Bartolus and the conflict of laws

Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review, 2012

In this article I wish to show how history of legal doctrines can assist in a better understanding of the legal reasoning over a long historical period. First I will describe the nineteenth century discussion on the definition of law as a ‘science’, and some influences of the medieval idea of science on the modern definition. Then, I’ll try to delve deeper into a particular doctrinal problem of the Middle Ages: how to fit the feudal relationship between lord and vassal into the categories of Roman law. The scholastic interpretation of these categories is very original, to the point of framing a purely personal relationship among property rights. The effort made by medieval legal culture to frame the reality into the abstract concepts of law can be seen as the birth of legal dogmatics.

2013

2019

This is the second volume of a series of six, published by Bloomsbury in 2019. The contributions included in this volume cast new light on the cultural significance of law in the Middle Ages. As it evolved from a combination of religious norms, local customs, secular legislations and Roman jurisprudence, medieval law defined a normative order that was more than the sum of its parts. It promoted new forms of individual and social representation. It fostered the political renewal that heralded the transition from feudalism to the early modern state and contributed to the diffusion of a common legal language with the emergence of the ius commune.

2012

Global jurist, 2008

The analysis in this writing starts with an investigation on the position of customary law in the system of legal sources, both in the Justinean legal system and in the Argentinean one. The results of this analysis are used as a basis for further, wider considerations on the structure of the legal system in the civil law tradition; and, as well, on the possibility of finding today, in Latin America, an epiphany of the system of ius commune which has been in force in the late Roman Empire, medieval and early modern continental Europe. A survey is made of how legal doctrines attempted, through the centuries, to interpret the presence in the Justinean corpus of the different fragments related to the consuetudo (customary law) and to its relation with the lex (statutory law), mostly D.I,3,32 e C.8,52, in order to make sense of what has seemed for centuries to be an evident antinomy within the Justinean Corpus Iuris. A subsequent similar investigation is then done for the Argentinean legal system of sources of law, which features peculiar elements allowing similar questions. Some conclusions will be drawn from these analyses and used to propose a different reconstruction of the legal system of Latin America (not just Argentina) in an ius commune perspective. This paper is meant to be a contribution to the research on the viability of a modern system of ius commune. Or, at least, to propose a different reading of civil law legal systems, based on the recognition of a legal model-if latent or recessive-based on ius commune, operating in a dialectic confrontation with the prevalent, modern civil law model accepted in the European legal science.

in: Empire and Legal Thought. Ideas and Institutions from Antiquity to Modernity, ed. Edward Canavagh, Brill/Nijhoff [Studies in the History of International Law], Leiden/Boston, 2020

This chapter outlines a history of the concept of ius gentium. It is intended to serve as a contribution to the intellectual history of international law, from Late Antiquity to Early Modern Times. The historical role played by the concept in the framing of international law is not easy to evaluate, as the oldest traces of Roman ‘public international law’, in the sense of law regulating relations between polities, are actually found within ius fetiale. It is, in fact, difficult to arrive at a clear understanding of ius gentium in the history of Ancient and Medieval legal thought, due to a semantic stratification dating back to Roman Antiquity: on the one hand, a fundamental ambiguity exists in the relationship between ius naturale and ius gentium (as in Gaius’ definition, Dig. 1.1.9, possibly under Ciceronian influence) – on the other, the latter, first classified as a branch of the ius privatum (Ulpian, Dig. 1.1.1.4), was later understood as including public law institutes (Hermogenian, Dig. 1.1.5) and even institutes mainly relating to foreign relations (Isidore of Seville, Etymologiae V.6 = Decretum c. 9, d. 1). The simple juxtaposition of these definitions within Justinian’s compilation and Gratian’s Decretum raised several theoretical issues for Medieval jurists, and generated a significant scholarly debate. Firstly, following Dig. 1.1.4 and Dig. 1.1.5, glossators argued that ius naturale and ius gentium – not, as would be claimed by later jurists, Roman law as a whole – formed the ius commune. Secondly, commentaries on Dig. 1.1.5 analysed the various legal institutes listed within the passage, focusing particularly on dominium and obligations. Thirdly, both jurists and theologians elaborated extensively upon the connections between ius gentium and ius naturale: they first drew a distinction between ius naturale primaevum and secundarium, and then reformulated this distinction in such a way that ius gentium itself was split into ius gentium primaevum and secundarium. Many words were to be expended on this distinction until well into Early Modern Times, in the course of a discussion which recent scholarship has studied in depth. This chapter, however, will focus less on this doctrinal debate during the the sixteenth and seventeenth centuries than on the transformation undergone by ius gentium as it developed into a ius inter gentes specifically regulating relations between political communities. Special attention will be paid to diplomatic theory, which has proven to be a particularly interesting field within which to fully evaluate the slow emergence of the state as the only legitimate subject of international law.

