The Renaissance consilium as justice.
Contesting the conventional distinction between norms and facts, Clifford Geertz has cogently insisted that "the legal representation of fact is normative from the start." His point is that legal facts "are socially constructed" and thus are not just "out there" to be matched to a norm. The law "is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real." (1) In the same vein, Peter Goodrich has examined the relationship between rhetoric and law in early modern Europe with a sense that "law is no more than a system of thought, a pattern of discursive practices, that exist hierarchically within a plurality of social systems of communication." (2)
In the Middle Ages and the Renaissance complaints abounded about the gulf between law and the everyday--and between the human and the legal--and the consequent perceived failures of law to realize justice. This separation either allowed for the corruption or perversion of law by bribery, force, or ignorance, or precluded law, wrapped in its arcane language and complex rules, from ever grappling with reality (itself necessarily contested by adversarial parties in any legal action). A fourteenth-century Tuscan merchant, for example, advised that, were one to pursue a suit in court, he should use "sound common sense" and "good knowledge" and realize that judgments rode on favors rather than reason and rectitude. (3) Such commonplace advice found its way into the much later, and very different, De Iciarchia of the Florentine humanist Leon Battista Alberti (1401-72), who cautioned that lawsuits were such trouble that it was not worth the expense and effort to win them. (4) Critiques of law and its practitioners were to be found widely throughout vernacular and humanistic texts.
In an article entitled "The Renaissance Novella as Justice," Ullrich Langer examines one genre of critiques of legal practice and argues that humanistic literary narratives, such as the Decameron and the Heptameron, were concerned with particular justice, or fairness, in the Aristotelian-Ciceronian tradition, not with pure justice (though law and legal procedure were frequently part of narrative themes). "The novella," Langer states, "does not usually represent a world in which legal justice is reinforced; rather, in spite of formal and thematic reminiscences, the short narrative often protests against legal justice and the men who represent it in terms deriving from particular justice, equity, or natural law." (5)
This article is a reaction to Langer's provocative and perceptive essay. It seeks to do two things. One is to extend the contemporary critique of law by examining humanistic texts. This is not a new line of historical inquiry. Humanists' criticisms of law are well known. The idea is to compare them with those of the novellieri as described by Langer. The other is to give the attorneys their day in court--to look at their efforts to do justice in precisely the sorts of situations storytellers exploited for their plots, and in the particulars humanists never got down to.
2. VERNACULAR JUSTICE
Langer carefully distinguishes particular from general justice, an important byproduct of the distinction between law and theology in the Middle Ages. The definition of the Roman jurisconsult Ulpian, placed at the beginning of the Digest--law is the constant and perpetual will to render his right to each man (6)--echoes Cicero. It was a variable justice, able to accommodate situations and circumstances, including those of social hierarchy. It was not the unchanging and pure iustitia of God, which, in the eyes of a jurist like Baldo degli Ubaldi (1327-1400) was indeed the source of law, or right (ius). Justice was a human virtue, that "constant and perpetual will." It was the exercise of this virtue, a rational, human capacity, that produced ius, which, in turn, as G. R. Evans has it, "was an eternal relation to be established between persons on the basis of things." (7) Ius was thus also a matter of what was fair: "law is the art of the fair and the good." (8) Equity was involved in coming to a correct judgment. (9) The novellieri Langer studies were concerned with human justice in these terms.
Langer's analysis is lucid and compelling. In bringing closure to a narrative, an author like Boccaccio (1313-75) reproduces a relational justice: something that ends well. His cunning and crafty characters are not set out as examples to be imitated; justice arises from narrative logic, not character virtue. Indeed, a character like Madonna Filippa in Decameron 6.7--who argues to the court that her adulteries did not harm her husband, because she never denied him but simply shared the "surplus" with others--can hardly be exemplary of virtue, even as her actions and words enact a rough sort of justice while making a mockery of law. (10) Nor are the three young men who "de-pant"--literally, pull down his pants by force in order to humiliate--a judge, who was described as brought up on a farm or in a shop rather than educated in a law school, in Decameron 5.8. Boccaccio works with his audience's receptivity from experience to project moral exempla "through a lens of irony." (11) To put it a way not used by Langer, the ratio at work in these stories was more the quick-witted cunning celebrated so often in Boccaccio's and others' tales.
However, not all writers of novelle so casually dispatched law's justice, at least not in every tale. One notes, for example, novella 202 of Franco Sacchetti's Trecentonovelle. Here a poor but "good" man of Faenza discovers that his rich neighbor, to whom he had refused to sell his small plot of land, has slowly appropriated it through expansive plowing over the course of several years. He draws attention to his plight by paying local priests to sound their church bells at a particular and unlikely hour, at which moment he then goes about explaining to folks that the bells tolled "because justice is dead." (12) By this means the signore of Faenza, Francesco de' Manfredi, comes to interrogate the humble character and decrees the restitution of his lost land, as well as an equal measure from his rich neighbor's plot and even repayment of the two florins laid out to get all the bells rung. The closure Sacchetti brings to the tale is moral and legal at the same time: "This was great justice and grand beneficence on the part of this lord, as that [rich] man deserved worse; but still, all things considered, his was great virtue, and the justice for the poor man was not small; and where he said that the bells sounded for the law [ragione] that was dead, it could be said that they sound to have law resuscitated, and today can indeed sound because it has revived!" (13) In this case a signore--described as "wise and honest without arrogance" (14)--has worked justice by acting as judge. He has restored the proper relationship between the parties in regard to things. The good but poor little man (omicciuolo) had simply made a good case for himself; and the judge then acted once he had discerned the true facts. (15) Here perhaps Sacchetti's judge approaches the more Platonic notion of justice as the virtue that most helps those able to do the least. (16)
As a merchant and experienced public official descended from a prominent Florentine casa, Sacchetti did not share the humanistic literary grounding of Boccaccio; nor had he gone to law school to acquire a distaste for the law, an astonishingly common feature, beginning with Petrarch (1304-74), of humanistic critics of law and scholasticism. He came by his distaste for the law honestly, expressing it most evidently, perhaps, in his brief fortieth novella, where in his own voice ("I, the writer") he declares the study of law (again, as ragione) with an esteemed jurist (in this case, Angelo degli Ubaldi [1325-1400]) to be a waste of time. Wealth and power dictate where judgments strike, not the law. (17) There is no single privileged perspective to take on the tales of a man such as Sacchetti, who was alive to the needs and uses for law and courts in a commercially active environment. (18)
Still, we have to recognize that injustices occur within legal systems--indeed, are perhaps more apparent precisely in and because of the legal system. It is the case that the "principal home of justice is law": that is, justice encompasses more than the distributive sense that preoccupies John Rawls and other theorists. (19) Only by getting beyond the fictional or abstract can one begin to understand how on a given occasion law was or was not an ally of justice.
To return to our point of departure, it is important to realize that novelistic tales were not the same as the stories told in court or as the stories courts had to craft to make legal sense of events. Like literature, law shapes reality through language, so there is a vital parallel, as Geertz, among others, insists; but the stories of Boccaccio and Sacchetti were also coherent, continuous, and one-sided. In courts there are multiple narratives, woven through procedures and arguments, and shifting in response to each other. Nonetheless, in the end the court wants to leave an orderly record and lay out the account on which its findings are said to be based. (20) That account may not substantially square with that of either litigant, or with that of the public at large. So criticisms of the function of law built around fictional (as opposed to legal) narratives can stoke existing prejudices and play to prevalent stereotypes, but they cannot be compelling evidence for legal change.
