Warren Brown

title.none: Schwind, ed., MGH: Leges Nationum Germanicarum, Lex Baiwariorum (Brown)

identifier.other: baj9928.0005.002 00.05.02

identifier.issn: 1096-746X

description.statementofresponsibility: Warren Brown, California Institute of Technology,

publisher.none: .

date.issued: 2000

identifier.citation: Schwind, Ernst von, ed. Legum Nationum Germanicarum. Legum Sectio I. Tomus V, Pars II. Munich: Monumenta Germanica Historica, 1998. Pp. vii, 348. 128 DM. ISBN: .

type.none: Review

relation.ispartof: The Medieval Review

The Medieval Review 00.05.02

Schwind, Ernst von, ed. Legum Nationum Germanicarum. Legum Sectio I. Tomus V, Pars II. Munich: Monumenta Germanica Historica, 1998. Pp. vii, 348. 128 DM. ISBN: .

Reviewed by:

Warren Brown
California Institute of Technology

The Lex Baiwariorum, or Law of the Bavarians, is one of the so-called barbarian law codes, that is, one of those normative texts produced between the fifth and the eighth centuries C.E. that rank among the most important sources for exploring European history prior to the Carolingian period. The people to whom this particular law applied, the Bavarians, inhabited a territory roughly corresponding to what is now southern Bavaria and western Austria. They coalesced during Late Antiquity in what had been the Roman provinces of Noricum and Raetia from the fusion of several germanic migrant groups with the remnants of a romanized population.

The Prologue to the Lex Baiwariorum states that the Bavarians had their law codified for them in the sixth and seventh centuries by their overlords, the Merovingian kings of the Franks. This now carries little weight. According to the current scholarship, the written Bavarian Law represents instead a blending of barbarian and Roman normative traditions gradually developed over the course of the seventh and eighth centuries. The code reached its more or less final form in the middle of the eighth century; it is this version that provides the basis for the surviving manuscripts. Many are inclined, therefore, to see the code with its appeal to Merovingian authority as a political instrument forged either by the early Carolingian mayors as they tried to absorb Bavaria, or by the leader of the anti-Carolingian resistance, the Bavarian Duke Odilo (r. 736-748). After Charlemagne conquered Bavaria and deposed Odilo's son Tassilo III in the years between 787 and 794, he allowed the Lex Baiwariorum to remain in force, albeit with the addition of two capitularies (Alfred Boretius, ed., Capitularia regum Francorum 1, MGH Capit.1, Hannover, 1883, 158-159) and a new clause legitimizing the deposition of a duke who had dared to resist Frankish royal authority (Lex B. C. II/8a). [1]

The Lex Baiwariorum itself is a somewhat eclectic text. It covers everything from the rights of the church and the Bavarian dukes to procedures for handling property transfers, compensations for bodily injury, and sanctions for harming hunting dogs. As a result, it has served as an important resource for historians trying to understand the religious, political, social, and economic development of south central Europe. The Bavarian Law also coincides in time with a rich lode of early medieval charters from several Bavarian churches and monasteries, making it a particularly good source for exploring the relationship between an early barbarian law code and actual social and legal practice. [2]

The twentieth-century editions of the Bavarian Law differ from each other in their approach to the code's somewhat complicated manuscript tradition. In 1926, Konrad Beyerle produced a facsimile edition and German translation based on the oldest extant manuscript, the early ninth-century Ingolstadt manuscript (Lex Baiuvariorum: Lichtdruck Wiedergabe der Ingolstaedter Handschrift des bayerischen Volksrechts, Munich, 1926). The Ingolstadt manuscript represents a group of manuscripts that contain the oldest versions of the text and that were produced and used in Bavaria itself. Beyerle's edition served as the basis for Theodore John Rivers' 1977 English translation of the code (Laws of the Alamans and Bavarians, Philadelphia, 1977). Similarly based on the Bavarian manuscript tradition is the 1934 study edition and German translation produced by Karl August Eckhardt (Germanenrechte, Texte und Uebersetzungen II/2: Alemannen und Bayern, Weimar, 1934).

In the same year that Beyerle's facsimile edition came out, the MGH published Ernst Freiherr von Schwind's edition of the Lex Baiwariorum. In an effort to improve on the MGH's earlier edition (ed. Johannes Merkel, MGH Leges III, Hannover, 1863, 183-449), von Schwind set out not to reproduce the oldest text, but rather to produce what he saw as the best text. He chose to rely on a set of later manuscripts produced outside Bavaria that contained the most complete texts and were written in the best Latin--the so-called "Carolingian Emendata" manuscripts. Von Schwind thus placed himself in opposition to those scholars who advocated sticking closely to the versions that reflected Bavarian usage. These scholars included Rudolf Buchner, who in the mid-1970's accepted a charge from the MGH to produce a new edition of the Bavarian Law. Unfortunately, in the early 1980's Buchner was forced by poor health to leave this task incomplete. [3]

Von Schwind's edition has both pronounced strengths and several serious weaknesses. Its greatest strength lies in its well- developed critical apparatus. Running footnotes throughout give the reader access to even the minutest textual variants in the different manuscripts. At the beginning (pp. 204-266), one also finds variants in titles and indexes given to help locate clauses of the code that are labeled differently or are located in different places in different manuscripts. Better still, von Schwind provided a very useful system for identifying places where the Bavarian Law draws on other barbarian law codes, especially the Alemannic and the Visigothic codes. The main text of the Bavarian Law is printed in two fonts. The smaller font indicates that a particular passage appears verbatim in another law code, the text of which is then identified and reproduced in full in the apparatus. Also included are later medieval glosses on the text of the Bavarian Law, both Latin and German; this provides useful evidence for how later generations understood early medieval Latin legal language.

