ABSTRACT
An exploration of the development of, and evidentiary basis for, the concept of ‘fictitious trial’ (Scheinprozess in German) as an element among judicial procedures before the Merovingian royal tribunal; the documentary records of tribunal procedures have been dubbed placita by moderns. The concept of ‘fictitious trial’ has been applied not only to what appear to be simply conveyance confirmations but also to a limited number of placita apparently recording disputes. Weighty political significances have been drawn from extravagant interpretations of their contexts.
The notion of Scheinprozess in this context is traced to the 1860s and Rudolf von Jhering’s speculations on archaic Roman law, in particular a species of procedure he called Scheingeschäfte, or fictional transactions, including the conveyance known as in iure cessio. The adoption of this flawed perspective by Germanists, especially Heinrich Brunner, i.a. – and initially as an attribute of Germanic law, despite striking resemblances to in iure cessio – established the idea of ‘fictitious trial’ as a recurrent scholarly theme of late Merovingian law and politics, despite unnoticed shifts in the original Romanist doctrine. Though there is nothing ‘fictitious’ about the placita in question at all, the concept of Scheinprozess continues to shape fanciful reconstructions of the dispute processes and politics of the waning days of the Merovingian kings.
