[This is a somewhat rewritten version of a plenary lecture I gave at a conference last year on the dissolvement [sic] of kinship ties, shorn of ad libs and jokes and rendered into slightly more formal acadermic language.
Essentially, I take a clause of the Pactus Legis Salicae - concerning the ritual to be followed by someone who wished to cast themselves off from their kin - as a springboard to explore some ideas about what one might call the 'lived reality' of kinship in the post-imperial West. How rigid were the ties of kimship? How significant were family groups? Were people bound tightly into kindreds and constrained to act in accordance with the obligations of kinship? After some close reading of aspects of the clause itself, I look at why someone might want to cast off their kin, or in what ways this might have been desirable. That in turn raises issues of how we think of kinship, whether (and/or to what extent) it is 'natural' and whether (and/or to what extent) it works in ways differently from social ties that are not - notionally at least - related to blood relationships. What change did following the ritual of PLS clause 60 relly make; could you really cast off your kin, or even specific kinship relationships? I argue that, if anything, following this procedure defined you more closely by your relationships to your kin. The paper ends with some geneal conclusions about the strength of kinship and its relationship to community in Merovingian Gaul.
I am wondering whether it's worth trying to publish. I am not sure it is but if anyone thinks it is worth trying to write up properly and has any suggestions (or offers), they can get in touch. My academic email contact is now guy[dot]halsall[dot]academic[at]gmail[dot]com. Clearly it needs a fair bit of work but I think there might be points here that are worth getting into print.]
In this paper I would like to discuss the practical or lived reality of kinship relations in the post-imperial West, using as a springboard a strange-looking clause of the Pactus Legis Salicae (the Compact of Salic Law). This law-code is generally supposed to have been issued by Clovis, the first king of the Merovingian dynasty about whom we know anything, probably shortly before his death in 511. It applied, it appears to tell us, in the lands between the River Loire and the Carbonnarian Forest – the Ardennes – in other words within what had by the seventh century come to be called the kingdom of Neustria or ‘the new lands’, one of the three kingdoms into which Frankish Gaul was usually divided. Clause 60 of the Pactus concerns what you have to do if you want to cast off your kindred. It reads as follows:
Concerning
him who wants to remove himself from his kindred
1:
[If anyone wants to remove themselves from their kindred], they should walk [ambulare] into the legal assembly [mallus], before the Thunginus or hundredsman and there they should break four sticks of alder wood
over their head and they should throw those sticks into the four corners of the
assembly and they should say that they cut themselves off from oath-helping or
inheritance or from any reckoning (or calculation) of those people.
2:
And if afterwards, if someone from their kin should die or be killed, nothing
of the inheritance or compensation will pertain to them.
3:
If indeed they should die or be killed their inheritance or compensation will
not belong to their relatives but will go to the fisc, or to whomever the fisc
wants to give it.
Before progressing, some preliminary points about the text and
its translation need to be made. The first is to repeat the well-known fact
that the generally-used text of the Pactus Legis Salicae is really the
best guess of Karl-Augst Eckhardt, worked out in pretty dubious circumstances
in the middle of the twentieth century. The standard edition is something of a
Frankenstein’s monster put together from several fundamentally different
manuscript traditions, all of which are at least 200 years later than the
presumed date of the law’s issue. The last section, about the fisc, has been
argued to be a later, though still sixth-century, addition.
Second, there is the gendering of the text. The title of the
chapter, and the second and third clauses are cast in the masculine generic.
This is actually quite unusual for the Pactus, most of whose clauses
begin with a gender-neutral ‘si quis’: ‘if anyone’. On that basis
Eckhardt reconstructed the start of the chapter the same way: ‘if anyone wants
to remove themselves…’, although the manuscript authority for that is pretty
weak – two of the later textual traditions. The earlier text-groups do not have
anything; they just begin ‘he should walk into the mallus’.
