Paths of Western Law after Justinian
This article relates the story of the paths of Roman law from the periods immediately before the gradual dissolution of the Western Roman Empire following the death of Justinian I in 565 A.D. through the several centuries thereafter. This period witnessed an acceleration of the absorption of Roman law into the customary law of the various Germanic groups that now occupied and ruled the former Roman territories, and the recitation of such new law in the form of new law codes promulgated by three major Gothic groupings: the Lombards, the Burgundians and the Salacian Franks.
In the main, the new Germanic rulers were attentive to the need for laws that would suit both (1) German customary law as followed for many centuries; with (2) the Roman law to which their Roman constituencies had adhered. Importantly, even such Roman law as would be applied was only a bowdlerized version of Justinian’s contributions, as the Digests and other interpretative parts of the comprehensive Corpus Juris Civilis were somehow lost. Thus for the first several centuries of Germanic rule, the only remnant of written Roman law available was the blunt- edged summarization contained in the Code of Justinian.
Germanic law was revolutionized by the new experience of governing stable agricultural communities. The Gothic codes also advanced continental law in many ways that today can be seen as building blocks of emerging western law. Perhaps most significantly, the three law codes studied here demonstrate a preferment for resolution of disputes by means of composition (compensation), and included monetary incentives therefore. By such means the Goths were largely successful in turning their culture away from its kinship origins of violent justice, and towards systems of composition for injury. Further to this end were the adoption of wergeld as an appropriate compensation for a homicide, and also the widespread use of codified tables of composition to be associated with particularized wrongs. These gave an increased likelihood of evenhanded administration of justice, and also a money incentive for the family of a victim to forego mayhem to solve disputes. In addition to blood feud, many other ancient Germanic practices, such as trial by boiling water, were tamed or eliminated in the pursuit of new agricultural societies. And the codes adopted remarkably modern distinctions between intentional and accidental harm, as well as negligence standards that employed uncannily modern standards of duty and proximate cause.
In sum, the law codes of the Lombards, the Burgundians and the Salacian Franks provided a civilizing legal bridge between the fall of the Western Empire and the more westernized law codes that would follow in the later Middle Ages.
Date of this Version
Stuart Madden, "Paths of Western Law after Justinian" (January 31, 2006). bepress Legal Series. bepress Legal Series.Working Paper 925.