«by Thor H. Templin, MA, MA A paper submitted in partial requirement for a course in Comparative Law at Marquette University Law School, Professor ...»
Towards a Unifying Signified of
Ancient and Modern Pan-Germanic
Legal Theory, Tradition and Folklore
by Thor H. Templin, MA, MA
A paper submitted in partial requirement for a course in Comparative Law at
Marquette University Law School,
Professor Michael Waxman, Spring 2008
Table of Contents
1.0 Introduction 2
1.1 A Note to the Reader regarding Usage and Citation 4
2.0 Folkright - Towards a Definition of the Concept 5
2.1 The Sign and its Signified and Signifier 8
3.0 Folkright in the Ancient Germanic World 9
3.1 West Germanic Cultures 10 3.1.1 Sassen Speyghel 11 3.1.2 Lex Alamannorum 11 3.1.3 The Frankish Empire 11 3.1.4 Anglo-Saxon England 15
3.2 North Germanic/Norse Cultures 16
3.3 East Germanic Cultures 16
4.0 The Historical “Death” of Folkright: 1066 17
5.0 The Reemergence of the Concept of Folkright (as a Signifier) 17
5.1 The Charter of Liberties, the Manga Carta Libertatum and the Bill of Rights 18
5.2 The German Peasants' Wars of 1524-1525 19
5.3 The American and French Revolutions 19
6.0 Summary and Conclusions 21 Endnotes 21 1.0 Introduction This paper examines the concept known as folkright and then comparatively examines its evolution and change over time throughout the various Germanic legal systems, traditions and cultures – beginning with its embodiment in early Germanic tribal law and ending with the modern day. Over the course of the examination, this paper will posit how folkright is a unifying signified and signifier (defined in section 2.1) between ancient and modern Pan-Germanic legal theory, tradition and folklore.
By drawing on approaches and theories from jurisprudence, linguistics, folklore, philosophy, sociology, mythology, history and political science, a picture of the evolution of his term and its usage over time will created.
Pan-Germanic, here, encompasses those peoples and later nations having their principle origins in the Germanic peoples. As modern states would be concerned, nations stretching from Germany in the east across the Atlantic to the United States in the West (including non-Germanic-speaking France and Wallonia) and as far south in Europe as Austria and as far north as Scandinavian. Given the length of this paper and other related limitations, not every nation will be examined; however, a demonstrative sampling of events from various peoples and nations will be used to reach the aim of this paper.
From the earliest legal traditions preserved in the Germanic world, the concept of folkright exists and is central; it was the balancing principle of just government and the guiding tool of justice and fairness. As the concept of folkright became more clearly defined and understood in antiquity, its usage in legal texts and assertions made because of it increased.
Although the concept of government derived by the people, procedural fairness and balancing rights of the freeman against the governing are not uniquely Germanic, the existence in the ancient Germanic of these concepts – albeit it unified into one term – shows a continuance within the cultural Folkright: Towards a Unifying Signified of Ancient and Modern Pan-Germanic Legal Theory, Tradition and Folklore Templin values of folkright as a native, fundamental and basic shared value. The concept might be a shared Indo-European value, but such an exploration is beyond the scope of this paper.
Western historians, traditionally, have been motivated to show a continuity of “Western Culture” from the ancient Greeks through the Romans and then through Romanization spread by Christianity 1 2.
This practice has allowed for pre-/non-Christian cultures to be considered as primitive, backwards, barbaric or salvages. One need not look much further than any history text book to see instances of arguably pejorative words such as barbarian3 or primitive (which inherently suggests an axis of superiority-inferiority). This institutionalized arrogance and bias has in the last hundred years begun to
changing paradigm, the impact and importance of the cultural contributions given by pre-Christian cultures in Europe has been acknowledged and examined.
As Christianization took hold over those cultures in the later part of the first millennium CE, a Romanization of the limited, informal or loose governmental structures was imposed by the privileged classes (who are defined in section 2.0) and the clergy – a change that would eventually evolve into feudalism.
