We learned of the publication of a new issue of the Rivista internazionale di diritto comune. More information can be found on the website of the publisher.
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INDEX OF THE ISSUE
Memorie di umanità e diritto
KENNETH PENNINGTON, The Right to a Legal Defence and to a Just Procedure (Due
Process)
This essay surveys one of medieval jurisprudence’s most important contributions to modern ideas about how court procedure should be conducted and how the rights of defendants should be protected during a trial. European civil courts adopted these rules much earlier than English and American common law courts. The medieval heritage had its flaws. The most significant was the use of torture in the courts. The essay also describes with how torture was introduced into the courtroom and what limitations the jurists placed on it.
Saggi
ANDREA PADOVANI, Intrecci inattesi: giustizia e virtù in Abelardo ed Irnerio
While in juvenile works Abelard’s meditation on justice was inspired by Cicero, the writings composed in mature and old age are deeply influenced and moulded after the definition offered by Justinian (Inst. 1.1 and D. 1.1.10). The outcome is the display of a doctrine combining the roman sources and Boethius’s thought as expounded in the commentary to Aristotle’s Cathegories. In their structure and terminology Abelard’s last works – and mainly the Sententiae – consist with the text exhibited by that Exordium Institutionum which recollects and retakes in a coherent way theories expressed in irnerian glosses. As far as Abelard had been possibly inspired by such influential models, he nevertheless stands out of Irnerius’s legacy (and ancient tradition as well) when he deals about virtues in general. Listing them, he omits prudence, conceived as an act of intellect, not of will. A perspective maintained from the very first works until the last ones. Summing up, the converging views expressed by Abelard and Irnerius – at least on a crucial issue like justice – propounds new and stimulating questions about the mutual relations between parisian and bolognese cultural environments in the twelfth century
FEDERICO MARTINO, Concezione del potere e ius commune nella Sicilia normanna e sveva
This paper aims to offer an updated critical analysis of the historiographical views regarding the so-called “Romanist contribution” to Norman-Swabian legislation in the Regnum Siciliae. The author offers a mise au point that, through an overview of the most recent reference works, highlights the early development of the “conception of majesty”, the consequent penetration of the doctrines of ius commune and their decisive influence on the legislation promulgated in the territories of the Kingdom during the period between Roger II and Frederick II.
PAOLO NARDI, Le istituzioni garanti della pace universale nel pensiero dei giuristi tra XII e XIII secolo
Between the second half of the twelfth century and the first half of the thirteenth the school of glossators elaborated a doctrine that recognized the Holy Roman Empire and the Church, placed above the other institutions of the Respublica christianorum, the power to manage peace. The glossators canonists from Gratian to Bernard of Parma, dealing with the problems concerning the relations between the two universal institutions and between the sources of civil law and canon law, had come to attribute this power to the Church, in the wake of a tradition of thought that dates back to the early twelfth century. During the first half of the thirteenth century the glossators civilists, but especially the feudist Jacobus of Ardizzone recognized the same power to the emperor as he was considered sovereign of all the territories that coincided with the ancient Roman Empire and this proposition was confirmed by Accursius in a gloss to the Libri feudorum written around 1250, in which the glossator took into account even the doctrines of the feudists and canonists, while avoiding mentioning the role of the Church.
ELVIO ANCONA, The logical structure of judicial reasoning. A Thomistic model
This essay intends to show how the methodology of judicial reasoning, especially its articulation in a context of discovery and a context of justification, can be structured in a very similar way to the disputative dialectics of medieval scholastics, above all if the latter is rethought in the light of Thomistic partition of Aristotelian logic in via inventionis and via iudicii. It is thus possible to highlight a significant structural affinity between judicial controversy and scholastic disputation. In both cases, in fact, it is crucial, on the one hand, the identification of the solution on the basis of the principles common to the parties involved (context of discovery/via inventionis), on the other, the evaluation and refutation of the opposite arguments (context of justification/via iudicii).
