Scientiu iuris∖ The Role of the Jurist in the Fourteenth Century
The jurist was anchored to the width, breadth, and characteristics of his scientiu∙, when jurisprudence reigned supreme over the other disciplines, the jurists who had dominion over it and who stepped forward as leaders achieved a social rank that translated into and was manifested in prestige, power, and wealth.
This occurred in two closely related ways.The vulgus (common person), who looked at the professional figÂure of the jurist from the outside, was struck by the social prestige and the wealth of the man of law. For that reason, jurisprudence itself seemed a science of power and a lucrative discipline. “Jurists,” NigelÂlus Wireker wrote in the twelfth century, “are everywhere where there is money and power, at the king’s court and in the dwelling of the pope, in civil society and in the monasteries.”[211] They assumed an asÂpect and a function: “They advance stiff as a ramrod, and they cling to kings.”[212] Nigellus is repeating here one of the century’s favorite themes, one that other writers—St. Bernard, Maurice of Saint-VicÂtor, and others—treated with burning accusations. Fables and goliar- dic poetry also treated the theme of a rich and powerful jurispruÂdence. In spite of his “sensus hebes et cervix praedura” (dull mind and strong neck), the ass Brunellus fully understood that the law was a road to the summits of power.[213]
This was how the common people viewed legal science. Some scholars agreed: Placentinus gave a lively personification of legatis sciÂentia, contrasting it to ignorantia. Jurisprudence is like a greedy woman looking for prey: she strikes fear in all who behold her; she has black hair streaked with white that glistens like coal and dark, sunken eyes; she is thin and pale, with wrinkles running over her face; her only luminous aspect is a set of gleaming sharp teeth in a dry and bloodless face (“Facies, colore arida, sanguine desolata”).[214]
Others, however, knew that the law had inherent values and posiÂtive features.
Sensing its unity as parallel to the unity of the empire (“Unum est ius cum unum sit Imperium”; The law is one as the emÂpire is one)[215] was a way of transferring to the law the Sacrality and the authority of the empire. Devoting one’s efforts to studying justice in order to measure the extent to which a law was or was not congruent to justice implied concentrating on the same acts and the same behavÂiors that concerned the theologian and the churchman, and the paralÂlel between their activities reflected divine authority onto the figure of the jurist. It was true that the legal field remained clearly distinct from those of ethics and theology, but that distinction by no means signified a total separation, among other reasons, because intuition or observation showed them to have a common goal. Thus Placentinus displayed no embarrassment (perhaps a bit of irony) when he taught that jurisprudence was “most true philosophy,” reiterated that it was a “most holy thing,” and announced that it “chases away vices, supÂports good mores, and most admirably detests bad ones,” or that it taught everyone, young scholars in particular, the three cardinal qualÂities of character, which were generosity, strength of soul, and (even) chastity.[216] Placentinus explained all this in the cathedral of Bologna, because this discourse was part of his Sermo de Ugibus, read to inauguÂrate the academic year, and because the school year was always begun in the house of God with the professors normally speaking right along with (although after) the ecclesiastics who carried out the reliÂgious part of such functions. This setting inevitably evoked the idea, current at the time, that the law contributed in its own distinct way to the Wielioratioadstatumperfectum (betterment to a perfect state) of humankind that was the focus of all medieval culture.This perspective lends significance to the internal coordinates of legal culture and the very nature of the law.
These coordinates were: the jurists’ insistence on justice and equity; their basic conviction that the ius commune was a universal law, one as the Holy Roman Empire was one and as the church that brought all the fideles Christi into one fold was one; the arduous construction of a “system” to bind together the texts of the Justinian compilation and make them so homogeÂneous that they could be perceived as one corpus (“Omnia in corpore iuris inveniuntur”); twelfth-century efforts to reduce to unity and concord the discordant normative passages in church law (Gratian’s Concordia discordantium canonum OrDecretum) and to promulgate the great “codifications” of the universal church of the thirteenth century (the LiberExtra of Gregory IX and the Liber Sextus of Boniface VIII) and of the early fourteenth century (the Clementinae of Clement V and John XXII); finally, the slow definition of another meaning of “system” as a link between the ius commune and the ius proprium.Our next problem is, first, to understand why jurists who took up the topics of the universality and the sacrality of the law and the unity of a ius commune, conceived as a corpus, took such pains to prove their points; and second, to understand why, at the same time and with a related involvement, jurists attempted to discern real-life connections between ius commune and ius proprium and to theorize on those conÂnections, proposing a different picture of systematic relationships and a different meaning to the “system” of the ius commune.
