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continuity, vulgarization, classicism 259
competing barbarian kingdoms the law had become vulgarized, i.e.
simplified and popularized by local practice without positive enactment.
On this view, the process of vulgarization went back to the early fourth or
even to the late third century, ran throughout the empire and infected even
the central administration and legal pronouncements emanating from the
emperor. Only the east was able in the fifth century to free itself from this
deterioration by a classicizing return to the law and legal science of the
principate. 114 Not everyone was convinced by this diagnosis: Italian
Romanists especially resisted it. But in the meantime it seemed as though
Ernst Levy and Max Kaser had looked for and found vulgarization in every
quarter. 115 Vulgarization therefore became a convenient means of explaining
every imaginable difficulty.
It is undeniable that there were some breaches with received tradition.
For example, in the early fourth century Constantine broke with many legal
principles long regarded as sacrosanct. Nevertheless, the received legal tradition
proved to be very strong, and the necessity of keeping in contact
with it and developing the law from it could not be denied. Even under
Constantine and in the middle and late fourth century, and also in the fifth,
this is so evident that it is no longer possible to speak of a collapse of the
legal tradition. This is true even in the west throughout the period in which
the emperor remained at the head of the legal system, continually developing
the law by interpretative and legislative pronouncements. Such utterances
still had authority for Romans now living under federated Germanic
kingdoms such as the Visigothic and Burgundian kingdoms, and even for
those under the wholly independent Vandal rulers. As this control at the
top first weakened in the 460s and 470s and then fell away altogether, provincial
peculiarities and simplifications, already numerous, began to dominate.
The communities of Romans were now thrown back on themselves,
and the application of Roman law was invaded by vulgarizing tendencies. 116
However, even in the sixth century the aspiration of the Roman population
throughout the west to continue in the inherited tradition of Roman
law was not extinguished.
114 Levy (1963a) i.161–320; Levy (1945), (1951), (1956); Wieacker (1955), (1964); Kaser (1967)
1283–304; Kaser (1975) ii.
115 Critical: Wieacker (1983b) 232–8; Wieacker (1955) 241–54; Simon (1978) 154–74; Voss (1982);
Kreuter (1993). 116 Vandals: Courtois et al.(1952); cf. Wolff (1936) 398–420; Wessel (2000).
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