Italy: Communal Legislation

At first, between the eleventh and the twelfth centuries, custom ruled everywhere. It governed the life of the communities scattered through the countryside (consuetudo loci), of isolated monasteries (monastic custom), and of towns and cities.

Toward the middle of the twelfth century, beginning in the lands ofLombard Italy, the situation began to show signs of radical change. The changes soon spread until they mingled with more radical legisla­tive initiatives of the Italian communes (the statutes) that reflected the degree of independence won by the various local governments.

The first traces of this change take us to Milan and Bologna. An anonymous private citizen in Milan, the Lombard capital, wrote a tractatus in order to set down on parchment the customs of the city; also in Milan a feudal judge whose name has come down to us, Ober- to dall’Orto (Obertus de Horto), first wrote down feudal customary law. This was the so-called “Obertine redaction” of the Libri feudorum.

In Bologna the city’s orally transmitted customary norms were re­ported to have been written down in curia Bulgari—that is, within the complex of buildings and courtyards in which Bulgarus lived and taught. The literal meaning of curia is “court” or “courtyard,” but in this case the term indicates the function as a private “judge” exercised by Bulgarus.

The redaction of custom tended to shift from private to public ini­tiative—for example, in Milan in 1216, fragments of the old tractatus were collected and incorporated into official legislation in a docu­ment whose title nonetheless recalls its consuetudinary origin: Liber consuetudinum (Book of Customs).

This became current practice in the communes of north-central It­aly. During the thirteenth century, it became more customary than it had been under the consoli of the earlier communal governments for the city leader, the podesta or the captain of the people, to have the customs that private individuals had already written down (thus re­moving them from the uncertainty of oral transmission) brought into a single corpus and copied in one book (codex). The same document typically included the measures (statuta) passed by the city’s general assembly and the regulations laid down by the heads of the commune and accepted by the people, called brevia from breve, the oath sworn by both the city magistrates and the assembly to guarantee respect and obedience to the laws.

During the thirteenth century there were increasing numbers of city statutes, enlarged by new dispositions. The first statuta in Vol­terra appeared between 1210 and 1224; in Treviso between 1207 and 1263; in Padua between 1222 and 1228; in Verona in 1228; in Venice between 1226 and 1242; in Reggio Emilia between 1242 and 1273. In Bologna lengthy and organic statutes were drawn up between 1245 and 1267 for the Comune del podesta and in 1288 for the Comune del popolo, and so on. Recasting and updating the statutes was carried on at such a dizzying pace that proverbs sprang up: “Legge di Verona non dura da terza a nona” (Verona’s laws do not last from terce to nones); “Legge Iiorentina fatta la sera e guasta la mattina” (Florentine law made in the evening is spoiled by morning). One acute and criti­cal observer, Boncompagno of Signa (d.

Although the statutes purported to be “city laws” par excellence, for many decades they were limited in their range. What is more, they met with opposition and hostility on the part of broad segments of the city population, who saw little reflection of themselves and their interests in them. Not all the residentes of a city were considered part of the commune civitatis, hence “the communal statute, considered alone... appears as an act of will of a corporation”^[83]—that is, of peo­ple who owned property and cultivated their agrarian and landhold­ing interests. Any city dweller not included in the commune civitatis continued to fall under the jurisdiction and tutelage of the bishop. Furthermore, the many corporative bodies of the arts and trades, ma­jor and minor, generated their own statuta and relied on them for defense of their vital interests rather than on the statutes of the com­mune under the podesta. They did not relinquish this power to make their own rules even when they had their own commune, the Comune del popolo, toward the late thirteenth century. At the same time, one of the many corporations, the collegium of the jurist “doctors,” used its monopoly on knowledge of Justinian’s laws and the universal law of the church as a formidable instrument for political and social con­trol of city life and as a means for increasing and safeguarding the unique power of its members and reaping immense professional profits.^[84]

In Italy of the communes, then, custom was interwoven with the statutes, and its fate was mingled with theirs. Exceptions were few: in Pisa, to note one, the normative texts of the Constitutum Iegis were kept separate from the Constitutum usus (which contained customary norms promulgated by the city government, hence given a new and different tide of validity).

In certain regions of northern and central Italy, laws produced and imposed by the authority of a prince or ruler were added to city laws and took precedence over them.

