existence of
the regna on formal Roman soil or at the edge of the imperial ter-
ritory. The political developments caused by the occupation and con-
quest of Roman soil and parallel to that the consolidation of the
successor states brought an equilibrium of growth and capabilities.
The road to the strengthening and the stabilization of the regna caused
what we can call the “regnalisation” of the Empire. The expression
regnum Romanum, already in use in the fourth century, acquired real
political meaning. The general use of the word Romania in the sev-
enth and later centuries by the Byzantines for their Empire expressed
the same attitude. In this sense the dispute with Constantinople over
the imperial title of Charlemagne after his coronation in A.D. 800
was merely a quarrel about the nomen imperatoris.
This page intentionally left blank
 THE LEGES BARBARORUM:
LAW AND ETHNICITY IN THE POST-ROMAN WEST

Patrick Wormald

One experience shared by almost every “barbarian” gens that sur-

vived as a post-Roman polity into the seventh century was the even-
tual adoption of a written lex.1 From this alone, it is clear that
possession of a lex came to be a highly significant element in the
making of any acknowledged political unit in the West. Further, the
leges have enough in common to suggest that the processes which
brought them forth were broadly similar. They entirely justify a
“cross-regnum” approach, such as has often been essayed, and not
only by legal historians.2
The salient difficulty here has been the historian’s usual bugbear
of hindsighted teleology. It has been normal to read back into these
texts the legislative assumptions espoused by legally literate western
cultures since the twelfth century: principally that a mutually identifiable
“law” is a fundamental ingredient in the personality of any people—

1
Exceptions: most obviously the Avars (though perhaps not the Bulgars: R.
Browning, Byzantium and Bulgaria: a comparative study across the early medieval frontier
[London 1975] pp. 124–5); also the Anglian and most Saxon peoples in Britain.
For present purposes, it makes no difference that some had to await the eighth or
early-ninth century (or in Scandinavia much later) for this.
2
Thus, H. Brunner, Deutsche Rechtsgeschichte, 2 vols. (Leipzig 1906, 2nd edn. 1928);
R. Buchner, Die Rechtsquellen, Wattenbach-Levison, Deutschlands Geschichtsquel-
len im Mittelalter, Vorzeit und Karolinger, Beiheft (Weimar 1953); most recently,
M. Lupoi, Alle radici del mondo giuridico europeo (Rome 1994), Engl. transl. The Origins of
the European Legal Order (Cambridge 2000). See also J.M. Wallace-Hadrill, Early
Germanic Kingship in England and on the Continent (Oxford 1971) pp. 32–9; and my own
approach—not, as has been observed, that of a legal historian—P. Wormald, “Lex
Scripta and Verbum Regis: Legislation and Germanic kingship, from Euric to Cnut”,
Early Medieval Kingship, ed. P.H. Sawyer and I.N. Wood (Leeds 1977) pp. 105–38,
reprinted and corrected in my Legal Culture in the Early Medieval West. Law as Text,
Image and Experience (London 1999) pp. 1–43; together with that volume’s Preface,
pp. xi–xv; and my The Making of English Law. King Alfred to the Twelfth Century, vol.
1: Legislation and its Limits (Oxford 1999), chapter 2. In compiling this retractatio, I
owe much to this volume’s editors and my fellow-contributors, notably Professor
Wood and Dr Christys.
22  

