JOURNAL: Rivista internazionale di diritto comune (volume XXXII, 2021)

(Image source: Sikeedizioni)

The last issue of the Rivista Internazionale di Diritto Comune had been published. More information can be found on the website of the publisher.

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 INDEX OF THE ISSUE

SAGGI

Glosses and the Juridical Genre “Apparatus glossarum" in the Middle Ages by Gero Dolezalek

The centre and the margins of the jungle of glossed manuscripts by Emanuele Conte

What Emil Secker has called “the jungle of glossed manuscripts” is a very heterogeneous set of sources. There are sets of glosses written to accompany stabilised texts of the ius commune, with the primary purpose of facilitating a coniunctio, the linking of norms located in different parts of the corpora of civil and canon law. There are also apparatuses drawn up to accompany the texts of the ius proprium, the main purpose of which is to outline the areas of application of the norms, the textual form of which is less stabilised than that of the Roman and canonical texts adopted for school teaching. The case of the glosses to Frederick II’s Liber Augustalis illustrates these differences in practice. Scholarly access to the sources of this exegesis in the form of glosses has been difficult because of the difficulty of preparing critical editions. Now the wide availability of digital images of manuscripts could open an easier way to consultation

Tra fonti letterarie e fonti giuridiche: una nuova biografia di Benincasa d’Arezzo iuris professor by Maura Mordini

This essay focuses on Benincasa d’Arezzo, a jurist mentioned by Dante in the Purgatorio at the beginning of Canto VI, who is otherwise known as Benincasa da Laterina by the scholars of Dante’s Commedia. Through the examination of some archival and juridical sources, and of some commentaries on Purgatorio, we reconstructed some links with the Laterina castle (Arezzo), wich was the place of origin of the jurist’s father. Benincasa has first been a student and then a colleague of Francesco d’Accursio, and he has teached in Arezzo and in Bologna. Later, between 1282 and 1286, Benincasa has carried out the role of judex assessor of the podestà in Siena and in Bologna, playing also significantly a technical and political role in the context of the ultra-regional Guelph alliance, and in view of the personal relationships with two members of the Guidi family, conti palatini in Tuscia. The death of Benincasa (post 1286 - ante 1292) is described by the various commentators of the Commedia. In particular, Anonimo Lombardo and Alberico da Rosciate add some interesting details to the story: the jurist has been murdered by Ghino di Tacco during a court hearing, probably in Perugia. In addition to the quæstio oxoniense and to the consilium regarding the Monterotondo castle, already known, around sixty Benincasa’s additiones on Digestum Vetus have been found in the manuscript 285, held by Collegio di Spagna in Bologna. The Tractatus de guarentigiato instrumento, attributed to Guido da Suzzara, contains a quæstio disputata about the topic of eviction, wich took place in Bologna between Benincasa d’Arezzo and Francesco d’Accursio. 

Legiferare giudicare consigliare interpretare. Giuristi legislazione imperiale diritto comune by Christian Zendri

The essay studies the formation of Henry VII’s ‘Pisan legislation’ (1313), the role of legal science in the construction and success of the text, and attempts to offer an interpretation, correcting the lection and explaining its genesis. 

Defensio est concessa et vindicta prohibita. Itinerari di storia della difesa legittima by Rosalba Sorice

The self-defense principle is built by medieval jurists on the reinterpretation of the rules of Roman law that admit the use of violence to defend oneself. The admissibility and excusability of the murder in defense criticized according to the principle of guilt which defines the criminal dimension of earthly liability. 

L’accusa di eresia ai papi negli anni del Grande Scisma (1378-1418) by Andrea Padovani

The blame of heresy, mutually launched by the followers of the ‘roman’ and ‘avignonese’ popes at the beginning of the Great Schism was, in a first stage, a mere pretext for further polemical issues. Only from the first years of the XVth century the accusation assumed a precise legal configuration based on the equivalence of heresy and prolonged schism: a good reason, indeed, for lawyers and cardinals invoking a general council to cut off the schism, after the failure of other means proposed for some time. The deposition of Gregory XII and Benedict XIII, for heresy, in the pisan assembly (1409) did not resolve the old controversy. Moreover, some followers of the two popes moved many doubts about the legitimacy of the sentence that condemned their respective leaders. The council of Constance (1418), once obtained the voluntary resignation to the papacy by John XXIII and Gregory XII, finally convicted the only Benedict XIII of heresy due to obstinate and culpable prolongation of the schism. 