Piedmont and Savoy

In Piedmont and Savoy, Aosta and Vaud were both conspicuous for their imposing bodies of customary norms. But from much earlier days—the times of Pietro II, from 1266 to 1269, and of Amedeo VI, the “Green Count,” in 1379—the central government had aimed at providing an overall, unified set of laws for the entire land; a law that, unlike city customs, hoped and claimed to be a general (or common) law. In reality the most significant results of these efforts came only with Amedeo VIII and his promulgation (in 1430) of a body of laws set out in the five books of the Decretu seu Stututuⁿ

The Papal States

The same sorts of things occurred on the two levels of the ius pro­prium in the Papal States, which cut across several regions and occu­pied a large part of the center of the Italian Peninsula, from Latium north and east, passing through Umbria to the Marches, and includ­ing a part of Emilia.

On the lower or city level there were customary norms and city stat­utes as in Lombardy, Liguria, the Veneto, and Tuscany. Above the local norms (but as a law subsidiary to them) a broad-ranging corpus of laws, divided into six books, was promulgated in Fano in 1357 un­der the supervision of Cardinal Egidio d’Albornoz, the papal legate for Italy in the years in which the pope resided in Avignon. The title of this document was Liber Constitutionum Sanetae Matris Eeelesiae, but it was also known as the ConstitutionesMarehiaeAneonitanae or simply Constitutiones OegidianaeI² Some two centuries later, when Cardinal Rodolfo Pio of Carpi made additions to it that were promul­gated by Paul III in 1544 as Additiones Carpenses, this collection of laws was still showing signs of life.

The Giudicati of Sardinia

Sardinia’s history was intimately connected with that of Europe, despite the judgment of many historians, the inadvertent neglect, and the deliberate omissions that have attempted to relegate that large Mediterranean island to the fringes of the major events of the period.

In Sardinia as elsewhere, cities and towns had their own customary norms, in part channeled into broader statutory texts, which were the symbol and expression of the vitality and the autonomy that the ur­ban community had won and could enjoy. This was the case, for ex­ample, in Sassari and Cagliari.

Furthermore, as in the Duchy of Savoy (Piedmont and Savoy) and the territories of the church (the Papal States), there were attempts in Sardinia to create a unified legal system for local populations, but the project was realized only in a part of the island. Ahegiudieati (small kingdoms—regna—headed by a monarch called a iudex) of Cagliari, Logudoro, and Gallura gave little sign of any such intentions, but in thegiudicato of Arborea, the reigning index, Mariano (1353-76), drew up a first project for a general law, which was followed by a complete

12. There is a lengthy and fully documented work on Egidio d’Albornoz and his Constitutiones-. Paolo Colliva, Il CardinaleAlbomoz, Io Stato della Chiesa, Ie “Constituti­ones Aegidianae” (13s3-13s7) (Bologna: Real Colegio de Espana, 1977). See also “Il testo volgare delle Costituzioni di Fano dal ms. Vat.lat. 3939” in the appendix to that work. corpus of laws promulgated in 1390—91 by Eleonora of Arborea, Mar­iano’s daughter.^[85] The thorough coverage and the maturity of this Carta, de Iogu de Arborea enabled it to reach beyond the borders of the giudieato of Arborea to become a territorial law for all of Sardinia. Thus Sardinia had local laws on the two levels of the city and the region.

The Regnum Siciliae-. Municipal Customary Law and Royal Law; The Assisae of Roger II; the Liber Constitutionum OfFrederick II

These problems were particularly interesting and particularly var­ied in the part of Italy known as the Regnum Siciliae.

Some cities, Amalfi for example, had seen their relations with the East shattered and their trade ruined by the installation of the Nor­mans to the south of them and the construction of a Norman king­dom partially blocking Amalfi’s long-standing connections with By­zantium. In spite of this, Amalfi made good use of the extraordinary potential that it had gained from the varied administrative and notar­ial experience that grew out of its traditional economic activities, and the city gave birth to entire “dynasties” of notaries and able adminis­trators. Other cities—Bari, Messina, Palermo—had periods of in­tense development due in part to their strategic locations and their excellent seaports.

These cities demanded of the monarchy freedom to live according to their own ancient customs, a political course that the crown op­posed and, when it could, tried to quash.

Some of the cities of Puglia obtained a first recognition of city rights when they surrendered to the new sovereign shortly after the consolidation of the new kingdom. Between 1130 and 114-0, Roger II drew up explicit pacts with these cities, validated and documented by carte di resa (charters of surrender), in which the king promised to respect the local customary norms and the cities submitted to the crown. In 1140, however, the same Roger II violated these pacts and forced the judges of the kingdom to apply the laws of the realm (the Assisae) first, referring to customary norms only when they did not “most manifestly” differ from the sovereign’s laws.

