Intro_continental_legal_science [Unlocked]

more than merely academic uses, and these lawyers proved themselves formidable advocates even in other areas of law.

One teaching technique which was widely employed was the casus. Originally this was a presentation of a fictitious case, in which whatever rule of law was being studied had to be applied. Later the same expression was used to describe an account of a complex question. Notabilia and brocardica, that is brief, striking aphorisms summing up a rule of law, were also very popular.

Bellomo M. The common legal past of Europe (1000-1800). p. 181–182.

<The importance of methodology was due to the conviction that> the only way to create and elaborate a sistema legum was to discern the internal connections between one precept and another in the Justinian compilation or the laws of the church, and then to bind these connections together so that the entire mass could be thought of as one unified corpus.

The jurists of the twelfth and the thirteenth centuries at first worked toward this goal with techniques and logical methods of modest scope. For example, they worked to construct their system using the scheme of sic et non (whatever is not prohibited is permitted) or they linked one norm to another by assuming a juridical problem centering on a given question and posed increasingly specific alternatives (aut. . .

aut) in a branching "tree" that brought together in one visual field legal precepts scattered throughout the various books and titles of the Code or the Digest. To take representation as an example of such problems: if a servant acquired a sick animal, he either was aware that the animal was unhealthy or not; if he was aware of the state of the animal's health, one must ask whether he acquired the animal for himself, out of his own peculium, or for his master; in the latter case one must distinguish whether or not the master knew of the acquisition or not, and if not, whether or not he could have known about it. And so forth, following up each alternative until the original alternatives had multiplied and

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ramified to become an analytical outline of all foreseeable cases, and at each step in the process citing an appropriate provision in the corpus of the ius commune.

As time went by the logical process became more refined. The rediscovery of the major works of Aristotle and the study of dialectic helped to consolidate logical experimentation in the aim of constructing a systematic vision of the ius commune. Especially after the midthirteenth century, the Italian schools produced brief repertories, organized by cumulative strata of contributions, of the essence of the principal modi arguendi in iure (modes of arguing in law) and loci loicalesper leges probati (arguments, in the form of maxims, applicable to the law). The technical modes of argumentation that were classified in this manner had in part already been incorporated into the texts of the Digest, because they had been used by Roman jurist of the republic or the empire, but now they were rediscovered and retempered for the purposes of Aristotelian dialectic. Such technique served to argue in iure to reinforce a dubious interpretation or lend it certainty. There were tens of these techniques: one could argue a maiori (from the greater reason), a minori (from the lesser reason), a toto (from the whole), a diffinitione (from a definition), a nominis interpretatione (focusing on the meaning of a term), agenere (referring to generic characteristics), a similitudine (by analogy), a contrario (by opposition), ex silentio

(holding an activity licit if not expressly prohibited), and so forth.

Wieacker F. A history of private law in Europe with particular reference to Germany. p. 45.

Glosses were clearly a by-product of teaching… Lectures were based on the three parts of the Corpus Iuris: the Institutes, the Code, and the Pandects. each with its own Chair. This practice continued until well into the 17th century… the lectures were based on the explication of individual texts and remarkably enough no selection of texts by subject-matter seems ever to have been made. The standard method of exegesis is well stated in a graphic couplet of… 1547:

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promitto, scindo, sumo casumque figuro

prolego, do causas, connoto, objicio.

Here we find a combination of philological, analytical, and synthetic methods. The prolectio or reading of the text is philological <or grammatical>, with mention of the different versions and the choice between them. Scindere (the logical analysis of the problem in the text), causam figurare (the giving of examples), and dare causas (using the four kinds of cause given by Aristotle) are analytical operations. The synthetic operations include the summing up (generalization and forming the rule), the connotatio (bringing in... analogies) and the resolution of objections (objicio) by means of the dialectical devices of distinctio, amplificatio, and limitatio, all of which together are expected to make it possible to incorporate the text coherently into existing doctrine…

In this form of teaching the Glossators created the method which has remained specifically juristic ever since. Apart from the fact that the countless generations of European jurists who had these procedures almost literally hammered into their heads acquired a mastery of the Roman texts hardly imaginable by lawyers today, they also learnt how to deal logically and exhaustively with every aspect of a legal problem. This approach survives almost unaltered in the distinctive way lawyers have of dealing with cases, arguments, and texts. (p. 45)

The restrictions of the methodology used by the glossators.

Van Caenegem R.C. An historical introduction to private law, p.

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The premisses from which the glossators set out imposed certain restrictions. In their view, there was no question of casting doubt on the doctrine of the Corpus iuris, as it expressed ratio scripta, written reason. An assault on the texts was therefore (literally) unreasonable and senseless. Nor did they see the Corpus iuris as the product of a given civilization; far from considering it a historical document, they

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elevated it to the status of a universal and eternal model, a revelation. A further consequence of this attitude was that the glossators did not go beyond the Corpus iuris. In their scholarship and teaching they did not deal, for instance, with feudal institutions or with irrational modes of proof, although ordeals were still current in their own age. The Corpus did not raise these questions, and the glossators therefore felt entitled to ignore them.

