Cities as Res Publicae in Rolandus de Luca
That is one of the reasons for paying attention to this work (and why Sara Men- zinger and I laboured for a decade to release a complete critical edition). In its last version, enriched with new additions into the 1220s, Roland's Summa inÂcludes an almost complete transcription of the Summa of Placentinus, continÂued by Pillius and left unfinished at title 11.39 of the Code.
A reading of Roland's summa therefore implies also a reading of these other important works, also written outside Bologna, as their authors were teaching in the small, economiÂcally and politically vibrant cities of Montpellier (Placentinus) and Modena (Pillius). Here is not the place for a complete account of the contents of these works, but to present a few interesting suggestions. Priority must be given to the basic problem of the legal personality of the city. There is a certain differÂence between the positions of Placentinus-Pillius and of Roland on this very important point. This difference relates primarily to the private or public naÂture of this peculiar subject that was a city.As it is well known, ancient Roman law had not worked out the legal conÂcept of a â€?corporation' as an â€?artificial person' (personaficta), which would only fully be developed during the Middle Ages. According to Roman law, a city (municipium) was not really considered as a subject of legal rights and duties. Even if it was explicitly considered as a subject of obligation by the Digest (D. 12.1.27), and assimilated to a person of minor age by the Code (C. 1.30.3), this did not mean that Justinian's law considered a city as a possible subject of pubÂlic law - that is, as a ruler of itself, as a source of jurisdiction, and as a tax colÂlecting power. Two explicit legal rules listed in the Digest, on the contrary, afÂfirmed the private nature of the cities and reserved the status of res publica only to Rome: A fragment of Ulpianus (D.
50.16.15) says that goods of a city should not be called â€?public', because only the patrimony of the Roman people deserves this adjective; and a passage of Gaius (D. 50.16.16) says the same, addÂing that every city outside Rome has to be considered as a private person.[465] [466] Pillius accepted, maybe with reluctance, this difference between the Civitas Romana, that is the res publica which gave birth to the Empire and immortality to the emperor, and the many municipia?6 Roland argued, on the contrary, that the status of res publica could be attributed to every city, regardless of any statement in the Digest.[467] In this context one cannot help but think of the struggle of Pisa, as the city claimed to be a second Rome, or of the efforts of many free cities in Italy and southern France to collect material signs of the magnificence of Rome, importing marbles and exhuming ancient statues, and of the legends recounting the Roman origins of many Tuscan cities. Every city in the Italian twelfth century claimed to be a new Rome.This search for antiquity, on the institutional side, is evident in the claim for the public character of the city as a corporation. Public character is enough, for Roland, to suggest a parallel between city and church, which is rich in conseÂquences: as churches are institutions of public law, so also can cities enjoy the legal benefits reserved to churches and to other religious buildings. Speaking of election of magistrates, for example, Roland refers openly to the election of canons and bishops, given the fact that res ecclesiastica is a res publica, as is the city[468]
A major analogy between a church and a city was that, in Justinian’s law, both were considered, by means of a legal fiction, as a person of minor age under the guardianship of a tutor[469] As such, a city enjoys the many privileges given to the under-age ward: the delay in prescription against a city is very long, as against a church; the donation given to the citizens is intended as given to the city itself; the city can ask to be restored to its property if it was sold with an economic damage (restitutio in integrum).
The administrators of the city were naturally compared to the tutor.This is what Pillius had already suggested and Roland developed further in his summa. Roland notes that Justinian had divided the law into private and public, and put both, cities and churches, on the side of public law; it follows that churches and cities are analogous, they enjoy similar legal statutes and are protected by similar privileges.
This is a very interesting passage. The important role assigned to the midÂthirteenth-century canon law doctrine on the personality of churches by the masterpieces of Otto von Gierke, Frederick W. Maitland, and Ernst Kantorow- icz are well known; since then, we know more about efforts to construct a theÂory of the corporation, and on the major role played in this effort by both juÂrists of the Church and of the most important European kingdoms: Sicily, France, England, and Spain. Here it is to be seen that the ball was beginning to roll a bit earlier, and that it was happening in a very different milieu: the free cities of northern Italy. It was here that a major effort got underway to conÂstruct a personality for the city, based on parallels with the church, both parÂticular kinds of legal subjects that were ruled by public law.[470] [471] Roland moves from the simple premise of the division between public and private law to connect the particular status of churches with the status of the cities. Now, one of the privileges given by Constantine to the Catholic Church allowed different religious institutions to receive different sorts of grants - a reform that did not define the legal status of the churches and monasteries, as the emperor seemed hardly to care about legal subjectivity and the problem of corporations. Nevertheless, already in the famous Edict of Toleration, in the text given by Lactantius, Emperor Constantine acknowledges to Christian churches a right of ownership, which he confirmed in 321, as he permitted the donation of goods to churches mortis causal This possibility, created by late Roman law, of being owner and of receiving grants was enlarged during the Middle Ages, as churches became not only the subjects of rights, but also the richest and wealthiest of all subjects of rights. The way to incorporation was then opened by a substantial economic need, and the first response to this need was to consider the relics, the altar, or the whole building as owner of goods and rights.[472] [473] 5