The cities of Puglia continued their dynamic development during the last decades of the twelfth century, when two Pugliese judges, An­drea and Sparano, redacted the customary norms of Bari (Andrea those of the Roman tradition and Sparano those of the Lombard tra­dition).

In Messina the first attempt to write down the city’s customary norms (undoubtedly on the initiative of a private citizen, a judge or a notary) dates from the first two decades of the thirteenth century. After 1220, however, Frederick II, who was also Holy Roman em­peror, began to exercise his sovereign powers as king of Sicily. He established a harsh policy of the containment or repression of local freedoms and local autonomy, and one particular law in the Liber Constitutionum of 1231 that he promulgated, the Constitutio “Purita­tem,” was to pose great problems of interpretation for later historiog­raphy. This constitution established a rigid hierarchy among the nor­mative sources of the Regnum. Judges were to apply the laws of the kingdom first; if the royal law failed to provide a norm corresponding to the case under examination, the judges were directed to turn to the city customary laws, but only if such laws had been expressly held just and admissible (bonae et approbatae) by the king. Finally, if the judges found no applicable norm either among the sovereign’s dispositions or among the bonae et approbatae customary laws, they might avail themselves of the ius commune. This, according to an explanation in the text but perhaps added after its publication and placed at the end of the constitution, comprised Lombard law and Roman law.

Historians who have grappled with the problems posed by “Purita­tem” have not always dealt with both aspects of the problem. The text should be examined from the point of view of the local legal institu­tions of which the statute was an expression, but also from the point of view of that universal political entity, the empire, of which the ius commune a projection. Furthermore, some historians have con­sidered the local laws and the ius commune only within a perspective that reduces them all to simple positive law. By considering Roman law only as positive law, they have thus concluded that the ius com­mune was only a subsidiary law. Then, with a bold leap justified by a similarity between the gradations in the law imposed by “Puritatem” and the hierarchies of law present in many communal statutes of cen­tral and northern Italy, they have drawn the further (but hasty) con­clusion that in all cases the ius commune was a subsidiary law, the study of which is thus all the more useless for comprehension of the complexities of local municipal statutes, since men of that time— whom one legal historian refers to zsgli omarιni di media cultura, (the little men of middling learning)—had only the vaguest knowledge of the ius commune.^[86]

Although it is true that, if we hold to the perspective of positive law, a gradation among sources of law leads to an acceptance of the notion that the ius commune was (in that perspective only) a subsid­iary law, it is also true that the problem is wrongly posed in those terms because they are both limited and limiting.^[87] A partial truth is not the truth. What is missing here is the other perspective, the one that enables us to view the ius commune not as a positive law but as a law that “eternally” (it was thought) radiated juridical logic, juridical concepts, and the terminology and mechanisms of legal reasoning— in short, the jurists’, hence the judges’, modes of being. Thus what seems secondary when one follows one interpretive line becomes es­sential and bears its full load when one follows a different and broader approach. This is true whether we are looking at events in the Reg­num Siciliae as they related to levels of law in the Constitutio “Purita­tem” or whether we examine what went on in any other part of Eu­rope when a specific legal system imposed hierarchies of laws for the guidance of the judge. As we shall see, this happened in Europe even in regions of northern France, where Roman law was by no means in force as positive law but where it persisted as ratio scripta and in­formed every act and every opinion of the agents of justice because it penetrated the jurists’ reasoning mechanisms and because its lan­guage was the vehicle for all ideas.

Ajfter the death of Frederick II in 1250, both during the course of the tumultuous events that ended the Swabian phase of the Regnum and when Charles I, the first Angevin king of Sicily, came to the throne in 1266, the cities once more began to weave the fabric of their liberty and their self-government.