The 1992 translation of the Pactus translated (as it
often does) that si quis as ‘he who’, leading to the curious situation
where the sixth-century text used more inclusive language than its modern
translation. There were, however, two scholarly reasons for that, both based in
old assumptions about post-imperial western law. One was that it was all
‘Germanic’, representing different branches of legal tradition that all
ultimately went back to some common body of proto-Germanic custom. That in turn
meant that the gaps in one code could be filled in from the others. The other
assumption, related to that, was that in ‘Germanic’ law only men were legally
competent, all women having to live under the legal guardianship or mundium
of men. That was based upon clear statements to that effect in the mid-seventh-century Lombard Edict
of Rothari, but that code was promulgated in very particular circumstances
and there is no reason at all why its ideas should have applied anywhere at all
outside northern Italy. Nor indeed does the general idea find support in the
texts of non-Lombard Law, or descriptions of court-cases, all of which envisage
or indeed demonstrate women managing legal affairs. Nonetheless, it led to
translators up to the end of the last century inserting all sorts of
inaccuracies, extra phrases, and jurisprudential pretzel logic, into their
translations. The text of Salic Law is, however, usually gender-neutral and
makes no statements at all about the legal incompetence of women. Indeed, it
usually implies the opposite.
What then might it mean that Clause 60 of the Pactus
is, according to most text-classes, cast in the masculine? Once we free
ourselves of the assumption that only men were legally competent in
post-imperial law, I do not think it is very significant. First there is the
simple grammatical point that, provided it was envisaged that at least one man
be among those referred to, Latin used the masculine third person, as in many
modern languages, such as French – until very recently. Second, an assumption
about a norm is not the same as a description. By way of analogy, Geoffrey
Elton’s The Practice of History is, in a way that now jars but was at
the time completely normal, entirely cast in the masculine generic: when a
historian reads his sources, he will, …. But, while Elton might
have perceived that most historians were men – and even if he thought this was
the correct way of things, or thought that women could not or should not really
be historians – you could not argue that he thought that all historians
actually were men. The same
probably goes for the masculine generic in the Pactus. It might have
been the norm (as I suspect, statistically, it still is even now) for most
people engaged in law cases to be male but that did not imply that women were
never, or had no right to be, actively involved as principals. It might have
been rare; it might have brought about a bit of tut-tutting on the part of some
people, but it was perfectly legitimate. The circumstances under which one
might want to invoke this procedure might indeed have included those that
applied to women specifically. For all these reasons I cast my translation in a
gender-neutral expression.
Third, note that the law says that the person should walk (ambulare)
to the assembly. Salic Law does at least once use the verb festinare – a
plaintiff should hurry to someone’s house – but it uses ambulare
several times, always when talking about a ritual where a principal has to go
to some sort of public assembly or meeting and either say a particular form of
words or undergo an ordeal. There are two points about this. The first is that
you are supposed to go to the court slowly, in public, in the gaze of the
community. The communal gaze was very important in sixth-century Frankish
society and local politics. Related to that point, the second observation is
that this specification, like a lot of things in Salic Law, seems to try to
stop things being done too hastily. It was, I assume, a big deal to cast off one’s
kin so an individual might want to have time to back down before they got
before the thunginus and did something from which there was no going
back.
