It has become clear in recent years, due to the work of Charles Radding, Anders Winroth, and others, that the traditional narrative of twelfth-century legal revival focusing on the law schools in Bologna is inadequate. But even as the aperture has expanded to take in other sites of legal learning—most notably the so-called “minor schools” that emerged all over Europe in the mid to late twelfth century to teach both canon and Roman law to students with practical needs--details and sources about the location, lifespan, curriculum, and intellectual milieu of such schools have remained elusive.
David De Concilio’s detailed study and meticulous edition and translation of the anonymous Perpendiculum, which emerges from this world of the “minor schools,”is a significant step forward in our understanding. The Perpendiculum, produced between 1172 and 1177, is composed of 1) asummula, or treatise, on presumptions (the Summula de presumptionibus), 2) a series of brocards (legal maxims accompanied by lists of norms usually arranged dialectically in pro and contra arguments) related to the summula, and 3) a second, more diverse collection of brocards on various subjects. This “alluvial” text, to use De Concilio’s evocative phrase, is “a multilayered product resulting from the progressive sedimentation of different materials brought by the many streams of 12th-century legal science” (22). It was one of the earliest works of canon law to discuss a theory of presumptions and to structure that discussion as argumentative brocards, a genre which became extremely popular in the transmontane (i.e., non-Italian) legal schools after 1170. The text was first identified by Stephan Kuttner in 1937 [1] and most scholarly work since then has focused either on questions of date, provenance, and authorship, or how the Summula de presumptionibus contributes to the development of a legal theory of presumptions. De Concilio’s edition represents the first time the Perpendiculum has been edited and translated in its entirety, something which was promised at various points since 1990 but never accomplished.
The goal of the book is “to understand the textual tradition of the Perpendiculum and show in detail its content and the way it deals with legal argumentation” (126). It proceeds in two parts. After a short introduction, Part 1 (Chapters 1-4, pp. 17-119) is a study of the text, its content, and its wider significance for the intellectual history of law in the twelfth and thirteenth centuries. Part Two (also, somewhat confusingly, Chapters 1-4, pp. 123-396) comprises the editorial justifications, detailed manuscript descriptions, and the Latin edition and English translation of the Perpendiculum and select sources that accompany it. There is also a detailed and very helpful bibliography and set of indices at the end of the work that greatly facilitate its use as a primary source.
Part 1, chapter 1 covers the Perpendiculum’s complex manuscript tradition, content, method, and purpose. The text survives in 15 manuscripts, mostly from the French and Anglo-Norman cultural world of transmontane Europe, though a few come from Mediterranean contexts. No manuscripts of the Perpendiculum survive from Northern Italy, though the text was undoubtedly known there during the 1180s when it was directly referenced in another early collection of brocards, the Libellus disputatorius of Pilius de Medicina. Most of chapter 1 focuses on the structure of the Summula de presumptionibus, particularly how it uses brocards with pro and contra arguments for which the text’s anonymous author does not present a solution. Instead, the author presents the brocards to the budding lawyers for whom he wrote the text to, as De Concilio puts it, “enable them to argue dialectically for and against each case in the courtroom, which is what practice required.” Such an attitude towards legal norms required “lawyers to treat the sources not as the embodiment of an absolute truth, but rather as repositories of two opposing probabilities” (31). These insights about the methods and approaches of legal education in the twelfth century are among De Concilio’s most intriguing, especially for the questions they raise about the perceived authority, use, and normative value of legal texts. The remainder of chapter 1 describes the collections of brocards that follow the Summula, the first of which is arranged in a somewhat stable and logical order as an appendix to the Summula, and the second of which appears to be a loose, living collection of other brocards that varied widely from manuscript to manuscript.
Chapter 2 lays out the Perpendiculum’s importance in a legal-historical context, especially the development of the brocardic genre and its textual connections to other works in its milieu. De Concilio again focuses on the Summula de presumptionibus and its innovative approach to the theory of legal presumptions, which could sometimes substitute for proof in Romano-canonical procedure when proofs like documents or witnesses were lacking. De Concilio gives a fairly detailed account of how the theory of presumptions developed from the Justinianic era into the twelfth century, when Roman and canon law experts began to classify them according to different criteria. Roman law scholars, mostly from Provence, first focused on whether a judge made the presumption (a praesumptio facti/iudicis) or the law did (praesumptio iuris), while canonists focused on how strong an influence a presumption had on a final judgement (praesumptio temereria, probabilis, and violenta). The Summula incorporated both of these approaches and combined the idea of praesumptio violenta (a presumption that led directly to a verdict)with the distinction between the praesumptio facti and iuris. De Concilio does not dwell on (or explain) the importance of presumptions in terms of legal practice; instead, he uses the innovative and distinctive aspects of the way the Summula discusses presumptions to establish textual relationships between the Perpendiculum and a dizzying array of other legal sources from both the Bolognese and Parisian intellectual milieus.
