Cambridge Ancient Hi.. - Index of

262 10. law in the western kingdoms
Sea. The variations in degrees of romanitas prevailing before a single barbarian
king established his throne on the soil of the empire must not be
forgotten.
i. law and ethnic identity
The notion that a law may endure as a distinct tradition within, and long
after, the empire, from the Iron Age to the late Middle Ages, runs counter
to one strong tendency in contemporary scholarship. As a reaction against
the notion of a single ‘Germanic’ cultural tradition, analogous to the family
of Germanic languages, scholars have argued that the peoples of early
medieval Europe were political entities created out of varied elements by
particular historical circumstances. A people, gens, of this period was, paradoxically,
often most obviously revealed to be a political creation by the
origin-legends that traced it back into the remote past. Moreover, as the
Lombard king Rothari’s Prologue to his Edict illustrates, a conception of a
legal tradition could be entwined with just such an origin-legend: he
brought together a conception of Lombard legal tradition, a king-list
extending back long before the migration into Italy, his own genealogy and
a brief note on the Lombard occupation of Italian land. 11 In the shorter
Prologue to the Salic Law, usually dated to the last third of the sixth century,
we even have a specifically legal origin-legend, a story to show what Salic
law should be by telling how it came into existence. Just as the origin-legend
of a people might need to pay heed to the disparate elements that made up
its population, so also, to take one example, Burgundian law might be much
less purely Burgundian than a first reading might lead one to suppose. 12
There is, then, a possible gap between perception and reality arising from
two truths – namely, that laws were often conceived as the laws of distinct
peoples and that ethnic identity was especially fluid during the migration
period. There is a further problem in that it was possible for the written law
of one people to borrow extensively from that of another. An extreme
example, from after our period, is the wholesale borrowing from the fifthcentury
Code of Euric into the eighth-century Law of the Bavarians, the
Bavarians being a leading example of an ethnic identity constructed in our
period. 13
The link between ethnic identity and the possession of a distinct law
varied greatly in strength. From the end of our period, both from within and
from the periphery of the Frankish kingdoms, come examples of laws which
did not claim to be the laws of a gens. The Ribuarian Law is the law of a duchy
11 Edictus Rothari Pref. (ed. Beyerle (1962) 16–17).
12 For example, Liber Constitutionum 2.1 (ed. de Salis, Leg. Burg., MGH Leg. i, ii.1 (Hanover, 1892), p.
42): ‘Si quis hominem ingenuum ex populo nostro cuiuslibet nationis aut servum regis, natione duntaxat
barbarum, occidere damnabili ausu praesumpserit . . .’ 13 See esp. Zeumer (1898).
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