The resulting restructuring into a feudal system was largely inconsistent with the concept of folkright, and as it spread, the concept of folkright was repressed or purged from the formalized legal structure, which ultimately solidified the power of feudal lords and monarchs. Many central cultural aspects that Christianization attempted to suppress or subvert remained dormant among the masses – the folk – and reemerged later on. Evidence of this is best seen in folklore – a term, which etymologically means that very thing (i.e., Old English folclár “folklore” meant an instruction/sermon/guide originating from the masses – and even into the modern day of parallel and contradictory “religious” concepts (e.g., the non/pre-Christian concept of ghost, which is irreconcilable under normative Christian dogma). The
governmental systems but would be revived in the twelfth and thirteenth centuries CE 5 as well as reinvigorated over and over again into the modern age in cycles of suppression and reemergence until the rise of the modern-day mass culture.
As I have written this paper towards a diverse audience, I feel it important to make a few remarks regarding usage (including structure and format) and citation.
As stated earlier, this paper draws upon aspects and theories from jurisprudence (specifically natural law and analytic jurisprudence), linguistics (specifically socio-linguistics, semiotics, semantics and historical/comparative linguistics), folklore, philosophy, sociology, mythology, history and political science, this paper will assume the reader has only minimal, passing knowledge of these topics and theories and, therefore, provide succinct explains where appropriate, and further readings will be suggested in the corresponding endnotes. Several sections of this paper contain encyclopedic type content; in those instances, some source is cited for general verification or further reading.
Because of the polyglot nature of this paper and the lack of uniformity of spelling conventions in several of the language used herein, the term folkright has been selected as the standard – both for use in spelling and terminology – for consistency, uniformity and clarity. Whenever a quotation appears in a language other than modern English, the word or phrase that carries the same meaning as folkright, it shall appear as a boldface word in order to offset it from the rest of the text, because for the reader untrained in earlier English languages and dialects, difficulty decoding spelling variations may occur.
Translations into modern English are also in brackets after all non-English or a non-modern-English terms or quotations.
Note that words marked with an asterisk at the onset are either unattested and reconstructed
Citation to historical manuscript sources in the endnotes are referenced in the most easily accessible way, that is the name of the document as it best can be described, followed by a manuscript citation using the Bosworth key to cite sources.6 Lastly, because of the largest breath of ancient Germanic law existed in Anglo-Saxon and Danelaw England, examples will be weighted from those sources.
Perhaps the most flexible aspect of human culture is language; precise implications and meanings of words change not only over the course of generations but over the course months, weeks and, in some instances due to speed of information exchange, days 7. For millennia, philosophers and philologists theorized that language is the constant used to define the world around us. 8 Because of the two preceding factors, of greatest importance is what a word meant at the time it was used, not what the meaning is in the most current conceptualization.9
translated as “the understood compact by which every freeman enjoys his rights as a freeman“, “public right”, “law of the commons”,10 it has meant much more. There are four main parts within concept to
1. “common law” (folcriht, compounded folc “commoners, masses, non-privileged” and riht “law, right”) – being the right to participate in the legislating of law and the power from which the legislating and the monarch derive their powers;
2. freedom11 (from Old English freo “free, exempt from, not in bondage”, from Proto-Germanic *frijaz, from Proto-Indo-European *prijos “dear, beloved”12 );
3. inherit (i.e., divinely granted) or inalienable or human rights; and
Folkright was the common, freeman's balance against the established governing nobility:
folkright balanced against the rights of privilege. The rights of privilege were the advantages of the privileged class, which were the nobility and the government. Privilege, historically, did not necessary attach to property (land) ownership but rather to authority and place in governmental hierarchy. The importance of being landed was a central concept in the feudal societies that arose towards the end of the first millennium CE. Prior to the feudal system, freemen could claim hold over land under folkland13, a right derived from folkright and a concept beyond the scope of this paper.
