Personality of Law or Ius Speciale Militum? Around the Origins of the Leges Barbarorum

For a long time, scholars have generally recognised the principle of ‘personality of the law’ as the mechanism by which people with different ethnic, cultural, religious and legal backgrounds could coexist in the Roman-Barbarian kingdoms. This principle is opposed to territoriality because it allows each individual to live within the same legal system while retaining the rights of the ethnic group to which he or she belongs. Although none of the ‘leges barbarorum’ which have reached us mentions it clearly, or considers it to be generally applicable, scholars of 19th (and 20th) century became convinced that the principle of personality determined the correlation between the different national laws, as well as between these and Roman law followed on in the former provinces of the Empire (in spite of the absence of the Emperors’ formal authority). This essay shows how, in reality, the principle of personality did not apply until the time of the Carolingian Empire. Before that, the relationship between the laws of the newcomers and those of the residents was rather regulated by the legal scheme general law/special law. Faced with the law used by the residents (i.e. the great majority of the population living under ‘vulgar’ Roman law), the barbarians retained their customs as special law whenever these could guarantee them a more favourable position. They had learnt this system through frequent and prolonged contacts with the Roman military world (as is well known, before the creation of the new kingdoms, the Barbarians had in fact long served in the legions or even outside as ‘milites foederati’).