ON THE ENFORCEABILITY OF CONTRACTS:
EQUITY, JUSTICE AND LAW IN THE IUS COMMUNE
Mihai Safta1
Phd. Student at the University of Babeș-Bolyai, Cluj-Napoca, Romania.
1 Phd. Student at the University of Babeș-Bolyai, Cluj-Napoca, Romania. (e-mail [email protected])
Research financed by the project „MINERVA – Cooperare pentru cariera de elită în cercetarea doctorală şi post-doctorală”, cod contract: POSDRU/159/1.5/S/137832, proiect cofinanţat din Fondul Social European prin Programul Operaţional Sectorial Dezvoltarea Resurselor Umane 2007-2013.
ON THE ENFORCEABILITY OF CONTRACTS:
EQUITY, JUSTICE AND LAW IN THE IUS COMMUNE
Abstract: In this brief study of the medieval jurisprudence, customary law and contracts during the
thirteen century I have presented some of the basic ideas of Bartolus, Baldus, Hostiensis, and exposed
the two different opinions that were formed in the canonistic literature on the enforceability of
contracts: Johannes Teutonicus and Innocent IV. During this “rebirth” of law in the thirteen century,
roman and canon law witness the rise of the ius commune and its subsequent impact upon equity and
justice. The influence of Roman law upon the canon law is well-known, however starting with
Bartolus and Baldus, from the XIV century a new ius commune emerges based on the influence of the
doctrine and jurisprudence of contemporary institutions and enhanced by the medieval mutations.
Keywords: customary law, ius commune, medieval jurisprudence, contracts, Roman law.
Introduction:
Under the influence of Romano-canonical public and private law the State, in its
modern terminology first began to emerge as a juridical concept. For the High Middle Ages
political power and institutions have suffered considerable mutations and were now legally
definable. The nature of political authority and its origin within the regnum and ecclesia has
been defined by professional lawyers a new branch of scientific jurisprudence. Ecclesiastical
courts were now competent to treat practically all of the cases which appear before civil
tribunals, as well as some cases (like heresy) which have no official place in the modern
codes of civil and criminal law. The mixture of the two, ius commune and ius divinum was
bound to happen, especially after the massive work of Gratian in the previous century. In
consequence in the XII century the situation of the canonist is presented thus: At all times
theology and Roman law were surely instructive for the canonist, especially when he was
confronted by a theoretical problem or a question of private law. But at any moment the
professional canonist might have to deal with matters of sacramental doctrine, liturgical
practice, procedural law in the courtroom, administrative law for the carious offices in the
Church, Contractual law, usury and business ethics, marriage, and various other legal or
moral problems in the daily life of ordinary Christians. Or he might be called upon to discuss
the nature of temporal power, especially its relation to the Church.2
The influence of Roman law upon the canon law is well-known. However starting
with Bartolus and Baldus, from the XIV century a new ius commune emerges based on the
influence of the doctrine and jurisprudence of contemporary institutions and enhanced by the
medieval mutations. Not only the feudal ius and the statuary and positive law have
maintained independency from the roman Rota. However we must consider the reciprocity of
this event, meaning that not only Roman law has infiltrated itself into the cannon law, but
also the influence and mutation suffered by the Roman law enriched by the institutional
jurisprudence. In the same manner that cannon law repudiates civil law that are in direct
contradiction with its norms, so does the ius commune: omnes pragmaticas sanctiones quae
contra canones ecclesiasticos elicitatae sunt, succumbit ergo lex canoni, ubi est ei contraria.3
This means that if the canon is doubtful and a clear rule is to be found in the Roman law, then
it shall overrule the other and vice-versa.4 Therefore the Roman law is to be held as a
supplement to canon law and to be used whenever its positive legislation isn‟t in direct
contradiction with the norms of the norma recta vivendi and it does not “dédaigner de suivre
et de reprendre le droit canonique”5.
1 Equity, justice and law.
The author of the Quaestiones de iuris subtilitatibus represents Justice in a silver
temple, surrounded by her six daughters and holding Equity in her arms, and of course
Reason dominates the scene. Two centuries later, Baldus at the end of his introduction to the
Commentaries on representative decretals (Commentarium in libros decretalium) represents
Justice as a protected tower, by three walls, equity being just another element alongside
temperance. The point of these two allegories is the role that justices and equity undergo in
two centuries, their conception and their consequences: subjective law. Although Gratian
admits the existence of personal laws, his and the others decretalists focus on the general
matter of societas, of the Church, the Mystic Body of Christ.6 The utrumque ius, regalements
both the spiritual matters and the temporal ones, cependant, les emprunts faits par chacun de
ces droits l`un a l`autre ne se bornent pas à des rapports de bon voisinage assurant une
certaine réciprocité, notamment en ce qui touché le domaine temporel7. The main problem of
the correlation of these two codes of law is in their very core character of equity, specific to
both doctrines.
