The Virtues of Habit and the Evolution of Law
The Virtues of Habit and its Influence on the Legal Order
Azzo’s Perspective
Custom, for lawyers, is something that builds, interprets, and amends the law, even Roman law.
Community Power
Villages and communities have not fully or irreversibly transferred their power to grant entitlements (ius concedere) to the prince. They maintain a legal order that allows for stability and flexible regulation of the social body.
Customs and Their Enduring Function
Customs retain their power, and science endorses them. They bridge the gap between old and new law, returning to universal schemes.
Signs of Continuity: Factual Dimension of Law and New Legal Developments
13th Century: Structural Mutations and the Emergence of New Legal Concepts
Magna Glossa
The Magna Glossa clarifies the features of a new reality, providing discipline and addressing doubts arising in trials concerning new businesses.
Science and Praxis: A Close Symbiosis
Science enhances and builds upon the important instrument of mediation known as the notary, who is often equipped only with common sense and good disposition. The notary’s role is clearly defined in Bologna in the 12th century, and they work closely with legal science.
Irnerio’s Contribution
Irnerio believed that practice should provide a proper seal of office for notaries. He developed the Formularium, a collection of rigorous bargaining schemes written exclusively for notaries.
Emergence of New Legal Figures
New legal figures emerge from the realities of life, which were previously ignored.
Sensitivity of Legal Science
Legal science feels called to accompany and guide society through the difficulties of socio-economic change.
Second Half of the 12th Century: Quæstiones de Facto Emerging
The emergence of quæstiones de facto indicates a shift of attention towards society.
Judicial and Notarial Practice, Customs, and Communal Statutes
Judicial practice, notarial practice, customs, and even communal statutes are no longer ignored in theoretical discussions.
Signs of Continuity: Perfection by the Community and Imperfection of the Individual
14th Century: Pluralism and the Common Good
Pluralistic Civilization
The Middle Ages, from a legal standpoint, is a pluralistic civilization with a plurality of local producers of law. It is this plurality that underpins its legal system.
The Macrocommunity and the Common Good
The macrocommunity is the most complete embodiment of the common good, representing order and harmony between various social creatures.
Individualism as a Vice
Individualism is a vice foreign to medieval civilization, whether in its philosophical, socio-political, or juridical aspects.
Emergence of Individual Positions
Individual positions arise in the 14th century. A theological trend emerges that defends the will as a characterizing dimension, thus defending the isolation of the subject from other subjects within the community.
The Power of the Populus
The Populus as a Universitas
The populus (people) introduced its own unity. The people as a universitas (corporation) are the ones who hold the regulatory authority par excellence.
Constitutio Populis and Community Consensus
The Constitutio Populis is linked to community consensus.
Fragmentum of Aequitae and the Officium of the Populus
The Fragmentum of Aequitae stresses the officium (function) of the populus as a qualitatively different organic unity from individuals. It is the people who are tasked with drafting, interpreting, and circulating the law. Individuals are only responsible for complying with the law and its interpretation.
Praeceptio and the Power to Discipline
The power to discipline with regulatory rules does not belong to an unordered set of men, but only to the organized community that has the right to govern and presents itself as autonomous.
Iurisdictio and the Organized Community
The iurisdictio (jurisdiction) binds only the organized community.
The Legal System as a Limit on Princely Power
The legal system constructs a framework that limits the power of the prince.
Medieval Interpreters and the Requirement of Effectiveness
Medieval teachers are interpreters, mediators between the ancient text and its contemporary reality, clinging to the requirement of effectiveness.
The Consolidation of Classic Canon Law: The Corpus Iuris Canonici
Canonical Collections
At the end of the 11th century, Ivo compiled canonical texts, known as canonical collections.
The Church’s Pursuit of Legal Definition
The Church sought to define itself in a legal, technical, and expansive way.
Gratian’s Decree and the Bologna Agreement
In 1140, Gratian created the Decretum, a comprehensive work of legal matches. The Bologna agreement aligns with its spirit. Through the Decretum, Gratian provided the Church with a compact legal framework to dominate secular society. It offered a theocratic political weapon to the Roman pontificate.
Post-Gratian: Classic Canon Law
After Gratian, Classic Canon Law became a subject of scientific study, reaching maturity and becoming a complete system.
Centralization of Canon Law
Canon Law became centralized under the authority of the Pope.
Decretals and Casuistry
Law was made through decrees. Decretals are charter decisions of the Pope. Their casuistic nature means they respond to social practice and are centralized legal pronouncements.
The Pope’s Authority
The Pope became the maximum governor, legislator, and judge of the Church.
Gregory IX and the Decretalium Compilatio
With Pope Gregory IX (1230), Canon Law reached maturity. He published the Decretalium Compilatio and exported it to the University of Bologna.
Further Compilations
The creation of decrees continued with further compilations (Liber Sextus, Clementinae, Extravagantes).
The Corpus Iuris Canonici
All these compilations were collected in the 16th century in the Corpus Iuris Canonici.
Aequitas Canonica
Jus Ecclesiae
Jus Ecclesiae (Church Law) consists of Divine Law (unchangeable, perpetual) and Human Law (changeable, adaptable).
Aequitas and Individual Cases
Aequitas (equity) is the reasonable consideration of the uniqueness of individual cases.
A Dynamic Medium for Adequacy
It is a dynamic means for achieving adequacy.
Formal Source of Administration
It became a formal source of administration.
Flexibility and the Avoidance of Greater Evil
It represents flexibility of perspective, aiming to avoid a greater evil (e.g., allowing a priest to marry to prevent fornication).
Ratio Aequitatis
This flexibility is governed by rules but can operate within a range or Ratio Aequitatis (reason of equity).