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ABBAS PANORMITANUS Niccolo` de’ Tedeschi or Tudeschi (Catania, 1386 – Palermo, 24 February 1445) – A Benedictine, he was among the most eminent canonists of his day. A disciple of Zabarella in Bologna, he taught canon law at several studia in Parma, Siena, Bologna, and Florence, and earned the epithet Lucerna iuris. In 1435 he was at the Council of Basel, among the envoys of Pope Eugene IV, to uphold the theses through which to dismantle the council, even though in the Tractatus de concilio Basiliensi, written specifically for the occasion, he argued for the doctrine of the supremacy of the council over the pope. When Eugene IV was declared deposed by the antipope Felix V, Tedeschi allied himself with the latter, who commissioned him to draft the Decretals for the application of the decrees of the Councils of Constance and Basel. At the Diet of Frankfurt, he upheld the theses of the council against Nicholas of Cusa. Lectura super I. et II. libris Decretalium, Venetiis 1473 [Vindelini (de Spira) labore].

ABBEN EZRA Abraham ben Meir ibn Ezra (Tudela, Navarra, 1092 – Calahorra (?), 23 or 28 January 1167) – A Jewish poet, grammarian, and commentator, he travelled extensively through Europe, England, North Africa, and Palestine. Of enduring importance are his commentaries on the Bible and his edition of the Hebrew Bible.

ACCURSIUS Accursio da Bagnolo (Impruneta, 1184 – Bologna, 1263) – A glossator of Floren- tine birth, he taught at the University of Bologna. He was the author of the so-called Magna Glossa, the collection of all major glosses (some 97,000 of them) issued by the School of Bologna over a century of teaching and exegesis of the Justinian texts: these glosses he organized and arranged in the margins of the legal text itself. Conceived for practical purposes, the Magna Glossa quickly became an object of study and teaching in its own right, and for centuries it remained the foundation of the European ius commune.

A. Artosi et al. (eds.), Leibniz: Logico-Philosophical Puzzles in the Law: Philosophical 151 Questions and Perplexing Cases in the Law, Law and Philosophy Library 105, DOI 10.1007/978-94-007-5192-7, © Springer Science+Business Media Dordrecht 2013 152 Bio-bibliographical Note

AFRICANUS Sextus Caecilius Africanus (second century AD) – A Roman jurist, he was active under the reigns of the Emperors Hadrian and Antoninus Pius. He was the pupil of Salvius Julianus and is considered a quite impenetrable writer.

ALBERICUS Alberico da Rosciate (Rosciate, 1290 – Bergamo, 14 September 1354) – An Italian jurist who, upon graduating from the University of Padua, contributed to the writing of the statutes of Bergamo and stayed in close contact with the Visconti family. He served three times as ambassador in Avignon, pleading with Pope Benedict XII to revoke the interdiction issued in 1329 against Bergamo, which had sided with the antipope Nicholas V. With his Dictionarium iuris tam civilis quam canonici,in which he collected the legal terminology of the day, both civil and canonical, he essentially followed the path of Dynus da Mugello, whom Leibniz not incidentally mentioned along with Alberico. Commentaria argutissima ... super secunda parte infortiati cum summariis & numeris ante leges recenter in melius repositis necnon repertorio alphabetico ... Lugduni 1534 [excu. typis Nicolai Petit & Hectoris Penet].

ALCIATUS Andrea Alciato (Milan, 8 May 1492 – Pavia, 12 January 1550) – An Italian jurist and humanist, he was among the fathers of the so-called umanesimo giuridico (legal humanism), which – on the basis of a new historicist and philological understanding enriched by a knowledge of ancient Greek and aiming at a new classicism – sharply criticized the traditional methods of inquiry used by the jurists of the Bartolist school (its adherents the followers of Bartolus de Saxoferrato). The new method took root especially in France, coming to be known as the mos gallicus, as opposed to the mos italicus, which followed the usual way of Bartolism and the communis opinio. [1] De verborum significatione libri quattuor. Eiusdem, in tractatum eius argumenti ueterum iureconsultorum, commentaria, Lugduni 1530 [Sebastianus Gryphius Germanus excudebat]. – This book, considered Alciato’s masterwork, derives from the course he taught in Avignon (1521) and then in Bourges, and it consists in an exposition of rules of legal interpretation. [2] Commentarius in titulum juris canonici de officio ordinarii,inOpera omnia, Basileae 1558 [ex Officina Isingriniana]. [3] Parergon juris libri tres, Basileae 1538 [Hervagius].

ALEXANDER AB ALEXANDRO Alessandro d’Alessandro (Naples, 1461 – Rome, 1523) – An Italian jurist and humanist, he was an expert in ancient Roman law and studied the law of the Twelve Tables, conducting research which he published in his Dies Geniales. This work was translated into various languages by eminent European jurists. Genialium dierum libri sex, varia ac recondita eruditione referti, Lutetiae Parisiorum 1532 [apud Ioannem Petrum yub insigni D. Barbaræ]. Bio-bibliographical Note 153

ALPHENUS Publius Alphenus Varo (Cremona, first century BC) – A Roman jurist, he studied under Servius Sulpicius Rufus and wrote the essential Digesta, in forty books. This work, specifically devoted to the ius civile, was a major source for the compilers of Justinian’s Digest.

ALTHUSIUS Johannes Althusius (Diedenshausen, ca. 1563 – Emden, 12 August 1638) – German jurist, philosopher, and theologian of Calvinist lineage. His Politica Methodice Digesta (1603), a revolutionary work even for its method – no longer the classic dialectical method but a dogmatic one – is considered as having laid the foundation for modern public law. Althusius was an antiabsolutist and held that the sovereign could not arbitrarily change the law, since in order for a law to be considered such, it must have in it some moral content and thus be grounded to some extent in natural law. If a statute was contrary to natural law, its moral content would legitimize the resistance of those subject to it. Dicælogicæ Libri 3 totum et universum Jus quo utimur, methodice complectentes; cum parallelis hujus et Judaici Juris, Herbornae Nassoviorum 1617 [apud Christophanum Corvinum].

ALTSTEDIUS Johann Heinrich Alsted (Mittenaar, March 1588–9 November 1638) – A German Protestant philosopher and theologian, he was for some time professor of philoso- phy and theology at Herborn, in Nassau, and afterward at Weissenburg (present-day Alba Iulia) in Transylvania, where he remained until his death in 1638. [1] Theologia naturalis, exhibens augustissimam naturae Scholam in qua creaturae Dei communi sermone ad omnes pariter docendos utuntur...Duobus libris pertrastata, (S.l.) 1623 [Apud H. Hymnium] [2] Logica theologica ostendens modum argumentandi in ss. theologiaˆ, tum in genere, tum in specie per singulos locos communes, Francoforti 1625 [typis Pauli Jacobi, sumptibus Conradi Eifridi].

ANDREAE Johann Valentin Andrea¨ (Herrenberg, 17 August 1586 – Stuttgart, 27 June 1654) – A German theologian traditionally associated with the Rosicrucians, he especially occupied himself with the reform of the schools and social institutions in the places where he held office. He became a court preacher and Konsistorialrat (concistorian counsellor) in Stuttgart. Mythologiae Christianae sive Virtutum & vitiorum vitae humanae imaginum. Libri Tres, Argentorati 1619 [Zetznerus].

ANGELUS DE PERUSIO Angelo degli Ubaldi (Perugia, 1328–1407?) – An Italian jurist, brother of Baldus, he was a professor of civil law in Perugia, Siena, Padua, and Bologna (where he taught the Digestum novum and the Infortiatum), and he also may have taught canon law in Ferrara. 154 Bio-bibliographical Note

Lectura autenticorum ... additionibus novis cincta, cum summarijs hactenus non impressis & numerorum distinctione ...& una cum nova castigatione omnium errorum in alijs impressionibus non correctorum, & oculis lynceis reuisorum ... Lugduni 1536 [Excudebatur per Ioan. Moylin alias de Chambray].

ANONIMUS Evrart de Tre´maugon (13..–1386) – A doctor in utroque iure, he taught in Paris from 1369 to 1373. He was conseiller et maıˆtre des requeˆtes de l’Hoˆtel du roi (1374–1382) and then Bishop of Dol (17 October 1382–1386). Tractatus de utraque potestate seculari et ecclesiastica, qui Somnium Viridarii ab authore ipso est inscriptus. See Specimen, note b to Question VII.

ANTONIUS CLARUS SYLVIUS Antoine Leclerc de la Forest (also known as Antonius Clarus Sylvius; Auxerre, 23 September 1553 – Paris, 23 January 1628) – A French scholar and theologian, formerly a Calvinist, he abjured in 1595 to enter the service of Queen Marguerite of Valois, after a period of military service under the king of Navarre. He was well- known for his eloquence, and upon pleading in Parliament on the duties of the magistrate, he was immediately offered a professorship in law. Commentarius ad leges tam regias, quam XII. Tabularum mores, et canones romani iuris antiqui. In quo explicantur eorum auctores, et tempora, causae et rationes, quae ad arcana paganae theologiae mysteria pertinent, & ad alias partes iuris, tam publici quam priuati, inde resultantes. ... Consecratus ex voto viro amplissimo Iacobo Gueslaeo ... Additi sunt ab auctore duo indices ..., Parisiis 1603 [Apud Marcum Orry ...].

APULEIUS Lucius Apuleius (Madaura, AD 125 – ca. AD 170) – A Roman writer, philosopher, rhetorician, magician, and alchemist of Platonic lineage, he studied in Carthage and Athens and was concerned himself with Esculapian and Eleusinian mysteries. He also practiced law in Rome. Florǐda, Argentorati 1516 [Schu¨rer] – A work of rhetoric in four books in which the author collected 23 excerpts of epideictic declamations and speeches delivered during his pilgrimages, with special emphasis on the formal aspects.

ARETINUS Francesco Accolti (Arezzo, 1416/17 – Siena, early May 1488) – An Italian jurist, he was professor of civil law in Ferrara and Siena, and then again in Ferrara, where he taught both civil and canon law. His fame was such that the duke Borso d’Este appointed him to his service as privy counsellor with the authorization to intervene in the court’s council at will, with the other counsellors being bound to conform to his advice in perplexing cases. He was a highly regarded writer of consilia:asa student of civil law he especially concerned himself with the Digest; as a canonist, with the Decretals. Super prima [et] secunda Inforciati cum apostillis noviter editis [cu[m] q[uam] plurimis apostillis [et] additionibus. d. Nicolai superantij militis Hierosolymitani. [et]. d. Benedicti vadi ...], Venetii 1506 [Pincius]. Bio-bibliographical Note 155

ARITHMAEUS Valentin Arithmaeus (Liegnitz in Schlesien, 1560 or 1587–1620) – A German jurist, he taught poetry in Frankfurt on the Oder and was also a chronicler. As a jurist he especially concerned himself with feudal law.

ARNISAEUS Henning Arnisaeus (Arniseus) (1570–1636) – German physician and moral philos- opher. His work mentioned by Leibniz is thought to be the Doctrina politica, in Genuinam methodum, quae est Aristotelis, reducta, et ex probatissimis quibusque philosophis, oratoribus, iurisconsultis, historicis &c. breviter comportata, & explicata (Francoforti 1606) [Busche (1997: 94) refers to the Amsterdam 1643 edition, probably the one Leibniz used].

ASINIUS Giovanni Battista Asinio (degli Asini; Florence, second half of the sixteenth century) – Professor of Justinian’s Institutes in Bologna, Padua, Florence, and Pisa. His works were highly regarded for their wealth of the information and their display of erudition. Noteworthy today is his critical attitude toward the medieval glossators and commentators. Commentarii in Titulum Digestorum de religiosis et sumptibus funerum, Florentiae 1562 [apud Laurentium Torrentinum].

AUGUSTUS August I von Sachsen (Freiberg, 31 July 1526 – Dresden, 11 February 1586) – Prince-elector of Saxony. Of the Albertine branch of the Wettings House, he pursued in politics an alliance with the Habsburgs and pushed for a pax religiosa, including through a careful politics of marriage. Des Durchlauchtigsten Hochgeborne[n] Fu¨rsten und Herrn, Herrn Augusten, Hertzogen zu Sachsen, ... Verordenungen und Constitutionen des Rechtlichen Proces auch waser massen etzlicher zweiffelhafftiger und streitiger fell halben durch die bestalte und geordnete Hoffgerichte, ...zu recht erkand und gesprochen werdel sol, Dreßden 1572 [Sto¨ckel]. AULUS GELLIUS (Rome, ca. AD 125–166) – Roman jurist and writer. Noctium Acticarum libri XX.

BACHOVIUS Reiner (Reinhardt) Bachoff von Echt (Leipzig, 1575 – Heidelberg, 1640) – A German jurist highly regarded for his expertise in civil law, he first taught practical philosophy at Heidelberg, where he stayed even when the university, where he also served as rector, was shut down for religious reasons. He was Catholic and reluc- tantly converted to Lutheranism when the town was taken by the Swedish. He is also known for his heated discussions with his main rival, Helfricus Ulricus Hunnius. Notae et animadversiones ad disputationes Hieronymi Treutleri ICti quibus omnia a` Treutlero proposita, & pro ipso & adversus ipsum, ex interpretum anti- quorum præcipue opinionibus, tu` m ex veris iurisprudentiæ principiis evolvuntur & explicantur. Autore Reinhardo Bachovio Echtio ... Volumen prius [–posterius]. Adiectus est rerum notabilium & LL. illustratarum index, Heidelbergae 1617 [typis Iohannis Lancelloti, acad. typogr.]. 156 Bio-bibliographical Note

BALDUINUS Franc¸ois Baudoin (Arras, 1520–1573) – French humanist jurist and historian. After graduating in Louvain, he began a career as a lawyer in his native Arras, from where he was expelled under a charge of heresy. Known for his polemical attitude, he abandoned Calvinism after meeting Calvin, of whom he became a bitter enemy. He was famously in rivalry with his colleague Douaren, for which reason he moved to Heidelberg and taught there. As a jurist, he is especially remembered for having established palingenesis as a method for presenting legal sources. Commentarii in IV libros Institutionum Juris Civilis, Parisiis 1554 [J. Dupuys].

BALDUS Baldo degli Ubaldi (1327–1400) – An Italian Jurist from Perugia, he was the best disciple of Bartolus de Saxoferrato, following in the latter’s footsteps in building an encyclopedic culture, though he developed a greater interest in philosophy (in the mould of the earliest jurists of the Bologna school). For this reason, he is reckoned among the so-called prehumanists. [1] Commentaria in secundam partem Digesti Veteris, Venetiis 1572 [apud Iuntas] [2] Commentaria super Codicem, Lugduni 1519 [Impressa per magistrum Iacobum Saccon] [3] Opus aureum utriusque iuris luminis domini Baldi de perusia super feudis: cum additionibus doctissimi domini Andree Barbacie et aliorum ..., Lugduni 1522 [in officina Jacobi myt fidelissimi calcographi] [4] Consiliorum, sive responsorum volumen primum-quintum. Hac novissima editione recognitum, pluribusque in locis accuratissime castigatum, cum quaestionibus, summariis et indice locupletissimo, Venetiis 1575–1576 [apud Hieronymun Polum]

BARTOLUS Bartolo da Sassoferrato (1314–1357) – The most celebrated Italian jurist and the highest representative of the school of the Commentators (between the thirteenth and fourteenth centuries). He was a lodestar for many generations of jurists, who for that reason came to be known as Bartolists (though not always in praise, given their scarce originality). His interests practically ranged across the whole field of law, though with a slight propensity for philosophy. [1] Commentaria in secundam partem Digesti Veteris; [2] Commentaria in secundam partem Digesti Infortiati; [3] Commentaria in secundam partem Codicis; [4] Tractatus de insula. All these works were published in a definitive form in Bartoli a` Saxoferrato Consilia, quaestiones, & tractatus. Insunt huic Bar. a Saxoferra. volumini consilia, quaestiones, & tractatus, opera Alexandri Losaei Aviliani iuriscons. nunc primu`m adamussim castigata, mendisq[ue] omnibus purgata, Lugduni 1538 [per Georgium Regnault]. Bio-bibliographical Note 157

BASSO/BASSONUS Se´bastien Basson (second half of the sixteenth century/early seventeenth century) – A French physician and philosopher, he was anti-Aristotelian but with animistic strands. [1] Philosophiae naturalis adversus Aristotelem Libri XII. in quibus abstrusa veterum physiologia restauratur et Aristotelis errores solidis rationibus refelluntur, Aurelianae 1621 [apud P. de La Rovie`re]. – Article 2, mentioned by Leibniz, is entitled Quo varia hac de re ponuntur Peripateticorum sententia; [2] De forma libri tres. Cf. (1), Books 3–5.

BERLICHIUS Matthias Berlich (1586–1638) – A German jurist, he was professor at Leipzig and a lawyer, and was among the first to devote any commentary to Saxon electoral constitutions. Conclusiones practicabiles, secundum Divi Augusti Constitutiones Saxonicas, Lipsiae 1618–1620. Leibniz probably quotes from the 4th edition, Arnhemii 1644 [Biesius].

BEROJUS Agostino Bero` (Bologna, 1474–1554) – An Italian canonist, he was among the last decretists (interpreters of Gratian’s Decretum). He taught at Bologna and achieved great fame (and was also known as Monarcha legume, King of laws), though historiography has cut his role down to size. In fact, Bero`’s works do not much rise above the mediocrity into which the science of the canons had fallen during the sixteenth century. In primam partem libri 1. [–librum quintum] Decretalium Commentarij. Hac postrema editione non absque solerti labore repurgati. ... Cum indice omnium materiarum locupletissimo, Venetiis 1578–1580 [apud Dominicum Nicolinum] – Leibniz cites/quotes the second part of book II, De probationibus.

BESOLDUS Christoph Besold (Tubingen, 22 September 1577 – Ingolstadt, 15 September 1638) – A German jurist and a friend of Kepler, whose mother he defended from the charge of sorcery. He was professor at Tubingen, where his advice on legal matters was often sought by the civil administration. He was an influential theorist of federalism and among the first to doctrinally concern himself with public finance. Delibata juris, continentia congeriem, succinctamque resolutionem praecipuarum quaestionum quae in X. prioribus Pandectarum Libris occurrunt: quarum Elenchus ad finem est subjunctus, Tubingae 1627–1632 [Typis Philiberti Brunnii ...].

BEUTHERUS Johann Michael Beuther (Strasbourg, 14 April 1566–1618) – Alsatian jurist. After graduating in utroque iure at Basel, he was a lawyer in Hagenau and a professor of Pandects at Strasbourg. In his work he mainly devoted himself to studying the possible concordances between Roman and Saxon law. Consultationum sive Responsorum de iure praelationis seu prioritatis inter plures concurrentes creditores, libri duo. Das ist, außfu¨hrliche Fundamenta und 158 Bio-bibliographical Note

Erkla¨runge von dem Praelation-oder Vorzug-Rechten ... Alles auß den gemeinen Rechten, sonderbaren statuten ... und jetzo mit vielen newen capitibus, auch sonsten hin und wider vermehret ..., Argentorati 1615 [apud Carolum].

BODENSTEINIUS Liborius von Bodenstein, nom de plume of Wawrzyniec Goslicki (1535–1607) – Saxon jurist. Jurisprudentia politica, Basilaee 1608, Francoforti 1611 (cf. Busche 1997: 94).

BOECLERUS Johan Henrik Boecler (Franken, 1611 – Strasbourg, 1672) – A German historian and imperial counsellor, he was active in Sweden at the court of Queen Christine. He earned a bad reputation for his arrogance, which made him everywhere unpop- ular among students. Dissertationes quinque ad commentationem grotianam appendicis loco adiungendae, Argentorati 1663 [Paullus].

BONIFACIUS Benedetto Caetani, Pope Boniface VIII (Anagni, ca. 1230 – Rome, 11 October 1303) – He graduated at Bologna and was an expert in canon law. Suspected of simony by Dante Alighieri, he was the strongest supporter of the pope’s theocratical power, which put him in contrast with King Philip IV of France (who gained the upper hand). On top of this controversy came the hostility shown within the Curia by the faction of the Colonnas, and his despotic attitude also ignited the hostility of the Franciscans (Jacopone da Todi called him “the new Antichrist”). Still, he was among the ecclesiastic lawgivers who made the greatest contribution to the con- struction of what was to become the Corpus Iuris Canonici. Liber Sextus Decretalium, 1298.

BRUNERUS A SOLE Brunoro da Sole (fl. 1596) – Italian jurist from Veneto. Loci communes Juris Caesarei, Pontificij et Saxonici aucti etc., Lipsiae [Grosius] – Jena [Steinmann] 1607.

BRUNNERUS Georg Adam Brunner (Schweinfurt, 8 April 1580 – Halle an der Saale, 12 August 1652) – German jurist. Synopsis locorum legalium Everhardi... Primum edita & locis adaucta studio Georgadami Brunneri U.I.D., Magdeburgi 1606 [Kirchnerii].

BUDAEUS Guillaume Bude´ (1468–1540) – “Self-educated humanist, a majorHellenist, inspiredby an encyclopedic ideal of science, a towering figure in French cultism, Bude´ was Louis XII’s librarian and served as maıˆtre de requeˆte under Francis I” (Birocchi 2002: 12). Although not properly a jurist, he – along with Zasius and Alciato – was among the first to apply the humanistic method (see ALCIATUS,above)tothelaw. De asse et partibus eius libri quinq[ue], Parisiis 1532 [Venudatur in aedibus Ascensianis]. Bio-bibliographical Note 159

BUTRIGARIUS Jacopo Bottrigari (Butrigario) (Bologna, ca. 1274 – 9 April 1348) – Italian jurist. He appears in the Bologna notarial roll of 1293, and as doctor iuris only in 1309. In 1321 he was one of the four doctors tasked with reorganizing the Bologna studium. In 1338 he was part of the embassy sent to Avignon to come to an agreement with Pope Benedict XII, after the arrogant papal vicar Bertrando Dal Poggetto was expelled from Bologna. Butrigarius’s “commentaries on the Corpus iuris often supplement the exegetical work of the [ Magna ] Glossa, emphasizing and specifying only some details. But when the norm to be interpreted allows it, the jurist’s discussion broadens its scope, paving the way for the more-comprehensive commentaries on the Justinianean texts by subsequent scholars” (A. Campitelli Tognoni, Dizionario Biografico degli Italiani, vol. 13, Istituto dell’Enciclopedia Italiana, 1971, s.v. “Bottrigari”). Iacobus Butrigarij iuris utriusque profunditates & apices ... super codice hanc subtilissimam edidit lecturam in qua subiecta comperiuntur peculiaris admodum Tabella titulorum omnium in hac copiosissima lectura repositorum, Apostille seu additiones summe utiles ab eximio I.V. professore domino Petro de Vergnia compilate, Repertorium artificiosa serie dispositum, perutiles questiones decisionesque quoti- dianas complectens additur, uberrime Iuris civilis renunciationes in contractibus multotiens occurrentes in fine huius operis inseruntur ab eodem domino Iacobo Butrigarij Bononiensi edite. Insignes & novas ultra Butri. addidit lecturas dictus dominus Petrus de Vergnia ..., Parrhisiis 1516 [opera magistri Bertholdi Rembolt argen.: impensis vero Ioannis Parvi universitatis Parisiensis librarij iurati].

CAEPOLLA Bartolomeo Cipolla (Verona, 1420 – Padua, 1475) – An Italian jurist, he was among the most celebrated of his time, both as a teacher (of canon law at Padua, then of civil law at Ferrara and Padua) and as a writer of consilia. In both roles, he engaged in famous disputes with his rival, Alessandro Tartagni. Frederick III conferred on him the title of Palatine earl, and the Republic of Venice appointed him to prestigious offices (such as ambassador to the Diet of Regensburg). A great expert in law and doctrine, attentive to the needs of practice, he was a typical representa- tive of fifteenth-century Bartolism, and for this he was held in contempt by Alciato. De servitutibus urbanorum praediorum, Perusii 1473 [Petrus Petri de Colonia and Johannes Nicolai de Bamberga].

