The System of the Ius commune and the

Corpus iuris civilis∙. Dialectic

Around the 1270s legal theory began to show signs of change, di­verging in two main directions. Thus the overall problem of the ius commune in Europe can be looked at in two ways, distinct yet not separate, like the two sides of a coin.

The long-standing tradition that considered the laws of Justinian and those of the church as a corpus, hence as unified and as sacred and authoritative, not only persisted but strengthened. From this point of view the ius commune was a “system,” a system of laws that obligato­rily corresponded to a system of rights and that was conceived in pro­grammatic terms as exhaustive.

The second current was more sensitive to the problem of increas­ingly vast sectors of the law that were emerging everywhere (as we have seen in chapter 4) but that did not correspond to the corpora of the civil law and the canon law and so remained closed as sectors of the ius proprium. Some jurists discovered that the norms in the ius commune's “system of laws” lacked full potential to provide for all the acts of everyday life, which meant that the “system of laws” did not coincide with the “system of rights.”

We need to follow each of these two evolving lines of thought sepa­rately. The first was older and can be documented at least as far back as two passages in Accursius’s Glossa, one of which referred even far­ther back to the thought of Jacobus, to whom Accursius attributed the idea of a common law as corporis universitas.^[182] The other reiterated the widely shared conviction that “omnia in corpore iuris inveni­untur” (all things are found in the body of law [the ius commune]).^[183] This last phrase, read in its entirety, not only expresses the idea that the civil law must be separate from theology, from morality, and from what was by that time considered extraneous to the scientia iuris but also expresses faith in the idea that a discipline for human actions is always and in every instance found in positive norms, taken as a whole, and in the idea of positive law as a sistema Iegum (system of laws).

Jurists in the twelfth century and the first decades of the thirteenth plunged with interest and passion into problems inherent in this vi­sion, and they wondered increasingly frequently whether it was not perhaps the jurist’s task to investigate the correspondence between the sistema Iegum and a substantive sistema iuris (system of rights). This led them ineluctably to a search for the “justice” intrinsic to every law. The search found its best expression in debate and reflection on aequitas rudis and aequitas constituta—in short, in the court cases through which equity was transformed into justice and the ius (ius strictum) into law (ius scriptum). In the fourteenth century, when the issue had crystallized, one great southern Italian jurist, Lucas of Penna (before 1345-after 1382), put it succinctly: “Manifestum autem est, quod, cum voluntas principis ab aequitate, iustitia aut ratione de­viet, non est lex” (It is clear that when the will of the prince deviates from equity, justice, or reason, it is not law).^[184] Thus he drew a distinc­tion between the prince’s law, which corresponded to equity, justice, and reason, and the prince’s will, which, even when it reached out toward the law, in reality did not become law because it “deviated from equity, from justice, and from reason.”

The only way to create and elaborate a sistema Iegum was to discern the internal connections between one precept and another in the Jus­tinian compilation or the laws of the church, and then to bind these connections together so that the entire mass could be thought of as one unified corpus.

The jurists of the twelfth and the thirteenth centuries at first worked toward this goal with techniques and logical methods of modest scope. For example, they worked to construct their system using the scheme of sic et non—whatever is not prohibited is permit­ted—or they linked one norm to another by assuming a juridical problem centering on a given question and posed increasingly specific alternatives (gut...

As time went by the logical process became more refined. The re­discovery of the major works of Aristotle and the study of dialectic helped to consolidate logical experimentation in the aim of con­structing a systematic vision of the ius commune. Especially after the mid-thirteenth century, the Italian schools produced brief reperto­ries, organized by cumulative strata of contributions, of the essence of the principal modi arguendi in iure (modes of arguing in law) and loci Ioicalesperlegesprobati (arguments, in the form of maxims, applica­ble to the law).^[186] The technical modes of argumentation that were classified in this manner had in part already been incorporated into the texts of the Digest, because they had been used by Roman jurists of the republic or the empire, but now they were rediscovered and retempered for the purposes of Aristotelian dialectic. Such techniques served to argue in iure to reinforce a dubious interpretation or lend it certainty. There were tens of these techniques: one could argue a mai­ori (from the greater reason), a minori (from the lesser reason), a toto (from the whole), a diffinitione (from a definition), a nominis interpre­tatione (focusing on the meaning of a term), a genere (referring to generic characteristics), a similitudine (by analogy), a contrario (by opposition), ex silentio (holding an activity licit if not expressly pro­hibited), and so forth.

