Emperors, Jurists and Kings: Law and Custom in the Late Roman and Early Medieval West
By P. S. Barnwell
Past and Present, No. 168 (2000)
Introduction: The character and workings of the laws issued by the ‘barbarian’ kings who replaced the Roman authorities in the western provinces in the fifth and early sixth centuries have long been the subject of debate. Although the topic has until recently been almost exclusively the preserve of legal historians, and the literature is both technical and inaccessible, it is intimately connected with the wider question of the way in which the world of antiquity was transformed into that of the early middle ages.
If the laws of the ‘barbarian’ kings represent Germanic tribal custom, their promulgation in territories previously subject to Roman law would suggest that the empire had ‘fallen’ and that Roman traditions counted for little. If, on the other hand, those same laws were at least in part derived from Roman customs, a very different picture of the end of the empire would be suggested: rather than a simple confrontation between Roman and ‘barbarian’, there would have been an accommodation between the two, leading to a more gradual (though still ultimately fundamental) transition from the empire to the successor kingdoms.
That transition did, of course, involve much more than the law – there are many other administrative, economic, social and religious dimensions to the question – but legal development is a crucial aspect of the subject, as it touches not only upon the activities of the elite who made and administered the law, but also on the lives of all those subject to its provisions.