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The Laws of Late Medieval Italy (1000–1500)

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The Laws of Late Medieval Italy (1000–1500) The Laws of Late Medieval Italy (1000–1500) The Laws of Late Medieval Italy (1000–1500) Foundations for a European Legal System By Mario Ascheri LEIDEN • BOSTON 2013 Cover illustration: A court with a family case, at the beginning of a Digestum Infortiatum (concerning the end of a marriage), MS of the first decades of XIV century now at Library of Collegio di Spagna in Bologna, number 284, fol. 1r. With kind permission of CIRSFID: Interdepartmental Research Centre of History, Philosophy, and Sociology of Law and Computer Science and Law “Guido Fassò – Augusto Gaudenzi”, Bologna University. Library of Congress Cataloging-in-Publication Data Ascheri, Mario. [Diritti del Medioevo italiano English] The laws of late medieval Italy (1000-1500) : foundations for a European legal system / by Mario Ascheri. pages cm Includes bibliographical references and index. ISBN 978-90-04-21186-5 (hardback : alk. paper) -- ISBN 978-90-04-25256-1 (e-book) 1. Law-- Italy--History--To 1500. 2. Law, Medieval. I. Title. KKH124.A82413 2013 349.4509’02--dc23 2013016575 This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-21186-5 (hardback) ISBN 978-90-04-25256-1 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper. <UN> <UN> CONTENTS List of Abbreviations ����������������������������������������������������������������������������������������������vii Preface to the English Edition ������������������������������������������������������������������������������ ix Illustrations �������������������������������������������������������������������������������������������������������������xiii Introduction ��������������������������������������������������������������������������������������������������������������� 1 PART ONE THE IMPERIAL ROMAN LEGACY AND THE CHARACTERISTICS OF THE ELEVENTH CENTURY 1 Irnerius and the Roman Law of Justinian ��������������������������������������������������� 9 2 The Multi-faceted Eleventh Century ����������������������������������������������������������29 3 The Characteristic of Eleventh-Century Law �������������������������������������������65 PART TWO THE TRIUMPH OF JURIDICAL PLURALISM: CO-EXISTING LAWS AND THE FOUNDATION OF THE IUS COMMUNE (C. 1100–1250) 4 The Beginning of University Teaching and Groundwork for Corpus Iuris Canonici ������������������������������������������������������������������������������ 107 5 Territorial Laws and Various Social Categories and Institutions ���������������������������������������������������������������������������������������������� 135 6 Protagonists of Theory and Practice �������������������������������������������������������� 193 PART THREE THE TRIUMPH OF THE SYSTEM OF IUS COMMUNE (MID XIII–XV CENTURY) 7 Perfecting and Consolidating the System ����������������������������������������������� 245 8 Doctrinal and Institutional Developments �������������������������������������������� 269 9 University Texts and Legislation ��������������������������������������������������������������� 293 <UN> <UN> vi contents 10 Justice and its Institutions ������������������������������������������������������������������������� 321 11 The End of the Middle Ages ���������������������������������������������������������������������� 345 Appendix: An Annotated Bibliography of Legal History �������������������������� 361 Sources �������������������������������������������������������������������������������������������������������������������� 373 Bibliography ���������������������������������������������������������������������������������������������������������� 383 Index........................................................................................................................ 