The use of dialectic could lead to excess, especially in the schools of philosophy. A famous anecdote that circulated concerning the school of Anselm of Laon was often repeated to note and warn of the perils of abstract logical exercises. It begins with a simple and incon­testable opposition, “Quod ego sum, tu non es” (What I am, you are not). It then adds, “I am a man,” in the circumstances equally incon- testible, and concludes, with impeccable logic but against the facts, “Therefore you are not a man.”^[187]

The study of dialectic was particularly intently pursued in France, where dialectic continued to be used and refined in the field of juris­prudence. During the final decades of the thirteenth century two ma­jor jurists, Jacques de Revigny (Jacobus de Ravanis) and Pierre de Belleperche (Petrus de Bellapertica), were particularly active in this area. The intellectual personalities of these two men are typified by a search for all the possible normative solutions implicit in Justinian’s laws. In fact, as Justinian’s laws were increasingly defined as a corpus, and as dialectic was applied to the law to greater and greater effect, that corpus gave the impression of having no lacunae simply because it was thought there could be none.

We may need to examine at least one example if we want to under­stand the sort of reasoning that led these jurists to “create” a norm if one was not explicitly given in the corpus but was thought implicit in it and so could be extracted from it by dialectical argumentation. There was no explicit rule in the laws of Justinian that covered the husband’s obligation to maintain and provide for his wife if he had received no dowry or if the dowry was deemed insufficient. Jurists called on a range of data to circumscribe this marital obligation. Hu- golinus de Presbyteris combined two texts to argue that the wife had a right to maintenance, to foodstuffs, and to medicines because she was in the service of her husband, in support of which he cited a frag­ment of the Infortiatum, Dig.38.1.48, on the labor of freedmen.

Jacques de Revigny “constructed” the missing norm with a typical and rigorous argumentum a fortiori (for a still stronger reason): “Let us put the case,” he states, “that there is no dowry and that the wife dies. The law states that the husband must bury her (at his own ex­pense). It is obvious that alive he owes her something more than dead; thus, if the husband must bury her at his expense when she dies, for even stronger reason must he feed her at his expense when she is alive.”^[189] Thus by taking an existent disposition and using it as an indisputable base on which to construct a dialectical argument, the jurist expanded the normative capacities of Justinian’s laws.

Extending Roman law in this fashion granted power to those capa­ble of bringing off the operation—that is, the interpreters—who in­evitably took an active role in the process. It also involved handsome earnings, as the professors pointed out to their students: there were subtle theoretical problems of no immediate use that did nothing to swell one’s money purse,^[190] but there were also pressing, current, and lucrative problems in search of a solution that met the needs of a broad variety of clients.

The great initial formative phase of the system of the ius commune can be said to have ended with the thirteenth century. Examination and experimentation had been pursued, decade after decade, for nearly two centuries. The ius commune was a reality, not only as a sys­tem of positive law but also as a system of legal thought. That was where it revealed its greatest potential. For one thing, it served as a model for the ius proprium when and to the extent that particular so­cial and political communities of Europe wanted to reflect or repro­duce its dictates (with modifications or additions). For another, it provided the principles, the concepts, the terminology, and the modi arguendi that the jurist could not do without when he turned to prac­tical affairs and needed to write up the articles of a city statute or a sovereign’s laws. Finally, it provided an orientation (thus, once again, it served as a model) in the complex practical operation that led to the determination of every norm of ius proprium if those provisions were to be as just and rational as those of the ius commune.

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