Abstract
Between the end of the 11th and the beginning of the 12th century a school of law was created in Bologna dedicated to the study of Justinianian texts, that is to say to the examination of that assemblage of Roman law (collectively known in the Middle Ages as the Corpus iuris civilis) that had been compiled in Byzantium in the 6th century on the initiative of the Emperor Justinian. After a long and almost complete absence in the early Middle Ages, apart from some brief summaries, the texts reappeared in the course of the 11th century in northern Italy and from then on gradually began to be recognised and used not only by judges and notaries but also as subject matter in the preparation and training of jurists (Cortese 1993). Various aspects of the more distant past of the Bologna school are still unknown, but the determining impulse for the creation of a Studium (i.e., a school) aimed at the teaching of Roman law was probably due to the activity of a legal scholar by the name of Irnerius, who started lecturing on and explaining the Justinianian sources to his pupils in the early years of the 12th century.1 The teaching carried out in Bologna by Irnerius was undoubtedly innovative and original not only for its content (previously largely neglected), but also for the way chosen to present the teaching, in so far as the exclusive and specialised study of Roman law brought with it a substantial change in the traditional encyclopaedic approach that had been a typical element of scientific study in the past. Until the innovations introduced by Irnerius, the study of law had been seen as just one element in a much wider course of study that was centred on seven different disciplines— the liberal arts—that represented the totality of knowledge. Within this overall framework the teaching of law, deprived of scientific autonomy, was completely regarded as one of those concepts to be acquired through the study of rhetoric which, together with grammar and debate (artes sermocinales: i.e., the art of discourse), was one of the arts of the trivium.2
The translation of this essay was done by Philip Biss, who also translated (where not otherwise indicated) the quotations from the authors referred to in the text or in the notes. The translation has been made possible thanks to the support of the Department of Science and Law History of the “Magna Graecia” University of Catanzaro.
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Notes
- 1.
New studies have recently tried to throw light on the possible links between Irnerius and theology: cf. Mazzanti 2000; Spagnesi 2001. In general on the connections between legal and theological studies of the glossators cf. Padovani 1997.
- 2.
On the organisation of studies based on the liberal arts and in general on the problem of basic teaching in the Middle Ages cf. Pini 1999, 481–501. As regards logic in particular in the context of the trivium disciplines cf. Köhn 1986, 257–65.
- 3.
For some examples of Irnerius’ dominating mastery of the tools of logic see Errera 1995, 127–50. In general on the use of dialectic in the glossators’ school refer to Otte 1971.
- 4.
Concerning the nature of preparatory learning for the liberal arts so as to follow studies at a higher level see Cobban 1975, 9–13 (in particular cf. ibid., 9, where the liberal arts are defined as the “theoretical basis of medieval education”); Corvino 1976, 132–6; Verger 1981, 296; Luscombe 1989, 81, where we read that “the seven liberal arts provided the basis of all the teaching given in the schools during the eleventh and twelfth centuries as they had done in earlier centuries.”
- 5.
About placing dialectic among the arts of the trivium and on the synonymous nature of logic and dialectic up to the 13th century, when a rigorous semantic specification of the two terms together with the delimitation of dialectic is imposed in the field of arguments that are merely probable cf. Garin 1969; Michaud-Quantin and Lemoine 1970, 61; Padellaro 1970, 14; Blanché 1973, 152; Scholz 1983, 17–8; Kahn 2000, 491–2.
- 6.
For medieval logicians, dialectic was “at the same time a science and a tool of science”: Blanché 1973, 153. On the standing of scientia scientiarum (i.e., science for the development of other sciences) of dialectic cf. Preti 1953, 683–5; Gregory 1992, 23; Jacobi 1994. The importance of logic in medieval thought “extends itself universally to every part and to all parts of knowledge: to those with secular knowledge no less than to those with religious knowledge”: Alessio 1994b, 87. On the relationship between the study of dialectic and the system of legal studies cf. Otte 1971, 9–10, 17–32; Gualazzini 1974, 31–5.
- 7.
In the period of the logica vetus dialectic “remains centred on the content of Isagoge, of the Categories and of the Ermeneia” (Blanché 1973, 161), which remained the main works available up to the third decade of the 12th century: cf. Vignaux 1990, 13. At the beginning of the 12th century, for example, Peter Abelard still based his entire knowledge of dialectic on the “seven codes”—Porphyry’s Isagoge, Aristotle’s Categories and De interpretatione (On Interpretation), and Boethius’ Liber divisionum, Topics, De syllogismis categoricis and De syllogismis hypotheticis—and the fundamental Aristotelian works on inferential reasoning did not appear among them: cf. Fumagalli Beonio Brocchieri and Parodi 1996b, 169. On Peter Abelard cf. Louis, Jolivet and Châtillon 1975.
- 8.
The elementary synoptic works by Boethius (the fragmentary tract Introductio ad syllogismos categoricos, De syllogismis categoricis and De syllogismis hypotheticis) were the unique sources of knowledge about Aristotelian syllogistic technique at the time of the logica vetus and ceased having an influential role only from the 13th century on: cf. Minio-Paluello 1972, 749–63; Blanché 1973, 160–1; Reade 1980, 379–89; Roncaglia 1994, 284; Chenu 1999, 161–73. On the scant knowledge of the Aristotelian doctrine of logic at the time of the logica vetus cf. Fumagalli Beonio Brocchieri 1996a; Ebbesen 1999, 26–7; De Libera 1999a, 290. For a detailed description of the phases that covered the gradual reacquisition of the logical works contained in Aristotle’s Organon within the context of the medieval Christian culture in the West, see De Ruggiero 1946b, 70–5; Minio-Paluello 1972, 743–66.
- 9.
On the mechanism of distinctio cf. Slattery 1958; Bochenvski 1972, 55–9. The method of division concerns the entire philosophical cultural tradition, to which all the classical philosophical schools made different contributions: cf. Pozzi 1974, 1.
- 10.
As regards dialectical method in Plato cf. Viehweg 1962, 75–6; Talamanca 1977, 20–8; Abbagnano 1993, 125–6.
- 11.
“The differences used to divide a genus must be opposing in such a way as to exhaust the extension of the genus, so that no individual item belonging to the genus exists that does not belong to only one of the species into which the genus was divided”: Pozzi 1992, 21.
- 12.
Every species is less extensive and more comprehensive than the genus, where by the term extensive we mean “the number of subjects of which it is predicable” and by comprehensive “the set of characters contained in the term itself”: Vanni Rovighi 1962, 54. Species, really because it is more conceptually defined, regards a number of objects that are necessarily less than the genus, which is instead more “extensive” because it includes all the objects belonging to the different species of which it is made up: cf. Jolivet 1959, 67–8; Sordi 1967, 12.
- 13.
Distinctio allows one to obtain an exhaustive definition of every species through the conjunction of ideas that describe, on the one hand the genus, and on the other hand the difference that underlies the division of the genus: cf. Padellaro 1970, 42.
- 14.
Plato, Politicus, 258e–267c; Sophista, 218e–221c. On these extracts cf. Kneale and Kneale 1972, 16.
- 15.
