Intro_continental_legal_science [Unlocked]

One of his servants, whose tasks become specialized to serve the needs of the school, served as its bidellus. …

The second element in the Bolognese model comprised the scholares <students> and their associations. … in the 12th century… students banded together to form a consortium in order to resolve such specific practical problems as finding lodgings or getting access to a book, or else in order to increase their leverage in negotiations with the professor, the city’s merchants, the book merchants and copyists, and so forth… The second mode of students association was the comitiva. All the students of any given schola were associated with their master, so called them socii mei <my companions> with the dominus of their school the students formed a comitiva <companionship> that defined their participation in all phases of daily life…

A third element in students’ life in the Bologna model was the natio <nation>. … Towards the end of the 12th century the comitiva … began to lose its central position in the organization of student life, largely because there were some essential needs that it failed to satisfy, such as providing lodging and meals…. Instead, students who belonged to different schools in the same city began to associate with one another and band together to pursue common ends. … operated by common language, shared habits and customs, and a collective mind-set arising from a common national origin or from a similarity of views among people born in the same place or the same territory (natio)… For some years the new associations were called indifferently nationes or universitates, but as early as the second decade of the 13th century the term nationes prevailed. (p. 118)

A fourth part of the Bologna model was the universitas (i.e. guild or corporation) of the students and the collegium of the doctors. … In Bologna there were two such universitates, that of the ultramontani, which included the nationes of students from north of the Alps, and that of the citramontani, which included the four Italian nationes of the Lombards, the Tuscans, the Romans, and the Campanians. On the other side,... there were collegia for professors of civil law, canon law,

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medicine, and the arts.

The student collegia formed a fifth element… In general, these were institutions founded by popes, cardinals, bishops, or wealthy lords with the aim of providing a place of residence for a number of young people from one particular city, region, or larger geographical area…

Sixth and last, there was the role of the bishop or the archdeacon. <according to a famous decretal of pope Honorius III of 1219 Super speculam>, the archdeacon of Bologna, a high ecclesiastical dignitary, was charged with granting the insignia of the doctorate to candidates who proved themselves worthy of that honor in their doctoral examination. Since it was unsure whether the certification of that worthiness was a duty of these ecclesiastical dignitaries or a privilege of the professors, a mixed system was set up. Two final examinations were instituted, a private examination (called privata) given in the sacristy, for which the professors (who were members of a collegium) were responsible; and a subsequent public examination (called publica, or laurea), which took place in the cathedral and was in essence a solemn (and extremely costly) ceremony. (p. 119–120)

A Different Organizational Model: The University of Paris.

The other major model for the organization of university studies was more common in France… the (predominantly Italian) universitas scholarium (the ‘university’ as an organization of students, professors excluded) shifted to the universitas scholarum (a ‘university’ that included both students and professors).

The chief characteristic of this second (Parisian) model was the participation at the same time and in one organization, of three elements… students, professors, and a chancellor endowed with governing powers (who was the bishop of the university city)…

In the 1400s this was the most common university structure, and… by that date it was common to universities new and old throughout Europe. (p. 122)

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Essential Readings

1.Van Caenegem R.C. An historical introduction to private law. Cambridge, New York: Cambridge University Press, 1992, p. 24– 28, 45–51, 58–67.

2.Robinson O.F. European legal history: sources and institutions. 3. ed. London: Butterworths, 2000, chapters 3, 5.

3.Stein P. Roman law in European history. New York: Cambridge University Press, 1999, chapter 3. <LMS resource>

4.Bellomo M. The common legal past of Europe (1000-1800). Washington: The Catholic University of America Press, 1995. p. 34–77, 126–184 <LMS resource>

Supplementary readings

1.Brundage J.A. The rise of professional canonists and development of the ius commune, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 1995, № 81, p. 26–63. <DigiZeitschriften>

2.Brundage J.A. Universities and the ‘ius commune’ in medieval Europe, in: Rivista internazionale di diritto comune, 2000, № 11, p. 237–253.

