Guo Yihao, Institute of Legal History, Law School, China University of Political Science and Law
The Myth of Nations: The Medieval Origins of Europe, by Patrick Gere, Guangxi Normal University Press| XinminShu, February 2022, translated by Lü Zhao and Yang Guang, 262 pp. 64.00 yuan
One
Modern historiography was conceived and invented in Nineteenth-Century Germany as an instrument of European nationalism, and has since enjoyed great success in ethnohistory. However, while succeeding, the nationalist gas it emitted spread from academic and political circles and eventually penetrated into popular consciousness. In this sense, the removal of this consciousness has become a daunting problem for historians today, and in this sense, the book "The Myth of the Nation" can be seen as a conscious effort of the historian Patrick J. Geary, who seems to be more professionally obliged to face this problem as a historian of early medieval history.
This is, of course, closely related to the social and historical patterns of the late Roman Empire and the early Middle Ages in Western Europe. According to the ancient narrative of the Barbarian Invasions, the late Roman Empire, which in itself was not an ironclad political unity, was chiseled through by the Germans of the north and split into political bodies of different sizes, or barbarian kingdoms. This narrative is not modern, it originates in the eighth century AD, as the Lombard historian Paulus Diaconus, who wrote the Historia Langobardorum, said. Another clearer piece of evidence is the biography of the saints, Passio sancti Sigismundi regis (The Pain of King St. Sigismmon), written by an anonymous writer, which suggests that during the time of Emperor Tiberius, people migrated from Scandinavia to the banks of the Rhine. By the time of Emperor Valentibian, the descendants of these people had brutally invaded the people and lands that had submitted to the empire. This narrative of "barbarian invasion" continues into the modern era, with the Italian historian Arnaldo Momigliano arguing that Rome's decline was due to conquest and that the Germanic peoples occupied the western part of the empire with greater military might.
By the end of the last century, however, medieval historians, represented by the Austrian medieval historian Herwig Wolfram, replaced the narrative of "barbarian invasion" with the discourse of "ethnic migrations," or the history of Germanic-Roman interaction from a neutral perspective such as "globalization and migration." The historian's entry point, then, naturally shifts from military, war, and political domination to more social themes such as ethnicity, community, identity, identity, integration, and fragmentation. There is no doubt that Patrick Gerry wrote the book along the path opened by Herwich Wolfrum.
Over the past two centuries, Gerry argues, attempts have been made to map the characteristics of ethnic groups with the help of linguistic, archaeological, and historical methods, but eventually had to admit that these plans failed. The root cause of the failure is that the concept of ethnicity is the product of people's thinking. In his book, Gerry does not particularly emphasize and explain the criteria by which he himself distinguishes ethnic groups, but he cites the european inheritance from the classical period and the biblical division of social groups, dividing human beings into "legal" and "consortial" groups, the former based on law and fidelity, transferred by the process of historical change, and the latter based on descent, custom, and geography, not by the process of historical change.
As a legal historian, I may be more concerned and thoughtful about "legal" groups and "whether and how the law can shape ethnic groups" than other non-law readers. We take the imaginary ethnic groups of the Greek period as an example, and Herodotus believed that the eastern groups living in cold regions loved to eat dog meat and were barbarians. Ethiopians and Indians have black semen, while northern groups are tall and white. Compared with Herodotus, Aristotle believed that Eastern life was more prone to despotic rule and enslavement, and that barbarians were irrational people who needed to be ruled. The Greeks created a kind of substance and epistemology between "West" and "East" with both "kinship" and "legality", so that in the Greeks, "how law shapes ethnic groups" is not obvious, which may also be related to the underdeveloped legal system of ancient Greece and the lack of jurists in the true sense. This problem was evident in the interactions with barbarians during the roman period, especially in the late Roman Empire.
Two
The "Romans" was a legal rather than blood-related concept of ethnicity. In ancient Rome, whether a person was a free man or a slave, whether he was born a free man (ingenuus) or a liberated free man (libertinus), whether he was a sui iuris or an alieni iuris, whether he was a father or a son, whether he was a person with Roman citizenship, a person with Latin rights (Latinum), or a person who had Roman citizenship but did not have the right to vote, there are detailed distinctions in Roman law. There are also corresponding fixed legal procedures. For the Romans, having Roman citizenship meant having "libertas" because when they were flogged or sentenced to capital punishment, they could appeal to the Hundred (provocatio ad populum), as exemplified by St. Paul in the Book of Acts. The difference in legal and social status, the difference in moral evaluation, and the degree of punishment suffered by the Romans were also different, and the Roman jurist Callistratus of the Severus dynasty believed that the punishment of slaves was heavier than that of free men, and the punishment of those with poor reputation was heavier than that of people with good reputation. In 17 AD, the Senate decided to exile astrologers with Roman citizenship, while foreign astrologers were executed outright.