Tijdschrift voor Rechtsgeschiedenis 90 (1-2) 2022, p. 270-275

The product of more than thirty years of research, this volume is primarily intended as an anthology of ius commune texts in English translation designed to support undergraduate teaching and to 'introduce an audience of nonspecialists to outstanding voices of medieval Italian jurisprudence' (p. 39). However, while pointing to one of the authors' undoubted achievements, the latter affirmation appears to be something of an understatement. Preceded by a large number of studies, editions and translations (such as Kirshner's translation of Bartolus of Sassoferrato's De tyranno and the edition and translation of Bartolus' De insigniis et armis produced by Kirshner and Cavallar with Susanne Degenring) 1 , this massive work actually represents a summa of the methodology developed by the two scholars in their decades-long research on the history of the late medieval ius commune. After a general Introduction (p. 3-43), the volume is divided into six parts, each devoted to a general topic: 'Professors and Students' (p. 45-174), 'Legal Profession' (p. 175-252), 'Civil and Criminal Procedure' (p. 253-396), 'Crime' (p. 397-462), 'Personal and Civic Status' (p. 463-577) and 'Family Matters' (p. 579-826). These are followed by a Glossary of Latin terms (with references to the chapters in which each term appears) and two Appendices: the first introduces the Corpora iuris civilis and canonici and the medieval system of legal citation, and the second lists 90 selected jurists, including the date of their death. An index of names and places is also provided. The six parts encompass a total of 45 chapters dealing with specific themes. Each chapter opens with a brief but informative introduction that gives the necessary background for the subsequent translation(s). In the space of a few pages, the authors manage to clarify technical aspects in plain language and to illustrate the interplay of ius commune doctrines and the socio-political world in which they operated by referring to a wide range of local statutes 2. Occasionally these introductions turn into dazzling frescos illustrating the

Dialog Campus Publisher

In this volume, I have tried to expand in four directions, starting from the field of thinned-out legal theory. In the introductory chapter, I outlined some of the basic features of the development of medieval and modern European law; in the following chapters - and this is the title of the volume - I analysed the main stages in the development of European jurisprudence over the last thousand years; finally, in the last two chapters, I attempted to summarise briefly the development of the main categories of private law dogmatics and criminal law dogmatics. The latter two openings may allow theorists of legal theory and of these two fields of law to develop common forums for discussion, thus reviving the discourses of legal philosophy/criminal law and legal philosophy/private law theory which have been extinct for many decades. It should be pointed out that this four-way opening has brought such a mass of literature into the analysis, less Hungarian than German, Anglo-American and French legal literature, that in this first round I have had to limit myself to a simple excerpt in a number of cases concerning new topics. This is particularly the case in the chapters on glossators and commentators, where I have based my writing mainly on the analyses of Hermann Lange and the Coing-Handbuch, and in the chapter on the development of private law doctrinal categories I have focused mainly on Hans Hattenhauer's monograph on this subject.