CAIUS Gaius (? – ca. AD 180) – A Roman jurist, perhaps from Cisalpine Gaul. His Institutiones is the only work of classical Roman law to have come down to us directly (Verona manuscript), rather than through the fragments and the interpolations of the Justinianean jurists.

CARAMUEL A` LOBKOWITZ Juan Caramuel de Lobkowitz (Madrid, 23 May 1606 – Vigevano, 7 September 1682) – A Spanish theologian and mathematician, he was the Spanish ambassador 160 Bio-bibliographical Note at the court of Frederick III and was also appointed to various episcopal offices (the last of which in Vigevano, where he died). His interest included mathematics, astronomy, natural science, theology, philosophy, grammar, music, law, and mystic poetry. As a theologian, he challenged Jansenism. Metalogica. Disputationes de Logicae essentia, propietatibus, et operationibus, Francoforti 1654 [sumptibus Ioann. Godofredi Schonwetteri]

CARDANUS Girolamo Cardano (Pavia, 24 September 1501 – Rome, 21 September 1576?) – An eclectic Italian humanist, he was a mathematician, an astrologist, and a physician (the first to describe typhoid fever). He had an adventurous and hard life (he could not practice the medical profession in Milan because he was born out of wedlock, and he was put to trial for having published a horoscope of Jesus). Today, he is especially known for his contributions to algebra, and in particular for his solutions to cubic and quartic equations.

CARPZOV Benedikt Carpzov (Wittenberg 1595 – Leipzig 1666) – A German practical jurist of great fame, he taught at Leipzig and he was appointed to several public offices. His work circulated widely throughout Europe and highlighted the jurisdiction of common law and Saxon criminal law. He is to be considered the most typical representative of the scholarly style of his time, and a master in providing definitive summaries of an epoch’s entire doctrinal elaboration. [1] Practica nova imperialis Saxonica rerum criminalium in partes III divisa, Wittenbergae 1635 [Schu¨rer]. [2] Responsa juris electoralia in serenissimi ac potentissimi archiprincipis electoris saxon. Supremo, quod vocant, appellationum judicio illustrissimo, ...Libr. 6. Quorum 1. Materiae possessionis & proprietatis. 2. Exceptionum. 3. Processus judiciarii. 4. Executionum. 5. Contractuum. 6. Successionum ex testamento & ab intestato, nec non miscellaneae pertractatae visuntur .... cum duplice indice, tam titulorum et responsorum generali, quam rerum & verborum speciali ac perfecto, Lipsiae 1642 [sumptibus Andreae Kuhnen, imprimebat Henningus Koler].

CELSUS Publius Iuventius Celsus (first to second century AD) – A Roman jurist of the Proculian school, he was a prominent politician and held twice the office of consul. He was also a member of the consilium of Emperor Hadrian.

CHASSANAEUS Barthe´lemy de Chasseneuz (Chasseneux, Chassene´e) (1480–1541) – A French jurist of droit coutumier, he studied under Giason del Maino and Filippo Decio in Pavia, and in several capacities was in the service of the duke of Milan and Pope Julius II, before returning to France, where he sat in the parliament of Dijon and acted as president of the parliament of Aix. His main work is the Commentaria in consuetudines ducatus Burgundiae (1517), which circulated widely owing to the Bio-bibliographical Note 161 importance ascribed to Roman law, which had established a firm footing in Bur- gundy, contrary to what was the case in other regions of France. Catalogus gloriae mundi, in duodecim libros divisus, humanae sortis summam artificiose complectens sed ita demum nitidius auctus & locupletatus, ut omnes hactenus aeditiones longe superet, Lugduni 1546 [apud Antonium Vincentinum in Veronica].

CLAVIUS Christoph Clavius (Clau, Klau; Schlu¨ssel), (Bamberg, 25 March 1538 – Rome, 12 February 1612) – His real name is uncertain (Clavius may be the Latin form of Clau or Klau, or it may simply be the translation of the German Schlu¨ssel [key]). The most authoritative mathematician of the Societas Jesu, he was a renowned Ptole- maic astronomer and contributed to the definition of the Gregorian calendar (on account of which he earned a reputation as the Euclid of the sixteenth century). Euclidis elementorum libri XV. Accessit XVI. de solidorum regularium comparatione. Omnes perspicuis demonstrationibus, accuratisq[ue] scholijs illustrati, Romae 1574 [Apud Vincentium Accoltum].

CODRONCHIUS Giovanni Battista Codronchi (Imola, 27 August 1547–21 February 1628) – An Italian physician, he was among the first to provide the foundations of legal medicine, albeit still linked to a casuistry of professional ethics. As a scientist, he was conservative, with moral and religious convictions, leading him to believe that a physician’s mistakes are at the same time moral and religious mistakes. De vitiis vocis ...Cui accedit Consilium de raucedine, ac Methodus testificandi, in quibusvis casibus medicis oblatis, postquam formulæ quædam testationum proponantur, etc., Francofurti 1597 [apud heredes A. Wecheli, C. Marnium, & I. Aubrium] – Cited by Leibniz as Methodus testificandi in quaestionibus Medico oblatis (Method of witnessing questions offered to the physician).

COMPOSTELLANUS Coimbrans, see CONIMBRICENSES. Bernardo de Compostella junior ({ 1267) – The chaplain of Innocent IV, he is the author of a commentary on the Gregorian Decretals.

CONIMBRICENSES Collegium Conimbricensis. See Specimen, note b to Question V. Commentarii collegii Conimbricensis e societate Jesu, In universam dialecticam Aristotelis Stagiritae ... Qui nunc primum Graeco Aristotelis contextu Latino a regione respondenti aucti duas in partes, ob studiosorum commoditatem sunt diuisi. In libros Aristotelis de interpretatione, Lugduni 1607 [H. Cardon].

CONO Conon of Samo (Ko´nωn Σάμιoυ) (Samos Island, ca. 280 – Alexandria of Egypt, ca. 220 BC) – A Greek mathematician and astronomer, he was a friend of Archimedes of Syracuse, who devoted to him his work on the squaring of parabolas. As a mathematician, he was concerned with conic sections, but his fame is especially tied to the legend of the constellation Coma Berenices (Berenice’s Hair), which also inspired Catullus. 162 Bio-bibliographical Note

CONRINGIUS Hermann Conring (Norden, 9 November 1606 – Helmstedt, 16 December 1681) – A German scholar, he made significant contributions to the study of medicine, politics, and law. He was among the first and most important advocates of a German national spirit, grounded in traditional German law and unfettered from Roman common law. [1] Propolitica Sive Brevis Introductio in Civilem Philosophiam: Adjecta sunt Eiusdem ut & J. Hopperi nonnulla de Varia & Vera Iurisprudentia, Helmestadii 1663 [Typis & sumptibus Henningi Mulleri]. [2] Joachimi Hopperii Sedvardus, sive de Vera jurisprudentia, ad regem, libri XII: Nempe: Nomothesias, libri III: rerum divinarum et humanarum ...libri IIII: ad Pandectas, libri IIII: adjectus est ejusdem auctoris de Institutione principis liber singularis. Opus Joachimi Hopperi ... – Editio nova, Magdeburgae & Helmstadiae 1656 [Gerlach & Beckenstein]. [3] De Civili Prudentia Liber Unus Quo Prudentiae Politicae, cum Universalis Philosophicae, tum Singularis pragmaticae, omnis Propaedia acroamatice traditur, Helmestadii 1662 [Mu¨ller].

CORASIUS Jean de Coras (Re´almont, Tarn, 1515 – Toulouse, 1572) – A French jurist, he graduated in Italy, where he taught for a long time. He was among the jurists who established a humanist jurisprudence in France (cultism). His is especially known for his attempts to uncover dogmatic contexts beyond the mere exegesis of Roman law, and for his contributions to constitutional law, which influenced Jean Bodin. He was a member of the Toulouse parliament and participated in the famous Martin Guerre trial, of which he wrote the best-known record, Arrest Memorable du parlement de Tolose (1560). In 1562, having converted to Protestantism, he failed in an attempt to open Toulouse to the Calvinists, but was rehabilitated on account of his connections to the royal court. Miscellaneorum juris civilis libri VI, Norimbergae 1543.

COVARRUVIAS Diego (Didaco) Covarrubias (Covarruvias) y Leiva (1512–1577) – A Spanish canonist, known as the Bartolus of Spain. He wrote the decree for the reform of the Council of Trent. Variarum ex jure pontificio, regio et caesareo resolutionum libri 3, Lugduni 1557 [Barpt].

CRAVETTA Aimone Cravetta (1504–1569) – An Italian jurist from Piedmont and a typical Bartolist of late ius commune. In his own lifetime he was among the most admired jurists, so much so as to give rise to the brocard “Cravetta dixit sat est” (So said Cravetta, period!). He taught for a long time in Pavia. Consilia D. Aymonis Crauettae a` Savilliano ex Genoliæ do. causidicis omnibus longe` utilissima: Perspicacissimi iureconsulti ac totius Cæsareæ Pontificiæq[ue] militiæ ducis cum primis strenui ac exercitati Aymonis Cravettæ a` Savilliano de Bio-bibliographical Note 163 iure responsitationes, cum necessariæ, tum multo & tyronibus forensis disciplinæ & usu comprobatis pugilibus accommodatissimæ, argumentis in singula responsa, sententias omnes perqua`m necessarias, utiles itidem iuxta` ac doctas subtilesq[ue] complectentibus, locupletissimoq[ue] indice ac repertorio instructæ, nunc primum ac recens natæ summa vigiliq[ue] cura excusæ, auspicato prodeunt ..., Lugduni 1543 [de nouo impressa Arte [et] industria honesti viri Mathie Bonhome, chalcographi]

CRISPINUS Jean Crespin (Arras, 1520 – Geneva, 1572) – A French lawyer, printmaker, and publisher, he was accused of heresy and exiled to Switzerland. He was Du Moulin’s assistant. Tituli tractatusque iuris civilis studio in primis necessarii. De origine iuris et omnium magistratuum & successione prudentium; De verborum significatione &, De diuersis regulis iuris antiqui annotationibus delectis illustrati. Dispositionem atque interpretationem titulorum tractationumque Pandectarum et quid insuper additum sit, sequens pagina demonstrat, Genevae 1571 [Crispinus].

CRUSIUS Jakob Andreas Crusius (Hannover, 9 November 1636–16 August 1680) – A German jurist, he devoted himself to the comparison of Roman and Saxon law. Tractatus politico-juridico-historicus. De præeminentia, sessione, præcedentia, et universo jure proedrias magnatum in Europa, tum ecclesiasticorum, tum secularium, tam generali, quam speciali cuiusque domus illustris prærogativa. Libris quatuor absolutus ... Cum summariis, nec non rerum maxime observandarum Indice locupletissimo, Bremae 1665 [impensis & typis Jacobi Kohleri].

CUJACIUS Jacques Cujas (Toulouse, 1520 – Bourges, 4 October 1590) – A French legal humanist, he was professor of law at various universities and gained a European reputation as a lecturer on Justinian. But he was also the author of a commentary on the Consuetudines Feudorum, and he concerned himself with the Decretals and the Theodosian Code. He was appointed by king Charles IX of France as counsellor to the parliament of Grenoble. He stayed in Bourges until the end of his life, having turned down an offer by Pope Gregory XIII to teach in Bologna. Observationum et emendationum libri XXVIII, Lutetiae 1556 [Ex officina Roberti Stephani].

CURTIUS Quintus Curtius Rufus (first to second century AD) – Roman historian. Almost nothing is known about his life. Even the time in which he flourished is in dispute (some locate him in the fourth century). He is thought to be the rhetorician mentioned by Svetonius. The Histories of Alexander the Great, to which his fame is owed, is known through a codex of the Carolingian era written with a typeface that was common in the first century. The Histories are written in accordance with the criteria of Hellenistic historiography, more attentive to rhetorical effect than to historical reality. 164 Bio-bibliographical Note

CYNUS Cino Sighibuldi da Pistoia (Pistoia, 1270–1336) – An Italian poet and jurist, and a friend of Dante, he studied in Bologna and Orle´ans, where he was a disciple of Pierre de Belleperche, whose teaching was essential for the formulation of a new method of studying legal texts. The new method was no longer based on the glosses; it rather proceeded by introducing the subject matter, dividing it into different parts and arranging them depending on the case at hand, offering a new reading on that basis, pointing out the reasons for the provision, highlighting the most interesting elements of the text, and finally laying out theses and antitheses for developing the discussion, all this in the effort to uncover the ratio legis. This method, initiated by Cynus, became universal from the fourteenth to the seventeenth century among the jurists belonging to the so-called school of the commentary. Lectura super Codicem, Argentorati 1475 [Heinrich Eggestein].

DECIANUS Tiberio Deciani (Udine, 1509 – Padua, 1582) – An Italian jurist, he was professor at Padua, initially of criminal law (his fame is especially tied to the Tractatus criminalis utramque continens censuram, published posthumously in 1590), and then of civil law and canon law. He is also famous for the polemic in which he defended the Bartolist school from the attacks of the Milanese humanist Alciato. Responsorum clariss. ac celeberrimi iuris utriusque consultissimi. D. Tiberii Deciani Utinensis, ... Volumen primum (–tertium). ... Accessit praeterea Index rerum omnium, locorumque insignium locupletissimus ..., Venetiis 1579 [apud Hieronymum & Ioannem Zenarios].

DECIUS Filippo Decio (Milan, 1454 – Pisa, ca. 1535) – An Italian jurist of noble birth, he was a disciple of his brother Lancellotto and of Giason del Maino. In his own lifetime he was celebrated as a teacher and jurist and was the most important and prolific among the last generation of the jurists working in the medieval tradition. Repetitio super rubrica ‘De probationibus’ (Decr. II,19,1), Pescia 1490 [Bastianus & Raphael de Orlandis].

DEL-RIO Martin Antoine Delrio or Del Rio (Antwerp, 17 May 1551 – Louvain, 19 October 1608) – A Flemish theologian of Spanish origins, he was a friend of Justus Lipsius, who called him “the wanted man of the century,” and he was apostrophized by Voltaire as “Attorney General of Beelzebuth.” More recently, some people have considered him as the main reason behind the witch-hunt in Flanders. Disquisitionum magicarum libri sex: in tres tomos partiti, Lovanii 1599–1601 [ex officina Gerardi Rivii].

DOMINICUS A SANCTO GEMINIANO/GEMINIANUS Domenico da San Gimignano (San Gimignano, Siena, ca. 1375 – 1424) – An Italian canonist, a disciple of Antonio da Budrio, and perhaps of Pietro d’Ancarano, he graduated in Bologna, where he taught. He witnessed the controversy between Popes Benedict XIII and Gregory XII at the Council of Pisa (1409) and took part in the writing of the verdict of deposition. In Sextum Decretalium Praelectiones, Lugduni 1554 [excudebat Blasius Guido]. Bio-bibliographical Note 165

DOMINICUS ARUMAEUS Douwe (Dominik) van Arum (Leeuwarden, 1579 – Jena, 24 February 1637) – A Dutch jurist and professor at Jena, he was a pioneer of public law as a field of study in its own right. Influenced by Dutch humanism, his methodical analysis of the constitutional law of the Holy Roman Empire focused no longer on Roman law but on imperial sources of public law, such as imperial basic laws and electoral capitulations. Commentarius juridico-historico-politicus de comitiis Romano-Germanici Imperij ..., Jenae 1630 [Sumptibus Blasij Lobensteins, bibliopolae].

DONELLUS Hugues Doneau (Chalon-sur-Saoˆne, 23 December 1527 – Altdorf, 4 May 1591) – A French jurist and an exponent of cultism, he concerned himself with the construc- tion of a coherent system of laws, its aim being to organize Roman law according to the logical order of its subjects, rather than according the sequence of books and titles in Justinian’s Corpus iuris. [1] Commentarij ad Codicis Iustiniani partes (quae infra scripta sunt ... titulos libri secundi de edendo; de in ius vocando; de pactis; de transactionibus; his adiunctus ... liber de praescriptis verbis & in factum actionibus ... leges Codicis 1. filium, quem fam. erc.; 1.2 de resc. vend.; 1. precibus de imp. & alijs subst.; auth. non licet, auth. ex caussa, de lib. praet. vel exher.; 1. eam quam de fideicom.; 1. si unquam de revo. don; lib. viii. Codicis.), Lugduni Batavorum 1587 [Ex officina Plantiniana, apud F. Raphelengium]. [2] Commentariorum Juris civilis libri XXVIII, in quibus Jus civile universum explicatur, Francoforti 1595 [apud Andreae Wecheli heredes; Claudium Marnium, & Ioan. Aubrium].

DYNUS Dino Rossoni del Mugello (Fagna, thirteenth century – Bologna, 1303) – An Italian jurist, he taught civil law in Bologna, earning a great reputation. For this reason, Boniface VIII summoned him to Rome so he could help compile a collection of papal decretals (the Liber Sextus), to which Dino also contributed the final title, De regulis iuris. This marked the official start of that coupling between “the one and the other law” (utrumque ius) which characterized the late Middle Ages. Apostille super infortiato & ff. novo cum additionibus viri celeberrimi Celsi hugonis dissuti cabilonensis ... antehac nunquam impresse, Lugduni 1513 [impensis ... Symonis vincent lugdunensis bibliopole: per Iacobum Myt, artis impressorie in prefata civitate magistrum].

EGESIPPUS (ca. AD 110 – ca. AD 180) – A Christian writer probably from Palestine. His writings, for the most part lost, essentially consisted of refutations of Gnosti- cism and of Marcion’s heresy. Historiarum libri V. 166 Bio-bibliographical Note

ERASMUS ROTERODAMUS Erasmus (Geerts) van Rotterdam (Rotterdam, 1466/1469 – Basel, 12 July 1536) – Dutch humanist theologian and philosopher. Adagiorum chiliades Des. Erasmi Roterodami toties ... In hac aeditione non magna quidem adiuncta est accessio, quod opus prope ultra iustam magnitudinem excreuisse uidetur. Attamen loca quaedam uigilantiore cura pensitata sunt ..., Basileae 1536 [in officina Frobeniana per Hieronymum Frobenium, et Nicolaum Episcopium].

EVERHARDUS Nicolaas Everaerts (Nicolaus Everhard) (Grypskerke, 1462/1463–1532) – A Flem- ish jurist, he was an ecclesiastical judge in the service of the bishop of Cambrai, then professor at the University of Louvain, then president of the Court of Netherland and Zealand in The Hague (1510–1528), and finally president of the Great Council of Mechelen, a position he held until his death. [1] Loci argumentorum legales, Venetiis 1564 (Busche 1997: 94 mention the Cologne 1662 edition) ¼ Topicorum seu locorum legalium opus de inventione et argumentatione, Lovanii 1516; [2] Synopsis locorum legalium Everhardi, Georg Adam Brunner (ed.), Arenaci 1643 [ex off. Jacobi Biesii].

FABER Antoine Favre (1557–1624) – A French jurist and an exponent of cultism, he graduated in Turin and followed Hotman and Cujas in sharply criticizing and mocking traditional jurists. He was a magistrate and diplomat, as well as president of the Senate of Chambe´ry. [1] Jurisprudentiae Papinianeae scientia, ad ordinem Institutionum imperialium efformata, Lugduni 1607 [haeredes J. Chouet]. [2] Codex fabrianus definitionum forensium et rerum in sacro Sabaudiae Senatu tractatarum. ... in novem libros distributus ... Lugduni 1606 [sumptibus Horatij Cardon]. [3] Coniecturarum iuris civilis libri tres, in quibus difficiles plaerique iuris loci, novis cum emendationibus, tum interpretationibus, explicantur..., Lugduni 1581 [apud Ioan. Tornaesium typograph. regium].

FABER Jean Fabre de Runcinis ({1340) – A French jurist, also known by the monikers Doctor subtilis, Doctor perspicacissimus, or even Doctor fundamentalis. He was first a lawyer and then a professor in Montpellier. Solennis et pene divina ... lectura super quatuor libros Institutionum multorum doctorum & nuperrime domini Ioannis de Gradibus ... additionibus & apostillis illustrata. Addito indice seu repertorio ... per s.i.v. professorem dominum Io. minicum de Rebacinis in almo Ticinensi gymnasio compilato ...Lugduni 1531 [per Benedictum Bonyn: impensis ... Iacobi q. Francisci de Giuncta Florentini ac sociorum]. Bio-bibliographical Note 167

FACHINUS Andrea Fachinci (ca. 1550 – ca. 1607) – Italian jurist from Forlı`. The treatise on controversies mentioned by Leibniz collects cases in both civil and criminal law. Fachinci also wrote some short treatises on questions of property. Controversiarum iuris libri novem, in quibus explicantur omnia fere praecipua, quae inter iurisconsultos controversa sunt circa materias iudiciales, ta` m civiles, quam criminales ... Pars prima, complectens libro tres, quorvm primus controversias... ad iudicia... continet..., Ingolstadii 1595 [ex officina typographica Davidis Sartorii].

FELINUS Felino Sandeo (Felina, Reggio Emilia, 1444 – Rome, 6 September 1503) – An Italian canonist and humanist, he taught at the Universities of Ferrara and Pisa and was also auditor of the Sacra Romana Rota and bishop of Penne. He wrote tables of concordance between the civil and canon law. Though a renowned scholar, he is nevertheless criticized as having little originality. Commentaria subtilissima ... in quinque libros Decretalium, cum clarissimorum dominorum Benedicti Vadi ... Andree Mocenigo, necnon Ioannis de Gradibus ...utilissimis apostillis ..., Taurini 1522 [per Antonium Ranotum].

FLORENTINUS Florentinus (second to third century) – An anonymous Roman jurist, known only as the author of 12 books of the Institutes and for being mentioned once in the Scholia Sinaitica, where he is quoted in support of Ulpian’s thought.

FORCATULUS E´ tienne Forcadel (1518–1578) – A French writer and jurist from Be´ziers, brother of the famous mathematician Pierre Forcadel, he received from Cujas himself the chair of law at the University of Toulouse. Necyomantia Iurisperiti, sive, de occulta iurisprudentia, dialogi, Lugduni 1549 [Apud Ioan. Tornaesium].

FRANCISCUS DE MARCHIS Franc¸ois Marc (14?? – ca. 1525) – A French jurist and a judge in Gre´sivaudan, he was counsellor to the Parliament of Grenoble in the Dauphine´. Decisiones Aureae in Sacro Delphinatus Senatu discussae ac promulgatae omnibus jurisconsultis advocatis ac judicibus mirum in modum profuturae, Venetiis 1561 [al segno della Fontana].

FREIGIUS Johann Thomas Frey (Freig) (Freiburg im Breisgau, 1543 – Basel, 16 January 1583) – A Swiss humanist, he graduated in utroque iure, was magister and professor of Latin grammar, and then (having become a follower of Petrus Ramus, part of whose work he published) he taught dialectics, ethics, and logic (Aristotle’s Organon)at the University of his native Freiburg, until his expulsion because of his Huguenotic ideas. [1] De logica jureconsultorum libri II, Basileae 1582 [S. Henricpetri]. It is an adaptation ad usum scholarum of Ramus’ Dialectica. 168 Bio-bibliographical Note

[2] Quaestiones physicae, in quibus methodus doctrinam physicam legitime docendi describendique rudi Minerva descripta est libris XXXVI, Basileae 1579 [S. Henricpetri].