3.Dawson J.P. The oracles of the law. Michigan, 1968, p. 124–134. <LMS resource>

4.Hartmann W., Pennington K. History of Medieval Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX. Catholic University of America Press, 2008, chapters 1–2. <ebrary.com>

5.Stein P. Regulae iuris. From juristic rules to legal maxims. Edinburgh, 1966. p. 124–152. <LMS resource>

6.Tamm D. Roman law and European legal history. Copenhagen:

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Utrumque ius

Questions

1.Did the legal science exist before the 12th century in the West?

2.What was the knowledge of law in the early Middle Ages?

3.What were the main causes of the revival of Roman law studies in the Middle Ages?

4.What innovations in legal studies did Irnerius come up with?

5.What legal sources did the Glossators study?

6.With what methods did the Glossators study the sources of Roman law?

7.What were the limitations of the methodology of the

Glossators?

8.How did the Glossators influence the legal science in the medieval Europe?

9.What literature did the school of Glossators produce?

10.How did the Glossators teach Roman law in their school?

11.Who can be called the last Glossators and what was his main achievement?

12.How did the legal science of the Glossators differ from that of the canonists?

13.What was the principle legal source for the first canonists (decretists)?

14.Was the idea of the common legal science and legal order born in the age of the Glossators and the decretists?

15.How did the universities contributed to the rise of legal science in the Middle Ages?

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Topic 3. Foundations of legal science of ius commune in the 14th to 15th century: mos italicus

Topic outline

Emergence of Roman-canonical law of the ‘learned men’ (ius commune) in Northern Italy. The school of commentators in the 14th and 15th centuries. Main features: combination of theory and practice, commentaries on the works of glossators and the new legislation.

Scientific foundations of the school of commentators. Application of scholastic methodology to the sources of Roman, canon, feudal, communal and customary law. Practice-oriented activities: editing statutes for city-states in Italy, commenting on the positive legislation, writing legal opinions for Italian courts. Legal doctrine becomes a formal source of law.

Straight and crooked ways to apply methods at the school of commentators. Bartolus’ and Baldus’ teaching and their main fields of arguments.

The major results of commentators’ interpretation of the legal texts: the structure of ius commune, its subdivision into branches, development of legal terminology and legal principles.

The Bartolists: predominant influence of commentators’ legal doctrine in Italy up to the early 18th century.

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Excerpts from Readings

Western Europe after the Glossators

General Developments:

–increased influence of the legal science (ius commune) on local laws (iura propria)

–involvement of learned lawyers in everyday practice of politics, administration, and justice

Lopez P. Comparative Law in a Changing World. p. 56.

This different approach <of the learned lawyers after the Glossators> was required because:

(a)the Corpus Juris was no longer the only set of texts on which the academic study of law was based. Canon law gained ascendancy and became a university subject in its own right. This was followed by theologians and philosophers turning to systematic analyses of the writings of Aristotle. The study of his Ethics and Politics eventually produced a systematic philosophy of natural law and what later became known as the Natural Law Movement (see below); and

(b)by 1200, Roman law had actually been ‘received’ <i.e. borrowed> into Italy as binding law, applicable in the absence of any local custom or contrary statute. It was therefore necessary to bring it up to date and to adapt it to local conditions and practical matters, and to reconcile it with the medieval legal tapestry. Several ‘receptions’ of Roman law took place which resulted in its authoritative acceptance in court practice in most of Western Europe.

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

46.

The study of Roman law in the Middle Ages might perhaps have

limited itself to purely academic research, like our own approach 76

(for instance) to ancient Egyptian law. But it did not. Over the centuries, Roman legal doctrine permeated legal practice by various paths (which will be examined), and the medieval learned law thereby influenced the development of law to a greater or lesser extent in all parts of western Europe. This reception of a foreign law may be called legal acculturation or a 'legal transplant' <in the English literature>. For the West in the late Middle Ages, Roman law was a new and foreign law: decisively so in the northern regions; but even in the Mediterranean regions where, under Germanic and feudal influence, the law had travelled some distance from ancient law.

Grossi P. A History of European Law (2010) p. 39–42.

