Germanic Law
























Normannii
Thiud &
Reik


 



 
 




 


 


 











Law and Order in Middle Earth

Amongst the many Germanic peoples, and
throughout the span of time from the Indo-European Migration until the close of
the Viking Age, Tiw was revered and remembered by His Folk. In the beginning, Skyfather he was heit, the
Creator and Measurer. In this form, He was cognate to Dyaus of Vedic myth and
the elder Dyus Pater of Rome and Zeus of Greece, the
Skyfather and progenitor of Creation.[1]

However, by the time the Eddas were scribed, His memory had faded and His myth
were transformed into that of a God of War, a son of Odin, and patron of the
Thing. That the ancient Sky Father was
likely also the Chief of the Gods, and probably honored together with the Earth
Mother, seems beyond doubt.[2] In this He shares a place, albeit later,
with Woden- as both are described as Gods of War; but Tiw is less about
conflict of “war" and more about the mechanics of recht (right) and thus the
resolution of conflict, a juridical function.[3]
That he is Heavenłs guardian is
exemplified in even the Old Icelandic rune poem, where he is called “Ruler of
the Temple."[4] Moreover, within His first function role as
King, he is remembered in the Anglo Saxon Rune Poem, where it is noted that he
keeps Troth with Athelings. As Saxnote[5],
He is specifically recalled in geneologies, within the royal lines of the
Angles and Saxons.[6]



 

But it is in this underpinning as Cosmic
Orderer, and His attendent roles as Measurer and Juridical Chief that are the
concerns this discourse.  Whatever else is to be said about TiwÅ‚s role in Germanic
society, His patronage of Thing and His arbitration of battle is unchallenged.[7] As the Patron of the Thing, he is concerned
with clear resolution, honor, and the preservation of thew [A/S-Customary
law]. That form of law, the adveresarial
Common or Customary law, is the remnant gift of Tiw in the modern world. Since the association of Tiw and the Thing is
fairly broad and well-documented, it will be left to others to explicate. The Common law, the governing principle, is
what has often been neglected by scholar and student alike. The Germanic birthright of the Common Law is
an inheretence as old as the roots of Indo-European society itself.

 

In the year 400 of the Common Era, the political
of climate of Europe had been dramatically
transformed by the dissolution of the Roman Empire. As Roman Legions withdrew from their
garrisons in England and Germany, in a vain attempt to
stabilize and defend Rome and her inner
provinces, social breakdown ensued across the continent and island. [8]

Historians often euphemistically
call this period of European history the Dark Ages. However, as nature abhors any vacuum, the
dormant sub-cultural dynamic that had been theretofore suppressed reemerged as
this Roman overlay withdrew. This “dark
time" revived the Germanic sub-stratum, and revived the socio-legal systems
that were to spawn modern representative democracy and personal liberty in Western Europe.[9]

 

Unlike the philosophical contributions to the
legal history of the West which sprung from Codified (civil) law visa-via Rome
and Greece, the Celtic and Germanic components embodying the Common law were
more influential in shaping our modern adversarial system, bodies of jurors,
and the concept of legal equality before the law. The “barbarian invasions" of these Germanic
tribes sweeping down on the faltering Roman Empire brought with them not
only the languages of the Northlands but also their customs and
traditions. These political and legal
attitudes stood in sharp contrast to the legis

[Latin-“written law"] of the written code and the rigid adjudication of the
Praetors [Latin-“Judge"] in Roman law.[10]

 

The origins of these Germanic customary laws, which
can be called collectively “thew" reach back into the mists of the arrival of
the Germanic peoples, during the Indo-European migrations of the Corded Ware
and Axe and Beaker Cultures.[11] Between 1200 and 800 b.c.e.,[12]
the Germanic Tribes that settled throughout Northern Europe developed complex
social customs for settling disputes, maintaining the frith (peace), and
governing themselves in an early admixture of constitutional monarchy,
republican democracy and martial oligarchy.[13] Despite a class system, which maintained a
noble elite of jarls and thegns, an
intermediary class of freemen, and an underclass of thralls, to the common
train of thought, all power inherently derived from the Gefolge (Old High German-“The
people") as a collective.[14] There was no more important element of this
concept of thew than in their regard for the interrelations of the folk. This appreciation for the rule of law
extended to all elements of society and this regard evolved into the legal
complexities of Germanic society, its tenacious use of adversarial legal
process under a body of common law, and the folkÅ‚s supernatural regard for “the
law" and its attendent lordship.[15]



 