FULGOSIUS Giovanni Battista Fregoso [Fulgosio] (1453–1504) – An Italian jurist and commen- tator of the Bartolist school, he was Doge of Genoa and was known for his consilia, especially on questions of criminal law. Factorum dictorumque memorabilium libri IX aucti et restituti. Index copiosissimus omnium nominum de quibus passim in historia agitur, Antverpiae 1565 [apud Ioannem Bellerum sub Aquila aurea].

GAILUS Andreas von Gail (Gaill) (Cologne, 12 November 1526–11 December 1587) – German chancellor, statesman, and jurist. After university studies in Cologne, Orle´ans, and Louvain, he earned a doctorate in Bologna. Assessor and judge of the Reichskammergericht in Speyer, he was appointed aulic counsellor in Vienna by Maximilian II. With Joachim Mynsinger of Frundeck, he cofounded the juris- prudence of the High Court of Justice (Kammergerichtsjurisprudenz), a body of law also known as Cameralistics. He came to be known as the Papinian of Germany. Practicarum observationum tam ad processum iudiciarium praesertim imperialis camerae, quam causarum decisiones pertinentium, libri duo, Coloniae Agrippinae 1578 [Gymnicus].

GALENUS Galenus Pergamensis (Pergamon, 129 – Misilmeri, Palermo, 216) – A physician and philosopher, the foremost representative of ancient medicine. For a long time he was a physician to the imperial court. Among his 108 surviving writings is the Libri tres de usu partium mentioned by Leibniz (see Specimen, Question X).

GARCIA HISPANUS Fortunio Garcia de Ercilla y Arteaga (Bermeo, 1494 – Valladolid, 1534) – A Spanish jurist and professor at the University of Bologna, he was minister of the Supreme Council of the Emperor Charles V. [1] Commentaria super titulo de Iusticia et iure, in [2], Bononia 1517 [per Iustinianum Leonardi Ruberiensem]; [2] De ultimo fine iuris canonici et civilis, de primo principio et subsequentibus praeceptis, de derivatione et differentiis utriusque, Bononia 1517 [per Iustinianum Leonardi Ruberiensem].

GASSENDUS Pierre Gassendi (Champtercier, 22 January 1592 – Paris, 24 October 1655) – A French scientist, philosopher, and theologian, one of the most significant representatives of mechanical philosophy. He was provost of the cathedral in Digne and professor of philosophy at Aix-en-Provence. Expelled from the univer- sity in 1623 by the Jesuits, he spent his life outside the academic milieu, although he was constantly in contact (and sometimes in contrast) with the most illuminated Bio-bibliographical Note 169 minds of his time, from Galileo to Marin Mersenne, Hobbes, and Descartes. But in 1645 Richelieu sent for him to fill the chair of mathematics at the Colle`ge Royale in Paris. Contrary to both Aristotelian and Copernican metaphysics, he espoused a philosophy based on the atoms and the void, believing that this was the sole philosophy compatible with the new physical science. Liber de origine et varietate logicae,inPetri Gassendi ...Opera omnia in sex tomos divisa, quorum seriem pagina praefationes proxime sequens continet. Hactenus edita auctor ante obitum recensuit, auxit, illustravit. Posthuma vero totius naturae explicationem complectentia, in lucem nunc primum prodeunt, ex bibliotheca illustris viri Henrici Ludovici Haberti Mon-Morij ...1: Tomus primus [operum] quo continentur Syntagmatis philosophici, in quo capita praecipua totius philosophiae edisseruntur, pars prima, sive Logica, itemque partis secundae, seu Physicae, sectiones duae priores, 1. De rebus naturae universe, 2. De rebus caelestibus. Cum indicibus necessarijs, Lugduni 1658 [sumptibus Laurentij Anisson, & Ioan. Bapt. Deuenet].

GEBHARDUS Heinrich Gebhard (17th century) – German jurist. De principiis ac dignitate iurisprudentiae, tractatus philosophico-iuridicus longe pulcherrimus; quo veri et sinceri iuris tam publici quam privati fontes ex omni fere disciplinarum & facultatum etiam suberiotum genere succincte ac dilucide aperiuntur, Gerae 1613 [Typographus Rutheno Gerano].

GENTILIS Alberico Gentili (San Ginesio, 14 January 1552 – London, 19 June 1608) – An Italian jurist and humanist from the Marches. Accused of heresy, he fled to London, where by 1587 he was regius professor of civil law at the University of Oxford. He is known for his role as a founder of modern international law, and for his peremptory Silete theologi in munere alieno! (“Shut up, theologians, when outside your field!”), the motto with which he silenced Oxford’s puritan theologians (with whom he was constantly at odds), and which emblematically expresses the birth of jurisprudence as a genuinely political science. Disputationum de nuptiis libri VII, Hanoviae 1601 [apud Guilielmum Antonium].

GIPHANIUS Hubert van Giffen (Buren, 1534 – Prague, 1604) – A Dutch jurist and philologist, professor of ethics, logic, and institutes at Strasbourg (1570), then at Altdorf (1583) he was touted as the leading German jurist of his time. However that may be, he was the first in Germany to study jurisprudence from various angles (systematic- philosophical, historico-philosophical, and historico-critical). He was also appointed counsellor to the imperial court in Prague. Antinomiarum iuris civilis, sive disputationum ex Huberti Giphanii ic. ... praelectionibus desumptarum libri quatuor. Quibus, servata serie titulorum Institutionum imperialium, artificiosa methodo, medulla universae iurisprudentiae 170 Bio-bibliographical Note continetur; additis ex toto iure obiectionibus & solutionibus, iisdemque certum in ordinem redactis ab eximio d. Conrado Olemanno ... Cum indice rerum & verborum locuplete, Francofurti, 1605 [sumptibus Ioannis Iacobi Porsii, typis vero Nicolai Hoffmanni].

GOTHOFREDUS Denis Godefroy (1549–1622) – A French Calvinist jurist, he was a member of the Council of the Two Hundred and taught in Strasbourg (where he died) and Heidelberg. [1] Commentaria ad Codicem,inCorpus juris civili in IIII partes distinctum quarum prima ... Justiniani Institutionum lib. IIII Digestorum seu Pandectarum lib. L. continentur ...His accesserunt Commentarii ..., Lugduni 1583 [in officina Barthol. Vincentii]; [2] Ad Theophilum: vd. Θɛo´φιλoς Ἀnτικɛnσo´ρoς [Theophilus ‘Antecessor’], Ἰnστιτoῦτα Θɛo´φιλoυ Ἀnτικɛnσo´ρoυ. Institutiones Theophilo Antecessore.

GOVEANUS Antonio de Gouveˆa o Gouveia (Beja, Portugal, 1505 – Turin, 1565 or 1566) – A Portuguese scholar and philosopher, he taught jurisprudence in Toulouse and Avignon and philosophy in Paris. He was the translator of Porfirius’s Isagoges and editor for Virgil and Terentius. As a philosopher, he especially concerned himself with rhetoric (worthy of mention is his Critica logica pars certans cum Ciceronis topicis). He also wrote commentaries on Cicero’s works (his Orationes and Topici in particular) as well as a defence of Aristotle based on Ramus’s calumniae. Lectionum iuris variarum libri 2, Tolosae 1552. [De Fleurs].

Goslicki, Wawrzyniec v. BODENSTEINIUS.

GRAEVAEUS Bernhard Greven (1580–16??) – German jurist born in Westphalia and active in Bielefeld. He wrote two books of commentaries on Gail’s Practicarum observationum. Quite well known is a portrait which Wolfgang Heimbach painted of him and his much-younger wife (he married at 72): the couple’s unambiguously melancholy expression has made the portrait an object of study beyond painting. Practicae Conclusiones Juris, singulis Andreae Gaillii, observationibus practicis materia & serie continua respondentes: item considerationes omnibus conclusionibus sigillatim subjunctae ... cum ... antiquis, novis et noviss. decisionibus ..., Francofurti 1603 [Palthenius].

GROTIUS Hugo Grotius (Huig de Groot, or Hugo de Groot) (Delft, 10 April 1583 – Rostock, 28 August 1645) – Dutch jurist, philosopher, and scholar, leading light of modern legal thought, and one the authors most cited by Leibniz in his early works. [1] Florum sparsio ad Jus Justinianaeum, Parisiis 1642 [apud viduam G. Pele´]– Leibniz seems to refer to this work in the Preface to the Specimen, } 5 (see Busche 1997: 94) and expressly in Question IV, } 3. [2] De iure belli ac pacis libri tres. In quibus ius naturæ & gentium: item iuris publ. præcipua explicantur, Parisiis 1625 [apud Nicolaum Buon]. Bio-bibliographical Note 171

GUIBERTUS Antoine Guibert (fl. 1550) – A French jurist from the Midi-Pyre´ne´es region, he mainly concerned himself with the legal aspects of marriage and dowry. De sponsalibus, matrimoniis et dotibus commentarius, multis rerum quotidianarum decisionibus exornatus, Marpurgi 1597 [typis Pauli Egenolphi].

GUILELMUS DURANTIS Guillaume Durand (Puimisson, Languedoc, 1237 – Rome, 1296) – French jurist and clergymen. After graduating in Bologna, he held important offices at the curia in Rome. His Speculum iudiciale is a complete systematization of all adjective law,an achievement long considered a milestone. Speculum iudiciale, a magistro Guillermo Duranti editum. ... Prelucidum hoc opus speculi iudicialis. iuris interpretis optimi. Magistri Guillermi Duranti ... exactissima lucubracione revisum correctum, etc., Argentae 1473 [factoribus Ieorio Husner et Iohanne Bekenhub; cfr. nt. 14].

HERCOLANUS Francesco Ercolani (Panicale, 1541–1569) – An Italian jurist from Perugia, he is the author of the Tractatus de negotiis probandis and the Tractatus de appellationibus et attentatis, formerly erroneously attributed to Vincenzo Ercolani (died 1539). Tractatus de negativa probanda, scilicet qui teneatur probare negativam et quibus modis probetur, Florentiae 1564 [Apud filios Laurentii Torrentini tipografi ducalis].

HERMOGENES Ermoge´nes Tarseus (Ἑρμoγεnης ὁ Tαρσɛύς, Hermogenes Tarsensis) (Tarsus, 161–240) – Greek rhetorician, Roman citizen, and among the most significant representatives of the Second Sophistic. Techne¯re¯torike¯. Perı¯to¯n sta¯seon, Florentiae, 1515 [in aedibus Philippi Iuntae Florentini].

HOBBIUS Thomas Hobbes (Malmesbury, 5 April 1588 – Hardwick Hall, 4 December 1679) – English philosopher especially known as a political and moral thinker. He concerned himself with law, mathematics, physics, and economics. [1] De corpore politico or the elements of law, Londini 1652 [Ridley]; [2] Elementa philosophica de cive, Amsterodami, 1647 [apud Ludovicum Elzevirium].

HOPPERUS Joachim Hopper (1523–1576) – A Frisian jurist, well versed in philosophy and jurisprudence, he was professor in Louvain and a member of the Mechlin council. He is also known as the founder of the University of Douay, an institution which he organized in 1556 at the behest of King Philip II of Spain. Seduardus: sive de vera iurisprudentia, ad Regem, libri XII, Antverpiae 1590 [In Officina Plantiniana, apud viduam et Ioannem Moretum]. 172 Bio-bibliographical Note

HORNEJUS Konrad Horneius [Horney, Horne, Horn] (Braunschweig, 25 November 1590 – Helmstedt, 26 September 1649) – A German protestant theologian, and a disciple of Cornelius Martini, he was professor of logic and ethics, and subsequently of metaphysics, at the University of Helmsted. Institutionum logicarum libri V, Francofurti, 1633 [Eifridus].

HOTTOMANNUS Franc¸ois Hotman (Paris, 23 August 1524 – Basel, 12 February 1590) – French jurist. Despite his father being a Catholic counsellor of the Parliament of Paris, he became Protestant. He was probably the most famous representative of the Scuola Culta and fiercely criticized Justinian law (his most celebrated work emblemati- cally entitled Antitribonianus) with the intent of establishing a national law unbound from Roman law (the latter to be reduced to a simple exemplum). [1] Dialecticae institutiones ex fontibus philosophorum, [Genevae] 1573 [Ex officina Iacobi Stoerij]; [2] Quaestionum illustrium liber, Parisiis (Genevae?) 1573 [excudebat Henr. Stephanus].

IOANNIS AB IMOLA Giovanni Calzi da Imola (Imola, 1367/76 – Bologna, 1436) – Italian jurist and student of the Decretals, much esteemed by his contemporaries. He taught at the Universities of Padua, Ferrara, and Bologna. The patronymic Calzi, which he abandoned in favour of Nicoletti (from his father’s first name, Nicoletto), has been a recent finding of Padovani (2012). Commentaria prima in secundum Decretalium librum, Lugduni 1548 [Pullonus].

JACOBUS DE ARETIO Jacobus de Arena (Parma, first half of thirteenth century – after 1296) – Italian jurist, active during the long transition that intervened between the time when Accursius’s Magna Glossa established itself and the rise of the school of the Commentators. His exegetical work is for the most part found in rudimentary consilia, quaestiones, and short treatises whose character is still typical of the additio. Super iure civili. ... Commentarij in universum Ius civile, argumentis cuique legi affixis adornati, nunc tandem in studiosorum iuris prudentiae gratiam in lucem typis primu` m axcusi prodeunt ... Adiectus est his praeterea Index omnium fere` sentientiarum & rerum, ...Lugduni 1541 [impensis ...Hugonis a porta: typis vero fidelissimorum calcographorum Stephani ruffini & Ioannis ausulti].

JASON Giason del Maino (Pesaro or Milan, 1435 – Pavia, 1519) – An Italian jurist, he studied in Pavia, Pisa, Bologna, and Padua. A disciple of Alessandro Tartagni (one of the most authoritative representatives of the traditional school), he tutored Andrea Alciato, the quintessential reformer of legal studies. Despite his being one of the most relevant representatives of the late school of the Commentators, whose Bio-bibliographical Note 173 dialectical method he carried on, Jason had a markedly, almost philological, humanistic orientation grounded in a careful study of Roman law, which certainly influenced his pupil. In primam [–secundam] codicis partem commentaria omnibus iuris civilis candidatis oppido quam necessaria utilitaque: non parum illustrata pariter & aucta, tum ipsius, autoris additionibus, tum co[m]plurium aliorum virorum minime poenitendae eruditionis. Ad haec accesserunt summaria (ut vocant) cum numeris, quae quid utilitatis iuris studiosis adferant, notius est, quam ut ulla explicatione indigeat. Praeterea adiunctus est index ordine elementario, qui notatu quaeque dignissima locupletissime indicat, Lugduni 1533 [apud Gryphium].

JOANNES IGNEUS Jean Feu (1477–1549) – A jurist from Orleans, his Repetitiones to Justinian’s corpus are noteworthy for their humanistic approach. Commentariorum ... in titulum de Sillaniano et Claudiano senatusconsulto, et quorum testamenta aperiantur, libro Digestorum vigesimonono, hactenus non impressorum. Una cum summarijs, quibus, quicquid praeclare in qualibet lege, & paragraphis eiusdem tituli continetur, breuiter ostenditur. Cum indice, Lugduni 1539–1541 [apud Vincentium de Portonariis].

JOHANNES ANDREAE Giovanni d’Andrea (Rifredo, Firenzuola, ca. 1270 – Bologna, 1348) – An Italian canonist, he studied law in Bologna, where he taught canon law throughout his hardworking life. His work includes the apparatus ordinarii to the Liber Sextus and to the Clementinae, as well as various commentaries on the canon corpus. He is prominent among the other canonists of his time for his mastery of both canon and civil jurisprudence and for the pragmatism and clarity of his thought. Novella super VI Decretalium, Romae 1476 [Georgius Lauer].

JOHANNES GEORG Johann Georg I (5 March 1585 – Dresden, 8 October 1656) – Prince-elector of Saxony. Although he was a Protestant, he allied himself with the Catholic Habsburgs so as not to favour the strengthening of Brandenburg and the Palatinate. Even when the promulgation of the Edict of Restitution (1629) made it clear that the emperor was seeking to expel the Protestants from the imperial territories, the elector confined himself to a merely formal protest against the edict. After all, whenever he engaged in a pitched battle, he came out defeated. Process und Gerichts-Ordnung des Durchlauchtigsten, Hochgebornen Fu¨rsten und Herrn, Herrn Johann Georgen, Herzogen zu Sachsen, Ju¨lich, Cleve und Berg ..., Dresden 1622 [Bergen].

JOHANNES GLOSSATOR Jean Lemoine (Cre´cy-en-Ponthieu, 1250 – Avignon, 1313) – A French theologian and canonist, also known as Joannes Monachus. He was counsellor to the king of France Philip IV and legate of Pope Boniface VIII at the court of the same Philip. Glossa aurea nobis priori loco super Sexto Decretalium libro tradita, per reverendis D. Dominum Joannem Monachi Picardum, Parisiis 1553 [apud Ioannem Paruum & Bartholomæum Bertault]. 174 Bio-bibliographical Note

JOSEPHUS [FLAVIUS] Joseph Ben Matityahu (Ἰω~σηπoς Φλάβιoς [Io`sepos Fla`vios]) (Jerusalem, ca. 37 – Rome, ca. 100) – A Roman writer, historian, politician, and soldier of Jewish origins, he wrote in Greek. His name, meaning “Joseph son of Matthias,” was changed to the Latin Flavius when he was freed and received Roman citizenship by Emperor Vespasianus. Ἱστoρία Ἱoυδαiκoῦ πoλεμoυ πρὸς Ῥoμαίoυς [ Historı´a Ioudaı¨kouˆ pole´mou pro`s Rhomaı´ous ], lat. Bellum iudaicum.

JULIANUS Julianus (2nd century AD) – Roman jurist belonging to the Pelagian school.

KELLERUS Adam Keller (16th to 17th century) – Jurist of Flemish origin. De officiis juridico-politicis chiragogici libri tres, Costantiae 1608 [ex off. typogr. vid. L. Straub] (see Busche 1997: 94).

KIRCHERUS Athanasius Kircher (Geisa, 12 May 1602 – Rome, 28 November 1680) – German Jesuit, philosopher, and historian, the author of about 40 works, especially in oriental studies, geology, and medicine. Arca Noe¨: in tres libros digesta; quorum I. De rebus quæ ante Diluvium, II. De iis, quæ ipso Diluvio ejusque duratione, III. De iis, quæ post Diluvium, a` Noe¨mo gesta sunt, Quæ omnia novaˆ Methodo, nec non Summa Argumentorum varietate, explicantur, & demonstrantur, Amstelodami 1675 [Apud J. Janssonium a` Waesberge].

LAGUS Conrad Lagus (or Lage, Hase, Hasi; Kreuzburg, ca. 1500 – Danzig, 7 November 1546) – A German jurist, he attempted a systematization of the law, especially in the manner of Apel and Melanchton. Iuris utriusque Traditio Methodica omnem omnium titulorum ... Materiam & genus, glossarum item & interpretum abstrusiora vocabula ...explicata ...ex ore ... Conradi Lagi ... annotata ..., nunc recens excusa & edita, Francoforti, 1543 [Apud Christianum Egenolphum].

LAMBERTINUS DE RAMPONIBUS Lambertino Ramponi (died 1304) – Italian jurist belonging to the last generation of civil-law glossators. He taught in Bologna, where he tutored Cino da Pistoia, who with his jurisprudential method marked the end of the era of glosses. Quaestiones et Adnotationes super Digesta, Bononiae (without date). The pas- sage quoted by Leibniz has not been found (not even by Boucher: see Leibniz 2009: 273, note 207). This work is probably not Ramponi’s but Lambert de Salins’s (Feenstra 1970).

LEIB Johann Leib (1591–1666) – Saxon jurist, better known as the author of sacred poems. The work cited by Leibniz is largely inspired by Berlich. Bio-bibliographical Note 175

De Prioritate Creditorum, eorumq[ue] in quinque classes distributione. Das ist: von dem Vorgang der Glaubiger, und deroselben fu¨nff unterschiedenen Reyen oder Ordnungen, etc., Nurenbergae, 1647 [Du¨mler].

LIEBENTHALIUS Christian Liebenthal (Soldin, 24 December 1586 – Klagenfurt, 2 August 1647) – German jurist and philosopher. The two works mentioned by Leibniz are probably [1] Collegium politicum, in quo de societatibus, magistratibus, juribus majestatis, et legibus fundamentalibus (Gießen 1619); and [2] Collegium ethicum, in quo de summo hominis bono, principiis actionum humanarum, mente ac voluntate (Gießen 1620). See Busche (1997: 94).

LIPSIUS Justus (Joest) Lipsius (1547–1606) – Flemish philologist and humanist. A student at the Jesuit college of Cologne, he was a tireless traveller. He taught for one year in Jena, where he had to conform to the directives of the Lutheran Church. For this reason, he moved first to Cologne and then to Louvain. At the outbreak of the civil war, he fled to Antwerp, where he was appointed professor of history at the new University of Leiden. Here he was regarded as a Calvinist. This was his most fruitful period. In 1590 he reconciled with the Catholic Church and started travelling again to courts and universities across Italy, Austria, and Spain. Physiologiæ Stoicorum Libri Tres: L. Annaeo Senecae, aliisque scriptoribus illustrandis, Antverpiæ 1604. [Ex Officina Plantiniana; Apud Ioannem Moretum].

LUCRETIUS Titus Lucretius Carus (Campania, 98/96 BC – Rome, 55/53 BC) – Latin poet and philosopher, one of the most troublesome figures of all times. He was troublesome during his life because of his Epicurean and pacifist ideals in the Stoic and warlike Rome, and troublesome afterward because of his atomism (with the consequent negation of the immortality of the soul), which caused him to fall out of favour with the Christians. His great poem De rerum natura is among the masterworks of human genius.

MALQUYTIUS Louis Malquyt (16th to 17th century) – French jurist. Vera Jurisconsultoram Philosophia, Parisiis 1626 [Apud Ioannem Laquehay Tipog.].

MARMERUS Claudius Marmer (first half of the 16th century) – Burgundian jurist, sectator minimus in faustissimo Ticinensi Litterario Emporio (lowest-ranking fellow in the Illustrious Literary Emporium of Ticino). Repetitionum seu Commentariorum in varia Iurisconsultorum Responsa volumen quintum. Eas habet Repetitiones, quæ pertinent ad priorem partem Tertij Tomi Pandectarum: Digestum Novum vocant, Lugduni 1553 [a Porta]. 176 Bio-bibliographical Note

MARTINI Jakob Martini (Langenstein, 17 October 1570 – Wittenberg, 30 May 1649) – Lutheran theologian and philosopher, by 1602 professor of logic and metaphysics at Wittenberg. He was influenced by the philosophy of Giacomo Zabarella, through which he tried to reconcile Lutheran metaphysics with the neo-Scholastic meta- physics developed in particular by Francisco Suarez. The work cited by Leibniz is probably one of the following polemical works against the Calvinist theologian and philosopher Bartholoma¨us Keckermann (Danzig, ca. 1572 – 25 July, 1609): – De communicatione proprii liber unus contra Barthol. Keckermanum, Witterbergae 1609 [Zachar. Schuterus]; – Quadriga quaestionum partim logicarum partim philosophicarum, agitata con- tra Matthaeum Mant Czanakium Ungarum, qui icareo plane ausu praelectiones. AntiKeckermannianas admodum ... Jacobi Martini ... nuperrime refutare conatus est Quam Johannes Scharfius praes., Johannes Brunneman resp., Wittebergae 1628 [Auerbach]; – Disputatio philosophica trimembris, Matthaeum Mant Czanakium Ungarum, propter nonnullas absurditates .. in controversiis contra praelectiones ... in systema logicum Keckermanni ... Jacobi Martini ... reperiendas absurdissimum ...hospitem faciens, Wittebergae 1626 [Boreck]; – Jacobi Martini Professoris Academici Praelectiones Extemporaneae, In Systema Logicum Barth. Keckermanni: Quibus Non tantum praecepta, sed etiam Exempla, & cumprimis Theologica Fideliter, breviter & perspicue resolvuntur & excutiuntur, [Witterbergae], Schuterus; [Witterbergae], Matthaeus, 1617. – Disputatio Publica De Quibusdam Regulis Logico-Metaphysicis. Partim Efficitis, partim male a Keckermanno & Timplero rebus Theologicis applicatis ad enervandum partem aliquam orthodoxias Lutheranae Quam ...Moderatore ...M. Henrico Velstenio ...In alma & inclita Witteberga discutiendam exhibet M. Martinus Titius Quedlinburgensis-Saxo. Ad diem IIX. Iunii ..., Wittebergae 1610 [Typis Henckelianis]; – Themata decem contra systema logicum Keckermannianum generaliter directa, Jakob Martini praes, Johanness Donner resp., Witebergae 1610 [typis Martini Henckelij]; – Trium Thematum Logicorum Explicatio Opposita totidem erroribus Bartholomaei Keckermanni Et Consensu Amplissimae Facultatis Philosophicae in Illustriss. Witeberga ... Martinus Titius [Pra¨ses]; Sebastianus Rissen [Resp.], Witebergae 1610 [Typis Henckelianis].

