The Law 155
the so-called leges barbarorum, a body of law that owed more to the traditions
of Roman provincial practice than to the presumed primitive customs of the
Germanic forests.
Vulgar law certainly marked a decline in classical standards of technical
precision and artistic elaboration. But it did not necessarily entail a decline in
legal erudition.22 Trained lawyers and legal experts remained in high demand
throughout the later Roman Empire, serving as advisors (assessors) in the late
imperial scrinia.23 Only after the Visigothic sack of Rome in 410 did their avail-
ability become somewhat of a problem.24 Cassiodorus, too, attests to their
continued importance in Ostrogothic Italy.25 But as the Edictum Theoderici
(ET) amply illustrates, knowledge of some of the more complex and technical
aspects of classical jurisprudence were no longer necessary or even practical.26
One example of a loosening of legal precision is what the compilers made of
patria potestas (paternal authority). At ET 94, parents could sell children in
potestate under certain conditions: “Parents who are compelled by necessity
to sell their children for the sake of vital necessities shall not prejudice their
ingenuus status; for the value of a free person is considered inestimable.”27
22 Wieacker, “Le droit romain”, pp. 201–23; id., “Vulgarrecht”, pp. 33–51. Wieacker reiterates
his position in his Römische Rechtsgeschichte, 211–18, noting that the vulgarization of late
Roman law was a matter of style rather than an indication of any sort of decline in legal
erudition. Moreover, Vandendriessche in her Possessio und Dominium demonstrates con-
vincingly that the fundamental classical differentiation between property and simple
possession was still well known and respected in post-classical legislation of the 4th
and 5th centuries, even if these differences were now versed in non-classical terms. See
also Honoré, “Conveyances of Land”, pp. 137–52, who argues against any such notion of
vulgarization. Similarly, through a systematic analysis of late imperial juristic literature
and the identification of practising judicial experts between the 3rd and 6th centuries,
Liebs shows that there was no decline in the standard of classical jurisprudence in Late
Antiquity. See his Die Jurisprudenz im spätantiken Italien; id., “Römische Jurisprudenz”,
pp. 201–17; id. (ed.), Das Gesetz in Spätantike; id., “Die pseudopaulinischen Sentenzen”,
pp. 151–71; id., Römische Jurisprudenz; and id., “Roman Vulgar Law”, pp. 35–53.
23 For the use of assessores in the imperial judicial system, see the introductory notes of Liebs
in his Vor den Richtern Roms. On the continuation of this institution in Late Antiquity see
Humfress, Orthodoxy, ch. 3.
24 Nov. Val. 32.6 (31 Jan. 451) referring to the lack of lawyers and judges since the time of
Alaric’s invasion.
25 E.g. Cassiodorus, Variae 1.12; 4.3; 5.4; 5.22.
26 Lafferty, “Law and Society”, pp. 377–404.
27 ET 94: “Parentes qui cogente necessitate filios suos alimentorum gratia vendiderint,
ingenuitati eorum non praeiudicant; homo enim liber pretio nullo aestimatur.” This is a
restatement of a legal opinion of the classical jurist Paul (PS 5.1.1), and as such develops