Nature of Law

This belief in the numinous power of the law
derives from the fundamental cultural concept of Germanic law. The very word
“law" derives from the Proto-Indo European ur-log (*Proto Indo European
-reconstructed) that literally means “that which has been laid down". This notion of law was tied closely to the
Germanic conception of time. In their
worldview, the Germanics saw the law as the weight of force given by past
actions, in a layering effect upon the present.
Thus law was built up over time, by decisions and actions reached in the
past, which guide and direct the flow of the future.[16] Because this model of fate was not
preordained, but rather, shaped by the weight of forces in the past, it brought
the Germanic legal system into a form of “ancestor worship" of the law; law was
revered as customary decisions to be upheld because they had already been set
in the Well.[17]

 

The Source of Law

Legal power thusly resided in the hands of all
freemen who had the power to affect the Web of Wyrd through their actions and
interrelations. Kinship, oath-relations,
and tribal allegiances all had their contributions to the social structures
that defined Germanic law and how it related to the individual. The community ultimately met “at Thing", a
legislative and judicial assembly, to deliberated as peers (Thingmen).[18]
Tacitus describes these councils from His
survey of the borderlands on the Rhine and the foedori in His records and
annals in the first century:

 

[They
held] great assemblies where the community was summoned together to render

judgments in legal matters, set the laws, and
resolve conflicts between families and


individuals. All freemen
participate, both noble and farmer, as it is their duty.[19]

 

This assembly was both religious and legal, as
the society viewed such aspects of life as inexorably entwined, an extension of
their worldview, and the presence of their Gods was integral to the natural
order.[20] The belief that the God of the Thing (Teiwaz,
Tyr, Tiu [L- Mars Tingus]) would preside over the decisions reached at thing
and make them holy through the actions of the folk, manifested in the
designation of the heathen priesthood as the sole instrument of meting out punishments
allotted in Thing of a capital nature.[21]

 

Mechanisms of Law

This reliance on the body of the whole, gave
rise to the jury system. The notion of
onełs peers sitting in panel to judge a case is directly extracted from the
quarter courts (var-things and leith-things) of the Germanic tribes.[22] These local assemblies would meet in the
spring and fall and decide local issues, and discuss the matters that needed to
be addressed or decisions reached at the great assembly of Midsummer, the
Althing. Decisions of these quarter
courts could as a matter of right be appealed to the whole at Althing, but such
an appeal risked taking the issues outside the local community and thus the
context of the dispute may be lost, greatly limiting the effectiveness of any doemi (ON- Decision) reached. Since the Germanic people regarded law as
being sprung from a collective acceptance of right and wrong, amongst fellow
tribesmen, the closer to the local unit that the decision was made in, the
better the decision reached usually would be.



This doemi or doom, the compilation of judgment,
carried with it the weight of legal and religious force and is the source of
our modern concept of deeming. The
Germanic peoples maintained this practice until the coming of Christianity. The process of law became an ingrained
Germanic axiom in the formative pre-Christian period, and the binding of all
men “in law" gave rise to the adversarial law we now practice. Despite the “divine right" asserted in the
Christian Feudal period, the Germanic conceptions of law and personal liberty
were to linger in the recesses of the subconscious of Europe, and manifested in
documents like the Magna Charter and Declaration of Independence and the
writings of John Locke and Thomas Jefferson.



 

Process of Law

The Germanic adversarial legal proceedings
although very formalized, varied from region to region. However such actions usually retained three
essential elements, (1) a panel of jurors from amongst the people at large (2)
a compurgation of the issues and (3) an ordeal-either symbolic, physical, or
spirtual. The panels of jurors, the
Thingmen, were selected from amongst the freemen of the tribe, who had no
familial interest in the case to be heard.
All cases were presided over by a forespeaker, for each side in the
dispute who was the primary advocate. He
was assisted by “oath helpers," people who stood in support of one of the
parties, and usually drawn from one of the Kindreds (extended family) or those
allied to such a family. These people
would swear before the assembly the worth of the case, the honor of the party
presenting it, and the validity of the issues represented. This compurgation took the form of a pledge
before the Gods and people, and relied heavily on the reputation of the persons
swearing and the dynamics of their presentation. If onełs reputation was in doubt, or untried,
one could bolster such testimony by tests of sooth (truth). Such tests could
involve pulling stones out of a kettle of boiling water, engaging in a duel, or
a search for an omen by a gothi (ON-priest).

The actual exchange of words were usually constrained only in form, a
jafnathar (ON-Umpire) would be present to ensure that proper conduct
(thewful-honorable) took place.[23]
In many regards it is analogous to the modern notion of advocates in the court
today, fighting over points, testing the veracity of witnesses, and
demonstrating proofs by various mechanism- all bounded by customary rules.



