Appunti esame History of Western Legal Tradition

MEDIEVAL LAW in THREE ‘PHASES’: From Petrus / Irnerius to about 1260 (until and his FIRST PHASE: GLOSSATORS ACCURSIO or )

Accursio (c. 1182 – 1263) was a pupil of Azzone and he had great success in Bologna as a teacher. He undertook to arrange into one corpus the tens of thousands of comments and remarks (Glossas) upon the Code, the Institutes and Digests. Accursius assembled from the various earlier glosses for each of these texts a coherent Glossa Ordinaria, and consistent body of glosses. This compilation, soon given the title and usually known as the Great Gloss, was essentially complete at about 1230 and gave him notoriety and richness.

Glossa Ordinaria constitutes an ordinary comment to the Roman Legal Texts and contains nearly 100,000 glosses. After Accursio, students and scholars started to make reference to the Gloss compiled by Accursio. It represented a sort of guide to students, practitioners and so on. It became

emendatio, etc.). Cynus was influenced by this approach and incorporated it into his own work. Cynus is known for his commentary on the Digestum Vetus, a collection of Roman legal texts. His commentary, titled "Commentaria in Digestum Vetus," was highly regarded and widely studied. In it, he analyzed and explained the various legal concepts and principles found in the Digestum Vetus. Cynus's commentary was characterized by its systematic and logical approach. He organized the material in a clear and structured manner, making it easier for readers to understand and navigate. He also provided extensive references to other legal sources, such as the Corpus Juris Civilis, to support his arguments and interpretations. Cynus's work marked a shift from the glossators' focus on interpreting and explaining existing legal texts to a more analytical and critical approach. He emphasized the importance of understanding the underlying principles and reasoning behind the laws, rather than simply memorizing and applying them. Cynus's commentary on the Digestum Vetus had a significant impact on legal scholarship and education. It became a standard reference for law students and practitioners, and its influence can still be seen in modern legal systems. In conclusion, Cynus of Pistoia was a prominent jurist and commentator who contributed to the development of legal scholarship in the 13th and 14th centuries. His systematic and analytical approach to legal texts paved the way for future commentators and shaped the way legal principles are studied and understood.SASSOFERRATO (1313/14-1357) was one of the most influential jurists of the third phase of legal scholarship in Europe. He was known for his extensive commentaries on Roman law and his innovative approach to legal interpretation. During this period, the study of Greek philosophers, particularly Aristotle, gained prominence. Scholars recognized the value of Aristotle's works on logic and dialectic as tools for improving their understanding of the law. Two notable jurists of this time were JACQUES DE REVIGNY (1296) and PIERRE DE BELLEPERCHE (1308). Unlike the "glossators" who focused on providing glosses to Roman texts, these jurists went beyond mere glosses and introduced new methodologies. It is believed that Cynus, a student of Pierre de Belleperche, was influenced by his teachings in Bologna. When Cynus later taught in Perugia, he introduced a new phase of legal scholarship that moved away from the traditional glossator approach. This third phase, known as the era of the commentators (1300-1500), saw the rise of jurists like Bartolus of Sassoferrato. Bartolus was known for his extensive commentaries on Roman law and his contributions to legal interpretation. Overall, this period marked a shift in legal scholarship, with scholars embracing new methodologies and approaches to studying the law.

Sassoferrato has been the most famous jurist for many centuries. He became the paradigm of legal jurist.

Born in the village of Venatura, near Sassoferrato (AN, the Marches), studied law at the University of Perugia following Cynus of Pistoia. In 1333 he became baccalarius in "legendi docendi et doctorandi Bononiae et Bologna and in 1334 doctor iuris, taking ubique de caetero plenam licentiam et liberam facultatem". He was judge and lawyer and he started teaching first in Pisa, and then in Perugia from 1343 onward.

Despite his short life, Bartolus left an extraordinary number of works. He wrote Corpus Juris Civilis commentaries on all parts of the (except Justinian's Institutes). He is also the author of a large number of treatises on specific subjects. De fluminibus seu Among these treatises is his famous book on the law relating to rivers (Tyberiadis). De regimine civitatis, De But also on the forms of government of civitas, the guelphis et ghibellinis, on the division into

Factions of the civic political body and its direct influence on the institutional life of the Municipalities, the ban on ownership of civil and political rights based on the dialectic inclusion-exclusion with respect to civitas), the forms of tyranny (understood as usurpation, without valid title, of public powers by private individuals or as exceeding the limits prescribed for legitimate exercise of the powers due to the magistrates).

Treatises used to comment on legal text, but in a very free way, if we compare it to the methodology adopted by glossators.

At that time, jurists were involved in political, social and economic issues. It can be deduced from these works.

As a matter of fact, Bartolus has been defined as one of the most important 14th century political thinkers.

A connection between law and politics therefore started to arise.

There are also almost 400 legal opinions (consilia) written at the request of judges or private parties seeking legal.