3. HUMANISM AND LAW
Langer's article does not consider more narrowly humanistic, nonnarrative, critiques of law. Humanistic criticisms took the form of prose epistolary treatises or dialogues, such as those debating the relative merits of law and medicine. (21) The rhetorical emphases of humanism, especially when woven into a dialogic form, led to a more balanced, two-sided account, in comparison to the one-sided fictions of novellieri. Again, Florence, with its weak university, was a primary site for this type of criticism. (22)
This line of reaction to the university tradition of teaching, which began at least with Petrarch and reached a culmination with Ambrogio Traversari and Andrea Alciato, was most famously expressed in the contest between the scholastic mos italicus and the humanistic mos gallicus. However, the former was also tied to practical interpretive legal activities, while the latter thrived in an atmosphere of more-detached scholarship and, as the name implies, more evidently in France, where the traditions linked with the great Trecento jurist Bartolo da Sassoferrato (1313-57) were not nearly as entrenched. (23) Law in practice remained heavily indebted to scholastic traditions. (24)
To Petrarch the disjunction between legal doctrines and practice was attributable not to the norms themselves, and certainly not to the Justinianic Corpus, but to those who interpreted the law. (25) These interpreters were the professors whose instruction had left him with an abiding hatred of their profession: its methods, its venality, and its multiple and contradictory interpretations. (26) In this regard, his emphasis on interpreting the mens, intentio, and propositum of the law did not differ profoundly from that of the authoritative jurists of his age: Bartolo, also Cino da Pistoia (d. 1336/37) and, later, Baldo degli Ubaldi (1327-1400) and Paolo di Castro (ca. 1360-1441). (27) Even the preacher Giovanni Dominici (1356-1420), a staunch opponent of the newly fashionable classicizing humanist rhetoric, blamed venal judges and their corrupt interpretations for the sad state of justice in Florence. (28)
The first truly Florentine humanist critique of law and justice--and a temperate and measured one at that--was Coluccio Salutati's (1331-1406) treatise on the parallel themes De nobilitate legum et medicinae (1399). (29) Salutati equates law with human society, and medicine with nature, and defended law as superior to medicine. Law yields firm, immutable truths that apply to all humans; medicine yields contingent cures for particular persons. (30) Laws address the common good, not a private and singular good. Salutati conservatively assumes the active and positive intervention of trained jurisconsults in framing and interpreting laws. (31) Florence's own contributions to "our modernity" were all captured in Salutati's roster of famous jurists, beginning with the great glossator Accursius and ending with the last great glossator of canon law, Giovanni d'Andrea (in fact a Bolognese who hailed from a village near the Tuscan border). (32) But he also did not hesitate to note that whereas Justinian had pared down the civil law to manageable compass, "there are now so many glosses, summas, writings, lectures, treatises, and libels that it seems impossible, let alone for both laws but just for the reading of the civil laws or of the decretals, that a man's life would be enough." (33) Salutati's praise of law, then, is for an idealized image of it; failure to approximate this image is implicitly criticized. (34) Above all, he maintains that there is a distinction between law and fact, the latter to be demonstrated by assertions of parties, depositions of witnesses, and written instruments. (35)
Salutati's protege and successor as Florentine Chancellor, Leonardo Bruni (1369-1444)--who had come to Florence in the 1390s to study law but had given it up by 1398--was more negative, at least in a letter to Niccolo Strozzi. There he maintains that the utility and dignity of the study of civil law have long been lost, that nothing in civil law pertains to making men good. (36) The good and the true are not changed by procedural technicalities, nor do they vary from place to place, whereas law does indeed differ, so that what was legal in Florence might be illegal in Ferrara. Dignity and nobility were lost in unseemly controversies over minute points of law, so that a doctorate in law seemed more a mark of ignominy than of the nobility jurists claimed for it. (37) For Bruni, too, law seemed absorbed in its own minutiae and distant from the facts of social and civic life where justice needed to be done. (38) He was not alone. (39)
Bruni's criticisms pale before those of the non-Florentine Lorenzo Valla (1405-57), who dared to assault head-on the pinnacle of late medieval jurisprudence, Bartolo da Sassoferrato, in a scathing critique of his treatise on insignias and coats of arms. Valla attacked Bartolo for wallowing in details and complicating matters unnecessarily, for poor Latin, and for his misinterpretation of laws. (40) Valla's acerbic wit was aimed mainly at rhetorical excesses, some more imagined than real. His assault, moreover, was thoroughly one-sided and more than a little unfair, as his main points of argument were aimed at the second part of the De insignis, which was not, in fact, written by Bartolo. It may be that Bartolo's enormous professional stature and undeniable authority were so prestigious that Valla did not need to furnish any arguments on its behalf, anymore than he desired to defend the Donation of Constantine. Valla could be scathing, moreover, because he was in no position to effect or anticipate real change or even to deal with the law and its practitioners on a daily basis, unlike the Florentine Chancellors Salutati and Bruni. (41)
Consistent with the ethical and rhetorical concerns of these three were the criticisms of Poggio Bracciolini (1380-1459), also educated in law though without having taken a doctorate, and also Chancellor of Florence from 1453 until his death. (42) His sense of law as preserving cities and bringing peace to people was entirely conventional and unexceptional. (43) Poggio's dialogic characters--the jurist Benedetto Accolti (1415-64), also later chancellor, and the physician Niccolo Tignosi da Foligno (1402-74)--allowed that law as generally practiced had problems. (44) Other nations did not need the law as taught in Italy, which was full of dissenting positions. (45) There was no certainty. (46) But Tignosi also argued that law had to change with circumstances and that, in this light, even Roman law had limited applicability. Thus Frederick Krantz concludes that for Poggio law was contingent, a product of power the will of the ruler. (47)
Tignosi's attack on law was that, as practiced in Florence or Venice, it seemed only to allow conflicts. (48) At Florence civil law was mainly used in constructing the "fortress" of private law, which only produced endless suits and disputes:
Every city establishes its civil laws, every castle puts together its private law. Florentines use private institutes rather than public: that is, the Roman laws. They attributed great age to the establishment of those laws which are now unchanged by time and the condition of the cities. So in individual cities necessity impelled establishing laws suited to their affairs, which are considered before Roman law. The disputes you handle, the presentation of the claims, the exception, the response (to the exception), summons, production of witnesses, the appeal and (as they say) 600 other legal objections you have devised (and I will omit the annoyance and burden of expenses, as well as fastidious details) are detrimental to the city, such that, having rejected your wordiness, nearly all controversies between citizens should be settled by judges of the guild to which one belongs. Make the Florentine Republic a more ample realm, have these private laws of the Romans put into volumes, and, having abrogated the rest of their particulars, let it be established that the city and her subjects be held thereto. Truly, Florentine laws will then be greater than yours in authority and dignity. How many then will be judged, or who among them will expend effort for which he is in no way accountable? Certainly they will be of no value or advantage. But you who are most learned in the Roman laws will find yourself unlearned in these civic laws and no one will need your work. Either it will suit you to learn some other law or to migrate somewhere else where you may seek to sell this doctrine of yours. Therefore, I beg you, do not be anymore troublesome to us by this your inane juggling of rules and law; and it is also necessary that sometime you admit that you are unequal to us because your doctrine is subject to the will of men, yet our art is not varied by the whims of some men but rests on the truth of things. What kind of doctrine is it, the one which you have learned, if it can be abrogated and changed by a single edict of the emperor, and if by one man's will you might be changed from a consulted into an unconsulted expert? (49)
The dream of putting lawyers out of work through simplification and codification of existing statute would be an enduring one. Poggio's dialogue may thus have captured some of the more learned sentiment behind judicial changes in Florence in the course of the fifteenth century--abolition of the Esecutore degli Ordinamenti di Giustizia and the Capitano del Popolo, expansion of the role of the Otto di Guardia and other civic courts, the establishment of the Ruota, and the end of the court of the Podesta. (50) But as his Oratio shows, he was also quite capable of mounting a defense of law, if not always of the role of learned jurists.