On the dialectical method in Historia animalium cf. Vegetti 1971b, 104–13; on the Aristotelian criticism of the Platonic dialectical method cf. Viano 1955, 55–7; Vegetti 1971a, 519–24; Pozzi 1974, 12–5.
- 16.
As regards the conviction of the masters of the logica vetus that an indirect knowledge of ancient culture was sufficient cf. Bianchi 1997a, 2.
- 17.
On Plato’s and Aristotle’s authority at the time of the logica vetus cf. Maierù 1972, 10; van Steenberghen 1980a, 936–9; Reade 1980, 380–1; Wieland 1987, 65–6; Jacobi 1988, 236. As regards Gratian’s knowledge of Plato cf. Kuttner 1976.
- 18.
Apropos of the general prevalence of the Platonic gnostic system over that of Aristotle in the context of the logica vetus, it has been written that “Platonism in its different forms, transmissions, and variations is until the twelfth century an obvious and basically little doubted part of what we call Christian doctrine or Christian wisdom. […] It is therefore easy to understand that it is Plato and not Aristotle who dominated the thinking of the Christian world so effectively and for so long a time”: Wieland 1987, 65.
- 19.
Concerning the writing of Isagoge cf. Bidez 1913, 51–64; Maioli 1969, 3–12; Pepin 1975, 325–8.
- 20.
On the care of the masters in the schools of liberal arts about using teaching expedients and books of an elementary nature, so that such materials be made “accessible to mediocre minds” cf. Blanché 1973, 169.
- 21.
On the fundamental role of Porphyry’s works as a preparation for the study of Aristotelian logic in the Middle Ages, cf. Pozzi 1974, 28, n. 85; Stump 1978, 238; Chadwick 1986, 165.
- 22.
Differences or essential qualities combined with genus form the species and, therefore, “essential differences need to be considered in order to divide the genus into species. These differences must be such as to be reciprocally exclusive: they must be reciprocally opposite”: Pozzi 1969, 11.
- 23.
On the descriptive function of distinctio, it has been said that “division has as its purpose the art of defining or of describing: it defines the species and it describes the individual things,” because definition “is composed of direct genus and specific difference” (Pozzi 1992, 25); on this topic cf. Vanni Rovighi 1962, 69–70.
- 24.
A graphic model of the chain of sub-distinctions that occur in Isagoge is contained in Errera 1995, 19, n. 28, and in Schulthess and Imbach 1996, 57.
- 25.
“Isagoge suggests the idea of a tree only in a verbal sense, but the medieval tradition laid the project out visually”: Eco 1993, 57. On the ramified tree-like method of sub-distinctions cf. Pozzi 1992, 16–25; Henry 1999, 35
- 26.
On the relationships between the technique of division and the possibility of arriving at a definition of an object that is subject to distinctio cf. D’Onofrio 1986, 183–91.
- 27.
For the determining role played by Porphyry’s Isagoge—in the translation and with comments by Boethius—in the study of logic cf. Prantl 1937, 14 (where it is stated that the Categories and Isagoge “became the principal medieval scholastic texts on logic”), 297–9; Kneale and Kneale 1972, 264; Simondo 1976, 11–2; Gibson 1982, 58–9; Gilson 1983, 165–6; Fumagalli Beonio Brocchieri and Parodi 1996b, 12, 169; Maierù 1993, 286–7; Leff 1992, 314; Ashworth 1994, 352–6.
- 28.
The explanation offered by Boethius of hypothetical syllogism (the only explanation available in the context of the logica vetus) has been judged “not without ambiguity”: Weinberg 1985, 181. Knowledge of Aristotelian logic until the 12th century cannot therefore be anything but “limited and corrupted”: Evans 1996, 42.
- 29.
“Aristotle had argued that Plato’s method of division was no proof, and he sought principles of demonstration in causes rather than definitions. But the tradition of the logic which Abelard received from Boethius had been so thoroughly Platonised that demonstration had become division and definition”: McKeon 1975, 176. With reference to the conflict between support for Plato’s and Aristotle’s theories, it has been underlined that “philosophy oriented itself mainly if not exclusively on Platonism until the twelfth century”: Wieland 1987, 64.
- 30.
The passage cited in the text comes from Reade 1980, 382.
- 31.
Cf. De Ruggiero 1946a, 243; Blanché 1973, 161–2. On the limited knowledge Peter Abelard had of Aristotle’s system cf. Ballanti 1995, 174.
- 32.
Porphyry’s work on distinctio was held to be “indispensable in the schools,” so that “one can well understand how, both for teaching and for study, one always began with Isagoge, which one of the Greek commentators had even indicated as a preliminary condition for eternal bliss”: Prantl 1937, 14.
- 33.
“The scholars of logic in the Middle Ages took full advantage of Porphyry’s text, grasping the distinction that the predicates contributed to an understanding of categories as much as they were of use to the advancement of division and definition, and in the end to scientific demonstration”: Padellaro 1970, 45. As regards Porphyry’s tree in particular, we need to consider that “all of the Middle Ages were dominated by the belief (even if unconsciously) that the tree mimicked the form of what was real”: Eco 1993, 68. In general on the preparatory role played by the study of the trivium arts for the training of medieval jurists cf. Otte 1971, 30; Gualazzini 1974, 31–5, 41; Piano Mortari 1979, 57; Wieacker 1980, 59, 66–7, 71; Gaudemet 1980, 11; Cortese 1982a, 219–20; Paradisi 1994, 873, n. 26.
- 34.
Cf. Wieacker 1980, 72–4. A detailed examination of the use of distinctio in the glosses of the earliest Bolognese teachers can be found in Meyer 2000.
- 35.
“Division is the creation of a synthetic scheme for a wide subject”: Accursius 1489, 42va, gl. divisio ad Inst. 3.13.1. This definition of divisio, however, comes from pre-Bolognese times: cf. Errera 1995, 111, n. 52.
- 36.
The distinctio criterion had always been applied in the glossators’ school from the beginning: cf. Seckel 1911, 284, 286–8. On distinctio as a criterion for drawing up glosses cf. Genzmer 1935, 345–58; Kuttner 1937, 208–11; Paradisi 1962, 302–6; Bellomo 1963, 115–20; Legendre 1965, 365; Paradisi 1968, 629–30; Paradisi 1976, 226–8; Kantorowicz and Buckland 1969, 215; Weimar 1969, 62; Weimar 1973, 142–3; Piano Mortari 1976, 18–9; van Caenegem 1981, 27; Cortese 1982a, 251–2; Fransen 1982, 143; García y García 1994, 230.
- 37.
An overall picture of the importance of distinctio for the systematic reconstruction of all these institutes in the glossators’ school is found in Wesenberg and Wesener 1999, 54–64. On the importance of the dichotomy between dominium directum (or dominium plenum) and dominium utile cf. Grossi 1968, 144–59; Grossi 1992, 61–3.
- 38.
The expression “loose distinction - tabular distinction” was used by Besta 1925, 811; Brugi 1936, 29–30. On tabular distinctions cf. also Seckel 1911, 281; Genzmer 1934, 397–403. Apropos of the form of distinctions, Kantorowicz stressed that “if the subject-matter was a legal concept, the form of the distinction was often, especially in the oldest times, that of a genealogical table”: Kantorowicz and Buckland 1969, 215.