Personal motivations have little importance in the search for such reasons. Principles and values may indeed have passed “from ideals to myths, and from myths to useful instruments in the hands of those whose goal was action.”[217] That might have been the case among lawÂyers, judges, or office-holders in public administration, even among notaries, because all these men had reason to mask the true face of their operational choices behind solemn proclamations of ideals and mythical principles.
It is difficult to establish, case by case, whether it actually occurred.It is certain, on the other hand, that there were connections beÂtween the ius commune and the ius proprium, and that those connecÂtions were explicitly described in a clear theoretical position. These were real data that always operated in the same way; in and of themÂselves they produced effects that were independent of the will or the awareness of the persons involved in the acts, either when they made conscious use of the ius commune when setting down a norm of ius proprium in writing or when they constructed a systematic vision of the law according to the two currents of thought that I have sought to describe. Whether or not a jurist, practical or theoretical, became aware of the possibilities inherent in the “system,” whether or not, out of distraction, ignorance, or innocence, he neglected to consider the features and constructs implicit in the real workings of a “system,” the result was the same, because everyone—the pettifogging lawyer, the judge with few scruples and little intellectual inclination, the inexÂperienced, ingenuous professor enamored of the logical creations of his own imagination—everyone, and in every instance, for his own part and by his own efforts, even when he knew nothing (and hence had no desire to do so), participated actively in this historical process. I might note, incidentally, that something analogous is occurring in our own century and our own times in the field of the economic order of the capitalist “system,” where the farmer, the worker, and the retail merchant, even if they know nothing about the capitalistic “system,” nonetheless live in the daily reality of that “system” and, no matter how unaware they may be, contribute to constructing and mainÂtaining it.
The universality of the Roman and canon law and of the “system” of the ius commune, conceived of in the dual perspectives of coordinaÂtion within the ius commune and coordination between the ius comÂmune and the ius proprium, had consequences that radiated in all diÂrections. It was objectively impossible for those who cultivated juridical science not to be aware of these consequences.
Certainly some jurists engaged in seeking out such real connections and theoÂrizing about them were quite lucidly aware of the effects of their theoÂretical position and realized how much it contributed to the consoliÂdation, prestige, and power of their class.First, the jurists’ position was strengthened vis-a-vis heads of govÂernment but also in relation to the craftsmen and merchants who furÂthered production and commerce. They also reinforced their ties to the ecclesiastical world, because the two groups displayed common intentions in their insistence on comprehending the things of this world and interpreting them sub specie aeternitatis (as a quality of eterÂnity) as an imperfect reflection of divine perfection and of the superÂnatural and eternal sphere. Furthermore, the jurist exploited these ties, whether he made a show of them, hid them, or was totally unÂaware of them.
Second, a ius commune and a universal “science” permitted, postuÂlated, and by their very nature required an extremely open communiÂcation among those who undertook legal studies, because jurists could easily recognize one another, not only when they came from the same city or the same region but throughout Christendom. DifÂferences in local customs, vernacular languages, customary laws and city statutes, and regional or royal laws put no obstacle in the way of their relations and their integration. In short, we have the phenomeÂnon that the sociologists call a “horizontal integration of the elites”— in this case, among the jurists of the various cities of Europe. This is why I believe that the problems heretofore studied and reported only under the inaccurate labels of the “pre-reception” and the “reception” of the Roman law in German lands and elsewhere need to be reconÂsidered in a new and more profitable perspective. It will not come as a great surprise to find that in Germany as in the Iberian Peninsula or in France, legal culture of the Bolognese type was present as early as the twelfth century and constituted a solid base for establishing roÂbust relations within all of Europe.
It should hardly be necessary to emphasize that this formidable process of horizontal integration multiplied its own powers of expansion in direct proportion to the multiplication of centers specialized in the academic formation of juÂrists, hence in direct proportion to the spread of universities throughÂout Europe.Thanks to a universal science and a universal law, a vertical integraÂtion was also realized among those city elites, the pope and the emÂperor, who reigned at the summits of the two universal organizations, and the sovereigns of the various countries of Europe at the summits of the great monarchical organizations. There were in fact thousands of opinions given, letters written, and instances of technical assistance rendered to the pope, the emperor, or the kings on the part of juristÂdoctors, who always made use of the ius commune, civil and canon.