In his De legibus et iudiciis, the later Florentine Bartolomeo Scala (1430-97)--familiar with law as well as humanism--presents balanced, cogent criticisms of prevailing legal practices. Scala himself studied and practiced law before becoming Chancellor of Florence in 1464. Florentine records refer to him as doctor and iurisconsulens, the same terms used for the man who serves as interlocutor in his dialogue, Bernardo Machiavelli, father to Niccolo, though a lawyer of very modest stature and practice. (51) In the dialogue it is Machiavelli who introduces--as a factor to resolve disputes caused by textual corruptions--the transfer of the oldest surviving manuscript of the Digest, the littera pisana, from Pisa to Florence, where all can consult it. Scala's persona responds that tranquillity is preferable to acrid and prolonged disputes, and that written laws, even those of the Romans, did not bring an end to such disputes. This line of argument leads rapidly to the notion of an ethical standard of natural and rational law and to criticisms of the failures of law as practiced (even in Florence) to conform to this standard:
Our city has always had an abundance of men who achieved the highest distinction in jurisprudence. But with all due respect for earlier ages our own is surely second to none in learning and integrity and is likewise reckoned superior in the art of speaking and in other branches of knowledge which improve our lives. We have witnessed and continue to witness daily the excellence of men who speak not only in court and in trials but also in important embassies, in the Senate and highest public offices. No one should be surprised when several advocates of this caliber disagree with each other. Rather, since we see that happen in nearly every case, we must perforce conclude that the obscurity of events is to blame. It is obvious that nature is not at fault, for (as I said earlier) she has lit a light in us and placed within our view the entire basis for living well. But when faced with mountains of books, and so many great disputes and struggles on the same question--is it surprising if a mind with uncertain standards is torn in several directions? With nature leading and pointing the way, everyone could arrive at the truth using his own wits; but when arguments are piled up to prove or refute conflicting claims, no one can distinguish the truth. (52)
There was no greater harm to "this civil science" than this multiplying of books and arguments and prolonging of cases. (53) From here Scala's persona bemoans the loss of money and energies to unending litigation, and Machiavelli quickly affirms the recent memory of inheritances needlessly bound up in court. (54) Clients were overwhelmed by a jurist's collection of books rather than by his mental acuity. (55)
It was the lack of certainty and predictability that perplexed Scala and, to some degree, Bruni before him. Laws were to promote what was good for family, city, and humanity in general. (56) As a form of truth, then, law should be unchanging and constant, and the failure of legislation and judicial action to achieve this standard was evident in law's changes, obscurities, and diversity of opinions. (57) "If the principles of law are sometimes obscured by the multiplicity and diversity of their applications or through the fault of their interpreters, we would clearly be wrong to blame the laws and their principles, rather than the peculiar condition of their interpretation or the perversity of their misguided interpreters. It is quite absurd to fault the discipline for the practitioner's mistakes. In medicine, if a doctor loses sight of health which it is his aim to restore or preserve, is it the science of medicine we should censure, or isn't it rather its practitioner, the doctor?" (58) In the end the blame was placed on those who practiced--on the spirit with which they approached their profession. Their failure to maintain the clear relationship between laws and facts was the problem.
These humanists were all close to the law. They mingled with notaries and jurists, judges and legislators. They drew up documents of legal standing. Their consistent concerns were about the lack of certainty in the law, about the rhetorical excesses of ever-expanding terminological distinctions, and the never-ending parades of doctrinal citations. Their ethical concerns about law and justice were clearly distinct from, though not unrelated to, those of writers of stories. Their criticisms were not situational but systemic. Scala would blame the practitioners, Bracciolini the reliance on old laws. Bruni and Valla attacked the tendency to wallow in details. None of these men was willing to give the technical dimensions of law their due.
Only Leon Battista Alberti, who was equally concerned about the ethical and even rhetorical shortcomings in the law as taught and practiced, forged a path between legal technicality and general ethics. His was a somewhat singular critical stance. Alberti obtained a doctorate in canon law from Bologna. Unlike others ranging from Petrarch to Ariosto, Alberti did not repudiate legal science thoroughly--not that he failed to perceive a distance between technical legal resolutions and social justice. (59) Alberti's De iure steered clear of Justinianic texts that formed the core of legal teaching and practice, developing instead broad ethical concepts such as fides, religio, pietas, decor, and honestas. Alberti, however, kept close to prevailing practice, in which a judge disposed of discretion to interpret statutes of municipal law in the light of the more general norms of the ius commune. (60)
In fact, the judge was often not the presiding official of a court: the true decision came from the educated doctor consulens, to whom the judge or the parties to a suit turned for guidance, rendered in the form of a consilium. (61) Alberti examined the judges' need for ample powers to inquire into cases and to tailor solutions to particular circumstances, and he rehearsed the sorts of problems that arose in interpretation of written laws. He recognized the inevitability of uncertainty in law, at least at the level of the particular case. In consequence, Giovanni Rossi concludes that Alberti formulated a terza via adhering to classical philosophy, but also maintaining the centrality of the juridical moment. (62)
In contrast to novellieri, who saw law in relation to anticipated court judgments and the intellectual and moral failings of judges, humanist critics fastened on the obscurities of technical language and the wealth of conflicting opinions. The ethical lapses of practitioners, in their eyes, were more intellectual ones. Even Alberti, the only one who appreciated the dilemma of the judge in interpreting texts, also thought the key was to bring Aristotle and Cicero into play. Alone among humanist critics, Alberti was prepared to make a virtue of a judge's discretionary latitude, which may be why his terza via attracted so little attention and support. With a later figure such as Poliziano (1454-94), humanistic critique of law took a neutral historical-philological approach. Intervention in courts and procedure was left to the governing powers. (63) It was Francesco Guicciardini (1483-1540), historian and statesman, and also a practicing jurist, who defended the law from the charges of those who found the variety of legal opinions reprehensible with the emphatic assertion that "general rules cannot possibly comprehend all particular cases." (64) For practicing jurists the very wealth of citations the humanists deplored was assurance that justice came into play somehow. (65)
4. PRACTICAL JUSTICE: TWO CASES
Neither the vera philosophia of the jurists' lecture hall nor the Ciceronian ethics of the humanists' erudite assembly were equipped to handle the peculiarities of life in the streets, piazzas, and fields. What humanists and novellieri could not understand or tolerate was that, by their nature, "systems of law possess a very distinct form of indeterminacy." As Lawrence Rosen explains, "this does not simply mean that matters of substance or procedure may vary somewhat from case to case making simultaneous observation and prediction difficult if not impossible. Rather, it means that in most legal systems facts must be created as much as recognized and that the projection of such assessments on a screen of cultural, commonsense observations often creates a discrepancy, a lack of fit for which the authority and purpose of the law must seek to compensate." (66) James Boyd White makes the same point, noting that "one way to think of the law, in fact, is as an intervention into a world that works largely in non-legal terms, and for the most part well enough, but that has now suffered a crisis or breakdown calling for its help." (67) He goes on to liken the writings of judges and lawyers to poetry--"creating instances of momentary order" against ignorance and incoherence--arguing and reimagining justice to which, in its pure state, there is no unmediated access. (68)
In a system such as that then in use in Florence and elsewhere in Italy, such basic indeterminacy was complicated by two facts. First, practicing jurists faced multiple sources of law, including municipal statutes, as well as the facts of the case. Society was, as Paolo Grossi has it, "legal," because the legal structure rested on multiple sources of law: civil, canon, feudal, statutory, and customary. It arose from no single chancellery or authoritative source of command; it was carried by notaries crafting documents and lawyers crafting arguments. (69) Here is where the private accommodations to which Bracciolini alludes come into play. (70) Here too is where the power, or creativity, of the jurists lay.