The Fourteenth Century through a Legal Historian's Eyes: Socioeconomic Conflict and Crises of Values

We are accustomed to regarding the fourteenth century as the culmination of the medieval period, dazzled by the brilliance and conceptual scope we find recorded in accounts of the plastic arts and literature. As a Tuscan myself, I cannot help but point to Dante, Boccaccio and Giotto to substantiate this. But, viewed from another angle, the fourteenth century is in fact a period of great disruption, especially if we look at things on a structural level: that of agriculture, nutrition, demography and health. Such things may seem lowlier concerns than poetry and art, but they are often more determining of the conditions of daily life for the average person.

The fourteenth century saw ruinous wars, famines and epidemics, and the persistent, corrosive presence of hunger. The dark protagonist of the century is undoubtedly the plague, whose destruction lasted many years, reaching its peak in 1347–51. The Black Death devastated all of Europe, decimating the population. The result was a widespread abandonment of lands, a rapid decline in agriculture and an increasing, albeit futile, flight to the cities. At the root of these structural problems is the fact that mere survival became difficult for the average person, which in turn dealt a destabilizing blow to the collective consciousness.

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We are not dealing here with a sudden and wrenching shift, as a hasty account of the situation might lead one to believe. The old beast begins to look a little tired and inside it a few cancerous cells are born which it harbours and nourishes. The old carries within it the seed of the new, and thus fosters its own demise. The fourteenth century thus appears to be that which it is, historically speaking: a period of transition, in which old and new intermingle, and the outlines of a future construction can be perceived. The attitude of a man who knows he finds himself at a moment of historic change is perhaps best expressed by the works of Francis Petrarch (1304–74). The great poet is also a man of culture in whom the seeds of the forthcoming humanistic revolution are beginning to take root, as can be seen in the extraordinarily lucid passage in which he avows that he feels he lives in a borderland that forces him to look at once backwards to the dying world and forwards to its nascent replacement.

It is obvious that the collective consciousness began to doubt the load-bearing pillars of the old order, which appeared to be about to buckle. Both nature and culture seemed to have betrayed late medieval man by failing to guarantee his survival. This led to a belief in the need to reform the old social, political and legal order from top to bottom, emphasizing a new set of values. The fourteenth century is a very singular point in time: the response to this crisis in underlying structures takes the form of a theological and philosophical reflection, which attempts to reform completely the anthropology of the Middle Ages. The emphasis is placed squarely on the individual, but this figure can only be trusted if freed from the chains that have bound him for the entirety of the medieval period.

The process which set out from this crossroads crowded with structural changes and visions of intellectual reform was fundamentally a process of liberation. The new anthropology was decidedly liberating in character: whether in the freeing of one's brute nature, in the freeing of individual subjects from their many social bonds and from the social order which had both protected and constrained them, or in the liberty

from the world of things which had let down medieval man in 78

their failure to lead him to salvation. The philosophical debates which arose and grew to full volume during the course of the century all have at their heart the idea of isolating the individual subject from the world and in the world: they all recognize the human subject as capable of searching far within himself and finding sufficient strength to assert dominion over reality.

The medieval human subject, as analysed thoroughly and adroitly by Thomas Aquinas, is an intelligent being – identified above all by the power of reason. Above all, he possesses understanding, a quality which allows one to project one's thoughts beyond oneself, in a psychological gesture of humility towards the surrounding world. The new human subject, who will be most fully defined by Franciscan theology and philosophy, is seen as a being who loves and who wills, a subject whose identity is predicated on the most autonomous and selfreferential aspects of psychology, so that autonomy defines identity. Everything becomes subjectivized and resolved within the boundaries of the subject, who thereby affirms his ontological separation from the world and consequent liberty within the world.

It is instructive to examine how this rediscovery of liberty is consolidated by the self-determination of the will, which is conceived of in legal terms as a dominium. It is certainly undeniable that in classical Roman law, the concept of dominium is not merely political but strongly linked to the freedom of the individual subject, in contrast to the openly economico-legal analysis of the term in the medieval period. The new anthropology that develops during the heady fourteenth century, and afterwards, is predicated on the universal applicability of the concept of dominium. This becomes the general analytical category into which both intersubjective and intrasubjective realities are classified. Alongside the ownership of things in the exterior world (dominium rerum), we can observe a much greater emphasis on the idea of dominium sui, the right of ownership that every person has over his own body and skills. This right of property stems from the divine duty instilled in every human creature to protect its own