The System of the Ius commune and the Corpus iuris civilis^. The Ius proprium

During the final decades of the thirteenth century, the second main current of legal thought reached clearer definition. It stressed the no­tion that, although the “system of laws” translated and encompassed a large part of the “system of rights,” it failed to cover the entire field of the law, which meant that entire sectors of the normative materials in the ius proprium were totally irreconcilable with the discipline and the theoretical concepts of the ius commune.

The principal protagonists in this drama were two Italian jurists, Cinus of Pistoia and Bartolus of Saxoferrato. It would be a grave er­ror in historical perspective, however, to isolate these two men from their historical context, the tradition in which they operated, or their generation and those of their students and successors.Concerning their tradition, it is enough to recall Cinus’s master, Dinus of Mu- gello, and some of the jurists active during the latter half of the thir­teenth century, including at least Franciscus Accursii, Albertus Odo- fredi, Guido of Suzzara, and Lambertinus de Ramponibus.

Above all we need to look at a didactic practice that the doctores modern, as the sources call them,^[191] reinstated and reinvigorated around 1270 by defining (with the aid of their students and the stu­dent statutes) the procedures and the structure of the public disputa­tion of quaestiones selected for that purpose.^[192]

Because the quaestio could not be based on a casus Ieqis (that is, on a case provided for and regulated by the ius commune, civil or canon), and because it could be based on an actual event or act that might be covered by communal statutes (quaestiones statutorum) or feudal customary law (quaestiones feudorum), disputation provided an ideal terrain for testing possible theoretical links between the ius commune and the ius proprium and between the world of the “certain” and that of the “probable.” As we have seen, that connection was made was in forging the arguments that were needed to resolve the juridical prob­lem (quid iuris) inherent in the event stated as the topic (id quod ac­cidit). At every step, each argument had to be linked to legislation in the ius commune, by use of a modus arguendi, before it could be used as a reasonable and plausible base for the next move.^[193]

Norms taken from the ius commune—at times only from brief and incidental phrases in the texts or from cases of a totally different na­ture—thus offered fragments, hints, and principles that could be transplanted into the particular law, the ius proprium.

In actual practice, disputation served in the great majority of cases not to confirm or deny the validity of a particular law, statute, or cus­tom in the ius proprium but to fill in normative gaps when a statute or a customary law was assumed but no specific provision was given. To borrow a phrase from Bartolus of Saxoferrato,^[194] the ius commune dominated the ius proprium because it projected its doctrines and norms into the areas in which the ius proprium reigned.

Clearly this was theoretical activity of the highest level. That the constant presence of influences of the ius commune owed nothing whatever to the daily practice of the ius proprium is equally clear.^[195] Nonetheless, it was precisely the theoretical context and the method­ological tools of the ius commune that the practical jurist used to shape his professional mentality. Here was where he learned to consider contingent events by imagining a theoretical model to which they must correspond, and where he learned to take responsibility for shaping a rule for the case under examination when he gave his solu­tion. The jurist, both theoretical and practical, enhanced his own function and the ius commune, which was the legacy of his method­ological training and a body of laws containing well-honed instru­ments for use in theory and practice alike.

This was the context in which Cinus of Pistoia and Bartolus of Sax- oferrato wrote and worked.

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