One episode among the many that might be cited is truly paraÂdigmatic of the dual process of the horizontal and vertical integration of the power of European jurists. In 1328 Riccardo Malombra, a faÂmous professor of law in Padua and a consultant for the Venetian republic, who two years earlier had been suspected of heresy for havÂing had commerce with certain people in Alexandria, was called to Bologna on the order of the pope, John XXII, to be “examined” by the cardinal legate. Certain elements in this story seem to have had a decisive effect. The jurist presented himself, at the place and the hour in which the examination of the solidity of his faith was to take place, accompanied by the entire College of the Jurist-Doctors of Bologna, an organization of which he was not a member, since he taught in Padua, but whose full solidarity he evidently enjoyed. The cardinal legate expressed his astonishment that so many illustrious persons would “dare to take the defense of an impious [person] and a heretic.” He spoke “sharp words of reproach” against Riccardo, not so much for his as-yet-unproven heresy as for his imprudent behavior, but he went no further than delivering a generic injunction enjoining RicÂcardo to remain in Bologna for an unspecified period of time.[218] RicÂcardo remained in Bologna for several years, still awaiting a judgment that never came either to sentence him or to exonerate him. He seems to have suffered no harm from the experience, because we know that his intimate knowledge of the ius commune earned him generously reÂmunerated consiliui to the extent that some relevant theoretical points of one of his opinions merited inclusion in the Commenturiu of Barto- Ius of Saxoferrato.[219]
This episode illustrates the chief components of legal reality in the fourteenth century: the unity of the law (ius commune and ius proÂprium), the universality of legal science, the solidarity of jurists as a group, which the unity and the universality of the ius commune helped them to achieve, but which was also aided by their close relations with the local and central political powers. Jurists were guaranteed ample elbow room for at least the entire century.
The political class has always had to deal with jurists, even on the political terrain of power struggles between the jurists’ corporations and the constituted governmental powers. The law was repeatedly suggested as a means for setting limits for the actions of the lord or the prince.
Once again, Bartolus gave a clear statement of the question: the lord was not a tyrant if he acted “secundum ius” (according to the law); a lord was a tyrant “qui in communi re publica non iure princiÂpatur” (who did not rule his principality legally).[220] Thus the jurist reserved to his own domain an area of specific pertinence that exÂcluded lords and princes: “Quia hodie Ytalia est plena tyrannis, ideo de tyranno aliqua ad iuristas Spectancia videamus” (Because today ItÂaly is full of tyrants, we may look to jurists in matters touching tyrÂanny).[221] I cite from a fourteenth-century manuscript in the Vatican Library (Vat.lat. 2289, fol. 73ra) because the phrase does not appear in the humanistic edition of the works of Bartolus.[222]1 do not believe
202 The System of the Ius commune the omission to have been due either to chance or to a printer’s error, because it is precisely the final portion (α... ideo de tyranno aliqua ad iuristas Spectancia...”) that refers explicitly and openly to the jurist’s power to deliberate on the acts of the lord and render judgment on them. The fourteenth-century “lord” accepted the idea of listening to and even submitting to the jurist’s judgment, but the “prince” of the new times was no longer willing to expose himself to that judgment or to respect the confines of an exclusive legal domain.
In the fifteenth century, when relations between the ius commune and the ius proprium began to change in Europe, it was precisely in this area that they changed. And when the value assigned to legal sciÂence shifted in the great currents of humanism, the “Secunda ScholasÂtica,” and the Usus modernus Pundecturum, the role of the jurist changed along with it. So did the social and political power of jurists as a class when the corporations of both theoretical and practical juÂrists were attracted, swallowed up, caged, enmeshed, and at times desiccated as they were caught in the institutional trammels of the new principalities, the absolutist monarchies, and the national states.
original. Quaglionfs view (ibid., 170) is shared by Paolo Mari, “Problem! di critica bartoliana: Su una recente edizione dei trattati politici di Bartolo,” Studi Wiedievali, ser. 3, 26, pt. 2 (1985): 907-40, esp. 924-25, n. 45.
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