The law is nothing but the emanation of the will of the legislator. Monarchy was not
however merely a name or a convenient governmental nomenclature, but was conceived as
the sum-total of all governmental power in the public field. And this governmental power
could not- once more on the basis of the Roman law model- be understood in an sense other
than the legal one, so that its exercise was nothing but either the creation of new law or the
2 Robert L. Benson, The bishop Elect, A Study in Medieval Ecclesiastical Office, (Princeton, New Jersey:
Princeton University Press, 1998). p.16. 3 Ibid. p.184.
4 Ibid.
5 “…Si leges non dedignatur sacrus canones imitari, multo minus iudices et ministri debent canonum statute
contemnere in talibus casibus dubiis non decisis, et per hoc Cynum, Bartolum et alios legistas qui opinionem glossae sequuntur et non decisionem canonicam, sed quadoque determinant quod illa servetur in suo foro, non puto recte dicere…” Ibid. pp. 184-185. 6 Gabriel Le Bras, Histoire du Droit et des Institutions de l`Eglise en Occident (Paris: Sirey, 1965), VII. pp. 360-61
7 Ibid. p. 185.
application of already existing law. Iurisdictio was the hallmark of gubernation; he who dicit
ius also gubernat. The gubernator was he who authoritatively laid down what the law in a
special case was to be.8 These words attributed to Hostiensis start a new stage of development
in the doctrine of equity. Also the distinction between distributive justice and commutative
justice facilitated the application of canon law and the distinction of the classical public and
private law.9
Tout home doit tender à la perfection10
, as Hostiensis has called it in his “Summa
aurea”, the tertium genus, representing the three stages of life, those of aspirants to
perfection. He continues saying that all three orders (laics, clerks and religious) compose a
trinity. We might also mention the discourse about regulars, those who submit themselves to
a rule, opposite to those who live in the world les seculiers11
. Through arms, one could rise to
empire, and by the clergy it has often happened and can happen that the son of a poor man
becomes a great prelate, and is rich and honored as such, and becomes the father and lord of
him who was lord of him and his; and he rules and governs everyone, and he can even
become pope, and be father and lord of all Christianity12
. This course of action started
numerous debates and disputes in the knight-bishop biome. It was an age when it was
profitable to make free men, and thus the clerks relegated to second place their past doctrines
of service and instead looked for texts to prove the glory and usefulness of liberty. Some of
these were to be found in Roman law, where the basic notion was that men were naturally
equal and free. As Ulpian had long ago expressed it that in civil law, slaves are considered as
nothing, but not so in natural law, because in natural law, all men are equal, a sentiment
echoed by all the jurists and publicists of our period. Men of the time were confident that they
could restore man to his pristine liberty.
A prologue to emancipation in Castelsarrasin in 1268 reads: “In nature all men are
free, but the jus gentium made some men slaves. And because a thing returns easily to its
nature, learn that we, moved by piety...freely manumit our serf.” In this secular image, men
became Roman citizens when freed. Rolandino Passaggeri describes how a master frees his
dependants, remitting to them “all right of patronage, restoring to them their ancient
birthright and freedom in law, and calling them Roman citizens, and finally restoring them to
the primeval law according to which all men were born free, nor had manumission been
introduced at that time because servitude was unknown”.13
He, who granted liberty, was seen as restoring natural and right order, therefore he
should not be unduly praised. Henry of Bracton and the anonymous author of Fleta, informs
us that the ius gentium, or civil law, had not destroyed man`s natural freedom; it had only
obscured it. Buoncopagno of Signa wrote: „No one is said to confer liberty but rather to cast
off a certain veil of servitude by which freedom is said to be cloaked”.14
The martial order
enjoyed certain privileges. Even in Italian towns litigation between knights or knightly
families was settled by courts of their peers. In return for the expense of maintaining harness
and horses they were exempted from certain taxes. In Arles in 1205, knights paid the tithe on
their property, while others paid both tithe and tallage. In Pistoia during the early 1200‟s
knights paid the usual personal and property taxes in town, but their holdings in the contado
8 Walter Ullmann, The Papacy and Political Ideas in the Middle Ages (London: Variorum Reprints, 1976). p.358.
9 Gabriel Le Bras, Histoire du Droit et des Institutions de l`Eglise en Occident (Paris: Sirey, 1965), VII.p. 364.
10 Ibid. p. 11.
11 Ibid. p. 12.
12 Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959). p. 233.
13 Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959).p.234.
14 Ibid. p.234.
were exempt from the hearth tax. Privileged in an economic sense but also impeded. They not
only owed an expensive and sometimes dangerous service, but, in a manner similar to a
farmer under manorial law, they were seldom allowed to alienate property, represented
usually by their lands or other income-bearing goods held as a salary for the service.15
By the early thirteen century, therefore, clauses forbidding the alienation of property,
rents and sometimes other types of income to knights or the Church began to appear in the
private leases and sales. Although this restriction could usually be obviated by paying special
fees to landlords, urban governments or princes, it could also be established in the same way.