quis populus, eius lex, as it were.3 A law somehow emerges from the
society to which it applies, helping not just to resolve its tensions
but also to demarcate it as a community. Because the units that
developed out of the western Empire were recognizably the germ of
today’s European states, as this volume is concerned to analyse, the
lex that they came to profess must (it is thought) have been one of
their defining features: scarcely less so than is the law enforced by
the courts of modern governments.
On this supposition, the legislation of Germanic kings merely marks
their assuming responsibility to regulate the problems of the king-
doms created by their armies. The persistence of Roman law within
their regna would then amount to a concession on their part. Nor
were Romans the only ones covered by this allegedly prevalent prin-
ciple of “the personality of law”. Any people incorporated into a
realm must axiomatically have had an inherent lex of its own. That
people, therefore, could only feasibly be ruled by recognizing their
“law”. Hence, codes were issued for peoples other than the ascen-
dant “Volk”, which these peoples were then allowed to apply in cases
involving their members.4 This may indeed have become the posi-
tion by the time of the Carolingian hegemony. But it is very far
from clear that it was true anywhere before the seventh century,
while in certain parts of the West it was never the case. Nor is it
obvious how Roman law can have been something conceded, as if
to a minority group, when the aristocracies that adhered to it were
anything but marginal; or why the charters and formulae that gov-
erned property relations should have remained deeply influenced by
Roman concepts, when so few of the leges seemingly were. And how
did it come about that the Edict of King Rothari of the Lombards
(643) gives every sign of being an unambiguously “Germanic” doc-
ument with little to say of Romans, when the legislation of his suc-
cessors not only reflected the presence of Romans but was evidently
influenced by their legal ideas?

3
Note the discussion (following Regino of Prüm) of legal pluralism as a criterion
of ethnicity, and of its erosion from the twelfth century onwards, by R. Bartlett,
The Making of Europe. Conquest, Colonization and Cultural Change, 950–1350 (London
1994) pp. 197–220.
4
This article of faith, widespread in the “Rechtsschule” (Buchner, Rechtsquellen,
p. 5)—though controversial as regards Visigothic legislation—is epitomized in S.L.
Guterman, From Personal to Territorial Law. Aspects of the History and Structure of the
Western Legal-Constitutional Tradition (New York 1972).
  LEGES BARBARORUM 23

A central thesis of this volume is that the foundation of a regnum

was not simply a matter of displacing the structures of imperial gov-
ernment. To support that thesis, we need a view of early medieval
law-making which explains how extant texts developed out of estab-
lished Roman practice. In the argument that follows, two princi-
ples will be primary. First, chronology will be closely observed. The
course of legislative development will be plotted from the fifth century,
when it can be taken for granted that Roman procedures remained
dominant (except where, as in Britain, all aspects of Romanitas were
evidently at risk) through to the ninth, when something of a new
legislative equilibrium seems to have emerged. Second, the maxi-
mum possible attention will be given to geographical variation. Just
as some post-Roman regimes were clearly a lot more Roman in style
and machinery than others, so their legal pronouncements were
exposed to variable levels and types of Roman influence. At the
same time, it is regarded as not likely that the legal memorials of
post-Roman society were merely varieties of a Roman legacy. Much
in “Germanic” law can be adequately explained as sub-Roman provin-
cial routine. But a great deal of the extant material can only be
understood in terms of the customs imported by the West’s new
masters.

II

The legislation of the later Roman emperors was pre-eminently the

province of their “Quaestors of the Sacred Palace”.5 The Praetorian
Prefects of the Severan dynasty were among the great lawyers of all
time, with correspondingly enriching results on imperial rescripts.
Quaestors from Constantine to Justinian were not always legally
untrained but they were above all rhetoricians, with literary tastes
to match. The quintessential case is Ausonius, drafted from the lec-
ture-room of Bordeaux University to address and administer his ex-
pupil’s realm. Their legislative output was thus characterized by a

5
For what follows, see above all A.M. Honoré, “The Making of the Theodosian
Code”, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 103 (1986)
pp. 133–222; followed up by his Law in the Crisis of Empire, 379 – 455 A.D. The
Theodosian Dynasty and its Quaestors (Oxford 1998); with, as background, his Emperors
and Lawyers (London 1981).
24  

