The Oldest Lombard ‘Trial’: A Re-Reading

Abstract

The idea that the Germanic peoples shared a common, ancestral, unitary and coherent legal tradition (the so-called Germanic law) at the time when they appeared on the frontiers of the Roman Empire is still widely spread among legal historians. It is generally thought that the Lombards also entered Italy using such a similar customary law, which was in stark contrast to Roman law. One of the most characteristic aspects would have been the way of settling disputes. Thus, the Edict of Rothari (643) would reflect a judicial procedure modelled to achieve mainly the purpose of avoiding feuds between clans and little or nothing addressed to the ascertainment of facts and the attribution of responsibilities, which was instead typical of Roman trials. The evidentiary phase, in particular, would have focused on ordalic procedures that left the judge with a very limited role in deciding the dispute. The lack of correspondence of this model with the (in fact meagre) evidence of practice has therefore led some to consider the Rotarian legislation scarcely reliable for a true reconstruction of the administration of justice in the kingdom. This essay proposes a rereading of the norms of the first Lombard edict, from which a different picture emerges: the space for a real ascertainment of the facts by the judge was far from insignificant and the procedural model adopted in Lombard Italy did not stray too far from that typical of late Roman justice in provincial contexts.