12.02.10, Armstrong/Kirshner, eds., The Politics of Law

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Laura Stern

The Medieval Review 12.02.10

Armstrong, Lawrin and Julius Kirshner. The Politics of Law in Late Medieval and Renaissance Italy. Toronto Studies in Medieval Law. Toronto:University of Toronto Press, 2011. Pp. v, 229. ISBN: 978-1-4426-4075-7.

Reviewed by:

Laura Stern
University of North Texas

This is a collection of essays on the relationship between ius commune, common law based on Roman law, and the law of the Italian city-states, the statutes, during the late Middle Ages and Renaissance. It also investigates the nature of the impact of the participation of lawyers on the political life of the Italian city- states. It re-examines the pioneering work of Lauro Martines,Lawyers and Statecraft in Renaissance Florence, in the light of what we have learned about this relationship since the time he wrote, 1968, although the book also owes a very large debt to the pioneering work of Mario Sbriccoli, L'interpretazione dello statuto, from 1969. Both books were overburdened with political assumptions that have not proven to be completely true. For example, Martines believed the lawyers of Florence were political forces to be reckoned with but forces that worked to keep aristocrats in power, forces that aided the transition from commune to signoria, while Sara Menzinger's article, "Consilium sapientum: Lawmen and the Italian Popular Communes," included in this book, shows that Florentine jurists were more likely to re-enforce the republican nature of the commune (49). Jurists acted according to the dictates of their profession, not their class, working frequently in popolo governments in which the rule of law was seen as protecting the popolo from magnate lawlessness (49). Roman law gained much respect during this period (51). Sbriccoli's book equally takes up the now untenable position that lawyers used interpretation of the statutes in a political way to maintain their own hegemony. Statutory interpretation became the concrete means for realizing the marriage of force and consent (28-29). Sbriccoli portrays the fifteenth and sixteenth centuries as a period of regression when tyrants and oligarchies hired lawyers who supported these tyrants and oligarchies (28-29). Another point of the essays in this collection is to champion the use of consilia, learned opinions commissioned by judges, communal governments or private parties, as a source perfect for the studying of the attitudes of lawyers and the part that they played in the political and juridical life of the commune. Martines pioneered using the consilia (31).

I will review a few of the essays. Susanne Lepsius in her article, "Paolo di Castro as Consultant: Applying and Interpreting Florence's Statutes," shows that Paolo di Castro did not always come up with the most popular opinions or those that were followed by other jurists, so perhaps his influence on reforming the statutes is less than we had believed. She examines three consilia, all on dowry. Women had been able to leave their dowries in last will and testament according to the ius commune but this is abolished by statute. The Roman law allowing this devolution in last will and testament is Hac edictali (C. 5.9.6). Children from a former marriage get one- fourth in Roman law. The ius commune states that all children, even children from several marriages, have the right to inherit equally from her dowry (88). Paolo di Castro believes that statute should be able to derogate from ius commune, that this is its purpose, and should be able to modify the law. In this case, statute and Paolo excluded the children from the former marriage because the widow needed enough dowry left to make a good remarriage. I would want to know if this occurs because women are being more entailed away from other family property so that they must depend strictly on their dowries. In former Roman law, some of the dowry even reverted to her father. One of the points to be made here is that statute is not bent into agreement with ius commune but is given strong rights to establish law on its own, a position Paolo supports. This book makes strong advances in the area of dowry. Dowry has to be examined in a very concrete, precise and legalistic way to understand it, especially rights of restitution, and the articles by Lepsius and Kuehn do that.

Of great interest is the article by Thomas Kuehn, "Lawyers and Housecraft in Renaissance Florence," that re-examines the balance between foreign and domestic lawyers in Florence, a topic Martines had taken up, and concludes that foreign lawyers were very influential in Florence when the learning of the ius commune was brought more to bear on Florentine law, the period 1380-1430. Domestic lawyers became more influential and useful as the Florentine judicial system employed more citizen-manned courts to make judicial judgments, the period 1480-1530 (127). These two sets of people seem to be qualitatively different, too, the foreign jurists like Nello da San Gemignano and Paolo di Castro being more renowned jurists with greater proven abilities (127, n. 24). In my mind, the judicial system of Florence appears to go down hill as it loses close contact with the ius commune after 1430.

Menzinger looks at three cities, Perugia, Bologna and Siena and the activities of lawyers in these cities. She concludes that in cities where the participation of lawyers was limited because they were noble class, their participation as professionals by giving consilia was even more frequent because their practical skills were needed in running the commune. Judges desire consilia because judges wish to reach correct judgment, a wish re-enforced by syndication. Adherence to statutes represents fairness to the popolo movements, a weapon against magnate violence (49). So lawyers get called into service in popolo politics. The need of the law in the program of the popolo was so strong that Roman-Canon law became a democratizing force.

