Bartolus of Saxoferrato

Bartolus of Saxoferrato was a person of mythical proportions in a golden age. He was born between November 1313 and November 1314 in Venatura, a hamlet in the Marches in the territory of the town of Sassoferrato.

Bartolus was a feverishly active man: he was a professor, a lawyer, and a legal advisor; he was involved in public life (as a member of the city COimcil—an assessore—in Todi and perhaps in Cagli); he played an active role in religious confraternities. He allowed himself no rest, and during one brief summer vacation, while seated on the banks of a river watching its placid waters, he quickly drew up a summary of all the hypotheses in the legal questions connected with riparian rights and wrote a treatise on the subject.^[202] He truly lived for the law.

Bartolus’s works were vast and numerous. They included com­mentaria on the three parts of the Digest (Digestum vetus, Infortiatum, Digestum novum), on the Code, and on the Novels-, a long list of trea­tises on particular topics (tyranny, reprisals, city ordinances, riparian rights, and more); quaestiones disputatae-, and several hundred consilia. His knowledge of Roman law, canon law, and statutory and feudal questions was endless and extremely solid. His dialectical formation was rigorous and perfectly fitted to the study of the law.

These were Bartolus’s more obvious merits, but they fail to give a sense of the man’s personality or to show the goals of his vision of the law, a vision that embodied thoughts so complex it is difficult to put it into focus and to grasp its most significant traits. Indeed, historiog­raphy has often picked out either the most generic and obvious facets of this great jurist or has concentrated on highly secondary and irrele­vant characteristics.

In the fullest scholarly evaluation, Bartolus has been presented as Cinus’s successor in the task of subjecting the law to dialectical ratio­nalization. Bartolus attended Cinus’s lessons in Perugia for only a short time, but he acknowledged that his mind had been “modeled” by Cinus. He was a pupil who surpassed his master not only in “re­finement of the technique of the commentary,” in his “dialectical force,” and in his “exceptional skills in excavating the depths of the Iittera Iepfis (letter of the law) to extract its most hidden mens (mind) and ratio,” but also, by shattering the Httera of the law and by a dialec­tical recomposition of the contents of the law, he succeeded in bring­ing to the old fabric of the ius commune “the first signs of life of the new societas iuris (society of law).”^[203]

This portrait is undoubtedly true to life, and it gives some notion of Bartolus and his works, but it is little more than a sketch. It notes some similarities between Bartolus and Cinus, but it fails to do justice to Bartolus⁵S originality as he dealt with the problem, vitally impor­tant in the fourteenth century, of the ius commune and its relationship with the ius proprium.

These problems were hardly new. They were felt on the theoretical plane, since, as we have seen, they had been posed for some time re­garding both the relationship of norms within the Corpus iuris civilis and the relationship between that entire corpus and the many norms of the ius proprium.

Such problems had also been experienced in practice by those who wrote the laws of the kingdoms, the statutes of the communes or the corporations, or the customary laws of the cities; by notaries drawing up acts and by judges in need of concepts, principles, and methods from the ius commune in order to decide cases—in short, by people who needed to distinguish between the use, the formal or substantial reproduction (local legislators), and the application (judges) of the ius commune.

In Bartolus the two lines of the system of the ius commune acquired a particular clarity. Theoretical recognition of the ius proprium had been definitively achieved, something to which Bartolus himself had made a decisive contribution with his theoretical construct of iurisdic- tio, in which he stated that every ordinance contains, on a reduced scale and in reduced measure, the same powers that the emperor had in the empire—powers that thus become a “model.”

Bartolus deepened and modified Cinus’s vision. IfI may be permit­ted the image, Cinus’s view of the “system” of the ius commune, uni­fied by the central problem of aequitas, was like the Ptolemaic system in which the earth lay immobile at the center of a horizontal plane while the sun in its heavens moved around it every day, illuminating and warming it. So the question of aequitas could be configured as a complex of norms as varied as the various parts of the planetary sys­tem, some parts of which were principal, others accessory, but all of which gathered together to make a whole that was integrated but had no life without the light and the warmth of equity, their vitalizing sun.

