In this fascinating book, So Nakaya’s meticulous archival research traces shifting ideas of justice and commune in fourteenth-century Lucca and reveals the role of Lucca’s inhabitants in shaping these changes. The author frames his investigation around a central question: why did the inhabitants of this town bring forward such large numbers of legal claims? This straightforward question becomes the springboard for a deep and careful study of power and law in fourteenth-century Lucca.
The introduction (15-32) leads readers through the historiography of the idea of the commune and its conceptual basis, focusing on the relationship of the inhabitants to the commune. While the fourteenth century was in general a period of increasing oligarchical tendencies, the courts of justice remained the space in which the inhabitants interacted with the commune. The book is organized in two parts, each containing three chapters. The first part analyzes the relationship between the commune and civil justice; the second considers the commune and criminal justice.
Chapter One (33-57) begins with the simple but direct question: why did people go to court? In other words, why did inhabitants bring their claims to the communal courts instead of availing themselves of other means of resolving their disputes? Inhabitants of Lucca went to court in astounding numbers: around ten thousand claims per year were made by approximately forty thousand inhabitants of city and contado. Nakaya outlines the process of civil trials, and he also explains the possibilities for arbitration, concluding that private arbitration was generally a better choice than the courts for private parties (51). To then answer the chapter’s central question, he explores the use and function of judicial orders as strategic tools both to gain title to possession and for the social currency of a recognized public decision.
Chapter Two (59-96) constitutes a fascinating discussion of the use of legal exceptions in the civil courts. Through his discussion of exceptions (formal legal objections to technical elements of cases, a common strategy of defendants) and the claims made to the Anziani executive college, Nakaya presents civil courts as the vehicle by which inhabitants continuously redefined the commune. He traces the paths by which these exceptions could lead to new legislation or even amendments to the city statutes. Nakaya demonstrates that the use of legal exceptions underscores the ability of the inhabitants to both have access to legal knowledge (through notaries and jurists) and to gather information through the use of the archives. It was the inhabitants themselves, through their use of legal exceptions, that ensured a close attention to procedure: through legal exceptions, citizens ensured that the courts complied with the law. This section includes an important discussion of the revision of municipal statues. The chapter powerfully reinforces a central theme of this work: the inhabitants of the commune, and not the officials, pushed forward the realization of the commune.
Chapter Three (97-133) explores the shift over time in the rationale of civil rulings, which moved from a focus on procedural regularity to the wide allowance of discretion (arbitrium)of officials. The shift from a strict emphasis on positive law to increasing use of judicial discretion parallels developments elsewhere in the fourteenth century. In early fourteenth-century Lucca, judges relied on juridical consilia for formal judgements, but by the second half of the century, a new emphasis on judicial discretion is clear. The author correlates this shift with changes in Lucca’s government and its procedural laws. A trend away from “traditional practices” (105) shows that in various ways, including the use of summary procedures, judges pushed past procedural norms. Nakaya then explores the reasons for this shift in the logic of justice. His nuanced discussion weighs the impact of significant political change in the fourteenth century on judicial procedure, but also weighs the role played by jurists, inhabitants, and judges in shaping these changes. He credits the decline of local jurists, who focused on local formalities, to the introduction of Pisan jurists during the period of Pisan rule (1342-1368) who tended to be more broadly centered in the ius commune, and to the “deterioration” of the legal environment (111) and changes in the way that legal exceptions were handled (from consideration by jurists to consideration by judges). He also highlights the Pisan doge’s encouragement of summary justice to limit frivolous lawsuits, and the concurrent growth of judicial discretion to determine exactly which exceptions were frivolous. Throughout this chapter Nakaya shows that the movement to arbitrium was not “a shift from trial conducted by jurists and litigants in strict compliance with the law to a judge-led model. Instead, it was a shift from trials conducted by jurists and litigants in strict compliance with the law to trials contingently realized by litigants and judges through their repeated interpretations of the nature of a ‘legitimate’ trial or ‘justice’” (130).
In Part II, the book moves to the sphere of criminal justice, which reveals the same general shift towards arbitrium. Chapter Four (135-168) outlines the shape of criminal trials at Lucca. The author traces the rise of inquisitorial procedure (as opposed to accusatorial procedure) as the primary trial process in criminal cases in the fourteenth century, and specifically inquisitorial procedure brought with fama publica, which was a symptom of a general shift towards oligarchy and the “empowerment of political institutions” (140). Three examples of criminal trials frame an insightful discussion of the trial process, from trial initiation to the use of judicial discretion in sentencing. Judges generally were guided by the statutes in sentencing. When they exercised arbitrium, that arbitrium was granted to them by the statutes. The author then turns to the granting of pardon (gratia)as an outcome of criminal convictions, and he explores the authority to grant pardons as he pursues the central question: why could these authorities interfere in criminal sentencing (161)?