ANTONIO FIORI, Primato pontificio e fonti del diritto in Juan de Torquemada
The renowned Dominican theologian Juan de Torquemada devoted two works to Gratian's Decretum in the framework of the Conciliarist controversy. The essay seeks to analyse his interpretation of the sources of canon law in relation to papal primacy. While respecting the decretistic tradition (especially the thought of Uguccio), his arguments are influenced by his own theological formation and lead to the development of original ecclesiological criteria.
CHRISTIAN ZENDRI, Letteratura come diritto comune: il caso di Carlo Goldoni
By comparing the inventory of the gallery of ancient and naturalistic finds that belonged to Marco Mantova Benavides (1489-1582) and the one mentioned in the comedy La Famiglia dell’antiquario (1750), the essay studies the idea of law and legal humanism of Carlo Goldoni, and the way in which, in Goldoni’s work, literature becomes law (literature as law).
Note e documenti
PAVEL O. KRAFL, Fortified churches in the Kingdom of Bohemia and synodal legislation at the end of the 13th century
The medieval church often served for refuge and defence. However, in light of the ecclesiastical lawmaker, the use of churches as a fortification was considered unlawful. The article describes ecclesiastical provisions concerning fortified churches that were valid in the Czech Lands and promulgated at the end of the 13th century. The norms of the particular ecclesiastical law were promulgated at synods. The important decisions concerning fortified churches are published in the Würzburg legatine statutes of 1287 and in one of the synods of Prague Bishop Tobiáš of Benešov. The articles of both statutes on the fortified churches are unique. The Prague synodal provisions might have been issued to follow on from the Würzburg synod, in which case they could be set within the period 1287-1289. Neither the Mainz provincial statutes of 1292 and 1310 feature any provisions on fortified churches. Similarly, we do not find any provisions on fortified churches in the Moravian synodal statutes
CARLOTTA LATINI, Il ‘vizio nefando’. Prospero Farinacci e la scienza giuridica sul reato di sodomia
The essay, after an introduction to the relationship between law, gender and discrimination, retraces the main doctrinal theories on the repression of sodomy in the modern age, using a case, that of the trial of Prospero Farinacci, a well-known Roman jurist
SHIRI ROELOFS, Robert Bellarmine (1542-1621) and the Law and Morality of the Market: A Brief Introduction
Robert Bellarmine (1542-1621) is not systematically known in the historiography of early modern legal-economic thought. Even so, Bellarmine’s Louvain lectures (1570-1576) are a rich source of his ideas on the law and morality of the market. The objective of this contribution is to present the sources of a doctoral project that is conducted at the Faculty of Law and Criminology of KU Leuven. The project investigates the way in which a juridical language enabled Bellarmine in his formulation of a normative framework of the market.
Ricordi
MANLIO BELLOMO, Ricordi… non è mai troppo tardi, nr. 14: Origine e profili della goliardia europea
The essay presents a brief account of goliardery in medieval university schools.
MANLIO BELLOMO, Ricordi… non è mai troppo tardi, nr. 15: La memoria del diritto comune europeo
The essay presents considerations on the role of the ius commune as a unifying element of European civilization.
MANLIO BELLOMO, Memorie di una vita. Frammenti
While I was a university student, with two of my study and course colleagues, Italo Andolina (later professor of Civil procedural law) and Mario Condorelli (later professor of Ecclesiastical Law) I was involved in a preordained development project of the Faculty of Law of Catania, wanted and managed by the Dean of the time, Michele Giorgianni.
MANLIO BELLOMO, Memorie di studi e di scritture
My luck was that I was a pupil of Michele Giorgianni, Dean of the Faculty of Law of Catania, and a pupil of Francesco Calasso, full professor of ‘History of Italian law’ (later ‘History of medieval and modern law’) of the Faculty of Law of Rome.
Orientamenti bibliografici
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