Johann Wolfgang Goethe-Universität, Frankfurt am Main
© 2010 by Daniela Fruscione. All rights reserved. This edition copyright © 2010 by The Heroic Age. All rights reserved.
Abstract: The adjective "Germanic" originated among eighteenth-century philologists as a way of referring to the West Indo-European language group that produced modern-day German and English, as well as the Scandinavian, Celtic, Slavic, Italic, and Greek language families. It is a designation imposed from the outside, and thus corresponds neither to any self-determined denomination nor does it reflect any provable consciousness of a common Germanic identity among early northern European peoples. As recent studies of early medieval ethnogenesis have argued, without a uniform identity-consciousness among the speakers of the Germanic dialects, the denomination "Germanic" can be considered nothing other than a mere scientific convention However, if one speaks about the Middle Ages, one can only do so badly without it. This essay traces the history of the term "Germanic" and discusses ways in which it might be re-defined in a manner more useful for current scholarship.
§1. The adjective "Germanic" originated among eighteenth-century philologists as a way of referring to the West Indo-European language group that produced modern-day German, Dutch, Frisian and English, as well as the Scandinavian, Celtic, Slavic, Italic, and Greek language families. This group was located originally in southern Scandinavia, Denmark and the northern coast of the continent—more or less from the River Ems to the River Vistula—and then in the course of time expanded continuously southward. Historical linguists long ago abandoned the idea of a uniform Proto-Germanic language in favor of a new definition of "Germanic" which agrees with today's definition of language as a closed continuum in relation to pre-literate times. From a linguistic point of view, "Germanic" is a spatio-temporal continuum affected by Grimm's Law. It implies no unity, not even necessarily comprehensibility among the speakers (Seebold 1998). Also out of date is the old ethnological concept of the "Germanic people" as a biologically defined ethnos; instead, it is thought that the concept of a "Germanic people" represents a Roman coinage dating from the time between Caesar and the third century, and popularized by Tacitus' Germania. The concept of a "Germanic people" is therefore an ethnological category of ancient origin, a designation imposed from the outside. It did not correspond (at least, at first) to any self-determined denomination nor does it reflect any provable consciousness of a common Germanic identity among early northern European peoples. As recent studies of early medieval ethnogenesis have argued, without a uniform identity-consciousness among the speakers of the Germanic dialects, the denomination "Germanic" can be considered nothing other than a mere scholarly convention (Pohl 1994; Timpe 1986).
§2. However, if one speaks about the Middle Ages, one can only do so badly without this convention; this seems to be the opinion also of the editors of the second edition of the Reallexikon der Germanischen Altertumskunde (Jankuhn and Beck 1968–2007). The intention to devote to Germanic antiquity the same attention that had long been devoted to Classical antiquity, has distinguished the work of Johannes Hoops as editor of the Reallexikon. In the initial edition of the Reallexikon, issued in Frankfurt between 1911 and 1917, Germanic antiquity was described only synchronically, as a frozen phenomenon (Hoops 1911–1919). The term "Germanic" itself was hardly discussed, and even less were the problems related to it expounded.
§3. A paradigm shift occurs in the second, much enlarged edition of Hoops's Reallexikon, begun in 1968. In both editions, keywords are described from both a philological and a technical point of view. In the second edition, though, these descriptions are accompanied by several substantial innovations: the inclusion of a discussion of our limitations when trying to understand the thought-world of pre-modern cultures, an account of major methodological disputes, and a reflection upon the traditional biases of the discipline. One consequence of this problematization of the hermeneutic terms and principles underlying academic philology is that our attitude towards the concept of "the Germanic" has fundamentally changed: "Germanic" has come to be conceived of more as a relational than a substantial idea.
§4. Many German scholars find it difficult to accept this deconstructed and reduced definition of "Germanic"; this is, in my opinion, a sign that the ideological motivations that informed the development of the term "Germanic" remain compelling. Although nineteenth century scholarship foregrounded the cultural influence of the so-called "Germanic" peoples, the appropriation of the term by the Nazis in the early twentieth century left the designation "Germanic" with unpleasant associations. Only in this context one can explain the fact that the Handwörterbuch zur deutschen Rechtsgeschichte omits an article about "Germanisches Recht" while including articles about "Deutsches Recht" (Thieme 1971) and "Indogermanisches Recht" (Schlerath 1978). Ironically, the embarrassment felt by some parts of the German academy concerning concepts which, owing to National Socialism, have aquired a negative connotation—not only "Germanic" but also "race" and "continuity"—is, when compared with the frequency of such terms in foreign research, a specifically German sensitivity (Härke 1997).