The growth of a distinction between noble and non-noble land was therefore a mark of the
thirteenth-century social life, and an early expression of the social rigidities that were to be
characteristic of the late medieval period.16
As we have seen, the nobles of the past had justified their freedom by their lineage.
The knight‟s freedom was now based on his office, his function as a soldier. The most
significant militias were the professors, of law and letters, and the judges and lawyers, the
literatoria militantes. Alphonso X of Castile had it incorporated into his Siete partidas
„ricoschomes, caballeros, maestros, cibdadanos, menestrales e laboradores”, adding that the
knowledge of law is another manner of knighthood. The sense of a profession, or militia, was
not new among soldiers. Indeed, it derived from Roman law. The clergy had also always
possessed it and based their authority upon it. As society matured, other militias began to
appear. Of these the most significant were those of the professors, especially of law but also
of letters, and the judges and lawyers, those whom Placentinus (d.1192), a jurist who taught
at Bologna and Montpellier, called “a militia of unarmed soldiers, that is, those militating in
letters (literatoria militantes)“. This observation echoes the introduction to both the Code
and the Institutes, in which it is said that imperial majesty was not only decorated by arms
but also armed by laws, in order that the emperor might be victorious not only over Rome`s
enemies abroad, but also over injustice and crime at home. Others than Italians had heard of
this noble ideal and it was enshrined in the great texts of English law, those of Glanville and
Bracton, and in Fleta. Alphonso X of Castile had it incorporated into his Siete partidas,
which also went on to divide society‟s orders into `ricoshomes, caballeros, maetros,
cibdadanos, menestrales e laboradores`, adding that `knowledge of law is another manner of
knighthood`.17
The late thirteenth-century saw a recrudescence of literature defending hereditary
nobility. The most famous spokesman for this view was Raymond Lull, whose Order of
Chivalry of 1274-75 was widely read throughout the later Middle Ages. Not only did he
repeat the old arguments, but he also adopted themes seen only in poetry or popular
literature before. To Lull a knight who has children by a plebeian wife honors neither
gentility nor knighthood, and -far worse!- a knight`s wife who bears a child by a commoner
destroys `the antiquity of chivalry and the noble confraternity of noble lineage`. Indeed, no
one has sufficient power to knight a man of common lineage. Even Lull, however, had to bow
before virtue and thereby contradict himself, although grudgingly. Because man is rational,
transcending the beasts, `the order of chivalry therefore consents that by many noble habits,
many noble deeds, and ennobling by the prince, there can be in chivalry an occasional man
of new, honorable and gentle lineage`. Besides, Lull had to face reality. Although he believed
15
Ibid. p.256-57. 16
Ibid. p.257. 17
Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959). p. 263.
that ideally judges should be chosen only from chivalry, he required them to be trained in law
as well as war.18
This recrudescence of literature defending hereditary nobility began to appear in the
thirteenth century, as a result of the increasing literacy among nobles (beyond poetry and
romance, i.e. the chanson de geste), and now sought to express itself in semi philosophical
discourses like those of Raymond de Lull, developing ideas that had existed long before.
Furthermore, these ideas reflected the strong family feeling of the medieval nobility, a quality
that distinguished them from both the clergy and the jurists. The clergy was an order of
celibates, and the jurists derived their professional sense from their ecclesiastical
predecessors, a fact illustrated by their habit of calling untrained judges and jurymen
`laymen` or, as the jurist Azo said in his commentary on the Code, `laymen and the illiterate`.
The careers of clerks and jurists might be aided by their family connections, but, in theory at
least, their posts and salaries were not hereditary. It is true that, like the priesthood of the
clerk or the doctorate of the jurist, knighthood was something assumed or won by an
individual and not by a family, but the tradition of hereditary offices and remuneration that
had grown up since late Roman times enabled the knights, once they were free, to emulate in
this respect the nobles and great officers of the early Middle Ages. The result was that, while
individuals of no lineage could always be knighted, families of freemen that had produced
knights and that had hereditary possession of the remuneration given knights could not be
deprived of their right to lay claim to this office. In short, once freed, knightly families
adopted the lineage traditions of the older nobility.19
The change from feudal service to general militia service in Europe‟s principle states
paralleled the evolution in Italy‟s urban republics. The history of knighthood was very
different, because of the lack of republican spirit outside the peninsula. Western princes
sought the monopoly of knighting, at first in order to control the militia and then in order to
reward faithful servants. Although Roman law accorded them this right, in practice any
knight could dub the son of a knight. Where the princes moved in was the ennobling of
commoners through knighthood. But even in the thirteenth century it was difficult to establish
this as a royal monopoly in a large nation like France, with its semi-independent duchies and
counties such as Brittany and Flanders, not to speak of England‟s Guienne and Gascony. In
1298 royal authority was obliged to confess that, from the time immemorial, in Provence and
the seneschals of Beaucaire ‟bourgeois were accustomed to assume the knight‟s belt from
nobles, barons and even archbishops without the authority and license of the prince‟. Bit by
bit, however‚ the rights of the prince began to prevail. From the 1270‟s the French kings
developed a lucrative business of selling grants of nobility or rewarding service with them20
.
