Invited by Institutum Iurisprudentiae, Academia Sinica (Taiwan), Prof. Emanuele Conte (Roma Tre, EHESS) gives the lecture "Legal Arguments: The Medieval Origin of a European Invention" in the College of Law, National Taiwan University on May 8th, 2015.

1. Taipei, 8 May, 2015
Legal Arguments.
The Medieval Origins of a European Invention.
Emanuele Conte (Roma Tre / EHESS)

2. Europe and the Roman Law
✤ Paul Koschaker, Europa und das römisches recht
(1947)
A plea for the use of the Roman Law in the 20th Century
✤ Francesco Calasso, Diritto comune (1950)
A plea for the “historical experience”
✤ Reinhard Zimmermann, Roman Law, Contemporary Law
(1999)
Back to Koschaker?

3. What does it means “Roman law”?
✤ What exactly do we mean as we say that “Japan (or
China) adopted Roman Law”?
✤ This question is valid also for Europe.
✤ What do we mean as we say that “During the Middle
Ages Roman Law became the shared common law of
Europe”?

4. The Narrative of Roman Law.
A 19th Century tale
✤ The legacy of Roman Law to modern era is made by
legal institutions (Rechtsinstitute / istituti giuridici)
✤ Roman legal institutions are extraordinarily perfect
✤ Roman institutions are laid down by the laws of the
Corpus Iuris Civilis
✤ Glosses and commentaries have been written to extract
these institutions from the Corpus Iuris.

5. 01
The Corpus
Iuris Civilis
✤ The collection made by
Justinian between 529 and 534
a.D
✤ Almost forgotten for centuries,
until after the year 1000
✤ Codex: Imperial laws
Institutes: an handbook for
students
Digest: a huge collection of
fragments of classical jurists

6. Rediscovering Roman Law
✤ Justinian’s Digest (published in 533a.D.) rediscovered
(1050-1100 a.D.)
✤ Why did the glossators reproduce those very heavy and
expensive books?
✤ Traditional answer: because they wanted to learn their
content and write glosses to explain it.
✤ But the majority of glosses does not explain the text! They
quote other laws, mainly from the Corpus Iuris

7. 01

8. What were written for the first
works of the first glossators?
✤ Discovering and carefully restoring the Corpus Iuris
✤ Majority of first glosses: just quote other texts
✤ First practical use: procedure, trial and appeal.

9. Three examples of legal scholarship
in the 12th Century
✤ Bulgarus (1135ca.)
✤ Pierre de Blois (1179ca.)
✤ Pillius (1185 ca.)

10. Bulgarus: the real beginner of
Bologna’s legal scholarship
✤ The legal scholarship began in Bologna around 1120,
with the legendary figure of Irnerius
✤ His pupil, Bulgarus was probably the beginner of a
more structured teaching.

11. Bulgarus, the appeal and the trial
✤ 1135 (ca.): Letter to Aymericus, the Chancelor of pope
Innocent II on procedure in Roman Law
“In a trial there must be three persons: the plaintiff, the
defendant, the public judge”
✤ The Roman Church introduces the appeal to the Pope
for everyone, also against his superior

12. How to improve the rationality of
the trial?
✤ Bulgarus describes the actors of a trial.
✤ But what about the arguments?
✤ Appendix on the Regulae Iuris.
After having described the structure of the Roman trial, Bulgarus
adds:
I considered very appropriate to say also something about the rules of law,
for what is possible in a short space. I beg you to consider this as a gift of
friendship, although it seems not to be sufficient as to the level of doctrine…

13. A Regula iuris
✤ Definition by Bulgarus:
Est igitur regula quae rem, quae est, breviter enarrat. Nec ex regula ius sumitur, sed ex
iure quod est regula fit. Iura enim singularia prius edita sunt, post haec regula, et
quasi quaedam singulorum coniunctio disposita.
A rule gives a brief narration of the dispute. The law is not
established by the rule, but the rule arises from the law. Indeed,
single laws have been edited before, and then a rule is stated, as if it
was the conjunction of single things.
✤ A Regula is a general statement based on different statutes

14. An error in theVulgata of the
Digest
✤ Digest 50.17.1: Regula est, quae rem quae est breviter enarrat. Non ex
regula ius sumatur, sed ex iure quod est regula fiat. Per regulam igitur
brevis rerum narratio traditur, et, ut ait Sabinus, quasi causae
coniectio est.
✤ “A rule is a statement, in a few words, of the course to
be followed in the matter under discussion. The law,
however, is not derived from the rule, but the rule is
established by the law. Then, the laws have been
established, and then the rule is made, as a
conjunction of causes”.