Cities in both parts of the Regnum gave free rein to such initiatives after the Sicilian Vespers in 1282, an event that for roughly a century and a half separated Sicily (ruled by the Aragonese) from the conti­nental Mezzogiorno (under Angevin French rule). The cities were abetted by the crown’s lack of interest, by its weakness, and by the rapacious greed of Aragonese sovereigns such as Alfonso, called the Magnanimous (d. 1458), who were willing to recognize the cities’ laws, old (that is, customary) and new (capitula), in exchange for sub­stantial payments in gold coin—Florentine or Aragonese fiorini or Sicilian onze. Cities were also helped by the administrative policies of the Angevin crown, which saw that the kingdom would flourish by keeping a balance between the sovereign’s central authority and the local liberties of the demesnial cities (that is, cities directly subject to the crown). In any event, in the late thirteenth, the fourteenth, and the fifteenth centuries the cities of the kingdom were intent on having their own law, first by the redaction of customary norms, then by ca­pitula to which the sovereign, according to his interests, gave or with­held his placet. This sort of activity was intense in the demesnial cities that were directly subservient to the crown with no intermediate feu­dal lord. Although from time to time some cities and towns passed under the power of a feudal lordship, many remained as part of the king’s demesne, as Martin of Aragon the Younger, king of Sicily, took care to remind the Parliament of Siracusa in 1398 as part of a royal “census” of the demesnial cities.^[88]

The compilation of customary norms (consuetudines) was begun through private initiative. When the city adopted a private collection and made it its own, it sought to legitimize it by requesting confir­mation from the king, who, if he so desired, then conceded the collec­tion of customs “as a privilege.”

The so-called “Ancient Text” of the Consuetudines of Messina goes back to the latter half of the thirteenth century. This widely known text served as a model not only in the neighboring areas of northeast Sicily but also in places as far away as Trapani. Trapani, in fact, took the TestoAntico of Messina as its own law in 1331, and, because there is no direct documentation of the original version, we know the oldest Messina customary laws through the Consuetudines of Trapani or by their reuse in even later and in part fragmentary texts.^[89]

During the fourteenth century, increasing numbers of privileges were requested and granted for city consuetudines. Thus Palermo, Ca­tania, Siracusa, Noto, Patti, and a number of other demesnial cities and towns, great and small, all enjoyed royal “privileges.”^[90]

The situation was different in the feudal cities. There, although the city dwellers used customary law to defend a stability that served them as a guarantee of their liberties, the redaction of custom took place within “pacts” that led to complex, difficult, and often violent relations between the local community and the feudal lord.

Royal legislation formed a counterpoint to the variety of the local legal norms. It too was iusproprium in respect to the ius commune, but it served a broader and more homogeneous territory than the consue­tudines and the municipal capitula, thus it appeared as a territorial law endowed with a general authority that the municipal legal systems could not have. In the Regnum Siciliae as elsewhere (and earlier than elsewhere) we can see the phenomenon of the dual levels of the ius proprium that we have already seen in Savoy, in the Papal States, and in the Sardinian giudicati. We shall see that it was fairly widespread north of the Alps as well.

The oldest royal legislation is the Assisae (Assize) promulgated by Roger II for Ariano di Puglia (now Ariano Irpino, in Campania) in 1140. These were norms, few in number, named for the assembly (as­sise) in which they began their official life. The king’s will was what counted: the assembly, informed of his pleasure, served only to make known and publicize that will. William I (the Bad) and William II (the Good) also promulgated constitutions, in large measure now lost.

In Melfi in 1231 Frederick II promulgated his famous body of laws, referred to in the sources variously as Constitutiones or Constitutiones Regni but more commonly known as the Liber Constitutionum or LiberAugustalis.^[91]

This legislative work, which may have been in large part drawn up by Frederick’s secretary, the cultivated Pier della Vigna, is divided into three books. It is an “open corpus,” however, to which novellae constitutiones of Frederick’s were added, either as an integral part of the work or separately in an appendix. Not all of Frederick’s later legal enactments found a place in the Liber Augustalis_y however, a fact that shows selectivity at work and that ultimately gives special value and significance to the legislative texts that were included and demotes the excluded texts to a secondary or occasional status. In short, the Liber Augustalis contained the notion (which was to be typical of nineteenth-century “codifications”) that the materials it subjected to unified treatment were to underlie the entire normative system throughout the land. This is, incidentally, an idea that was realized during those very same years, in sharp rivalry with the Liber Augus­talis, in the Liber Extra of Pope Gregory IX, a work that gave the church a universal normative system, the exclusiveness of which we have already seen. This rivalry created an internal ambiguity in the LiberAugustalis'. although it undeniably was promulgated by Freder­ick II in his authority and dignity as Rex Siciliae, it nonetheless ex­pressed the will of a man who was also emperor of the Holy Roman Empire. Francesco Calasso rightly emphasized the positive aspects and the constructive results of this ambiguity: expressions heavily freighted with meaning as strong projections of the maiestas and sa- crality of imperium were inappropriate to the reality of a more modest royal legislation.^[92] This ambiguity places XhcLiber Augustalis squarely at the center of the sources of the ius proprium, and it attributes a value, a dignity, and a quality to that ius proprium lacking in other local normative regimes.