MARTINO DE FANO Martino del Cassero da Fano (ca. 1190 – after 1272) – An Italian jurist, among the most distinguished of the school of Bologna in the age of decadence of the glossa, his works reflect all the uncertainties of his time on the question of method. A disciple of Azzone and Accursius, he taught in various Italian cities and was also a member of the committee charged with writing the statues of Arezzo (enacted in 1255). Toward the end of his life he became a Dominican. Tractatus de negativa probanda,inTractatus Universi Iuris, IV, Venetiis 1584 [Societas Aquilae se renovantis] – Today this work is considered of uncertain attribution. Bio-bibliographical Note 177

MARTINUS GLOSSATOR MartinoGosia (? – 1167) – A glossatorfromBologna,hewas one of the celebrated “four doctors,” the disciples of Irnerius, and was considered as a forerunner the canonists. His legal thought draws widely on equitable principles of natural law, which he saw as coinciding with divine law, and hence, as a matter of fact, with canon law, but also as deposited in Justinian’s corpus iuris. For this reason he also came to be known as homo spiritualis (spiritual man), as opposed to his colleague and rival Bulgarus, who in the traditional manner adhered more closely to the literal text of the law.

MATTHAEUS DE AFFLICTIS Matteo d’Afflitto (Naples, 1448–1528) – An Italian jurist, much appreciated as a lawyer and writer of consilia, he never held university positions (even though he seems to have aspired to them). President of the Neapolitan Camera della Sommaria, he turned his attention to feudal law. Additiones aureae decisionibus ...noviter appositae quatuor maximi nominibus iurisconsultorum Ioannis Angeli Pisanelli, Prosperi Caravitae, Hieronymi de Martino, ac Antonii Pulverini: omnibus tam in foro versantibus litigioso, quam in scholiis ius caesareum publice profitentibus, ut summe utiles, ita & perquam necessariae doctorum iudicio futurae, Venetiis 1600 [apud Societatem Minimam].

MATTHAEUS Antonius Matthaeus (1564–1637) – Dutch jurist, professor of law in Marburg and then in Groningen (1625–1637). Collegium fundamentorum iuris continens disputationes triginta publice` ab authore habitas partim in Marpurgensi, partim in Groningae et Omlandiae Acade- mia, Groningae 1637 [typis Johannes Sas].

MELANCHTONUS Philipp Schwartzerdt, known as Melanchthon (Bretten, 16 February 1497 – Wittenberg, 19 April 1560) – A German humanist and theologian, he was a close friend of Luther’s, and among the most relevant figures of the Reformation. Highly esteemed as a Hellenist and Latinist, he contributed to establishing several professorships for those disciplines. De dialectica libri quatuor, Witebergae 1531 [Ioseph Klug].

MENOCHIUS Jacopo Menochio (Pavia, 22 January 1532 – 10 August 1607) – Italian Jurist. When he was still a student, he stood out in a public disputation of no less than one hundred quaestiones, which he himself proposed, and which engaged the law faculty of Pavia for over three days. A professor at various Italian universities, he became well known as a writer of consilia, and he was among the most active editors of printed legal works, as well as editor of the impressive collection of the Tractatus universi iuris, printed in Venice in 1584. [1] De adipiscenda, et retinenda possessione amplissima et doctissima commentaria, ... Adiectae sunt rerum notabilium summae, ac index copiosissimus, Venetiis 1571 [apud Ioannem Baptistam Somaschum]. [2] De Arbitrariis Iudicum quaestionibus et causis libri duo, ex postrema auctoris recognitione quam castigatissime editi, Coloniae Agrippinae 1573 [Gymnicus]. 178 Bio-bibliographical Note

MOLLERUS Daniel Moller (Mo¨ller, Mu¨ller) (Braunschweig, 1544 – Leipzig, 14 March 1600) – A German jurist, he was a judge for a brief period at the High Court of Justice and was also a member of the Council of the Electors in the Landesregierung (regional government) of Dresden. Illustrissimi et Potentissimi Principis et Domini, Dn. Augusti, Ducis quondam Saxoniæ, Sacri Romani Imperij Archimarschalli [et] Electoris, Landgrauij Thuringiæ ... Ordinationes & Constitutiones de processu iudiciario, dubiisque aliquot, et in iure controversis casibus, ta`m in curijs prouincialibus, qua`m collegijs facultatum iuridicarum & scabinatuum, reliquisq[ue] ditionum celsitudinis suæ iudicijs, secundum illas definiendis, anno 72. editæ omnes, ex germanica in latinam linguam translatæ: et in easdem commentarii, non verbosi illi quidem, sed breves et succincti, [et] ita tamen scripti, ut [et] in scholis [et] in foro, iuris ta`m Communis qua`m Saxonici, versantibus, usui esse poßint; Cum summariis et indice, rerum et verborum memorabilium, quæ toto hoc opere continentur, locupletissimo, Lipsiæ 1599 [Apud Thomam Schurerium Bibliopolam].

MONTAIGNE (JOHANNES MONTANUS) Jean de Montaigne (fl. first half of 16th century) – Professor of both civil and canon law at the Universities of Toulouse (1506) and Bourges (ca. 1507–08). From about 1510–1516 he was a legal counsellor to Cardinal Louis d’Amboise, bishop of Albi, as well as to his successors, Charles and Jacques Robertet. Tractatus de auctoritate et praeeminentia magni Concilij et parlamentorum regni Franciae, Parisiis ca. 1500.

MYNSINGER Joachim Mynsinger (Mu¨nsinger) von Frundeck (Stuttgart, 13 August 1514 – Helmstedt, 3 May 1588) – A German jurist and a disciple of Zasius, he taught Roman and canon law in Tubingen. He was also appointed as a judge to Reichskam- mergericht and as chancellor of the principality of Brunswick-Wolfenbu¨ttel. His prominent role in the development of so-called cameralist jurisprudence makes him a pioneer of German law. Singularium observationum iudicii Imperialis Camerae (uti vocant) centuriae quatuor iam primum in lucem emissae, Basileae 1563 [apud Nicolaum Episcopium F.].

NAVARRUS Martin de Azpilcueta (Bara´soain, Navarra, 1492 – Rome, 1586) – A theologian and canonist, known as Doctor Navarrus, he was a prolific commentator of canon law. Commentaria in septem distinctiones de paenitentia, Romae 1586 [apud Iacobum Tornerium].

NEGUSANTIUS Antonio Negusanti (Fano, 1465–1528) – An Italian jurist of noble birth (with the counts of Fano), he devoted himself to a judicial and administrative career. He was twice pretor of Florence and auditor of the papal legate in Umbria. Tractatus de pignoribus & hypothecis, Bononiae 1526 [characteribus Cynthii Achillini excussa]. Bio-bibliographical Note 179

NELDELIUS Johannes Neldel (Grossglogau 1554 – Leipzig, 12 February 1612) – German jurist, philosopher, professor of rhetoric and logic, follower of so-called Paduan Aristotelianism. His fame as a jurist is especially tied to his posthumous Commentarii titulum Digestorum de regulis iuris, which evinces a deep knowledge of Justinian’s work. Pratum logicum, organi Aristotelici septis inclvsvm passim viridariis adeoque flosculis conspicuum: sive praxis et usus organi Aristotelici genuinus, Francofurti 1607 [typis Ioannis Spiessij, sumptibus Gothofredi Tambachij].

NOLDEN Josias Nolden (died 1622) – German jurist, especially concerned with the compari- son of Roman and German law. The topics treated in his Disputatio antinomiae juris are similar to those treated in the De casibus perplexis. De statu nobilium civili synoptica tractatio: in qua nobilium jura, privilegia, immunitates, dignitates, dignitatum ordines, ... Cum duplici argumentorum, & rerum memorabilium indice, Gissae Hessorum 1623 [typis & sumptibus Nicolai Hampelii typogr. acadeim].

OLDRADUS Oldrado da Ponte (Lodi, ? – Avignon, ca. 1343) – Italian jurist. A prominent commentator of both canon and civil law, he taught in Bologna and Padua and also worked at the papal curia of Avignon. He was a friend of Petrarch. Consilia et questiones ..., Romae 1478 [Apud Sanctum Marcum (Vitus Puecher?)].

OLINGERUS Paul Olinger – French jurist of the sixteenth century. [1] Orthographia Legalis Nova, et usque huc nequaquam edita, Ex iure civili, adplicatis tamen artis preceptis: collecta, atque concinnata, a D. Paulo Olingero, Utriusque Iuris Doctore, Argentoratense, Argentorati 1555 [Fabricius, Blasius]; [2] Ethicorum Legalium Liber Primus, Iuxta Ordinem quodammodo, & omnino ex verbis Aristotelis, philosophorum omnium facile Principis, Legibus & Iuribus civilibus adiectis. Explicatus per D. Paulum Olingerum, utriusque Iuris Doctorem, Argentinensem. ..., Argentorati 1555 [Fabricius] – This work is mentioned by Busche (1997: 94) as Explicatio ethicorum legalium ex verbis Aristotelis (Straßburg 1555).

OTTO Daniel Otto (fl. 1606–1620) – German jurist, professor at Jena. Dialecticae Juris libri duo, Jenae 1620 [Typis & sumpt. Johannis Beithmanni]. 180 Bio-bibliographical Note

PARIS DE PUTEO Paride del Pozzo (Pimonte, 1410 – Naples, 1493) – Neapolitan jurist, author of a famous treatise on the duel (Vinegia 1544), among other works. The same interests may have led him to write the book De Ludo (Pavia, Christophorus de Canibus, ca. 1494), in which he undertakes a legal analysis of chess (another chivalric form of duel), winding up with the conclusion that this game was permitted for both the laity and the clergy. Solennis et utilis tractatus de re militari vbi en tota materia duelli et singularis certaminis nouiter compilatus... In quo est tractatus de nobilitate: et qui proprie appellandus sit nobilis. Additus est de eadem materia tractatus Io. de lignano et domini Bartholomei Cepole de imperatore eligendo ut quicquid super hoc disputatum et decisum fuit per doctores cumulatissime in hoc uolumine haberetur, Mediolani 1509 [apud Alexandrum Minutianum, impensis Ioannis Iacobi et fratrum de legnano].

PARISIUS Pietro Paolo Parisio (Cosenza, 1473–1545) – Italian jurist and cardinal. He graduated in Bologna, where he taught both canon and civil law, until he was appointed by Pope Paul III as cardinal in Rome, where he taught civil law. He thereafter moved to Padua to teach canon law. He was also president of the Council of Trent. Secundum volumen consiliorum, ac responsorum, Venetiis 1542 [apud Aurelium Pincium Venetum impressum].

PAULUS EREMITA Paulus Tebanus ( ca. 230 – ca. 335) – A learned Egyptian born in a rich family, he is considered by Christian tradition to be the first hermit, forced to this choice by the persecution carried out under Decius.

PAULUS Iulius Paulus (2nd to 3rd century) – Roman jurist of the classical period. He was one of the five jurists mentioned in the Law of Citations. A member of the Imperial Council, he was prefect of Pretorium (along with Ulpian) under the reign of Alexander Severus. Sententiae.

PETRUS Pierre de Belleperche (Lucenay, ca. 1250 – Paris, 1308) – French jurist and scholar. Disciple of Jacques de Re´vigny, he renewed the science of civil law by introducing the dialectical method, borrowed from the Scholastics, a method that would then spread in Italy by his pupil in Orle´ans, Cino da Pistoia. Lectura insignis et fecunda super prima (–secunda) parte Codicis Dominis Iustiniani: vna cum additionibus seu apostillis ..., Parrhisijs 1519 [In edibus M. Petri Gromorsi sub insigni Britannie].

PICCARTUS Michael Piccart or Pickhard (Nuremberg, 29 September 1574–2 July 1620) – German philosopher, philologist, and historian, he taught logic and metaphysics in Altdorf. Bio-bibliographical Note 181

In politicos libros Aristotelis commentarius, Lipsiae 1615 [imprimebat Laurentius Cober, impensis Iohan. Bo¨rneri senioris, & Eliae Rehefeld].

PICUS MIRANDOLANUS Giovanni Pico della Mirandola (Mirandola, 24 February 1463 – Florence, 17 November 1494) – Italian humanist, famous for his formidable memory. He studied canon law in Bologna and by the mid-1480s had moved to Florence, where he became acquainted with Lorenzo the Magnificent, Politian, and Marsilio Ficino. With a belief in the existence of a universal love that joins all creatures, he attempted the challenging task of reconciling scholastic philosophy – Aristotelian and Averroistic, and widespread especially in Padua – with the Platonic philosophy that Ficino was advocating in Florence.

PISTORIS Hartmann Pistor (1543–1603) – Saxon jurist, author of Quaestiones and Observationes, where he puts forward solutions based on a merging of Roman and Saxon law. Quaestiones iuris tam Romani quam Saxonici, Lipsiae 1579 [Steinmanni].

PLINIUS IUVENIS Gaius Plinius Caecilius Secundus (Como, AD 61 – after 113) – Roman writer and senator. Epistolarum libri X.

PLINIUS Gaius Plinius Secundus (Senex) (Como, AD 23 – Stabia, after 8 September 79) – Roman writer. A careful chronicler, he died in an attempt to get close to the Vesuvius and accurately describe the eruption that destroyed Pompeii. His thirty- seven-volume Naturalis historia – his only work to have come down to us – is a naturalistic treatise proper published between AD 77 and the year of his death. This treatise, considered a prime source of knowledge throughout the Renaissance, was described by Plinius’s nephew, Pliny the Younger, as “an erudite and very exhaus- tive work, as varied as nature itself,” on account of the richness of its sources, the extent of the facts reported, and the number of authors cited.

PLUTARCHUS ΠλoύταρχoςΧɛρonέon [Ploutarchos Cheroneon] (Cheronea, ca. 46–127) – Greek writer and philosopher of platonic lineage, he flourished under the Roman Empire. Bίoι Παράλληλoι [Bı´oi Para´lleloi] – The Parallel Lives of Theseus and Romu- lus, mentioned by Leibniz, is the first of the surviving series of parallel lives, and may have been preceded by the lost Lives of Epaminondas and Scipio the African.

POMPONIUS Sextus Pomponius (second century AD) – Roman jurist who flourished during the reigns of Hadrian, Antoninus Pius, and Marc Aurel. He may have been endowed with the power of ius respondendi (though biographical notes are sketchy and controversial) and was a prolific author (noteworthy are his Enchiridion, a short isagogic handbook for teachers; the commentary on Ad edictum; and the Libri ad 182 Bio-bibliographical Note

Sabinum, by reason of which he has been considered as belonging to the Sabinian school). His work has survived only in fragments through Justinian’s Digest.

POSNERUS Caspar Posner (1626–1700) – German philosopher, professor at the University of Jena. Disputatio physica de principatu partium in corpore animalium, sententias Aristotelicae repugnantes exponens atque examinans, Jenae 1659 [Nisius].

PROCULIANI This was the name designating those adhering to either of the two main Roman legal schools of the classical period (the other being that of the Sabinians): its founder appears to have been Labeon, after whom came Nerva and Proculus. The school also enlisted Celsus, both father and son, and Neratius Priscus, among others, and is generally considered the school of innovation, as contrasted with the Sabinians’ conservatism.

PUFENDORFFIUS Samuel Pufendorf (1632–1694) – Saxon jurist, philosopher, and mathematician (he studied under Erhard Weigel, who introduced him to the Cartesian method). Always polemically refusing to complete a doctorate degree, he taught ius naturale, then a nascent discipline, at the faculty of philosophy of the Universities of Heidelberg and Lund. He was privy counsellor to the king of Sweden and is considered to be among the most outstanding representatives of early German Enlightenment. An original feature of his thought is his sharp anti-Aristotelianism (as can be appreciated, for example, in his doctrine of the forms of state). Elementorum jurisprudentiae universalis libri duo, Hagæ-Comitis 1660 [Ex Typographia Adriani Vlacq].

QUINTILIANUS Marcus Fabius Quintilianus (Calagurris, AD 35–40 – Rome, 96) – Roman orator and teacher of rhetoric. He went to Rome from his native Tarragona to practice law, but especially to teach rhetoric, with a salary paid by the state. Institutiones oratoriae.

RAUCHBARUS Andreas von Rauchbar (Quedlinburg, 1559 – 12 September 1602) – German jurist, professor of law at Wittenberg, he was privy counsellor and vice-chancellor to the Elector of Saxony Christian I. Quinquaginta quaestionum insignium, ad iuris communis, Saxonici, et electoris Sax. constitutionum provincialium declarationem pertinentium, quarum pleraeque ex ...Michaelis Teuberi ...adversariis desumptae ...pars ..., Witenbergae 1599 [Clemens Berger].

REBHANUS Johann Rebhan (1604–1689) – Saxon jurist. As a scholar of Roman law, he especially concerned himself with the question of solving perplexing cases and with the commentary on Justinian’s Institutes. Bio-bibliographical Note 183

Hodegeta juris, chartis brevibus viam scientiæ legitimæ simplicem atque rectam designans et edocens, Argentorati 1656 [sumptibus Joh. Friderici Spoor].

RICHTERUS Christoph Philip Richter (1602–1673) – Saxon scholar of Roman law. He espoused the doctrine that draws on the Digest to frame local rights as self-sufficient systems and not as exceptions to Roman law. This process led to an increasing conceptuali- zation of Roman law and gradually gave rise to those systematic principles of early modern jurisprudence which, especially in Germany, were intended to bring regional particularisms into line with the rules of the ius commune. Tractatus de iure et privilegiis creditorum in quo ea, quae in concursu plurium creditorum, quoad eorum locationem & solutionem, tam a litigantibus quam iudicibus observanda sunt, ex iure civili, Saxonico, atq[ue] consuetudinario, resolvuntur, & plurimis sententiis, decisionibus, atq[ue] responsis celeberrimorum Collegiorum Iuridicorum corroborantur; adiecto rerum indice, Naumburgi 1650 [Impensis Viduae Forbergerianae].

RIPA Gianfrancesco Sannazzari della Ripa (1480–1535) – Italian jurist, student of civil and canon law. A disciple of Jason of Maino and Filippo Decio, he taught in Avignon according to the mos italicus. Super Digesto novo veteri et Codice argutissima commentaria in utranque ff. novi partem, veteris secundam, Codicis primam. Ioan. Nicolai Arelatani ... argumentisque locupletissimis de more illustrata ..., Lugduni 1538 [Vincent de Portonariis].

ROBERTUS Jean Robert (died 1509) – French jurist, he taught in Orle´ans and also was royal counsellor. He is known for his controversy with Cujas. Animadversionum iuris civilis libri tres, Parisiis 1580 [Apud Aegidium Beys].

ROMANUS Ludovico Pontano (also known as Romano) (Spoleto, 1409 – Basel, 1439) – Italian jurist belonging to the Bartolist school. He graduated in Bologna (where he studied under Giovanni da Imola) and taught in Siena. He also was a speaker at the Council of Basel, where he and Niccolo` de’ Tedeschi represented Alfonso of Aragona. Consilia & allegationes, Papiae 1485 [Franciscus Girardengus].

RORARIUS Hieronymus Rorarius (1485–1556) – Papal nuncio at the court of Ferdinand of Hungary, he is especially known through Bayle, who in his Dictionnaire historique et critique, under the entry “Rorarius,” takes up a discussion that greatly influenced Leibniz’s thought. The pretext for the discussion was Rorarius’s contention that beasts make better use of reason than men do, which prompted Bayle to analyse the nature of the soul. Quod animalia bruta ratione utantur melius homine libri duo, Parisiis 1648 [Naude´]. 184 Bio-bibliographical Note

ROY Hugo de Roy (17th century) – French jurist. De eo quod iustum est, et circa id Philosophiae, Theologiae, Et Iurisprudentiae syncretismo, libri tres, Ultrajecti 1645 [Ex officina Gisberti a Zyll].

RULANDUS Ru¨tger Rulant (1568–1630) – Saxon jurist, student of Roman law, he also concerned himself with perplexing cases and adjective law. De commissariis et commissionibus Camerae Imperialis, probationis receptionem concernentibus libri quatuordecim duabus partibus comprehensi, in quibus praeter materiam suscipiendi omnis generis probationes, testium scilicet examinationem, instrumentorum transumptionem ...describitur, Francofurti 1597 [Gymnich].

SALICETUS Bartolomeo da Saliceto (Bologna, 1363–1411/12) – Italian commentator of civil law. He was lecturer of the Codex and the Digest at the Bologna studium. He was also active in Bologna’s political life, which at that time was particularly tumultuous. [Pars] Quarta commentariorum doctissimi iuris utriusque interpretis Bartholomei de Salyceto in septimum octavum et nonum Iustiniani Codicis: adnotationibus et summarijs complurium iureconsultorum illustrata: adeo ut nil eorum que in hactenus habebantur excusis exemplaribus quod desiderari possit omissum fit, Ludguni 1532 [Ioannes de Cambray Lugdunen. typographus excudebat].

SALVIUS OTHO Marcus Salvius Otho (Ferentium, 25 April 32 – Brescello, 16 April 69) – Roman Emperor (for 3 months in AD 69). He had been a friend of Nero, but this did not prevent the latter from ousting his friend so as to marry his wife, Poppea. Otho succeeded to Galba and took his own life once he suffered defeat in battle against Aulus Vitellius.

SANCHEZ Francisco Sa´nchez or Sanches (Tuy, 1551 – Toulouse, 1623) – Spanish philosopher of Jewish birth who converted to Catholicism. He earned a degree in medicine (which he taught at the University of Toulouse). In philosophy he was anti- Aristotelian and is considered a forerunner of Descartes. De multum nobili et prima universali scientia. Quod nihil scitur, Lugduni 1581 [Gryphium]. – Engl. transl. That Nothing is Known. Introduction, Notes and Bibliography by Elaine Limbrick, Latin Text established, annotated, and translated by Douglas F. S. Thomson. Cambridge: University Press, 1988.

