Ius commune and Ius proprium as Positive Law: Hierarchy in the Sources

In the long age that began in the twelfth century and continued until the eighteenth century, the many and varied norms of a city, a feudal territory, or a kingdom, which covered the entire population or specific groups, social levels, corporations, or confraternities within the population, gradually came to be clarified, delimited, and consolidated.

AU of Europe was honeycombed with a thick network of thriving particular law, giving a first impression of confusion, uncertainty, and precariousness. Anyone who traveled a long distance and went from one country to another might easily change status within the day; he might be of age in one place in the morning and that evening find himself accounted a minor in another place.^[138] At least this was the case until the fourteenth century, when radical corrections were intro­duced into the ius commune to define and give concrete form to per­sonal status and basic, stable personal rights.

Historians have responded to this panorama in a variety of ways that can barely be touched on here. Some scholars have seen the “eth­nic” origins of certain social phenomena as aU-important and have supposed that they were perpetuated at the start of the second miUen- nium out of nostalgia for a remote past. Thus “Roman” or “Ger­manic” descent has been praised from opposed and conflicting points of view. Or else particular events or figures have been picked out and charged with symbolizing an epoch or a land as the historian follows the conflict between classes or interests as they rush headlong toward open and bloody revolt or resolve their differences in a social compact or concordia. Another approach has been to concentrate on life’s more mundane moments and the rhythms of everyday living in an attempt to reconstruct a global microhistory.^[139] In all cases diversity has been either exploited (moving from a basic conviction that has attempted to document its own past by stressing its difference) or ignored, either in favor of contemplation of the isolated datum or out of an indiffer­ence toward comparison that denies it all feasibility or usefulness.

In the circumscribed world of microhistory, an insistent analysis of all the data present in one particular set of historical circumstances led that historiographical school into dealing with problems, concepts, ideologies, languages, and styles of reasoning that it has been unable to comprehend because it isolated the phenomena on which its inves­tigation focused from the broader context out of which they arose and by which they were shaped.

This is what happened concerning the problem of the relationship between particular law, the ius proprium, and the common law, the utrumque ius or ius commune. We have in fact seen little or nothing of the ius commune in historiography because either it has been consid­ered completely extraneous to the ius proprium or we have been shown only that portion of the ius commune that particular law has allowed us to see and appreciate, which means that we have had only a reduced and distorted image of it, or else its various aspects have been reconstructed according to the viewpoint of those who acted within the order of particular law. Obviously, this angle of vision is not only partial but marked by the political interests of the social and political order in question or by the disinterest and sense of irritation of dreamers unable to see beyond their own small provincial world, who imagined that it provided answers to all the demands of their own daily lives in the realms of the law and of values and principles.

The favorite terrain for this sort of reductive historiography is the set of notions that make up the so-called “hierarchy of the sources.”

We have seen how—in theRtf/pzww Siciliae by means of the Consti­tutio “Puritatem,” in a number of municipal normative systems by means of statutes, and elsewhere by royal order—legal sources in Europe came to be organized in order of precedence as a way to provide judges with guidance and a basis for their decisions. We usually find the highest priority given to the law that was the most direct expression of the organs of government: the royal law in various European kingdoms, the statute in the municipal communes, or the feudal law in territories ruled as counties, duchies, and princi­palities.

One episode has on occasion been taken as emblematic of this search for a norm. Andrea Bonello da Barletta (d. 1291) relates that a prominent lawyer (he may have been speaking of himself) was at­tempting to argue a case for a client in Puglia, within the Regnum Siciliae (Kingdom of Sicily), on the basis of the laws of Justinian. The lawyer for the opposing side, whom Andrea scornfully describes as an advocatellus quidam (g certain little lawyer), knew nothing of Ro­man law, but he had a copy of a summary of Lombard law that he kept carefully hidden under his robe, producing it in a surprise move to win his case. The judge decided in favor of the “little lawyer” be­cause Lombard law was taken to be of a higher rank of positive law that took precedence over Roman law.^[140]

In both the general problem of “hierarchies” and in this example taken as a model and a basis for historiographic evaluation, there are recurrent terms and concepts that we have already encountered: ius regium, statutum, consuetudo, ius commune. These terms are all placed on the same plane, in the sense that they are always understood within the context of “positive law” and with the meaning they have in that context.^[141] “Hierarchy” is conceivable only by doing so; otherwise, there would be no lowest common denominator that could make an operation of the sort feasible or useful for such purposes.

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