- 39.
Indexes of the glossators’ distinctiones were drawn up by Seckel (cf. Seckel 1911) and by Pescatore (cf. Pescatore 1912). A listing of the main distinctiones and of the collections of distinctiones that have survived, as well as those given in their own modern editions, can be found in Weimar 1973, 229–37.
- 40.
As regards the glossators’ predilection for dichotomous distinctio cf. Carcaterra 1972, 291–3.
- 41.
On subdistinctio and on the subdistinctiones pyramid cf. Otte 1971, 87–95.
- 42.
For all this doctrinal evolution refer to Errera 1995, 121–316.
- 43.
The complete reconstruction of the classificatory method in Johannes Bassianus’ arbor actionum can be found in Errera 1995, 290–310.
- 44.
For example, on Irnerius’ competence in the use of the dialectica tools cf. Meyer 2000, 88–94.
- 45.
The maxim is cited by Brugi 1921a, 55; Brugi 1936, 30.
- 46.
Placentinus 1535, 18, II.1 (De rerum divisione); the passage is also published in Seckel 1911, 373, n. 5. The same passage by Placentinus is restated substantially unchanged by Pillius: “Verum quia res omnis quanto magis distinguitur, tanto melius aperitur, multiplex a nobis subiciatur divisio” (“In reality, since the more one subjects each thing to distinction the better one understands it, we propose an articulated division of the matter under examination”: cf. Seckel 1911, 373).
- 47.
At the start of the 12th century, Peter Abelard had become involved with the problem of the method of removing apparent contradictions between equally authoritative texts. In Sic et non he indicates the logical tools (of a prevalently Platonic nature) needed to uniformly and rigorously overcome the discrepancies between the auctoritates and so to arrive at a construction of truth founded on basic criticism. See in this regard Reade 1980, 388–91, who indicates (on page 390) that for Abelard, the main tool for resolving doubts was to “bear in mind the different meanings of words and their various use by different authors.” Also on this topic cf. Codignola 1954, 286–7; Garin 1969, 55–6; Alessio 1994b, 96–7.
- 48.
The first part of Gratian’s Decretum in fact consists specifically of Distinctiones aimed at showing the concordia (harmony) existing between the sources of apparently discordant canon law: cf. Stickler 1950, 208–9. Finally on the Decretum cf. Winroth 2000. The same distinctio method (although with necessary differences) also forms the basis of Peter Lombard’s Liber sententiarum produced towards the middle of the 12th century, a text that would become fundamental to the study of theology: cf. McKeon 1975, 185; Alessio 1994c, 130–6. On the relationship between the logic of Abelard and jurisprudence cf. Giuliani 1966, 183–216.
- 49.
Cf. Cortese 1992b, 468–9. About the contrarietates in Byzantine legal texts cf. Pringsheim 1921, 212–9.
- 50.
Cf. Kantorowicz 1939, 2–31; Stickler 1953, 580–1; Weimar 1973, 222–3; Schrage and Dondorp 1992, 33. For a recent synthesis of doctrinal reflections on the quaestio method and on the quaestio legitima works cf. Errera 1996, 510–3, n. 30. Finally, as regards the particular type of quaestio legitima, called quare, which has its own classification in the glossators’ school cf. Schulz 1953.
- 51.
In this sense the Bolognese quaestio legitima corresponds exactly with the quaestio technique applied in the schools of philosophy and theology: cf. Bellomo 1974a, 76. For example, Gilbertus Porretanus (1076–1154) in the first half of the 12th century considered quaestio, that he had learnt at the Laon school, as “composed of an affirmation and a negation that contradicts it, each of which seems true. The solution consists in examining the two positions, showing how they are ambiguous; once reformulated in an unequivocal way, the affirmation and the negation will not be contradictory any longer”: Puggioni 1993, 39. Peter Abelard said on this that “Dubitando ad inquisitionem venimus; inquirendo veritatem percipimus” (“Through doubt we arrive at the question, and thanks to the question we perceive the truth”: this passage is cited by Garin 1969, 55).
- 52.
We need to bear in mind that some of the earlier glossators were particularly well versed in dialectica and also used the Aristotelian technique of syllogism with a certain familiarity (certainly in Irnerius’s case), but Irnerius’ ability to use inferential logic was not common among his contemporary glossators, to the extent that only the teachers at the end of the 12th century managed to equal the Aristotelian-type argumentative technique of the school’s founder: cf. Otte 1971, 140–1.
- 53.
As generally regards the transformation of the scientific knowledge produced in the 12th century, it has been written that “the traditional frameworks within which medieval thinkers had organised their own knowledge are not capable of accepting and ordering the new doctrines and the new material that came to enrich Western culture in a systematic way”: Fumagalli Beonio Brocchieri and Parodi 1996b, 213. The novelty in the study of logic therefore signalled “a moment of profound transformation in the methods and structure of knowledge, a running crisis in cultural ideals”: Garin 1969, 28.
- 54.
“Thirst for knowledge,” “desire for redemption,” and “sense of cultural inferiority” are spoken of to describe the cultural situation of the Christian West compared with the Greek philosophical culture in the 12th century: Bianchi 1997a, 3. On the activity of translating Greek works into Latin, on the main centres producing translations and on the methodological problems faced by the translators cf. Blanché 1973, 163–4; Reade 1980, 403–7; Knowles 1984, 251–61; Rossi 1994; Fumagalli Beonio Brocchieri and Parodi 1996b, 209–13; Bianchi 1997a, 3–17.
- 55.
Cf. Evans 1996, 37–8; De Libera 1999a, 293–4. On the fundamental role of Latin in the context of medieval learned culture cf. Haskins 1972, 111–20; Verger 1999, 17–25.
- 56.
Cf. Calasso 1954, 524. Burgundius Pisanus (1110–1193 ca.) was the first to translate the Greek passages of Digesta Iustiniani into Latin; on Burgundius cf. Liotta 1972, 423–8; Classen 1974. In general on this topic cf. Troje 1971.
- 57.
As regards the inaccessibility of works written in a different language to Latin it has been noted that “the translatio studii, the transmission of knowledge, could happen solely in the form of translatio linguarum, of a linguistic transposition”: Bianchi 1997a, 2.
- 58.
On the rediscovery of Aristotle’s works on logic cf. Prantl 1937, 177–95; Padellaro 1970, 17; Grabmann 1980, vol. 2: 86–102; Knowles 1984, 256–7. In particular sophist theory was completely unknown to the logica vetus, so that “it is not by chance that the new interest in Aristotle of the twelfth century started with the effective introduction, in study and doctrinal analysis, of the rediscovered Boethian version of Elenchi Sofistici”: Minio-Paluello 1972, 757–8.
- 59.
The medieval authors, deprived of any real historical and philosophical knowledge about the formation of Aristotle’s works, saw the Organon as a coherent and systematic course of logic: cf. Ebbesen 1999, 22; De Libera 1999a, 337.
- 60.