This is one place where De Concilio’s argumentation can be a bit hard to follow. He deftly shows the relationships between texts, but the purpose of demonstrating these connections can sometimes get lost in the minutiae. He has a tendency to leave arguments in suspense, promising to return to them later (and he always does), but this does not make for particularly smooth reading. Part of the difficulty is surely that this chapter tries to establish relationships between texts written in close and uncertain geographic and temporal proximity. Sometimes he connects the Perpendiculum to texts with known authors—most notably Ioannes Faventinus, a Bolognese jurist active in the 1170s—but most are anonymous or little-known treatises produced in the “minor schools” outside Bologna during the 1170s. The Perpendiculum is one such anonymous treatise, and while he discusses the authorship and date of the work in chapter 3, De Concilio does not provide solid answers to those questions. Instead, he reframes the lack of evidence for a single author to highlight that the text was circulating in an innovative and ever-changing legal milieu in northern France and the Paris basin that was also connected to the Italian world, as demonstrated by the relationship between the Perpendiculum and the work of the Bolognese jurist Ioannes Faventinus. Indeed, part of the reason why questions of authorship are so difficult to answer is that individuals and their schools are hard to distinguish in a milieu where “we can hardly identify any major point of divergence” between schools that “seem to have more in common than they differ” (116).
The Perpendiculum is therefore evidence of a transregional group of jurists between Paris and Bologna that was most active in the 1170s and that influenced the development of legal theory and teaching in France, Italy, western Germany, England, and Spain. This group was innovative: they developed the brocardic genre and improved scholastic techniques of argumentation. These conclusions undercut the persistent notion that legal learning and innovation happened primarily in Bologna in the twelfth century, and posit instead a picture of a European-wide legal culture already in the 1170s, where “a flourishing center of legal knowledge in Paris” was “in rapid and constant contact with the theoretical innovations developed in the schools of Provence and northern Italy, and where the ideas of civil law were read and applied by the masters of canon law” (108). This school in Paris was not a passive recipient of Bolognese or Provençal legal knowledge; in the form of its theory of presumptions, the Parisian milieu “gave birth to a fruitful elaboration that circulated widely in the transmontane schools and finally returned to Italy” (108). De Concilio demonstrates convincingly the existence of a common legal culture between the two sides of the Alps where jurists were interested in the same set of subjects and used the same set of texts and theoretical constructs to teach the law. This “multipolar” legal culture is very different from the “concentric” model with Bologna at the center established by legal historians in the twentieth century (118). With De Concilio’s conclusions in mind, we can ask better questions about where else such schools may have flourished, the intellectual, social, and political conditions that fostered their establishment, the kinds of texts and pedagogical methods they employed, and the role of local experts in teaching law to eager students.
The edition and translation of the Perpendiculum, which occupies the majority of the volume (Part 2, pp. 123-396), is well-executed and easy to navigate. De Concilio lays out his editorial choices in a brief introductory chapter (Part 2, Chapter 1). One choice was not to make a stemma, given that the manuscript tradition is too convoluted to make this possible or useful. Indeed, he argues that the text challenges our traditional conception of the relationship of text and author, since (as a texte vivant) it was constantly changing and had no “original” form that can be recovered. Relatedly, he did not identify a “correct” manuscript from which the others deviate, and thus chose one (Vatican City, BAV, Borgh. 287, fols. 1ra-8va which he calls Vb) to serve as the “base manuscript,” because, being later, he argues it was “probably the most complete textual basis from which to compare the variants” (125). These choices seem reasonable for this genre of text, which is characterized by variation, rearranging, and practical use, and have precedent in another edition of a brocardic text. [2] The last significant choice was to do a full edition and translation only for the first two parts of the text—the Summula de presumptionibus and the brocards related to that text—because they have a stable enough transmission, while opting for a critical table of contents and detailed synoptic table for the third, highly variable part of the text containing brocards on many different topics. This section will be most useful for those tracing the textual tradition of the Perpendiculum, and those wishing for more information on the legal arguments of individual brocards will need to consult the relevant manuscripts (many of which are digitized). An appendix (Part 2, Chapter 4) provides editions of short texts included alongside the Perpendiculum in more than one manuscript. De Concilio also prepared long and quite detailed descriptions of the manuscripts (Part 2, Chapter 2) containing the Perpendiculum that include the date, provenance, catalogue references, material features, and ownership of each manuscript. This will likely be a very useful resource for scholars interested not only in brocardic collections, but also how manuscripts from a twelfth- and thirteenth-century academic context focused on practice were constructed, arranged, and circulated.
Overall, De Concilio has done legal historians a service by editing and translating this complex text in a clear and accessible manner and providing a lucid and concise discussion of its importance (though one should have copies of Gratian's Decretum and the Corpus Iuris Civilis at hand to make the most of it). The book offers a fascinating look into the twelfth-century legal classroom, especially the sorts of questions and problems that occupied canonists in this period and the methods they used to address them. It will be most useful to legal historians interested in the development of legal ideas and the ius commune at this critical moment in legal history, but those interested in scholasticism, the development of the universities, and, more generally, how ideas spread in the intellectual fervent of the twelfth century (especially outside the great schools of Paris and Bologna) will also find much to occupy them.
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Notes:
1. Stephan Kuttner, Repertorium der Kanonistik (1140-1234): Prodromus corporis glossarum (Vatican City: BAV, 1937), 241-242.
2. Mathias Schwaibold, Brocardica ‘Dolum per subsequential purgari’: Eine englische Sammlung von Argumenten des römischen Rechts aus dem 12. Jahrhundert (Frankfurt am Main: Klostermann, 1985), 32-37.