The balance of power between a prince and his nobles, between the state and its
privileged citizens was the main focus point of canonists and jurists starting from the early
12th century; nobility should be won by each man through his service. In the prince‟s eyes,
nobility derived from virtue, and virtue from service to himself. And in his eyes nobility
should ideally be non-hereditary, to be won by each man through his service. The social
leveling and universal service owed to prince and country that this implies were already
understood, as may be seen when Rudolph of Habsburg in 1276 greeted all of his subjects,
from the peasants to the greatest nobles , as „‟my ministers‟. So resistant was the concept of
lineage among the martial aristocracy, however, and so useful an impediment to the
18
Ibid. p. 269. 19
Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959). pp. 269-70. 20
Ibid. p. 281.
totalitarian rationalization of society was the irrational principle that noble blood contained
the essence of freedom, that the state could not level all its citizens into a common servitude
at this time, nor was it to do so until both princes and nobles had bowed off the stage of
history.21
2 On the enforceability of contracts22
During the thirteenth century, two different opinions were formed in the canonistic
literature on the enforceability of contracts. Johannes Teutonicus defended the position that
all promises and contracts were actionable in the ecclesiastical courts. The excepted Crime,
found in Roman law, survived in Romanized Germanic laws from the twelfth centuries, but it
received new emphasis first in the Carolingian period and then in the debates concerning the
moral reform and criminal behavior of the clergy in the late eleventh and twelfth centuries. It
served various purposes outside of clerical reform and discipline, it helped to legitimate the
crusades and other kind of violence or lay violence. It helped also in criminal justice, to
distinguish between various levels and rights of justice; to reserve certain instances of
criminal jurisdiction to lords, kings , and independent city-republics; and to offer remedy in
case of a perceived grave public danger.23
Pope Innocent IV however did not accept the
enforceability of all contracts, but referred to the disciplinary measures of the Church, up to
interdict and excommunication. The vast majority of thirteenth, fourteenth and fifteenth
century‟s canonists flocked to the standard of Teutonicus, though some writers like cardinal
Zabarella or Imola adhered to Innocent.
Another form of resistance theory rested on the idea of contract. The argument used by
Manegold of Lautenbach in his Liber ad Gebehardum was one that reappeared frequently in
later centuries: the king is hired or contracted by the people to do a job. The elective
principle was an aspect of the making of a king and oaths were taken at royal coronations. If
the king chooses to act the tyrant, he can no longer claim fidelity because he has broken faith
and the compact. Hence the people should be free of his lordship. Manegold also used the
argument that the tyrant lacks the essential qualities of a king who is meant to excel all men
in wisdom, justice and piety. Loss of honor by corruption justifies loss of the royal title.
Aquinas is one of many who appealed to the notion of contract. In de regimine principum, he
held that public authority though not private individuals. May remove tyrant who breacks the
contract with the people, just as it may establish the king. Giles of Rome, too, although he
favored absolute and hereditary monarchy, nonetheless maintained in De renuntiatione
papae, that the ruler must be established by the consent of men and by that same consent he
may be deposed. Contract theory was, however, two-edged. Richard Hooker shrewdly
observed that the community may require the consent of the ruler before withdrawing from
his dominion. A further ground for the removal or correction of a ruler lay in the notion that
the community possesses sovereignty. Marsilius‟ doctrine of popular sovereignty allows the
community, or the representatives whom it appoints, to correct or depose the ruler because
Marsilius transfers the function of making law from the ruler to the community. The ruler
(pars principans) is simply the executive part of the community which is the legislator; hence
the pars principans is accountable in law. Jaques Almain hardened the argument when he
21
Ibid. p. 285. 22
The cambridge History of Later Medieval Philosophy ([n.p]: Press Syndicate of the University of Cambridge, 1982). pp. 769-70. 23
Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804. pp. 192-93.
wrote that the people cannot abdicate; under natural law any person who menaces the
community may be resisted. The scholastic in general expressed firm support for the
possibility of resistance based on the principles of justice and of contract.24
The glossators and the commentators of Roman law did a lot to break down the
formalism of Roman contract law. Bartolus and most of all Baldus de Ubaldis tried to narrow
the gap between the canon and Roman law of contract. The commentators distinguished
between pacta vestita and pacta nuda. The contracts under the last category were not
enforceable and were considered to constitute at the most a natural obligation. Baldus
however introduced the idea that a cause sufficed as a vestimentum. Though thereby the
practical implication of canon and Roman law doctrine could not differ much any longer, the
principle of consensualism was not accepted into Roman law by the commentators.