On the various translations of Aristotle’s works on logic, and on the times when they were produced cf. Minio-Paluello 1972, 749; Abbagnano 1993, 523–4; Evans 1996, 42.
- 61.
On the significance of and problems with the terms “scholastic method,” “scholastic philosophy” and “scholastic logic” cf. Blanché 1973, 159–60; Grabmann 1980, vol. 1: 43–53; Reade 1980, 383; Fumagalli Beonio Brocchieri and Parodi 1996b, 265–6. On Scholasticism in general cf. Agazzi 1954, 221–38.
- 62.
Cf. Haskins 1972, 288–9; Blanché 1973, 164; McKeon 1975, 167–9; Reade 1980, 400; Weinberg 1985, 163; Fumagalli Beonio Brocchieri and Parodi 1996b, 191. Concerning logica modernorum (the logic of the “Terminists”) cf. Roncaglia 1994, 283–98; De Libera 1999a, 362– 71; De Libera 1999b.
- 63.
On the desirability of not emphasising the immediate cultural effects produced in the Middle Ages by the rediscovery of ancient works and teachings cf. Minio-Paluello 1972, 763–6; Bianchi 1997a, 18. In fact a temporal hiatus exists between the translation of Aristotle’s works and their general acceptance in the schools (cf. Knowles 1984, 257). For example it has been shown that Aristotle’s works on logic only rarely appear, and then with some delay (not before the beginning of the 13th century), in monastery libraries: cf. Grabmann 1980, vol. 2: 99.
- 64.
To identify the second half of the 12th century as the period when the Aristotelian texts started to become widespread and well known, following their rediscovery and translation in the first half of the century, cf. Minio-Paluello 1972, 749, 766. On this point cf. Knowles 1984, 251, who fixes the period between 1140 and 1170 as the end of “ancient logic.” The beginning of the effective assimilation of Aristotle’s works began in the last quarter of the 12th century, but Aristotelian thought only became the accepted philosophical reference system “starting from the first decades of the 13th century”: Rossi 1994, 178. We must also remember that the teaching of the logica vetus had been a prerogative of the monastic schools, while logica nova was taught in the town schools—Episcopal, but rarely lay—that sprang up at the start of the 12th century: cf. Manacorda 1914, t. 1: 269–80; Codignola 1954, 270–5; Puggioni 1993, 46; Fumagalli Beonio Brocchieri and Parodi 1996b, 259; De Libera 1999a, 290, 295. In general on the medieval structure of school instruction see the description given by Merlo in Tabacco and Merlo 1989, 608–18.
- 65.
On the propulsive role of the universities in the rediscovery, study and teaching of Greek philosophical thought cf. Bianchi 1997b, 25–48; De Libera 1999a, 345. The pre-eminence of the study of dialectic with respect to other fields of secular knowledge at the time of logica nova is shown by Tweedale 1993, 71. The predominance of logic in humanist literature between the 12th and the 14th centuries is also seen and extolled by contemporaries, as happens in “Battle of the Seven Arts” by Enricus of Andeli, a work from the beginning of the 13th century which describes how grammar, having gone to war, is routed by dialectic (cf. Gilson 1983, 495–7; De Libera 1999a, 293; also on this topic cf. Garin 1969, 15–27).
- 66.
On the handbooks of logic compiled to assist in an understanding of the teachings of the Organon, as for example Peter of Spain’s Summulae logicales (he was elected Pope in 1276 taking the name John XXI), William of Shyreswood’s Introductiones in logicam, Lambert of Auxerre’s Dialectica, cf. Dal Pra 1960, 463; Vasoli 1961, 314–5; Blanché 1973, 164–5; Pozzi 1992, 6; Abbagnano 1993, 595–7; Fumagalli Beonio Brocchieri and Parodi 1996b, 332; Bianchi 1997b, 35. For the relationship between language and logic, particularly relevant in the logica modernorum of the “Terminists” of the 13th century, cf. Markowski 1981.
- 67.
On syllogism in Aristotle’s thought cf. Negro 1968; Ross 1977, 32–8; Thom 1981. The antithesis between Plato’s gnostic system and that of Aristotle depended on the fact that the Platonic dialectic imposed “at every step the choice of initial definitions and the testing of these definitions by means of subsequent division or by their consequences. This selective characteristic radically distinguishes dialectic from the deductive process (which is necessarily demonstrative) that Aristotle believed implicit in the nature of all science”: Abbagnano 1993, 126. The radical novelty of the scientific theory introduced by the Aristotelian texts caused a general change in the previously accepted “system of interpreting the world” (cf. Wieland 1987, 67), insofar as the translation of Aristotle’s works on logic “in turn influenced the thought and methods of the schools”: Knowles 1984, 256.
- 68.
Cf. Abbagnano 1993, 196. Logic in this sense is the science of the “valid form” of reasoning, namely, the study of the criteria used to distinguish correct from incorrect reasoning: cf. Ciardella 1991, 27–30; Bucher 1996, 13–7. On eristic argument and paralogism cf. Berti 1987, 128.
- 69.
Above all, the three fundamental theories remained unaltered: cf. Casari 1997, 4. As regards the application of Aristotelian logic in modern and medieval legal science cf. Kalinowski 1971; Capozzi 1976, 25–36; Perelman 1979, 15; Giuliani 1994. The persistence of the value of Aristotelian syllogism has been particularly emphasised in modern law “also after the arrival of the modern logics which supplanted Aristotelian logic and which in any case recognise that the human mind produces logical thought by the same mechanisms, even if the way of expressing or of representing them changes in the course of time with recourse to methods that are ever more sophisticated and precise”: Sammarco 2001, 21, n. 26.
- 70.
In the Aristotelian vocabulary, the syllogistic technique belongs to the conceptual sphere of analysis (which implies a connection with certainty and with irrefutable demonstration) and not to that of synthesis (which instead concerns mere probability but nevertheless opens the road to discoveries that simple analysis could never lead to), as the name of the works dedicated to syllogism themselves (Analytics) shows: cf. Panza 1997, 370–83.
- 71.
Aristotle, Prior Analytics, I, 1, 24b 18–20 (Engl. vers. Owen, 82). On this passage from Aristotle cf. Abbagnano 1993, 193. Regarding the syllogistic mechanism cf. Berti 1987, 118; Sanguineti 1987, 123–37; Ackrill 1993, 129–49.
- 72.
Cf. Viano 1955, 57–62; Lukasiewicz 1968, 120–7; Pozzi 1992, 13–6; Bucher 1996, 121–5.
- 73.
It has been written that, apropos of the different approaches of medieval and modern logic, “medieval thinkers highlighted the logical structure of natural language whereas modern thinkers construct a symbolic language following logical structures”: Pozzi 1992, 5. On the symbols characterizing modern artificial language cf. Lolli 1991, 29–41; Copi and Cohen 1999, 339–89. On the doctrine of suppositio and on the medieval attempt to develop semantics cf. Weinberg 1985, 183–4.
- 74.
During the medieval period, material logic consisted of the study of the content of premises, namely, of the materia (substance) of reasoning (Logica Maior, major logic), as opposed to the study of links between premises and conclusions which was instead studied as formal logic (Logica Minor, minor logic). On this topic cf. Vanni Rovighi 1962, 45–6; Padellaro 1970, 15; Ciardella 1991, 64–5.
