9: Gender, (Un)freedom and Theft in the Gamification of the Lombard Laws

Thom Gobbitt, @booksoflaw, Österreichische Akademie der Wissenschaften

The Edictus Rothari, the first written phase of the early medieval Lombard laws, was issued in the name of the Lombard King Rothari (~606–52) from the palace in Pavia, on 22 November 643.17 Over the last few years, I have been slowly developing a table-top “pen & paper” role-play game (RPG), Langobard, adapted from this law-code, for what might be considered “edutainment” purposes. The RPG brings together a group of interested players to explore the social, historical and legal implications of a selection of the Lombard laws through the medium of storytelling and semi-improvisational communal theatre – while, hopefully, having fun!

What I term the character Identity in the Langobard RPG are the core of predominantly qualitative traits, the ‘concept’, which are then further fleshed out through specialist traits such as skills, inventory, etc. In the Langobard RPG, the core traits of the Identity comprise a character’s Name, Gens (ethnicity), social Class (“free”, “half-free” or “unfree/enslaved”) Gender, and Age. Here, I shall delve into the inspiration for the gamification of the laws, and the development of character Identity traits (or concept) from legal categories, focusing mainly on Class and Gender as revealed through a closer look at the Lombard laws on theft.

It is surely not a startling observation to note that, with the exception of a person’s name, these Identity traits as used in the RPG correspond closely to the types of legal categories used in the laws to specify individual legal actors, such as the perpetrator or victim of a crime, or a participant within some legal process or civil framework. In practice, these various legal categories overlap with each other, so separating them into distinct categories is somewhat artificial, and – in both law and RPG –the individual’s socio-legal and interpersonal relationships are informed by the intersection of all such categorical traits, although of course in any given circumstance one or another may take more or less prominence. A fundamental point to recall, is that these categories are not universal, but instead are socially constructed and continually being developed and perpetuated.18

The typical legal actor imagined by the law-givers who composed and issued the Edictus Rothari is the adult, free-man: the homo liber/liberus [free-man] or arrimannus [army-man].19 The regular approach taken in the law-code when addressing a given subject is to first outline the legal framework for the

17 Friedrich Bluhme, ed., ‘Edictus Langobardorum’, in Monumenta Germaniae Historica, vol. 4, Leges (Hannover: Hahn, 1868), 1–90. 18 The scholarship on ethnicity and gender in Lombard Italy is extensive, and I mention here only a few key studies that have informed my thinking: Ross Balzaretti, ‘“These Are Things That Men Do, Not Women”: The Social Regulation of Female Violence in Langobard Italy’, in Violence and Society in the Early Medieval West, ed. Guy Halsall (Woodbridge: Boydell, 1998), 175–92; Ross Balzaretti, ‘Masculine Authority and State Identity in Liutprandic Italy’, in Die Langobarden: Herrschaft Und Identität, ed. Walter Pohl and Peter Erhart, Forschungen Zur Geschicte Des Mittelalters 9 (Vienna: OEAW, 2005), 361–82; Ross Balzaretti, ‘Lombard Fathers’, Archaeologia Medievale 38 (2011): 45–57; Thom Gobbitt, ‘Poisoning, Killing and Murder in the Edictus Rothari’, in Medieval and Early Modern Murder: Legal, Literary and Historical Contexts, ed. Larissa Tracy (Woodbridge: Boydell, 2018), 333–49; Patricia Skinner, Women in Medieval Italian Society 500-1200 (Pearson, 2001); Walter Pohl, ‘Gender and Ethnicity in the Early Middle Ages’, in Gender in the Early Medieval World: East and West, 300-900, ed. Leslie Brubaker and Julia M.H. Smith (Cambridge: Cambridge University Press, 2004), 23–43. 19 Balzaretti, ‘Masculine Authority’, 365, 368.

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homo liber, and then detail the specific ways in which the legal and social circumstances changed according to the specific legal categories to which the individual belonged, that is perhaps if the person in question is unfree, a woman or both. A good example of this can be found in the laws on theft, and a comparative assessment of the changes they introduce illuminates a facet of what the Lombard lawgivers imagined it meant to be a man or woman, free or unfree, adult or child – or what they thought those categories ought to entail.

The basic restitution for theft in the Lombard laws is that nine-times the value of what was taken should be returned. In the case of the liberus this is augmented with a composition of eighty solidi,

20 or if he unable to pay this amount then a death penalty is set instead.21 In the case of the servus [enslaved man], the composition for the crime is half, forty solidi, or else death.22 For the aldia and/or ancilla [half free and enslaved woman, respectively], the penalty for the crime is, again forty solidi, however, here if the composition cannot be paid there is no death penalty.23 These laws, then, appear to establish an absolute difference between free and unfree in the composition due: the same crime by the free (man) is set at double that for the enslaved man or woman.

In the case of the mulier libera, like with and ancilla and aldia there is no death penalty, and there the laws establish a structural binary of male | female. Lombards, in the case of theft, at least, restrict the death penalty on gendered grounds.24 Moreover, the law on theft when committed by a fulcfrea [folkfree] women also states that no other composition should be exacted by the victim beyond the ninefold return of the goods that were stolen,25 so the eighty solidi composition does not indicate being free, but rather being a free-man.