Decisions were reached by the acclaim of the
body of Thingmen at an Althing, whose decisions were final. The only “appeal" possible was directly to
the Gods through Ordeal of Combat. The
losing advocate could declare Holmgang

(Combat) to challenge a decision of Thing, and champions would be named to
conduct the fight. The actual duel was
oftentimes quite strictly regulated confined in space and duration and with a
clear objective (it was sometimes to the death, but as often to collapse, or to
first blood spilt). It was believed that
the Gods would grant victory to those who were worthy. These combats took place in a variety of
forms including sword-combat, wrestling, and combat by pole-arms.

 

Convolution of Law

Since the great assembly required the freemen to
stand ready to serve during its session, there were many panels sitting during
Things, deciding a variety of issues.

This body as a whole acted as a logretta (law-council) that gave voice
to the body of values that made up the unwritten law. In that regard the people as a whole created
the law and its interpretation directly.
Customary understanding of the law was the governing principle of the
innocent common law, and truly reflected the mores of the culture as a
whole. Such parliaments were presided
over by a Lawspeaker who was charged with being able to speak the conceptual
law of the People. The king and nobles
paid great deference to the Lawspeaker, though he had no formal executive
powers, and was only “in office" during the assemblage of the Thing.[24]

 

The temperance of power in pre-Christian
European law was all-pervasive. Even
kings were “elected" by the chieftains, chosen from amongst the nobility, and
subject to the scrutiny of the law and confidence of the folk as a whole. Tacitus notes that amongst the Germanic
Tribes:

 

The king is selected from amongst the families
of nobles, for His characteristics of competence and leadership, and the regard
with which His repute is held amongst the whole of the people of the
tribe. Those of the nobility must be of
decent of either ancient kings or the Gods[however] nobility confers no
special privilege before the magistrate in truth, the simple free-man is in
every point, except descent, the legal equal of the noble. Should the kingłs
luck fail, the people will have him removed and oftentimes give him over to be
sacrificed to their Gods [25]

 

This is not to say that socio-economic
conditions did not reflect class status and the tripartion of society in
pre-Christian Northern
Europe. Influence, both in society at large and in
mode of living, was clearly reflected in the arrung (social status) of the
individual. Yet, the reoccurring theme
of the innate worth of everyman in the great scheme nonetheless prevails. As Georges Dumezil points out in comparative
analysis of Indo-European peoples:

 

while the trinary division of society created
clear class lines, there

is a
valuation of each role in the greater social order.[26]

 

Because of the strength of the martial
undercurrent of Germanic society, and the general status of the male population
in the fyrd (reserve army), this
class structure was tempered by such an egalitarian glint. The fact that all freemen were not only
expected but also required to bear arms gave each member of a sib (tribe) or
tuath (*Celtic- “tribe") a stake in decisions unlike that of other non-martial
societies. Some historians contend that
rather than egalitarian, this system reflected the competing heterarchies of Northern Europe.[27] This attitude was prevalent amongst the
Germanic tribes and a similar train of thought ran through their cousins, the
Celts, in Brehon Law.[28]



 

As an individual conscious system, this
worldview spawned a unique preeminence for women in pre-Christian Germanic
society. They had more rights and status
than in any social system until the twentieth century.[29] A woman could hold property, bear arms, and
advocate at Thing (albeit through a male in their lineage or marital
group). They had the unconditional right
of divorce for cause, and the right to determine use and allotment of property. Although rare, they could even be selected to
accede to a chieftaincy and on occasion the kingship, because of their innate
legal status.[30]

 

There was no division between offenses against
society (Criminal Law) and offenses against the individual (Civil Law). The “criminal" aspects of law consisted only
in the ratification of the decisions of Thing by the folk. The doom of a Thing would be handled through
a complex system of private law enforcement.
Although the kings and other lords of Europe kept a standing army of
hauscarls (house soldiers) and even some basic policing functions through mechanism
of the latter Anglo Saxon period-Shire Reeves (Sheriffs), the bulk of
retributive justice lay in the hands of the families of the victims and
perpetrators. At Thing it was possible
for even murder to be compensated for through the payment of weregeld (man price). The valuation of each person depended in
large part upon His social station. But
resolving conflict was paramount.

Societyłs survival depended upon this.


 

Given these circumstances, the only at large
application of a “criminal sanction" would be the outlawry of a citizen. Once a doom of outlawry occurred the criminal
was sanctioned with the equivalent of social death. To the eyes of the society that person was no
longer alive. They bore no legal rights
and could not own anything but what was on their person. They could be killed or injured without
recourse in law, and did not even have inheritance or kinship claims. So severe was this penalty that seldom was
such an exile lifted, but for the most extraordinary circumstances it spelled
certain death.