§5. That German scholarship was always in danger of succumbing to such anxieties also has something to do with the origin of "Germanic" as a cultural and historical category antithetical to "Roman." The current adherence by many scholars to a Romanocentric interpretation of early medieval legal history reflects an emphasis found in historical discourse generally. The rejection of "Germanic" and its overestimation are thus two sides of the same coin; however, the question of the actual value of "Germanic" as a category in early medieval legal history remains open.
§6. The importance of the Germanic peoples for the establishment of a medieval European legal culture has been questioned above all by historians. Against the assumption of a Germanic contribution in molding the early Middle Ages, they have mostly put forward arguments grounded in ethnographic empiricism. The fact that the name of the Germanic people (Germanen) is only a foreign denomination which did not correspond to any self-denomination as well as the absence of any provable consciousness of a shared Germanic identity makes identifying a Germanic contribution to medieval legal culture problematic. This skepticism has surfaced also in the essays by the Scandinavianist Klaus von See. In his ground-breaking work, he has emphasized those features of Old Norse which are not shared with the other Germanic languages. His essay on "Altnordische Rechtssprache" begins with a critique of the theories and methodologies of classical legal history and ends by proposing a programmatic consideration of Old Norse legal texts along with the entire Norse tradition as a distinct form of medieval Scandinavian literature (von See 2006a). Likewise, in the essay on "Selbsthilfe und öffentlicher Strafanspruch im mittelalterlichen Norden" ("Self-help and Public Criminal Jurisdiction") the original modes of self-regulation—feud and reciprocity—are regarded as typical of any early juridical relationships and not as specifically Germanic (von See 2006b).
§7. Von See is surely right that the monuments of early medieval law must be comprehended according to their own nature and their particular historical background, because the cultural conditions that prevailed in England, Gaul, and Scandinavia, were each very different. But if we regard "das Frühmittelalter als Epoche der europäischen Literaturgeschichte" ("The Early Middle Ages as an Era of Literary History") then we must be able to compare the sources on the basis of their common features also. However, expectations in this regard cannot be set as high as a few decades ago (von See 1985).
§8. This article attempts to deal with the question of whether one can speak about a "Germanic" or only about an "archaic" law. In the technical legal vocabulary which represents a layer between the legal system of the various Germanic peoples and elements of generally archaic law, there are identifiable and distinguishable Germanic forms and patterns. Von See's objections are justifiable from a sociological and anthropological point of view; however, one must deal with these texts also in historical terms. Studying a time and a continent—Europe in late antiquity and the early Middle Ages—in which less developed forms of legal culture had been for centuries overcome by more developed "Roman" forms, one can nonetheless identify "new archaic" traits, both as emerging substrata and as marginal phenomena. In their historical and geographical context and in relation to Roman legal culture, these archaic traits can be called "Germanic." This in no way precludes the possibility that other peoples, such as the Celts contributed in some ways to the formation of early medieval legal culture.
§9. Some participants of the Fürstenfeldbruck conference of which this study is a philological concluding analysis maintained the traditional, severely critical position, yet most legal historians were more receptive towards the "Germanic component" of early law. After a period characterized by the rejection of old views, German legal historians—even those who contributed in the sixties to this rejection—have begun to consider this reduced Germanic component as an element of the early medieval culture. Thus, Karl Kroeschell in his article about "Recht" in "Die Germanen," alongside a critique of the theory and methodology of classic legal history, has established that vulgar law exercized only limited influence upon the early medieval Leges. At the same time, though, he has described the Germanic legal words which appear in the laws written in Latin as "Indizien für germanische Inhalte" (evidence of Germanic contents) and thereby opened an avenue for new research.2 Considering the legal vocabulary as a measure of Germanic law, Kroeschell has recognized a remarkable gap in the exploration of the Middle Ages: the insufficient collaboration between legal history and linguistics (Kroeschell 1998, 221). This gap is particularly problematic, because if one wants to interpret the sources as products of their time and not in the context of modern terminology, one must also take into account the language. During the conference it became clear that, in this context, philology and history are able to support each other. My arguments elsewhere that there is a Germanic legal vocabulary in the semantic fields of "meeting places" and "composition" and Jürgen Weitzel's studies of "Dinggenossenschaft" (justice of the folk community) have, for a start, jointly demonstrated that there are aspects of early northern European law which lack any Roman influence (Weitzel 2006).
