Tradition and Renewal in the Thirteenth Century

The first phase of didactic experimentation in the schools of law came to an end during the course of the thirteenth century with the definition of all the principal forms of exegetic techniques relating to the Corpus iuris civilis and to the most authoritative (the Decretum) or official church texts (the LiberExtra in particular).

To take the first point first, use of the quaestiones became so massive and so widespread that by 1274 it was made mandatory even by the statutes of the student organizations. This means that by then jurists wanted to enlarge their investigations to reach beyond the confines of the Hbri legales, civil and canon: they wanted to venture outside the field of the “certain” for a fuller and freer exploration of the field of the “probable.”

They turned their attention to an imposing set of cases that were not expressly mentioned in or regulated by the Hbri legates and that were hence new quaestiones ex facto emergentes. Since these cases lacked a governing precept, the jurists combed the Iibri legates for all plausible hints and cues that might help them to construct logically correct arguments in view of a reasonable and satisfactory solutio.

Garnering plausible hints from the Iibri legates implied calling to memory one or more of the existent texts of the Corpus iuris civilis and subjecting them to dialectical reasoning—argument a maiori, a fortiori, a simili, and so forth—in order to extend their normative con­tent beyond the situations originally cited in the various provisions.

In the construction of their argumentum the jurists used modi ar­guendi or propositiones maiores or minores derived from Aristotelian philosophy, above all from the so-called “Aristode Major,” the major works of Aristode that dominated all of culture after their rediscovery and dissemination in the thirteenth century. Furthermore, they ex­perimented with those techniques to render them Sufficiendy flexible to provide solutions (“probable,” not “certain” solutions) for each case under consideration. Although the jurists’ point of departure was an event taken from everyday experience, the ways in which they sought a “norm” for it—which did not exist in the ius commune— were decidedly based in theory. Not only was their procedure theo­retical; it denied or strayed from the ius commune so Iitde that the logi­cal arguments the jurists constructed in support of the (probable) “norm” could not even have existed if they had not been able to draw upon a text of the Corpus iuris civUis or a rule from one of the church codifications. They always needed a “certain” text to give support— even weak support tortuously arrived at—in order to legitimize the entire logical operation. When, at the turn of the thirteenth century, one student who later became famous, Bernardus Dorna, came, ill- prepared and somewhat bewildered, to Azo’s school, he attempted to base an argument on a verse of the Latin poet Ovid. The master’s reaction was swift: a jurist did not reason outside the orbit of the common law (“Non licet allegare nisi Iustiniani leges”; It is not per­mitted to cite anything except the laws of Justinian).^[134]

There was more. The jurist’s everyday activities involved concrete life experiences that found expression in the Iecturn or the quaestio dis­putata and determined a selection among the legislative texts that could be employed for argumentation, noting those that should be avoided or, at the most, could be used in disputations and quaestiones. Selection also involved a choice among laws of the same type, impe­rial or papal. The only norms that could be used for the reasoning that underlay the arguments or as the kernel of an argument were the imperial laws included in the Corpus iuris civilis and the church laws collected in Gratian’s Decretum, the Liber Extra of Gregory IX, the Liber Sextus of Boniface VIII, and the few “codifications” that were included in the Corpus iuris canonici (the Clementinae, the Extrava- Pantes Johannis XXII, and the Extravqqantes communes'). All other norms, of which there were many, particularly in the field of canon law, had to be ignored, even if they were the laws most frequently applied in the courts and in legal practice. The judgment that legal thought in the schools of the late thirteenth and the fourteenth centu­ries showed “practice-oriented tendencies” is clearly unfounded.

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