Bartolus’s vision was different. Ius commune and iura propria were not located on the same plane, and if they must be distinguished from one another the concepts of “principal” and “accessory” were inade­quate. They moved instead as if within an immense spherical space in which—to return to the planetary image—the sun was the ius com­mune and the iurapropria were planets.

Equity lost the definition and the fullness that Cinus had ascribed to it, but it reacquired a full function, since it was the spirit that moved this legal universe. It resembled the divinity, which has no cor­poreal substance: just as the divine circulated within the human be­ing, aequitas was the vital fluid that circulated in both the ius commune and the ius proprium.

Furthermore, just as the sun had no life but was the prime origin of all possible life, so the ius commune was lifeless in the terrestrial sense of the word but was the origin of all possible (legal) life for the iura propria.

Legal images came to be formed in the iusproprium, and they too had a legitimacy that derived from their orderly placement in the sys­tem, just as the earth had its position in respect to the sun and man in respect to God. But the statutory images could no more transcend the limits of their specific legitimacy—limits set by the fact that they were inscribed in the system—than the earth could seek a life of its own outside its habitual orbit and outside its constant relationship with the sun, or than men could renounce God, because only in their relationship with God did their soul have existence.

No one explained the master’s thoughts better than did Baldus de Ubaldis, Bartolus⁵S most prominent pupil. Baldus did so first in gen­eral terms: “One might say that the ius commune inspires the statutes and invests them but is neither inspired nor invested by them: and this is because of the force of attraction [vis attractiva] that the ius commune has toward the law of the communes. But the contrary does not occur.”^[206] Baldus continued in even more specific terms and with a clear example: “I wonder whether the statutes are to be interpreted by means of the ius commune. Bartolus maintains that the statutes un­dergo a passive interpretation from the ius commune∖ thus if the stat­ute says that Bartolus is a citizen, all the norms of the ius commune relative to citizenship acquire relevance for him,” and for that reason become applicable to his person.^[207]

This example illustrates the principle that no norm on any level of the ius proprium (royal, city, corporative, or other) could be applied without taking the accepted doctrines of the ius commune into ac­count—not even an extremely simple norm whose content seemed evident, such as the imposition of taxes on the citizens of a given city.

In this context, the use of the ius commune was no longer and not only the practice of the judge who only as a last resort looked to the ius commune to seek a norm to fit the case before him. As is clear, the situation was quite different. Use of the ius commune responded to a need to provide the concepts and doctrines that were indispensable if a precept of the ius proprium was to have legal force. It also avoided the problem—or the expectation—of finding in the ius commune a precept identical or analogous to one in the ius proprium:, it even sug­gested that any contradiction between the specific normative contents of the ius proprium and the ius commune would be totally irrelevant.

Legality came to be defined as polarized, with the ius commune and its energizing wealth of concepts, general principles, and legal doc­trines to one side, and, to the other, the ius proprium—real, effective, and human. Like a body without warmth, a man without a soul, the soul without God, the one was meaningless and lifeless without the other.

Religious motivation and love for human life were organically merged in Bartolus’s vision, and. he experienced both the divine and the human with a deep sense of involvement. Scholars have quite rightly stressed Bartolus’s profound humanity, comparing him to Dante “not only for chronological reasons.”^[208] Bartolus has also been presented as the leading figure in a culture working to redeem “the very figure of the jurist, who in the common opinion is no more than a man of law” because people have often forgotten “that those laws all arose hominum causa [because of human beings], and that their study is first of all the study of humankind.”^[209] This culture was work­ing to construct a true humanism that in no way resembled Jakob Burckhardfs definition and that was “the only [humanism] that the jurist can and must feel: not just discovery and exaltation of hu­mankind but defense of them in thought and in action.”^[210]

This undeniably describes genuine facets of Bartolus’s thought and ones that were sincerely felt and experienced.

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