411 <UN> <UN> LIST OF ABBREVIATIONS BIMAe Bibliotheca iuridica Medii Aevi (Scripta Aned- octa Glossatorum)(see) BMCL Bulletin of Medieval Canon Law Cesn Centro europeo di studi normanni (Ariano) Cisam Centro italiano di studi sull’alto Medioevo (Spoleto) CNR Consiglio Nazionale delle Ricerche (Rome) DBI Dizionario biografico degli Italiani (Isti tuto dell’Enciclopedia Italiana, Rome) HQLERG Handbuch der Quellen und Literatur der neueren europäischen Priva trechtsgeschichte, I: Mittel- alter, ed. Helmut Coing (Munich, Max-Planck- Institut für europäischen Rechtsgeschichte, Beck, 1973) Isime Istituto storico italiano per il Medio Evo (Rome) MGH Monumenta Germaniae Historica (Munich) MIC Monumenta Iuris Canonici (Vatican City, Biblioteca Apostolica Vaticana) MIS Monumenta iuridica siciliensia PL Jacques-Paul Migne, Patrologiae cursus comple- tus. Patrologiae latinae t(omus)…(Paris, 1844– 55; repr. Turnhout, 1989) Proceedings I, II, III… Proceedings of the First, Second, Third… International Congress of Medieval Canon Law (after a vol. I, Louvain 1959, the following con- ferences started again with vol I–, 1965– in the series of MIC) QF Quaderni fiorentini per la storia del pensiero giuridico moderno QFIAB Quellen und Forschungen aus italienischen Archiven und Bibliotheken RHDFE Revue historique de droit français et étranger RIDC Rivista internazionale di diritto comune RJ Rechtshistorisches Journal RSDI Rivista di storia del diritto italiano <UN> <UN> viii list of abbreviations SDHI Studia et documenta historiae et iuris SG Studia Gratiana SS Studi Senesi TRG Tijdschrift voor Rechtsgeschiedenis ZRG Zeitschrift der Savigny-Stiftung für Rechtsge- schichte (series of canon law or Roman law: kan. or rom. Abt.) <UN> <UN> PREFACE TO THE ENGLISH EDITION Thirtheen years after its publication in Italian, the presentation of this book to an English-speaking readership provides an opportunity for some new reflections and the presentation of further information in order to bring it up to date. The book introduces the reader to the various legal systems of the middle ages, and at the same time explains the individual complexities of these systems. In doing so, it aims to facilitate individual research into specific issues. It does not, however, consider in detail the various juridical institutions. Apart from a few digressions, neither does it deal with the private and public law of the time, even in the context of the most important and delicate matters. However, careful reading of the book should make the ancient texts more easily accessible to the reader. In effect, the book offers a compass by which to navigate the subject-matter. One needs to take special care when addressing what is written in the sources. It is always tempting to believe that a problem exists if and when such a problem appears to be revealed through the laws or by jurists. It is also all too easy to believe that no problem exists if no reference is made to it. As is the case in the field of theology, juridical doctrine has traditionally been extremely sensitive to contemporary problems. However, it is also the product of a series of specialized wisdoms, based on particular sources and governed by internal rules that influenced discussion, and were con- sequently able to shape doctrine according to abstract notions. On the ground, though, the realities were often somewhat different, or engaged in addressing certain issues earlier or to a greater extent than it would appear if one focuses on those matters that dominate university discussions.1 This is often the case even today, despite the fact that we are now gov- erned by sources of knowledge that are less rigid than those of the past. 1 See for example, Ascheri, ‘Dottrine universitarie’; the ‘Presentazione’ of Ascheri, Giuristi e istituzioni dal Medioevo all’Età Moderna (secoli XI-XVIII) (2009) is also useful (for an up-to-date bibliography, see pp. x-xi). It is impossible to cite new titles here; but refer- ence should be made to such sites as: http://vita-religiosa.de/Rechtengl.htm (an index of many sites of religious and civil law); http://www.clasma.org.uk/ (canon law); http:// web.upmf-grenoble.fr/Haiti/Cours/Ak/ (for Roman legal sources on line); http://www .storiadiritto.it/ (Italian Association of Legal Historians); http://www.iustel.com/v2/ revistas/ (for the e-legal history review, Madrid). For digitized books, there are now many choices: see http://www.europeana.eu/portal/. For printed catalogues reference should at least be made to the Catalogue of Books Printed in the Continent of Europe from the Beginning of Printing to 1600 in the Library of the Max-Planck-Institut für Europäische Rechtsgechichte, Frankfurt am Main. <UN> <UN> x preface to the english edition Many medieval legal doctrines have long been the subject of careful analysis. It is probably fair to say that the Anglo-American world has been particularly active in this field,
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