Foreword: Setting the Scene

The two universal laws, the law of the ancient Roman Empire and the law of the church (the ius civile and the ius canonicum), desig­nated together as utrumque ius, were completed between the twelfth and the fourteenth centuries.

There was no uniformity in the various particular norms (iurapro­pria) to correspond to the unity of the utrumque ius (ius commune). Rather, their extraordinary diversity makes one suspect that the true face of medieval jurisprudence was uniquely, or at least principally, characterized by disorder, municipal rivalry and vengeance, and clashes between interest groups and social strata, all of which oper­ated within the juxtaposition or opposition of several tiers of law em­anating from the community, rural or urban (consuetudines), from the decisions of free or autonomous cities (statuta), or from the will of a sovereign or a powerful territorial lord (royal laws or the laws of a prince, duke, or count).

This is the image repeatedly presented in one school of thought in recent historiography,^[75] whose members have devoted their energies to a frenetic and desperate search for specific and particular legal ele­ments, which they study and reconstruct in isolation, thus offering a complete and exhaustive picture of a single legal phenomenon (ius proprium), without considering its similarities with other European Iurapropria and without investigating its connections with the disci­pline, the principles, or the doctrines of the ius commune.

This historiographical approach was carried to its sterile point of arrival by a long wave of polemical and negative evaluations of the ius commune that, for understandable historical reasons, were given or implied in relation to the ius commune by humanist jurists of the fif­teenth and sixteenth centuries, by the theologians and jurists of the “Secunda Scholastica” in the sixteenth century, by natural law theo­rists in the seventeenth century, by Enlightenment thinkers in the eighteenth century, and by the backers of the eighteenth- and nine­teenth-century codification movements who, out of faith or self-delu­sion, believed in the order and uniformity that a “code” would impose.

When any attempt was made to compare the ius proprium and the ius commune, only the “contents” of the various precepts were exam­ined, which led to the obvious conclusion that the contents did not coincide and that the ius proprium and the great legislative corpora of the Empire and the church regarded and portrayed relationships differently.^[76] Thus in this view the ius commune was simply considered positive law.

Some scholars have deduced from this that local legal traditions im­bued with the spirit of the ancient barbarian populations “resisted” Romanization;^[77] others have thought, more simply, that the phenom­enon of the utrumque ius was secondary and relatively insignificant, and that Roman and canon law formed a modest “residual law” that was applied only when local juridical norms lacked a measure to cover a specific, practical legal problem.^[78] Still others, speaking with con­scious conviction or without sufficient reflection, have approached the iuscommune as if it were a terrain in which all manner of “archeo­logical” finds were possible, while others who shared that conviction but professed a total disinterest in juridical archeology have carefully avoided the whole subject.^[79]

Some expressions have become cliches: local law was “opposed” or “counterposed” to the ius commune-, local law was a “particular law” or a “territorial law,” and because local law was usually applied in the law courts before the ius commune., it follows that it had greater weight than the ius commune (following the common but erroneous notion that a “practice” without theory is always of greater authority as a guide for understanding concrete situations and for action).

Entire academic schools of thought have been founded on these basic convictions. For years scholars insisted on a “hierarchy” among norms, and although this notion has attenuated, it has not completely disappeared.^[80] They have concentrated on determining how the scale of precedence was disposed in the schemes of each particular city or realm; what they found was that judges were expected to apply the local law first (the communal statute or the royal law in the case of the Regnum Siciliae or Castile and Leon); second, the customary laws; and finally, if no ruling could be found on either of the first two levels, the ius commune_y equity, or some other law (such as the Siete Partidas on the Iberian Peninsula).