SARPIUS (PETRUS SUAVIS POLANUS) Pietro [Paolo] Sarpi (Venice, 14 August 1552–15 January 1623) – Italian clergy- man, theologian, historian, and scientist. A man of great and elegant erudition (equipped with a sharp vis polemica) and a thinker of wide-ranging scope, having Bio-bibliographical Note 185 a prominent place in the history of literature and science, for his important contributions in philosophy, mathematics, optics, astronomy, and medicine. He was a strenuous defender of the liberties of the Republic of Venice against the interferences of the Church when Venice came under the papal interdict. Historia del Concilio tridentino, nella quale si scoprono tutti gl’artificii della Corte di Roma, per impedire che ne la verita di dogmi si palesasse, ne la riforma del Papato, & della chiesa si trattasse. Di Pietro Soave Polano, Londini 1619 [Appresso Giovan. Billio. regio stampatore].

SCALIGERUS Giulio Bordon, better known as Giulio Cesare Scaligero or della Scala (Rocca di Riva, 23 April 1484 – Agen, 21 October 1558) – Italian writer, philosopher, and physician, he spent most of his life in France, where he fathered the renowned humanist Giuseppe Giusto. He enjoyed a fame of unequalled wisdom. Exotericarum exercitationum liber quintus decimus, de subtilitate, ad Hieronymum Cardanum. In extremo duo sunt indices: prior breviusculus, continens sententias nobiliores: alter opulentissimus, pene` omnia complectens, Lutetiae 1557 [ex officina typographica Michaelis Vascosani].

SCHEGKIUS Jakob Schegk (ne´ Degen) (Schorndorf, 1511 – Tubingen, 9 May 1587) – German Aristotelian philosopher and physician. He taught philosophy and literature at Tubingen. [1] Commentaria, cum annotatis et repetitionibus quibusdam additis, in hos qui sequuntur organi Aristotelis libros, ad artis partem analyticam pertinentes. In Librum praedicabilium Librum praedicamentorum Librum perihermenias Libros duos analyticorum priorum. Apposuimus etiam locupletem indicem, & graecorum sententiarum interpretationem ..., Tubingae 1570 [apud Viduam Ulrici Morhardi] [2] Perfecta et absoluta definiendi ars, ab Aristotele tractata et exposita sexto Topicorum, qui est de definitione, & septimo, qui est de eodem & alio, libris, Tubingae 1556 [apud Viduam Ulrici Morhardi].

SCHENCKIUS Generosus Friedrich Schenck von Tautenburg (1503–1580) – Jurist and bishop of Utrecht. Tractatus de probationibus,inTractatus ex variis iuris interpretibus collectorum, vol. 5, Lugduni 1549 [Bertellus].

SCHEPLIZUS Joachim Scheplitz (Wittstock/Dosse, 1566–1634) – German jurist and chancellor under the Grand Duke of Brunswick-Lu¨neburg. In addition to the work mentioned by Leibniz, he completed Balthasar Klammer’s unfinished Promptuarium tam juris civilis quam feudalis. Consuetudines Electoratus et Marchiae Brandenburgensis: Collect[a]e & desumpt[a]e ex literis reversalibus concessis ordinibus provinciarum & conventibus publicis, edictis & mandatis, Lipsiae 1616 [Grosius]. 186 Bio-bibliographical Note

SCHICKARDUS Martin Schickhard (1579–1636) – German jurist, for 24 years professor of law at the University of Herborn. Logica juridica hoc est regulas, praecepta et modum argumentandi per inductiones et interpretationes legum ...collecta a Martino Schickhardo ... Item duo commentarioli, quorum unus est de principiis juris, alter ad fragmenta LL. XII. tabb ..., Herbornae Nassoviorum 1615 [typis C. Corvini].

SCHNEIDEWIND Johannes Schneidewind (Stolberg [Harz], 20 December 1519 – Zerbst, 4 December 1568) – German jurist, friend and prote´ge´ of Martin Luther, he studied under Melanchton and Justus Jonas senior. He is especially known for his commentary on the Institutes, edited after his death by Wesenbeck (which see), in which he analysed the whole ius commune (both civil and canon law), the Halsgericht- sordnung of Charles V, and Saxon law. The book was condemned by the Inquisition and was blacklisted in the List of Prohibited Books.

SCHOOKIUS Marten Schoock (Utrecht, 1 April 1614 – Frankfurt/Oder, 1669) – Dutch polygra- pher, reputed to be a plagiarist (he seems to have been the author of an alleged eyewitness account claiming that Giordano Bruno was not actually burned at the stake but only in effigy). Professor of classical literature, rhetoric, and history in Deventer, then of logic and physics at Groningen, he was also the official chronicler for the Elector of Brandenburg. His writings contain frequent and fierce attacks on the pope, for which reason in 1700 they were blacklisted in the List of Prohibited Books. Diatriba de Jure Naturali ejus naturam non modo explicans, sed ordine quoque exhibens capita, ad illud pertinentia. Proposita in Academia Groningæ et Omlandiæ, Groningae 1659 [Co¨llenius].

SCHWARZENTHALER Johann Baptist Schwarzenthaler (1550–1603) – German jurist. He especially concerned himself with privileges, a question he addresses relying on the logic of the late Scholastics. Tractatus de pignoribus et hypothecis in quo leges insigniores et universa pignorum ac hypothecarum hypothesis, conclusionibus ad varias personarum, rerum, causarum, qualitatum & effectuum circumstantias pertinentes uberrime` explanantur; accesserunt praeterea et alii duo tractatus, quorum prior est de novationibus & delegationibus, posterior vero` continet tabulam iuris repraesentandi circa successionem testatorum & intestatorum; addito notabilium indice, Francofurti 1594 [Wechel, Marnius & Aubrius].

SCHWENTERUS Daniel Schwenter (Schwender) (Nuremberg, 31 January 1585 – Altdorf, 19 January 1636) – German mathematician, orientalist, poet, and librarian. Professor of math- ematics at Altdorf, he spoke Greek, Hebrew, Arab, Syrian, and Aramaic. He is also known for his innovative contributions to optics. Bio-bibliographical Note 187

Deliciae physico-mathematicae, oder Mathematische und philosophische Erquickstunden, Norimbergae 1636 [In Verlegung Jeremiae Du¨mlers]. – Probably, Leibniz knew (and in On perplexing cases he cites) the posthumous edition of 1677 (Nurnberg, in Verlegung Wolffgang Moritz Endter und Iohann Andreae Enters, Sel. Erben), entitled Deliciae mathematicae et physicae: der mathematischen und philosophischen Erquickstunden, zweyter Theil, bestehend in fu¨nffhundert nu¨tzlichen und lustigen Kunstfragen nachsinnigen Aufgaben und derselben gru¨ndlichen Erkla¨rungen, aus Athanasio Kirchero, Petro Bettino, Marino Mersennio, Renato des Cartes ... und vielen andern Mathematicis und Physicis zusammen getragen durch Georg Philipp Harsdo¨rffern, eines Ehrlo¨blichen Stadtgerichts zu Nu¨rnberg Beysitzern.

SCOTUS John Duns Scot (Maxton, 1265 – Colonia, 8 November 1308) – Scottish philoso- pher and theologian, one of the most prominent representatives of Scholasticism, also known as Doctor subtilis. He spent most of his life in Paris, where he had strained relations with King Philip IV, who expelled him more than once from France. Scotus’s philosophy had an especially strong following among Franciscans.

SENECA Lucius Annaeus Seneca (Cordoba, Spain, AD 4 – Rome, 65) – Roman Stoic philosopher and tragedian. He was Nero’s preceptor. Accused of having been involved in the Pisoni conspiracy, he was ordered to kill himself, a kind of death that the philosopher held to be the extrema ratio for a sage who could no longer lead a good life. Aepistula contra Heraclitum,inEpistulae morales ad Lucilium (Aepist. n. 58).

SIGEBERTUS GEMBLACENSIS Sigebert de Gembloux (ca. 1030 – Gembloux, 5 October 1112) – French Benedic- tine monk and chronicler. An erudite man, he also knew Greek and Hebrew. A strenuous defender of the imperial party during the controversy over investiture, his Chronographia stands out as a prominent source of information about the period from 381 to 1111.

SOCINUS JUN Mariano Sozzini or Socini “the Younger” (Siena, 1482–1556) – Italian jurist. Nephew of Socinus (which see below), born into a family of freethinkers, he is among the most interesting figures of fifteenth-century Bartolist jurisprudence. Professor at Siena, Pisa, Bologna, and Padua, he was equally concerned with canon and civil law. Commentaria in. ff. Infort. & Novum gravissima, atque utilissima, nunc longe quam antea ab omnibus mendis repurgata. Cum summarijs, & copiosissimo indice alphabetico, Augustae Taurinorum 1576 [heredes Nicolai Bevaquae].

SOCINUS Mariano Sozzini or Socini “the Elder” (Siena, 1401–1467) – Italian canonist, disciple of Abbas Panormitanus, he taught canon law at Siena and Padua. His works rely on the typical method proceeding by distinctiones. 188 Bio-bibliographical Note

Consiliorum seu potius Responsorum Mariani Socini ac Bartholomaei filii Senensium ...volumen primum, Venetiis 1571 [apud Guerreos fratres & socios].

SOTO Domingo de Soto (1494–1560) – Theologian from Segovia, monk of the Order of Preachers. Along with Francisco de Vitoria, he was the most outstanding figure of the philosophical school of Salamanca, where he taught theology. Today he is remembered as a forerunner of modern mechanics. He took part in the Council of Trent on behalf of Emperor Charles V. De iustitia & iure libri decem, Salamantica 1556 [Portonarius].

SPEIDELIUS Johann Jakob Speidel (1595? – 1666) – German jurist. His Thesaurus alphabetically collects 14,000 questions and 8,000 decisions intended to exhaust the whole of practical knowledge by exemplifying all possible arguments in a topological organization of jurisprudence and politics. Speculum Iuridico-Politico-Philologico-Historicarum Observationum et Notabilium; Verborum, Rerum et Antiquitatum, Germanicarum ... in quo insuper non solum ipsius additiones, quae ad Thesaurum practicum D. Christophori Besoldi congestae, ac ante aliquot annos Augustae Vindelicorum impressae sunt, debitis locis, ob rerum & materiarum cohaerentiam, & similitudinem, maioremque notitiam adiunctae, simulque ad marginem, in gratiam & faciliorem usum lectoris, remissiones, ex praedicti D. Besoldi, ut & Pauli Matthiae Wehneri, nec non Johannis Rudingeri Observationib. Practicis & Singularib., &c. exhibentur, & repraesentantur ...Ad finem adiecto indice verborum, &c. diligenti, Norimbergae 1657 [Endteri].

SPERLINGIUS Johann Sperlings (Zeuchfeld, 12 July 1603 – Wittenberg, 12 August 1658) – German physician, zoologist, and physicist. Synopsis physica, Wittebergæ 1640 [Iohannes Bergerius].

STATIUS Aquiles Estac¸o (12 June 1524 – Rome, 28 September 1581) – Portuguese philoso- pher and humanist. In May 1581 he bequeathed to Filippo Neri and his congrega- tion some 1,700 printed works and 300 manuscripts. He wrote a biography of Catullus. Hipparchi Bithyni in Arati et Eudoxi Phaenomema libri 3. Eiusdem Liber asterismorum. Achillis Statii in Arati Phaenomena. Arati vita, & fragmenta aliorum veterum in eius poema, Florentiae 1567 [in officina Iuntarum, Bernardi filiorum].

STEPHANI Matthias Stephani (Pyritz, 22/24 February 1570 – Wolgast, 26 August 1646) – German jurist and political counsellor. Doctor in utroque iure at Heidelberg. He also studied practical philosophy at Jena and was professor of law at Rostock. Dialectica iuris exactissima et absolutissima, ex omnibus optimorum iuriscon- sultorum Libellis Dialecticis et Topicis legalibus ita concinnata, summoque studio Bio-bibliographical Note 189 collecta, utaliunde, quam ex hoc libro tota doctrina Logices legalis petenda non sit, Francofurti ad Oderam 1610 [Ioannes Saurius. impensis Petri Kopffij] – Better known as Dialectica seu topica juris.

STRAUCHIUS Johann Strauch (Colditz, 1612 – Giessen, 1679) – German Protestant jurist, was pro-rector at the University of Jena. Ad universum jus justinianeum privatum Dissertationes undetriginta theoretico- practicae, Ienae, [Nisius]; Wittenbergae [Hartmannus] 1666.

STRIGELIUS Victorinus Strigel (Kaufbeir, 16 or 26 December 1524 – Heidelberg, 26 June 1569) – German theologian and promoter of the Reformation. He is known for his famous public disputation with Flaccius Illiricus at Weimar.

STRUVIUS Georg Adam Struve (Magdeburg, 1619 – Jena, 1692) – German jurist, professor at Jena (by 1646). He was assessor to the Court of Halle and was appointed to various administrative offices. Exercitationes seu dissertationes ad Pandectas [ Syntagma juris civilis universi ], Jenae 1655–63 [Birckner].

SUAREZ Francisco Suarez (1548–1617) – Outstanding Spanish Jesuit theologian, member of the so-called School of Coimbra.

TEOPHILUS Θɛo´φιλoς Ἀnτικɛnσo´ρoς [Theophilus Antecessor ] (sixth century BC) – Byzantine jurist, colleague of Tribonian and Dorotheus in the writing of the Institutes. His fame is especially tied to his Paraphrases to the same Institutes. Ἰnστιτoῦτα Θɛo´φιλoυ Ἀnτικɛnσo´ρoς. Institutiones Theophilo Antecessore, Graeco interprete. Imper. Iustiniani Institutionum libri 4. Paratitla & notae ad eundem Theophilum Graecum, Latinumque [a Jacobo Curtio] ipsis institutionibus Latinis ek parallelou coniunctum commissumque. Graeca titulorum de verborum significatione, et de regulis iuris fragmenta hinc & inde collecta. Dionysio Gothofredo I.C. authore, Genevae! 1587 [apud Guillelmum Laemarium].

TESSAURUS Antonino Tesauro (Fossano, 1521 – Turin, 1586) – Italian jurist from Piedmont. Sir of Salmur, he was a member of Turin’s senate under Charles Emanuel of Savoy, president in the town of Asti and at marquisate of Ceva. His Decisiones (mentioned by Leibniz) were highly regarded, among other reasons because of their relevance to local government, since they were binding. Boucher’s (Leibniz 2009: XXX) identification of Tesauro with Gaspare Antonio is mistaken (the latter was in reality Antonino’s son). Novae decisiones sacri senatus Pedemontani ... Adiecto duplici Indice, uno Decisionum, altero Notabilium copiosissimo, Venetiis 1591 [apud Hieronymum Polum]. 190 Bio-bibliographical Note

THOMASIUS Jacob Thomasius (1622–1684) – German philosopher and jurist, professor of rhetoric, dialectics, and moral philosophy at Leipzig, where he was the teacher whom Leibniz was most tied to, becoming his mentor and close friend. Their correspondence is famous and important for Leibniz’s intellectual development. [1] Philosophia Practica continuis Tabellis in usum privatum comprehensa, Lipsiae 1661 [Fuhrmann]. [2] Exercitatio antibodiniana de minimo numero personarum familiae itemque civitatis, quam indultu ... praeside M. Jacobo Thomasio ... anno 1663. d. 11. Julii horis locoque consuetis defendit Johannes Ulricus Mayer, Lips. philosophiae baccalaur., Recusa Lipsiae 1673 [typis Johannis-Erici Hahnii].

TIRAQUELLUS Andre´ Tiraqueau (Fontenay-le-Comte, 1488–1558) – French judge, jurist, and humanist. A man of exceptional erudition (nicknamed the Varro of his century), he was a member of the Parliament of Paris. As a jurist, he especially concerned himself with reorganizing the different legal concepts of both the ius commune and the droit coutumier. Commentarii de nobilitate, et iure primigeniorum, Parisiis 1549 [Kerver].

TREUTLERUS Hieronymus Treutler (1565–1607) – German jurist, professor of rhetoric, and imperial councillor. Selectarum disputationum ad jus civile Justinianaeum quinquaginta libris Pandectarum comprehensum volumina duo, Marpurgi Cattorum 1594 [apud Egenolphum].

TRIBONIANUS Tribonianus (Panfilia? end of the 5th century – died 542–43) – Jurist and Justinian’s minister (he was Quaestor sacri palatii), he presided the committee appointed by the Emperor to compile the corpus iuris. A pagan who never converted to Chris- tianity, he was attacked by Procopius of Caesarea and also, many centuries thereaf- ter, by Franc¸ois Hotman in his famous Antitribonianus.

TURTURETUS Vincenzo Tortoreto (16th to 17th century) – Jurist and moralist born in Sicily. The Parallela ethica et juridica (Paris 1629), mentioned by Leibniz, correspond to Collationes moralis doctrinae cum jurisconsultorum decretis, Parisiis, 1634 [apud F. Lermite], at least according to D. Maffei, Le fonti giuridiche del Leibniz, in Leibniz (1960: 211–20). Tortoreto’s bibliography supports the eminent Italian scholar’s finding, making it difficult to disagree with him.

ULPIANUS Aenea Domitius Ulpianus (Tyre, ca. AD 170 – Rome, 228) – Roman jurist. Born in the Province of Syria, under the prefecture of the jurist Papinian, he was prefect of the Pretorium along with the jurist Paulus. He is one of the five jurists which the Bio-bibliographical Note 191

Law of Citations (426) issued by the Emperors Theodosius II and Valentinian III established as the authorities which judges should look to in their decisions.

UNGEBAUERUS Erasmus Ungepauer (1582–1659) – German historian and professor of law. Exercitationes de jure principis authoris in privilegia, in Ahasver Fritschius, Exercitationes variae juris publici P. 1, Norimberage 1670 [Mu¨ller].

VALERIUS MAXIMUS (Rome, ? – after AD 31) – Roman historian, member of Ovid’s literary circle. Facta et dicta memorabilia.

VALERIUS Cornelis Wouters (Utrecht, 1512–1578) – Dutch humanist, student of rhetoric, ethics, and logic. He was an opponent of Aristotelian cosmology and a supporter of Mosaic cosmology. Tabulae totius dialectices, artium reliquarum instrumenti, praecepta utilissima facili compendio complectentes, ordine perpicuo digestae, Coloniae 1551 [Gennepaeus].

VALLA Lorenzo Valla (Rome, 1405 or 1407 – 1 August 1457) – Italian humanist, philolo- gist, and philosopher. He taught rhetoric in Pavia, where he developed his legal skills, but he antagonized the jurists themselves and was thus compelled to flee from the city. His ability to make enemies, on the other hand, was paralleled by his eloquence. Nor did he shrink from making the bold claim that a milestone of medieval jurisprudence such as the Constitutum Constantini was a fake. Dialecticarum disputationum libri tres eruditissimi: diversorum codicum collatione diligenter restituti. Adpositis passim graecis dictionibus, quae in alijs desiderabantur, Coloniae, 1530 [excudebat Ioan. Gymnicus].

VALLESIUS Francisco Valle`s (1524–1592) – Spanish physician and philosopher, personal physician to Philip II. He is the author of various commentaries on Hippocrates’s and Galen’s treatises. De iis, quae scripta sunt physice` in libris sacris, siue de sacra philosophia, liber singularis, Augustae Taurinorum 1587 [apud haeredem Nicolai Beuilaquae].

VARRO Marcus Terentius Varro (Rieti, 116 BC – Rome, 27 BC) – Roman scholar and statesman (he was quaestor, tribunus plebis, praetor). His erudition was such that throughout the Middle Ages he was still considered the greatest erudite of all Roman times. Indeed, he wrote on topics covering just about the whole of human knowledge. His short dialogical work De re rustica, mentioned by Leibniz, is one of his two works to have survived in their entirety.

VENTURUS DE VALENTIA Georg (Ju¨rgen) Valentin von Winther (Treptow an der Rega, 5 November 1578 – Szczecin, 16 March 1623) – After being employed with the Reichskammergericht of Speyer, he became chronicler and court counsellor to Duke Philip II of Pomerania. 192 Bio-bibliographical Note

VIETA Franc¸ois Vie`te (Fontenay-le-Comte, 13 December 1540 – Paris, 23 February 1603) – French mathematician and statesman. Advocate in the Parliament of Paris, he was renowned for his ability to decipher encrypted messages. As a mathemati- cian, he is especially known for his contributions to trigonometry and for the introduction of a symbolic calculus for solving mathematical problems. See also On Perplexing Cases, note b to Sec. IV.

VIGELIUS Nikolaus Vigel (1529–1600) – German jurist and professor of law born in Treysa (Hesse), he taught at Marburg and is considered one of the most important German jurists of the sixteenth century. [1] Dialectica iuris civilis, Basel 1573 (cf. Busche 1997: 93) ¼ Methodus juris civilis (cf. Maffei, in Leibniz 1960: 219). [2] Methodus iuris controversi, in quinq[ue] libros distincta cum ratione iuris controversi cum iudicio legendi, & in iudicando sequendi, operi præfixa, Basileae 1579 [ex officina Oporiniana].

VULTEJUS Hermann Vultejus (Vulte´e) (Wetter bei Marburg, 16 December 1555 – Marburg, 31 July 1634) – German jurist. After his studies in Heidelberg, Padua, and Siena, he became rector of the University of Marburg. In addition to covering Justinianean and feudal law at length, he was also attentive to the needs of practice, especially from the point of view of logical systematization, the common foundation of both legal rationalism and natural law. Iurisprudentiae Romanae a Iustiniano compositae libri II, Marpurgi 1590 [Egenolffus].

WEIGELIUS Erhard Weigel (16 December 1625–21 March 1699) – German mathematician, astronomer, and philosopher. He was professor of mathematics at the University of Jena, where he was a teacher of Leibniz in 1663. Analysis aristotelica ex Euclide restituta, genuinum sciendi modo et nativam restauratae philosophiae faciem per omnes disciplinas et facultates icnographice´ depingens ..., Jenae, 1658 [apud Henn. Grosium, typis Nisianis].

WESENBECIUS Matthaeus Wesenbeck (Antwerp, 1531 – Wittenberg, 1586) – A Flemish jurist, in his time he was among the major commentators of Roman law, which he taught at Jena and Heidelberg. He was also esteemed as a man of letters. Ioan. Schneidewini In quatuor Institutionum imperialium D. Iustiniani libros commentarii ex recognitione et cum annotationibus Matthaei Wesenbecii, Argentorati 1575 [Rihelius].

WINCLERUS Benedikt Winkler (1579–1648) – German jurist, considered a forerunner of Grotius. Rousseau accused him of treating natural law in vague terms only and of conflating Bio-bibliographical Note 193 it with positive law, as well as of putting “la science du droit au service de la the´ologie.” Principiorum juris libri quinque in quibus genuina juris, ta`m naturalis qua`m positivi, principia et firmissima jurisprudentiae fundamenta ostenduntur, eiusdem summus finis ob oculos ponitur, et divina autoritas probatur, Lipsiae 1615 [Thimius].

ZABARELLA Giacomo (Jacopo) Zabarella (Padua, 5 September 1533–15 October 1589) – Italian philosopher born into a noble and ancient family (he was a Palatine Count). He graduated in Padua, where by 1563 he was teaching logic, and then, by 1578, natural philosophy. He is the greatest exponent of the Paduan Aristotelianism. Liber de accretione et nutritione,inDe rebus naturalibus libri XXX, Francofurti 1607 [L. Zetzner].

ZACHIAS Paolo Zacchia (Roma, 1584–1659) – Italian physician, considered one of the fathers of legal medicine. We do not know whether he was also a jurist, but there is no doubt that in his work he constantly brings jurisprudence into parallel with medicine and theology. Indeed, he acknowledges the utility of jurisprudence, while also conceding that jurists have a bad habit of relying on the authority of the doctores and interpreting laws not “secundum veritatem, sed secundum proprium affectum” (not according to the truth, but according to their feelings). Quaestiones medico-legales, Romae 1621–1651 [sumptibus Andreae Brugiotti, apud Iacobum Mascardum].

