With different legal traditions--canon, roman, secular, customary, feudal--paralleling and intersecting with one another, the sources of medieval law are a rich area of exploration. They, for example, can be found in collections; treatises, such as those on marriage and procedure; gloss apparatuses and summae, consilia, and communal and royal statutes. Working with the texts leads the reader into specialized language, use of abbreviations and cross-references, and differing organizational structures. All the while, the environment that created them and the needs of their users hover in the air.
The historiography of these different legal traditions is equally rich but can be walled off from one another. Scholars, however, are making great strides to bring the legal traditions into dialogue with one another. The ius commune’s influence on the legal traditions of Europe is one area of common discussion. The ius commune neither refers to English common law nor does it simply denote the amalgamation of Roman law and canon law. It rather acted as the framework that shaped legal thought and practice. As Kenneth Pennington has crisply articulated, the ius commune refers to a ‘general law,’ that is those principles found in the rules setting forth rights and obligations (i.e., substantive law) and the principles of procedure that were in common throughout Christendom from the twelfth into the thirteenth century. It included not only the texts of Romano-canonical law, but also included the standard glosses and opinions of the commentators working in secular and ecclesiastical arenas. The ius commune comprised of norms, principles, and practices common throughout Europe, which, in turn, afforded judges the opportunity to adjust the rules to fit the circumstances of a particular situation. It transformed Romano-canonical law into sets, or ‘blocks,’ of legal practices and principles that were conceived as underlying local custom and statute. [1]
Within the context set forth above, Osvaldo Cavallar and Julius Kirshner’s Jurists and Jurisprudence in Medieval Italy: Texts and Contexts is a most welcome addition. The authors aimed “to introduce an audience of nonspecialists to outstanding voices of medieval Italian jurisprudence” (39). The English translations provided span the twelfth through the fifteenth centuries and are grouped into legal education, the legal profession, civil and criminal procedure, crime, personal and civic status, and family matters. Each section begins with an extensive introduction providing an overview of the texts and the contexts for their creation. Each introduction ends with a bibliography organized by topic to help the reader navigate key contributions to the scholarship. The sources in each section are grouped into topics and cover a wide swath of writings: works of key jurists, such as Azo, Baldus de Ubaldis, and Bartolus of Sassoferrato; laws from Justinian’s Corpus iuris civilis(Institutes, Digest, and Codex); glosses and juridical commentary on the Corpus; procedural commune statutes; and consilia, which were legal opinions sought out either by a defendant or plaintiff in support of their position or by the judge from a jurist not involved in the case.
Cavallar and Kirshner’s translations do an excellent job of rendering difficult texts understandable. The footnotes both cite the legal texts referenced by the jurist and provide additional information when relevant. Take for example the translation of the consilium on vendettas written by late-fourteenth-century Roman jurist Baldus de Ubalids (427-431.) He addressed his opinion to the Count of Savoy and the Prince of Achaea, identified as a sub-vassal of the house of Savoy, on the matter involving Guglielmus de Marlenginis who had injured and Jacobinus of the Society of San Giorgio. According to the emperor’s statute, which Baldus set forth at the outset, should a member of one of the hospitia--which is defined as the diverse households and their quarters constituting the fellowship of San Giorgio--injure a member of the Society, the offender was not to be considered a member of the Society and the Society was bound to help should the offended party wish to take revenge on the Society. In this particular case, Jacobinus took revenge on Merloctus de Marlenginis, a member of Guglielmus hospitium who was in no way involved in the original offense. Baldus was tasked with clarifying the law; the footnotes provide reference to the texts in the Digest and Codex on which Baldus grounded his position. He proceeded by setting forth the parameters ofvindicta in Roman law, the idea of “suitable” / “appropriate” vengeance, and whether revenge taken in a treacherous way exceeded the proper limits. With the framework laid and considering the imperial constitution, Baldus concluded that only Guglielmus de Marlenginis should be expelled from the Society of San Giorgio with the other members of the hospitium remaining members. However, the issue of peace was more problematic because of Jacobinus’s vengeance not on Guglielmus but on Merloctus de Marlenginis. As they are two different persons, the actions taken by Jacobinus could not be treated as reciprocal. Baldus had parsed the specifics of the case, placed the particulars within a broader legal context, and grounded his opinion in Romano-canonical principles.
In the spirit of introducing nonspecialists to the field, the volume also includes a helpful array of resources to aid with the navigation of the legal sources. A list of abbreviations and short titles to secondary sources cited precede the introduction while a glossary of legal terms and two appendices--one providing examples of how to cite legal texts in the different traditions and another providing a list of key jurists--conclude the work. The list of abbreviations includes those used as cross-references in the sources themselves. For instance, ff. is the abbreviation for cross-referencing Justinian’s Digest; l. the abbreviation for a law in Justinian’s Corpus iuris civilis; X refers to the canonical collection Decretales (aka Liber Extra) of Pope Gregory IX; VI refers to the canonical collection Liber Sextus of Pope Boniface VIII. The list also includes abbreviations commonly used in scholarship. The abbreviation s.v. (sub vero) is the disciplinary standard for citing a gloss of a particular word or phrase found in a law. The list of Short Titles provides a treasure trove of “go-to” resources for scholarship. It also provides a handy list of critical editions, particularly to statutes of particular Italian communes. The glossary found at the end of the work provides an English translation of Latin legal terms and a clear explanation of the meaning. Take, for example, the term usucapio. The entry includes the English translation of “usurpation” and defines it as “acquisition of the ownership of a thing that belongs to another person through possession for a period established by law. Good faith and a just cause were also required. Things belonging to the fisc and the res publica, as well as stolen things, were excluded from usucapion” (841). A person could acquire ownership of certain things if he had possessed it uncontested for a [long] period of time. The first of the two appendices treats the legal citations found in Roman Law, Feudal Law, and Canon Law. A narrative introduction to each of the legal traditions explains the components of a citation, followed by example citations from different texts from that tradition. The second appendix provides an alphabetical list of primarily jurists with the date of their death to provide a chronological context. Collectively these aids are approachable and help to demystify the sources of law.
Cavallar and Kirshner’s Jurists and Jurisprudence in Medieval Italy is transformative on account of its accessibility. Specialists and nonspecialists alike will find an array of documents on a variety of subjects from a variety of legal traditions. Both will benefit from the valuable introductions to the sources, from the secondary literature cited, and from the references to critical editions. Of particular interest is this work’s applicability to both undergraduate and graduate classrooms as an assessable means for introducing students to legal history.
--------
Notes
1. Kenneth Pennington, “‘The Big Bang’: Roman Law in the Early Twelfth Century,” Rivista Internazionale di Diritto Comune 18 (2007): 43-70 and “Introduction to the Courts,” in The History of Courts and Procedure in Medieval Canon Law, eds. Wilfried Hartman and Kenneth Pennington, History of Medieval Canon Law (Washington D.C.: Catholic University of America Press, 2016), 3-29. For the standard development of the ius commune, see Manlio Bellomo, The Common Legal Past of Europe, 1000-1800, trans. Lydia G. Cochrane (Studies in Medieval and Early Modern Canon Law 4; Washington DC: Catholic University of America Press, 1995). On romano-canonical law in Italy, France, and Scotland see Alan Watson, Sources of Law, Legal Change, and Ambiguity(Philadelphia, 1984), 51-75.