 

As noted earlier, the enforcement of a doom
rested with the families, because they had a vested interest in the persons
involved and adjudication of the cases against kith and kin. The family obligation to the penalty assessed
or its collection remained a solidifying and web of connection between extended
families. Families bore responsibility
for the actions of their kinsmen, and such obligations created a social
pressure to arrive at meaningful resolution of conflict. This is in fact the very essence of the
Germanic Legal System. Thing is designed
to channel the harmful conflicts of society into a system which reinforces the
values of the society, especially family obligation and justice within the
community.

 

Although the coming of Christianity to Northern Europe (in the 7th Century in England, 9th Century in Germany, and 10th Century in Scandinavia) reintroduced much of
the Roman Civil law, it was unable to completely supplant the Germanic legal
concepts, which were so much a part of the culture of the people. At various times the church, faced with
enormous resistance to wholesale cultural reeducation, was forced to adopt the
methods of the new converts in order to maintain its hegemony. The resurgence of various Germanic groups in
this period of history only served to bolster these concepts. The Vikings and the Normans in their
redefinition of the political maps of Europe helped perpetuate the
customary law and principles of the Germanic legal system even after those
customs had otherwise died out in Europe. It is to them we owe our Shild (debt) of gratitude for preserving the common law and the
adversarial judicial system. It is to
Father Tiw, from whom these gifts come, that we see the hand of the divine in
our law today, perhaps obscured, oftentimes misused, but nonetheless there,
innate and underlying.



 











[1] Jan de Vries, Altgermanische Religionsgeschichte (Berlin: Walter de Gruyter &

Co., 1970), late ed. 360 (Vol. II).





[2]
Bainbridge, William, Tyr and Zisa, citing, De Vries, Altgermanische, do. p. 26. & Bronze
age rock carvings indicate the existence of religious rites connected with a
sky God and an earth Goddess. See H.R. Ellis Davidson, Pagan Scandinavia (Frederick A. Praeger, 1967), pp. 50-65.







[3] Puhval, Jan, Myth and Law Amongst the Indo-Europeans,
University of California Press, 1970 pp. 52





[4] OIRP- translation.





[5] Grimm, Jacob, Teutonic Mythology, Stallybrass, trans ed., Dover: New York 1976.

IX-3-7; Anglo Saxon reflex.





[6] ASRP-translation.





[7] Schwarts, Stephen, Poetry and Law in Germanic Myth, University of California Press, 1973, pp. 26-27, 38.





[8] Beard and Robinson History of Medieval Europe,
London, Oxford University Press: 1967





[9] Pollock, Fredrick The History of the
English Law, AMS Washington DC: 1895





[10] Stenton, FM Anglo Saxon England
London 1977





[11] Mallory, JP In Search of the
Indo-Europeans, Thames & Hudson.
London: 1985





[12] b.c.e. before the common era (formerly
b.c.)





[13] Heusler, Andreas Fehderwesen Leipzig: 1911





[14] Stubbs, WF William Constitutional
History of England and its Origin and Development
London:1880





[15] Moisel, Hermann, Lordship and Tradition in Europe, Mellen Press 1999, pp.17-18.





[16] Bauschatz, Paul The Well and the Tree London:1956





[17] The Well of Wyrd, the Germanic
well-spring of the fates, who measured the fabric of history past and present
to

direct the
future. Bauschatz, ditto.





[18] Treaty settlers, Germanic tribes given
status within the borders in Rome for extended periods of time in exchange
for

a peace settlement
and pledge of martial service.





[19] Tacitus Germania
et Agricola





[20] Turville, Petre Myth and Religion of
the North London: 1959





[21] Tacitus, ditto; as quoted in Turville
Petre, do.





[22] Byock, Jesse Feud in the
Icelandic Saga
University of California: 1982





[23] Byock, Jesse, FUED, ditto.





[24] Byock, Jessie Medieval
Iceland University of
California:1985





[25]
Tacitus, ditto





[26]
Dumezil, Georges Tripartite Society
Amongst the Indo-Europeans, reprint in Journal Of Indo-European Studies,



Vol.
1969. Also, Oosten, J.G., War of the Gods, Routeledge,
London:1985. pp.18-19





[27] Heterarchies are competing systems of
hierarchies, the anthropological analysis of European Heterarchy in Europe
is

a recent suggestion of European Ethno
Archaeology.





[28]
Seebohm, Fredrick Tribal Custom in Anglo Saxon Law London: 1911





[29] Davidson, H.R.E. Cambridge: 1996





[30] Heimskringla,et al
in translation, (as in Queen Sigfritha, u.s.w.)










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