The Concept of Equity in Early-Modern European Legal Scholarship Lorenzo Maniscalco Trinity Hall This dissertation is submitted for the degree of Doctor of Philosophy 27th April 2018 1 Thesis abstract Lorenzo Maniscalco The Concept of Equity in Early-Modern Legal Scholarship In modern scholarship, the concept of equity is often assimilated with that of Aristotelian epieikeia, a process which serves to correct rules when, though their wording undoubtedly applies to a case, yet the outcome would be unjust, or the legislator would have never wanted the rule to be applied to such a case. My thesis deals with the early-modern origins of the association of equity and epieikeia in legal scholarship, and of its consequences for the doctrinal development of equity in the sixteenth and seventeenth century. I begin by showing that medieval legal writings on equity were almost completely unconcerned with epieikeia, and that the latter was only developed by philosophers and theologians. Legists and canonists developed a concept of equity that was unrelated – indeed mostly incompatible – with judicial discretion or the emendation of written rules. Thus, throughout the Middle Ages, there was almost no interaction between the writings of civil and canon lawyers on equity, and those of theologians on epieikeia. In the second chapter of my thesis, I show that the introduction of epieikeia in legal scholarship was the result of the influence of humanistic philology over the writings of humanist jurists, and argue that it caused the majority of early-modern authors to depart from medieval scholarship on equity, re-modelling instead equity as a doctrine of interpretation of the law beyond its letter in accordance with the intentions of the legislator. The final part of my thesis argues that the development of equity as epieikeia in legal scholarship broke down the barrier that had hitherto divided theological and legal writings on equity. Indeed, from the late sixteenth century onwards, legal and theological writings on equity were connected to such an extent that many later authors treated these two branches of scholarship as belonging to one, equally authoritative body of learning on the same topic. 2 Preface This dissertation is the result of my own work and includes nothing which is the outcome of work done in collaboration except as declared in the Preface and specified in the text. It is not substantially the same as any that I have submitted, or, is being concurrently submitted for a degree or diploma or other qualification at the University of Cambridge or any other University or similar institution except as declared in the Preface and specified in the text. I further state that no substantial part of my dissertation has already been submitted, or, is being concurrently submitted for any such degree, diploma or other qualification at the University of Cambridge or any other University or similar institution except as declared in the Preface and specified in the text This thesis, including footnotes, does not exceed the permitted length. 3 Acknowledgments I have incurred countless debts to individuals and institutions in the course of this thesis. None of the research I have carried out would have been possible without the generous financial support I was lucky to receive from the Arts and Humanities Research Council. Trinity Hall, my college and home for the greater part of this project also bore much of the expenses I incurred for research and training - I cannot thank the College and its Fellows enough for this. Among the many scholars who have helped me along the way, it is David Ibbetson, my supervisor, to whom I and this research project owe the most. His lucid, sharp, insightful comments were the lens through which I was able to find the shape, direction and purpose of the opaque and amorphous project I had in mind – whether he will want to take any credit in the outcome is another matter! What is certain is that I would not have taken as much pleasure in the journey along this path without finding relief as often in his unfailing wisdom, geniality and wit. I would never have found any path at all in legal history, however, if it hadn’t been for the inspiring guidance I received from Ian Williams since my undergraduate years at UCL – for this, and for the advice he has continued to give me through this PhD, I thank him deeply. My advisor for this project John Allison, as well as my examiner for the first year report on my research John Bell both deserve a special mention for reading and commenting helpfully on part of this work. No purpose would be served in producing a full list of the many scholars who have provided helpful advice and comments, or simply valuable words of encouragement at seminars, conferences and congresses where I have presented my work, they all have my warmest thanks. It has been a great honour to share these past few years with a truly wonderful cohort of fellow research students and legal historians, I have found lasting friends in Andreas Televantos, Astron Douglas, David Foster, Jacob Currie, Jef Thomson, Joanna McCunn, Joe Sampson, and Julia Kelsoe. For his guidance when I took my first steps through the medieval ius commune and the generosity with which he shared his superb talent as a Latin scholar to help me through many sources, I should mention and thank Jacob once more. I can only apologise to my family, and to Giulia in particular, for the countless feverish discussions of aequitas and epieikeia I have inflicted upon them, there is nothing I can do to deserve all the love and devotion they show me each day. Pascale, my mother, has spent far too many hours proof-reading my footnotes, and I have spent far too little time with her in return. Clare College April 2018 4 Index Acknowledgments ------------------------------------------------------------------------------------- 3 Notes on the text -------------------------------------------------------------------------------------- 5 Introduction -------------------------------------------------------------------------------------------- 6 Chapter 1 – Background: Aequitas and epieikeia in the medieval ius commune ---------------- 13 1.1. Aequitas in the medieval ius commune ...............................................................14 1.2. Aequitas as epieikeia .............................................................................................27 Chapter 2 – The introduction and diffusion of epieikia in legal scholarship ---------------- 35 2.1. Introduction ........................................................................................................35 2.2. The introduction of epieikeia in legal scholarship .........................................36 2.3. Aequitas in legal humanism I: Challenging the medieval orthodoxy ........41 2.4. Aequitas in legal humanism II: Reconciling epieikeia with aequitas scripta .72 2.5. The diffusion of equity as epieikeia in later legal scholarship .....................78 Chapter 3 – Aequitas and Epieikeia among early modern scholastic writers. ---------------- 91 3.1. Introduction ........................................................................................................91 3.2. The theological concept of epieikeia ................................................................92 3.3. The approach of sixteenth-century Thomist theologians and jurists ......97 Chapter 4 – The place of equity within doctrines of interpretation ------------------------ 110 4.1. Introduction ..................................................................................................... 110 4.2. The development of the concept of equity in later civil law .................. 111 4.3. Legacy – a specific role for equitable interpretation? .............................. 148 Conclusion ------------------------------------------------------------------------------------------- 157 Works Cited------------------------------------------------------------------------------------------ 163 5 Notes on the text The Latin is cited as it occurs in the sources referred to, but I have sought to modernise punctuation and spelling where it makes the text easier to read. When translations are provided, they are my own unless otherwise noted. I adopt square brackets when cross-referring to paragraphs within this thesis. Paragraph 2.2.1 would therefore be referred to as [2.2.1]. Below is a guide to the abbreviations I use to cite Roman law and medieval legal texts: D.1.1.1: Digest of Justinian, book 1, title 1, lex 1 C.1.1.1: Code of Justinian, book 1, title 1, lex 1 I.1.1.1: Institutes of Justinian, book 1, title 1, lex 1 Nov.: Novels of Justinian Dist.1, c.1: Decretum Gratiani, Distinctio 1, canon 1 C.1, q.1, c.1: Decretum Gratiani, Causa 1, quaestio 1, canon 1 X.1.1.1: Liber extra, book 1, title 1, canon 1 VI.1.1.1: Liber sextus, book 1, title 1, canon 1 Clem.: Constitutiones Clementis V, book 1, title 1, canon 1 L.F.1.1.1: Libri Feudorum, book 1, title 1, section 1 6 Introduction Equity is a concept of vast scholarly scope – it is one that has been studied across the humanities and in a wide variety of contexts. Most research on the subject has come from philosophical and theological scholarship, where it is often associated with the idea of epieikeia. Its development as such from Ancient Greece through the Middle Ages and beyond has been the object of a great number of studies.1 But though the development of equity as a philosophical and theological concept has relevance for the argument running through this