A Theory of Public Law by the Early Glossators
One way to explore some of these legal technicalities, and their variations from city to city, is to consider some of the legal definitions of the medieval res pubÂlica that are provided by the glossators of the late twelfth and early thirteenth centuries, the golden age of the last consuls and the first podesta, after the peace of Constance and the imperial conflicts of the 1230 and 1240s.
This goldÂen age of the Italian free communes is also the golden age of the glossators in Bologna and elsewhere. I will deal with some important glossators, whose acÂtivity was strictly tied with local government, in each case outside of Bologna, in two cases in Tuscany.Theoretical works on the law of independent cities were often written, in that age, as commentaries to the last part of Justinian’s Code, the so-called Tres Libri, which contained, among other things, a title De iure rei publicae, some titles on tax law, and a title on municipal citizens?7 An example of this kind of works is the Summa Trium Librorum written by a peculiar man, Roland of LucÂca, a Tuscan judge and advocate the first draft of whose work is dateable to ca. 1195-97, with revisions being written until the 1220s. Roland was not a profesÂsor, even if his wide legal knowledge seems to connect him to a university, maybe even to Bologna. But many documents prove that he was at work in Lucca for all his life. Being judge in many disputes, he also gave his help to his city for diplomatic affairs.[458] But he does not appear to have liked his job all that much. Indeed, by writing his Summa, he hoped to receive some gifts from the emperor, thanks to which he could finally free himself from the stress of being a judge.2[459]
It remains only to ask why a judge of the twelfth century, with local profesÂsional experience, would venture to study Roman public law texts written more than six centuries earlier.
Here some intellectual genealogy is helpful. The first glossator who had written important works on the Tres Libri was the great Placentinus (d.1182 or 1192), who composed the first complete set of glossÂes and began to write the first Summa. His pupil, Pillius, compiled some addiÂtions to this apparatus and to the Summa that Placentinus began on the same Tres Libri. Like Placentinus, however, Pillius, never finished the Summa.[460] [461] UnÂlike Placentinus, who attacked Frederick Barbarossa in his apparatus and in his summa, Roland was surely a supporter of the Emperor Henry vi.31 AssociÂated to the throne by his father, Frederick Barbarossa, Henry became the only emperor in 1190, as his father died on his way to Jerusalem and the Holy Land. In a few years, the young Henry seamed set to realize many of the political goals his father had not achieved: once married to Constance de Altavilla, heiress to the throne of Sicily, he could realize the dream of every German emperor since Charlemagne: to unify northern and southern Italy. The politiÂcal constellation was auspicious: the cities, which had revolted against FrederÂick, were more or less pacified; the relationship with the Holy See was not as bad as it had been in the previous decades. Shortly before 1197, a neutral obÂserver could think that a new emperorship was establishing itself in Europe, and that Italy would become the centre of its power.[462] [463] [464]Lucca was relevant to this project in a number of ways. To the lucky and sucÂcessful Henry, the Tuscan city had shown homage and fidelity since 1186, as the young prince was associated to the throne by his father. Goffredo da Viterbo, the teacher of Henry and an ideologist of imperial power, had been a canon of the cathedral of Lucca since 1177.33 The city of Lucca never joined the Lombard League - that is, the defensive military alliance formed by the cities of northÂern Italy to defend their independence against the emperor - and received back from the emperor some important privileges, such as political independÂence for the city, and jurisdiction over the surrounding region.
This goes some way to see why Roland wished to dedicate his work to Henry, and why his treaty on Roman public institutions regulated in the last three books of the Code was intended as a system centred on the function of the prince. At the same time, however, Roland wanted to affirm the independence of the cities, and of his city in particular. Describing the features of the Roman imperator, he depicts a legal institution, rather than a despotic ruler. The memÂorable axiom that the prince was made by law much more than being a lawÂmaker was one that was probably agreeable to Roland, which of course is a peculiar way to think for a supporter of the Empire. For Roland saw the emÂperor as a superior authority assuring the fair respect of the law, not as a suÂpreme, uncontrolled power; sometimes, breaking the technical tone of his treaty, he urges Henry to be generous with Italian cities, and describes the auÂtonomy of the free cities as a condition for the wealth and progress of society.34
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- Index