Below are three examples of folkright used in tenth century Anglo-Saxon England (two from
illustrative of the varying usage of the term folkright. [Punctuation added.] 1. “Arære up Godes riht; and heonan forþ læte manna gehwylcne, ge earmne ge eádigne, folcrihtes wyrð, and him man rihte dómas déme”14
In the first example, there are two words that are key: 1) dom17 (“law”18 and which became the modern English “doom”); and 2) wyrð (“worth”). Folkright displays two meanings here. It conveys, in the context of the statement as a whole, justice and fairness – equality under the law and fairness of process, “righteous dooms”. What remains of written Germanic law (referenced as the King's law or the law of the privileged in those texts) consisted largely of recommended remedies, valuing injuries and setting forth duties and procedure of courts and court officers. The King's law, in contrast to folkright,
offered alternatives to traditional tribal blood feuds and duties 19 – thus preserving both peace and allowing the harmed to save face by receiving justice without having to take any individual action.20 These remedies set forth recommend compensation values on property (i.e., Old English feoh “money, property, cattle”) damaged or lost as well as a schedule to determine weregild 21 (literally, “man-price/ gold/debt”, value of a person who died as a result of conduct of another). 22 By the use of the wyrð here and the invocation of God's right/law at the onset, the king has valued everyone to have folkright and made such an inherit and inalienable right.
In the second example, folkright is used to convey lack of bondage or freedom and inherit rights.
The empowered person was able through force of arms to take away the freedom (i.e., to put into bondage) and inherit rights of others (namely foes).
In the third example, the word bót – compensation as dictated by the king's law (akin to the later concept of a judgment) – is the object modified by folkright, which is an adjective here. The king is making his own orders empowered not by his own authority (i.e., his privilege) but by folkright, equating folkright with lawful.
Several sources from throughout the Germanic world have evidenced that kings would normally swear to uphold folkright at their coronation (even William the Conqueror who later de jure ended folkright), suggesting the source of kingship was neither divine or by means of arms but by right of the masses. The invocation to uphold folkright by a king draws a striking comparison: Folkright acted much like what we would consider constitutional law today, i.e., a law that no above all others, including the king. Indeed, in many examples, the kingdom's weregild (i.e., cyne-gilde “kingdom-value”) by
folkright belongs to the people. The example below is from the laws of Mercia23 [punctuation added]:
“Ðonne bið cynges cynges anfeald wer-gild vi þegna wer be Myrcna lage þ is xxx þusend sceatta þ bið ealles cxx punda. Swa micel is þæs wer-gildes on folces folc-rihtes Myrcna lage. And for þam cyne-dome geborað oðer swilc to bote on cyne-gilde. Se wer gebirað magum þ seo cynebot þam leodum”
-7Folkright: Towards a Unifying Signified of Ancient and Modern Pan-Germanic Legal Theory, Tradition and Folklore Templin [Then is a king's simple weregild: six thanes' value by Mercian law, that is, thirty thousand shillings, and that is altogether 120 pounds. So much is the weregild in the people's folkright by Mercian law. And for the kingdom there is due another such sum as bot (remedy) for kingdomgild (kingdom's value). The weregild belongs to kindred (i.e., the privileged), and the kingdombot to the people (i.e., the folk/masses/commoners).] The complexity of the meanings and usage of folkright and its elevation as an inherit and fundamental right strongly suggest that it is a basic cultural signifier and signifies a common universal value shared by the culture as a whole.
2.1 The Sign and its Signified and Signifier24 Identifying and attempting to understanding signs and their corresponding signified and signifiers has long had a place in philosophy and more recently also in linguistics (especially in the subfields of semantics and semiotics), psychology, anthropology and sociology. Two theories exist in dissecting signs (Dyadic25 and Triadic26 ); the latter built upon and expanded the former.