In this respect, the von Schwind edition contrasts sharply with Eckhard's edition, which has the advantage of offering a facing-page German translation but has no apparatus at all. Rivers' English translation does somewhat better; in the margins of the text Rivers gives occasional references to overlaps between the Bavarian Law and other codes, especially the Alemannic code, and he provides a very brief critical apparatus in endnotes.

The von Schwind edition has a good index, and a very interesting glossary of German vernacular words that appear both in the text of the code and in later glosses--although in the case of the glosses this can sometimes simply refer one back to the place where the word appeared, as in the entry "hoffgricht: glossa s. XV ad v. placitum." Rivers' English translation has a similar but less extensive glossary of both Latin and vernacular terms that appear in the text of the law.

Now for the weaknesses of the von Schwind edition. First, the apparatus, while thorough, makes it hard to see which of the three major manuscript traditions of the code a particular text variant comes from. This is primarily due to von Schwind's method of labeling the manuscripts according to the archive a given manuscript was in or the archive a given manuscript had come from (for example, "V" = von Schwind's principal source, the late ninth or early tenth-century "Codex membranaceus Vaticanus Christianae reginae Sueciae n. 991," while "Bb" = "Codex membranaceus Monacensis regius latinus 4639, quondam monasterii Benedictoburani"). This system is hardly an improvement over Johannes Merkel's system of classification in the original MGH edition, which very sensibly grouped the manuscripts according to the manuscript traditions (although von Schwind did provide a concordance of his labels with Merkel's). Second, the list of relevant literature at the beginning of the volume (pp. 190-191) and the references to the scholarship in the apparatus are now hopelessly out of date. Third, and most important, the von Schwind edition does not reflect the current scholarly consensus that a modern edition of the law needs to reflect the Bavarian textual tradition.

We are well overdue, therefore, for a new edition of the Bavarian Law. Such an edition would hopefully follow more closely the text of the Bavarian manuscripts and more accessibly organize and label its critical apparatus (and, for student use, provide the editorial material and apparatus in some language other than Latin). For the time being, the Beyerle and Eckhardt editions, as well as the Rivers translation, offer good texts and provide the quickest and easiest access to the contents of the code. Nevertheless, von Schwind's MGH edition contains the most complete information, especially about text variants and manuscripts. It is, therefore, still a sine qua non for serious detailed work with the Bavarian Law.


[1] For the current state of the art on the Bavarian Law and its development see Wilfried Hartmann, "Das Recht," in Die Bajuwaren von Severin bis Tassilo, 488-788, ed. H. Dannheimer and H. Dopsch (Munich, 1988), 266-272 esp. 266; Harald Siems, "Lex Baiuvariorum," in Handwoerterbuch zur deutschen Rechtsgeschichte 2 (Berlin, 1978), 1887-1901; Gerhard Koebler, "Die Begruendung der Lex Baiwariorum," in Studien zu den germanischen Volksrechten: Gededaechtnisschrift fuer Wilhelm Ebel, ed. Goetz Landwehr (Frankfurt, 1982) 69-85; F. Brunhoelzl, "Die lateinische Literatur," in Handbuch der bayerischen Geschichte 1, ed. Max Spindler, 2d. ed. (Munich, 1981), 583.

[2] See, for example, Warren Brown, "The Use of Norms in Disputes in Early Medieval Bavaria," Viator 30 (1999), 15-40; Carl I. Hammer, "Lex Scripta in Early Medieval Bavaria: Use and Abuse of the Lex Baiuvariorum," in Law in Mediaeval Life and Thought, ed. E. B. King and S. J. Ridyard, Sewanee Medieval Studies 5 (Sewanee, 1990), 185-195; Raymond Kottje, "Die Lex Baiuvariorum: Das Recht der Bayern," in Ueberlieferung und Geltung normativer Texte des fruehen und hohen Mittelalters, ed. Hubert Mordek (Sigmaringen, 1986), 9-23.

[3] On the manuscript tradition of the Lex Baiwariorum and the strategies employed by its various editors see Rudolf Buchner, Die Rechtsquellen. Beiheft to Wattenbach-Levison, Deutschlands Geschichtsquellen im Mittelalter: Vorzeit und Karolinger (Weimar, 1953); Hammer, "Lex Scripta," 185-187; Kottje, "Lex Baiuvariorum," 16; Rivers, Introduction to Laws of the Alamans and Bavarians, 40-44. On Buchner's unfinished new edition see Horst Fuhrmann, "Monumenta Germaniae Historica: Bericht fuer das Jahr 1973/74," Deutsches Archiv 30 (1974), iv and "Monumenta Germaniae Historica: Bericht fuer das Jahr 1981/82," Deutsches Archiv 38 (1982), v.