There is no doubt that Roman citizenship was a legal fiction, a political instrument, a legal weapon that Rome had carried with it since the beginning of its expansion in order to extend its rule. Externally, Roman citizenship distinguished between romans and Roman confederations, Latins, municipalities with partial citizenship, colonies, and other kingdoms. Internally, Roman citizenship created different legal and social statuses, distinguishing between formal Roman legions and auxiliaries, and thus Roman concepts such as minutio capitis.
In 212 AD, the Emperor of Caracalla issued an edict (Constitutio Antoniniana) granting Roman citizenship to all inhabitants of the empire (except the dediticii, which had lost all political rights), and from this moment on Roman citizenship had little value. The most important distinction between men and women in the Roman world, the distinction between slave and free man, was also replaced by other forms of distinction, such as between the honestiores and the inferior (humiliores). Commenting on the Law of Cornilla on Murder and Poisoning, the Roman jurist of the Severus dynasty, Aelius Marcianus, said that the penalty for violating the law was exile to an island with the confiscation of all property; Today, capital punishment is imposed, except for the noble, and the inferior citizens feed wild beasts or choose to exile the islands. This is a clear manifestation of the application of social hierarchy and identity sequences in judicial application. In education, the former worshipped the Paideia and developed their identities into part of the wider world, Romanitas. Another example is the early Christian congregations (ecclesiae), which were gathered because of their religious beliefs, which mostly appeared in the eastern part of the Roman Empire, such as antiochus, Alexandria, Jerusalem and other cities, but also in the cities of Rome, in the homes of weavers, weavers and shoemakers.
Three
The Myth of the Nation, Chapter 4 "The New Barbarians and the New Romans" and Chapter 5 "The Last Barbarians? In part, it tells the story of how the Germans used the legal tradition to construct a new identity for the people in the kingdom, and this story is reflected in the legal historiography of the relationship between classical Roman law and "Vulgar Roman Law." The concept of "vulgar Roman law" was first proposed by the German legal historian Heinrich Brunner, and from an institutional point of view, it refers to the legal codes created and promulgated by the Germans in imitation of Roman law (especially the Theodosius Code), reflecting the degeneration and degeneration of classical Roman law in the process of Germanization, including the distortion of legal language and the lack of jurists (although the Western Empire circulates a summary of the legal opinions of the Roman jurist Paul). Nevertheless, these laws played a crucial role in shaping the germanic community and in the integration of the Germans and Romans, including the Edict of Theodorici of the Ostrogothic Kingdom, the Breviarium Alaricianum of the Visigothic Kingdom, the Edictum Rothari of the Lombard Kingdom, and the Salic Law of the Franks. （Lex Salica）。 The same temporal and spatial and legal history material, in the view of another group of legal historians, is related to another subject, namely the question of the historical continuity of the legal order from the late classical to the early Middle Ages, the German scholar Heinrich Mitteis, the Austrian scholar Artur Steinwenter, and the Italian scholar Emilio Betti) has published papers on the subject. Of course, if law is regarded as a branch of civilization, then this question of historical continuity can be applied to any department of civilization at that time, even civilization itself. In the first half of the nineteenth century, Savigny, a giant of German legal history, in his seven-volume imperial magnum opus, The History of Medieval Roman Law, regarded the legal order of the fifth and sixth centuries AD as one of the forms of medieval Roman law (Gestalt).
In many places, Gerry mentions the epitaph of a Pannonian soldier in the third century AD, which reads: "I am a Frankish citizen, and a Roman soldier armed with weapons." (Francus ego cives, miles romanus in armis) Gerry argues that a barbarian would use the Latin word "civis" (citizen), a Latin word with a strong legal character, to describe his identity and express personal identity, which means that Roman politics and Roman law have profoundly affected the Germans.
This legal construction took place not only in the Frankish kingdom, but also in the Ostrogothic king Theodoric the Great, who regarded "civilitas" as his social ruling principle. From cassiodorus' Variae and prefaces to Theodoric's Edicts, we can glimpse that King Theodoric tried to persuade the Ostrogoths to accept rome's principles of "rule of law," inclusive traditions, and the principles of consensus in civil society, and to protect them with the bravery of the Gothic army. The preface to the Edict of Theodoric tells us that the Ostrogothic king, who wanted to use the authority of law to counter injustice and create peace, ordered both the Ostrogoths and Romans in the kingdom to obey public law. In a letter to The eastern Roman Emperor Anastasius, Theodoric told the Emperor with great humility that he wanted the kingdom to be at peace and protect the interests of the people, so he would follow the rule of the Empire and make laws.
