Cambridge Ancient Hi.. - Index of

arbarian and roman law 283
use of the phrase ‘the law of the place’, lex loci, and secondly by its implication
that the law under which a case is judged depends on the nationality of
the defendant. The first suggests that legal nationality had come to depend
on a version of the Roman concept of origo: as one belonged to a given civitas
by having been born there, whatever the origin of one’s parents, so here a
defendant born in Burgundy (apparently whether or not he would have been
regarded as a Burgundian according to Burgundian law) is to plead according
to Burgundian law, but his children, if they were born in Ribuaria, would
plead according to Ribuarian law. The second implication of this passage is
that a case between, say, a Burgundian plaintiff and a Roman defendant would
be judged by Roman law; this contradicts the provisions of the Burgundian
Liber Constitutionum. 105 It may well be that the rule in Lex Ribuaria represents
a crucial stage in the process of the territorialization of national identity in
Francia: by the eighth century, natives of the lands north of the Loire, apart
from the Bretons, were Franks, while those to the south were Romans
(Aquitanians). While in the fifth and sixth centuries Remigius could live and
die a Roman in one of the Frankish capitals, this was increasingly difficult for
his successors in the seventh century and impossible by the mid eighth. 106
The rule distinguishing between the jurisdictions of Roman and
Burgundian law applies to cases in which two parties are in dispute.
Disputes, however, are only one part of the law; another component consists
of those devices which people may use to give legal effect to their
wishes, such as gifts or sales. These legal acts are mostly never the subject
of a dispute. Here there seems to be more room for manoeuvre. Thus the
Burgundian Liber Constitutionum allows a barbarian who wishes to make a
donation to confirm it either according to Roman custom, by a written document,
or in the barbarians fashion, by witnesses. 107 Such a liberty to
choose would likewise make perfect sense of the Frankish Formulae which
contain model texts for all sorts of legal acts, very probably available just
as much to Franks as to Romans.
Some law promulgated by barbarian kings was intended to apply as
much to Romans as to barbarians: this is evident, for example, from the
preface to the Edictum Theodorici where it is made clear that the edict does
not abrogate from the leges and ius publicum – that is, Roman law – and that
the edict’s provisions are to be followed by Roman and barbarian alike. 108
The same is true of the Edict of Athalaric. 109 The identity of those subject
105 Prima Constitutio 3, where the leges nostrae which have been emendatae would appear to be the Liber
Constitutionum itself, since c. 8 refers to cases between Romans being judged by Roman law as if the
latter was quite distinct from leges nostrae. 106 Ewig (1958).
107 Liber Constitutionum 50.2 (ed. de Salis, Leg. Burg. 92).
108 Edictum Theodorici Regis ed. Baviera, p. 684. The identity of the Theodoric who promulgated the
Edict is disputed: see Vismara (1967), who favours Theoderic, king of the Visigoths; in favour of
Theoderic the Ostrogoth is Nehlsen (1972) 120–7; Nehlsen (1969).
109 Ed. Mommsen, Cassiodori Senatoris Variae, MGH AA xii, ix.18.
Cambridge Histories Online © Cambridge University Press, 2008