§10. In the discussion following a paper by Ennio Cortese at the conference on "La giustizia nell' alto medioevo" ("Justice in the Middle Ages"), Patrick Wormald likewise argued against an exclusively Roman interpretation of early medieval legal culture, emphasizing instead the contribution "from the Germanic newcomers themselves" (Wormald 1995). On that occasion Wormald presented a paper demonstrating that other forces shaped the early Middle Ages and its legal culture. In his talk, titled after Bede's phrase "Inter cetera bona . . . genti suae" (Wormald 1999a). Wormald examined the content and style of the oldest English legislation, reaching the conclusion that Æthelberht's law was "a presentation in a new cultural medium of basically traditional law" (Wormald 1999a, 186). Wormald's absence at Fürstenfeldbruck was very regrettable, and not only because of the topic of his lecture; he had announced a "classic Germanic" paper on a very controversial issue in early medieval research: "Werewolf: Another Look at the Early Germanic Outlaw in the Old English Evidence and Its Analogues." Through his presence, Anglo-Saxon legislation would have come to the fore. The special position of the laws which have been composed by the descendants of the continental Angles and Saxons less than two hundred years after their colonization of Britain—because of their language as well as the absence of Roman continuity in the continental sense in England—would have provided a much more nuanced picture of the problems of interpreting early medieval legislation. Strangely enough, appraisals of Anglo-Saxon law are very rare in the discussion that has continued since the sixties with the "Germanisches Recht als Forschungsproblem."
§11. It would, however, wrong Wormald if we ascribe to him a specifically Germanic interest. His work dealt mostly with the identification of the basis of early medieval legal culture by analysing both trans-European issues and, more specifically, early English legislation (Wormald 1977). Shortly after the conference he passed away. The study of history has lost an extraordinary intellectual whose remarkable erudition and refined writing skills have deeply influenced more than just the research on Anglo-Saxon England. He had always investigated English history in a wider continental context ("I find it impossible to understand the early history of this island in any other way") (Wormald 1999b, xi). His work encompassed both complicated issues in the fields of codicology and textual analysis as well as the portrayal of the protagonists of English legal history—of historiography (Liebermann, Maitland) and of legislative history (Offa, Alfred, Æthelred and Wulfstan) alike. Wormald's conributions also include his valuable handlist of legal cases from historical sources that provide an unmatched illustration of Anglo-Saxon legal practice (Wormald 1988). This last had a special significance for Wormald, because of his belief that "in the early medieval West the history of law and the history of legislation are not the same thing" (Wormald 1999b, xi). In his last work, The Making of English Law: King Alfred to the Twelfth Century (1999b), Wormald presented the results of thirty years of research. Against Maitland's view that common law was a creation of King Henry II (1154–1189), in this opus the idea prevails that even in early medieval English legal culture can be found "green shoots of the common law" (Wormald 1999b, xii).
§12. Even though the study of the Germanic content of legislation has only indirectly been the object of his investigation, Wormald, through his wide-ranging essays, has filled many gaps in the research: his recognition of the complex problems connected to the sources and of their historical and sociological background has revised the premises for any further study and widened the scope of the research.
§13. In what follows, I will answer the question asked by Claus Dieter Schott during the Fürstenfeldbruck conference on the etymology of the word cawarfida and take this opportunity to thank him for having brought to my attention this Lombard word whose etymology has no small significance, both for my own work as well as for the theme of the conference.
§14. The word cawarfida appears twice in Liutprand's Law (77,133) and in the glossary Cavensis, which, as a translation to uarfida, gives the following: "Id est consuetudo antiqua." (That is old custom) The traditional interpretation of the word is problematic. The prefix ca (ga)- does not always appear; the vowel of the stem syllable is usually a (but e appears three times), whilst the suffix varies between -ida and -eda (van der Rhee 1970). The word usually appears in the Latinized form with endings of the Latin first declension. One can recognize in this word three parts: a prefix, a root word and a suffix. In addressing these complexities, one should probably proceed by focusing on two forms, as the word recurs also without a prefix as warfida. Ga/ca is the only attested Lombard prefix, although it is often documented (Bruckner 1895, 122). It is a Germanic prefix that appears both as a verbal prefix—with a generalizing or perfective meaning—as well as a nominal prefix in collectives and abstracts or sociative formations (Krahe and Meid 1967, 37). Also the Germanic suffix -iþo (Lang. ida) is a common, abstract-creating suffix, primarily used in adjectives and verbs, yet it can also be used to form substantives such as cawarfida (Krahe and Meid 1967, 146).
