Major Figures: Irnerius

Two figures stood out in this movement, dominating the scene: Irnerius and Gratian.

We know these two men. We have encountered them at work con­structing the bases of their thought: Irnerius by reorganizing, re­storing, and redistributing the texts of Justinian’s laws; Gratian by endowing the church with a programmatically homogeneous, abun­dant, and flexible normative text.

Historians credit Imerius with separating the law from ethics and from logic.^[149] This is an operation that might not be considered pre­cisely to his “credit” if it did not mean—as indeed it does—that Irne- rius viewed justice as an autonomous phenomenon and theorized on it in those terms, although he never rejected the necessary relation­ship in the substance of what he was distinguishing. Thus a norm that was considered juridical, and that hence was represented as autono­mous, could also be considered for its ethical content and in its verbal formulation, including all the associated problems touching on man’s inner life and his intellectual and expressive capacities. Indeed, this was so much the case that not only Irnerius but whole generations of jurists after him posed as a vital problem the question of the relation­ship between a norm that was discerned as juridical—hence complete in itself, rational, and authoritative—and a norm that could clearly be discerned as ethical, hence was necessary intrinsically.

Equity, Irnerius stated, meditating on a fragment of the Digestum vetus, although a part of justice, differs from it: it can be perceived in things and in human relations, but it only becomes “justice” (a juridi­cally defined and juridically relevant phenomenon) when there exists the will to give it a “form”—a verbal garb and a cogent value.

A concrete illustration may help to clarify Irnerius’s argument. In the exchange of a thing for the payment of a price, for instance, it was in the nature of things (in rebus') that no one deprives himself of something without some compensation (in a sale or a transfer) or without a reason (in a donation). Hence it was just and equitable that the person who receives a res pays a price, provided that the compen­sation reflects the will of the giver or seller (a determining factor and a specific stage in the transaction). AU this was equitable and a con­crete, specific exemplification of aequitas. But it remained on the level of a rudis aequitas—that is, on the level of moral evaluations—until such time as there was a norm that stipulated an obligation to pay a price for a res received or to give over a res for a price received. The glossators held that the act StiU remained outside the province of the law if this process of discerning the equity in the concrete relationship was conducted by a private subject, because in that case one would have either a ius strictum (strict right)—not yet scriptum—if that dis­cernment was reasonable and responded to the bonum generate (gen­eral good), or an aequitas bursalis (personal equity; the equity of one’s purse) if it responded to personal or particular interests as a conve­nient “rule” that anyone might bring forth, at his wiU and pleasure, from his own bursa (purse). According to Irnerius, in order to trans­form the aequitas into iustitia, the emperor had to lend his authority to the entire logical operation, a move that would also serve to guar­antee absolute certainty to the outcome (as opposed to the tendency of the particular case toward justice).

The expressions used by Irnerius and the jurists of the generations of glossators and commentators who followed him are often vivid and picturesque. Aequitas, wrote Rogerius in the twelfth century, does not become justice if it is not “in praeceptionem redacta et iuris laqueis innodata”^[151]—if it is not set down in legal norms and by that means well knotted into the web of the law. Jacques de Revigny, writ­ing in the thirteenth century, explained that aequitas was like a raw material out of which a manufactured product could be made; it was like silver, which exists in nature, is extracted from mines, and can be transformed into a vase, but becomes a vase only thanks to the craftsman’s skill. Aequitas was agenus', iustitia was a Species_y and as such equity had its own specific characteristics while retaining those of the genus.^γβ Similarly, the law was indeed autonomous and distinct from morality, but it retained and actuated moral precepts.

In this conception, aequitas had a vast meaning because it was the source of justice (fons iustitiae) and the source from which all positive law flowed. There was a different meaning of the term, however, that brought it down to more limited dimensions: aequitas could be un­derstood as a way to temper the rigor iuris (rigor of the law), as be­nignitas (mercy), but always within a specific order of relations and subject to clearly defined logical operations. This occurred when the first step in the process—the emergence of justice out of equity— came to an end and a cogent norm came into existence. At that point what was needed was only to interpret and apply the norm, which could be done in the most human and merciful way.¹⁷

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