The difference between canon law and Roman law concerned thus foremost the
original point of departure of the system of contract law, but the gap has been almost closed
by the end of the Middle-Ages. Nevertheless, the theoretical difference would continue to be
recognized and even stressed by early modern doctrine.25
According to Saint Thomas
Aquinas (1225-1274) breaking a mutual contract did not only constitute a sin against the
precept of truthfulness or honestas, but also against the virtue of justice or more specifically,
fidelitas. The binding force of mere promises, and by consequence reciprocal promises or
conventions, was asserted by Aquinas and his neo-scholastic followers.
3 Bartolus on customary law.
In general, a valid custom, in both constitution and abrogation of laws, produced the
same effects as legislative acts: “Tacitus et expressus consensus aequiparantur et sunt paris
potentiae… generalis consuetudo generalem tollit leem.” (see also his proemium: Sicut lex
sumit vigorem ex expresso consensus populi, ita consuetudo ex tacito, et est tantae
autoritatis, quod legem tollit. )
This parity of Statute and Customary Law entailed:
1) That lunatics and persons under twenty-five years of age were bound by customs
which had obtained legal authority, although their consent did not count: “Lex scripta
eos ligat…ergo consuetudo, propter paritatem causae potentiae et effectus”
2) The principles concerning the territorial scope of Customary Law were identical with
those laid down in the realm of Statute Law (“collision statutorum”). As far as the
formality of a juristic act was concerned, Customary Law, referring to this formality
(“respect sollennitatis”), had no effects outside the territory in which it was valid –
obviously an application of the principle locus regit actum. In a case where
Customary Law was established “respect rei” it had validity outside the territory of its
origin as well- obviously and application of the principle locus rei sitae. (au test in
rem, id est respect rei, utputa prohibit rem alienare, et tunc etiam si contractus fiar
extra territorium, talis alienation non valet.) Customs concerning the person himself
–e.g. the ability to conclude a contract – were valid even if the person was staying
24
The cambridge History of Later Medieval Philosophy ([n.p]: Press Syndicate of the University of Cambridge, 1982). pp. 769-70. 25
Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804. Pp. 454-55.
outside his native territory. These rules correspond to the rules relating to “statuta
realia” and “statuta personalia”. The modern conflict of laws is generally considered
to have begun in Northern Italy during the late Middle Ages and in particular at
trading cities such as Genoa, Pisa and Venice. The need to adjudicate issues
involving commercial transactions between traders belonging to different cities led to
the development of the theory of statuta, whereby certain city laws would be
considered as statuta personalia "following" the person whereby it may act, and other
city laws would be considered as statuta realia, resulting in application of the law of
the city where, e.g., the res would be located (cf. lex rei sitae). 26
Where a conflict occurred between the customs in foro rei and those in foro judicii,
Bartolus availed himself of the distinction between substantive and adjective law. In the
sphere of substantive law those customs had to be determinative which were valid in the
district where the contract was concluded; in the realm of adjective law those customs which
had validity in the district in which the Court was situated. Quaero quid, si alia consuetudo in
foro rei, alia in foro rei; quae debet servari? Distingue: aut spectat ad litis ordinationem, et
servatur illa, quae est in foro judicii, aut ad litis decisionem, et tunc illa , quae est in foro
contractus vel in lolo contractus.27
.
It remains now to consider how rights based upon Customary Law were realized.
Bartolus stated concisely: Dic quod consuetudo quandoque tribuit jus agendi, quadoque jus
excipiendi. If jus agendi had been produced by a custom, there arose the question which actio
had to be taken? The answer depended on whether the custom brought about a right which
was still within an existing legal category- e.g. a new form of acquiring property or a new
form of contract- or whether the custom created a right which did not come under any of the
known legal categories. In the former case the action had to follow the category under which
the right could be classified –in the above mentioned examples: actio ex contractu, rei
vindicatio; in the latter case the action was condictio ex consuetudine. - The plaintiff had the
duty to refer to consuetudo contra legem in his plaint, quia intentio adversarii fundata est de
jure communi… et adversaries non posset esse instructus, an debeat cedere vel contendere.
When “jus excipiendi” had been produced by a custom one had to distinguish between and
exception by which the right of action was denied “ipso jure”, in which case the defendant
did not need to refer to the custom, and an exception which was to destroy the claim of the
plaintiff; this latter exception had, of course, to be proposed.28
In 1313, during the stormy controversy between Emperor Henry VII and his erstwhile
vassal, Robert of Anjou the king of Naples, Pope Clement V issued his famous bull
Pastoralis cura. Henry VII had summoned Robert to appear before him in Tuscany to answer
charges that the king had treasonously violated his feudal obligations by resisting Henry‟s
attempts to be crowned in Rome and supporting rebels in Tuscany and Lombardy against his
imperial overlord. Claiming he could act summarily in such a notorious case, Henry declared
Robert Contumacious and condemned him „in absentia‟.