Chapter 5 (169-196) is a fascinating discussion of the expanding practice of the appeal for gratia. The system of individual gratia seems in conflict with the ideals of communal government, but it was widespread, and not only in Lucca.Gratiae were usually based on arguments that the accused had suffered an injustice in the process of the trial, like procedural irregularities or fear of torture.Gratia thus became a process by which the higher authorities claimed to right the wrongs committed by other officials.
Gratia was a beneficent act on the part of the authorities in response to a petition (170). Nakaya’s discussion is based on an examination of policies about gratia in council registers from three periods: the year 1328, the dominion of foreign masters; the year 1342, the period of Pisan rule; the republican period after the year 1370. Gratia made little sense in the context of the commune, because the source of communal authority was the citizens. In the context of the signori, gratia became a tool for the establishment of authority over the subjects, the commune, and its mechanisms of government. The basis of gratia became the arbitrium of the ruler, in contrast with communal ideals, which emphasized adherence to the statutes.
Within this discussion, Nakaya distinguishes between general amnesties and gratia granted in response to individual petitions. Under the foreign masters, general amnesties both acted to generate profit through fines and to ingratiate the rulers with the commune. After Pisa took control over Lucca in the year 1342, a series of amnesties were motivated by crises, including plague and war. Individual pardons were added to the general amnesties. The process of granting gratia, which required only approval of a very few of the councilors, paints an oligarchic picture. During the republican period, there was a move away from the use of gratia, but the author demonstrates that this was at its core a political move. In the republican period, the granting of individual gratia could be justified by the idea of libertas if the convicted person had acted with a zealous love of the city’s independence. This led to a policy that forbade proposing or granting gratia for five crimes, respectively: rebellion, robbery, falsehood, arson, and homicide, when no reconciliation was made (188). The provision prohibiting gratia had many exceptions, but the overarching idea was that governors should support public peace even when it meant disregarding the law. Nakaya’s discussion illuminates a contrast between the gratia of the signori and the gratia of a republic that justified its actions as being for the good of the commune. The provision against gratia entered statutory law, but it could be suspended. The author suggests this innovation can be considered “as a kind of filter that could be used to block those who petitioned the council for gratia” (193). It was the leading citizens of the commune who could exercise the authority of gratia on behalf of what they construed as the common good.
Chapter 6 (197-229) considers summary proceedings, which were made possible because of the arbitrium entrusted to foreign judges. Extraordinary procedure, or summary justice, is difficult to investigate because few sources testify to trials conducted in this way. The author approaches the topic from multiple directions: he uses permissions granted to judges to use summary procedure, and he investigates complaints made by those who were subject to summary proceedings. Why did the Anziani grant foreign judges the authority to conduct summary trials? Nakaya’s insightful discussion explores the ways in which political authorities supported summary justice, and the way in which summary justice enshrined political authority over judicial authority.
The conclusion of the work (231-237) adeptly summarizes the many interlocking themes of the book, building a powerful case for the agency of Lucca’s inhabitants in shaping the changing ideals of justice in the fourteenth century: “...inhabitants did participate in their commune, albeit in a manner quite different from the one envisioned by republican thinkers and conventional historians who cherish an ideal image of communal living; that is, virtuous political participation by citizens in pursuit of the bene commune” (231). Nakaya concludes his compelling argument that the shift from a strict emphasis on positive law to the widening acceptance of arbitrium was driven not only by state interests, but also, and significantly, by the people who used the courts in pursuit of their own goals. The combined power of their individual claims, all made in support of individual goals, created, over time, a new idea of justice.
Without a doubt, this is a superb study. As Nakaya recognizes, some of the general trends--the movement from positive law to arbitrium and the general tendency towards oligarchy-- have been widely noted in other cities. What makes this study remarkable is the author’s ability to unravel precisely how and why it happened, and to reveal the role of Lucca’s inhabitants in driving the shift. It is true that Lucca’s rich archival holdings make it one of the few places that could support such a study. But it is also true that this kind of study is possible only because of the author’s holistic approach to law and power. He embraces complex and nuanced questions and supports his investigations with a mastery of the archival sources and a deep understanding of their creation, use, and revision. With clarity and precision, Nakaya leads the reader through subjects that are at times necessarily technical to arrive at a broader sense of the shifting ideas of justice in the Late Middle Ages and the factors that shaped those changes. This wonderful book is a necessity for anyone interested in the political and legal history of late medieval Italy.