Capucine Nemo-Pekelman – Response Paper

Response to Visigothic Symposium I, Panel 2: Law (pdf)

(*En Portugués aquí; En Español aquí; En français ici)

French students of Law are taught to distinguish three types of codifications: codification-collection, putting together existing laws and customs; codification à droit constant, that repeal existing laws by rewriting them without reforming positive law; and codification réelle, that both reforms and rewrites laws and customs. Some say that only the third codification is “real”. The Code civil of 1804, by which French private law was substantially reformed and written from scratch, provides the paradigm of a “real” law-code. Obviously, things are more complicated. Indeed, historians know that long before the Napoleonic era, long before even the Middle Ages, codifications-collections too were creative works. Indeed, why would a formal authority plan a codification if it was not to imbue it with an additional, if not an alternative, meaning to that of the original laws? Private collections may have addressed practical and judicial needs only, but the official ones certainly did pursue additional goals. Which goals?

Regarding law-codes in the Early Middle Ages, Patrick Wormald argued that some of them were literary works serving ideological and political purposes. Michael J. Kelly elaborates on this hypothesis regarding the Liber Iudiciorum. He focuses on the version from King Recceswinth and his father Chindaswinth: the LI was a literary work using literary methods that were meant for a specific milieu during what he calls the “Isidorian moment” (c. 600-660). The LI created a historical narrative for reasserting the sovereignty of Recceswinth.

Here are few examples of the means it used: Most of the five hundred laws contained in the LI are qualified as antiqua because they have had the names of their legislators erased. This was a rhetorical means to collectivize the unnamed as past and to exclude them from the present. Secondly, book I (the so-called Visigothic constitution) is anonymous and its laws are not even described as antiqua. It is because the Visigothic constitution happened to be difficult to enforce. Recceswinth carefully decided not to tie his legitimacy to the prescriptions contained in it. Thirdly, book II, which lays out the rights and duties of the kings and judges, is almost completely made of laws of Chindaswinth and Recceswinth. The two kings are recognized as the bringers of laws approved by Catholic justice. Book II serves to promote the authority of Recceswinth in front of religious leaders and to restore the image of his father.

The essay from Ruth Miguel Franco is closely connected with the one from Kelly. According to P.D. King, the manuscript discussed in the correspondence between Recceswinth and Braulio (the epistles 38, 39, 40 and 41) would have been the LI promulgated in 654. Miguel Franco takes that idea forward, comparing the working methods that were used in making the LI with the work of Braulio (mainly his Epistolae and Renotatio). The role of Braulio in the making of the LI would have been to organize the material into books, titles and laws. In Book I, he would have transformed a coherent literary text into a text cut into laws. As in the other compositions from Braulio, the LI was not only meant to be practical but to be effective literarily, aesthetically, historically and politically. A conclusion that seems to reinforce Kelly’s.

The partial attribution of the plan of the LI to Braulio must certainly be taken into account when analyzing the sections dedicated to Jews in the LI. Indeed, we already know about the active participation of Braulio in VI Toledo and in the writing of the oath for Jews. The LI’s arrangement and inclusions might have pursued specific aims for the policy against Jews that transcended the aim of the original laws.

Kelly and Miguel Franco warn us that the LI (as other legal codes and canonical collections from the Early Middle Ages) was a well-planned formalization of authority and a historical and literary work. I wonder if we could also, using the precedent of the Codex Theodosianus (438-439), add other purposes, such as designing a new social world divided according to religious criteria. Indeed, the Codex Theodosianus isolated in Book 16 Christian “heretics,” Jews, and “pagans,” without any technical and legal justification. Furthermore, the Codex Theodosianus placed Jews and “pagans” close to the title dedicated to criminal heretics, with the aim of criminalizing them too. Not to mention the constitutions that were simply “forgotten” by the compilers, the Codex Theodosianus gave new meaning to the original imperial constitutions, by copying only a few passages from them and reassembling them (through conjunctions that sometimes modified the original logic). With regards to Recceswinth’s policy related to Jews, I wonder if the LI used the same kind of strategies. In other words, did the law-code try to describe a divided world, exaggerating what the original laws themselves had created?

Finally, I think we should not oppose too strictly the ideological/political/religious aspects of the LI to its judicial, juridical and practical aspects. Indeed, law by itself is also very political. Turning again to the example cited earlier, the Code civil of 1804 was important not only because it revolutionized the image and place of authority, but also because it deeply transformed French private law, imbuing it with political ideas of equality and private property.

The essay from Ksenia Bonch Reeves addresses interesting issues regarding the image of the enemies of the Catholic faith. With the Chronica Albeldensia and the Chronicle of Alfonso III (ninth century), the Kingdom of Asturias claimed itself to be the sole heir to the Visigothic Kingdom regarding both political and legal continuity. Bonch Reeves shows that both chronicles draw on the LI when the latter addresses Jews. They do not depict Muslim enemies as the military adversaries that they were in those days, but rather as inner enemies, like Jews were accused of being in the Visigothic Kingdom. Indeed, the chronicles speak the words of the LI, using terms such as “heresy,” “perversion,” “perfidy,” “fraud,” “astuteness,” and “deceit” to describe Saracens. No doubt that such a shift meant a lot to contemporaries. It allowed them to highlight the permanence of danger that took different forms (nowadays, that would be the word “terrorism,” a floating signifier which describes what may be significantly different enemies [the others] of modern democracies).

The essay from Paulo Pachá highlights and rightfully denounces what he calls the “MoNo model”. The MoNo model, Monarchy versus Nobility – is an historiographical vision interpreting the succession of the Visigothic kings throughout the seventh century as a perpetual movement from a context of monarchical centralization (and weakened nobility) to a context of strong aristocracy (and weakened monarchy). We could present as an example of this pendulum Chindaswinth’s reign as a first movement and Recceswinth’s as a second. Framing every Visigothic political process as the result of a recurrent conflict between monarchy and aristocracy is certainly ahistorical. In particular – Pachá warns – it prevents us from investigating and explaining both the process by which legislation was created and specifically the process behind the Liber Iudiciorum. If we refer to the evidence in the LI, there is no rupture between the reigns of Chindaswinth and his son Recceswinth, but rather a continuity. The continuity was ensured by the collective aristocratic consensus that sustained both Chindaswinth and Recceswinth in producing and disseminating the laws, as it appears in VII and VIII Toledo. In order to enforce legislative power in the provinces, aristocratic consensus and cooperation were an essential feature.

Pachá rightfully contests that the Visigothic kings acted as autocrats when it came to the making of laws and codes. Even if legislation was not issued from the deliberation and the vote of an assembly, the “legislator” king was never alone. As pointed out by Peter Brown, the princes in autocratic regimes – the Late Roman Empire, the French Absolute monarchy – never rule alone top to bottom.[1] Kings needed to persuade the local elites in the provinces to collaborate, upstream and downstream, for their orders to be effective and for their legitimacy to be safeguarded.

NOTES

[1] Peter Brown, Power and Persuasion in Late Antiquity: Towards a Christian Empire (Madison: UW Press, 1992), Ch. 1.

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