Perpugnum sine iustitia

Thus as late as the tenth century, Europe was still guided by two fundamental lines of thought that had permeated and guided civiliza­tion on the continent since the fifth or sixth centuries.

Anyone in normal daily life who thought his interests had been prejudiced or who foresaw that a ruinous act was about to bring him harm had only two ways to defend himself or win his cause : the force of arms, or the force of a reasoned justice founded in the human heart and animated by faith in Christ. Obviously, these two lines of re­course were not exclusive to the early Middle Ages, since in other ep­ochs (and even in our own) they have been a temptation for someone in search of a defense. In those distant centuries, however, they had a prominence and a clarity that the historian must note.

When in 731 the anonymous drafter of the Edictum OfLiutprand of that year wrote the lapidary phrase, “per pugnam sine justitia,” at the close of the one hundred eighteenth chapter,^[44] his point of reference was an ineluctable alternative: he knew that a right could be defended per pugnam (with armed force), which one should avoid, or per iustit- iam, which was more desirable. To saγper iustitiam ∖∖^τ⅛s not the same as saying per legem_y however. In that epoch “legality” was not known as a value, and the “law” was not looked to as an accepted, just, and rational way to prevent or resolve conflicts between individuals and order the life of the community. When, sporadically, a “law” did sur­face among so many customs, it only expressed the idea that the “law” must guarantee a free search for justice, either through the individual efforts of a judge or a notary or through the collective consolidation of customary acts, or else the “law” was an accidental, occasional, epi­sodic but authoritative and written expression of the “justice” dis­cerned in a particular instance (but this was a new concept that was consciously developed only in the twelfth century). Iustitia always held the central position. Men’s instincts and their violence must be held in check and governed by the binding force of the supreme com­mandments of faith. Terrestrial norms were considered either as a corruption of iustitia or as a marginal actualization of iustitia. That was why it was impossible for an autonomous and distinct scientia iuris rooted in those norms to develop.

ιι.