- 75.
Cf. Codignola 1954, 104. Also in the medieval period “the central theme of logic remained that established by Aristotle: declarative discourse,” meaning “linguistic configuration about which it makes sense to say it is true or false”: Casari 1997, 20.
- 76.
Cf. Negro 1968, 99–100; Capozzi 1974, 319–31; Ciardella 1991, 71–80. These two fundamental laws of syllogism can also be expressed in these terms: “what is true of the totality of the genus (omnis) is also true of the species and of the individual things contained in this genus; what is false for the totality of the genus (nullus) is also false for the species and the individual things contained in this genus”: Blanché 1973, 174.
- 77.
Cf. Capozzi 1974, 257–66; Puggioni 1993, 45; Fedriga 1993, 298. On the rules that are essential for the validity of a syllogism and on its various forms (which for reasons of brevity cannot be examined here) cf. Vanni Rovighi 1962, 83–92; Knuuttila 1991, 477–82; Bucher 1996, 125–6; Copi and Cohen 1999, 219–338; Gangemi 2002, 61–79.
- 78.
In reality, although the syllogistic process has a high level of uniformity, various forms of it exist and it can present itself in various ways (there are at least 24 species of valid inference). Medieval logic, in distinguishing between and classifying these, also resorted to ingenious mnemonic expedients: cf. Fedriga 1993, 298–305; Bucher 1996, 126–38; Casari 1997, 50–4.
- 79.
This very popular example of syllogism comes from the medieval period when the premises of inferential reasoning were extended to also include classes of names for individual things that were absent from the Aristotelian system: cf. Lukasiewicz 1968, 109–15; Blanché 1973, 175; Bucher 1996, 131. On the syllogism on Socrates’ mortality cf. Codignola 1954, 104– 5; Schulthess and Imbach 1996, 45–6.
- 80.
Cf. Celluprica 1978, 152–3; Zanatta 1996, 107–16.
- 81.
Bianchi (1997a, 18–9) speaks of an “uncontrollable eruption of the Aristotelian following” in the twelve hundreds and adds that “the history of medieval thought was in the first place the history of reception, interpretation and use of Aristotle’s philosophy.”
- 82.
It has, in this sense, been written that “European thought derived, first of all, knowledge as an ideal and a criterion of what it was to be scientific from Aristotle and his followers”: Bianchi 1997a, 19. The eruption of the revolutionary doctrine that came from Aristotle’s logic broke the previous epistemological laws and introduced “a new conception of reason and of science” (Gregory 1992, 10), leading to a true and proper “increase of rationality in the twelfth century” (Wieland 1987, 69). On this topic Verger (1999, 28) holds that the Aristotelian belief “was first of all a logic, a syllogistic art taken as a demonstrative technique par excellence. Well read medieval men naturally tended to think in syllogistic way.”
- 83.
We need to bear in mind that “Medieval university preparation was in fact based on the study of the auctoritates, authoritative works that allowed a systematic body of knowledge to be drawn from them, and every variation in their choice had serious repercussions as much for teaching as for science”: Bianchi 1997b, 34. On this subject John of Salisbury (†1180) clearly indicated in Metalogicon that non-observance of the appropriate logical rules deprives sapientia of all rational structure and of all credibility (cf. Gregory 1992, 22). In particular John of Salisbury affirmed in 1159 that no dialectic from then on could ignore knowledge of the corpus of works of Aristotelian logic, insofar as “such knowledge would have been a conditio sine qua non for whoever wished to teach logic”: Knowles 1984, 258. The arrival of Aristotelian metaphysics had the effect of overwhelming the traditions of the schools and of profoundly changing their teaching, as indicated by Gilson (1983, 406), who likewise underlines the circumstance whereby, “after the discovery of Aristotle’s books, the teachers of the liberal arts had acquired a much more substantial authority” (Gilson 1983, 474). Cf. also Paradisi 1968, 625–6; Chenu 1995, 32–5; De Libera 1997.
- 84.
The way studies were organised meant that only students who were expert in logic would see the wide territory of legal science open to them: cf. Knowles 1984, 259; Flash 1992, 154. Furthermore, the ferocious Parisian condemnation of 1277 against Aristotle’s teachings—which we will speak about further—did not concern Aristotle’s logic, which was by then itself identified with the teaching of the basic rules of thought from which all disciplines had consistently drawn the rules for discussion and hermeneutic technique: cf. Bianchi 1997b, 36–8. On the glossators’ knowledge of Aristotle and syllogism cf. Otte 1968; Otte 1971, 145–55.
- 85.
On the link between the rediscovery of Aristotelian logic and the affirmation contained in the quaestio disputata in university faculties (also law faculties) cf. Lawn 1993, 11–2; Chenu 1995, 38–40. The first reliable documents indicate that the disputation of legal issues in Bologna probably started about the middle of the 12th century in the Bulgarus school: cf. Kantorowicz 1939, 59–67; Belloni 1989, 7–22; Bellomo 1992a, 74.
- 86.
Cf. Kantorowicz and Buckland 1969, 208–9; Bellomo 1974a, 24–30; Fransen 1985, 240; Bellomo 1992a, 208–11; Bellomo 1997a. In particular on different types of casus legis cf. Di Bartolo 1997.
- 87.
On the technique of university disputation in legal matters cf. Otte 1971, 156–85; Mayali 1982; Colli 1984, 37–49.
- 88.
“The recognition that quarrel, controversy and conflict of opinions represented a fact of human life that could not be eliminated is implicit in medieval dialectic”: Giuliani 1966, 132.
- 89.
On this celebrated affirmation contained in the Accursian gloss and on the trust of the jurists in the self-sufficiency of the scientia iuris cf. Quaglioni 1990, 126–7.
- 90.
As regards the distinction between definition and demonstration in medieval logic cf. Eco 1993, 51.
- 91.
On the distinction between categoric and hypothetic syllogism, and between perfect and imperfect inference in a syllogistic context cf. Puggioni 1993, 34–46; Fedriga 1993, 297
- 92.
The use of the Latin term locus to translate the Greek word tovpo" goes back to Boethius: cf. Ebbesen 1999, 13–4.
- 93.
“A dialectic topos is therefore a ‘topic’ that contains arguments, a sedes argumenti”: Puggioni 1993, 32.
- 94.
On the great prestige given to Peter of Spain’s Summulae logicales up to the 16th century cf. Fumagalli Beonio Brocchieri and Parodi 1996b, 332.
- 95.
Summulae logicales, De locis, 5.02 (Engl. vers. Kretzmann and Stump, on page 226).
- 96.
Summulae logicales, De locis, 5.02 (Engl. vers. Kretzmann and Stump, on page 226). This definition of the argumentum, originating with Aristotle and Cicero, had already been used by Boethius and by Isidore of Seville: cf. Brugi 1936, 24, n. 9; Sbriccoli 1969, 344–5.
- 97.
Summulae logicales, De locis, 5.06 (Engl. vers. Kretzmann and Stump, on page 228).
- 98.