§15. The root word *warf does not exist in the limited Lombard tradition, and for this reason we must look for the noun in other languages. It recurs in all languages except Gothic, where the root can only be found in a verb—Got. hwairban "to change", "to pass by". Across the Germanic languages, the variety of meanings is striking:
- ON. hvarf "circle," "fenced place," -hvarf "sanctuary," "disappearance behind a hill" (de Vries 1977; Falk and Torp 1910)
- OE. hwearf "crowd," "earthwork, dyke," "times" (Bosworth and Toller 1991)
- OFr. warf, werf "circle", "earthwork, dyke", "house, homestead", "courtplace", "crowd", "times" (von Richthofen 1961)
- OS. hwarbh, hwarf, hwarabh "meeting," "heap" (Sehrt 1925);
- OHG. (h)warb, (h)werb "turn, twirl," "times," "courtplace" also glossed as motus, volubilis orbis, vorago, vortex (Graff 1838)
The question of whence the (very productive) root of all these words derives is controversial (van Lessen 1937). Some argue in favor of a Germanic root *werpan "to throw"; however, the list of words above shows that in all languages, the meaning "circle" or "ring" occurs in both a static and a dynamic sense (Onesti 1999). The derivation from a Germanic root *hwerƀan "to spin, to turn, to go round" seems therefore more probable (Ramat 1970; de Vries 1934). It can mean both "time," "ring shaped elevation" and also "round construction, that has a certain form for a certain purpose," from which derive on the one hand "homestead," "court place," and on the other hand "embankment, dyke, rampart."
§16. Regarding the original meaning of the word and its subsequent developments various reconstructions have been proposed. Jan de Vries, for instance, has drawn a somewhat compelling explanation of the various derivations based on the acceptation "ring" or "sacral circle" and mean among other things the "sacral ring around the court place." From this he derives the acceptation "crowd," meaning the people who participate at the trial, and, in his opinion, "elevation" or "bulging," because the court usually met on an elevated plain. Based on the location of the seats in the assembly, the meaning "circular earthwork" developed. Although it is not always possible to sketch out a chronological order according to semantic criteria, I think that the derivation of the "place of court" from the meaning of "circular height" where the trial takes place is possible, as is also the metonymic shift from "mound"—on which to build the houses to protect them against flooding—to "house" or "homestead." To the definitions "place of court" and "homestead" are then also connected the secondary meanings "people" or "crowd," derived from understanding the home site and the court as "meeting places." We find a similar semantic parallelism in a group of words meaning "village": OE. þorp implying both "farm, farmhouse" and "heap, crowd" (de Vries 1977).
§17. The image of a ring-shaped elevation, on which houses and court places are built for protection, coupled with the existence of "round buildings that have a certain form for a particular purpose (to guard against floods)" such as "dykes" and "earthworks," has a precise geographical background: the North Sea coast (Brouwer 1958, 675). And, indeed, the root under discussion is specifically Nordseegermanisch in some of its meanings. As such, Old Frisian warf actually belongs to a group of technical terms associated with the morphology of the coast. Pliny drew a concrete picture of this area in his description of the Germanic tribe of the Chauci. He tells that the Chauci who settled east of the Frisians—the Frisian district Hugmerki marks an old border against the Hugas (another name for the Chauci)— lived in pile dwellings or artificial mounds (Pliny, Natural History 16.3). In such settlements, which were surrounded by water at high tides, invaders could not attack them easily either by ship or from the land. In Cassius Dio's opinion, Drusus, who penetrated in their territory, found himself in grave danger when his ships came to dry land at low tide (Cassius Dio, Roman History 54.32). The area of origin of warf is the coastal landscape of the Low Countries, Germany, and Denmark, which is often characterized by low, rounded hills with a farmhouse built on each of them: in 1920 more than 400 such dwelling mounds still existed in Frisia alone(Koehn 1961). From this landscape the word spread both northward and southward.
§18. In addition, the legal meaning of *hwerƀa is found in all Germanic languages, nor is the development of the meaning from "place of court" to "court" an exception: a similar specialization in the legal sense of a spatial concept is found in Gothic staua "court." Likewise, the root *sta- "stand"—from which Old English stow and Old Frisian sto derived—shows that even here the legal meaning is secondary. In the eleventh century, the legal meaning of our word became the object of attention by Adam of Bremen, who pointed out in his Deeds of the Bishops of the Hamburg Church (Cap. 229) that in the Swedish language warph is regarded as equivalent of thinc: "commune populorum concilium a Sueonibus warph, a nobis thinc vocatur" (the meeting of all people is called warph by the Sweden, whereas we call it thinc). Finally, in some languages the word shows a metonymic shift from "court" to different nuances of "court action." The Bavarian language has for instance a word gewerft which means "negotiation" and "contract" (Schmeller 1827, 994).