new expansiveness and sonority, which has done much to persuade

historians of the depth of the empire’s problems—especially given
that the compilers of the Theodosian (435–8) and Justinianic (529–34)
Codes generally obeyed their instructions to preserve only what was
of general import, deleting all traces of any pronouncement’s specific
context. Two implications of this position are crucial for the under-
standing of sub-Roman law-making. First, appearances in the Codes
to the contrary, later imperial law continued to be made, as ever
since the first Caesars, in response to petitions and pressures from
citizens.6 That law not be generated by the solicitions of special in-
terests was one of the more spectacularly disregarded late Roman
prohibitions. Second, imperial decrees were “vulgarized”, like Roman
law throughout the post-Constantinian empire (except perhaps along
the Beirut-Constantinople axis). They were products of the educa-
tional system that qualified literary specialists to rule the state, a sys-
tem in which law of course had its place, yet subsidiary to the
imperatives of a properly Demosthenic or Ciceronian training.7
The Ausonian model of governance survived to steer post-imperial
regimes in the same direction. The Variae of Cassiodorus were com-
posed—and preserved—as literary showpieces by a highly trained
Italian rhetorician, but this does not mean that they were any the
less official pronouncements by Italy’s Ostrogothic kings.
The lamentable grievance of Constantius and Venerius has moved my
[King Athalaric’s] serenity: they complain that they have been deprived
by Tanca of their legal property [. . .] They add that, lest they should
try an action to reclaim their own, he is imposing on them the sta-
tus of meanest slavery. Therefore your mightiness, in obedience to this
decree [decretum], is to command the aforementioned person to attend
your court. There the whole truth of the case is to be examined, and
you are to dispense a justice that accords with law.
Tanca’s name implies a Gothic identity, as does that of the letter’s
addressee, Cunigast vir illustris, whose own depredations Boethius
claimed to have obstructed.8 A Roman official was making a Gothic

6
The classic account is now F. Millar, The Emperor in the Roman World, 31 B.C.–A.D.
337 (London 1977).
7
On all this, the fundamental account remains that of F. Wieacker, Allgemeine
Zustände und Rechtszustände gegen Ende des weströmischen Reichs, Ius Romanum Medii
Aevi 1,2a (Milano 1963); but note the reservations of Honoré, Law in the Crisis of
Empire, pp. 19–23.
8
Cassiodorus, Variae 8,28, ed. T. Mommsen, MGH AA 12 (Berlin 1894) [hence-
  LEGES BARBARORUM 25

king see that justice was done to Romans by Goths. The Variae also
included a “General Edict” in Athalaric’s name (533–4), decrying
sundry current breaches of civilitas: pervasio and other judicial mal-
practice, adultery, concubinage and bigamy, extorted gifts, sorcery
and homicide, and abuse of appeals procedure.9 The same topics
and many others no less typical of later imperial law-giving feature
in the well-known “Edict” of Theodoric himself (493–526), a short
code explicitly directed at “barbarians” and Romans.10 Now, Cassio-
dorus announced in Theodoric’s name that cases among the Goths
were to be settled by his “edicts”, those of Romans were to go
before “Roman examiners”, and those between Goth and Roman
should be “decided by fair reason in association with a Roman
jurisconsult”; “so each may keep his own laws, and with various
judges one Justice may embrace the whole realm”. The implication
here is that Theodoric laid down written law for Goths. That would
square with the remark of the “Valesian Anonymous” that “by the
Goths, because of his edict in which he established justice, he was
judged to be in all respects their best king”.11 Theodoric may have
done something of the sort. His Ravenna scribes produced the most
spectacular monument of early barbarian culture in the Codex Argenteus
of the Gothic Bible; not to mention charters signed manually in
Gothic script and language. Jordanes, probably following Cassiodorus’
lost Gothic History, knew of written belagines traceable to the dawn