Theodoric practiced an ideology known as "ethnographic ideology", which distinguished between the Goths as soldiers and the Romans as civilians—or rather, the soldiers and the taxpayers who fed them: the Romans paid taxes, the Goths collected taxes; The Romans produced grain and the Goths fought. A well-known example of this ideology is Legal Procedure III of Book VII of Cassiodoros's Letters, entitled "Formula comitivae Gothorum per singulas civitates", which provides that if a dispute occurs between two Goths, the appointed governor (comes) is to adjudicate by reference to "our edict", the Theodoric Edict; If the dispute had taken place between a Goth and a Roman-born, the governor could have accepted a professional and prudent Romano to quell the dispute on the basis of aequabili ratione; If the dispute takes place between two Romans, let the Romans sent to the provinces as cognitores hear the case. The Romans and The Goths applied different judicial systems and tried according to their own laws, and only in this way could they create universal peace, so that both the Goths and Romans could enjoy a benevolent divinity and a sweet leisure. Theodoric told the Goths that the Romans were their neighbors, and at the same time he told the Romans to love the Goths because it was the Goths who defended the "universam rem publicam" in time of war. By this point, Theodoric's strategy of using law to shape identity had become clear: in terms of descent, there lived two peoples in the Ostrogothic kingdoms, and in terms of law, there was only one kind of populus in the kingdom, who, despite differences in the application of law, lived in the same republic, and they defended the republic together and enjoyed peace and leisure together.
In addition, Theodoric revived the "free" discourse familiar to the Romans. Freedom was pluralistic for any era and for any people, but freedom in the legal sense was the one that the Romans valued most and practiced the most, meaning the system of "appealing to the people" without arbitrary punishment by the magistrates and the right of the financier to aid (ius auxilii), which the historian Livius regarded as the two bastions of Roman freedom. In a Latin inscription (CIL, X, 6850), Theodoric is portrayed as "the guardian of liberty and protector of the name of Rome"; In the epistles written in his name (Variae, 3. 11. 1; 3. 43. 2), Cassiodo ross described him as "master of liberty" and "defender of liberty." Theodoric's "liberal" discourse is not only a political propaganda slogan, but it is also embodied in the above-mentioned heterogeneous and unified legal procedures and judicial settings, and it seems that we can simply summarize his strategy of rule as two sides of the same body, one side is the legal system, the other is the national policy, and the other is free, peaceful and unified, and the citizen Gothic kingdom.
Similarly, law was an important tool in shaping the Lombards. Beginning in the mid-seventh century, barbarian warriors of various origins serving in the Lombard kingdom were required to obey Lombard law unless the king agreed that they could practice another legal tradition. After the succession of King Aistulf of Lombardy, he promulgated laws that in turn shaped the identity of the "Romans", which equated the Romans with neither the descendants of the native inhabitants of Italy nor the Romans with those who followed Roman law, but with those who lived on Italian soil and were directly controlled by the Byzantine Empire through Ravenna or controlled by the Pope. Thus, the "Romans" became a political and regional term in the era of the lombard kingdom, basically equivalent to the political forces supporting Byzantium.
Four
In medieval Western Europe, it was not law, but religion, that ultimately triumphed over ethnic identity. The Visigoths attempted to create a form of government distinct from that of the Ostrogoths and Lombards: to establish and maintain two social groups, one orthodox, Roman, and civil, and the other Arian, barbarian, and military, and to unify the two social groups under the leadership of a barbarian kingdom authorized by the Roman Empire, but this political system ended in failure. We can say that the Arian faith constituted an important element of visigothic identity, and it was precisely because of this belief that they broke with the Romans who believed in orthodox Christianity, and also led to the bankruptcy of the form of government that the Visigoths tried to create.
The final triumph of religion in shaping ethnic groups is chronologically beyond the scope of the book The Myth of the Nation, roughly until the Carolingian period, when the Roman Empire was equated with a Christian kingdom composed of Latin Christians (res publica Christiana), and the concept of the European kingdom (regnum Europae) was also exploited by carolingian rulers. At the same time, Charlemagne of the Carolingian dynasty also recognized the political and legal Roman Empire as located in the East, in order to achieve a situation in which the western Christian kingdom in the religious sense and the Roman Empire in the political sense were in a situation where the eastern Roman Empire was in a faceres imperium bipartitum. Thus, religion constructed the people of the universal Christian kingdom, as opposed to the pagans, the Jews and the Saracens. The war between the different Christian kingdoms was regarded as a "civil war", while the crusades against the pagans were "just wars", in the sense of international law.
The story of the legal shaping of ethnic groups was not revived until the sixteenth century in the early modern period, and from the perspective of legal history, it was mainly the contribution of Italian and French humanist jurists, and its background was the collapse of the universal Christian kingdom and the birth of the modern sovereign state. Modern sovereign states have abandoned the centuries-old pursuit of the "universality" of law (including religion) and the application of Roman law, hoping to excavate their own customs and customary laws, devote themselves to codifying the codes of customary law, and use their own laws to shape the identity of the nation, and this effort to shape the identity of the ethnic group with law has finally reached its peak in the codification of the civil codes of various countries and the concept of "citizens" and "citizens".
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