ZANGERUS Johann Zanger (Braunschweig, 1557 – 6 September 1607) – German jurist, disciple of Doneau and Vultejus, he taught law at Wittenberg, where he also sat in the Konsistorium. He was a member of the Niederlausitzer Landgerichts (Local Court of Law of Niederlausitz). Tractatus de exceptionibus, Wittenbergae 1593 [typis Zachariae Lehamnni, impensis Pauli Helvvichii].

ZASIUS Ulrich Za¨si (Constance, 1461 – Freiburg im Breisgau, 1536) – German jurist, among the most prominent scholars of Roman law of his time, he was also a renowned theorist and philologist. He contributed to the renewal of the ius com- mune, of which he studied both the civil and the canon side, without neglecting German public and civil law. In titulum FF. [ Digestorum ] de verborum obligationibus lectura, Lugduni 1546 [Beringus].

ZIMARA Marcantonio Zimara [Zimarra] (Galatina, 1475–1535) – Italian physician and philosopher, he taught in Padua (1507), and then in Salerno, where he wrote a guide to the works of Aristotle and Averroes. References

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Leibniz on the Laws of the Universe and the Universe of the Laws

Gottfried Wilhelm Leibniz offered an astonishing breadth and depth of work. He was much more than a great philosopher, logician, and mathematician, the three fields for which he is perhaps most widely known. Among his many other accomplishments was significant work – not infrequently prescient, often deeply innovative – in physics, engineering, and geology. He accomplished all of this while working as a diplomat, historian, librarian and jurist. One might well say that Leibniz, born a little more than two hundred years after the quintessential “Renaissance man,” Leonardo da Vinci, was himself such a polyedric genius. On the subject of Leibniz’ life as a polymath, we can do no better than to quote the eighteenth-century philosophe Denis Diderot. Diderot firmly disagreed with Leibniz on many points, not least Leibniz’ profound theological optimism which contrasted sharply with Diderot’s atheism. But in the entry for Leibnizianism or the philosophy of Leibniz (Le´ibnitzianisme ou Philosophie de Le´ibnitz) in his Encylopedia, Diderot (2009) said this: No man has perhaps ever read as much, studied as much, meditated more, written more than Leibniz. No body of works exists for him though. It is surprising that Germany – to which this man alone has given as much honor as Plato, Aristotle, and Archimedes combined have given to Greece – has still not collected what has left his pen. What he has composed on the world, God, nature, on the soul includes the most sublime eloquence. If these ideas had

1 This essay was written by Scott Brewer. He wishes to thank, first and foremost, his colleague Giovanni Sartor, both in general and more specifically for deep, rich discussions of the problems and prospects of axiomatization in law which, as we shall see, was a central part of Leibnizian jurisprudence. He also thanks his Harvard colleagues James Griener and Duncan Kennedy, and his Harvard Law School classes for the fall of 2012, “Catch-22 and the Law” and “Reason in Law: The Challenges of Skepticism and Paradox.”

A. Artosi et al. (eds.), Leibniz: Logico-Philosophical Puzzles in the Law: Philosophical 199 Questions and Perplexing Cases in the Law, Law and Philosophy Library 105, DOI 10.1007/978-94-007-5192-7, © Springer Science+Business Media Dordrecht 2013 200 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective

been executed with all the color of Plato, the philosopher of Leipzig would forfeit nothing to the philosopher of Athens.2 The present book both celebrates and explains a particular period of Leibniz’ life and the work he did at that time. It was the period when Leibniz, over the brief age range from eighteen to twenty-three, did a doctorate in law, wrote another short work on law, became a lawyer and then worked for a while as a judge. It was during this period that the young Leibniz wrote the two works that are presented in this book, in both Leibniz’ original Latin and in English translation, with explanatory prefaces to each section: Specimen of Philosophical Questions Collected from the Law (Specimen quaestionum philosophicarum ex jure collectarum)and Dissertation on Perplexing Cases (Dissertatio inauguralis de casibus perplexis). It was in the course of writing these two works that Leibniz formulated jurisprudential ideas that would endure throughout his career, including his emphasis on the impor- tance of philosophy for explaining, developing, and understanding law. The idea that philosophy – in our current conception of that discipline3 – can and should serve as a foundation for the explanation and development of law has become commonplace in contemporary jurisprudence. However, in Leibniz’ day, few others had advanced or argued this claim, and none other emphasized, as Leibniz did, that law required philosophy as a foundation. Thus to those of us who believe today that philosophy is deeply important in the development and understanding of law in many ways, the idea that the young Leibniz advanced in such articulate detail in the mid-seventeenth century was pathbreaking. We think it deserves to be recognized as yet another instance of Leibniz’ precocious poly- mathic contributions, along with those to which Diderot referred in the passage from the Encyclope´die quoted above. This Essay focuses on one specific jurisprudential idea that Leibniz devel- oped during and advanced in the Specimen and in the Dissertation, namely the importance of logic for modeling, explaining, discerning, and understanding law and legal process. It comments on the way in which the young Leibniz advanced creative ideas about the relation of logic and law that remain both fertile and contentious today, especially in Anglo-American jurisprudence. It concludes with an examination, sometimes critical, of some specific “perplexing” paradoxes in and related to law that Leibniz discussed, in his lifelong effort to bring “the light of reason” to law through the use of logic (and other philosophical tools).

2 The original reads as follows: Jamais homme peut – eˆtre n’a autant luˆ, autant e´tudie´, plus me´dite´, plus e´crit que Leibnitz; cependant il n’existe de lui aucun corps d’ouvrages; il est surprenant que l’Allemagne a` qui cet homme fait lui seul autant d’honneur que Platon, Aristote & Archimede ensemble en font a` la Grece, n’ait pas encore recueilli ce qui est sorti de sa plume. Ce qu’il a compose´ sur le monde, sur Dieu, sur la nature, sur l’ame, comportoit l’eloquence la plus sublime. Si ces ide´es avoient e´te´ expose´es avec le coloris de Platon, le philosophe de Leipsic ne le ce´deroit en rien au philosophe d’Athenes. (Diderot 1765) 3 The conception of philosophy in Leibniz’ day was much broader than what is now considered the discipline of philosophy. While today the discipline of philosophy is comprised of work in meta- physics, epistemology, logic, and moral theory, Leibniz’ contemporaries thought of philosophy as including not only these subdisciplines but also mathematics, empirical sciences, and theology. Leibniz and Legal Axiomatics: The American (Mis)understanding 201

Leibniz and Legal Axiomatics: The American (Mis) understanding

American jurisprudence is still arguing with Leibniz, and has been too broad and too careless in rejecting Leibniz’ insight, already displayed in the young works translated below, that logic, including but not limited to deductive logic,4 can be a tool of great value for clarifying, explaining, and articulating law. That is the proposition presented in this section. Throughout his career, from the youth who wrote the pages below to the mature scholar in his twilight years, Leibniz believed that law, properly understood, was an axiomatizable system in just the way that Euclidean geometry is such a system. Why would geometry be felt to be such a powerful model for law by Leibniz and those of his (less influential) forebears and successors? Axiomatic systems generate proofs, that is, arguments in which conclusions are inferred from premises. Axiomatic proofs provide an effective procedure for deciding whether a given argument is justified according to the rules of the axiomatic system. Those rules are mechanically applica- ble, and thus easily testable. That is the kind of system that Euclid constructed in his Elements. It seems obvious that argument and putative proof are constantly offered in law. If the law of a country – or a universal “natural law” – could be axiomatized, then there would be for law, as for geometry, an effective method of testing the acceptability of any proof that a lawyer or judge offered. A procedure is effective when there is “a set of rules determining univocally each one of the steps in the procedure, which leads, in every case where it is applied, to the desired solution in a finite number of steps” (Alchourron and Bulygin 1971, 85). This was the attraction of the axiomatic model of law to Leibniz. (There are jurists today still attracted by this model). It was especially attractive to Leibniz, perhaps, because the young Leibniz faced a cacophony of laws varying for influence: canon law, natural law, Roman law, as well as local regional laws. And it seemed to many, including Leibniz, that judges of these competing systems were rendering arbitrary judgments instead of judgments that flowed and were justifiable and justified by means of reason. (See the discussion in Sects. 2 and 3 of the Introduction.) An axiomatic system of law would serve to constrain judges, to expose judges who failed to apply the rules of the axiom system properly, and to provide clear notice to the subjects of law what were their obligations under the law. Although other philosophers and jurists had an axiomatic conception of law, it seems fair to say that, by virtue of this lifelong articulation of that conception, Leibniz was among the most influential expositors of that conception.5 Among those theorists who were attracted by the axiomatic paradigm, there developed

4 For a discussion of the concept of logic relied upon in this Essay, see below, notes 11, 12, and accompanying text. 5 For discussion, see Hoeflich (1986). 202 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective different views of the sources of the axioms of law. Some believed that those sources were natural law, as revealed by reason (often taking Roman law as evidence of the applicable natural law axioms). Others, like Freidrich Carl von Savigny, prime mover of the “historical” school of jurisprudence in Germany, believed that the axioms could be determined from a careful analysis of the historical conditions of a particular sovereign state. One even sees strong traces of the axiomatic conception of law in the work of the English philosopher John Austin (deriving laws from the first principles of utilitarianism) and the English jurist William Blackstone.6 The young Leibniz recognized two sources for the axioms of law. One source was reason acting on the evidence of Roman law to discern natural law. The other source was the set of judgments that jurists made in particular cases on the basis of the actual laws of a given country.7 In this way Leibniz seems to offer a creative synthesis of the natural law and the historicist traditions of legal axiomatics. As noted, the influence of Leibniz as one of the most influential expositors of the axiomatic conception of law extended far and wide, across Continental Europe, over to England, and over to the United States as well. Of particular interest in our discussion in this Essay was the particular form the theory of the axiomatization of law took in the work of Christopher Columbus Langdell. Langdell was the first dean of the Harvard Law School, appointed in 1870. He was the creator of the “case method” of legal pedagogy that has dominated American legal education ever since. Langdell offered an axiomatic conception of law, as evidenced from this well-known passage from his pioneering casebook, Cases on Contracts: Law, considered as a science, consists of certain principles or doctrines. To have such mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer.... The number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is constantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable in their number. (Langdell 1879, viii–ix) We may pause to note the remarkable similarity of Langdell’s assertion here to a passage from Leibniz’ De arte combinatoria. In comparing geometry and cases at law he asserts that: both [geometry and law] have elements and both have cases. The elements are simples (simplicia); in geometry figures, a triangle, circle, etc.; in jurisprudence an action, a promise, a sale, etc. Cases are complexions (complexiones) of these, which are infinitely variable in either field. Euclid composed the Elements of Geometry; the elements of law are contained in the Corpus Juris [...] To us it seems thus: the [simple] terms from whose complexion there arises the diversity of cases in the law are persons, things, acts, and rights.8

6 See Hoeflich (1986: 108; 110–12). 7 See Introduction, Sect. 2. 8 (A VI/1 189, L 82). Quoted and cited in the Introduction, Sect. 5. See further discussion there of the comparison Leibniz makes between geometry and law. Leibniz and Legal Axiomatics: The American (Mis)understanding 203

It seems fair to say that Langdell, the American legal academic, writing two centuries after Leibniz, was in this passage articulating the very paradigm of law as axiomatic system that Leibniz began to advance in his youth and maintained through- out his career. In that way, Langdell might be thought of as an American Leibnizian!9 But Langdell identified a source for the law’s axioms different from the source that Leibniz had articulated. As we have seen, Leibniz recognized both the positive law of an existing jurisdiction and natural law (largely as evidenced by Roman law) as the sources of the law’s axioms.10 In contrast, Langdell believed that the axioms of law – his term was ‘principles’ – were derived empirically, just as the empirical science of physics infers axioms of physics from empirical observations. The data for this empirical judgment, in his view, were cases decided and reported by courts. In this way Langdell relied on a variant of Savigny’s “historicist” axiomatics. Langdell’s version of legal axiomatics provoked what has been an enduring jurisprudential backlash by the so-called “Legal Realists,” led by Oliver Wendell Holmes. In a review of a book in which Langdell sought to put his empirical axiomatics into practice, Holmes (1880, 234) declared his famous edict, “The life of the law has not been logic; it has been experience.” Holmes repeated this edict, adding an emphasis on his rejection of the Leibnizian-Langdellian axiomatic conception of law, on the very first page of his influential book The Common Law: The object of this book is to present a general view of the Common Law. To accomplish that task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.(Holmes1881, 1) (emphasis added) Holmes had a profound impact on American jurisprudence. In the course of rejecting the Leibnizian-Langdellian axiomatic conception of law, Holmes led a generation of scholars to become wary of any use of “logic” in legal argument. In his essay The Path of the Law, perhaps even more influential than his book The Common Law, Holmes describes “a ...fallacy which I think it important to expose”: The fallacy to which I refer is the notion that the only force at work in the development of the law is logic.... The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and, if they would take more trouble, agreement inevitably would come. This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form

9 For further discussion see Grey (1983). 10 See Introduction, Sect. 2. 204 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective

lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self-evident, no matter how ready we may be to accept it, ...(Holmes 1998, 705 – 706) (emphasis added) To understand what is right and also what is wrong with Holmes’ critique of the Leibnizian-Langdellian axiomatic conception of law, we may be aided by a con- temporary conception of the concept of logic and the definitions of two terms that help explicate this concept (namely, the terms ‘argument’ and ‘mode of logical inference’). Understanding this conception of logic will help us in two important ways. First, it will help us understand the strengths and weaknesses of Holmes’ criticism of the Leibnizian-Langdellian axiomatic conception of law. Second, it will reveal the truly pioneering and sophisticated conception of logic that Leibniz articulated in his analysis of the role of logic in the analysis of law. According to this conception of logic, logic is the study of the different modes of logical inference that different kinds of arguments display. Here we define the term ‘argument’ as a set of propositions (one or more), called ‘premises’, that are offered to provide inferential warrant for another set of propositions (one or more), called ‘conclusions.’ To say that one proposition, label it ‘ɛ’ (this is a premise in the sense just defined), provides inferential warrant for another proposition, label it ‘h’ (this is a conclusion in the sense just defined), is to say that, according to the argument presented, the truth of ɛ would to some extent support the claim that h is true. For example, the two premises ɛ1 and ɛ2 may be offered to provide inferential warrant for the conclusion h in this argument (let us call it the “Socrates argument”):

ɛ1 All men are mortal. ɛ2 Socrates is a man. therefore h Socrates is mortal. As noted, logic is the study of the different modes of logical inference that different kinds of arguments display. An argument’s mode of logical inference (or, synonymously, its logical form)isthe evidential relation between the argument’s premises and its conclusion. In accord with this conception of logic, we may say that an argument’s logical form is the evidential relation between the argument’s 11 premises, ɛi, and its conclusion(s), hi. There are four fundamental modes of logical inference. They are distinguished from one another by the relation that obtains between the premises of the argument

11 See Skyrms (1966: 4) (“Logic is the study of the strength of the evidential link between the premises and conclusions of arguments.”) The conception of logic presented in the text above is developed in Brewer (2011). Leibniz and Legal Axiomatics: The American (Mis)understanding 205 and its conclusion when the argument yields the most warranted inference from premises to conclusion that it is logically capable of yielding. All four modes of logical inference are found in legal argument but are of course not limited to legal argument. On the conception of logic presented here, there are four distinct, irreducible modes of logical inference. 1. Deduction:Inavalid deductive argument, it is logically impossible that the premises should all be true while the conclusion is false. That is, the truth of the premises of a valid deductive argument provides incorrigible evidence for the truth of its conclu- sion. The Socrates argument offered above is a valid deductive argument. 2. Induction: In an inductive argument, the premises provide probabilistic evidential warrant for the conclusion (with probability less than 1). There are two main forms: inductive generalization from observation of several individuals, and inductive specification, the application of a previously made generalization to an individual. 3. Inference to the best explanation (“IBE”; also, “abduction”): Inference to the best explanation involves, as its name suggests, inference to an explanation of some fact or set of facts. In this argument, a statement of the phenomenon (or phenomena) to be explained and the putative explanation both appear as premises of the argument and the explanation itself is the argument’s conclusion. 4. Analogy: In an analogical argument, one reasons that because two or more items share some characteristics, one can infer that they share an additional characteris- tic that is of particular interest to the reasoner. Within analogical inference IBE operates to discern the pattern relating the sharing of some characteristics and the inferred sharing of an additional characteristic that is of interest to the reasoner. With this conception of logic in mind, let us consider the strengths of Holmes’ conception of logic and its operation in legal reasoning. In the passage from The Path of the Law quoted above, Holmes seems correctly to understand that in legal argument different modes of logical inference operate in legal argument, and not only deduction. He mentions, for example, analogy: “The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home.” However, Holmes, who was not a philosopher (though he was a deeply creative and insightful jurist), did not have any clear systematic conception of logic and elsewhere in this same passage (and in other writings discussing “logic” and legal argument) Holmes overlooked the distinctions among different modes of logical inference, and condemned the Leibnizian-Langdellian axiomatic conception of law as if all of “logic” consisted of one type of deductive logic.12 To be sure, many clarifying developments in the study of logic came long after Holmes wrote. Nevertheless, with the benefit of this hindsight, we may note that Holmes’ condemnation of the “fallacy of logical form” attacks either a caricature of

12 In addition to modes of logical inference other than deduction (namely, analogy, induction, and inference to the best explanation), there are many types of deductive logic other than “syllogistic” logic, to which Holmes refers: “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” (Holmes 1888: 1). Among these are propositional logic, modal logic, action logic, and deontic logic. 206 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective those who – including Leibniz – sought the discipline of logic (including, but not limited to deductive logic) as an aid to clarifying and critically evaluating legal argument. Indeed, in his various prophetic pronouncements about logic and law, Holmes did not manage even to define the term ‘logic’ in a consistent way. Instead, in his discussion of the “fallacy of logical form” Holmes relied on five distinct meanings of ‘logic’ of whose important differences he did not seem to be aware.13 As we shall see, part of Holmes’ challenge to the possibility of axiomatization of law has force. But it is also clearly a caricature of the view of the role of logic, including deductive logic, advanced by any serious students of logic and of any serious theorists of axiomatization of law, to attribute to them the “fallacy” that Holmes thought it “important to expose,” namely, “the notion that the only force at work in the develop- ment of the law is logic” (1998, 705). Certainly Leibniz did not have this view. It is also obvious that even Holmes’ direct target, Langdell, did not believe that logic was “the only force at work in the development of law.” Indeed, using decided cases as the empirical basis for his axiomatization of law shows clearly that Langdell thought that axiomatization and related deductive apparatus was a tool for understanding law,not the law itself. And this is vastly more true of Leibniz: for him axiomatization of law (whether deductive or not14) was a tool for clarification, organization, investigation – and, on a political level, a method of providing constraint on judicial arbitrariness and the legal and jurisdictional cacophony (mentioned briefly above and discussed in the Introduction) of the mid-seventeenth-century milieu in which Leibniz the young jurist found himself. Like Holmes himself, Holmes’ followers among the American jurisprudential theorists known as “Legal Realists” advanced either a muddled or deeply

13 These may be summarized as follows, with quotations from “The Path of the Law,” (Holmes 1998). i. “Logic” as one of a set of roughly synonymous terms, including ‘sensible,’ ‘reasonable,’ ‘warranted,’ ‘advisable’ – e.g., “This really was giving up the requirement of a trespass, and it would have been more logical, as well as truer to the present object of the law, to abandon the requirement altogether”; or “there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense.” (709) ii. “Logic” as syllogistic or another type of deductive inference – e.g., “There is a concealed, half conscious battle on the question of legislative policy, and if anyone thinks that it can be settled only deductively, or once and for all, I only can say that I think he is theoretically wrong.” (706) iii. “Logic” as a formal deductive system, with axioms, rules of inference, and theorems, as in geometry – e.g., “the danger of which I speak is . . . the notion that a given [legal] system, ours for instance, can be worked out like mathematics from some general axioms of conduct.” (706) iv. “Logic” as a rationally discernible pattern of cause and effect – e.g., “The condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. So in the broadest sense it is true that the law is a logical development, like everything else.” (705) v. “Logic” as a set of argument types, individually invariant but distinct from one another – e.g., “The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind.” (705) For further discussion, see Brewer (2000). 14 See below, note 18 and accompanying text. Leibniz and Legal Axiomatics: The American (Mis)understanding 207 implausible view of the role of logic, including deductive logic, in legal argument and legal analysis. The well-known American pragmatic philosopher John Dewey wrote an article that was deeply influential on the Legal Realists’ (mis)understanding of the role of logic in legal argument. In Logical Method and Law (Dewey 1924), Dewey expressly sought to defend a claim made by Holmes when Holmes was a Justice on the United States Supreme Court, namely, that “general propositions do not decide concrete cases,” a position that has come to be known as “rule skepticism.” Although his argument does not always seem to cohere well, its clear thrust is that deductive inference actually plays little or no significant role in legal argument, and thus no legal argument is properly represented as a valid deductive inference, nor can law ever accurately be represented as a deductive axiom system.15 More than two hundred years before the American Legal Realists (Holmes, Dewey, and many others) did their work, Leibniz had begun to develop a far more sophisticated theory of the role of logic in the law (including but not limited to deductive logic) and of the possibilities for axiomatizing the laws of a given jurisdiction. There is, however, one respect in which the Legal Realist critique of the project of axiomatizing law did reveal an important limitation on the conception of axiomatization favored by both Leibniz and Langdell. There were two impor- tantly distinct goals in the project of axiomatizing law favored by Langdell and Leibniz. One goal we may refer to as the goal of giving a formal representation of rules of law. The other goal was to achieve a high density of those rules. 1. Formal representation of a set of axioms. This part of the project of axiomatizing law requires that the legal analyst use a knowledge of logic to represent the natural language structures of legal rules. Legal rules and the legal arguments constructed from those rules are enthymemes, in that their logical structure (deductive, inductive, abductive, analogical) is often not clear in the non-(logically) formal way in which they appear in legislation, regulation, and judicial opinion. To understand enthymematic legal rules, and to assess the

15 A few passages from this article indicate Dewey’s view: “If we recur then to our introductory conception that logic is really a theory about empirical phenomena, subject to growth and improvement like any other empirical discipline, we recur to it with, an added conviction: namely, that the issue is not a purely speculative one, but implies consequences vastly significant for practice. I should indeed not hesitate to assert that the sanctification of ready-made antecedent universal principles as methods of thinking is the chief obstacle to the kind of thinking which is the indispensable prerequisite of steady, secure and intelligent social reforms in general and social advance by means of law in particular. If this be so infiltration into law of a more experimental and flexible logic is a social as well as an intellectual need.” (Dewey 1924: 26) (emphasis added) “If we trust to an experimental logic, we find that general principles emerge as statements of generic ways in which it has been found helpful to treat concrete cases. The real force of the proposition that all men are mortal is found in the expectancy tables of insurance companies, which with their accompanying rates show how it is prudent and socially useful to deal with human mortality. The ‘universal’stated in the major premise is not outside of and antecedent to particular cases; neither is it a selection of something found in a variety of cases. It is an indication of a single way of treating cases for certain purposes or consequences in spite of their diversity.” (Dewey 1924: 22) (emphasis added) 208 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective

strength of the legal arguments made using those rules, the legal analyst must give a fair formal representation of those rules into logical form. Then, and only then, can the analyst assess the meaning and the advisability of the rule or the rational force of the argument that those rules are used to construct.16

16 For discussion of the framework of enthymemes, legal rules and legal arguments presented briefly above, see Brewer (2011: 175–202). Consider a simple example of an interpretation of a natural language, enthymematic, legal rule into a fair formal representation. This example comes from an American case, Monge v. Beebe Rubber Co. (1974, 549–553). In that case the Supreme Court of New Hampshire changed a very long-standing precedent that permitted employers to fire “employees at will” (namely, those employees who had been hired for no specific duration of time) for any reason or no good reason at all – that is, the employers could fire the at-will employee (and the at-will employee could also quit) without being deemed by the court to have breached the employment contract. The Monge court changed this very well established rule of New Hampshire contract law, by means of this language in the court’s opinion: We hold that a termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not the best interest of the economic system [sic] or the public good and constitutes a breach of the employment contract. In order for lawyers and judges to use this new rule, they must, whether in some formal way or instead in some more or less educated-intuitive way, identify: the logical elements of the rule and also the logical structure of the rule. Suppose we decide to use propositional deductive logic to represent this enthymeme. A fair formal representation of this enthymeme in propositional logic could involve assigning propositional constants to the elements in the rule as follows:

Logical elements of the Monge rule ‘B’ is an abbreviation, a name for the proposition: ‘The employee at will is fired in bad faith’ ‘M’ is an abbreviation, a name for the proposition: ‘The employee at will is fired in malice’ ‘R’ is an abbreviation, a name for the proposition: ‘The employee at will is fired in retaliation’ ‘E’ is an abbreviation, a name for the proposition: ‘the employer breaches the employment contract’ ‘G’ is an abbreviation, a name, for the proposition: ‘The firing of the employee by the employer is not in the best interest of the economic system or the public good’ [Note: with regard to the element we have labeled ‘G’, which is clearly in the natural language, enthymematic form of the court’s rule, there is an important interpretive question about whether this really is part of the rule or instead is better interpreted as the rationale, the justification for the rule. There is good reason to favor that latter interpretation, and this illustrates the facts that moving from the natural language, enthymematic form of the language of rules in statutes, codes, constitutions and judicial decisions requires many of the same methods of interpretation one finds in other interpretive domains, such as those of biblical hermeneutics and literary interpretation. The criteria of good interpretations of enthymematic rules in their fair formal representation is a deeply important and understudied issue.]