forth: Variae], translations: Cassiodorus, Variae, ed. and transl. S.J.B. Barnish, Translated
Texts for Historians 12 (Liverpool 1992) p. 106 [henceforth: transl. Barnish]; Boethius,
The Consolation of Philosophy 1,4, ed. and transl. S.J. Tester, Loeb Classical Library
[The theological tractates] (2nd edn., London 1973) pp. 148–9.
9
Variae 9,18; 9,19–20 (transl. Barnish, pp. 116–21).
10
Most conveniently edited by J. Baviera in Fontes Iuris Romani Anteiustiniani 2, ed.
S. Riccobono et al. (2nd edn., Florence 1968–69) pp. 683–710: for its remit, see
Prol.; for injustice: 9; 55; 73–74; 91; 103; 129; on potentiores etc.: 43–47; 145; mar-
riage: 36–39; 54; 59–67; 93; slaves: 48–49; 56; 68–71; 78–87; 94–96; 117–118;
120–121; 128; 148; inheritance etc.: 23–33; 90; rape: 17–22; 92; homicide: 15–16;
99. Though it has been strongly argued that the Edict is that of one of the Visigothic
Theodorics in fifth-century Gaul, Dr Barnish has pointed out to me that clauses
10 and 111 seem to reflect Italian conditions, and that Variae 4,10 probably refers
to clauses 123–124; since there is no reason to suppose that Cassiodorus issued all
Theodoric’s decrees, the “Edict’s” lack of Cassiodoran rhetorical ornament is no
objection to its Ostrogothic provenance.
11
Variae 7,3 (transl. T. Hodgkin, The Letters of Cassiodorus [Oxford 1886] p. 321);
Anonymus Valesianus, Fragmenta 2,12, ed. and transl. J.C. Rolfe, Ammianus Marcellinus
12 (Cambridge Mass. 1939) pp. 544–5.
26  

of Gothic history.12 Yet all we can know for sure is that Ostrogothic
kings made law for Goth and Roman alike. Roman officialdom gave
barbarian kings the role of making law for Italy, as they were also
entrusted with its defence.
Italy was always a special case. But it is not unreasonable to extrap-
olate from Italian paradigms when sifting evidence of poorer qual-
ity from other Latin-speaking provinces. Sidonius Apollinaris was no
Cassiodorus, yet his poems and letters strongly suggest that his friends
took on Cassiodoran functions for the Visigothic and Burgundian
kings of southern Gaul.13 Unfortunately, Gallic legal texts are very
erratically preserved. The apparently earliest phase of Visigothic law-
making survives only as a fragmentary palimpsest. This may well be
equated with the first written record of Gothic law, dated by Isidore
of Seville to the reign of Euric (466–84). But if so, Euric seems to
refer to laws of Theodoric I (419–51).14 Likewise, the extant Lex
Burgundionum was most probably the work of Sigismund in 517. But
Gregory of Tours reported that Gundobad (474–516) issued “leges
mitiores [. . .] that there be no undue oppression of the Romans”,
and the Burgundian code was later called Lex Gundobada.15 The best
resolution of these conundra is that Theodoric I and Gundobad had

12
Chartae Latinae Antiquiores 20,704, ed. A. Bruckner and R. Marichal (Zurich
1982); Die nichtliterarischen lateinischen Papyri Italiens aus der Zeit 445–700 2, ed. J.-O.
Tjäder (Lund-Stockholm 1955) pp. 95–6. On Jordanes and the belagines: Jordanes,
Getica 11, ed T. Mommsen, MGH AA 5,1 (Berlin 1882) pp. 73–5, see comment
by P.J. Heather, Goths and Romans 332–489 (Oxford 1991) p. 36. The fact remains
that belagines is not in Cassius Dio’s account of the Getic proto-hero, nor does it
seem to be a Greek word; whereas the word’s central syllable (cf. OE lagu!) makes
a strong case for regarding it as Germanic and legal: S. Feist, Vergleichendes Wörterbuch
der Gotischen Sprache (Leiden 1939) p. 91.
13
Sidonius Apollinaris, Carm. 7,311–13, ed. and transl. W.B. Anderson [Poems and
Letters], Loeb Classical Library, 2 vols. (Cambridge Mass. 1936/65) vol. 1, p. 144:
the future Emperor Avitus as assertor legum under Theodoric I; Carm. 5,562, vol. 1,
p. 108: Magnus of Narbonne dictat modo iura Getis when prefect in 458–9; Ep. 2,1,3,
vol. 1, p. 416: Seronatus leges Theodosianas calcans, Theudoricianasque proponens; Carm.
23,447–9, vol. 1, p. 312 and Ep. 8,3,3, vol. 2, p. 408: Leo of Narbonne eclipsing
Appius Claudius, and putting declamationes in Euric’s mouth which frenat arma sub
legibus; Ep. 5,5,3, vol. 2, p. 180: Syagrius a novus Burgundionum Solon in legibus dis-
serendis.
14
Codex Euricianus 277 (significantly on the sortes Gothicae et tertias Romanorum); 305;
and cf. 327?, ed. K. Zeumer, MGH LL nationum Germanicarum 1 (Hannover
1902) pp. 5; 16; 25 [henceforth: Cod. Eur.].
15
Gregory of Tours, Historiae 2,33, ed. B. Krusch and W. Levison, MGH SSrM
1,1 (2nd edn., Hannover 1951) p. 81. For this persuasive view of the genesis of Lex
Burgundionum, see Ian Wood this volume, pp. 253–4.
  LEGES BARBARORUM 27