Bellomo M. The common legal past of Europe (1000-1800), p.

144.

… Garnering plausible hints from the libri legales implied calling to memory one or more of the existent texts of the Corpus iuris civilis and subjecting them to dialectical (logical) 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 ‘Aristotle Major’, the major works of Aristotle that dominated all of culture after their rediscovery and dissemination in the 13th century. Furthermore, they experimented with those techniques to render them sufficiently flexible to provide solutions (‘probable’, not ‘certain’ solutions) for each case under consideration… <Lawyers> always needed a ‘certain’ text to give support… in order to legitimize the entire logical operation…

When, at the turn of the 13th century, one student… 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 (‘It is not permitted to cite anything except the laws of Justinian).

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Literature of the Glossators

Wieacker F. A history of private law in Europe with particular reference to Germany. p. 45.

Glosses were clearly a by-product of teaching… (see above)

Van Caenegem R.C. An historical introduction to private law, p.

51.

The scholarly work of the glossators took various shapes. First, of course, glosses. These were originally brief isolated notes inserted between the lines or in the margin of the text <of the Corpus>. Little by little, these glosses built up and took on the form of a continuous commentary (apparatus). In manuscripts, as well as in old editions of the Corpus, the page is laid out with the text of the Corpus in the centre, completely surrounded by the glosses (which often exceed it in length). The great merit of Accursius (d. 1263) was to make a selection from the thousands of scattered glosses which his numerous scholarly predecessors had written. His version rapidly became the standard gloss and was, therefore, known as the glossa ordinaria (c. 1240); the apparatus fixed by Accursius represented the culmination of the School of Glossators.

Some glossators wrote original treatises, in which they discussed the law of the Corpus as a whole. The Summa Codicis of Azo, written about 1208–10, is the best known of these: while he follows the rubrics of books I to IX of the Codex, Azo in fact gives a systematic account of the subject matter of the Corpus. This 'summary' was for long the classic Roman law manual which the jurists consulted in conjunction with the glossed Corpus.

The Great Gloss of Accursius.

Bellomo M. The common legal past of Europe (1000-1800). p.

172.

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Toward the mid-thirteenth century, the Magna glossa <the Great Gloss, also known as Glossa ordinaria, standard Gloss-manual> was universally accepted as an essential and standard accompaniment to the texts of Justinian. Some manuscripts that contained only the laws of Justinian (and had sufficiently empty margins) were used to copy the glosses of Accursius's apparatus next to the laws to which they pertained. On occasion apparatus of Azo or Hugolinus or anonymous networks of glosses were erased by the usual technique of scraping the margins of the parchment leaf, and the freed space was used to transcribe portions of the Magna glossa instead (which is why such reworked manuscripts are called palimpsests, from the Greek for "rescraped"). When new codices were made, Justinian's laws were always accompanied by the Magnaglossa, often copied in the same hand. In this manner the laws lent some of their sacrality to the apparatus, and in their reflected glory Accursius's Glossa became as untouchable as the laws themselves.

The libri legates and the Magna glossa were surrounded by something like a sea of orality that highlighted and increased the permanence and the sacred aura of the legal writings. We would have no knowledge of this vast amount of thought expressed verbally if it were not for the few traces (some more fully elaborated and better thought out than others) that it has left in writing.

From the mid-thirteenth century on, the diffusion of the Magna glossa in Europe reached impressive proportions. It became such a common custom of the schools to accompany the libri legales with Accursius's Magna glossa that it came to be called Glossa ordinaria. We can find copies of Accursius's Glossa ordinaria in all regions of Christian Europe – on the Iberian Peninsula, where one of Accursius's sons, Guglielmo (Guillelmus Accursii), went to teach civil law, in France, especially in the pays de droit écrit <the land of the written law, i.e. Southern France>, where we find the same Guillelmus Accursii, in Germany in monasteries and the libraries of cathedral chapters and collegial churches, in what is now Switzerland, and in many other

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European lands.

On occasion the statutes of Italian cities (Padua, for one) required the judges to own a copy of the libri legales – further proof, should still be necessary, that not only was the ius commune used as the thin degree of positive law (after statuta and consuetudines) but it had validity beyond the hierarchy of norms and independent of that hierarchy.

Significance of the legal science of the glossators

Van Caenegem R.C. An historical introduction to private law, p.

51.

Legal science acquired a very pronounced abstract character, since it concentrated on the legal system of a bygone age, and did not develop, as is more usual, from the encounters of daily practice and the experience of generations. Yet the researches of the glossators revealed ancient law to the world of the late Middle Ages, and their works of exegesis gave access to the Corpus iuris. The School of Glossators thus prepared the way for the jurists who subsequently tried to produce a synthesis of medieval customs, legislation and Roman law.