The second complication is that jurists were frequently called on to contribute to cases, either by the judges (who were not always trained in the law) or by one of the parties. Where the judge sought help, the resulting consilium sapientis iudiciale was decisive. (71) In the instances in which one of the parties to a suit or trial sought juristic expertise, their desire was for convincing arguments in favor of their side and counter to those of their opponents. It was especially in taking sides--in drafting consilia pro parte, where the power of their legal arguments had to stand on professional bases--that jurists became increasingly prolix, if not always thorough, in the number and range of citations to authoritative sources (leges, auctoritates) and in the clever, if sometimes obscure and nitpicking, numbers of arguments (rationes) they could mount pro et contra. (72)
The criticisms we have reviewed arose in the Trecento and Quattrocento precisely because it was then that jurisprudence spoke the loudest. When law and justice were not given but were to be found, as Quaglioni has it, forensic interpretation was the true point of contact between learned doctrine and law in practice. (73) Jurists had to work out accommodations that fit the facts to the law, while not stretching the law beyond all bounds of credibility. That they did not always do so, or do so well, and deserved criticism for this, goes without saying. Yet theirs was not an easy task, and even modest practitioners did not necessarily merit being tarred with the broad, quick strokes employed by writers and humanists.
Jurists asked to submit a consilium sapientis had to present their written decision within a short time frame, usually only a few days. And they had to decide the case. They had to be impartial--indeed, parties and judges had recourse to them precisely because they relied on their impartiality--and in this there was some guarantee of justice. That justice be done and be seen to be done required an impartial judge and a fair hearing of both sides. (74) But their aim was dispute resolution, not necessarily some abstract, ideal justice.
To appreciate this legal indeterminacy and how different the task of the jurist was from the presentation of it by novellieri or humanists, it is necessary to look at the intervention of jurists in specific cases. Two are offered here. Both were at the request of the court, to guide the judge. They are not partisan statements of justice to further one side's cause. They supposedly aim at the social justice that humanists and novellieri sought, and sometimes despaired of. In this regard, the two were chosen from the thousands that survive from the heyday of consilia (from the late fourteenth into the sixteenth century) because they are fairly typical. They offer brief and relatively uncomplicated cases handled by jurists of modest but competent professional standing. The cases involved the sorts of issues that also rose in the novelle we have seen, so it is possible to compare the legal narratives with them more directly.
The first is known through the surviving consilium of the jurist Ivo de' Coppoli (d. 1441). (75) The dating of the case cannot be precise (ca. the 1420s or 1430s), but its location is: Citerna, a small town on the Umbrian-Tuscan border about midway between Arezzo and Citta di Castello. (76) While the jurist and his case were not Florentine, this consilium is a typical example of scholastic legal reasoning in the service of judicial needs. Ivo de' Coppoli is also an unexceptional example of a fifteenth-century legal professional. From a wealthy Perugian family, he taught law there, and in the 1430s worked in the papal consistory in Rome. His consilia and academic lectures survive in manuscript.
The case he faced is very appropriate to the context we have set up. A woman of Citerna named Bartolomea had been deserted by her husband, Francesco di Paolo, not long after their wedding. He had left her for the mother of his son, a concubine he had had in Pesaro before his marriage to Bartolomea. Not only had he departed, he was also supporting his lover with Bartolomea's dowry and non-dotal property.
This situation was the stuff of novelle. A wife's machinations to get even with her wandering husband had all the potential for comedy combined with moral instruction. It is not too far off from, for example, Boccaccio's story in Decameron 3.9 of Gilette of Narbonne, who impersonates the lover of her reluctant husband. For that matter, Bartolomea's story bears some resemblance to that of Griselda in Decameron 10.10, who was also deserted by her husband--but, notably, without having brought him a dowry. Bartolomea's reaction, however, hardly compares to the non-reaction of patient Griselda.
It is hard to say what sort of defense Francesco might have offered for his actions. Unlike Boccaccio's monna Filippa, he could hardly claim to have merely shared the surplus of his affections with another: he had clearly run off. He had indeed been involved with his Pesaro concubine before his marriage, and concubinage, while irregular in law and sinful as fornication, was tolerated in law and society. (77) But it was also conceded that his wife had been unaware of this prior concubinage when they married, and did not know about the son it had produced. Presumably Bartolomea was quite surprised when Francesco brought the concubine and his son to Citerna to live with them quite openly. It was clearly explained in the punctus (that portion introducing the facts of the case) to Coppoli's consilium that his abandonment of Bartolomea and squandering the proceeds of her dowry and non-dotal goods happened "without her consent and despite her remonstrations." (78) Perhaps Francesco's best defense was simply that he did not have and could not claim ownership of either his wife's dowry or her non-dotal goods; he had control of the proceeds of these properties, however, by virtue of the marriage. (79)
Either Bartolomea or a male kinsman (or both) brought suit in a secular court in Citerna. There was a need for, if not a direct trust in, the mechanisms of law. The legal problem, as put to Ivo de' Coppoli by the court when it turned to him for expert guidance, was whether Bartolomea could demand restitution of the dotal and non-dotal property and of the proceeds. This case went to secular court because it was about property. Bartolomea was not here pursuing charges of adultery or otherwise directly proceeding on a moral, not criminal, issue. In consequence, Ivo de' Coppoli was also being asked only about property rights and material consequences: he had to confine himself to these issues. He was not free, as Boccaccio's characters might be, to roam into sweeping moral judgments (although, as we will see shortly, he tried at the end).
