Cambridge Ancient Hi.. - Index of

law in the western kingdoms 261
considerations. One assumption which needs to be questioned is that the
Roman empire desired or, if it did desire, was able to impose its law in a
complete and thoroughgoing fashion upon all its provinces. In the west
we do not have the evidence provided by Egyptian papyri to demonstrate
that provincial law might take a form very different from that prescribed
by Roman jurists and emperors. 4 The last fifty years have seen notable
studies showing that late Roman law was not identical with that taught by
the great jurists, but this has been done by developing the notion of a
vulgar as opposed to a classical Roman law. Moreover, the vulgarisms
have not been revealed by an examination of legal practice in remote
regions of the empire but by a close reading of the Theodosian Code.
Emperors, rather than mere provincials, were the prime vulgarizers. 5 It is,
no doubt, very uncertain how much weight one can put on evidence from
a much later period, but one body of evidence does at least raise serious
questions about what went on among those remote western provincials.
Welsh (earlier called British) law is mainly known from texts of the twelfth
and thirteenth centuries; 6 yet it was the law of a people whose ancestors
had formed part of the population of a Roman province, and a people,
moreover, which had escaped being subsumed into a kingdom founded
by barbarians from beyond the Roman frontier. Admittedly Gildas
remarks that they superficially accepted Roman law, harbouring inner
resentment, but he implies that they accepted it none the less. 7 One might
suppose that the law inherited by the Britons should have been a debased
descendant of Roman law; moreover, there are reasons for thinking that
elements of Roman law did indeed survive the end of Roman power in
Britain; 8 yet by the twelfth century its resemblances to Irish law were far
more obvious than was any debt to Rome; they underline what Gildas
described as the superficial nature of their adherence to Roman law. 9 If
we allow that legal traditions may endure for centuries – so that they are
not simply remade with each generation – Welsh medieval law can be used
to give weight to the suggestion that, at least in one part of one western
province, what survived Rome was remarkably un-Roman. Already in the
sixth century Venantius Fortunatus could contrast the iura Britannica
imported to Armorica from Britain with publica iura. 10 A study of law in
the western kingdoms must, therefore, extend all the way from
Theoderic’s Ravenna to the western parts of Britain and over the Irish
4 On Egypt, Jolowicz and Nicholas (1972) 405–6.
5 Levy (1951) 29–34 on Constantine and the distinction between dominium and possessio; but see above,
pp. 258,9, for a critique of Levy’s views.
6 Jenkins (1986) provides an excellent translation and commentary on some Welsh legal texts;
Charles-Edwards (1989) gives a brief survey of the texts. 7 Gildas, De Excidio Britanniae c. 5.
8 Davies (1982). 9 For some examples, see Binchy (1956).
10 Venantius Fortunatus, Opera Poetica ed. Leo, MGH AA iv.1 (Berlin, 1881), iii.5, praising Felix,
bishop of Nantes.
Cambridge Histories Online © Cambridge University Press, 2008