Fourth, there is the issue of the four rods. Old scholarship
suggested, plausibly enough, that the four rods represented the four shared
sets of great grandparents implied in Frankish law’s concentration on people
related within three generations. In another clause a person can adopt someone
or transfer property to them by throwing a stick into their lap. Staffs or
sticks feature regularly in Frankish Law but it is not normally stipulated that
they be of a specific wood. This clause says you have to have sticks from a
particular type of tree, but why alder? Alder is pretty common throughout
Europe but it grows in particular places. It grows in wet areas, by or in
streams or marshes; it is a ‘pioneer’ tree species: that is, one of the first
species of tree to appear if you let an area of land turn to forest: birch is
the pioneer species par excellence. You will not find it so easily in
established forest; it gets crowded out by the bigger trees. It is thus a kind
of tree found in transitional areas, whether the transition is from dry to
wetland or from arable to woodland. I wonder if there is some symbolic value in
its use in the transition from being within to being without (or outwith) a
family. Another feature of alder is that, being a quite supple wood, it is used
for binding things, wattles or hurdles for example, so again there might be
symbolic value in breaking a wood usually used for binding. As
just alluded to, alder is a strong, pliable wood: alder rods are not easy to
break. What this seems to me to imply is that if someone did not want to run
the risk of not being able to break the rods and having to take time twisting,
bending and tearing them (all over the top of their head, remember) and potentially
looking rater foolish, they would either have to go and choose their sticks
carefully or they would need to let them dry out and become more brittle. The
fact that an individual actor would have to go and find a particular type of
tree and then either choose a particular dead bit of the tree, or let the
sticks dry out, or somehow prepare them before the assembly all seems, again,
to show a concern to stop this undertaking from being carried out hastily or in
the heat of the moment. [I’d like to mention here the common use of the tree to symbolise the family. Is the breaking of twigs representative of breaking off a particular branch of the family tree? I would like to thank an attendee of the lecture, whose name I have forgotten but it may have been Jessie, for mentioning this - probably quite obvious - point that I had nevertheless contrived not to think of, in discussion afterwards.]
Did anyone ever do this? The short answer is that we do not
know; there are no records. At first sight it seems a strange thing just to
make up. Even if we think the law recorded actual procedure, however, at some
point a judge or collection of elders must have sat down and invented the
ritual. It is true that within a century or two even early medieval people
thought Salic Law was a bit weird and poked fun at its provisions but,
importantly, in his Feudal Society, Marc Bloch refers to a ritual of
breaking twigs and throwing them on the ground to cast off a relationship – in
that case, interestingly, a tie of lordship and dependence: ‘A ceremony … in
which perhaps was revived the memory of the gestures used by the Salian Frank
in times gone by.’ Here I will proceed on the basis that this was not all some
flight of fancy on the part of the law’s compilers.
My final preliminary point is that Salic Law is very often
concerned with the performance of rituals in front of an audience which, by
their very strangeness, were memorable. The memorability of the scene
transcended the transience of the ritual itself and thus created a sort of
communal record of the event and the legal decision. Documents and written
records do not feature. As we will see, this is fairly characteristic of
sixth-century northern Gallic society and politics.
*
After this initial discussion of the details of the clause
itself, we can pose a key question: why would anyone want to cast off their
kindred? The most recent treatment of this issue in English of which I am aware
is forty years old, in Alexander Callander Murray’s 1983 book on Germanic
Kinship Structure. Murray devotes a few pages to clause 60 of the Pactus,
arguing very cogently that the law surely cannot have meant that someone would
actually have cast off all of their kindred. How would that have worked? Would
it include his own children? It is important to stress that Frankish kinship
was bilateral. The legal rights and obligations referred to in the law
technically applied to all people related within three generations on their
mother’s or father’s side; if someone shared a great-grandparent on either side
with someone else, they had legal obligations to them. Stepping outside the law
for a moment to look at the archaeological evidence for the sixth-century
northern Gallic countryside, we will see that we are talking about very small
settlements grouped into small communities, possibly sharing a cemetery as a
ritual focus. In these circumstances, the chances of not being related to
someone else within three generations on either the mother’s or father’s side
were probably significantly less than sharing a great-grandparent with them.
Casting off the whole of one’s kindred would likely leave you with no
obligations to, or rights to expect support from, almost everyone in one’s
everyday community. Murray’s conclusion
that the law cannot have meant shearing an individual off from their entire
kindred but, rather, that it meant that someone cut themselves off from
obligations to a specific relative, or a particular group within their
kindred, is thus surely correct. We should, then, understand the term parentela
in this context not as kindred (though it has this meaning) but as kinship
(which it can also mean). The person is going to the mallus and
declaring that they cut off their kinship with this (or these)
particular individual (or individuals).