Recourse to the expertise of a jurist such as Coppoli had the functional effect of resolving (in one way) questions and indeterminacies in the law, while symbolically anchoring a resolution in the authority of texts and the skills of a community of interpreters of those texts. Procedurally the court, having heard the arguments of both parties, could turn to a doctor of law for advice--having done this, the court generally had to conform its judgment to that advice. (80) The question for the jurist was about the consequences of rules, only indirectly about where justice lay. This procedure settled law as something apart, sacred--due in part to the Latin of the text--authoritative, professional, and impartial from the opening invocation of Christ's name to the jurist's signature and seal at the end.
Substantively, Ivo de' Coppoli began with the observation that only in a few exceptional instances (none of which applied in his case) did law allow a wife to retrieve her dowry from her husband--although one exception, honored in practice and in statutory law in Florence and elsewhere, as well as in principle in ius commune, permitted judicial restoration of the dowry from a husband verging on bankruptcy (vergens ad inopiam). (81) Francesco, however, was not in dire financial straits: Bartolomea's claims could not rest on evidence of penury-to-come. The issue, said Coppoli, was that here husband and wife lived apart, so did he owe her support (alimenta)?
In principle, he did: "when a wife is no longer available to serve the husband but lives separately because of the husband's fault, then the husband must support her even beyond the amount of her dowry, if it is insufficient." (82) It was the wife's being in a state of obsequium and owing servitia to her husband that normally generated his legal obligation to support her from the dowry: but where separation--which necessarily ended an obsequium that was contingent on cohabitation--was by his fault, this obligation persisted. (83) Only a few years before this case a veritable phalanx of distinguished jurists in Florence had affirmed this obligation. (84) In the situation before him, Coppoli confirmed that the husband had to support his wife according to their station, having to dip into his own goods if hers were insufficient, but being able to keep the surplus if hers were more than enough.
To give something of the flavor of Coppoli's text, consider the following crucial passage: "That she cannot live with him, or, alternatively, that she can live with him but without honor and peace, amounts to the same thing, as is evident from Baldo's commentary to lex Quamvis and lex Illis libertis, and [moreover] the dowry was fully paid to the husband. Therefore, one must necessarily conclude that support must be given to Bartolomea by Francesco, in conformity with the husband and wife's station and with the amount of the dowry, as well as with the husband's goods if the proceeds from the dowry are insufficient to support the wife, for the reasons stated above. Nor do I care whether the wife, at the time of marriage or before, knew that Francesco kept a concubine. For it was possible, and she could have easily believed, that Francesco would revert to a better life." (85) There is much going on here. For one thing, there is the support for seeing her as victim of her husband's acts that Coppoli finds in the work of one of the most authoritative jurists of the age, Baldo degli Ubaldi. To live dishonored in the same house with the concubine was not a viable choice. The second premise to the syllogism was that Francesco had the dowry. The conclusion: he had an obligation to provide for her. Then there is another bit of non-judicial logic: no prior knowledge on her part regarding concubinage could be used to impute fault or consent on her part. Rather, Coppoli could impute to her the socially reasonable expectation that marriage would end the concubinage ("revert to a better life"), as it did in so many similar cases. (86) Unexpressed here is the clearly normative expectation--and its resulting legal consequence--that only a wife could give birth to a legitimate child. On the argument of Bartolo da Sassoferrato, Coppoli claims that a woman who married a man she knew to be in financial difficulty did not lose thereby her claim to her dowry. By extension, she should not lose her claim because of prior knowledge of concubinage. Indeed, as this concubine resided in another territory, the legal presumption was Bartolomea's ignorance of the concubine.
In contrast to the extensive treatment of the wife's claims to support from her dowry, two other conclusions were reached at the end with little argument. Bartolomea "clearly" was due restoration of all non-dotal goods, as two texts of civil law alleged in support. (87) The dowry was not restored, but the non-dotal goods were. The husband had only usufruct on them--which he exercised by his wife's consent--which clearly could, in the present case, be presumed to have been withdrawn. The second conclusion, advanced marginally and seemingly as an afterthought, was the suggestion that Francesco "and Maria, his servant, formerly a concubine and now an adulteress," be prosecuted for adultery. (88) One issue of law, that of alimentary support, had been resolved, but the law always carried the potential for other stories. Here the jurist allows himself a bit of moralizing in this suggestion to pursue the charge of adultery.
It is also in the distinction between dotal and non-dotal goods that we might find the meaningful distinction between law and justice in this case. Francesco's open adultery and abandonment of his wife cost him control of the non-dotal properties, but not the dowry. Ivo de' Coppoli could not find a rule that took the dowry away from the husband--at least, not any that would fit his case--or even one seemingly close enough to what lay before him to be stretched by analogy, the crafting of a legal fiction, or some other device of legal interpretation. (89) He could demand that the adulterous husband support the wife from the dowry's proceeds, and even beyond that if the proceeds were insufficient by requirements of their social station. But the control of the dowry still resided with the husband as long as he was not in grave financial difficulty. Unexpressed in the consilium, but apparent when looking at relevant rules of law, is that the contrary does not hold. Where the adulterous husband kept title to the dowry, the wife guilty of adultery lost her dowry. So what was just with one type of property was not just with another.
This result hardly seems the sort of outcome that would satisfy the ethical-comedic purpose of a Boccaccio, while it seems well suited to launch Bracciolini's Tignosi into a diatribe on the technicalities of law and the diversity of learned opinions. Nonetheless, it was a result posed as a fitting of rules to facts and, whatever we may think about the ultimate epistemological unreality of the rule-fact distinction, acceptance of such a decision rested vitally on it, as did Coppoli's very ability to craft such an outcome. Coppoli could not ignore the distinction between dotal and non-dotal goods or the rules of law regarding marriage and adultery. Nor would he want to. But to any writer inclined to see Bartolomea in the same light as Griselda, Coppoli's decision could well seem pretty just.
Our second case is also the stuff of novelle, if we keep in mind Sacchetti's story of the hapless peasant and his slowly disappearing plot of land. This case is Florentine. We know of it from a brief original consilium of Giovanni di Bernardo Bovachiesi da Prato (b. 1397), a recent inductee in Florence's Arte dei giudici e notai at the time he penned and signed his opinion on 9 November 1431. (90) Like Ivo de' Coppoli, he too was an example of a professional lawyer from a well-to-do family moving to a nearby city in quest of wealth and reputation. The same can be said for Giovanni di Girolamo Buongirolami da Gubbio (1381-1454), who signed Bovachiesi's consilium so as to add the weight of his corroboration. (91)
The case that landed on Bovachiesi's desk, seemingly at the behest of the (possibly confused) judge hearing it, involved the prescription of ownership of property. Domenico degli Agli had a house near the Arno that shared a small alleyway (chiasso) with that of a man named Mariotto and his brothers. (92) Such narrow passages can still be found in Florence, notably between the Ponte Vecchio and Ponte Santa Trinita on the north side of the river. The portion of the alley toward the road known as El fondaccio belonged to Agli, while the portion toward the river belonged in common to both houses. However, for thirty years a wall, erected by Mariotto's predecessors with the knowledge and "patience" of Domenico degli Agli, had closed off that common passage "such that the said degli Agli were not able to use the common feature, while Mariotto, as his predecessors, had free passage to the Arno through a door." (93) The Agli had lodged no protest nor made any attempt to reclaim their right of way. By the institution of prescription in civil law, title to property was lost after thirty years if it was not exercised or asserted.