In Pastoralis cura, Clement V objected to Henry‟s summons and condemnation,
arguing that Robert`s right to defend himself was a fundamental right of natural law that the
Emperor could not ignore. The pope admitted that Robert held fiefs from Henry, but he
26
Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804. pp. 454-55. 27
Walter Ullmann, Jurisprudence in the Middle Ages (London: Variorum Reprints, 1980). p. 281. 28
Ibid. pp. 281-83.
argued that the king as a vassal of the papacy residing in his own kingdom beyond the
boundaries of the empire, Henry could in no way summon Robert outside imperial
jurisdiction, especially to a dangerous place where he might suffer violence.29
In the statue of Arnolfo di Cambio Carlo d`Angio is clearly represented as a judge,
and this secular judicial function distinguishes the statue. Monarchs as judges, after the
manner of Solomon, were not unknown to mediaeval iconography. On the transept of
Strasbourg cathedral, set between the twin portals, appeared a figure of Solomon grasping his
sword. Above Solomon was a half-length relief of the blessing Christ holding an orb, and the
supporting console showed the mother whose baby‟s life his wisdom had saved, all indicating
that there the cathedral parish was used for judicial purposes. Strasbourg is not unique. At
Leon, in the central porch of the west facade of the cathedral a monarch sits jauntily on a
lion-headed throne. Beneath him, on a coronate, appears the inscription Locus Appellationis.
The monarch is clearly Solomon, and it is within this tradition that Arnolfo‟s statue is surely
to be seen.30
The iconography of the seated Angevin is commonly derived from the now
mutilated figure of Frederick II on the Capua Gate.
The French juriste, Jacobus de Ravannis, comme juriste, Jacques de Révigny fut un
critique du droit coutumier en vigueur dans les provinces du nord de la France et un tenant
du droit romain, importé à l'époque de la prestigieuse Université de Bologne. Avec Pierre de
Belleperche, il fut l'un des principaux commentateurs français du Corpus juris civilis. Son
brillant enseignement apporta un renouveau méthodologique qui fut dans l'histoire du droit
médiéval le passage de relais entre les glossateurs de Bologne et les postglossateurs
d'Orléans. Il fut oublié aux époques suivantes, ses œuvres étant imprimées au XVIe siècle
sous les noms de Pierre de Belleperche et de Bartole31
, maintained that the “princeps” could
through his plenitude of power remove the subjects` property without cause, but that he
sinned in so doing. In other words, Jacobus recorded what he saw as the reality of power, but
he was not happy about it. Likewise, the Italian jurist Cynus de Pistoia, who was much
influenced by his studies in France and by the work of Jacobus de Ravannis and Petrus de
Bellapertica, said in his commentary that the emperor could remove an individual‟s property
„without any cause in the world‟ („sine aliqua causa de mundo‟) „de facto‟ but not „de iure‟
and would sin in so doing. Albericus de Rosciate, however in his commentary on Dig.Const.
Omnem, using concepts derived from theology and juristically elaborated by canonists from
Hostiensis onwards maintained that the emperor, by his ordained power („potestas ordinata‟),
could not remove or transfer property without just cause and still avoid sin, but that by virtue
of his absolute power „potestas absoluta‟ he could remove and transfer individuals` property
without just cause; no one, other that God, could judge whether the emperor had just cause in
any case. 32
“Habertu pro causa quelibet ratio motiva ipsius principis”33
as Baldus states:
thirdly, the doctors ask whether the emperor can issue prescripts contrary to the law of
peoples. The Gloss appears to maintain that he cannot, with the result that someone`s
property cannot without cause be taken away by the emperor`s prescript, although it certainly
can be with some kind of cause….; and whatever reason motivates the emperor himself is
29
Ibid. pp. 576-78. 30
Ibid. 31
http://fr.wikipedia.org/wiki/Jacques 16.5.2013, 2.52 pm. 32
Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804. pp.569-70. 33
Ibid. p. 597.
considered cause enough. It is otherwise with a statute of the people, because this should not
contain such motivation as its cause, but rather a cause which is credible and suitable,
otherwise it is not valid.34
“Even kings now assembled a group of individuals, special advisers, commonly
jurists, or at any event individuals educated in the law, to whom matters of justice could be
entrusted. They were quite separate from the king‟s closest councilors, who remained
responsible for on-going political and administrative affairs. This was yet another aspect of
the triumph of the ius commune, in that individual governments were made aware that the
prince governed through his consistorium.”35
For the jurists of the twelfth century, the trial had its origin in the Garden of Eden,
when God asked Adam the reason for his behavior; Adam objected that it was the woman,
created by God, who had made him fall into temptation. This biblical model served the jurists
by extolling the trial as an indispensable means for treating human conflicts in the rational
manner and for permitting the unfolding of civil life. The trial in Eden had, in fact, a
dialectical and not only a punitive nature. It was a confrontation, not a sentence. Adam, as the
jurist say, “objected”, which means that he presented some excuses, attempted a defense, and
implicitly imputed to God part of the guild. He had placed the woman at Adam‟s side. This
“dialectical” structure of the procedural confrontation was enriched with Roman law
material in the first works on procedure, which began to circulate between the twelfth and
thirteenth centuries. In these texts of practice, called ordines iudiciarii, one sought to
elaborate not only a sequence of procedural acts that the parties had to execute in the course
of the trial, but also a model of knowledge-which things and with which means they could be
known- and implicitly, a model of truth: what was the “truth” and how it could be reached. In
its theoretical form, in fact, the trial expresses the criteria of veracity that a society believes
useful and legitimate.”In the medieval culture knowledge of the fact has becomes
problematic with the beginning of the twelfth century, after the rediscovery of the Roman
law36
and the eruption of the Roman libri legales, understood as authoritative texts,
represents a profound breakthrough.