This seems to make much more sense. Someone – male or female
– might wish to sever their links with a specific kinsperson or group of
relatives for a wide range of reasons. A segment of someone’s legally-defined
kindred might have been serial wrong-doers and the individual at the mallus
had simply had enough of having to help pay their fines. This, broadly, is the
circumstance Murray envisages. Alternatively, a Frankish woman might have wanted
to remarry but her kin might have been causing problems because of their claims
on the inheritance. Someone might just have wanted to cut a person or one side
of the family out of their inheritance; remember that this clause comes
directly after the famous clause 59.6 about the inheritance of ‘Salic Land’. It
might alternatively have been a more positive declaration than that. In a
situation of bilateral kindreds and kinship legally defined as within three
generations, all sorts of problems might have arisen if there was trouble
within the (broadly-defined) family. If some of the demands on kin worked as
mechanically as they have often been assumed to have done – even to some extent
by Murray – if the ‘feud’ worked in the ways it is supposed to have done one
might find oneself in some tricky situations. Not entirely flippantly, what
would one do if Baddo, a cousin on one’s mother’s side, beat up or killed Dado,
a cousin on one’s father’s side? Did one avenge the killing of cousin Dado by
killing one of Baddo’s cousins, i.e. oneself? Did one pay a first cousin’s
share of Baddo’s fine and then receive a first cousin’s share of the
compensation – by buying oneself a cow? As is well-known, many medieval epics
play on the tragedies of the supposedly implacable demands of kinship, but the
extent to which such stories ever occurred in reality is debatable. It is
possible to see the ritual of clause 60 of the Pactus not simply as a
declaration of non-kinship but simultaneously as a declaration of more active
kinship with someone else, or with a particular part of your broadly-defined
kin-group.
This all raises a raft of really fundamental questions about
kinship, kinship ties, and society. Given the stress in the historiography
about the importance of the kin-group in early medieval society, why would
anyone be mad enough to remove themselves from it? We have just seen that that
is probably not what is going on in clause 60, but the issue remains. Just how
important was the kindred in sixth-century northern Gaul? Were people
bound into their kin-groups by all sorts of weighty ties and obligations that
compelled them to undertake particular courses of action, in spite of
themselves? Some of these assumptions come ultimately from the idea of the
post-Roman centuries as ‘the Dark Ages’, when proper government did not exist
and when people were compelled to look after themselves. A individual needed to
be part of a kindred to protect themselves, to make sure they could get redress
in disputes, and to stop everything descending into anarchy and a Hobbesian bellum
omnium. Most early medieval historians now reject that way of seeing
things, although some of its basic assumptions and implications remain.
Kinship is a social construction, and it is entirely
contingent upon time, place, social context. It is important not to confuse it
with biological or genetic relationships. There is nothing natural about it. I,
for example, have Greek family, but if they were not Greek they would not be
family. They are the in-laws of one of my sisters-in-law. Few English people regard
the in-laws of their in-laws as family, but my in-laws’ in-laws absolutely
regard me as family and treat me as such. It is not just expectations of
hospitality that are under consideration, though; if I had a sister, she would,
in Greece, be ruled out from marrying their other son. If we had a huge falling
out that would for them be a very real dissolution of kinship ties. If someone
fell out with their ‘in-law-in-laws’ in England it would be unusual to regard
kinship ties as coming into it at all. The dissolution of kinship ties can thus
only be understood in specific social context. Kinship ties cannot simply be
understood to have existed on the basis of biological consanguinity.