Pietro d’Ancarano on Citizenship and Intestate Succession in Ferrara by Julius Kirshner

My study provides an analysis and edition of an autograph consilium of the Bolognese canonist Pietro d’Ancarano, which is preserved in the Biblioteca Classense of Ravenna. Written in 1401, the consilium was aimed at resolving a dispute over the claims to the intestate inheritance of a certain Lamberto of Florence, who at the time of his death during the plague of 1399-1400 was residing in Ferrara. Pietro’s consilium serves as a valuable historical witness, drawing attention to an under-explored corner of late fourteenth- and early fifteenth-century Ferrara, and highlighting the canonist’s role in civil law disputes. Above all, it underscores how the ius commune’s far-reaching protection of women’s rights and privileges empowered daughters to lay claim in a public forum to paternal property from which they were disqualified by discriminatory statutes dedicated to the perpetuation of patrilineal succession

“Perfectio spiritualis non in paupertate, sed in caritate consistit”. John of Capestrano and His Unpublished Tractatus de religione by Andrea Bartocci

Probably during the pontificate of Eugenius IV (1431-1447) John of Capestrano compiled his unpublished Tractatus de religione, where he compared the status of the religious orders on the spiritual and legal level; in this paper four manuscript copies of his Tractatus are identified

Consilii non fraudulenti nulla obligatio. Lawyers’ Liability and Legal Ethics in Lessius’s De iustitia et iure by Wim Decock

This contribution highlights the development of an ethics for lawyers in the work of Leonardus Lessius (1554-1623), a theologian-jurist from the Southern Netherlands. Drawing on the ius commune and scholastic predecessors, Lessius foremostly addressed the question whether lawyers were responsible for giving harmful advice. He reinforced the ius commune principle that “no obligation arises from an advice that is not fraudulent” (consilii non fraudulenti nulla obligatio). Lessius also emphasized the lawyer’s task as first judge, which implied an increase in his liability for accepting dubious and unjust cases. Advising a client to take legal action in an unjust case was not tolerated, as was the unnecessary prolonging of procedures. Lessius also insisted on lawyers’ duty to be well-trained and educated. In light of the professionalisation of the lawyer’s profession in the early modern period, it is probably not surprising that he put heavy weight on the adage, based on the ius commune, that “incompetence is tantamount to fault” (imperitia culpae adnumeratur). The paper ends by giving a taste of how Lessius’s doctrine of legal ethics was handed down to other jurists and theologians, from the seventeenth century Netherlands to eighteenth century Italy. 

NOTE E DOCUMENTI

Il matrimonio di Dante: un matrimonio tra impuberes? by Giuseppe Indizio

Dante’s marriage has recently been debated by scholars since it is considered insofar a marriage between impuberes. Accordingly, the few surviving sources are considered unreliable, on the assumption that such marriages were unlikely, if not impossible in Dante's time and, in particular, for his social class. A new look-through of the sources, in the light of canon law and of the practices then in force, leads us to different conclusions, questioning the very idea of a marriage between impuberes. 

Il rovesciamento della metafora del sole e della luna: Agostino, Giovanni di Parigi e Dante by Claudia di Fonzo

The contribution traces the history of the metaphor of the sun and the moon in the context of canon law starting from Dante's Monarchy and identifies in Giovanni di Parigi and Cino da Pistoia two interlocutors necessary to understand the image of the two suns that Alighieri proposes in Divine Comedy

RICORDI

Ricordi… non è mai troppo tardi, nr. 10: Frammenti di storia della storiografia in tema di sistema di ius commune by Manlio Bellomo

The essay presents a profile of the history of twentieth-century historiography on the system of ius commune. Starting from the third decade of the century, some innovative proposals have focused attention on the ius commune as a “spiritual fact” and on the link between the ius commune and the iura propria in the centuries following the year 1000. In the last decades of the twentieth-century a renewed historiographic approach was dedicated to recovering the distinction between ius commune and the system of ius commune. 

Ricordi… non è mai troppo tardi, nr. 11: Ius civile, ius canonicum, società medievale by Manlio Bellomo

The essay discusses the methodological problem of whether it is appropriate to search for the “influences” of the ius civile on the ius canonicum and vice versa, or whether we should rather speak of a reciprocal interaction among the different components of a unitary system. 

Ricordi… non è mai troppo tardi, nr. 12: I glossatori: fra i protagonisti del proto-capitalismo? by Manlio Bellomo

The title poses a provocative question and focuses on the reaction of the feudal classes to the spread of a system of ius commune and ius proprium that was incompatible with the old traditions of feudal society.

Ricordi… non è mai troppo tardi, nr. 13: Probleme der juristischen Geschichtsschreibung: ius commune und ius proprium im Europa des Mittelalters by Manlio Bellomo

The text returns to the theme of the relations between ius commune and ius proprium in the interpretations of twentieth-century historiography. 

A PROPOSITO DI

Historical research on Canon Law. With regard to the series Der Einfluss der Kanonistik by Silvia di Paolo and Paola Maffei

Reflections emerging from the series Der Einfluss der Kanonistik are examined, about the key role of canon law in the development of European (and non-European) legal culture; and about some among the possible paths of research offered by the works collected in the series and more generally by the canonical history. 

ORIENTAMENTI BIBLIOGRAFICI

• Bibliografia