Logical structure of this rule Like all rules (whether legal rules, moral rules, or epistemic rules), this rule has a conditional structure, meaning that If certain propositions are true, then others are inferred to be true. So the overall structure is that of a logical conditional. However, there is complexity within this condition, for one might fairly represent the rule as follows: If (B or M or R) then (G [?] and E) This tells the lawyer that, in order for an employee to win a cause of action for breach of contract under this rule, she must prove only that either B or M or R was true on the evidence she presented, not necessarily all three. Leibniz and Legal Axiomatics: The American (Mis)understanding 209

2. Density of a set of axioms. To provide an axiomatization of a set of propositions (such as the propositions of positive law or of natural law) requires finding a finite set of propositions (the axioms) from which all and only the acceptable propositions of law (the propositions taken as true propositions of law) may be inferred.17 Axiom systems can have varying degrees along a spectrum of density, in the following sense. At the high end of the axiom-density spectrum, there is a minimal set of axioms from which all the theorems of the system may

17 “An axiom system may be defined, generally, as the totality of consequences derivable from a finite set of sentences, called the axiomatic basis or simply the basis of the system” (Alchourron and Bulygin 1971: 48). For the would-be axiomatizer of law, the axiomatic basis would be those (correct) propositions of natural or positive law, from which one seeks to generate a set of axiomatic propositions that would allow derivation of all of those correct propositions and an indefinite number of other correct propositions, as new cases arose. It is worth noting that the reasoning process of discerning the axioms that might provide the axiomatic foundation for a larger set of propositions very likely requires the reasoning pattern referred to as “reflective equilibrium” in the work of philosopher John Rawls (1971: 18). As Rawls acknowledged (see ibid. note 7), the original identification of this mode of inference came from Rawls’ Harvard colleague Nelson Goodman. Whereas Rawls argued that reflective equilibrium is the process by which we arrive at our moral judgments, very much to the point of our purposes here, Goodman originally identified this process as the method by which we arrive at rules of logical inference: I have said that deductive inferences are justified by their conformity to valid inferences. But this circle is a virtuous one. The point is that rules and particular inferences alike are justified by being brought into agreement with each other. A rule is amended if it yields an inference we are unwilling to accept; an inference is rejected if it violates a rule we are unwilling to amend.” (Goodman 1955: 64) The process of reflective equilibrium is striking like the methods of casuistry of the Schoolmen, a method that Leibniz had clearly mastered and likely is the method he would have used to generate the axioms of law, both from Roman-cum-Natural law and positive law. 210 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective

(with the help of other previously proven theorems) be inferred.18 The axioms of such a system might be called “dense,” because each axiom provides the basis for a great many theorems of the system, analogous to the way in which a high- density substance (such as iron or black holes in space) has a much higher proportion of weight to volume than does a low-density substance (such as feathers or planets). At the low end of the axiom-density spectrum, there is still a set of axioms from which all the theorems of the system may be inferred (with the help of undefined terms and other previously proven theorems). However, this is not necessarily a minimal set of axioms. The utility of such an axiom system would of course be suspect, a bit like the maps that Lewis Carroll and Jorge Luis Borges imagined that were the same size as the terrain they represented (Carroll 1982:727;Borges1999). However, low-density axioms, which more closely track the enthymematic natural language they represent, can have great utility by virtue

18 Axiom systems, such as the system of Euclidean geometry that so impressed Leibniz and many prior and subsequent generations of logicians, mathematicians, and philosophers, consist of undefined terms, axioms (some of which are rules of inference that allow one to move from one line, or several lines, of a proof to the next line), and theorems, which are propositions proved on the basis of axioms, including rules of inference, and other theorems. Thus for example in Euclidean geometry, the terms ‘point’ and ‘line’ may be undefined. The system contains axioms such as that two points determine a unique line, and that three points determine a plane. From these undefined terms and axioms one can infer, by means of deductive inference, further theorems about points, lines, and planes. See Kline (1980: 191). For proper understanding of legal axiomatics it is worth pausing to note that not all axiomatic systems rely, as Euclid’s did, on the deductive mode of logical inference to derive theorems from axioms. All arguments are either defeasible or indefeasible. A defeasible argument from premises ɛ1 ɛn to conclusion h is an argument in which it is possible that the addition of some premise(s), ɛn þ 1, ɛn þ 2, ɛn þ 3,... ɛn þ m, to ɛ1 ɛn, can undermine the degree of evidential warrant that ɛ1 ɛn provide for h. To take a very simple example, the premise:

ɛ1 Jones confessed to shooting Smith provides some evidential warrant for the conclusion: h Jones shot Smith.

But the warrant that premise ɛ1 provides for conclusion h is substantially undermined by the addition of another proposition that is also taken to be true:

ɛ2 Jones was beaten by police and ordered to confess to the crime of shooting Smith.

In recent years there has been sophisticated work that builds non-deductive systems of defeasible axioms for law. This work strongly suggests (perhaps even establishes) that there can be a set of legal axioms that are usable for non-deductive inferences. See Prakken and Sartor (2004), Sartor (2012). Although Leibniz was, as noted, deeply impressed by the elegance of the deductive axiom system constructed by Euclid, he was (yet again) prescient in recognizing the possibility of non-deductive axiomatic representations of legal arguments. A good deal of evidence of this is presented by Macelo Dascal. See, for example, Dascal (2006: xxxi) (“[Leibniz] noticed the insufficiency of deductive logic alonetodealwithissuesofinterpretation...andfordrawingprobabilisticandpresumptiveinferences that involve uncertainty.... He sought to improve the medieval model by introducing the idea of a ‘balance of reason’”), Dascal (2006: lxviii) (“Leibniz mercilessly attacks arguments that he dubs ‘merely Pyrrhonic’ for their absurd consequence, namely, that they would imply that all opinions are indistinguishable as to their factual value. That this is not the case can be shown, in some cases, by traditional logic. When this is not sufficient, a ‘new logic’, capable of dealing with non-demonstrative arguments, will do the job”), and sources in Leibniz cited by Dascal. Leibniz and Legal Axiomatics: The American (Mis)understanding 211

of their representation of the natural language that makes the logical structure of the rules and articles perspicuous and thus clearly analyzable. We are now in a position to consider what is correct in the Legal Realist critique of the conception of axiomatization favored by Leibniz and Langdell. Both of them seemed to believe that it was possible to discern an axiom system for law that was both highly dense and formal. It is the high density, not the formalization, that makes their conception of the project of legal axiomatics very likely unrealizable. As argued, at a suitable level of density, axiomatization of law can be very clarifying.19 However, the theorist who aspires to high-density axiomatization, as did Leibniz and Langdell, would seems to have to try to steer between the Scylla of generating axioms that are so open-textured and often so vague20 that one could never settle on the final set of axioms, but would forever have to be revising them.21 After all, one could summarize one master norm-axiom for all of law: “Apply the law correctly to the legally sufficient facts of the case.”22 This would be a highly condensed legal axiom indeed, as would its analogous norm-maxim counterpart for

19 An example of the project of low-level axiomatization of law is provided in Brewer (2011) and Brewer (2013) 20 Concept of open texture was introduced by the philosopher Friedrich Waismann (1945: 121). The concept was adopted and used prominently by H.L.A. Hart in The Concept of Law, though with a lamentable lack of precision. The better understanding of open texture and its relation to vagueness is as follows: A term is vague when on a given occasion, for a given language user (or users), it is unclear whether the term applies to an object under consideration – and the unclarity is not attributable to a lack of knowledge of the language. See Scheffler (1979). Hart’s example is of the term ‘vehicle’ as it occurs in a municipal ordinance imposing a fine on anyone who takes a “vehicle” into a public park. If the judge applying this ordinance is presented with a defendant who drove his small truck into the park for a barbecue, for that judge (language user) at that time (time for imposing decision), for that object (the truck), the term ‘vehicle’ is not vague: the judge would have no trouble applying ‘vehicle’ to the truck. But then suppose the next case to come before the judge under this ordinance was a wheelchair, or a motorized wheelchair, or a tricycle ...For those objects, at that time, for that language user, the term might well be vague. Open texture is the possibility of vagueness. For a term, user, object (truck), at time T1, the term may not be vague, but at time T2, for a different object (wheelchair) (or user) the term may be vague. Hart’s brilliant contribution was his diagnosis of the linguistic human condition. The open texture of terms referring to empirical objects and events (not to abstract mathematical objects or events, perhaps – whether logical or mathematical terms can be either vague or open texture can perhaps be debated as well) is, he argues ineliminable, for two reasons. When we adopt our terms, we have in mind certain cases (the legislature had paradigm cases in mind when it enacted the vehicle prohibition), but we can’t envision all cases that might arise. (This observation traces back at least as far as Aristotle, see Nichomachean Ethics, Book V chapter 10.) So we have relative ignorance of fact. We also don’t even know all of what we are trying to achieve with our use of the term. So we have what Hart called relative indeterminacy of aim. See Hart (1994: 127–29). The point made here regarding the attempt at axiomatization is that it seems very likely (could this be proven certainly to be true?) that the open texture of terms in the axioms would prevent a final settling on a set of axioms, which would in turn undermine the sought-for certainty of axiomatization – precisely the certainty that the young, middle, and old Leibniz sought. On this account, not every term is vague, but every term that refers to empirical entities is ineliminably open-textured. 21 That is, the fact of open texture of empirically applicable terms would seem to make the process of reflective equilibrium never ending – the equilibrium seems unobtainable. 22 By ‘legally sufficient’ I refer to those facts in a case that are determined by the authoritative fact- finding to be sufficiently well established according to the application burdens of production and persuasion. 212 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective morality: “Do the right thing, all things considered.” Although highly condensed, these norm-axioms would rather obviously be so vague, so often, as to have virtually no utility for deciding specific cases. And yet a central goal of axiomati- zation of law, as envisioned by Leibniz and Langdell, was to clarify and guide concrete legal decisionmaking. For high-density legal axiomatists, the other shore threatens – the craggy rocks of Charybdis: the need to provide axioms that are sufficiently specific to yield results in concrete cases, pushing the axiomatist along the path of never-ending revision of the axioms, which, again, undermines the central goal of axiomatization sought in the first place. So perhaps Holmes and other Legal Realists (and their avatars among todays “Critical Legal Scholars”) had a point about the unlikely success of the project of high-density axiomatization. But they seem to have failed to make a distinction that is vital for properly understanding the role of logic, including deductive logic, in legal argument. This is the distinction between using logic as a guide to moderate or low-density axiomatization, on the one hand, and using it as part of an effort (unlikely to succeed) to generate a highly condensed axiomatic system. And here we need again the counsel of Leibniz. Even if the ideal of high- condensation axiomatization of law seems unlikely of attainment, logic, including deductive logic, can and for those who understand its tools, does clarify, explain, facilitate legal argument. In an age in which statutes, regulations, and cases (in the Anglo-American system) are creating ever more complex bodies of rules, a modeling of those rules, and the arguments made from the rules, with the resources of axiomatic systems, both deductive and non-deductive, is not only useful, but essential for accurate legal analysis. The “law-is-not-logic” partisans, like Holmes, Dewey, and many other (to this very day in American law schools!) could greatly benefit from Leibniz’ more sophisticated vision of legal axiomatics.23

Of Contingencies and Necessities in Legal Paradox: The Curious Case of Leibniz

This section explores one of Leibniz’ discussions of paradox in law. One may make bold to summarize the fundamental theme in all of Leibniz’ vast array of intellec- tual contributions with this description: Leibniz’ work was a celebration of reason in all domains of understanding and existence, human and divine. That reason pervades the universe we might call the “Leibnizian axiom.” Leibniz’ early work in jurisprudence was the start of a lifelong project. That project may be understood as an application of the Leibnizian axiom to the domain of law. Thus, when there seemed to arise perplexing and paradoxical cases within law, Leibniz sought to bring the light of reason to dispel the paradox and the perplexity. This was the central driving force of his analyses in the two works presented in this book, the Specimen and the Dissertation.

23 The greater sophistication of Leibniz’ conception of legal axiomatics is discussed briefly in note 18, above. Of Contingencies and Necessities in Legal Paradox: The Curious Case of Leibniz 213

The exploration in this section of one of Leibniz’ discussions of a perplexing and paradoxical case will proceed as follows. First there is a brief discussion of a framework for understanding what a paradox is. Then there is consideration of the question whether paradoxes actually occur in law. Then Leibniz’ presentation of one such paradox and his solution to dispel it are examined. The section, and this Essay, concludes with some remarks about various kinds of explanation of paradox, including the explanation that Leibniz offers. According to a widely used definition offered by the influential American philosopher Willard van Orman Quine (1976: 1), the term ‘paradox’, in its broadest meaning, is “any conclusion that at first sounds absurd but that has an argument to sustain it.” Best understood, the referent of the term ‘paradox’ is an argument that has at least some initially compelling force (it seems to play by accepted and acceptable rules of argument) offered to reach a conclusion that is in some sense absurd. The strategies for inferring the best explanation of the paradox24 consist of

24 As noted above, inference to the best explanation (also referred to as ‘abduction’) is one among four modes of logical inference, along with deduction, induction, and analogy. In inference to the best explanation the premises are: (i) an item that the reasoner believes calls for explanation (the “explanandum”), (ii) one or more premises stating plausible explanations, (iii) confirmation or disconfirmation of each of the plausible premises until, if possible, one of the plausible explanations is seen to provide the best explanation among those that are plausible. The conclusion of an inference to the best explanation is the judgment that the explanation that emerged as best among those that are plausible is the explanation to be endorsed (called the “explanans”). There are many domains in which inference to the best explanation operates, to explain empirical facts (inference to the best factual explanation), to explain meaning (inference to the best interpretive explanation), and to explain logical facts (inference to the best logical explanation). For inference to the best logical explanation, the “explanandum” is either an argument as a whole, or a premise in an argument, or the inference rules that seem to operate in the argument. Usually (but not always) inference to the best logical explanation is called for when the original argument is not presented in fully formal logical structure, but is “enthymematic” – that is, its logical form is not perspicuous from its original mode of presentation in natural language. This is true for many of the informally presented paradoxes that Leibniz considers, for example, the Protagoras-Euathlus paradox, to be discussed later in this Preface, and the paradox of Epimenides: Epimenides, himself a Cretan, said “The Cretans are always liars.” As Quine points out, this paradox seems to “have loopholes.” Does ‘the Cretans’ refer to all Cretans? And does ‘always liars’ mean on every single occasion of making an assertion? To interpret this paradox from a logical point of view calls for the intersecting resources of both inference to the best interpretive explanation (using standard tools of interpretation, including literal meaning, likely intent of the author, and the principle of interpretive charity) and inference to the best logical explanation. Much as one might reinterpret a joke to sharpen what one takes to be the point of the joke, so paradoxologists have reinterpreted Epimenides paradox (it has come to be called the “liar paradox”) to bring out what seems to be its point, by recasting it as the sentence ‘This sentence is false’. The argument that one seems compelled to make is this: (Premise 1) If the sentence is true, then it is false. (Premise 2) If the sentence is false, then it is true. therefore, (Conclusion) The sentence is true if and only if it’s false.

The conclusion is absurd in the (logically) strongest way possible: it is self-contradictory. This is a type of paradox that Quine calls an “antinomy,” to be explained in the text above. The young Leibniz analyzes this paradox and in Question XII of the Specimen. 214 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective trying to show either a flaw in the premises or a flaw in the inference rule used to reach the conclusion. Although Quine does not define ‘absurd’ in his account, a fair explication of the concept of the absurd, as it plays a role in Quine’s analysis of paradox, is as follows. An argument or a proposition or a sentence25 is absurd when the argument’s conclusion (proposition or sentence) is in some way strongly inconsistent with what we believe. That is, the conclusion is inconsistent with beliefs that are deeply entrenched for us, in the sense that in a clash between deeply entrenched beliefs and some “absurd” conclusion, we reject the absurd conclusion rather than our belief. For example, some philosophers argue that there is no such thing as an individual, separate self (Buddhist philosophers and Nietzsche, for example, have argued this). For many of us, the belief that there are, indeed that we are, individual separate selves is very deeply entrenched. So for us, it would be very difficult, if indeed possible, to convince us otherwise. Some “absurdities” are simply highly improba- ble (where probability is established by our current beliefs) and thus surprising, even though logically possible. One example Quine offers is that of a person who was 21 years old after having only 5 birthdays. This could happen if she was born in a leap year. Quine (1976: 5) tells us that this is unlikely indeed (“The likelihood that a man will be more than n years old on his n th birthday is as little as 1 to 1,460”). Other absurdities are more than highly improbable: they are deductively logically contradictory. For example, the sentence ‘This sentence is false’, which has become the paradigmatic version of the so-called “liar paradox.”26 Quine’s definition is broad enough to encompass both the common understand- ing of paradox and the more technical philosophical understanding as well. Quine gives more precision in his treatment of the concept of paradox by identifying three logical species for the genus “paradox.” The first he calls “veridical paradox.” These are paradoxes in which is the conclusion that is purportedly established by the paradox’s argument is true. His example is the one mentioned above: a person can be n years old while having had fewer than n birthdays, if he was born in a leap year. It is a “veridical” paradox because it can be taken to establish the true proposition that a person can be 4n years old on his nth birthday. The second type of paradox Quine refers to as a “falsidical paradox.” A simple example is this argument: “Members of aboriginal tribe X are disappearing. Man Y is a member of tribe X. Therefore man Y is disappearing.” On Quine’s account, falsidical paradoxes all rely on fallacious argument, but not all fallacious arguments are falsidical paradoxes. In Quine’s scheme a falsidical paradox both relies on a

25 A proposition is an abstract entity, not tied to a particular language or time or place or speaker. A sentence is the written or spoken expression of a proposition in a particular language at a particular time and place by a particular speaker. Thus for example the Latin sentence ‘Leibnizius fuit vir magno ingenio’ and the English sentence ‘Leibniz was a great genius’ both express the same proposition. 26 See the discussion in note 24, supra. Of Contingencies and Necessities in Legal Paradox: The Curious Case of Leibniz 215 fallacious argument and its conclusion is both absurd and false. (Some fallacious arguments have true conclusions, and thus not all fallacious arguments are falsidical paradoxes.) The example offered about the aboriginal committed the fallacy of distribution. In this fallacy the argument attributes to a member of a set something that is properly attributable only to the set as a whole, and yielded an absurd and false conclusion, namely, that the man in question is disappearing.27 Compare the fallacy of composition, for example, “Each part of that machine is light, therefore the machine is light,” in which the fallacious argument attributes to the whole a property properly attributable only to parts of the whole. Quine also includes in the category of falsidical paradoxes the famous paradoxes propounded by Zeno, such as the argument that purports to prove that as long as a slow runner continues to run no other runner, no matter how fast, can ever overtake him. (The claim that this is a falsidical paradox is related to developments in the mathematics of convergent series, but philosophers are still today, after thousands of years, not all agreed that the proper explanation of this paradox has been found.) Quine’s third type of paradox he calls ‘antinomy’, which “produces self- contradiction by accepted ways of reasoning. It establishes that some tacit and trusted pattern of reasoning must be made explicit and henceforward be avoided or revised” (Quine 1976: 5). The paradigm antinomy is the liar paradox, in which the conclusion of the argument to which one is led when one evaluates the truth of the sentence ‘This sentence is false’ is that the sentence is true if and only if the sentence is false. The conclusion of the argument is a classic contradiction.28 Another example is what has come to be called the “barber paradox,” offered by philosopher Bertrand Russell. Consider a barber who lives in a town and, by agreement (perhaps by a contract) with the town, follows this rule: he shaves every man in the town who does not shave himself, and only those men in town who do not shave themselves. The paradox comes to the surface when we construct an argument on the basis of this rule to answer the question: does this barber, a man who lives in the town, shave himself? Just as the sentence ‘this sentence is false’ pushes us toward an argument with a contradictory conclusion (the sentence is true if and only if it is false), so this rule specifying whom the barber is to shave and whom he is not to shave, compels us to an argument whose conclusion is a contradiction: the barber shaves himself if and only if he does not.29 Antinomies seem in some important ways to be the most challenging of the three types of paradox Quine identifies. A veridical paradox feels paradoxical only until we understand why the argument is not fallacious, that it is valid, and that its

27 We are obviously not talking here about aging processes, which involve a type of “disappearing,” loss of height, for example. 28 The argument is presented in note 24 supra. 29 See Russell (1919: 354–55). 216 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective premises are true. The initially surprising conclusion that a person can be 4n on her nth birthday is dispelled quickly when we are reminded of the dynamic of leap years. Falsidical paradoxes may be challenging in that the fallaciousness of the argument or the falsity of the conclusion (or both) may not be immediately obvious to us (although, by definition, the conclusion seems to us absurd). But often we can without too much effort be brought to understand both the fallaciousness of the argument and the falsity of the conclusions – as in the simple example above of the fallacy of distribution. Antinomies are fundamentally different in the level of what we might call epistemic discomfort that they occasion in us. Quine (1976: 9) describes that level of discomfort as follows: “An antinomy ...packs a surprise that can be accommodated by nothing less than a repudiation of part of our conceptual heritage.” Some of the “specimens” and “perplexing” cases that Leibniz considers are paradoxes of one or another of the three types that Quine defines. It might be interesting for the readers of those two works to identify which type of paradox is involved in the cases Leibniz considers. We would expect that the veridical and falsidical paradoxes would be easiest for Leibniz to dispel by explanation, in his effort to apply the “Leibnizian axiom”30 to law: when reason is properly applied, perplexing and para- doxical cases are fully rationally explained. The greater task for the young Leibniz would be to find a rational explanation for an antinomic paradox, the types of paradox that, in Quine’s words (1976: 9), occasion “a repudiation of part of our conceptual heritage.” He did indeed consider some antinomic paradoxes, and the discussion below considers one of them, the story of Protagoras and Euathlus. Leibniz’ attempt to restore rational order with his explanation of paradox is interesting and illuminating, both about Leibniz himself and about the relation of contingent laws (positive laws, created by human beings) and the necessary truths of logic. Before considering the paradox of Protagoras and Euathlus and Leibniz’ pro- posed resolution of it, we may profitably consider an example of a paradox in law – a fictional law described in Cervantes’ great novel, Don Quixote. Don Quixote has made his assistant, Sancho Panza, governor of an island. As governor it is one of Sancho Panza’s duties to decide difficult legal disputes. The first dispute he considers concerns a law that governed the island according to which, when a stranger approaches the bridge to cross over to the island, he must state to the guards on the bridge what will happen to him on the island. According to this (rather Draconian) law, if he speaks truly about what will happen to him on the island, he is allowed to cross onto the island to pursue his business. But if he speaks falsely, he is to be hanged. In the case before Sancho Panza, the stranger replied to the guards