issued individual laws on particular problems brought to their atten-

tion, as emperors and Ostrogothic kings did. Much of the Burgundian
Lex gives just that impression, and the topics covered by the Italian
texts recur there and in the Visigothic material.16 That these laws
and others should have been gathered into “codes” by their succes-
sors was simply a further case of barbarian-led regimes following the
Roman exemplum.
If the Italian analogy holds, there is no reason to think that Euric’s
or Sigismund’s codes were targeted only at their own peoples, any
more than were the Ostrogothic edicts of Theodoric or Athalaric
(i.e. Cassiodorus). The Burgundian Lex never said it was. Very much
more of it concerns Burgundians and Romans in inter-relationship
than Burgundians alone.17 The Visigothic palimpsest gives no war-
rant for the widespread view that Euric’s code consisted exclusively
of Gothic law for Gothic use. Isidore’s Historia Gothorum says merely
that “under this king [Euric], the Goths began to have instituta legum
in writing, for before they were governed by tradition and custom
alone”. That was not to say that Euric legislated only for Goths;
Isidore need have meant no more than that Goths were for the first
time integrated into the lex scripta regime of the old Empire.18 The
Roman law of the Visigothic kingdom was recodified in Alaric II’s
name in 506, and a shorter equivalent is extant for the Burgundian
realm. But neither of these points sustain the proposition that Euric’s

16
This is especially clear with the Novellae, cf. Liber Constitutionum 42–55; 62; 64;
74–81, ed. L.R. von Salis, MGH LL nationum Germanicarum 2,1 (Hannover 1892)
[henceforth: Lib. Const.]; Constitutiones Extravagantes 20, ed. L.R. von Salis, MGH LL
nationum Germanicarum 2,1 (Hannover 1892) [henceforth: Const. Extr.]. Lib. Const.
42; 52; 62; 76; 79 and Const. Extr. 20 bear their own dates, Lib. Const. 42; 76 and
79 being apparently laws of Gundobad. Among topics covered in n. 10, cf. on
injustice: Lib. Const. 1 and Cod. Eur., pp. 28; 31–2 for probable fragments of the
Codex Euricianus, with Lex Visigothorum, ed. K. Zeumer, MGH LL nationum Germani-
carum 1 (Hannover 1902) pp. 46–79 [henceforth: Lex Vis.] for a Spanish law of
546 on judicial expenses; on potentiores etc.: Cod. Eur. 276–277; 312; Lib. Const. 22;
54–55; 60; 84; Const. Extr. 21,12; on marriage: Cod. Eur. 319; Lib. Const. 12; 34;
36; 44; 52; 61; 66; 68–69; 86; 100–101; on slaves: Cod. Eur. 288; 300; Lib. Const.
6–7; 20; 39; 77; on inheritance etc.: Cod. Eur. 320 ff.; Lib. Const. 14; 24; 42; 51;
53; 59; 62; 65; 74–75; 78; 85; 87; on rape, Lib. Const. 30; 35; on homicide: Lib.
Const. 2; 10.
17
Figures from Lib. Const., p. 11.
18
Isidore of Seville, Historia Gothorum, Wandalorum, Sueborum 35, ed. T. Mommsen,
MGH AA 11 (Berlin 1894) p. 281; Isidore’s information perhaps came from the
lost prologue of the code of Liuvigild that finally superseded Euric’s (below, notes
50 and 51).