But, leaving aside ideas of obligations and marriage
restrictions one would like to think that there were bonds of affection, at
least, between close kin that were natural; mammals are instinctively
protective towards their children, at least when they are young. Sadly,
however, a few depressing minutes with the grimmer side of the news cycle will
disabuse the reader of the notion that feelings of protectiveness and affection
are automatic or universal. So, indeed will brief exposure to early medieval
history; one will soon find kings killing, maiming, torturing, or blinding
their own children. King Chilperic I of Neustria had a hand in the killing of
two of his sons, as well as one of his brothers; his wife, the notorious Queen
Fredegund, allegedly tried to kill one of their daughters by slamming her head
in a treasure chest. So, while there may be no reason to think that medieval
people were less emotionally invested in their children, or that the range of
relationships and emotions within families was any different then from now, by
the same token, there seems no reason to suppose that early medieval people
automatically loved their children either. The more important variable
is social attitudes and the expectations about how one responded to emotions,
how one expressed them, when one was expected to suppress them. Mothers in
certain social groups might have been expected to hand their babies over to a
wet-nurse, regardless of their own feelings. There is some evidence for early
medieval infanticide; I do not think we can extrapolate from that unpleasant,
disturbing fact to conclusions about the levels of affect between parents and
children. These are areas, tensions, often explored in literature.
There are two sides to the issues I have been setting out.
Can kinship-ties be dissolved where people did not think kinship existed? It is
important not to confuse kinship with biological or genetic relationships. In
many slave-owning societies, slaves are not believed to have kinship. The slave
is, in the classic formulation of Orlando Patterson, a ‘genealogical isolate’:
the slave has no family; he or she can be sold away from parents, siblings and
children; slave marriages are not seen as valid. Salic Law seems to share this
world view: ‘if anyone steals someone else’s male or female slave, or horse, or
mare’ (PLS clause 10.1). A slave is property and, in this world-view,
you are no more dissolving kinship ties by selling a child away from its
parents than in selling a weaned foal away from its mother. This statement does
not imply that such actions did not involve trauma, that they were not
horrific. Horrific inhumanity is the defining characteristic of slavery and we
should never forget that. The non-recognition of slave kinship (at least in the
sixth century, possibly less so in the seventh) is an illustration of the fact.
We do not know what slaves thought about kinship; we might suspect that it was
fairly provisional and realist. Were they simply expected to suppress the
usual, natural feelings towards their children; did they somehow internalise
those expectations? If the ideas of the people who owned slaves and who defined
the rules or norms of kinship were that slaves existed in a situation outside kinship,
and we do not want to fall into the trap of confusing kinship with bonds of
affect, then – except when we are talking of the enslavement of hitherto free
people – can we talk, analytically, of dissolving kinship ties among slaves? As
intimated, attitudes to slave families it may have been changing in the
Merovingian period but, as unpalatable as they are, these are things that need
close consideration.
Second, we distinguish certain kinds of non-biological
kinship as ‘fictive’ but, as social anthropologists used to say in the ‘80s
(and as we have in effect seen), all kinship is fictive or at least
constructed. People bolstered biological relationships with other forms of
kinship. In 613 Chlothar II of Neustria wiped out what remained of the rival
branch of the Merovingian family by killing all his first cousins, twice
removed, but the one he spared – Merovech – he spared because he was his
godson. Creation of such fictive kinship ties did not always work. In the
‘Revolt of the Dukes’ in the late 580s Queen Brunichildis tried to detach Duke
Berthefried from his ally Duke Ursio by reminding him that she was the
godmother of his daughter, making them co-parents. But that failed; ‘I will
never abandon Ursio’, said Berthefried, ‘until death comes to tear me from
him.’ Which, inevitably, it did. The obligations of fictive kinship could
dissolve as easily as those of blood ties when push came to shove.