30 As described above, the Leibnizian axiom is that reason pervades the universe, including the domain of law. Of Contingencies and Necessities in Legal Paradox: The Curious Case of Leibniz 217 that he would be hanged, and nothing else.31 After hearing the facts of the case, and the rule of law to be applied, Sancho makes the following observation about how the law would seem to apply to the case of this particular stranger: It seems to me I can set the matter right in a moment, and in this way; the man swears that he is going to die upon the gallows; but if he dies upon it, he has sworn the truth, and by the law enacted deserves to go free and pass over the bridge; but if they don’t hang him, then he has sworn falsely, and by the same law deserves to be hanged. (Cervantes n.d., 696)

31 Here is the text by. Cervantes (n.d., 695): “Well then, on this river there was a bridge, and at one end of it a gallows, and a sort of tribunal, where four judges commonly sat to administer the law which the lord of river, bridge and the lordship had enacted, and which was to this effect, ‘If anyone crosses by this bridge from one side to the other he shall declare on oath where he is going to and with what object; and if he swears truly, he shall be allowed to pass, but if falsely, he shall be put to death for it by hanging on the gallows erected there, without any remission.’ Though the law and its severe penalty were known, many persons crossed, but in their declarations it was easy to see at once they were telling the truth, and the judges let them pass free. It happened, however, that one man, when they came to take his declaration, swore and said that by the oath he took he was going to die upon that gallows that stood there, and nothing else.” A fair representation of the rules of this handing law, as applied to the stranger in this case, is as follows: Let ‘T’ be an abbreviation for the proposition: “The stranger speaks truly about what will happen to him on the island” Let ‘F’ be an abbreviation for the proposition: “The stranger speaks falsely about what will happen to him on the island” Then under this rule, the stranger speaks truly about what will happen to him on the island if and only if he is not hanged. In other (logically equivalent) words, under this rule, if he speaks truly about what will happen to him on the island, then he is not hanged, and if he is not hanged then he speaks truly about what will happen to him on the island (We say “under this rule” since, presumably, there would be other hanging offenses as well.) Also, under this rule, the stranger speaks falsely about what will happen to him on the island if and only if he is hanged. In other (logically equivalent) words, under this rule, if he speaks falsely about what will happen to him on the island, then he is hanged, and if he is hanged then he speaks falsely about what will happen to him on the island. In the language of basic propositional logic, the facts of this case of the stranger can be represented as follows: Rule 1:TH [The stranger speaks truly if and only if he is not hanged] Rule 2:F H [The stranger speaks falsely if and only if he is hanged]

But in the case of the stranger, who says he will be hanged: Rule 3: H F [The stranger is not hanged if and only if he speaks falsely – after all, he said he would be hanged]

From Rules 2 and 3, we may validly infer H H [the stranger is hanged if and only if he is not hanged]. This is thus a classic antinomy. It’s also interesting to note that the system consisting of Rules 1 and 2 is what we might call a covert antinomic paradox. It is only the facts of the case of this stranger that expose the antinomy. As Sancho Panza puts this point in the passage quoted above, “Though the law and its severe penalty were known, many persons crossed, but in their declarations it was easy to see at once they were telling the truth, and the judges let them pass free. It happened, however, that one man, when they came to take his declaration, swore and said that by the oath he took he was going to die upon that gallows that stood there, and nothing else.” 218 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective

As in the cases of the liar’s paradox and the barber paradox discussed above, in order to apply the rule of the law on this island to this particular stranger, one seems compelled to construct an argument (as Sancho Panza does in the quotation above) whose conclusion is that the stranger is to be hanged if and only if he is not to be hanged. This law, applied to this person, presents an antinomic paradox. What is of special interest for this discussion, which next turns to a discussion of Leibniz’ attempted solution to a different paradox, is Sancho Panza’s solution: one of the many precepts my master Don Quixote gave me the night before I left to become governor of this island, that came into my mind, and it was this, that when there was any doubt about the justice of a case I should lean to mercy; and it is God’s will that I should recollect it now, for it fits this case as if it was made for it. (Cervantes n.d., 696) In others words, Sancho Panza offered a legal solution to resolve the logical problem (more specifically, a problem that is best represented by deductive logic and its rules and definitions).32 The logical problem exists, one might say, at the level of necessity. It is by valid deductive inference that one arrives at the paradoxi- cal conclusion that the stranger is to be hanged if and only if he is not to be hanged. But the resolution of the case before him – if not of the paradox itself – relies on the existence and applicability of a contingently adopted and respected law of the island. Indeed, American law also has (contingently) adopted a version of this law, often referred to as the “rule of lenity.” According to this rule, when a criminal statute is ambiguous (or unclear in some other way33), and one plausible reading is more lenient to the defendant than the other, the judge is to read it in accord with the more lenient meaning. Let us say, then, that Sancho Panza offered a legal-contin- gent solution to a logically (deductively) necessary problem. Let us now consider the story of Protagoras and Euathlus, the paradox it presents, and the solution that Leibniz offered to resolve it. The paradox may be

32 The distinction of legal from logical solutions to paradoxes is articulated and put to deeply insightful use by Suber (1990, 14–16). 33 Perhaps most often the American rule of lenity is referred to with reference to the ambiguity of a statute, i.e., the statute has more than one meaning, by virtue of either the syntax or the semantics of the statute. (Here is an example of semantic ambiguity: “I put my money in the bank by the river.” The term ‘bank’ has two possible meanings, river bank or financial institution. Here is an example of syntactic ambiguity: “Loosely wrapped in newspaper, the man carried the fish.” Here it is the syntax of the sentence that creates two possible meanings, one that the man was wrapped in newspaper while he carried the fish, the other that the fish was wrapped in newspaper and carried by the man.) Speaking precisely, the law at issue in Don Quixote is not ambiguous. In the context, no term in the rule means more than one thing, nor is the syntax of the rule such as to create more than one meaning. However, the rule of lenity has sometimes been understood by the United States Supreme Court to have an application broader than to statutes that are ambiguous. Perhaps reasoning by analogy, the Court has extended the rule to “situations in which a reasonable doubt persists about a statute’s intended scope even after resort to “the language and structure, legislative history, and motivating policies” of the statute.” Moskal v. U.S., 498 U.S. 103, 108 (1990) (citing Bifulco v. United States, supra, 447 U.S. 381, 387 (1980)). As a judge applying the law to the stranger in the case before him, Sancho Panza would indeed seem to be in a situation “in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies” of the criminal statute. Of Contingencies and Necessities in Legal Paradox: The Curious Case of Leibniz 219 stated as follows34: Protagoras was a famous Sophist who, like other Sophists, charged fees for his teaching. Euathlus wanted to study law-court oratory with Protagoras, but he did not have the money to pay for the lessons. So Protagoras and Euathlus make a contractual agreement, according to which Protagoras agreed to teach Euathlus law-court oratory and further agreed not to be paid any fee for the lessons unless and until Euathlus won his first case. Under this contractual arrange- ment, Euathlus agreed to pay for the training when, but not until, he wins his first case. Euathlus completed the lessons Protagoras gave him, but then not only did Euathlus not win a case, he didn’t even take a case for quite a while. Eventually Protagoras got frustrated at not being paid and sued Euathlus for his teaching fee. Protagoras reasoned that he would get his fee from Euathlus, no matter what was the outcome of the trial. For if he won the suit against Euathlus, he would get paid by virtue of having won the suit – after all, the suit is about whether Euathlus should pay him Protagoras’ teaching fee. But if he were to lose the lawsuit against Euathlus, then Euathlus would have won his first case, and therefore Protagoras would get paid under the contract. Either way, Protagoras reasoned, he would get his teaching fee. But Euathlus was a very good student indeed, and turned this argument around, against his teacher Protagoras.35 Euathlus reasoned that he would not have to pay the fee no matter what was the outcome of the trial. For if he won the suit against Protagoras, he would not have to pay the fee, by virtue of having won the suit – after all, the suit is about whether Euathlus should pay the fee. But if Euathlus were to lose the lawsuit against Protagoras, then Euathlus would not have won his first case, and therefore Euathlus would not have to pay the fee under the terms of the contract. Either way, Euathlus reasoned, he would not have to pay Protagoras the fee. Therein arises the paradox: how can both Protagoras and Euathlus use such seemingly similar reasoning each to conclude that he could not lose? What did the young Leibniz make of this “specimen” of the law? Here is his analysis: Who would consider Protagoras so silly that he would bear to be submitted to the tricks of his disciple, knowing them? We would more conveniently answer that the judges could have stated most equitably as follows. You will win, Evathlus. This means that you will certainly win in this lawsuit that the master brought against you, when the condition of your contract was not yet satisfied, so that now you certainly don’t have to pay him anything, having of course he been repelled by the plea that he made an excessive claim. He however in the future will not lack an action against you in order that you pay, given that the condition of the contract is fulfilled since you have now won.36

34 One of Leibniz’sources for this story is Aulus Gellius, Attic Nights, Book 5, Chapter 10. 35 As noted, Aulus Gellius’ Attic Nights was one of the sources that Leibniz used for this story. Gellius offers the Protagoras-Euathlus story as an illustration of the argument device called ἀnτίστρɛφon (antistrephon, Latin reciproca), literally, “a turning to the opposite side.” After reciting the story, Gellius concludes: Thus a celebrated master of oratory was refuted by his youthful pupil with his own argument, and his cleverly devised sophism failed. (Gellius 1927: 409) 36 See Leibniz, Specimen, Question XII. 220 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective

In other words, in Leibniz’ view, Protagoras was well advised to sue Euathlus for his fee. He would lose the first case, because at the time Protagoras brought the suit, Euathlus had not won his first case. But after Protagoras loses the case, Euathlus will then have won his first case, and thus, Leibniz concludes, Protagoras could sue him again under the contract for his fee, and this time Protagoras would win the case and get paid his fee under the terms of the contract. Leibniz’ proposed resolution is interesting in several ways. Like Sancho Panza’s analysis of the hanging law, Leibniz offers a legal-contingent solution to this paradox. His solution depends on what the law happens to be in the jurisdiction in which the contract was made. For example, Leibniz’ proposed solution would not work under American laws governing civil procedure. The second suit that Leibniz proposes to have Protagoras bring against Euathlus would be barred by the doctrine sometimes known as “res judicata,” and, more specifically (and more recently) referred to as either “claim preclusion” or “issue preclusion.” It is very likely that a second suit by Protagoras would be barred by virtue of both claim preclusion (the claim here is for Protagoras’ teaching fee, under the contract) and issue preclusion (the issue of whether Euathlus had to pay the fee was resolved in the first case).37 Moreover, a great many contingencies of contract law would operate to give a legal-contingent solution to the Protagoras-Euathlus paradox. A likely solution under American contract law would be for a court to “imply” a term into the contract. According to a long-established doctrine, judges deciding contracts disputes will sometimes conclude that contracts actually contain terms that are not explicitly stated by the parties, but that are, in the judge’s view, part of the agreement, either because the parties intended the unstated terms to be part of the agreement (this would be called an “implied in fact” term under American contract law), or because either a statute or some equitable concern requires that the term be included (this would be an “implied in law” term).38 In a case like that of Protagoras and Euathlus, a court might well conclude that, although not explicitly stated, both parties must have intended that Euathlus would make a reasonable effort to take and win cases so that he could pay Protagoras’ fee. If so, when Protagoras sues

37 The term “res judicata” refers to the various ways in which a judgment in one action will have a binding effect in another. This includes the effect of the former judgment when the second action proceeds on all or part of the claim that was the subject of the first action. If the plaintiff wins the action, the cause of action is merged into the judgment and cannot be asserted in a second suit.If the plaintiff loses the action, the judgment is a bar to another action. In modern terminology these effects are called “claim preclusion.” A second effect is ...“issue preclusion” .... The effect of issue preclusion is that an issue determined in a first action may not be relitigated when the same issue arises in a later action based on a different claim or demand. (James, et al. 1992: 582) In the case of Protagoras and Euathlus, the claim in Protagoras’ lawsuit against Euathlus was that Euathlus was under contractual obligation to pay Protagoras the teaching fee. This claim was also the issue that was resolved in the first case, so that an effort by Protagoras to argue that this was actually a different cause of action would likely fail: in both cases, the issue was whether Euathlus owed the fee, and in both cases the claim (Protagoras’ claim) was that he did. I thank my Harvard Law School colleague James Greiner for very helpful discussion of this point. 38 The classic case establishing this implied terms doctrine is Wood v. Lucy Lady Duff-Gordon, 118 N.E. 214 (N.Y. 1917). Of Contingencies and Necessities in Legal Paradox: The Curious Case of Leibniz 221

Euathlus for his fee, the court would decide whether Euathlus had made a reason- able effort to take and win a case. If not, Protagoras could win that very case. Or a court could exercise its equity powers in a variety of ways, including nullifying the contract altogether, if they thought that Protagoras was acting in bad faith (though a court would be unlikely to take such a drastic step, it could do so within its legal authority under American law). In that case, Euathlus would win that very case. The distinction offered above between a legal-contingent solution to the paradox and a logically (deductively) necessary solution is highlighted by an American case in which a judge actually cited the Protagoras-Euathlus paradox and recognized that he had before him a structurally similar case. That case, State v. Jones,39 arose in the American state of Ohio in 1946, a time at which it was illegal in Ohio for doctors to perform abortions. In this particular case, the doctor, defendant Jones, was being tried for having performed an abortion on a woman, Jacquelin Harris. Harris was permitted by the trial judge to testify that she had solicited the defendant to perform an abortion on her. The specific issue presented to the Ohio court on appeal concerned the jury instruction that the trial judge had given to the jury concerning whether the jury should conclude that the woman, Harris, was an accomplice with the defendant doctor in a conspiracy to commit the crime of abortion. The instruction the trial court gave read: “If the defendant herein is found guilty of the crime under consideration, and the offense therein alleged, the woman involved in such a count is, in the eyes of the law, an accomplice.” The logical problem arose because under Ohio law, the testimony of an accom- plice to a crime was not sufficient to convict a defendant without corroboration from some other source. But the prosecutor for the State of Ohio had no corroborating evidence against Jones with regard to Harris. Thus her testimony alone would be insufficient to convict him. Jones claimed on appeal that the jury should have been instructed (as he had requested at trial) that, by virtue of her testimony, she was an accomplice within the meaning of the law. The defendant requested that the jury be instructed, “[B]ecause [Harris] testified that she solicited the abortion services of Jones, she was an accomplice within the meaning of the law.” Both the trial judge and the appellate judge rejected the defendant’s proposed jury instruction. The appellate judge offered an interesting reason for rejecting it: if the jury were told that Harris was an accomplice, rather than letting them decide whether she was an accomplice after they found the doctor guilty, then they would have to violate the presumption of innocence. For she could not be an accomplice to the crime unless the doctor was the guilty principal, so to be told that she was an accomplice required them to assume that he was guilty before they actually rendered a verdict.40

39 State v. Jones, 70 N.E.2d 913(Ohio Ct. App. 1946). 40 See Jones, 70 N.E.2d at 917 (“We are further of the opinion that, if the state had made this request, and it had been granted, or if the court had given this charge without a request on the part of the defendant, it would have been error. Manifestly those parties could not be assumed to be accomplices of the defendant without assuming the guilt of the defendant. There could be no accomplices unless there was a conspiracy, and there could be no conspiracy unless there was a plan in which the defendant had participated. According to this reasoning the requested charge was prejudicial to the defendant because it required the jury to presuppose the guilt of the defendant.”) 222 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective

However, the appellate judge also – much to his credit – recognized that this case bore close structural similarity to the Protagoras-Euathlus paradox: “This [case] presents what seems to be a logical dilemma. This reminds us of a celebrated trial in the Court of Areopagus in Ancient Athens concerning the contingent fee of one Protagoras, a teacher of oratory, with his pupil Evalthus.”41 The judge does not specifically articulate the similarities, but one may fairly easily do so.42 Jones, the defendant, argues that if he is guilty of committing the abortion, then Harris, the woman on whom he performed it, is an “accomplice” to the crime, and thus her testimony is insufficient by itself to convict him. So he should go free. But if he is not guilty of committing the abortion, then he should go free because he’s innocent. By contrast, the prosecution (the State of Ohio) can argue, that if Jones is guilty, then the State wins. But if Jones is not guilty, then Harris is not an accomplice and the testimony that she gave against him would suffice to convict him. After mentioning the Protagoras-Euathlus paradox, the appellate judge in State v. Jones concludes that it would be useless to try to explain the problem to the jury in detail.43 Instead, the court reasoned, the original jury instruction was adequate, along with a caution that they consider carefully how much credence to give Harris, the only witness against Jones. This resolution would seem to offend both logic and law. Logically speaking, the jury should not have been told to decide whether Harris was an “accomplice” of the doctor in the crime of abortion after deciding whether he was guilty. Since there was no corroborating evidence to support her testimony against the doctor, if the jury found him guilty then they would, in effect, convict him on the basis of no (legally sufficient) evidence, since under law the uncorroborated testimony of an accomplice was not legally sufficient for conviction. And if the jury found Jones not guilty, it would be too late for the jury then to credit Harris’ testimony. There is built into the law of accomplice testimony in State v. Jones (in 1946 Ohio) a paradox that is in fact an antinomy, just as in the hanging “law” on the fictional island in Don Quixote. What would seem to recommend itself as a legal solution in State v. Jones is precisely the solution that Sancho Panza used: rely on a version of the rule of lenity to hold that in the face of antinomically paradoxical rules, a criminal defendant should be given the benefit of more lenient treatment.44

41 Id. at 916. 42 As is done in the superb analysis of this case in Suber (1990: 241–42). 43 “Certainly any attempt on the part of the Court by detailed instruction to control the mental gymnastics of the jury would be vain. It is much like the situation existing in the old charges on ‘reasonable doubt’ before the definition by statute. Then pages were devoted to this definition. The prolixity of words only added to the confusion of ideas.” Jones, 70 N.E.2d at 917. 44 The court could have offered the more expanded version of the rule of lenity. See discussion supra, note 33. Some version of the rule of lenity has been in existence in some form since the early nineteenth century. Of Contingencies and Necessities in Legal Paradox: The Curious Case of Leibniz 223

To close our discussion, let us again consider young Leibniz’solution to the Protagoras-Euathlus paradox. As noted, his was a “legal-contingent” solution, one that depends on the contingencies of enacted law. And also as noted, his solution would very likely not work under the contingent law of the United States. There is, in fact, something deeply unsatisfying about his solution, especially, one would think for one as devoted to and, one might even day, enamored of the power of deductive logical analysis, as Leibniz clearly was. The best explanation45 of both the nature of the Protagoras-Euathlus paradox and the solution to the paradox occurs not at the level of contingent law but at the level of logically necessary deductive laws. That is the final claim that this Essay will present. The case of Protagoras and Euathlus seems paradoxical because it assumes that there can be a sharp distinction between the rule that the court follows and the rule of the contract. According to the set-up of the story, the rule the court follows when Protagoras brings his lawsuit against Euathlus is: Rule 1: Protagoras gets his teaching fee if and only if Euathlus loses the case. [After all, as noted, that’s what the case is about.]

Also according to the set-up of the story, the rule established in the contract is: Rule 2: Protagoras gets his teaching fee if and only if Euathlus wins the case. [Because then Euathlus will have won his first case and will then be obliged to pay under the terms of the contract.]

We can express the paradox that arises from the reasoning of Protagoras and the contradictory reasoning of Euathlus in terms of these two rules: Protagoras: “I can’t lose, for if I win the suit, then, under Rule 1, I get my fee, but if I lose the suit, then, under Rule 2, I get my fee.” Euathlus: “I can’t lose, for if I win the suit, then, under Rule 1, I don’t have to pay the fee, but if I lose the suit, then, under Rule 2, I don’t have to pay the fee.”

From a logical point of view, the problem with this case is that the supposed separation of the litigation rule of the court (Rule 1) from the rule of the contract (Rule 2) leads to a contradiction, namely, that Protagoras gets paid if and only if Protagoras does not get paid and that Euathlus does not have to pay the fee if and only if Euathlus does have to pay the fee – thus making the paradox

45 The Protagoras-Euathlus story, treated as a paradox, requires the use of the resources of both inference to the best interpretive explanation and inference to the best logical explanation. For discussion of the role of these types of inference to the best explanation in explaining paradoxes, see supra note 24. 224 An Essay by S. Brewer: Law, Logic, and Leibniz. A Contemporary Perspective antinomic.46 From a logical point of view, the explanation of this paradox is just that, if a rule of litigation can be separated from a contract rule as the paradox assumes it can (but which would not be allowed under American law, as discussed above), then these parties have adopted an incoherent scheme for contractual obligation and litigation. They have adopted the contradictory rules, Rule 1 and Rule 2. There would, it seems, have been another way for the reason-loving, deduction- loving young Leibniz to explain this paradox, with an explanation that was not vulnerable, as was his legal-contingent solution, to the accidents of what laws happen to operate in a jurisdiction. One arrives at the explanation, as has just been done, by observing the logical facts of this deal (assuming that a rule of litigation and a rule of court can be distinguished as Rule 1 and Rule 2 propose to do). We might have hoped that Leibniz, the great master logician who has taught us so very much about deductive logic and the nature of deductive reason, might have helped us more with the diagnosis of the Protagoras-Euathlus paradox without leaving us only to the vagaries of existing law. One may say, in true Leibnizian spirit, that for such a conceptual master as we know Leibniz matured into, there is something disappointingly mundane – disappointingly contingent – in his solution to the paradox. Nevertheless, we are so grateful for his many teachings, about logic and much else, that we can hardly fairly complain that so young a scholar did not say everything that could usefully be said. And let us not forget how important to us, in this day of modern legal complex- ity, is the young (and old) Leibniz’ more general lesson about logic and law: even if it falls short of deductive axiomatization, the law as it is currently conceived and administered cannot do without the resources of deductive logic. This Leibnizian lesson we cannot learn too well, and we would do well to learn it well enough.

46 This is easily seen with the help of tools from basic propositional logic. Let’s use these abbreviations for propositions: P: Protagoras gets paid by Euathlus. E: Euathlus wins his first case.

Rule 1 (litigation rule of Protagoras gets his teaching fee if and only if Euathlus loses his first the court): case. In symbolic form: P E [Note that not to win is to lose, so ‘not-E’ means that Euathlus loses his first case.] Rule 2 (rule of the Protagoras gets his teaching fee if and only if Euathlus wins his first contract): case. P E From these two rules we can deduce both: E E and P P

Once again, it is the facts of this particular case – Protagoras’s suite against Euathlus – that exposes the antinomic paradox. See the discussion of this kind of case-specific exposure, see above, note 32 References 225

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