GOTHS AND ROMANS IN THE LEGES VISIGOTHORUM J.H.W.G. Liebeschuetz A Minimal View of Importance of the Entry of the Barbarians into the Roman Empire There has recently been a tendency to minimise the part of the barbarians in the fall of the Roman Empire. Can the drastic transformation of the Roman world really be attributed to invasion by Germanic tribes (gentes), or are they perhaps the results of internal developments? Walter Goffart minimises the role of the gentes: “In this panorama of relentless shrinkage, barbarians as recruits or suppliants for peace could consistently be perceived as the desirable lower-cost alternative (to tra- ditional regular army units. The cost-benefit equation of their request offered an opportunity not to be missed. Vandals and Goths introduced no alternative to the nomen Romanum; they were not rivals, proposing a different way of life or competing for loyalty. The barbarians could be recruited into the imperial enterprise because they asked for nothing more than to carry it forward and share its blessings.”1 Contributors to a volume edited by A. Gillett largely defend this view.2 Bowlus describes the gentes as “the ‘imagined’ communities Wenskus and Wolfram presume existed”,3 Gillett argues that ethnicity is a circumstan- tial not a shaping identity.4 Kulikowski uses the inadequacy of our sources as an argument to deconstruct the gentes, concluding that when sources label individuals ethnically we cannot be sure what this means, but “what we can do is ask in every single instance what that ethnic identification meant in context”.5 Kulikowski’s scepticism is excessive. In the opinion of 1 W. Goffart, Barbarian Tides: The Migration Age and the Later Roman Empire (Phila- delphia 2006), 238 (shortened). 2 A. Gillett (ed.), On Barbarian Identity. Critical approaches to Ethnicity in the Early Middle Ages (Turnhout 2002). 3 C.R. Bowlus, ‘Ethnogenesis: the tyranny of a concept’, in Gillett 2002 op. cit. (n. 2), 241–256, on 256. 4 A. Gillet, ‘Was ethnicity politicized in the earliest medieval kingdoms?’, in Gillett 2002 op. cit. (n. 2) 85–121, on 86. 5 M. Kulikowski, ‘Nation versus army: a necessary contrast?’, in Gillett 2002 op. cit. (n. 2), 69–84, on 83–4. J.H.W.G. Liebeschuetz - 9789004256675 Downloaded from Brill.com09/25/2021 02:48:07PM via free access 90 j.h.w.g. liebeschuetz this writer, and of generations of earlier scholars, not all of them blinkered by rabid German nationalism, the sources do adequately show that the gentes were real, and historically important. The complex of duties and privileges that constituted Roman citizen- ship had been an essential instrument in the making of the Roman Empire. By spreading of Roman citizenship the Romans won the cooperation of provincial elites, and secured the stability of the Empire. Citizenship con- ferred enormous advantages to individuals who possessed it. When Paul faced a beating and torture at the hand of a Roman official it was enough to say that he was a Roman citizen and “I appeal unto Caesar”,6 for his case to be withdrawn from the local official to be transferred to Rome and the emperor. The spread of Roman citizenship was accompanied by Romaniza- tion. Although this term is now banned, we have no better alternative to describe the transformation in territories under Roman rule. Promi- nent among the changes were the introduction of the Latin language, and of Roman law. Roman law and citizenship were closely linked, because Roman citizens used Roman law. After the Constitutio Antoniniana of ad 212 all inhabitants of the Empire were Roman citizens, and all used some kind of Roman law. But in Hispania in the 6th and 7th centuries ad the situation had changed totally. Every Hispano-Roman was still in law a Roman citizen, but there were also some very important inhabitants who were not Roman citizens: the Goths. Their status was that of ‘federates’, that is allies of the Empire, and their identity was ethnic, i.e. Gothic, but they were the ruling people of the country, and their leader was its King. How did this coexistence of two peoples, the old rulers and the new rul- ing people, work? By far the best source is the law book of the Gothic kings. Historians have traditionally given both law book and kings the epithet Visigothorum, i.e. of the Visigoths, and so conveniently distinguish them from the Ostrogoths in Italy. However the name Visigoths was not used by writers earlier than Cassiodorus. It is a creation of the age of Theoderic.7 In this paper the convention of describing the western Goths as Visigoths is maintained, but that gens and its kings identified themselves simply as Goths. The oldest completely preserved edition of the Visigothic Code 6 Acts 22.28 and Acts 25.11. 