“The analysis of loci (topics) can be seen as an argumentative strategy that aims at discovering those general principles that permit particular conclusions to be inferred. These principles allow the conclusions to be further confirmed and made credible, thus reinforcing the reasoning”: Fedriga 1993, 305.
- 99.
Summulae logicales, De locis, 5.06: “Topic is the foundation of an argument, or that from which we draw an argument suitable for the question at issue” (Engl. vers. Kretzmann and Stump, on page 228).
- 100.
In medieval logic the loci were distinguished as maximae propositiones and differentiae: by maxima propositio we mean “a general and self-evident principle; the maxima does not need to be demonstrated and does not derive from other principles,” while “the function of the differentia is that of finding the ‘middle’ for the construction of the reasoning”: Puggioni 1993, 33; cf. also Fedriga 1993, 306.
- 101.
Summulae logicales, De locis, 5.25 (Engl. vers. Kretzmann and Stump, on page 236).
- 102.
Summulae logicales, De locis, 5.26 (Engl. vers. Kretzmann and Stump, on page 237).
- 103.
Summulae logicales, De locis, 5.34 (Engl. vers. Kretzmann and Stump, on page 240).
- 104.
Summulae logicales, De locis, 5.37 (Engl. vers. Kretzmann and Stump, on page 241). For a list summing up the argumenta used by the glossators cf. Brugi 1936, 27; Sbriccoli 1969, 349– 50; Otte 1971, 189–211.
- 105.
Summulae logicales, De locis, 5.38 (Engl. vers. Kretzmann and Stump, on page 241).
- 106.
Cf. Cortese 1992b, 476–9; Cortese 1995, 394. The analogical reasoning peculiar to modern legal logic diverges significantly from the de similibus ad similia process of the legal science practised by the glossators; for an examination of the differences between the two forms of argument cf. Giuliani 1966, 171–7. In general on analogical interpretation in medieval legal science cf. Piano Mortari 1976, 246–52.
- 107.
Summulae logicales, De locis, 5.42.
- 108.
Summulae logicales, De locis, 5.42 (Engl. vers. Kretzmann and Stump, on page 243).
- 109.
For example, the Causae that make up the second part of Gratian’s Decretum correspond to the quaestio de facto scheme. In these, appear both the texts of the auctoritates cited pro and contra, and the solutio of the legal dilemma set out at the beginning of each Causa: cf. Stickler 1950, 209. The approach taken by Gratian would, besides, serve as a model for the development of the oldest canonical quaestiones: cf. Fransen 1985, 245.
- 110.
The quaestiones de facto, as analyses of the probable, concern only the possible broad application of Roman or canonic law, not the (indisputable) certainty and truth of the law itself; cf. Bellomo 2000, 570–1.
- 111.
The evolution of the technique of citing fragments of Justinianian legislation to support dialectical argumenta is summed up in Martino 1997.
- 112.
The passage is in a quaestio by the glossator Azo drawn up in Landsberg 1888, 74. The glossator’s statement is commented on by Paradisi 1965, 256.
- 113.
The codex Vat. lat. 9428 has been studied in depth by Bellomo (1992a, 209; 2000, 570).
- 114.
On the concept of causa legis and of ratio legis cf. Calasso 1956; Cortese 1962; Calasso 1967, 285–310; Cortese 1992b, 472–6; Balbi 2001, 50–60.
- 115.
Cf. Kuttner 1951, 770–1; Stein 1966, 144–5, 158–9; Weimar 1967, 91–123; Weimar 1973, 143; Cortese 1982a, 251–2, 265–6; Colli 1990, 236–8; Cortese 1992b, 470–1, 481; Cortese 1995, 152. This class of works developed about 1180, but did not initially have any success in Bologna: cf. Ascheri 2000, Footnote 116. On the collections of modi arguendi in iure cf. in particular Caprioli 1963, 1965; Bellomo 1974b.
- 116.
The glossators had started to isolate some legal figurae that had a precise, unitary “nature” (for example, the natura contractus, the natura obligationis, the natura donationis, etc.). This characteristic, while also being autonomous and independent from individual laws because it preceded all legal activity, could be recognised in the Justinianian legal rules which transposed it into the discipline of positive law: cf. Stein 1966, 131; Bellomo 1993, 460–1.
- 117.
Cf. Belloni 1989, 54. On Pillius cf. Cortese 1982b, 98–9, who emphasises the “extraordinary theoretical complexity” of Libellus disputatorius; Cortese 1995, 148–51.
- 118.
Cf. Belloni 1989, 53–4; Cortese 1993, 46–7. In the field of canon law, the same aim was pursued by the work known as Perpendiculum, on which cf. Kuttner 1951, 771–92. On the relationship between brocarda, loci generales, generalia, notabilia and regulae (different expressions but frequently used as synonyms) cf. Stein 1966, 145; Schrage and Dondorp 1992, 33.
- 119.
“The function of the Magister (Master) in disputations is the same as that of a judge”: Giuliani 1966, 149. On this point it needs to be stressed that in the second half of the 12th century logicians had concentrated on the study of fallacies (of reasoning that was apparently valid but in reality was contradictory) described by Aristotle in Sophistici elenchi (cf. Puggioni 1993, 47), and that for example Adam of Balsham (Parvipontanus) wrote an Ars disserendi in 1152 in which he indicated the possibility of teaching the recognition and avoidance of sophisms as a principal aim of the study of logic (cf. Blanché 1973, 183). On the problem of fallaciae and sophismata logicalia in the field of law cf. Colli 1985.
- 120.
“The Aristotelian dialectic (contained in the Topics and in Sophistici elenchi) seems to offer a logic of controversy, of choice, of credibility. On the basis of these texts it appears possible to identify the world of the probabile among the ‘certainly true’ (apodictic discourse) and the ‘certainly false’ (sophistic discourse)”: Giuliani 1966, 143.
- 121.
Cf. Kuttner 1943, 322; Weimar 1973, 144–5; Fransen 1985, 237, 256–7; Errera 1996, 29.
- 122.
In the first book of the Topics “Aristotle distinguishes between demonstrative, dialectical and sophistic syllogisms, where the difference is not in the structure of the syllogisms but in the truth content of the premises. The distinction between topics (dialectic) and analytics (demonstration) does not lie in purely formal criteria, but in criteria concerning the content”: Pinborg 1993, 345.
- 123.
Cf. Perelman 1979, 22–33, who in particular (ibid., 30) indicates that “the controversy had as an effect, in the first place, the exclusion of some arguments, showing their irrelevance, in the second place the elimination, because they were unreasonable, of some warmly favoured solutions, without however necessarily imposing one type of argument and only one binding solution.” On the theme cf. Viano 1955, 52–5; Zanatta 1996, 45–54.
- 124.
Peter Abelard had already at the start of the 12th century emphasised that the loci rhetorici are based on a deceptive similarity; the link of the loci with imperfect inferential mechanisms had therefore determined on Abelard’s part an “anti-rhetorical” and “antijuridical” attitude, that is to say, a disparagement of all the distinctive loci of legal experience that led in the end to hostility towards the “controversial” character of the science of the law and therefore opened the way to the creeping of “systematic” elements into dialectic and into medieval jurisprudence: cf. Giuliani 1966, 195–7, 214–6.