The question for Bovachiesi was simply whether Domenico degli Agli could have the wall torn down or, as a result of the passing of thirty years without contesting it, if Mariotto and his brothers possessed the passage entirely as their own. This case differed from Sacchetti's story, where the peasant caught on to his loss well before thirty years had elapsed (or so it seems) and made some effort to protest this, however indirectly and colorfully. It also varied from the novella in that, while the peasant's rapacious neighbor was clearly engaging in a stealthy theft, Mariotto and his brothers "might pretend a right to said road by title and sufficient cause." (94) Still, for all that the jurist tried to make the case hinge on technical rules of law, at its heart was a moral conflict, and a social one.
The Agli were an established Florentine lineage of some wealth and standing, numbering twelve households in the 1427 catasto. Their fortunes, however, were slipping. (95) Their neighbors, Mariotto and brothers, seem not to have inherited the property, and thus might have been new residents, whose presence triggered the suit to reclaim the right of way. Reference in the consilium to "brothers of ser Segna" may indicate the party that first built the wall. One could presume some sort of animosity, perhaps stemming from a sense of betrayal, behind the willingness to go to court. (96) A strong moral argument lay behind Bovachiesi's opening presentation of Agli's position. Associates or partners could not prohibit one another from using their common assets. (97) From the same perspective it might be maintained that the thirty-year duration of affairs did not matter, because this alone did not yield prescription of right, which came instead by the combination of "title, possession, and good faith." (98) This last term especially was a moral quality injected into the law by way of canon law. (99) It substantiated the argument that the other parties could pretend neither title nor good faith, for they knew that the Agli had right to the other half of the chiasso.
Bovachiesi, however, dismissed this argument and came down in favor of the brothers. First, Florence's statutes set a period of thirty years for a claim of prescription of title to property. Such "was always the understanding and practice that I do not insist on allegations lest I am long[winded]." (100) And as the Agli evidently knew of the situation--and so could not allege mala fides on the part of the defendants to defraud them--so the brothers were thus absolved of any obligation to the Agli on that account, and the Agli were precluded from seeking the destruction of the wall cutting them off from access to the Arno.
We cannot know for certain what moved Domenico degli Agli to pester his neighbors with a suit, and, unfortunately, we cannot tell what their relations were like in the aftermath of Bovachiesi's judgment. We can sense a certain degree of urgency and concern in the case: in the addition of Buongirolami's assent, in Bovachiesi's consilium, abbreviated in consequence of the plaintiffs urgent need, and in his revelation, as he signed, that he had personally gone to the site to better inform himself. (101) Bovachiesi was also at pains to align his judgment with what he took as the intent behind the Florentine statute allowing prescription: to establish certainty of ownership and end disputes, whether for the sake of public peace or to facilitate assessment of fiscal obligations. (102)
Here the Agli failed to achieve the outcome realized by Sacchetti's little peasant. They can hardly have been mollified by the argument that good faith and title were not concerns of Florence's statute; nor were they likely to take comfort in the obscurity of the legal doctrines regarding ownership and possession, as Paolo Grossi's imposing scholarship has made clear. (103) But here, much more so than in Ivo de' Coppoli's case, there was ambiguity from substantial arguments on both sides. The jurist had to recognize, understand, and reproduce these arguments, yet he also ultimately had to take sides. He was faced with competing stories, not with one stacked entirely to one side, as Sacchetti presented with his peasant. He also had to choose sides in a more overt fashion, deciding that one argument was better than another, in a way that humanists--who could leave their dialogic characters in an uncertain, or even ironic, situation whose implications were to be explored, at length and at leisure, by their audience--did not. As Bovachiesi made clear, there was no time for such nonsense in face of the practical needs of the parties. And he was not free to come to a solution that did not sit well with the law, no matter how distinctive and problematic the issues presented him by the litigants.
Novellieri handling the case of a jilted wife like Bartolomea, or of a party robbed of the use of his property like Domenico degli Agli, could have applied senses of character to the protagonists or sequences to the events that would direct a reader's sympathy and sense of justice to one side. Humanists could have posed the justice of serving legitimacy, gender, or title--the sorts of topics that arose in the cases we have just examined--without ever getting to the muddy details of a case. Humanists had the luxury of exploring the utilitarian factors in marital alliance, or of celebrating companionship and sexual pleasure in marriage: subjects found in humanist orations on marriage but profoundly absent in the case before Ivo de' Coppoli. (104) They could have handled a prescription case in similar terms, perhaps celebrating the honest use of property.
In the context of a case the jurist had to grapple with specific legal questions. Consideration of broader ethical issues was not an option. What was ethical? To let Francesco and Maria act like a married couple without benefit of marriage, while the legal wife lived apart from her husband? To let a husband who did not live with his wife--who chose, in fact, to live openly with another woman--keep his wife's dowry and those proceeds from it left over after paying for her support? Or was it ethical to let him have it all, on the premise that it came to him by a legal contract of marriage that remained in force no matter how extensive his own adulteries? Or was it ethical to make him give it all back? An adulterous wife lost her dowry, after all, so why should Francesco not get to keep it? (105) Similarly, was it ethical to allow a party that had quietly suffered the loss of a right of way, and that could not plead ignorance, disrupt the rights and patterns of life of another? Must the other party tear down a structure that had been used and enjoyed for thirty years?
The jurist had to determine what was legal. He had to cover his opinion with rules, to make them seem truly controlling of his decision. Whatever the wisdom behind his decision--and he did want to make his decision seem wise--it had to be rooted in authority. (106) In the end, however, a consilium had to opt for one side's story, and without the narrative structure that might leave an audience satisfied with a novella's resolution. The consilium cannot, by its very nature, give us the litigants' sense of moral satisfaction, and it cannot render the perspective of observant society, including that of its humanists, on the outcome of the case. It can only provide the jurist's sense of the law. In fact, one can fairly predict that one side (if not both) would not be satisfied, and that the matter would not have ended there. The jurist could hope to present his decision as in line with legal texts and prevailing professional opinions. Where those opinions varied, he still had to reconcile them. He had to create a fiction that there was in this case (and in every case) only one true, real, and legal story.
If, as Langer maintains, novellieri were concerned with particular justice, then it might be hoped that they were content with Ivo de' Coppoli's and Giovanni Bovachiesi's judgments. Facts and norms were intricately intertwined well before either began to contemplate the case. For example, it was established that Francesco and Bartolomea were legally married. Coppoli was not compelled to consider matters such as expressions of marital consent or affection, witness testimony, or evidence of sexual consummation. Bovachiesi, too, had before him the common right of way as opposed to a unilateral enjoyment for the requisite thirty years. It was also established that both attorneys were speaking at the behest of the court. Hence, their consilia were relatively brief, and they were not compelled to rehearse at length pros and cons and conflicting jurisprudential opinions, whereas humanists almost uniformly decried the numerous citations of jurisprudential writings and opinions. On the other hand, one must concede that it was because law was central to their vision of a well-ordered society, as well as to their historical sense of Rome, that humanists bothered to criticize it. Humanist concerns with the plethora of opinions, as expressed by Bracciolini, for one, gravitated around a loss of certainty and predictability of judgment. Something has to be conceded to humanist criticisms of law as embodied in this, or most any other, case. The jurists were concerned about, and operated within, the terms and rules of the law. Little of the realities of the litigants crept into their purview. Their language was arcane and stilted. Litigants could have more faith that the consilium's judgment was professional and legal than that it was just per se.
