The uses of Carolingian law

The IHR early medieval seminar a couple of weeks ago was given by Tom Faulkner (who did his PhD at Cambridge) on ‘People and legal practices in the Carolingian minor law codes’. For these purposes he contrasted the major codes (Lex Salica, Lex Ribuaria, Lex Baiuwariorum and Lex Alemannorum), all of which we have 30 or more manuscripts of, with four other codes, of which we possess between zero and three manuscripts: the Lex Saxonum, the Lex Frisonum, the Lex Thuringorum and the ‘Ewa ad Amorem’ (edited by the MGH as the Lex Francorum Chamavorum).

Tom started off with the central paradox of the law codes: that we have lots of evidence for some of them being copied, but not of them being used, so there’s a debate about why they’re being copied. Patrick Wormald stressed the ideological uses of these texts, as a form of royal ideology and as ethnic engineering. embodying Frankish identity and history. (Patrick Amory has made similar points for Burgundian law). In contrast, Rosamond McKitterick (who was Tom’s supervisor) has pointed out possible links between particular manuscripts and laymen. In this paper, Tom was starting from the very interesting point of how some of the law codes might actually relate to Carolingian ethnic terminology.

Despite his title, he started out with one of the ‘major’ codes, the Lex Ribuaria, and was pointing out how little evidence there was for ‘Ripuarians’ other than in the Cologne area in the Carolingian period. By the C9, use of the Lex Ribuaria wasn’t just restricted to the ‘east’ or the ethnically ‘eastern’. It’s cited, for example, in the Le Mans forgeries from the 860s. There’s thus no obvious link of the Lex Ribuaria to a particular gens.

Tom also pointed out how hard it was generally to find the ‘personality principle’ (that people should be judged according to their ethnicity) in practice. There are a few professiones juris (statements of the law according to which one lives from Italy and occasionally from Burgundy, but that’s about all. And he put the boot into the idea that the composition of the minor law codes can be dated to post-802, when Einhard and the Lorsch Annals refer to Charlemagne having the ‘iura of the nationes’ or the ‘leges in the regnum’ written down. Given the context was a synod, this could be more about capitularies, and the need for laypeople as well as the religious to live according to rules, than specifically the law-codes.

Tom then turned to look at two of the minor law codes in some detail. The first is the frankly weird ‘Notitia vel commemoratio de illa quae se ad Amorem habet’ (Ewa ad Amorem). (There’s a text and translation here, though I haven’t had a chance to check it yet). This appears to be intended for some small territory in the Netherlands or Germany, and looks ninth century in its Carolingian vocabulary of office. It includes a couple of references to doing ‘as other Franks do’. It’s a fairly short text, and it looks more like some kind of collectively drawn up treaty or agreement than anything based on a gens. There are a lot of eighth and ninth century charters for the probable region involved (NE edge of the Frankish empire before the conquest of Saxony in the 770s) and Tom connected reorganisation of land-holding in the region in the C8 with this law. We have some C9 charters from the region (one for St Martin’s Utrecht, two for Werden) which include references to secular laws, although the terminology is fairly vague sometimes. And this goes with what a looks like a very complex ethnic pattern in the region. There’s a charter from 834 from Utrecht, for example, that includes one donor with a Danish name, and several donors and witnesses with Saxon names, and which refers to ‘Lex Francorum’. It’s all a long way from the classical legal history ideas of ‘German law’.

Then Tom moved onto Saxony. We have several accounts of the Stellinga revolt in 841 from Nithard and the Annales Bertiniani that link it to opposition to laws. Eric Goldberg has argued that this is the Lex Saxonum and the Saxon capitularies, but we don’t actually have a date for the Lex Saxonum or know how accessible it was (we only have two manuscripts, both C10). It might potentially be a very local law.

Tom was arguing it might be better to understand ‘lex’ as meaning a bundle of legal understandings in the form of a treaty rather than a specific code. The small amount of evidence we have on pre-Carolingian Saxon laws (from hagiography) looks rather contradictory. Rudolf of Fulda makes it look a very fixed, rigid system (e.g. intermarriage between classes punishable by death), whereas the Vita Lebuini Antiqua suggests a far more consensual and negotiated process of creating and updating law via assemblies. Even in this case, where there’s more of a link between the gens and the law, there are also other complicating factors visible, such as social status.

Finally, we had a brief mention of Hincmar’s ‘De Divortio’ and its hints at being able to choose between laws and modify them, independently of the ruler. This led onto a broader point, that we may need to rethink our ideas about the effectiveness of texts, that it’s not self-explanatory. We see a broadly-based demand for normative texts, and yet they’re not being used in any simple normative way. Some of the minor codes, for example, look like they’re negotiated additions to the main codes for local consumption, not intended to be independent monuments. Tom also suggested that the Lex Ribuaria was popular because it provided laws on things that Lex Salica didn’t cover (he mentioned stuff on charters and churches in the discussion).

All of this tied in with some of my recent work on the way that the Carolingians were obsessed with the idea of normative texts and yet thought you could play around with them in all sorts of strange ways. I suggested in the discussion that maybe they thought of laws as formularies – as a working tool, and we had various other mentions of treaties as laws. I’m not sure we came to any definite conclusions about the law codes – a lot of what Tom was doing, instead, was undermining our certainties. But maybe that’s the point: ‘barbarian laws’ isn’t a stable category, as tends to have been presumed, you do have to take texts one by one.

Finally, it seems to have been a particularly good seminar discussion for memorable quotes. We had Jon Jarrett on manuscript exchanges, the “great Carolingian interlibrary loan system”. Tom himself, on the Frankish codes having “less land and more murder” than Visigothic and Lombard law. And, of course, the inimitable Susan Reynolds, pointing out that people don’t refer back to written texts for precedents even when they have them, with the example of departmental minutes. What law often meant was rather “what old respectable chaps said”. Though perhaps for the Carolingians, unusually, it was what old respectable chaps should have written down, but somehow didn’t.

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4 thoughts on “The uses of Carolingian law

  1. Seminar XLII: tiny laws and constraining categoriesThe lecture that had swallowed me is done and so I can tackle some backlog. In order to make some ground I’m going to reluctantly skip over two Oxford papers I went to about which, for one reason or another, I just don’t have anything usefu…

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  2. I was intrigued by “of which we possess between zero and three manuscripts”. How do we know anything about a particular law code if we have no manuscript? Or does this refer to cases where the laws can only be reconstructed from secondary ources (you seem to say that’s o for the Lex Saxonum)?

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    • Tom said on his handout that there was no extant manuscript of the Lex Frisonum. According to the MGH edition, the text was first edited by Basil Herold in 1557, but the manuscript he used has since disappeared, and no others have been found. (Manuscripts that disappear between the early modern period and now are quite common, given the assorted disasters possible – this isn’t the only text we now know only from an early printed edition).

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