- 125.
The reasonableness and the validity of each argumentum are indefeasible conditions for its application in the quaestio: “The opinio is not an arbitrary, subjective impression, but is a judgement based on proof; it is able to completely withstand the refutation of the opposite opinion only if it contains argumenta veritatis”: Giuliani 1966, 160.
- 126.
Cf. Pinborg 1993, 352–60. In the dialectic quaestio “the search for the truth happens by putting a practical problem to the test and refutation of two opposing positions. […] The choice, the identification of the weightier side cannot be done in abstract, but in relation to circumstantial elements”: Giuliani 1966, 144. On the merely probable value of the solution of a disputatio dialectica cf. Colli 1984, 45–6; as specifically regards the opinionative nature of the syllogistic solutio of a legal quaestio de facto cf. Otte 1971, 188; Cortese 1992b, 489, n. 46.
- 127.
The passage is cited by Garin 1969, 57 and is also given in Bellomo 1996, 37; Bellomo 2000, 569.
- 128.
The solution of the quaestio “is not the result of an individual reason, but is the opinion that is prevalently affirmed—after a long examination of the arguments pro and contra—in a school”: Giuliani 1964, 185.
- 129.
On the general tendency of 12th and 13th centuries philosophical and legal speculation to seek the “truth” through dissent, controversy and conflict of opinion—and especially through the dialectic instrument of the quaestio—cf. Giuliani 1964, 163–90; Chevrier 1966. Cf. also Giuliani 1966, 147–8, who underlines how all the scientific conclusions obtained by syllogisms aimed at the search for “probable truth” are not “the outcome of an individual reason, but of the efforts and co-operation of entire generations,” and also (Giuliani 1966, 158– 9) specifies that “the dialectic method is the only valid one where a controversy exists, i.e., a conflict of opinion, of evidence, of authority; dialectic must address practical problems: It is a science of choice, of decision, of action.”
- 130.
Giuliani 1966, 163. With reference to the glossators, Paradisi (1976, 200) spoke of the “limits shown by Bolognese logic compared with general synthesis and systematic construction.”
- 131.
Giuliani 1964, 185, who also observes (1964, 166) how medieval thought prior to the middle of the 13th century “recognised that a vast sector of knowledge (legal, moral, political) is ‘probable’ in the sense that it escapes scientific determination: And it occupies itself in a search for the limits and techniques of the ratio probabilis.”
- 132.
In the medieval Studia “lecture and disputation remained the two essential forms of both teaching and examination”: Verger 2000, 75. Syllogism “became the general armoury of discourse not only when trying to prove an assertion or give critical reasoning, but also when constructing many of the elaborate structures of medieval knowledge”: Knowles 1984, 258. In fact, “the growth and firm establishment of the disputatio method in the field of philosophy, as well as its use for theological teaching are linked to Western scholarship’s understanding of Aristotle’s Analytics, Topics and Sophistici elenchi”: Grabmann 1980, vol. 2: 29.
- 133.
“The theory of syllogism was taught in the schools and universities as a method and teaching model for basic reasoning: So developments in syllogism, including its use as a starting point for the study and development of other parts of logic, happened through a continuous, pedagogic, practice of disputation”: Fedriga 1993, 298. On this point John of Salisbury in Metalogicon “strongly emphasises the usefulness of the disputatio for individual scientific disciplines”: Grabmann 1980, vol. 2: 30. Theology also adopted the quaestio as an “obligatory form” of scientific reasoning: cf. Fumagalli Beonio Brocchieri and Parodi 1996b, 268. On this point cf. Glorieux 1968; Gilson 1983, 480–1; Lawn 1993, who examines the establishment of the quaestio in all the different scientific disciplines.
- 134.
As regards the formal public disputation of the quaestiones cf. Fransen 1985, 234–6; Belloni 1989, 3–6; Bellomo 1992a, 216–22. On the collections of quaestiones cf. Landau 1997.
- 135.
Cf. Bianchi 1997b, 28–9. In fact, “the contraposition makes the choice reasonable; we need to choose after identifying the two alternative sides of a problem. The choice is a task, an act of individual responsibility from which one cannot withdraw”: Giuliani 1964, 175.
- 136.
Cf. Schulthess and Imbach 1996, 160. In general, “the arrival of Posterior Analytics in the West was slow and difficult” also because no Boethian translation of these works by Aristotle had been handed down to the Middle Ages: cf. Tabarroni 1997, 186–7. The earliest written translation of Posterior Analytics had, furthermore, shown itself to be “almost completely unreliable because of errors committed by the transcription of the words written in Greek”: Knowles 1984, 257.
- 137.
Cf. Grabmann 1980, vol. 2: 94–5; Serene 1982, 498; Rossi 1994, 169; Tabarroni 1997, 187, who suggests the years around 1130–1140 as the date when it was translated; De Libera 1999a, 327, 337. On the style adopted by James of Venice in translating Aristotle’s works cf. Brams 2000.
- 138.
On Translatio Ioannis cf. Tabarroni 1997, 188; De Libera 1999a, 327, 337–8.
- 139.
1187 is the year of Gerardus Cremonensis’ death: cf. Dal Pra 1960, 410; Fumagalli Beonio Brocchieri and Parodi 1996b, 213; De Libera 1999a, 338. Knowles (1984, 257) indicates 1187 as the date of Gerardus’ translation.
- 140.
William of Moerbecke’s translation of the Organon was completed before 1270: cf. Rossi 1994, 177. On the work performed by Moerbecke in translating Aristotle’s works (mainly at the behest of Thomas Aquinas) cf. Grabmann 1946, 62–84. On the matter of the various translations of Posterior Analytics in the course of the 12th century cf. Minio-Paluello 1972, 749; Schulthess and Imbach 1996, 297; Bianchi 1997a, 13; De Libera 1999a, 337–8. James of Venice’s version, however, remained the most used until the arrival of the humanist age: cf. Grabmann 1980, vol. 2: 99; Serene 1982, 498, n. 9; Rossi 1994, 169; Evans 1996, 43; Bianchi 1997a, 13. Also see Grabmann’s thoughts (1980, vol. 2: 97–8) on the hypothesis that one of the translations had been produced by Enricus Aristippus Catinensis.
- 141.
Cf. Dal Pra 1960, 437; Garfagnini 1979, 81; Serene 1982, 498, 501–4; Weinberg 1985, 165; Gregory 1992, 49–50; Abbagnano 1993, 530; Puggioni 1993, 46; Rossi 1994, 175; Bianchi 1997a, 18. In particular Garfagnini (1979, 47) maintains that the 12th century was the moment of the “slow and fragmentary, but continuous and tenacious” assimilation of the Stagirite’s doctrine, while it is with the 13th century that we have “the high point of complete absorption of Aristotelian thought by the Latins.” Furthermore, we need to consider that the availability of translations of a work does not necessarily coincide with widespread knowledge of it: “to witness the fact that the literary and cultural reception of a work is in large measure determined by the historical situation of the ‘recipient’ culture, we need to remember that, while from the middle of the 12th century original Latin commentaries on the Elenchi began circulating, we need instead to wait until about 1230 to find the first Latin commentary on Posterior Analytics, that of Robert Grosseteste”: Tabarroni 1997, 187.
