The Burgundian Code, aka Lex Gundobada, Gundobad’s Code, Gundobald's Code, Liber Constitutionum, Lex Burgundionum or Lex Romana Burgundionum, was published in about 475 in Burgundy, now Southeastern France. The codification married German to Roman law as well as advancing other unique and novel aspects of written private law which would, in turn, permanently alter the course of the laws of Europe.
The Bugundian Code would be one of the first of a slew of legal codes, adopted in rapid succession by the wide variety of galic tribes in the wake of the Roma retreat from what is now France. The abundance of different legal codes throughout France would, by the time of Charlemagne (742-814), become a problem but for now, circa 500, it was innovative.
In the 5th and 6th centuries, Europe was an ever-moving battle ground. The Roman (just like the Chinese empire) was imploding. They retreated from their remote holdings. The Franks, the inhabitants of Gaul (Northwestern France), were happy to oblige and expand their land, following the Roman’s retreat South.
Along that path, the Franks ran into their German cousins, another aggressive tribe known as the Burgundians or Burgundes, who cut the Frank’s southern march, by occupying the South of what is now France.
The Roman influence ebbed and flowed as it left but in 436, the same year the last of the Romans finally left the Island of Britain, the Burgundians were defeated by a Roman mercenary army. The Romans relocated the Burgundians to a new territory, just North of Lake Geneva, where the Burgundians rebuilt their kingdom but as state subservient to Rome, with their capital being the present Austrian city of Vienna and, later, Lyons. They were also required to accommodate a strong minority of Romans that resided in the new territory.
It was here that Gundobad (modern scuplture of him pictured; also spelled Gundobald) reigned over the Kingdom of Burgundy from 474 to 516, a kingdom which already had a tradition of oral and custom-based law, although to date not written.
The Burgundians were not unlike their German brethren or, for that matter, the English, in holding dear to a system of unwritten customary law. Indeed, the very philosophy of English common law is that it derives from unwritten tribal customs for which judicial decisions are merely a reflection and a mode to make such customs permanent.
Drew reflects that:
"The Lex Gundobada represents a trend away from tribal custom based on moral sanction to royal enactment based on political authority and the power of the king."
The reason for the Code may have been far simpler: the Burgundians learned the art of writing, Latin, from the Romans and wanted to set their laws down for posterity and distribution.
In the Burgundian Code is a reference to an ancient legal case in which a widow known as Aunegild, agreed to marry an important royal official, the latter paying a marriage price for her hand. But before the marriage could occur, Aunegild took and acted upon a fancy to another man, Balthomodus.
The judicial decision was that Balthomodus could keep his bride if he could establish through witnesses that he was unawares of Aunegild’s previous pledge, and Aunegild reimbursed her original suitor.
The Burgundian Code refers to this case and adds "we command that the judgment ... be established to remain the law forever...."
Initially, in their customs, the Burgundians, of German descent, held dearly to a unique feature of German law: that each citizen was marked with his or her tribal law and as such had a right to be tried in accordance with the law of his original home or tribe, no matter where they lived or where any legal dispute later arose.
When the Germans expanded in to the territory vacated by the retreating Romans, their customary law conflicted with the static, logical and written law of the Romans, as later embodied by Justinian’s Code but, in this territory, more so the writings of the Roman jurist Gaius.
That law did not recognize the shadow of tribal law associated with each of a body of migrant people. For the Romans, it was one people, one law and to make sure of that, they wrote it down, first in simplistic codes such as the Twelve Tables, and later in much more comprehensive texts such as the Corpus Juris Civilis.
The collision of the two systems of law was exacerbated by the large number of Romans that lived in the new territory.
The Burgundians wanted to be accepted by the Romans as their trade routes and commercial fortunes depended on it.
It was in that context that Gundobad sought to publish a unified code, something that would take the best from both the ancient German customs, and the Roman law.
Gundobad is widely recognized as the moving force behind the Code and is identified as such in the manuscript.
However, as Collins writes:
"The code known as Lex Burgundionum or the Liber Constitutionum was long thought to be by King Gundobad but it is now generally recognized that while most of the individual laws may date from his time, the collecting and codifying of them was carried out in the 2nd year of the reign of his son Sigismund (516-523)."
Katherine Drew writes that:
"As a code of law, the Lex Gundobada was one of the most influential of the barbarian codes.... The Burgundian Code is also important since it represents a transitional stage in the development of later European law.... the earliest fusion of Germanic and Roman law."
The Burgundian Code was published just a decade or two before the Salic Laws of Clovis I (Clovis, in his successful campaign to consolidate the Franks into one kingdom, subdued Gundobad at Avignon in 500).
Historians have identified 13 versions of the Burgundian Code of which the original had 88 titles, of which 1-516 were Gundobad’s original version which came out in bits and pieces between 501 and 517. As noted above, historians speculate that some of the titles were completed during the reign of Gundobad’s son Sigismund.
The actual text purports to date it to March 29, 475, "the second year of the reign of our Lord the most glorious king Gundobad" except that it goes on to refer to the venue of publication as Lyons. Gundobad’s capital was not Lyons; it was Vienna.
What follows is from the preamble and the text of the Burgundian Code:
"... the love of justice through which God is pleased and the power of earthly kingdoms acquired....
"... all administrators and judges must judge from the present time on between Burgundians and Romans according to our laws which have been set forth....
"We believe the condition of this law should be imposed on us that no one may presume to tempt our integrity in any kind of case with favours or rewards....
"If violence shall have been done by anyone to any person, so that he is injured by blows or lashes or by wounds, and if he pursues his persecutor and, overcome by grief and indignation, kills him, ... then the guilty party shall be compelled to pay to the relative of the person killed half his wergeld...." (Title II, article 2).
"... The relative of a man killed must recognize that no one can be pursued except the killer because just as we have ordered the criminals to be destroyed, so we will suffer the innocent to sustain no injury."
"If a slave, unknown to his master, presumes to kill a ... freeman, let the slave be handed over to death and let the master not be liable for damages. If the master knows of the deed, let them both be handed over to death" (Title II, Article 3-4).
- Drew, K., The Burgundian Code (Philadelphia: University of Pennsylvania Press, 1972).
- McKitterick, R. (editor), The New Cambridge Medieval History (Cambridge: Cambridge University Press, 1995).