The New Science of Law

A scientia, and indeed a new scientia, was emerging from a vague sapientia. This new “science” was a system of relationships within the “laws” of the ius commune-, it involved identification of the general principles of its own existence and development: “Habet quaelibet scientia principia et radices, super quibus regulariter constituitur fun- damentum” (Every science has principles and roots on which the foundations of the science are regularly established).^[152] It cast its light on the ius proprium, became incorporated into the ius proprium, and soon proved a stiletto-sharp weapon in the hands of practitioners— judges, arbitrators, lawyers, legal advisors, and notaries.

This new scientia, once it had been clearly defined and was com­pletely elaborated in all its complexity, constituted one “form” of the broader culture from the twelfth to the sixteenth centuries. From the twelfth century on, people’s overall vision began to include a funda­mental relationship between esse (being) and existentia (existence)— between what is perfect and eternal and realizes the idea of God and what is imperfect, transient, and consumed in this world in the hu­man life-span.^[153] The imperfect tended toward the perfect: it could not reach its goal short of the celestial beatitude of Heaven, which only the few would deserve. The only other choice for imperfection was to rebel against perfection and be lost to the torments of Hell. All of human life was beset by error, injustice, and imperfection, but it was also illuminated by an aspiration toward perfection and toward sym­metry in forms, order in thoughts, justice, and the good. Thus all the sciences, each discipline in its own way, were imbued with a profound religious tension: geometry was the earthly projection of the divine symmetry of forms and spaces, arithmetic a projection of divine calcu­lation, music of harmony, astrology of immense but finite distances, ethics of the eternal good to be realized on earth, logic of the immuta­ble order of thought, rhetoric and grammar of the perfection of the expressive forms and the properties of language.

In the field of the law as elsewhere, there reigned an aspiration to­ward order, symmetry, and coherence in thought and a yearning for absolute justice. All that humankind constructed must correspond, within the limits of human capacities, to the eternal and transcendent models. This was imperative when the legislator established a legal system, and it was just as necessary when the interpreter modeled the concepts and doctrines of the law or the judge resolved a drama in civil litigation or in a criminal case.

Because they were the outcome of human operations, all terrestrial acts were condemned to imperfection. Nonetheless, what the em­peror had decided was the best one could do and the nearest one could come to God’s designs, because the emperor was conceived as a divina sacrata maiestas (divine, consecrated majesty) who had de­scended to earth among humankind. In the Byzantine world, the em­peror was conceived as himself a divine being living out his earthly career, but the Roman Christian tradition saw him as God’s represen­tative on earth. The emperor shared this privilege with the pope; hence, Roman and canon law served as the linchpin for all reflection on human law, almost as if it were a providential mediation between a severe and immutable divine justice and an unreasoning human will that groped for justice, often with personal and particular cases as a point of departure, and that on occasion lost its way out of earthly blindness and fell into a squalid and degrading aequitas bursalis.

In this perspective, the jurist’s first responsibility—a responsibility that was felt with full religious impact but that was also bent, within only a few decades, to serve the interests of the consortium, the cor­poration, or a social class—was to study Justinian Roman law and canon law, to consider them as the most direct reflection of the veritas divina (divine truth), hence as law common to all Christians, and to think that only on the basis of these two laws were the practice of the law and a didactic, technical, and professional apprenticeship in the law possible.

Imperial and pontifical law needed to be studied analytically, in mi­nute detail, and with care if their unity and order was to be discov­ered. Above all, jurists needed to grasp the splendor of God’s unity and of divine order, which were present with the greatest intensity in Roman and canon law. For this reason the ius commune began to be thought of as a corpus. The first great work of the new times, Gra­tian’s Decretum, was born of a declared intent to bring discordant can­ons into harmony. The intellectual efforts of entire generations were Singlemindedly and profoundly committed to pointing out concor­dances, identifying antinomies, and interpreting the meanings of dis­cordant passages. Jurists put all their intellectual energies into elimi­nating disagreement.

Step by step, Roman and canon law were consolidated into one corpus by both intent jurists who cared Iitde for the interests of their kin and their corporations and cold jurists lucidly and astutely pursu­ing their political calculations and the accumulation of immense wealth. It continued to be thought of as a corpus for centuries to come.

Within a narrower scope, the movement toward coordination was led by glossators and commentators persuaded that it was possible to describe some juridical concepts theoretically and to conceive of each of them as an entity. They held that with the help of Justinian’s laws and an ongoing, evolving canon law, one could distinguish a natura in part extraneous to the laws and that preceded the laws and existed independent of them, even though nature lived again in the laws be­cause it was part and parcel of them and found a terrestrial and com­prehensible forma, in them.

The author of the Summa Trecensis warned his readers that the treatment of a concept (in this instance the donatio propter nuptias) must be carried on in such a way that the essential natura of the con­cept could be contemplated, but also in such a way that the same es­sential natura, now reconstructed and understood, could serve as a base to which whatever novelties the imperial laws may have estab­lished could be added.^[154] Other jurists followed the same line of thought to decide on the validity of specific agreements according to whether or not they conformed to the “nature” of an institution (the dowry, for instance).^[155] In this view, it was the duty of the legislator to translate the theoretical natura of legal institutions into workable practical terms, while it was the interpreter’s task to reconstruct the reasoning processes of the legislator and compose the resulting mate­rials in a unified framework.

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