§19. A shift of meaning eventually characterized the Lombard word cawarfida as well. The transition from "court" to "court custom" is morphologically supported: prefix and suffix grant a collective-perfective and abstract sense. Two semantic-morphological parallels can explain the function of such derivations: cawarfida is analogically related to *warf as for instance Old High German geding ("negotiation" and "contract") is related to ding ("court", "court place"). An example of abstract construction of a noun in the legal field can be found, for example, in Gothic weitwodiþa "witness statement" from weitwoþ "witness" (Krahe and Meid 1967, 146). Cawarfida thus represents from a philological point of view a not unusual case of a Germanic legal word, the meaning of which is the result of a derivation and a metonymic transfer. The abstract meaning "consuetudo" has here the very specific background of a geographic description with a specific northwest-Germanic connotation.
§20. From the perspective of a legal historical inquiry, cawarfida gives cause for some reflection. It is one of the many words in the Germanic languages which means "customary law" (Dilcher 1992). In each of such words a particular aspect of habit is expressed. The West Germanic words OHG. ewa, OFr. ewa, OS. eo, OE. æ, for instance, mean "eternal order" or "long existing legal habit" (Pokorny 1959, 17). The temporal legitimacy of the law is foregrounded here, as testified for example by the etymological relationship of the previous words with Gothic aiws "long time, eternity"—which hasn't experienced the semantic development from "eternity" to "eternal order." This word thus describes a particular aspect of the legitimacy of the custom: the ancient tradition. Cawarfida is a different matter, yet here also is the question of legitimacy emphasized. The fact that the meaning consuetudo can be led back to the meaning "court" connects the custom to the assembly. Legitimacy is given here by the consensus among all participants to the court assembly. The cawarfida was the norm that had its origin and legitimacy in court proceedings. This cannot be deduced only from its etymology: the Lombard legislator himself introduces us at the end of one of his clauses to the meaning of cawarfida: "Hoc autem ideo nunc adfiximus quia tantumodo causa ista in hoc modo et tempore semper et antecessorum nostrorum nostro via cauuarfida sic iudicatam est, nam in edicto scripta non fuit" (Liutprand, Cap 133). (We insert this here because this question has always been judged at the time of our forerunners and in ours only in one way, that is with cawarfida, but without being written in the edict). Thus, the cawarfida is also, according to the words of Liutprand, originally "unwritten custom," whose formation and implementation took place in the judicial assembly. Thus, the existence of a written legislation under the Lombards did not exclude the possibility that some of these norms were developed as oral customs in the assembly. Finally, the meaning of the court assembly as a source of binding actions is reflected also in other forms, such as Lombard thingatio or gairething in which the transition from "place" to "action" is achieved respectively by derivation and by metonymy. These more or less Latinized words can not be explained by a Roman background. In fact, they appear mainly in those ordinances which have not been strongly influenced by Roman law, and they look almost like learned glosses that—lacking a suitable Latin terminology—supplement the language of Roman law.
1. This article was first published in German with the title "Eine philologische Schlußbemerkung" in Leges-Gentes-Regna. Zur Rolle von germanischen Rechtsgewohnheiten und lateinischer Schrifttradition bei der Ausbildung der frühmittelalterlichen Rechtskultur, ed. Gerhard Dilcher and Eva-Marie Distler, Berlin 2006, pp. 525–535. The volume is the result of an interdisciplinary conference titled "Germanische Stammestraditionen, Volksrechte und Rechtsgewohnheiten—Ein Beitrag zur Begründung der mittelalterlichen europäischen Rechtskultur?" held in Fürstenfeldbruck from June 17th to June 20th, 2004. This essay was translated by Daniela Fruscione and Andrew Rabin. [Back]
2. "Um die Grenzen des vulgarrechtlichen Einflusses in den Leges zu bestimmen, würde es größerer Untersuchung bedürfen. Hier steht Nehlsens Beitrag zum Sklavenrecht von 1972 jedoch noch immer allein da. Immerhin gibt es, wie Nehlsen zeigen konnte, Texte, die sich einer vulgarrechtlichen Deutung weitgehend entziehen, etwa die älteren Teile der Lex Salica oder des langobardischen Rechts. Auch die Malbergischen Glossen oder andere germanische Rechtswörter können Indizien für germanische Inhalte sein, ohne schon zu gewährleisten, daß sich eine Regelung nicht doch in vulgarrechtlichen Bahnen bewegt" (Kroeschell 1998, 221). [Back]
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