My approach here has been consistently interpretive. One result is the recognition of abiding indeterminacy right where humanist critics hoped for certainty; another equally is the recognition that modes of interpretation and argument in a learned legal system remain peculiar and separate. A jurist did not and could not construct his case as a humanist might have: he was not free to ignore either the texts of learned law or the arguments of the parties and the resulting question put to him by the court. He did not have the narrative freedom of a novelliere or the ethical detachment of a classical scholar. The result was a consilium that was essentially provisional, or, as Ivo de' Coppoli's signature asserted, his sense of the law as "saving always a more sane opinion." (107)
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(1) Geertz, 173-74.
(2) Goodrich, 2001, 119; for his general theoretical position, see Goodrich, 1995. Geertz's own discipline has been in the vanguard, although he bemoans its "becalmed debates" (168) over the applicability of Western jurisprudence to non-Western contexts. See Comaroff and Roberts; Roberts; Moore, 1978 and 1986; Starr; Rosen; Greenhouse, Yngvesson, and Engel.
(3) Corti, 119: "maturo senno," "buona coscienza." All translations, unless otherwise noted, are my own.
(4) Alberti, 254-55.
(5) Langer, 318.
(6) Corpus iuris civilis, 1:24 (1.1.10): "iustitia est constans et perpetua voluntas ius suum cuique tribuere."
(7) And thus not a point to be defended as intrinsic to a person, as in modern law: Evans, 32; see also 9-12, 34-35, 85-86. Also useful on medieval views of justice arc Fantini, 109-16; Cortese, 100-01.
(8) Corpus iuris civilis, 1:24 (1.1.1): "ius est ars equi et boni."
(9) Evans, 86; Horn.
(10) Boccaccio, 500-01.
(11) Kircher, 1037.
(12) Sachetti, 473: "perche la ragione e morta."
(13) Ibid., 472-74.
(14) Ibid., 473: "savio e dabbene sanza alchuna pompa."
(15) Ibid., 474: "saputa e fatta vedere la verita del fatto."
(16) Cortese, 142.
(17) Sacchetti, 84-85: "io scrittore."
(18) See Kirshner, 1984.
(19) Kearns and Sarat, 4-6.
(20) Gewirtz, 3-4; Ferguson.
(21) See Garin, 1975, especially 47-93.
(22) On the Florentine studio, see Davies; Brucker, 1969 and 1988.
(23) Maffei remains the classic study: sec also Calasso, 181-205; Gilmore; Kelley; Maclean.
(24) Schoeck, 314; Cortese, 453-84.
(25) See Manzin, especially 181-230.
(26) Gilli, 163-97, discusses Petrarch and responses to him by jurists such as Luca da Penne (1345-82) and Giovanni da Legnano (1320-83).
(27) Manzin, 222-25; Quaglioni, 2004.
(29) On these, see Quaglioni, 2004, 94-95; Krantz, 48-96.
(30) Salutati, 70-72.
(31) Krantz, 96.
(32) Salutati, 72: "modernitatem nostram."
(33) Ibid., 80.
(34) Ibid., 212: "Quoniam iuris prudentia est rerum divinarum humanarumque scientia, iuris ergo prudentes oportet ut, quod ipsorum denominatio sonat, prestent humana divinaque calere, sine quibus facultatis huius prudentes esse non possunt."
(35) Ibid., 174. Salutati's perspective was rapidly incorporated by others, even within law schools, as the survival of a doctoral sermon heavily dependent on his treatise attests: Quaglioni, 1986. Quaglioni's judgment of this text includes the view that "la salutatiana 'preminenza delle leggi' diviene qui preminenza del ceto dei giudici e dei giuristi" (354). On Salutati, see also Gilli, 200-12.
(36) La disputa delle arti, 8 (Leonardo Bruni, "Epistola a Niccolo Strozzi"): "ius autem civile ad faciendum virum bonum nil pertinet."
(38) But as Krantz, 102-202, has shown, Bruni also accorded law an important civic role and was less perplexed by its variability in regard to an unchanging natural law than with resulting problems of certainty in the law.
(39) Gilli, 210-25, 231-47.
(40) Cavallar, Degenring, and Kirshner. On Valla generally, see Gilli, 260-83.
(41) Cavallar, Degenring, and Kirshner, 3-5.
(42) Martines, 503.
(43) Bracciolini, 1947a, 11.
(44) Bracciolini, 1947b. Accolti followed Poggio as chancellor and taught law in Florence: Martines, 502-03.
(45) Bracciolini, 1947b, 17: "Itali tantum, neque hi omnes, huic vestro iuri civili obtemperant Nam Hispani, Galli, Anglici, Theutones, Germani, ceteraeque quae ad septentrionem spectant nationes, sibi leges quibus pareant constituerunt. Vestri iuris umbeculam quandam nonnulli norunt; mirum apud ceteros eius silentium est. Nihil apud illos vestrae litigiorum formulae proficiunt. Carent vestro patrocinio, acquitate ac prudentia."
(46) Ibid., 23-24: "Amplectuntur haec vestra iura omnia ferme tamquam uberes auro effodiendo campos. Pracbent enim primum ambigendi materiam, turn litigandi disceptandique copias ad quae fit multorum concursus. Vos vero ita mentes hominum dubitationibus variis circumvolvitis, ita umbram effunditis veritati, ut nil certi reliquum sit, in quo vis cuiusquam possit hacrcre. Hinc Cinus, hinc Bartholus, hinc Dinus, hinc Baldus aliique plurimi, tamquam phoebei interpretes a vobis in aciem educuntur, qui et ipsi ita quandoque invicem dissentiunt, ut divcrsarum opinionum congierem moliti esse, non veritatem quaesisse videantur."
(47) Krantz, 210-303. In this light Bracciolini was also able, in his Facetiae, to joke about grasping notaries and incompetent lawyers in a manner that would become commonplace in the next century: McClure, 30-31.
(48) Bracciolini, 1947b, 29-30.
(49) Ibid., 30-31: "Sua quacque civitas iura civilia disponit, suum quodque oppidum privatum ius sibi condit. Florentini privatis institutis magis quam publicis, hoc est Romanis legibus utuntur. Multa enim condentium aetate conferebant, quae nunc tempore et conditione urbium sunm immutata. Itaque in singulis urbibus leges in rem suam accommodatas condere necessitas impulit, quae iuri romano anteferuntur. Vestra enim litigia, libelli datio, exceptio, responsio, citationes, testium productiones, appellatio et sexcenta alia iuris, ut aiunt, a vobis reperta impedimenta, ut molestiam et impensarum onus ac fastidia omittam, odio sunt civitati, adeo ut omnes fere civium controversiae a suis cuiusque exercitii iudici-bus, reiecta vestra verbositate, decidantur. Fac rempublicam Florentinam ampliori imperio esse, et has privatas leges Romanorum more cogi in volumina, abrogatisque ceteris suis solis statuat se suosque subditos teneri. Profecto Florentinae leges maiori quam vestrae et auctoritate erunt et dignitate. Quanti enim existimabuntur aut quis eorum operam impendet quibus a nullis pareatur? Certe nullius erunt precii, aut cmolumenti. Tu vero, qui in illis es doctissimus, eris apud eos indoctus nullusque tua opera egebit. Sed aut iura te alia discere oportebit, aut ad alia migrare loca, in quibus tuam hanc doctrinam queas vendere. Quapropter noli, rogo, nobis amplius esse molestus in hac vestra legum et iuris iactatione; et id quoque necesse est aliquando fateamini, vos esse nobis impares, cum vestra doctrina voluntati hominum subsit, ars vero nostra non aliquorum varietur arbitrio, sed ipsa rerum veritate nitatur. Quae enim vestra doctrina est, quam discitis, quae unico imperatoris edicto tolli et mutari possit, et vos ex iurisconsultus voluntate unius inconsultos queat efficere."
