‘I fought the law, but the superior cultural force won’: Cultural Hegemony of Law in the Early Medieval Era.

Volume 2 | Issue 5 - Money

Article by Simon Lax. Edited by Helen Lambert. Additional Research by Liz Goodwin.

‘Beowulf, my friend!... Your father Ecgtheow, by striking a blow, began the greatest of feuds. He slew Heatholaf of the Wylfings with his own hand... I settled your father’s feud by payment; I sent ancient treasures to the Wylfings over the water’s back; and Ecgtheow swore oaths to me.’  

Hrodgar, King of the Scyldings, in Beowulf, from line 456.

Firstly, it is incumbent on me, having complained bitterly at the iniquities committed against the medieval members of the New Histories magazine (elliptically here and explicitly here) to congratulate the general editors of bowing to the vox populi and the threat of strike action. At last, one can almost hear the freeing of chains from the oppressed medieval populations both of history, and of academia as the general title for this issue is not ridiculously slanted towards modernist historians.

The feuds, wergilds and oaths are as emblematic of Anglo-Saxon legal culture as jurisprudence and trial by peers are of ours. I intend to examine the ways pre-Roman barbarian society went from an oral legal culture to being the forerunners of the legal system we have today, codified and enacted through the power of stable polities and the charismatic authority of kings. Although the Anglo-Saxons had clear laws on wergild, it appears elsewhere in Visigothic and Salic Law: that of the Salian Franks, although the word for wergild is the Latin leodis. The case of barbarian law is interesting because it is one of those instances where various barbarian groups act similarly (making the barbarian label perhaps less problematic than it is usually in the early medieval period, where it is reductionist and relies on Roman stereotyping) in that they all have similar conceptions of how crimes should be punished. The substitution of money for the restitution of any crime is a significant step away from Roman law, with its insistence on execution for homicide, but it is paradoxically from Roman law that barbarian law draws the majority of its influence.

The barbarian successor states to the Western Roman Empire each had a well-developed system from before their entry into the Empire. Rival kin-groups, the dominant social unit amongst the barbarian elites, frequently quarrelled, sometimes escalating into feuds. ‘Feud’ is used frequently, but far more accurately for continuing violence and murders between two quarrelling kin-groups. These often continued through generations, and could not even in theory be stopped simply by royal order (Queen Fredegundis had some success when, instead of ordering a ceasefire, she had all of the remaining family members killed rather than allow the feud to continue). If feud is distinct from violence at all and not too distorted by effete Roman historians distressed at the sight of barbarism on their doorstep, it seems to be based on those long-lasting, cross-generational, and extra-royal authority aspects. In Frankish lands, the rachimburgii (law-speakers) memorised the law, and when feuds or disagreements arose, they would be called upon to speak the law from memory and pronounce judgement. The various barbarian codes written during the 6th and 7th centuries give evidence of this. Every indication from the Salian Law and the Visigothic Law suggests that law had been previously and following codification remained an oral tradition. The Franks and Visigoths did not need the law codified to run their courts, because their rachimburgii did not need to refer to a text for it, and the Frankish people did not need the comfort of law being codified: the system worked as it was.

Which begs the question: why bother codifying the law in the first place? This leads us back to the influence of Rome. The formulations of the Theodosian and Justinian Codes in the 5th and 6th centuries were as much an attempt to cement Roman authority over the barbarians after the sack of Rome as it was an attempt to solidify the laws: in effect replacing the political empire with cultural hegemony (a project which causes the current debates around the existence or otherwise of Late Antiquity). Laws in Antiquity tended to be restricted to ethnicities: if you were a Roman in a barbarian polity, you would be tried under Roman law, and if you were (say) a Frank, you would be tried under Salian law. This personal dimension, where who you were ethnically defined the law you would be subject to, is largely lost nowadays, but is crucial to understanding the difficulties that faced barbarian kings in their lands, split between a generally Roman populace, and a generally barbarian aristocracy.

There appear to be two reasons why kings like Clovis and Recceswinth might have decided to codify law. Firstly, practical problems may have arisen in disputes between Romans and barbarians, because the Romans had to accept the word of the Frankish rachimburgii for what the law was, in stark contrast to their own codified law. The distinction between the two types of law was probably not conducive to harmony. The second reason is more interesting though: in much the same way as barbarian king’s copied buildings, coins, and other tropes of Roman imperial power, they copied the codified legal systems: the law code of Euric is particularly good evidence of this, following Justinian’s laws in pattern closely. To be a barbarian king meant having to deal with the reality of Eastern Roman power, and to remake the barbarian court into something which could stand against its power as cultural hegemon and military adversary. The written law code of a barbarian people was completely unnecessary for the people it purported to give laws to, possibly useful in promoting harmony, but certainly useful in giving the representation of a barbarian king’s power in a way that the most powerful polity of the day could recognise.

*****

Numbers 25 and 26 5 of the Laws of Aethelbert of Kent:

25. If anyone kill a man who is in the act of thieving, he is to lie without wergild.

26. If anyone catches a freeman with the stolen goods on him, the king is to choose one of three things; he is either to be killed or sold across the sea, or redeemed with his wergild.

“In the laws of Anglo Saxon king Ine the wergild for killing a thegn was 1,200 shillings and for killing a free man it was 200 shillings.” – S. F. D. Hughes