XhcQuaestio disputata

The third form of instructional activity was the quaestio disputata.^[129] The origins of this exercise go back to around the mid-twelfth cen­tury, and the oldest examples take us back to one school and to the extremely concise texts of the quaestiones in schola Bulgari disputatae.

Later, this activity became more important, more demanding, and more solemn. At this point the quaestio began to be disputed publicly before a vast audience of the students from all the city’s schools. Such debates were thus known as quaestiones publice disputatae.

A talent for disputation—the Iiberaliter disputare—was a trait typi­cal of academic culture and the world of the schools. Debates pitted reason against reason, argument against argument. Modi arguendi (methods of debating) were forged and stored like an artisan’s tools in the house of the master, taking the master’s name, until vast depos­its were laid down, one layer on another, of the techniques of disputa­tion contributed by teachers and their pupils. At times disputations turned violent, when a puerile libido rixandi (lust for fighting) broke out,^[130] passion gained the upper hand over intelligence, and the en­counter ended “non ratione, sed stomacho” (not with reason, but with guts).^[131]

In any event, the potential inherent in disputation was clear from the outset. Disputation revealed theoretical perspectives that were all the more extraordinarily fertile as the flexibility of the quaestio as an instrument for forging a global vision of the system of the ius com­mune became apparent.

Toward the end of the thirteenth century it became clear that, in principle, a quaestio could be set up regarding any topic whatsoever, as long as the situation was not treated in the Corpus iuris civilis. When, by command of the emperor, such a case had been made sub­ject to a certain and absolute law, it would be, technically, a casus Iegis and not admissible to question by disputation. In this manner, two realms of legal knowledge came to be defined. One of these was the terrain of the “certain,” the terrain of the ius commune, civil and canon, which involved normative solutions, technical arguments, and legal concepts and doctrines. The only doubts that the interpreter might entertain in this realm were in the limited perspective of aiming at a better comprehension of what existed and was certain because it was “true.” The other realm was the terrain of the “probable,” where what is might not be, and where there might be a negation to corre­spond to every affirmation. This was the terrain of real-life events not subsumed into the norms of the Corpus iuris civilis or those of the church; activities and situations that may or may not have been regu­lated by the Iusproprium (customary law, statutes, royal laws, and so forth).

The didactic exercise that took shape in the quaestio publice dispu­tata was thus tied to (one might say rooted in) a basic conviction that the ius commune had both the value and the function of certain and eternal law. Like all debate, it was fundamentally oral.

We would know little about these disputations (perhaps only that they existed) if the students of the Middle Ages had not set rules for them in the statutes of their universitates and, in particular, if they had not required written documentation of those statutes. The statutes tell us, first, that the topic of a disputation could not be a casus legis, an article of faith, a passage from Holy Writ, or anything that might cause disorder and discord within the student world. Second, they established that the disputation must be open to students of all the schools in the city (although debates were still held within a single school, just as they had been in the twelfth and early thirteenth centu­ries). When the debate was open to all students the quaestio was publice disputata.

The debate itself was preceded by a series of obligations: each pro­fessor, in turn, was to disputare publicly during the period between Ash Wednesday and Pentecost, and toward that end he was to pre­pare a cedula (a small piece of parchment) on which the topic and the problem (quid juris?) were written; this cedula must be handed in to the general beadle eight days or more before the disputation; the gen­eral beadle then was to inform all the schools (of civil law if the quaes­tio was in iure civili or of canon law if it was in iure canonico). At the disputation itself the rectores of the two universitates scholarium, who held power over all the students of all schools, played a prominent role, directing the proceedings and granting or refusing students the right to speak. The professor who proposed the topic was responsi­ble, first, for describing the situation and explaining the juridical problem connected with it and, eventually, for giving his solution. The students who asked to speak also played an important role in the proceedings, each one being called on by the rectores in an order of precedence that involved noble birth, wealth, and seniority. Each stu­dent was permitted to develop only one argumentum, either in favor of (pro) a hypothetical solution to the problem or against it (contra).

Within eight days of the public debate, the professor was required to complete redaction of a text faithfully and (when possible) briefly documenting what had been said orally. Some professors injected lit­tle or none of their own personality into a listing of the arguments put forth by the students; others, as they wrote, put the stamp of their own thought and knowledge on the variety of student contributions, thus creating a more homogeneous written text of marked intellectual originality.

When he had finished writing up his summary, the professor was required to hand in the original of his report to the general beadle, who kept it with other such loose folios that accumulated through time. At some later date, curiosity might move someone—a profes­sor, a merchant, a stationarius, the beadle himself, or others—to have the many parchments on deposit copied in the form of a book (codex). In this way anthologies were formed by period, by city, or by author that on some occasions were very modest productions indeed but on others had new massae incorporated into them that turned them into Hbri magni containing an immense amount of material. A very small number of copies of such Hbri magni quaestionum disputatarum have been preserved, either in whole or in part. Two particularly rich and complete examples are in the Vatican Library.^[133]

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