Iurisdictio and Iudicatio, both classical Roman law concepts must be distinguished as
follows: Iurisdictio (ius dicere) means within the sphere of the ordinary civil procedure the
authority to decide whether a plaintiff in an individual case should be permitted to pursue his
claim before a judge. Iudicatio (iudicare) means the authority to pronounce judgment.37
However iurisdictio and iudicatio were seldom combined in one, usually iurisdictio was
entrusted to a magistrate (particularly the praetor) and the iudicatio to a private person or
several private persons. Both magistrate and iudex are regarded as representatives of common
sense; they need not necessarily have a full knowledge of the law but are expected to act in
close contact with professional lawyers. The terminology iurisdictio- iudicatio is somewhat
artificial, since the natural sense of ius dicere comprehends any statement on law, including
judgment. In ancient times, however, the praetor was called iudex and acted as a judge;
iurisdictio was then the proper term to designate his function and the customary term was
preserved in later times in spite of the division of powers between magistrate and judge.
34
(Monumenta Iuris Canonici, 2001). p. 597. 35
Mario Ascheri, The Laws of Late Medieval Italy (1000-1500) (Boston: Leiden, 2013). p. 334. 36
It sets forth the need to elaborate interpretive canons of reality, and opposed to the early middle ages it is characterized by an overbearing factuality of the law, involving a primitivism of juridical forms very close to the reality of things, almost naturalistic. (Vallerani, 2012) p. 74. 37
Fritz Schulz, Classical Roman Law (Oxford: Clarendon Press, 1951). p. 13.
Thus classical civil procedure begins with proceedings before a magistrate
(proceedings in iure). If the magistrate declines to establish a iudicium (denegare iudicium),
the plaintiff`s case is dismissed. The plaintiff may apply to the Emperor, who will perhaps
instruct the magistrate to grant a iudicium; or he may wait for the end of the praetor`s year of
office and apply to the next praetor. If, on the other hand, the praetor grants an iudicium
(dare iudicium), the procedure in iure is closed. This stage is marked by the calling up to
witnesses (litis contestatio). The term litis contestatio is also used to designate the end of the
proceeding in iure and even this proceeding as a whole. At the close of the proceedings in
iure the second phase of the civil procedure begins, namely the iudicium or proceedings apud
iudicem. At this point eventually judgment pronounced, viz. either the plaintiff is dismissed
or the defendant condemned. In civil unlike criminal procedure it is not permissible to
pronounce non liquet. Appeal from judgment is not permitted.
The jurisdictional magistrate within the limits of the City of Rome is the praetor
urbanus if both parties are Roman citizens; if one or both are non-Roman the praetor inter
peregrinos or cives et peregrinos (abbreviated to praetor pregrinus). For certain actions the
aediles curules are competent. In the municipia, municipal magistrates have a limited
jurisdiction. In the provinces the governors are the jurisdictional magistrates, while in the
senatorial provinces the jurisdiction of the aediles is exercised by quaestores. As a rule
iudicatio is entrusted to a single private person chosen by both parties and authorized by the
magistrate. This judge is called iudex. Sometimes he is called arbiter. This is the ordinary
procedure. The change in nature and in certain cases of content is shown “in the difficulty
encountered by numerous jurists in tracing a clear-cut distinction between a “question of
fact” and a “question of law”, a classical pause for doctrinal reflections on the
epistemological basis of the law. The differences appear to be clear: the quaestio facti
concerns the ascertainment of the existence of a fact and comes very close to being a process
of proof of a judicial type, while the quaestio nominis and the quaestio iuris concerns the
definition in juridical terms of the law to be applied to the fact”38
.
The accusatory system is called “triadic” because it requires the presence of three
distinct subjects –actor, culprit, and judge- with a division of tasks rigidly regulated by an
ordo iudicii that assigns diverse roles to the aforementioned subjects. There are three distinct
logical-procedural moments, in order, the definition of the fact, its dialectical reconstruction
according to an argumentative logic, and finally it‟s verification in the witness seat according
to a probatory logic. The first, in the libellus at the beginning of the process, concerns the
selection of the action to be claimed; the second, in the positiones , contains the
reconstruction of the fact presented by the parties in the form of a dialogue; the third, in the
intentiones, collects articles that the parties want to demonstrate and from which the
questions to be asked of the witnesses are formulated.39
The fama of which Gandino speaks is in the first place a system of recognition of the
person as being human. Secondly, the formulation taken up in the Digest: “fama is a status of
unsullied dignty, confirmed by customs and laws”( fama est inlese dignitatis status, moribus
ac legibus comprobatus), where status dignitatis does not indicate some public honor, but the
dignity given to man from his nature in order to differentiate him from other living beings.