The existence of kinship ties should not be assumed on a
priori grounds. Historiographically, there was a tradition of
reconstructing all of the links that existed between aristocrats, and creating
extended noble families – and reifying the families so created by giving them names:
Agilolfings, Widonids, etc. The assumption was that these were ipso facto,
real and important political groupings. It is, however, empirically absolutely
clear that they were not. Just like the Merovingians, these supposed aristocratic
clans took sides against, fought with, and killed their relatives. Who a
particular socio-political actor took sides with, or against, within their
broad kindred, was clearly contingent. People chose which ‘family’ they were
part of at any given moment. Close ties of consanguinity need not have been of
paramount importance. One of the reasons that there is a constant theme within
political rhetoric, of the need for the ‘strong family unit’ is precisely
because it is something that has never existed; it is a fetish.
There is an important caveat to be made here, though. These choices were not necessarily made lightly; we are not talking about some emotion-free ‘rational choice’ model. It is important not to ignore potentially ‘irrational’ affective bonds. Hence the law’s stress on deliberation; taking time to reflect. Whether these affective bonds and the emotional stresses in making a choice were any greater when thinking about family than when thinking about having to break with close friends, old comrades in arms (as with Ursio and Berthefried), and so on, is, however, unknowable and, in my view, unlikely.
Here we return to the Pactus Legis Salicae. Clause
58, two clauses before the one used as the focus of this paper, is the clause
‘Concerning the Chrenecruda’. The chrenecruda is another of the Pactus’
strange public rituals, this time about calling upon an individual’s kin to
help them pay a fine if they had no more property to give. This involved the
person in question getting witnesses together at their house, taking handfuls
of earth from their hearth, and throwing them over the relatives they needed to
help them pay – in a designated order, from both sides of their family, and to
whom they were related within three generations – and then, shirtless and
barefoot, but stick in hand (here it can be any kind of stick) jumping over their
fence and symbolically abandoning their house. The sorts of kinship ties or
obligations referred to in clause 60 had thus to be activated as well as
dissolved through public ritual. The dissolution of kinship ties was thus
no more of a problem than the activation of such ties. We return to the
assumption that somehow these ties and obligations were natural or that the
default situation was that they somehow applied. Mostly, though, they existed
in what I would call a zone of potentiality, there to be invoked or to be
renounced.
*
On this basis, let us revisit the law and the process it
envisages to think about kinship and identity, within a community and what
difference the procedure might make to that. As we have seen, everything has to
be done properly, in public. The individual in question walked through the
community to the assembly. This is a scene into which they were interpellated,
in the term often associated with Louis Althusser: they were called upon to
speak from a particular subject position. They were called upon to identify themselves.
Now, identity is an overused and under-theorised, under-understood term in
medieval studies. What does it mean to adopt or declare an identity, to
identify yourself? Identities are categories, they are signs and they raise all
sorts of signifieds. They carry with them associated imagery, expectations of
correct behaviour.
Our person has walked through the community, gone before the
mallus and declared themselves to be related to particular people. They
have identified themselves as occupying a particular position within a web of
relationships. This is narrowed to some extent by the context but the
implications of this law presumably make relevant all sorts of other aspects of
their person: age, gender, ethnicity, wealth. The question I want to ask is
whether – or in what ways - the procedure actually dissolves kinship ties. The
person goes before the community, in a formal setting and, in effect, says
‘here I am’. The other people of the community, seeing them, know them. We know
you; you are so-and-so, son of so-and-so and so-and-so. What, then, might it have
meant to go before the community, in this context, and declare and create a
situation of non-kinship?