Although the Liber Augustalis remained in force for centuries, it was not studied in the specialized juridical schools. It did not even figure in the curriculum of the Studium in Naples that Frederick II himself founded in 1224. This fact seems most singular if we judge it by the logic of those who see the sources of the ius proprium (royal decrees, customary law) in the Regnum Siciliae and the norms of the ius commune uniquely as “positive law.” Moreover it is a fact that has always been ignored or eluded in all historical studies of the Consti­tutio “Puritatem” and left out of their overall view of the problems connected with the laws of the Regnum.

If we follow the current historiographical logic we cannot explain, on the one hand, why Frederick II imposed the Liber Augustalis as the primary and general law of the Regnum while relegating the ius commune to the lowest level of “subsidiary law” or, on the other, why he took the ius commune (Roman and canon) as the primary, even the only, law when he reorganized the law school of Naples in 1224.^[93] He backed the programs of these schools and carried on an intensive and at times bitter political campaign to limit the influence of Bologna; at the same time, however, he tried to transplant to Naples Bolognese methodology and the study of the Bolognese texts of common law, rallying to his cause such southern jurists as RofFredus Beneventanus and others who had studied in Bologna and had personal experience with the teachings of northern schools either in Bologna or influ­enced by Bologna.

Such an approach is a dead end that will lead only to an impasse. It follows the reductive conviction that royal law and ius commune were merely positive law, with the corollary that the only problem worthy of attention is an investigation of the ways in which a judge fulfilled his duties by a search for the norm appropriate to the case before him. I do not believe that Frederick II ever had such a modest view of his own molestas, nor do I believe that, even when he lowered himself to take on the figure and the functions of a king, Frederick II had any doubts about being always and at all times and occasions, also and above all, an emperor. Thus, thanks to Frederick’s global concept of imperium, the ius commune—which the judge could do without and was even obliged to do without if an appropriate princi­ple could be found in royal law—recovered its sacred character and its value as a paradigm and a model for the autonomy of the law, an image superior to legality, and an extreme limit set to any thoughts of insubordination on the part of the judges of the kingdom.^[94]

The same was true of the precepts of Holy Scripture. Although it is quite true that the judge could not apply them in preference to lo­cal, royal, or customary norms, he still had to keep them in mind at all times. Although from the twelfth century on, law was distinct from both theology and ethics and each had its specific terrain, the distinction by no means involved an absolute separation, except per­haps for people of weaker conscience or in dubious affairs or the shady maneuvers of obscure minor lawyers.

This vision—a vision that permeates the LiberAugustalis and gives it life and significance—makes the corpus of laws OfFrederick II stand out clearly from analogous collections (or “codifications”) of the time. The only compilation that bears comparison with it was its ri­val, the Liber Extra of Gregory IX (1234). The pope’s attempts to modify Frederick’s legislative initiative, which was clearly forthcom­ing by 1230, become essential for understanding not only the motiva­tions behind the Liber Augustalis and the significance of that docu­ment but also, given that the two situations were parallel, for understanding the positive valence of the LiberExtra_y which reached beyond the domains of positive law and the guidance to be given to a judge, to radiate throughout the entire realm Ofjurisprudence. In that broader arena the law was regarded as a norm to be applied, for which respect was compulsory, but it was also regarded as a source and cor­pus of human justice, a basis for theoretical elaboration, and an instru­ment for political power and for the pursuit of the economic and social interests of individuals, groups, and entire segments of society.

Thus, to cite just one example, if we must agree that Charlemagne’s universal order fell apart because that first emperor of the Holy Ro­man Empire had no clear idea of imperium and dominium?³ it is just as !indisputable that Frederick II had a very clear grasp of those same notions. These were ideas founded on and incorporated into the dis­positions and doctrines of the ius commune, thanks to the rediscovered importance of the ancient Roman law and Justinian law. They were a part of the European legal tradition of the first half of the thirteenth century, when the glossators’ school had reach its height in the works of Azo, Hugolinus, and Accursius, some time before 1231 and the pro­mulgation of the LiberAugustalis. They were the only possible roots from which the project of a “general law” for the exercise of imperium could spring—which was the point on which Frederick II and Greg­ory IX clashed.

3.