These barbaric codes of Roman law mark the passage of Roman law into
incipiently mediaeval stages. On the other hand, certain Latin codes of
barbarian law present the laws of the Teutons touched with Roman
conceptions, and likewise becoming inchoately mediaeval.
Freedom, the efficient freedom of the individual, belongs to civilization
rather than to barbarism. The actual as well as imaginary perils
surrounding the lives of men who do not dwell in a safe society, entail a
state of close mutual dependence rather than of liberty. Law in a
civilized community has the twofold purpose of preserving the freedom of
the individual and of maintaining peace. With each advance in human
progress, the latter purpose, at least in the field of private civil law,
recedes a little farther, while the importance of private law, as
compared with penal law, constantly increases.
The law of uncivilized peoples lacks the first of these purposes. Its sole
conscious object is to maintain, or at least provide a method of
maintaining peace; it is scarcely aware that in maintaining peace it is
enhancing the freedom of every individual.
The distinct and conscious purpose of early Teutonic law was to promote
peace within the tribe, or among the members of a warband. Thus was law
regarded by the people--as a means of peace. Its communication or
ordainment might be ascribed to a God or a divine King. But in reality its
chief source lay in slowly growing regulative custom.[366] The force of
law, or more technically speaking the legal sanction, lay in the power of
the tribe to uphold its realized purpose as a tribe; for the power to
maintain its solidarity and organization was the final test of its
law-upholding strength.
Primarily the old Teutonic law looked to the tribe and its sub-units, and
scarcely regarded the special claims of an individual, or noticed
mitigating or aggravating elements in his culpability--answerability
rather. It prescribed for his peace and protection as a member of a
family, or as one included within the bands of _Sippe_ (blood
relationship); or as one of a warband or a chief’s close follower, one of
his _comitatus_. On the other hand, the law was stiff, narrow, and
ungeneralized in its recognized rules. The first Latin codifications of
Teutonic law are not to be compared for breadth and elasticity of
statement to the Law of the Twelve Tables. And their substance was more
primitive.[367]
Public-domain text, read in full here on John Shaqi.
The Mediaeval Mind (Volume 2 of 2): A History of the Development of Thought and Emotion in the Middle Ages — John Shaqi
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