Wieacker F. A history of private law in Europe with particular reference to Germany. p. 45.

In this form of teaching the Glossators created the method which has remained specifically juristic ever since. Apart from the fact that the countless generations of European jurists who had these procedures almost literally hammered into their heads acquired a mastery of the Roman texts hardly imaginable by lawyers today, they also learnt how to deal logically and exhaustively with every aspect of a legal problem. This approach survives almost unaltered in the distinctive way lawyers have of dealing with cases, arguments, and texts.

Wieacker F. A history of private law in Europe with

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particular reference to Germany. p. 29–34.

The Beginnings of European Legal Science.

…It is symptomatic that the occasion which may be taken to have triggered off the study of law was a resolution of the commune of Bologna in 1088 to found a school of the arts and to employ teachers to train public functionaries such as syndis, defenders, notaries, and advocates. In the 11th century development in the literary arts, even in lyric verse, was intimately connected with training in the curial style of law-writing… and as late as 1230 this style was used to develop Italian as a language of art…. (p. 29)

…In short, the breakthrough to a specifically lawyerly kind of thinking was made as a result of general intellectual and cultural currents in a propitious location. (p. 30)

…What distinguishes the Glossators of Bologna from their predecessors, who also trained budding legal officials in the three arts of the trivium, is that now they had something of tremendous intellectual power to teach, and the long-tried methods could be put to use to the Digest. Given that the Digest had always been accessible in Italy, and even occasionally referred to, the production of the littera Bononiensis is hardly to be seen as a fluke of world history, but rather as an act of ‘scholarly enthusiasm’.

<...>

<As for the aims of the Glossators>, they did not seek to satisfy the unprejudiced rational observer of the ‘correctness’ of what the texts said, nor yet to set in in its historical context with a view to better understanding, much less to render it ‘useful for daily life’. They sought to use their reason, i.e. the logic of the schools, to confirm the incontrovertible truth of their authority. … Anything one can think of must have a metaphysical existence. Their mode of thought combined unconditional awe before the revealed or transmitted word with logical formalism inherited from the large ancient world. (p. 34)

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These scholars, then, used logic not to test, but to attest and confirm the truth of texts held binding because revealed or transmitted from the past. Modern thinkers, by contrast, formed by the conflict between will and reason… tend to find it contradictory to use reason to establish truths which are ‘beyond all reason’. Thus, we cannot really understand the medieval jurist’s belief that in the Corpus Iuris reason itself has become barbarized, that the world is ratio scripta….

The interplay of authority and logic also illuminated the way in which the Glossators explained the texts…

School of Canonists

The influence of Roman law on Canon Law and the Decretum of Gratian

Van Caenegem R.C. An historical introduction to private law, p. 58–62.

The intensive study of Roman law at European universities… strongly influenced and guided both the practical and the doctrinal development of law. …

It is no accident that the study of canon law began in the twelfth century in Bologna, where the teaching of Roman law first flourished. The founder of the scholarly study of canon law was Gratian (who died probably before 1160), <an Italian monk> who taught theology at the convent… in Bologna and who became particularly attracted to the study of the law of the church. His work, composed towards 1140, is entitled “Reconciliation of conflicting canons” (Concordia discordantium canonum) but is more generally known as the Deereturn Gratiani.

The Decretum is a systematic collection of ecclesiastical sources of different origins, and is made up principally of decisions of councils (canones: hence canon law to signify the law of the church) and

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decretals (pontifical letters interpreting or establishing rules of law). Gratian also included various extracts especially from Scripture and the church fathers. His collection was certainly not the first of its kind, but it was by far the most encyclopaedic, and took in practically all the sources of canon law known at the time. Gratian was not content with compiling and ordering his sources. His original contribution was to summarize the texts and define the legal problem with which they were concerned. Furthermore, Gratian attempted, as the title of his work makes clear, to resolve disparities and occasional contradictions between different texts. To do so he established a hierarchy of sources (for instance, an ecumenical council took precedence over a provincial council, a pontifical letter over an episcopal letter). Above all, he employed the tried and tested technique of distinction which allowed the different meanings and significations of a word to be distinguished. For example, some canonical texts forbade the participation of the clergy in war, while others seemed to approve it. The solution was to distinguish between a defensive or just war and an offensive or unjust war…

Gratian was not only a scholar but a teacher who appreciated the educational value of the concrete case in the study of rules. The second and greater part of his work is made up of fictitious cases (causae) which introduce a legal discussion, in which reference is made to the relevant texts and observations are also made by Gratian himself (dicta Gratiani)…

Gratian therefore combined the qualities of compiler and teacher, and his work was not merely a collection of earlier sources but also a manual for study. For centuries the Decretum served as the basis for university teaching, even though it was never officially sanctioned. Gratian's work inaugurated the important studies of the School of Decretists, which was later followed by the decretalists.

Bellomo M. The common legal past of Europe (1000-1800), p. 65–67.

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