Fama then becomes a sign of integration and of belonging to a political and territorial
community: “he who governs himself with good customs acquires good fama and is
38
Fritz Schulz, Classical Roman Law (Oxford: Clarendon Press, 1951).. pp. 74-77. 39
Ibid. pp. 82-84.
recognized to be placable and beloved by his city” (qui bonis moribus se gubernat, bonam
famam acquirit et dignoscitur esse sue civitati placabilis et dilectus).
The person who conducts himself well in his community becomes dilectus civitati : an
interesting expression that alludes both to the good fama that the city recognizes in its subject
and to the help that, in case of need, it is disposed to offer him. And help means witness in his
favor, guarantors and guarantees of his behavior before judges, who , in general being
foreigners, do not have any other means of evaluating a person charged with a serious crime.
The inverse case, of persons marked by bad fama, confirms this: despised by the city, they
cannot expect any help from it. A model of an integrated society is configured that evaluates
the behavior of individuals, determines their fama and the merits accumulated with respect to
the collectivity, and acts accordingly.
In sum, one arrives at the formalization of a category of judicial marginals: persons
who are socially singled out by a condition of isolation and perhaps of contrast with the
established community-because they have committed “an injury against the customs of the
city”(iniuria contra mores civitatis) and find themselves isolated and cast out from the city,
“since he seeks the help of the city in vain, who commits a deed against it”(quia frusta iuris
civitatis implorand auxillium, qui contra illud commisit)- deprived of every procedural
guarantee and subjected to a presumption of guilt (semel malus semper praesumitur esse
malus) that by itself constitutes a semiplena proof to proceed to torture. The presumption is
more “probable” and therefore closer to the truth.40
The consillium reaffirms a great trend of Roman law, that no one can be forced to
present an accusation against his will. It is a theme repeatedly confronted in his Tractatus by
Alberto Gandino, who saw precisely in the forcing of the accusation the key to establishing a
new inquisitorial judicial system. In this case it was denied by the two Bolognese jurists and
perhaps not wrongfully. No commune, save for exceptions and limited strict rules over time,
conferred on judges the authority to “force” accusations: one could proceed even without and
accusation in the cases indicated by the statute, but the Roman rule to non compellere the
accuser remains, however, standing, as states the Bolognese statute itself that the jurist-
consultants cite after due consideration. In the second place, when the consilia are examined,
the discourse of the prevailing doctrine is not of great value; at that moment that which
dominates is precisely the consilium itself and the force with which it is recognized in the
judicial system.41
4 Conclusions:
My research concerning the enforceability of contracts focused on bringing arguments
in the favor of the assumption that indeed the Middle Ages were a law-centered period, and
that the idea of Imperial Roman public administration wholly absent in the medieval society
of the thirteenth and fourteenth centuries is partially true. The glossators and the
commentators of Roman law did allot to break down the formalism of Roman contract law.
Bartolus and most of all Baldus de Ubaldis tried to narrow the gap between the canon and
Roman law of contract. The “State” as a political entity did not yet exist; what existed, in
practice, was a number of self-sufficient municipalities, although in theory the bearer of all
plenitude of power was the emperor as the „dominus mundi‟. The difference between canon
law and Roman law concerned thus foremost the original point of departure of the system of
40
Massimo Vallerani, Medieval Public Justice, trans. by Sarah Rubin Blanshei (Washington: The Catholic University of America Press, 2012). pp. 110-12. 41
Ibid. p. 173.
contract law, but the gap has been almost closed by the end of the Middle-Ages.
Nevertheless, the theoretical difference would continue to be recognized and even stressed by
early modern doctrine.
References:
Mario Ascheri, The Laws of Late Medieval Italy (1000-1500) (Boston: Leiden, 2013).
Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959).
Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the
Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio
Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804.
Robert L. Benson, The bishop Elect, A Study in Medieval Ecclesiastical Office, (Princeton,
New Jersey: Princeton University Press, 1998).
Gabriel Le Bras, Histoire du Droit et des Institutions de l`Eglise en Occident (Paris: Sirey,
1965), VII.
Fritz Schulz, Classical Roman Law (Oxford: Clarendon Press, 1951).
The cambridge History of Later Medieval Philosophy ([n.p]: Press Syndicate of the
University of Cambridge, 1982).
Walter Ullmann, Jurisprudence in the Middle Ages (London: Variorum Reprints, 1980).
Walter Ullmann, The Papacy and Political Ideas in the Middle Ages (London: Variorum
Reprints, 1976).
Massimo Vallerani, Medieval Public Justice, trans. by Sarah Rubin Blanshei (Washington:
The Catholic University of America Press, 2012).
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