15. 01
De
regulis
iuris
A legal tract very
popular among
theologians
http://digi.ub.uni-heidelberg.de/diglit/
bav_pal_lat_288/0584?
sid=426091ac9f90fe3996c807ec6215a1bd

16. What is a regula?
✤ A general rule of law and its contradictions
✤ An example: A woman can not be procurer at law.
But she can: for herself; for her parents; for her
children; for her family in general
✤ A rule of law is contradictory

17. The contradictions of dialectics and
the normativity of statutes
✤ A rule of law contains in itself its contradictions
✤ Dialectical conciliation of contradictory texts is based
on the assumption that these texts are legally binding
✤ The renaissance of the idea of legally binding norms is
deeply connected with the contradictions between laws
✤ The essence of medieval legal science is dialectic, it is
not systematic

18. 01
Pierre de Blois, Speculum iuris
canonici, 1179/80
✤ “many rebellions of canons against each
other.”
✤ “to bring the peace among them, one
should use the distinctio”
✤ “we can bring to light from darkness
the meaning of the canons only by
exploring the dissents emerging among
them”
✤ The manuscript Pal. lat. 653
http://bibliotheca-laureshamensis-
digital.de/bav/bav_pal_lat_653/0245?
sid=6cd03ec0bc0693ffc88bd9677cb53f56

19. The class and the court
✤ Scholastic dialectics is connected with the logics of the
trial
✤ Pierre de Blois: ad cognitionem iuris plurimum proficit
assidue in causis versari. Iuris enim theorica docetur in
scholis, practica exercetur in curiis

20. The meaning of legal normativity
✤ A the beginning of legal scholarship, a lawyer is a
professional who knows how to coordinate different and
contradictory legal norms
✤ A legal norm is binding
✤ The absolute binding force of legal norms is connected with
the rationality of the trial
✤ A lawyer knows how to play with the binding force of the
norms in court

21. Dialectics and law in Italy: Pillius
✤ Around 1180 Pillius left Bologna to start teaching in
Modena.
✤ He wrote the Libellus Disputatorius
✤ Pillius is remembered by every good legal history
handbook
✤ But he shows many connections with the theological
milieu of northern Europe

22. The Generalia by Pillius
✤ Libellus disputatorius
✤ Polemics against the apparatuses and the teaching system of Bologna:
Today the students stay at the university for ten years to learn all the useless apparatuses of
glosses, “quod quam ridiculosus sit nonnulli patet“
✤ That is why I have published this very useful book, by which one will find easily arguments to use
in every kind of case.
✤ Get up, get up, get up, you students from you lazy sleepiness made by so many authors, throw
away the glosses and study the same text. Take my handbook to learn how to discuss, and in just
four years you will learn what you are now barely able to learn in ten. After which, you will go
back home perfectly educated.
Surgite, surgite, surgite, itaque quasi de sompno scholares tepidi multiplici scriptorum fece imbuti et textum …, superfluis
scilicet apparatibus reiectis, […] studete atque in contrariorum disputacionibus hec nostra scripta accipite et quod hodie vix
post decennium contingit, hoc vos post quadriennium habeatis, ut a propria perfecte instructi, honesto commeatu accepto,
redeatis.

23. Distinction and generalization
✤ Solutions of contraries discover the deep meanings of
laws
✤ The lists of contradictory texts allow the formulation
of general principles
✤ That is why the work is also called Generalia

24. Summing up
✤ The discovery of Roman law in the 11th and 12th century was NOT a reception of
legal institutions
✤ The scholastic treatment of these texts was driven by the new needs of a new trial
✤ Already in 1135 Bulgarus draw the connection between objective procedure and
legal arguments
✤ A rule of law (regula iuris) has no descriptive purposes. It is useful to raise
contradictions. It also shape general principles to manage contradictory norms
✤ Contradictions of arguments are also fundamental to enforce the normative
character of laws
✤ Legal education consists in learning how to use arguments