(50) Zorzi, 1988, 1989, 1994a and b.
(51) Martines, 504, 506. For Scala, see Brown.
(52) Scala, 1997, 179-80. The original is at Scala, 1940, 263-64.
(53) Scala, 1940, 264.
(54) Ibid., 265.
(55) Ibid., 267: "Artem scilicet iam vincendi quandam, non dilucidande atquc aperiende veritatis et iustitie defendende studium nonnulli existimant iuris hanc et legum sacro-sanctam disciplinam, que modo fora omnia ita resonant tam dissonis variisque clamoribus perstrepuntque. Opere pretium est ingredi quorundam bibliotecas atque officinas potius causarum et coacervatissimos inspicere librorum cumulos, quos in rota partim libraria, partim ad parietes appensos tabulis tanquam scriniis distenduntur, habentque continuo reclusos preparatosque legentibus. Ipsi in medio consistentes nunc hos adeunt, nunc illos pro diversitate atque obscuritate causarum. Ita enim putant quod volunt confirmare posse habilius, et clientes multo magis his tot librorum spectaculis eorum esse sapientiam mira-turos."
(56) Ibid., 272-73.
(57) Ibid., 274.
(58) Scala, 1997, 192; the original is at Scala, 1940, 278-79.
(59) For Ariosto, see Catalano; for an experience Ariosto had with law, see Kuehn, 2004.
(60) Alberti's greater faith in the law, in comparison to Scala's pessimism, is considered by Marsh: see especially 111-15.
(61) Rather than reproduce the extensive literature on this juristic practice, I offer interested readers a point of entry with Ascheri, 1999; Kirshner, 1999.
(62) Gio. Rossi, 1999, 148-49; see also Gio. Rossi 2000; Quaglioni, 2000; Kuehn, forthcoming. Gilli, 294-305, also describes Alberti's approach as atypical.
(63) Krantz, 329-30.
(64) Guicciardini, 1965, 69, 113; Guicciardini, 1981, 167-68. On Guicciardini, see Cavallar, 1991 and 2002; Kirshner, 2002.
(65) And it is with Guicciardini that Quaglioni, 2004, 115-18, locates the first manifestation of the modern separation between the political, the moral, and the legal.
(66) Rosen, 17.
(67) White, 225.
(68) Ibid., 250-51.
(69) Grossi, 1995, especially 14, 60-61, 174, 227; see also Prodi.
(70) Kuehn, 1991, 19-74.
(71) See here the magisterial work of G. Rossi.
(72) Kirshner, 1999; see also Lombardi, especially 130-48.
(73) Quaglioni, 1989, 7-13; Quaglioni 2002, 187. Sec also Ascheri, 1994, especially 338-43, 366-77.
(74) Evans, 108.
(75) For de' Coppoli, see Grohman, 1:186-91.
(76) The consilium is in the Biblioteca Apostolica Vaticana, Vat. Lat. 1132, fols. 407r-408v, which has been transcribed and translated by Osvaldo Cavallar and Julius Kirshner. I thank them for sharing their text and notes with me.
(77) On this, see Kuehn, 2002, 41, 49-50; Genestal; Leineweber; Lefebvre-Teillard, 281-90; Ferrante.
(78) BAV, Vat. Lat. 1132, fol. 407r.
(79) On the problem of a husband's control over his wife's non-dotal goods, sec Kirshner, 1991; also Chojnacki; Klapisch-Zuber, 1985a.
(80) Sella is still the best general presentation of legal procedure for such courts. On consilia, see Ascheri, 1989; Legal Consulting in the Civil Law Tradition.
(81) Kirshner, 1985.
(82) BAV, Vat. Lat. 1132, fol. 407r.
(83) Obsequium and servitia were the terms used in law to indicate the power a husband had over his wife, while differentiating it from the potestas her father had over her: see Kuehn, 1991, 202.
(84) Kuehn, 1999, 443.
(85) Translation of Cavallar and Kirshner.
(86) On Florentines' sexual activities prior to marriage, see Kuehn, 2002, 93-94, 137-38.
(87) BAV, Vat. Lat. 1132, fol. 408r.
(89) For legal fictions, see Fuller.
(90) The consilium is in Biblioteca Nazionale, Firenze, Fondo magliabechiano xxix, 193, fols. 201r-v. On Bovachiesi, see Davies, 166; Martines, 501-02.
(91) Martines, 501. Buongirolami arrived in Florence in 1412 and ultimately had much more political success there than his colleague, who ran afoul of the Medici ruling group and was exiled eight years after the case we have before us.
(92) Unfortunately, it is not possible to say much more about these litigants, despite the possibility of using the 1427 catasto (Florentine fiscal census of inhabitants and property) to check into their circumstances. Their identity is too uncertain, and as Bovachiesi's text consistently refers to the predecessors, not to parents or to kin, it cannot be assumed that Mariotto inherited, rather than bought, the house.
(93) Biblioteca Nazionale, Firenze, Fondo magliabechiano xxix, 193, fol. 201r.
(95) It is notable that Molho, the historian who has gone the farthest to characterize the Florentine elite and compile a list of its members, has seen fit to include only one Agli household in his roster (376).
(96) Kuehn, 1991, 75-100.
(97) Biblioteca Nazionale, Firenze, Fondo magliabechiano xxix, 193, fol. 201r: "non possit unus ex sotiis prohibere alterum ne re communi utatur."
(99) Vilain; for another contemporary Florentine prescription case, see Kuehn, 1991, 101-26.
(100) Biblioteca Nazionale, Firenze, Fondo magliabechiano xxix, 193, fol. 201v: "ita semper fuit intellectum et praticatum, non insisto in allegationibus ne sim longus."
(101) Ibid.: "actenta festinantia ex petentis"; "visoque dicto loco presentialiter ut melius factum perciperem."
(102) Kuehn, 1991, 110-11.
(103) See Grossi, 1968 and 1992; see also Gio. Rossi, 1996, 1:1-6; Kuehn, 2001, 587-88. A metajuridical critique of a portion of Grossi's general position has been launched by Conte, 2002a and b, who draws on the works of Ascheri and Cortese: this line of criticism, however, does not vitiate Grossi's paradigmatic insight into the force of the real in medieval property law.
(104) D'Elia; Klapisch-Zuber, 1985c.
(105) Brundage, 388.
(106) Levinson, 193 (but see also the divergent views of Siegel).
(107) BAV, Vat, Lat. 1132, fol. 408v: "salvo semper consilio saniori."
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