The influx of Germanic tribes into Europe, which had begun even before the turn of the 3rd century, produced many groups who charged for territorial dominance after the collapse of the Roman Empire, wedging against one another to define the areas which would soon characterise the kingdoms of medieval Europe. This process, which stabilised before the end of the 6th century, was a destructive force to many elements of Roman culture.
The vibrant interdependence of cities and territories in the classical world ended, and focus shifted much more locally, with tribal boundaries inhibiting the relative freedom of the Roman empire. There was a decline in countryside settlement, as civilisation moved to hide itself within the more reliable security of city walls in a less certain world, thus shutting itself off inside its strongholds. The heretofore wavering capability of knowledge and learning in Roman Europe collapsed totally, along with rates of literacy.
Decline of Law as an Academic Pursuit
In the Early Middle Ages, which, for purposes here, I will define as the 6th to 11th centuries AD, the legal picture in Europe is difficult to ascertain and varied across the continent, thanks to the inhomogenous and introspective development of its kingdoms. The Roman notion of a jurist, an academic specifically focused on learnedness in law, fell away to be superseded by this local focus: local councils and local authorities concerned with local customs, largely passed on by oral traditions.
A single 6th century copy of the Digest, part of the Byzantine emperor Justinians great codification of Roman law known today as the Corpus Iuris Civilis, alone survived in Pisa. This is the source from which all manuscripts of the Digest existing today emanated, and is evidence that the Digest was certainly distributed in Europe in Justinians age. And yet, all indications are that it stayed undisturbed throughout the Early Middle Ages. That there were no attempts to understand the complex Digest is a symptom of the decline in learning standards, and the slackening of social structures.
Roman Law in the Germanic Kingdoms
There were, however, several elements of Roman law which continued to survive in Europe after the fall of the empire. In some Gothic areas in which former Roman subjects lived, the Gothic kings found no qualms with Roman thinking. Here there was a kind of awkward concurrency of legality, wherein the former Roman subjects officially continued to live under a law system combining Roman laws with the laws of the Germanic kings, while the Germanic people lived solely under the rules of the latter.
Within these kingdoms, there were some attempts to collect the Roman laws under which the Roman subjects would continue living. Some of these attempts predate Justinians aforementioned Corpus Iuris Civilis, which was started in the late AD520s, and were perhaps an influence behind it.
Lex Romana Visigothorum
The Visigothic kingdom in Spain and the south of France, under the rule of King Alaric II, promulgated such a compilation in 506 known as the Lex Romana Visigothorum. This incorporated passages from early attempts at Roman codification such as the Codex Theodosianus, the Codex Gregorianus, the Codex Hermogenianus, and other sources of Roman law, all backed up by a contemporary interpretations explaining how the laws must be understood.
Despite the repealing of the Lex Romana Visigothorum in 654 by Recceswinth (who replaced it with the Lex Visigothorum Recesvindiana, to be implemented amongst Romans and Visigoths alike), it continued to survive in the southern France, where it was a major mechanism for the survival for Roman law through the Middle Ages.
There was a second such (pre-Justinian) attempt at collecting Roman laws amongst the Western tribes: the Lex Burgundionum, representing the earliest integration of Roman law with that of the Germanic tribes. It was compiled in the late 5th and early 6th centuries by the Burgundian kings Gundobad and his son and successor Sigismund, with the intention of being applied to both their tribal members and the Roman subjects living with them.
Drew (1972, p7) regards it as ultimately one of the most successful barbarian tribal codes, as it was allowed to remain in use after the Frankish conquest of the Burgundian territory, through to the 9th century. In the aforementioned context of illiteracy, poor learning, and the breakdown of communication, however, one can reasonably assume that these codes had a relatively small effect, and that the survival of Roman law in this period was fragile at best.
The Corpus Iuris Civilis in Italy
The 554 official enactment of Justinians codification in Italy, some 20 years after his victories over the Goths, meant that Italy was somewhat distinct from this association with Germanic codes. The conquest was short-lived, and the Germanic tribes soon regained control of the areas Justinian had won. However, some areas of Italy (especially the Greek-speaking parts of southern Italy) maintained contact with the Byzantine empire even after the invasion of the Lombards in 568 (despite the Lombard kingdoms lack of interest in Roman institutions), and so some elements of the Corpus Iurus Civilis (excluding its most complex element, the Digest) remained active and used in these regions through the Early Middle Ages.
The Catholic Church
The Church was undoubtedly a major instrument in this survival, as an institution wherein Roman law stayed relevant throughout the age. In the middle of the 9th century, the Church produced the Lex Romana canonice compta, a collection of laws which were of importance to it – displaying a near total Roman influence and substantial input from Justinians Corpus Iuris Civilis too. Indeed, although the Churchs attention was focused most strongly in Italy, it managed to carry the influence of Roman law to even the more remote parts of the former Roman Empire, where, unlike the Gothic regions, tribal authorities had not accommodated any elements of Roman legal practice.
In Britain, for example, the teachings in the Poenitentiale of Theodore of Tarsus, a late 7th century Archbishop of Canterbury, show clear influence from Roman law, particularly in the areas of slave status, compensation for injury, and marriage requirements. One can imagine that these legal issues were discussed and dispersed among Theodores students and their followers in the school he formed in Canterbury.
The Lombards and the Franks
From the 8th century onwards, there is more evidence for some integration between Roman laws and Germanic laws, especially in Italy and in areas in close connection with the Catholic Church as described above. The early 8th century Lombard king Liutprand – the first Lombard to be a Catholic, and so, indirectly, the first to be open to Roman institutions – promulgated law codes which showed a heavy Roman styling. The Lombard kingdom was much more centrally organised than other Germanic kingdoms, and was undergoing economic and commercial growth which necessitated laws in areas previously unconsidered by Germanic legislation – especially laws regarding obligation.
The Franks, who conquered the Lombards under Charlemagne, showed a much less coherent influence of Roman laws and relied mostly on Frankish customs. Again, though, when there was Roman influence, it occurred with a focus on the laws of obligation, and one can observe that a rebirth of interest in Roman law coincided with a growth in commercial activity and its essential governance. The Frankish Lex Romana Curiensis, enacted around 800, shows the piecemeal nature of the Roman character here, making reference to “Scifola” and “Gagius”, misspelling the names of the great Roman jurists Scaevola and Gaius.
A regeneration of Roman law?
Although it is clear that Roman law in the West did not die totally with the end of the Empire, its survival was fragmentary and unsubstantial. The specific influence of many Roman laws, and particularly Justinians codification, was limited to Italy and the whim of the Catholic Church. Law generally shifted to become a local issue, where rules were seen as a kind of liberal background before which cases could be decided – a guidance key, instead of a solidly applied system.
The Holy Roman Empire, born under Charlemagne and the Franks, set the scene for an inclusive and widespread empire, which, thanks to more central organisation and extensive trade, essentially made the first steps towards a revival of Roman law. For this process, however, one must look to the Italian scholars of the High Middle Ages, and their admiration for the Corpus Iuris Civilis.