Catholic Encyclopedia (1913)/Lex

(LAW)

The etymology of the Latin word lex is a subject of controversy. Some authorities derive it from the Old Norse lög, neuter plural of lag, which would be the root of the English law, signifying "to put in order", "put in place". Others derive it from the Latin legere, "to read", thus giving it an exclusively Latin origin (Bréal, "Sur l'origine des mots désignant le droit et la loi en latin" in "Nouvelle Revue historique de droit français et étranger", VII, Paris, 1883, 610-11). We shall not examine here the divers meanings of the word law, but merely treat of certain expressions beginning with the word lex or leges.

(1) Roman Use

The word lex followed by a personal name in the feminine gender (Lex Julia, Lex Papia Poppæa) signified, in Roman Law, a lex rogata, i. e. a legislative enactment that was the outcome of an interrogation (from rogare) by the magistrate of the Roman people: the magistrate proposed the law to the citizens, and they declared their acceptance. The law was called by the family name of the author or authors of the proposal.

(2) Leges Romance of Teutonic Peoples

While official or private collections of Roman Law made under the Empire are called codices, e. g. "Codex Theodosianus", probably because they were written on parchment sheets bound together in book form, the title lex was given to collections of Roman Law made by order of the barbarian kings for such of their subjects as followed that legislation. When the Teutonic tribes occupied territories that had once belonged to the empire, the natives of these territories continued to follow the Roman Law. It was for them that Alaric II, King of the Visigoths, published, probably in 506, the "Lex Romana Wisigothorum" (Roman Law of the Visigoths); according to the most probable opinion, he wished to reduce the number of sources that the lawyers of those days had to consult for the Roman Law, and which were too numerous for them to understand thoroughly. This code was only one year in force in Gaul, but it lasted in Spain till the middle of the seventh century. So long as it continued to be applied as the personal law of Romans under the Gothic regime, it was the accepted form of Roman Law in the West. It is also called "Breviarium Alarici" (Résumé of Alaric), or "Breviarium Aniani", from the name of the referendary by whom the copies of the "Lex Romana Wisigothorum" were signed; even the name "Lex Romana" was sometimes given to it. The "Lex Romana Burgundionum" is due to the initiative of Gundobad, King of the Burgundians (died 516). It was enacted for the Gallo-Roman subjects of his kingdom, and was not, like the preceding collection, a résumé of the Roman Law, but rather a kind of official instruction drawn up for the use of judges, calling their attention to the more important points of Roman legislation. This collection is known also as "Papianus", or "Liber Papiani". The "Lex Romana Rætica Curiensis" is of a later date (middle of the eighth or beginning of the ninth century), and differs very much in character from the preceding "leges"; it is a collection containing extracts from the "Lex Romana Wisigothorum" and enactments from German law, drawn up for Rhætia and the Grisons. With these might be mentioned the "Lex Dei quam precepit Dominus ad Moysen" (Law which God gave to Moses), now commonly known as "Collatio legum Mosaicaruni et Romanarum", a comparison of Mosaic and Roman laws made by a Christian between 390 and 438, to show the extent to which they agreed. The "Lex Romana canonice compta" (i. e. concepta or composita) is a collection of Roman laws made in Italy in the ninth century (after 825). It comprises those enactments of the Roman Law, and especially of the Justinian Code, which were of special import to the Church.