John Lennon’s mawkish song ‘Imagine’ contains the lines ‘imagine there’s no heaven / it’s easy if you try’. But it is not at all easy. You cannot imagine there is no heaven without simultaneously bringing to mind the idea of heaven that you want to imagine does not exist. This is the problem that undermines the notion of casting off kinship by public ritual. If you go to court and say, effectively, that by this
strange and memorable ritual ‘I want to you to record that I am not related to
this or that person, or these people, who, we all know, is/are actually one of my
relatives/ are actually my relatives’, that is not something that can be
remembered separately from the knowledge that in fact, you are that
person’s cousin, or a member of that family. You know my cousin? Imagine I am
not their cousin; it is easy if you try. In the circumstances where you might
come to me, as a member of that kindred, or as that person’s cousin, to call
upon me to do something, on that basis, you should no longer call upon me to
act in that way. You have not dissolved the kinship tie at all, as much as
fixed it in a particular mode. Henceforth you are that one of the Joneses who
cast off his kinship; Baddo’s cousin who did not want to be his cousin. That is
ironic given what I said about kinship relations normally existing in a vague
zone of potentiality. You might not generally be regarded as a particular
person’s second cousin, or first cousin, once removed, in everyday life;
henceforth that non-kinship would become a key part of your identity. Even with
close kin, whose relationship to you would normally be known, if the problem
was that you wanted to cut your links to difficult kin, the problem would hardly
be alleviated by this process; if anything it would only make things worse. The
spectre of that kin relationship will constantly haunt you.
The only circumstance, really, where this would not
effectively be the case would be if you moved to a completely different part of
the kingdom, Aquitaine say, where different laws applied anyway. The person is
saying ‘I am off and I am not coming back; do not come looking for me in
Clermont or Tours or Bordeaux to help with fines; and I promise I have no claim
on my kin back here.’ As I wrote this lecture, I began to wonder whether that
is really what it is about; it makes sense of the addition of the clause about
the fisc too. It is possibly the only circumstance in which kinship and its
ties would really be dissolved, at least over time. Apart from with death. I’ll
just leave that possibility hanging there.
What makes me think that Clause 60 of the PLS is not
really about what to do if you move somewhere else is its context within the
code. It comes at the end of a little cluster of clauses: clause 56 is about
someone who refuses to come to court; clause 57 is about judges who refuse to
give a judgement; clause 58, concerning Chrenecruda, is about the
situation where someone does not have the wherewithal to pay a fine and, I
assume, his relatives do not automatically choose to help them out; clause 59
is about what happens where someone does not have the usual heirs; and clause
60 concerns what is to be done if someone does not want to be part of a
legally-defined kin-group. All four clauses concern situations where the usual
procedures do not apply.
*
As far as I am aware, this is the only post-imperial law
about casting off your kin. The corpus of so-called ‘Barbarian’ law from the
immediately post-imperial period has nothing else like this. It is difficult to
know what to make of such a comparison. The different codes cover different
things (it was partly for that reason that the notion of a shared Germanic law
was so attractive; earlier historians were tempted to fill in the gaps in one
code with clauses from another). Partly this is because the codes are not just
records of what they at least suggest are the standard logics and procedures of
customary law; some are also collections of legislation relating to very
specific circumstances; and some individual clauses are so specific that they
can only represent responses to individual cases that had, so to speak,
recently crossed the king’s desk. The Lombard Code of Rothari, for instance,
has two clauses about people killed by bits falling off buildings being
constructed by Master Builders of Como. There are surprising absences even so. There
is almost nothing in early Anglo-Saxon law about inheritance. Thus I am not
sure that one can extrapolate with any confidence from the fact that the Pactus
discusses how to abrogate a kinship relation, whereas other codes do not, to
differences in the strength of the kindred between Frankish Gaul and other
areas of the West.
Nonetheless, even if we cannot compare with other areas, we
can at least ask questions about sixth-century northern Gaul. It is interesting
that the lawmakers thought it was worth including a clause on this topic, and
might even have known of a ritual that was used. It is, however, impossible to
decide whether this was because they thought people were likely to want
to renounce or dissolve a kin-relationship, and thus that kin-groupings were
pretty fluid in practice, or whether the opposite was true: that the bonds of
kinship were so strong that you needed to set out, clearly, a specific,
deliberate, memorable public ritual for situations when people really wanted to
cast them off. Sixth-century social structure in northern Gaul does seem to
have been rather more fluid than it was even a century later but can we
extrapolate from that to a corresponding fluidity of kinship, or might we
rather argue that the instability we see in other areas might have led to a
strengthening of kinship as a unit of social organisation? It is ultimately impossible
to choose between these options. What seems clear, though, is the importance of
the local community in determining acceptable or unacceptable courses of
action. This might have transcended the importance of family.