7 It is used by Procopius, Bell. 3.2.7; 8.5.5. J.H.W.G. Liebeschuetz - 9789004256675 Downloaded from Brill.com09/25/2021 02:48:07PM via free access goths and romans in the leges visigothorum 91 dates from ad 654.8 This includes many older laws, but some of these have certainly been edited, and a good deal of the legislation of the earlier kings is likely to have been omitted as no longer relevant. The Leges Visigotho- rum (or more correctly Liber Iudiciorum) therefore represents the condi- tion of Spain not when the Goths first entered the country in the fifth century, but more than two hundred years later. Goths and Romans in the Leges Visigothorum All the laws are in good Latin and both the structure of the Code, and the legislation, are based on Roman models. The laws themselves probably include some Germanic elements,9 but these are not conspicuous, and even their identification is controversial. Scholars are agreed that the law issued and interpreted by the Gothic kings was essentially Roman.10 For our theme it is an important fact that the vast majority of the laws make no distinction between Goths (Gothi) and Romans (Romani), and what is more, only a very small proportion even mention either name.11 8 The latest codification was that of Erwig, issued in 683, revising the Code of Chindasuinth and Reccesuinth. The Code of Erwig has been preserved in two copies. The Code of Chindasuinth and his son Reccesuinth, the Liber Iudiciorum, was issued in 654. It also has been preserved in two manuscripts, and is thus the earliest Visigothic Code to have been preserved entirety. It greatly expanded the Code of Leovigild of 586, of which no copy has been preserved, but 300 of its laws, labelled as Antiquae have been taken over into the later Codes, not necessarily unedited. The first Visigothic Code of which some laws have survived in the later Codes, is that of Euric (Cod.Eur.), probably of 476. A few fragments of this Code have been preserved on a palimpsest. The standard text is K. Zeumer (ed.), Leges Visigothorum (MGH Legum sectio 1) (Hannover & Leipzig 1892) (= LV). 9 I. Velazquez, ‘Jural relations as an indicator of syncretism from the law of inheritance to the dum inlicita of Chindasuinth’, in P. Heather (ed.), The Visigoths from the Migra- tion Period to the Seventh Century (Woodbridge 1999), 225–259, traces the development of the Visigothic law of inheritance, concluding that the Kings’ legislation is basically the adaptation of Roman law to current conditions, but of Roman law which was compatible with Gothic, i.e. Germanic custom. The list of fixed payments of compensation for injury to different parts of the body in LV 6.4.3 looks Germanic to P.D. King, Law and Society in the Visigothic Kingdom (Cambridge 1972), 91; so does the taking of theft more seriously than robbery (ibid., 254–58) and the punishment of decalvatio (scalping or perhaps merely shaving off of hair; ibid., 90 n. 5); perhaps also the ‘Germanic’ dowry LV 3.1.5; Form. Vis no. 20. 10 “Neither feud nor self-help – the two inextricably connected in Germanic practice – was accorded a regular and legitimate place in the legal scheme of things.”, King 1972, op. cit. (n. 9), 86. “There is precious little trace in Ervig’s Code of the all-important position which, at an earlier Germanic stage, the kindred had held in society.” (ibid., 222). 11 I have argued that the legislation of Gothic kings was territorial and addressed to Goths and Romans alike from the beginning, in ‘Citizen status and law in the Roman J.H.W.G. Liebeschuetz - 9789004256675 Downloaded from Brill.com09/25/2021 02:48:07PM via free access 92 j.h.w.g. liebeschuetz Astonishingly, there are only three topics which have produced legis- lation required by the coexistence of two peoples: 1. A certain category of estates; 2. Intermarriage between Goths and Romans; 3. The status of manumitted Christian slaves of Jews. The majority of these laws relate to disputes arising over the two thirds of an estate assigned to a Goth and the third left to the Roman owner at the time of the original settlement, or perhaps settlements. Most of these laws even go back to the Code of Euric compiled c. ad 470, in Gaul, before the establishment of the Gothic kingdom in Spain,12 showing that the Visigoths were settled in Spain on the same terms as they had been in Gaul. The laws not found in the frag- ments of the Code of Euric are however labelled ‘Antiquae’, so they go back at least to the Code of Leovigild of c. ad 580.13 Later laws on disputes about landed property do not distinguish between lands of Romans and lands of Goths.14 It looks as if the distinction had become irrelevant for disputes over the ownership of most kinds of land, as indeed for legal disputes of almost any kind.