Cambridge Ancient Hi.. - Index of

284 10. law in the western kingdoms
to a law cannot, however, be inferred from the occurrence of the word
‘edict’ in the title: Chilperic’s Edict appears to apply to Franks living to the
south of the Garonne. 110 Like the Pactus pro Tenore Pacis of Childebert I and
Chlothar I, it refers expressly to Lex Salica. The Edict of Rothari contained
lex. 111 For the Franks and the Lombards, therefore, the Roman distinction
between lex and edictum did not persist in the same way as it did under the
Ostrogoths.
An essential distinction when discussing the question of who was
subject to a particular law is between primary and secondary rules – that
is, between rules that apply directly to the population in question and rules
directed at judges and other officials concerned with the administration
of the law. Burgundian law has, as we have seen, a particularly clear statement
of the respective jurisdictions of Roman and barbarian law;
Burgundy also provides us with a text of Roman law, the Lex Romana
Burgundionum, which makes no such appeal to royal authority as does the
Liber Constitutionum. 112 Yet the Burgundian kings naturally had no hesitation
in making secondary rules which applied as much to Roman officials
as to Burgundians. 113 The distinction between primary and secondary
rules is therefore valuable for overtly royal legislation. It must, however,
be handled with care when dealing with Frankish law. The normal rule in
Lex Salica was, as we have seen, of the form, ‘If anyone has done X, let
him be judged liable to Y’; it is therefore a rule addressed to judges. Yet it
is not secondary in the same sense as a royal decree directed at officials.
The standard secondary rule is a normal part of a bureaucratic state with
a central authority seeking to direct a body of officials. Lex Salica is mainly
a set of instructions from men admitted to be wise in the law addressed
to those who need training in knowledge of the law. It is not so much a
part of a bureaucratic state as a partial written expression of the way in
which a legal tradition is handed on.
vii. burgundian and gothic law
Among the southern barbarian kingdoms, the law of the Burgundians
made the most overt challenge to the imperial monopoly of law. In form
and style, and also in its perception of itself, it aped the imperial constitutions
collected together in the Theodosian Code. 114 The legislator refers to
110 Beyerle (1961). 111 Edictus Rothari Prol.; cc. 12, 171, 386.
112 Thus the evidence for royal responsibility for the Lex Romana is to be found in the Pref. (c. 8, ed.
de Salis, Leg. Burg: 32) to the Liber Constitutionum rather than in the Lex Romana itself.
113 Constitutiones Extravagantes xix (in the form of a letter from Gundobad to all counts), xxi.11 (ut
omnes comites, tam Burgundionum quam Romanorum).
114 Liber Constitutionum is the original name of the code: Pref. ed. de Salis, Leg. Burg. 30.
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