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A Treatise of Legal Philosophy and General Jurisprudence: Volume 7: The Jurists’ Philosophy of Law from Rome to the Seventeenth Century, Volume 8: A History of the Philosophy of Law in The Common Law World, 1600–1900 PDF

546 Pages·2007·3.77 MB·English
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Preview A Treatise of Legal Philosophy and General Jurisprudence: Volume 7: The Jurists’ Philosophy of Law from Rome to the Seventeenth Century, Volume 8: A History of the Philosophy of Law in The Common Law World, 1600–1900

A TREATISE OF LEGAL PHILOSOPHY AND GENERAL JURISPRUDENCE Editor-in-Chief: Enrico Pattaro Volume 8 A History of the Philosophy of Law in The Common Law World, 1600–1900 Michael Lobban ATreatise of Legal Philosophy and General Jurisprudence Volume 7 The Jurists’ Philosophy of Law from Rome to the Seventeenth Century ATreatise of Legal Philosophy and General Jurisprudence Editor-in-Chief Enrico Pattaro, CIRSFID and Law Faculty, University of Bologna, Italy Advisory Board Norberto Bobbio † Ronald M. Dworkin † Lawrence M. Friedman, Stanford Law School, Stanford University, USA Knud Haakonssen, Department of History, University of Sussex, UK Associate Editors Gerald J. Postema, Department of Philosophy, The University of North Carolina at Chapel Hill, USA Peter G. Stein, Emeritus Regius Professor of Civil Law, University of Cambridge, UK Assistant Editor Antonino Rotolo, CIRSFID and Law Faculty, University of Bologna, Italy ATreatise of Legal Philosophy and General Jurisprudence Volume 7 The Jurists’ Philosophy of Law from Rome to the Seventeenth Century edited by Andrea Padovani CIRSFID and Law Faculty, University of Bologna, Italy and Peter G. Stein Emeritus Regius Professor of Civil Law, University of Cambridge, UK with contributions by Andrea Errera, Andrea Padovani, Kenneth Pennington, and Peter G. Stein Editors Andrea Padovani Peter G. Stein University of Bologna Great Eversden CIRSFID, Bologna, Italy Cambridge, UK ISBN 978-94-017-9878-5 ISBN 978-94-017-9880-8 (eBook) DOI 10.1007/978-94-017-9880-8 Library of Congress Control Number: 2005283610 Springer Dordrecht Heidelberg New York London © Springer Science+Business Media Dordrecht 2007 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper Springer Science+Business Media B.V. Dordrecht is part of Springer Science+Business Media (www. springer.com) TABLTEAB LOE OFF CCOONTNENTTES NTS V A Note on the Authors IX Preface XI Abbreviations XIX Chapter 1 - The Roman Jurists’ Conception of Law (by Peter G. Stein) 1 1.1. Introduction 1 1.2. Legal Procedure 2 1.3. The Rise of the Jurists 4 1.4. The Arrival of Legal Theory 5 1.5. Jurist-law 7 1.6. The Ius gentium 7 1.7. Equity from Ius honorarium to the Postclassical Age 8 1.8. The Proculians and the Sabinians 11 1.9. Unwritten Law 13 1.10. Elegance in Language and Law 16 1.11. The Aesthetics of Juristic Reasoning 19 1.12. The Institutional Scheme 22 1.13. The Digest Title, De diversis regulis iuris antiqui, and the General Principles of Law 25 1.14. The Historical Formation of Regulae iuris 27 1.15. Conclusion 29 Chapter 2 - The Metaphysical Thought of Late Medieval Jurisprudence (by Andrea Padovani) 31 2.1. Foreword 31 2.1.1. Why Metaphysics? 31 2.2. The Objects of Jurisprudence 36 2.2.1. Being and Essence. The Concept of Substance 36 2.2.2. The Concept of Substance in Jurisprudence. Acts of Ethical Relevance 40 2.2.3. The Different Substantiality of Human Acts and Natural Things 44 VI TREATISE, 7 - FROM ROME TO THE SEVENTEENTH CENTURY 2.2.4. The “Iura” Are Incorporeal Things and Secondary Substances 47 2.2.5. The “Iura” Are Products of the Imagination. The Mathematical Paradigm 51 2.2.6. The Scientific Nature of Jurisprudence 53 2.2.7. Jurisprudence Is a Theoretical as well as a Practical Science. The “Debate of the Arts” 56 2.2.8. The Knowledge of the Primary Principles and the Hierarchy of the Sciences 58 2.3. Theology and Law 61 2.3.1. Greek Logos and Christian Logos 61 2.3.2. Equity and Justice, Names of God. The Influence of St. Augustine 63 2.3.3. From Equity in General to the Juridical Norm. The Influence of Iohannes Eriugena 65 2.3.4. The Abandonment of Meta-Juridical Analysis after Accursius 66 2.3.5. The Doctrine of the Ideas of God. A Neo-Platonic Residue Indispensable to Medieval Philosophy 67 2.3.6. The “Iura” Are Encompassed in the Divine Word 69 2.3.7. Reasons for the Criticism of Plato 70 2.3.8. The Archetypes of the “Iura” Are in God 72 2.3.9. Perpetuity of the “Iura”: The Impact of the Book on Causes 73 2.3.10.Traces of Averroism? 