However, theft when committed by a mulier libera includes a further element, that reveals the expected gendered identities and behaviour for free women. The act of stealing is referred to as an opera indecentem [unseemly deed], a judgemental statement on the activity that is not paralleled in the cases where the perpetrator is male and/or unfree. Moreover, the law also states that vitium [shame] should be imputed to the free woman who has committed theft.26 A somewhat comparable use of affective language can also be seen when a free-man compels his puer [boy] or a servus to commit theft.27 As well as bringing age as a binary category of (male) child | adult into focus, the severe

20 A solidus was originally a coin weighing approximately 4.5 grams of gold. By the Lombard period it is a unit of account rather than an actual coin: Alessia Rovelli, ‘From the Fall of Rome to Charlemagne (c. 400-800)’, in Money and Coinage in the Middle Ages, ed. Rory Naismith, vol. 1, Reading Medieval Sources (Leiden, Boston: Brill, 2018), 65–66; Peter Spufford, Money and Its Use in Medieval Europe (Cambridge: Cambridge University Press, 1988), 18–19. 21 Edictus Rothari, No. 253: Bluhme, ‘Edictus Langobardorum’, 62. 22 Edictus Rothari, No. 254: Bluhme, 62. 23 Edictus Rothari, No. 258: Bluhme, 63. 24 The three grounds given in the Edictus Rothari where the death penalty can be legally applied to a (free) woman, are if she conspires against her husband’s life, commits bigamy, or is caught committing adultery. Respectively, Edictus Rothari, Nos 202, 211 & 212: Bluhme, 50–52. 25 Edictus Rothari, No. 257: Bluhme, 63. 26 The law does not elaborate on how vitium was imputed, and whether this shaming was simply a statement or if it comprised public acts In the Lombard laws of Aistulf, issued in 750 CE, punishment for a free-man who conducted business with Romans without royal permission includes an act of humiliation in which his head is shaved and he must go about decrying his mis-deeds. So a public act to shame a free-woman theif is not beyond the imagination. Aistulf, No. 4: Bluhme, 196–97. 27 Edictus Rothari, No. 259: Bluhme, 63.

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immorality of the circumstances is also stressed. The deed is described as inhonestum [dishonesty] and the compelling of the theft as being contra rationem [against reason]. In addition to offering the RPG setting copious materials for plot hooks and characters, these phrasings also offer insight into how Langobards understood the differences between male and female, free and unfree, child and adult.

In summary, for the unfree (and children), crimes are simply committed – either of their own volition or under compulsion. Restitution must be made, but the moral implications for individual identity and/or society need not be elaborated on. For the free, however, the opportunity is taken to moralise, and this in turn reveals the normative gendered behaviours that Lombards (or law-givers), expected of people in the upper echelons of society in the mid-seventh century: (free) men should not act dishonestly and they should not act against reason, while (free) women conversely should not do things that are unseemly, and if they do they should then be subjected to shame. These affective terms provide a fertile ground for creating the underlying identities of characters in the RPG – not by necessarily limiting what a character should be and can do through a static, dogmatic reading of the law, but rather by exploring Identity in the dialogue of character agency against the restrictions and expectations framed in the socio-legal norms.

Bibliography

Balzaretti, Ross. ‘Lombard Fathers’. Archaeologia Medievale 38 (2011): 45–57.

———. ‘Masculine Authority and State Identity in Liutprandic Italy’. In Die Langobarden: Herrschaft Und Identität, edited by Walter Pohl and Peter Erhart, 361–82. Forschungen Zur Geschicte Des Mittelalters 9. Vienna: OEAW, 2005.

———. ‘“These Are Things That Men Do, Not Women”: The Social Regulation of Female Violence in Langobard Italy’. In Violence and Society in the Early Medieval West, edited by Guy Halsall, 175–92. Woodbridge: Boydell, 1998.

Bluhme, Friedrich, ed. ‘Edictus Langobardorum’. In Monumenta Germaniae Historica, 4:1–205. Leges. Hannover: Hahn, 1868.

Gobbitt, Thom. ‘Poisoning, Killing and Murder in the Edictus Rothari’. In Medieval and Early Modern Murder: Legal, Literary and Historical Contexts, edited by Larissa Tracy, 333–49. Woodbridge: Boydell, 2018.

Pohl, Walter. ‘Gender and Ethnicity in the Early Middle Ages’. In Gender in the Early Medieval World: East and West, 300-900, edited by Leslie Brubaker and Julia M.H. Smith, 23–43. Cambridge: Cambridge University Press, 2004.

Rovelli, Alessia. ‘From the Fall of Rome to Charlemagne (c. 400-800)’. In Money and Coinage in the Middle Ages, edited by Rory Naismith, 1:63–92. Reading Medieval Sources. Leiden, Boston: Brill, 2018.

Skinner, Patricia. Women in Medieval Italian Society 500-1200. Pearson, 2001.

Spufford, Peter. Money and Its Use in Medieval Europe. Cambridge: Cambridge University Press, 1988.

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