Why Were Universities So Successful?

Although the universities faced an impressive number of problems and although it is striking to observe how deeply they were rooted in the city and its neighboring territory and how greatly they contrib­uted to the prosperity of vast segments of society, we cannot ignore other possible reasons for the schools’ success—other situations and events that encouraged them and made their multiplication and dis­semination inevitable.

Why should Irnerius’s law school have become immediately leg­endary? Why should tens, even hundreds, of other schools open and draw crowds of students from near and far? Why should so many young people have committed and consumed part of their fathers’ fortunes and so many fathers have accepted or desired their sons’ de­parture for the university city, even when they both knew that it would bring personal sacrifices and often mortal risks? Why should so many cities and so many kings, emperors, and popes have founded new studio, and guided their destinies, embellished them, and en­dowed them with privileges?

The only explanation is that they did so because the law that was taught in those institutions was of vital importance for individuals, families, and kinship groups; for the cities and for the regno, for the emperor, and for the church. They did so because the law had to be known in all its aspects; it required full mastery if it was to be used not only on occasions for learned theoretical reflection and for de­manding scholastic debates but also in the courts, in notarial practice, in arbitration to avoid lawsuits, and in the peaceful acts of any person who enjoyed a res (property) and wanted to dispose of it to his own profit or that of his heirs. Because it was a law essential for acts of public governance, for the legitimation of power, conquered or in­herited, for tutelage of the interests of groups or segments of society.

There is a problem, however: the law curricula for the university instruction imparted from the twelfth to the eighteenth centuries in Europe was exclusively based on the laws of Justinian, the Corpus iuris civilis, and the great normative collections of the church, the Corpus iuris canonici, but judges and notaries did not usually apply these laws. Furthermore, as is known, the contents of these bodies of laws gave no guidance and provided no norms for those who had responsibili­ties for governance or administration on the local level, in the com­mune civitatis or the regnum, in the seigniory or the principality, in the hierarchy of the church or in the monastic orders.

Conversely, the programs of the European universities never cov­ered the local law—that is, the laws of the particular governing struc­ture, be it the kingdom, the commune civitatis, the seigniory, or the principality. These were the laws that the judges were bound to apply in the first instance, as we have seen, when they contained a precept pointing to a decision in the case at hand; laws that the administrators were obliged to respect as they carried out their duties.

It is obvious that such perspectives are foreign to the thinking of anyone who sees the ius commune, civil and canon, only as a complex of norms necessary for judicial decisions or for the redaction of legal acts, or who understands the ius commune only in its dimension of positive law and relegates it to the rank of a supplementary or subsid­iary law. This approach is a dead end because it fails to explain how the programs of study of European schools of jurisprudence—both the schools originally chosen or later recognized (electae) by the uni­versitates scholarium and the schools incorporated into the studia of royal, imperial, or papal foundation—came to concentrate uniquely on the civil and canon ius commune.

We need to take a closer look at these matters.