75 2.3.11.Conclusion 77 Chapter 3 - The Role of Logic in the Legal Science of the Glossators and Commentators. Distinction, Dialectical Syllogism, and Apodictic Syllogism: An Investigation into the Epistemological Roots of Legal Science in the Late Middle Ages (by Andrea Errera) 79 3.1. The First Half of the 12th Century: The Logica vetus and Recourse to the Distinctio 79 3.1.1. The Logic and School of the Glossators 79 3.1.2. The Dichotomous Technique 81 3.1.3. Knowledge of Distinctio in the Context of the Logica vetus: Porphyry’s Isagoge 84 3.1.4. The Epistemological Relevance of Distinctio at the Time of the Logica vetus 87 3.1.5. The Role of Distinctio in the Field of Legal Science 89 TABLE OF CONTENTS VII 3.1.6. The Highpoint of the Doctrinal Development of Distinctio at the Glossators’ School: The “Tree” of Subdistinctiones 92 3.1.7. The Eminent Role of Distinctio in the Formulation of Doctrine in the Early Decades of the Glossators’ School: The Quaestiones legitimae 93 3.2. The Advent of the Logica nova in the Second Half of the 12th Century and the Evolution of the Quaestio Works 97 3.2.1. The Rediscovery of Aristotle’s Works on Logic and the Birth of the Logica nova 97 3.2.2. The Syllogistic Method 101 3.2.3. The Legal Application of Syllogism in the Glossators’ School and the Quaestio de facto 105 3.2.4. The Inferential Mechanism of the Quaestio de facto 107 3.2.5. The Role of the Loci loicales per leges probati 110 3.2.6. The Dialectical Nature of the Syllogism Contained in the Quaestio de facto and the Merely Probable Value of the Solutio 113 3.2.7. The Syllogistic Method as a Doctrinal Tool in the Construction of a Juridical System Based on the Hermeneutic Extension of the Ius commune 117 3.3. The Establishment in the 13th Century of an Aristotelian Epistemology Based on Posterior Analytics and the Birth of the Commentators’ School 119 3.3.1. Translations of Posterior Analytics in the Second Half of the 12th Century 119 3.3.2. The Re-exhumation of Aristotelian Epistemology 122 3.3.3. The General Adoption of the New Epistemology and the Identification of the Principia propria of the Individual Sciences 127 3.3.4. The Birth of the Commentators’ School 136 3.3.5. The Establishment of the Commentators’ School in Italy 142 3.3.6. Legal Principia, Word Lists, Consilia, and the Evolution of the Doctrine of the Ius commune in the School at Bologna 149 3.3.7. The Crisis in Aristotelian Epistemology and in Legal Science Based on Syllogism 151 Chapter 4 - Politics in Western Jurisprudence (by Kenneth Pennington) 157 4.1. The Jurisprudence of Sovereignty in the Twelfth and Thirteenth Centuries 158 VIII TREATISE, 7 - FROM ROME TO THE SEVENTEENTH CENTURY 4.2. The Importance of Feudal Law for Political Institutions in Medieval Society 172 4.3. The Jurisprudence of Secular and Ecclesiastical Institutions 181 4.4. The Jurists’ Role in Shaping the Political Thought from 1250 to 1500 190 4.5. Law and Political Thought 1500–1700 204 Bibliography 213 Index of Subjects 241 Index of Names 251 A NOTE ON THE AUTHORS ANDREA PADOVANI was born in Imola, Italy, in 1947. He graduated in law at the University of Bologna under the supervision of the late Prof. Guido Rossi. He was at La Sapienza University from 1974 to 1986, serving as re- search assistant at the Law Faculty’s Institute for the History of Law, directed by Profs. Bruno Paradisi and Vincenzo Piano Mortari. He studied with Prof. Stephan Kuttner in 1978 and 1979, receiving a research grant for the Vatican Project at the Robbins Collection, Boalt Hall, Berkeley, California. In 1980 he was Mitarbeiter at the Max-Planck Institute für Europäische Rechtsgeschi- chte, Frankfurt am Main, Germany, directed by Prof. Helmut Coing. He be- came associate professor in 1985, and then full professor in 1986, at the Uni- versity of Parma. In 1998 the University of Bologna awarded him the chair in the history of Italian law. His major publications include eleven monographs; among them, Perché chiedi il mio nome? Dio, natura e diritto nel secolo XII (Turin, Giappichelli, 1997); L’archivio di Odofredo, vol. 1 (Spoleto, Centro Ita- liano sull’Alto Medioevo, 1992); Scientia Iuris: Introduzione al pensiero giuri- dico medievale, vol. 1 (Parma, Casanova, 1989); and Studi storici sulla dottrina delle sostituzioni (Milan, Giuffrè, 1983). PETER G. STEIN is Emeritus Regius Professor of Civil Law in the University of Cambridge. He is the author of Regulae Iuris: From Juristic Rules to Legal Maxims (Edinburgh, Edinburgh University Press, 1966); (with John Shand) Legal Values in Western Society (Edinburgh, Edinburgh University Press, 1974) (Italian ed. 1981, Chinese ed. 2004); Legal Evolution: The Story of an Idea (Cambridge, Cambridge University Press, 1980) (Japanese ed. 1987); Le- gal Institutions: The Development of Dispute Settlement (London, Butterworth, 1984; Italian ed. 1987); The Character and Influence of the Roman Civil Law: Historical Essays (London, Hambledon Press, 1988); (with F. de Zulueta) The Teaching of Roman Law in England around 1200 (London, Selden Soc., 1990); Roman Law in European History (Cambridge, Cambridge University Press, 1999; German trans. 1996; Spanish ed. 2001; Italian ed. 2001; Japanese ed. 2003; Hungarian ed. 2005). He is an honorary Queen’s Counsel, a Fellow of the British Academy, and a foreign Fellow of the Italian National Academy (Lincei) and the Royal Belgian Academy and has received honorary doctorates from the universities of Göttingen, Ferrara, Aberdeen, Perugia, and Paris II. ANDREA ERRERA is Professor of History of Medieval and Modern Law at Magna Graecia University in Catanzaro. Among his works are Arbor actio-

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