Some scholars in more recent times who have shared the intent to demonstrate how far “practice” was from the ius commune (on occa­sion they refer to it as diritto dei Professori_yJuristenrecht or dasgelehrte Recht_y droit savant_y or derecho docto) have exaggerated the historical importance of judicial practices and of the consilia (records of court­room proceedings and other related materials) connected with them. Today, although we clearly must acknowledge that the consilia are ex­tremely valuable as testimony, it is equally clear that we need to be sensitive to their jurisprudence and their juridical significance. We need to examine the inner mechanisms, techniques, and methodolo­gies used to formulate opinions and found their validity (or at least their defensibility) in some specific types of norms (always those of the ius commune) and not in others, but we also need to examine the significance of the consilia themselves as a means for defining the politi­cal and social role of the jurists who wrote them. When such aspects of the question are considered, the consilia demonstrate the contrary of what certain scholars have thought: in reality these questions prove that the ius commune ∖n⅛s> used massively and Constantiy in the consilia_y out of the conviction that only in the ius commune must one, and there­fore could one, find the arguments that were needed for trials.

It should immediately be noted that studies of this sort have en­riched our knowledge: investigations guided by the intellectual joy of discovery have uncovered evidence of legal theory buried in the surviving documentation; analytical reconstructions have been made of the “hierarchy” of norms, in particular local, territorially limited entities (such as ⅛ Regnum or a commune civitatis); specific legal prac­tices have been reconstructed. It is also clear that the overall vision that has resulted from such studies is identical in all the points of view just surveyed, since they all deny the ius commune any important role as a law capable of a real effect on local legal practice or doctrine, and their historiographical evaluations underestimate the multiple va­lences and capacities of the ius commune.

The problem, it seems to me, is thus to understand whether the reconstruction of the ius commune has any significance beyond a culti­vated (and basically humanistic) pleasure in rediscovering an intellec­tual system of the past; whether our historiographical reconstruction of the law in the later Middle Ages can be based simply on the selec­tion of particular data from one or more legal orders; whether one can see the ius commune uniquely as mere positive law; consequently, whether we can hold that the ius commune was only a secondary and residual law and, as such, was of scarce relevance in the local courts of law; whether or not we risk taking the point of view of the person or persons who ruled or hoped to rule a community or kingdom, and risk adopting the decisions they made (for political and social rea­sons) as the basis of our own historiographical evaluation.

We need to begin from a different perspective. The ius commune, unlike the many local laws, cannot be considered only as “positive law,” even if, admittedly, it was positive law and hence also residual law. We can evaluate and appreciate other dimensions of the ius com­mune that came to be formed out of ideological and cultural beliefs, thanks to the concurrent existence and influence of idealized values; dimensions that arose or were adapted in concrete situations as in­struments for the safeguard of corporative and group interests. We need to try to understand not only why tens of thousands of copies of the Corpus iuris civilis and the Corpus iuris canonici were produced and circulated but also why entire generations of students “became pilgrims for love of learning,”^[81] and like “pilgrims” they made their way to the learned cities—Bologna, Padua, Perugia, Montpellier, Toulouse, Orleans, Salamanca—to attend schools of iuscommune and become doctors in utroque iure, even at the price of considerable eco­nomic sacrifice and mortal danger (many in fact died far from their homelands).

lawyers, these thousands of young men did their very best to forget everything they had learned, lived solely on ius proprium, and used and applied only iusproprium, and that other young men who became cultivated and reserved jurists were content to spend a genteel and provincial old age cultivating an abstract, elegant, and scholarly juris­prudence. It is because it ignores the relationship between the ius pro­prium and the ius commune that French historiography refers to the ius commune as droit savant, that German historiography calls it Juris- tenrecht or das_tgelehrte Recht, and that Spanish historiography calls it el derecho docto, all ambiguous and at least partly misleading expres­sions. Even worse, Italian and Anglo-American legal scholarship have no word for it at all.

This is not the perspective from which I intend to view local norms—the ius proprium. The fact that the ius proprium existed and that its contents differed from those of the ius commune cannot mean, to put it Simplistically, that the laws of Justinian and the laws of the church were everywhere essentially unheeded, that they were mar­ginal to everyday practice in the law courts and notaries’ studies, or that they were marginal to the legal civilization of Europe.

The panorama is extremely vast; I shall limit my remarks to tracing a few of the pertinent lines of thought in continental Europe, begin­ning with Italy and continuing to the Iberian Peninsula, France, and the German-speaking lands of central Europe.

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