“In Milan everything is left to the Doctors . . . there are no lights [lumi] but those of legal practice . . . the mint, provisioning, waters, manufacturing, and commerce are all in the hands of the Doctors, imbued with the opinions of the age of Bartolus.” So complained Pietro Verri, one of the leading lights of the Milanese Enlightenment and of the new science of political economy (Edizione nazionale delle opere di Pietro Verri [2003], 5:89, 5:104). The revolt against bartolismo, begun already in the fifteenth century by humanists like Lorenzo Valla, is a little-studied part of Europe's Enlightenment projects. If we are to take Verri's judgments (situated in a work of daring self-fashioning) as roughly accurate, it might be said that the importance of the subject and the scope of its historiographical treatment are almost inversely proportional. Why? When I was researching the civic administrative work of the members of the Accademia dei Pugni, which included Cesare Beccaria, for my recent book The Academy of Fisticuffs (2018), I discovered memos and other writings that engaged with this tradition in a passionate albeit limited way. Laden with cryptic medieval citations, cloaked in highly self-referential legal jargon, they presented me with an alien and esoteric world: a labyrinth not so much impossible to leave as impossible to enter.
English-language readers and teachers hoping to acquaint themselves with the “opinions of the age of Bartolus” may now rejoice. Though it surely has much to offer other specialists, Osvaldo Cavallar and Julius Kirshner's monumental and beautifully crafted collection of translated “texts” and rich “contexts,” Jurists and Jurisprudence in Medieval Italy, is first and foremost a delightful and useful Baedeker for tourists hoping to visit the mysterious country of medieval Italy's legal practice and theory, that is, the so-called ius commune (or diritto comune), a framework of Roman and canon law through which local laws and customs were interpreted and understood. The story is complicated (with reception, and resistance, and local variants), but there is no doubt that this system, which explicitly provided Europe and her colonial possessions with a shared idea of law and shared principles of legal reasoning from the twelfth to the early nineteenth century, represents one of the world's most important transgenerational intellectual projects. Around 150 countries worldwide use “civil law” legal systems still indebted to the ius commune, and its influence—over centuries of administrative and judicial practice, not to mention university teaching—simply cannot be overstated.
Given the submarine vastness of the whole, Cavallar and Kirshner may only have mapped the tip of the metaphorical iceberg of the world of medieval jurisprudence, but it is nonetheless a map that gives a better sense of the whole of the thing than I have ever encountered. Major sections focus on legal teaching, the legal profession, civil procedure, crime, status, and especially family matters. The texts are various in type: glosses, lectures, treatises, orations, eulogies, disputed questions, even a bitingly comic short story. The editors especially like consilia (the ad hoc opinions of consulting jurists commissioned by civic magistracies and private clients), which bridged jurisprudence and practice. Since the 1970s Kirshner has been America's foremost scholar of medieval Italian jurisprudence as a source for social and family history: an approach, with its sociolegal perspective and archival industriousness, that might be described as lovingly antagonistic to the sort of history of doctrines that still, though less so than before, holds sway in Italian law faculties where the storia del diritto is mainly studied. Unsurprisingly, two of Kirshner's main interests, dowries and citizenship, have left an indelible imprint on the whole structure of the volume and its choice of texts. His third main interest, usury and public finance, is a surprisingly subdued presence in the volume, which is a shame. The fourteenth century similarly predominates; this was the age of Bartolus and his student Baldus de Ubaldis, who are both well represented in the volume. The texts are often fascinating and challenging, following logics that no longer match our own. The translations are lucid and sensitive, reflecting long mastery and fluency with this literature, but in all their intricate grandeur they are certainly not easy reading.
Quibbles about what is not in the book are almost comically hard to justify; it is nearly nine hundred pages long as it stands. That said, I would be remiss to not say that the jurists’ political thought (perhaps the most discussed topic in anglophone studies over the last century) is mostly absent. More disappointingly, for me, the subjects highlighted by Verri are also largely missing. The earliest treatises on commercial law, like those of Benvenuto Stracca and Sigismondo Scaccia, amply suggest—if you can read them, no mean task—how much jurists dealt with related problems at least since the time of Baldus. Happily, Cavallar and Kirshner offer a model for what such a legal-economic anthology might look like. Readers of this journal will not find very much about business or merchants per se, even though medieval Italy played such an important role in the development of trade. This is not to say economic matters are not all throughout the volume; the bread and butter of these lawyers, as today, were matters of private law involving inheritance, legacies, trusts, leases, usufructs, debt, real security. To use a metaphor very appropriate for medieval Italy, with its woolen wealth: where family is the warp, property is the weft, and that is true of this textile as much as of medieval society.
As an undergraduate studying Renaissance Italy, I was enchanted by volumes of translated documents, such as Robert S. Lopez and Irving W. Raymond's Medieval Trade in the Mediterranean World (1955) and Gene A. Brucker's still-dazzling Society of Renaissance Florence (1971). What sets Jurists and Jurisprudence apart from such collections, though, are Cavallar and Kirshner's meaty section introductions, the “contexts” of the book's full title, which make the “texts” all the more rewarding. It is my fervent hope that young students in the coming years will similarly be enchanted with Cavallar and Kirshner's epic collection of texts and contexts. Most will certainly move on, knowing a bit more of the past and of the thinking that shaped it. Indeed, individual sections (e.g., section 26 on the perennially pertinent topic of abortion, pp. 444–64) should and could easily be taught to undergraduates as standalone readings across a wide range of surveys and seminars. For students the work is probably best eaten buffet-style than as a forty-five-course meal. Yet there may be an enterprising few who, having an intoxicating taste of what is on offer here, embrace it all like Babette's feast, extravagantly and lovingly prepared as a gift. And these few might go on to enliven and enrich the history of the ius commune themselves, in new ways, with new methods, on new subjects, with new texts and new contexts.
A rich work like this, an invitation to a whole mental world as it was being made, does not come around very often. In the Sacchetti novella, one messer Ridolfo da Varano chides his nephew, who has been attending Europe's great law school in Bologna, “You wasted your time there” (p. 249). This particular master class is no waste of time.