(3) Leges Barbarorum

This title denotes the collections of laws drawn up by the barbarian kings for their Teutonic subjects. It is difficult to assign a precise date to each of these collections; several of them were reissued at a later period, and the earliest form has not always been preserved. The most ancient of these compilations is the "Lex Salica", the earliest redaction of which does not indicate clearly a Christian or a pagan origin; it is believed to date from the reign of Clovis, between the years 486 and 496. The most important new redaction is the "Lex Salica emendata" (a Carolo magno emendata), a product of the Carlovingian age, though apparently it cannot be attributed to Charlemagne. In the fourteenth century the Salic Law was invoked to exclude women from the succession to the French throne. The "Lex Ribuaria" or "Ripuaria", reproduces in part the Salic Law, but it is manifestly influenced by Christianity and the Roman Law. It was drawn up by the authority of a Frankish king, and in its primitive form dates apparently from the sixth century. The "Lex Barbara Burgundionum" belongs to the fifth century and is attributed to King Gundobad, who promulgated the "Lex Romana Burgundionum"; under the Carlovingians it was ordinarily called the "Lex Gundeboda", law of Gondebaud, whence its French name, "Loi Gombette". It is a collection of the ordinances of that prince and his predecessors. The first redaction of the "Lex Barbara Wisigothorum" belongs to the reign of King Euric (466-84), but it was revised by several of his successors. In the complete form in which it has reached us, it cannot be older than the end of the seventh century. It was modified by the Justinian Code and especially by the influence of Christianity. The "Lex Allamanorum" (Law of the Allamani) was drawn up in its definitive form probably between the years 717 and 719 by Duke Lanfridus; the "Lex Bajuwariorum" (Law of the Bavarians) about 748-52; the "Lex Frisionum" (Law of the Frisians) dates back to the second half of the eighth century. Authorities attribute to the Synod of Aachen (802 or 803) the "Lex Saxonum" (Law of the Saxons), and the "Lex Angliorum et Werinorum, hoc est Thuringorum" promulgated for the inhabitants of north-eastern Thuringia. The "Lex Chamavorum" (Law of the Chamavi, identified with the inhabitants of the Lower Rhine and the Yssel and the Netherlands territory of Drenthe) was composed about the end of the eighth or beginning of the ninth century (about 802?). The first version of the "Edictus", or" Lex Longobardorum", enacted for the Lombards of Italy, belongs to the year 643. It was revised by King Grimoald in 668 and by King Liutprand between 713 and 735, while additions to it were made by King Ratchis in 745-46 and King Aistulf in 755. A critical edition of the "Leges Barbarorum" and of certain "Leges Romanorum" is published in "Mon. Germ. Hist.: Leges", III-V (Hanover, 1863-89), and "Legum Sectio I", I-II (Hanover, 1902).

(4) In the Middle Ages

In this period lex was employed to denote a body of rights. The name lex metropolitana signified all the rights of a metropolitan over the suffragan bishops of his province (c. xi, "De officio judicis ordinarii", X, I, xxxi); by the name lex diœcesana (c. ix, "De majoritate et obedientia", X, I, xxxiii), or lex diœcesanœ jurisdictionis (c. ix, "De hæreticis", X, V, vii), was meant all the rights of a bishop in his diocese. However, a distinction was drawn later both by law and by the doctors between the lex diœcesana and the lex jurisdictionis (c. xviii, "De officio judicis ordinarii", X, I, xxxi), the former dealing with the profitable rights of the bishop to certain fixed incomes like the procuratio, the cathedraticum, etc., and the latter treating of the other rights of the bishop, e. g. the exercise of jurisdiction in contentious matters, the ministry of souls, the power and right of ordaining. This distinction was made in view of the exemptions which the religious orders enjoyed in their relations with the bishops. The definition given of these two leges by Benedict XIV does not seem accurate; according to that learned canonist (De synodo diœcesana, I, iv, n. 3), the lex jurisdictionis is the complexus of rights which a bishop has over exempted regulars; the lex diœcesana, the complexus of episcopal rights from which the regular orders are exempt (Scherer, "Handbuch des Kirchenrechtes", I, Graz, 1886, 560). This distinction is no longer of any practical importance.

MOMMSEN, Manuel des antiquités romaines, French tr. GIRARD, VI (Paris, 1888), i, 351 sqq.; KRUGER, Histoire des sources du droit romain, French tr. BRISSAUD (Paris, 1894); ESMEIN, Cours élementaire d'histoire du droit français (4th ed., Paris, 1908); VIOLLET, Histoire du droit civil français (Paris, 1893); BRUNNER, Deutsche Rechtsgeschichte (Leipzig, 1887).

A. VAN HOVE