Lorenzo Tanzini in his article, "An Oracle of the Law: Tommaso Salvetti and his Adnotationes ad Statuta fiorentina," explores Salvetti's commentary on book two, the civil code, of the 1415 statutes. Partially the article highlights the participation of jurists in the famous case concerning the Florentine pact with Volterra. Volterra entered Florentine dominion under a pact that gave the citizens of Volterra immunity from the Florentine tax, the Catasto. Cashstrapped Florence did not want to meet its obligations and tried to tax Volterra anyway, leading to a serious rebellion. Important jurists Salvetti and Nello da San Gemignano had consistently given advice against the Florentine aristocracy and supported the view that the pact gave Volterra immunity. This shows that jurists were willing to stand up against the wishes of the Florentine aristocracy in order to obey the law.

A couple articles discuss laesa maiestas. Robert Fredona's article, "Baldus de Ubaldis on Conspiracy and Laesa Maiestas," discusses the frequent opinion of ius commune jurists that the city-states did not have the right to condemn for laesa, this being associated with the Emperor or the city of Rome. Confiscation of goods was the punishment for laesa maiestas, but not other forms of political crimes. Baldus and other jurists claimed strong rights for the city-states to punish other political crimes, using summary procedure and liberal amounts of torture. Especially interesting in this article is the account of the dialogue between the executive and judicial branch, the judicial branch being the Captain of the People and the Executor of the Ordinances of Justice. When a plot was discovered in 1379 to return the Ciompi government to power, members of the executive branch tried the cases with citizen guild commissions instead of under the foreign rectors. In my mind, the statutes already had established a compromised procedure for political crimes so that condemnations could have been easily reached by the foreign rectors. The executive branch is showing here that it does not want the impartial, dispassionate judgment of the foreign rectors but the possibly politically motivated judgment of the citizen commissions. Fredona shows that the judgments made by this commission were severe and politically charged, causing the beheadings of fifty supposed conspirators (147). When the Captain and the Executor refused to punish people they had not condemned, they were obviated by a guild commission that condemned and executed. This is a good case for showing how the rectors were not pliable to Florentine pressure and held themselves outside political views as they were supposed to do. This apparently led to the Florentines getting first more pliable rectors and later getting rid of the most of the foreign rectors altogether. In the Medici condemnations of 1433, the condemnations come to the court of the Captain in the form of fully judged bullectini ready for the Captain to execute and the Captain goes along with this. [1] These condemnations are sui generis and probably should not be used to generalize. But impartial Roman law jurists as rectors who were above political concerns were on their way to marginalization as the Florentine commune sought to have more power over its political cases.

The only somewhat weak article in the compilation is "Laesa Maiestas in Renaissance Lucca." Much as I like the rest of Cavallar's work, this article does not prove what it purports to prove and lacks any clear and coherent picture of the political and juridical situation in Lucca in the early fifteenth century. His thesis that Paolo Guinigi was a tyrant is dubious and cannot be proven by a statement from a sixteenth century source or Florentine propaganda against Paolo Guinigi, especially at the point when Florence is trying to capture Lucca (164). Although the whole article is based on the condemnation of Paolo and the confiscation of his goods, Cavallar does not show that this even took place, in fact explicitly assumes it without looking. Paolo Guinigi can hardly be accused of being a blood-thirsty aggressor; the signoria of Lucca fell in his lap when all four of his older brothers died. The Lucchese were indeed a liberty-loving people, liberty at this time signifying both republicanism and freedom from foreign domination. Paolo was at the helm of Lucca during one period when this liberty-loving people pulled together and repulsed Florentine advances while simultaneously avoiding Milanese domination. One-man rule makes some amount of sense when the enemy is at the door; the Florentines consolidated into balia when threatened. While Cavallar's discussion of Bartolomeo Sozzini's tract on laesa maiestas is interesting, it should be better grounded in Lucchese politics, if he is claiming it is grounded in Lucchese politics, which is what he does not prove.

This volume makes significant progress in the areas of dowry and laesa maiestas. It also places lawyers in their political roles and moves toward an assessment of the ius commune's influence on the law of the city-states.



1. For example, Archivo di Stato, Firenze, Atti del Capitano del Popolo 3195, 3r-4v; 5r-5v.

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Laura Stern

University of North Texas