As I have mentioned, Salic Law is full of public rituals
like that in clause 60, carried out in the communal gaze. Like sixth-century
burial ritual, they
create memorable scenes that record acts and decisions in a situation where
written records seem not to have impinged on the concerns of the law’s
compilers. They are mostly – though far from entirely – absent from Salic Law’s
seventh-century equivalent, Ripuarian Law. But the absence from Ripuarian Law
of these rituals is probably related precisely to two things. First: Ripuarian
Law frequently states that you can get out of the usual procedures of customary
law via the use of documents. We have surviving examples of model documents
drawn up precisely to do the sorts of exceptional thing that Salic Law required
some kind of public performance to carry out. But access to written documents
was socially restricted, so one of the ways in which the increasing rigidity of
the social hierarchy manifested itself may have been in the limitation of the
opportunities to avoid restrictions of custom to people of higher social
classes. Related to that is the second point, which concerns time. Salic Law is
very much about the here and now. It has almost no concern with the projection
of situations, or how they might change, into the future. What it does, as I
have said, is prescribe memorable rituals as records of decisions, but clearly
the longevity of such communal memory was limited. Ripuarian Law has much more
interest in the future. To some extent that is visible in the way it talks
about the preservation of decisions in written documents, records which,
potentially, can be kept forever. It also worries about extending the memory of
public ritual into the future. If you do not record something in
writing, bring small boys to the assembly and box them round the ears so they
remember the day that a particular thing happened. Most specifically, there was
no need for the ritual of chrenecruda. Where, in Salic Law, someone who could
not pay a fine underwent the ritual of throwing earth over living relatives,
rippling out to those related within three generations, the equivalent law of Lex
Ribvaria simply says if you cannot pay, your family pays over three generations
– your children and grandchildren keep paying until the sum is paid off: again we
see that concern with the future, and no need for ritual. The sort of decision
made via the ritual of PLS clause 60 was recorded by drawing up a
written document, and – I assume – was an option only available to people of a
certain status.
*
I have used this odd little clause from sixth-century
Frankish law to try and make, or reinforce a number of basic points. Above all,
kinship ties are socially constructed; where social norms do not regard
relationships as kin relationships, regardless of biological relationship,
kinship does not exist; the converse is also true: social norms might regard
kinship very much as existing between people who have no genetic connection. In
turn, people might have stronger affective ties with people with whom they have
no kinship ties of any sort. More importantly, those relationships, ties and
obligations are not immanent; they do not exist automatically; people are not
automatically obliged to act in predictable, prescribed fashions simply on the
basis of the existence of a relationship as, what Bourdieu called ‘official
kin’. This view of early medieval people as keyed into extended kinship webs
which dominated their everyday lives via systems of familial honour and shame,
rather like north-western European views of Mediterranean (or, conversely,
‘Celtic’) societies, is one that ricochets between poles of condescension and
romanticism. Clearly, outside the ‘effective’ or practical kin of the immediate
nuclear family, early medieval people frequently did choose their family;
contingently deciding when, and when not, to make their implication in a
particular kinship relationship part of their identity and use it to justify
their actions. It seems to me however to be going too far in the opposite
direction to see early medieval actors simply as ‘rational actors’, driven
purely by dispassionate calculation. People killed and, in the case of Duke
Berthefried, who could – possibly – have lived, died for the sake of
affective bonds, whether or not based upon kinship. Both of the extreme views
make early medieval people into programable two-dimensional cut-outs. The
people of the post-imperial centuries in western Europe, as throughout the
globe throughout history, were much more unpredictable and interesting than
that.