Advice. Already famous in his own lifetime, Bartolus was later regarded as the greatest jurist since the renaissance of Roman law. "Nemo bonus iurista nisi bartolista" - no one is a good jurist unless he is a Bartolist (i.e. a follower of Bartolus).

BALDO DEGLI UBALDI (1327-1400). A member of the noble family of the Ubaldi (Baldeschi), Baldus was born at Perugia in 1327, and studied civil law there under Bartolus de Saxoferrato, being admitted to the degree of doctor of civil law at the early age of seventeen.

On his promotion to the doctorate he went to Bologna, where he taught law for three years, after which he was promoted to a professorship at Perugia, where he remained for thirty-three years. Most of his academic career was in Perugia.

He subsequently taught law at Pisa, Florence, Padua and Pavia, the rivals to Bologna. In Pavia he became one of the scholars related to the duke of the Milan court. During his period at Pavia he sometimes also taught at Piacenza. He

Died at Pavia on 28 April 1400. He was an important civilian, an expert of Roman Law. However, he was close to the canon law tradition. He was the master of Pierre Roger de Beaufort, who became pope under the title of Gregory XI, and whose immediate successor, Urban VI, summoned Baldus to Rome to assist him in the course of his consultations in 1380 against the anti-pope Clement VII.

Baldus was a civil lawyer and a canonist. He was IN UTROQUE IURE. This tendency started to spread and many students began to study both canon and civil law.

According to Charles Dumoulin, Baldus was the most philosophical of all the jurists. He used several kinds of sources (Roman law, canon law, feudal law, Aristotle, etc.). He was a multi-tasking jurist. He became an expert of feudal law too. Indeed, in Milan, the feudal law heritage was still deeply-rooted.

Conclusion. What is ius commune?

A chronological dimension:

1. a synonym of medieval law (XI-XIV c.)

A complex system of knowledge, legal wisdom, a kind of organization.

and2)interpretation of law University-based, linked to reason (first of all present in JustinianRoman Law and Canon Law).As medieval men, jurists studied Roman Law, adopting a new mentality. They lived in acontext which was different from that in which Roman Law was developed. Theyelaborated a new methodology.A new juridical method with a «universal» vocation, common to different places, societiesand times. experience was deeply inspired by Roman Law, but with a different scope,IUS COMMUNEmethod, intention, and solutions. ,COMMON IS THE LEGAL EXPERIENCE ELABORATED AT A UNIVERSITY LEVEL startingfrom BolognaProcess of dissemination.3) Ius commune is not against iura propria4) (feudal law, customs, royal law, citystatutes(local legislation), corporations rules, merchant law…).Iura propria is a law specific to a particular field.Jurists were the only ones to have the skills to «govern» iura propria.interpretatio iurisThey use the (method developed by ius

In the medieval legal context, there existed a pluralistic legal order composed of different legal experiences and sources. This included the ius commune and ius commune as a "general law" (lex omnium generalis). In order to govern this pluralism, jurists trained at a university level played a crucial role.

One of the tools used by these jurists was legal interpretation (interpretatio iuris). Through interpretation, jurists were able to create the law. Therefore, medieval law is a product of the interpretation made by jurists.

Ius commune served as the framework within which medieval jurists placed all the elements of the law. It provided the terms, concepts, procedures, and techniques of analysis that jurists would employ when dealing with local, feudal, canon, municipal, or royal law (iura propria).

Jurists had the ability to transform the preexisting law, but this cannot be depicted.

As a pyramid or a hierarchical order like in modern times where the constitution is at the top followed by state law and other legal sources.

Medieval legal order is more comparable to an archipelago, where islands are represented by the different sources of law. Ius constitution constitutes instead the greatest island.

Medieval jurists developed in the University methods with which to synchronize and integrate the various legal regimes (Pluralism) that coexisted in Europe and the many sources from which they had emerged.

IUS COMMUNE = PLURALISTIC, MULTI-LEVEL, HORIZONTAL, A COMMON LANGUAGE

Lesson V

COMMON LAW

Norman conquest of England, Hastings 1066

An army of Norman, Breton, Flemish and French soldiers led by Duke William II of Normandy (a vassal of the French king), later (after the conquer of Normandy) styled (duke of Normandy), William the Conqueror defeated England, which was ruled by an Anglo-Saxon King, King Harold, who was killed in the engagement.

The aim was to conquer at least a

part of England. The battle was very cruel. the Bayeux Tapestry,

Role of the cavalry: as depicted by horses played a central role in the conquering of England.

Normans are one of the branches of Vikings, who occupied Northern Europe.

They belonged to the so-called German People, sharing some features: they lived according to customs (customs of the foundation of the society), in villages, ruled by a leader with the assembly of warriors.

They were involved in riots and wars and talented sailors.

They were conquerors.

One of these leaders was Rollo. At the beginning of the 10th century, he started to settle in Northern France, nowadays known as Normandy.

This invasion occurred when those territories were under the control of the French king.