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CHAPTER 10
LAW IN THE WESTERN KINGDOMS BETWEEN
THE FIFTH AND THE SEVENTH CENTURY
t. m. charles-edwards
Anyone seeking to write an account of law in the western kingdoms
labours under two great difficulties. 1 The student of Roman law can find
comfort in the knowledge that his legal tradition was the creation of a political
élite which prided itself upon its literary accomplishments. It was both
a tool of government and one of the proudest manifestations of a literate
culture. 2 In the post- and non-Roman kingdoms, such comfortable assurance
is only forthcoming in modest portions. The study of Roman law
rests upon rich materials that have been analysed by some of the best minds
of every generation since, in the eleventh century, Irnerius set out to teach
the law of Justinian at Bologna. The written materials for a history of law
in the western kingdoms are, however, much patchier and their relationship
to the practice of law more uncertain. 3
The second great difficulty is partly a consequence of the first: the almost
irresistible temptation to judge all other laws in late antiquity by their relationship
to Roman law. Moreover, this temptation may take a particularly
pernicious form if one is induced to think of Roman law as, in some sense,
‘modern’ in outlook, so that the other laws can then be judged as relatively
modern or primitive according to how closely they resembled Roman law.
One form of this dangerous preoccupation is the ancient conception –
already well expressed, for his own purposes, by Cassiodorus – of the culture
of Europe as a fruitful mixture of Roman and Germanic (or Gothic). This
imposes upon the subject an over-simple dichotomy: the scholar is prompted
to scrutinize the texts for manifestations either of Roman or of Germanic
legal tradition. According to his particular preference, or those of his political
masters, he may be prone to exaggerate either the one or the other.
Although this traditional approach has considerable elements of truth
– more, perhaps, than its opponents allow – it ignores several crucial
1 In this chapter ‘Law’ with an upper-case initial letter will refer to a text of law; thus Salic law is the
law of the Salian Franks whether written or unwritten, but Salic Law is the text known as Pactus Legis
Salicae. I have been much stimulated, not always in directions of which they would approve, by the conversation
and the written work of Ian Wood and Patrick Wormald.
2 When the slave Andarchius of Greg. Tur. Hist. iv.46 is encouraged by his senatorial master, Felix,
in their joint literary pursuits, these are specified as ‘the works of Virgil, the books of the Theodosian
Law and arithmetic’. 3 Wormald (1977); Nehlsen (1977).
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