- 142.
This evaluation is in Reade 1980, 400, who likewise indicates that Posterior Analytics “were found very difficult.” Also Grabmann (1980, vol. 2: 88) explains the initial lack of translations of Posterior Analytics “with difficulties over the content indicated by John of Salisbury, therefore, with problems of a didactic nature.” On this topic cf. Prantl 1937, 192–3, who formulates the hypothesis that the difficult style of the work was not due to the translator as much as to the inexperience of the copyists.
- 143.
Cf. Metalogicon, IV, 6, 919c–920a (De difficultate Posteriorum Analecticorum, et unde contingat). On the subject cf. Rossi 1994, 160.
- 144.
Metalogicon, IV, 6, 920a (De difficultate Posteriorum Analecticorum, et unde contingat).
- 145.
Serene (1982, 498) writes that “the slow reception of the Posterior Analytics by twelfthand even thirteenth-century philosophers is not surprising in view of the difficulty of the text and the differences between its doctrine and the Augustinian assumptions about truth and knowledge which pervaded early medieval thought,” and it has also been indicated (Evans 1996, 42) that this last work of Aristotelian logic “made an unfavourable impression on contemporaries because of its difficulty and was little used until the end of the 12th century and the early years of the following one.” Indeed, “the Latin West had never known anything like a scientific theory that was as complex and rigorous as that proposed by Aristotle in Analytics”: Tabarroni 1997, 187.
- 146.
Cf. Evans 1996, 60. “With the progress of assimilation of the other parts of the logica nova and with the help of new interpretive tools […] also Aristotle’s theory of science, as found in Posterior Analytics, entered to form part of the stable patrimony of knowledge that every teacher of the Arts had to show he possessed when receiving his title”: Tabarroni 1997, 188.
- 147.
“In the period covering the 12th to the 14th century the concept of science underwent an evolution and a process of semantic and philosophical development that was really astonishing. […] The principal event that started and largely conditioned this evolution throughout this period is undoubtedly the Latin translation of Aristotle’s Posterior Analytics and the long process of its assimilation by the university culture of the Latin West”: Tabarroni 1997, 185–6. On the progressive acquisition of Aristotle’s authentic epistemological doctrine in the Middle Ages cf. Garfagnini 1979, 129–37, 193–200.
- 148.
As to the difference between dialectic and science in Aristotle’s thought, it is felt that “in reality the fact that, per se, dialectic is not knowledge is in no way incompatible with the possibility that it may be used for science. Also in fact, syllogism per se does not tell us anything, but nothing prevents it being used in demonstrations and that in such a context it can produce a true and proper science”: Berti 1987, 131.
- 149.
In the Aristotelian system of logic “what characterises dialectic, distinguishing it from science, is the fact of arguing on whatever problem, i.e., its universality, and the fact of arguing from opinions that deserve consideration, or endoxa, rather than from principles,” so that “the argument, or syllogism, of science, i.e., demonstration, starts from true first premises, i.e., from principles, or from premises that in turn are deduced from true first premises, while the argument, or syllogism, of dialectic starts from endoxa”: Berti 1987, 127.
- 150.
On Aristotle’s epistemology cf. Mignucci 1965. On this point also cf. Codignola 1954, 105; Vanni Rovighi 1962, 181–2; Ross 1977, 41–59; Sanguineti 1987, 162, 204–10; Haren 1992, 14–6; Ackrill 1993, 151–69; Panza 1997, 374.
- 151.
On this Aristotelian division of syllogistic premises cf. Viano 1955, 128–31, 227–49; Sammarco 2001, 21.
- 152.
Dialectical syllogism does not manage to verify scientific truth because “there is a true and proper leap from discussion of opinions to understanding of the truth: in fact one absolutely cannot draw necessary conclusions from probable premises. Furthermore, when science arrives, dialogue has no reason to exist any more, because absolute objectivity imposes itself on the disputants”: Viano 1955, 232. Consequently, the scientific knowledge outlined by Aristotle in Posterior Analytics (as interpreted by medieval logicians) identifies itself with “a knowledge that is unchanging and is founded on unquestionably certain axiomatic principles, placed in the brain, that form the basis of the demonstration”: Garfagnini 1979, 82.
- 153.
On this passage from Aristotle cf. Mignucci 1975, 21–3; Celluprica 1978, 157–8.
- 154.
On the piece under examination cf. Mignucci 1975, 55–6.
- 155.
Cf. Calogero 1927, 19–22; Viano 1955, 133–5; Capozzi 1974, 309–16; Wieland 1987, 73; Abbagnano 1993, 194; Zanatta 1996, 20–39; De Libera 1999a, 353.
- 156.
On the medieval reworking of the Aristotelian epistemology in Posterior Analytics cf. Evans 1996, 59–64.
- 157.
“Since in science certainty derives from the certainty of its principles, and since furthermore we do not know anything perfectly until we know its first principles and their consequences, for this reason if the first principles of grammar are known, through these, we can know every effect of these principles within the ambit of the grammar, using a causal mechanism.”
- 158.
“We need to know that dialectic does not obtain a scientific knowledge of scientific conclusions; this is reached by virtue of the common intentions it finds in the words of those conclusions. The reason for this lies in the fact that we cannot arrive at knowledge of the thing if not from its own principles. Dialectic, instead, does not argue on the basis of propria principia, but on the basis of common intentions.” For this passage cf. Pinborg 1993, 353–4.
- 159.
Pinborg 1993, 354, where we also read that in Boethius of Dacia’s doctrine, “logical rules express a truth only when they find concrete application.” On the importance of the distinction between the logic of the necessary argument (scientific) and the dialectic of hypothetic syllogisms and of probable arguments, found in Lambert of Auxerre and in Peter of Spain, cf. Vasoli 1961, 315.
- 160.
The translation of the passage is as follows: “The form of dialectical and demonstrative syllogism is essentially the same, for this reason they do not differ if not only for the material conditions that are [those] of probability and necessity.” Cf. Pinborg 1993, 359. As regards the origins of the passage cf. ibid., 358, n. 27.
- 161.
“Starting from the middle of the 13th century the relationship between dialectical reasoning and demonstrative syllogism gradually changed: In particular there was a weakening of the predominant role of categorical syllogism”: Fedriga 1993, 308.
- 162.
Cf. Pinborg 1993, 358–61, who indicates which medieval philosophers had dealt with the problem of enthymemes, and points to how the admission, in the 13th century, of these different forms of deductive argument had by then caused syllogism to lose its privileged position as a gnostic theory. On the expansion of forms of deduction, that took place from the 13th century on cf. Abbagnano 1993, 595; Fedriga 1993, 309–18. As regards the various possible types of enthymeme cf. Copi and Cohen 1999, 312–5. An enthymeme was defined by medieval logicians as syllogismus abbreviatus or imperfectus (abbreviated or imperfect syllogism): Kahn 2000, 496–7.
- 163.
Scholasticism did not however reach the point of a radical and drastic separation between the two concepts of science and logic; for example, it has been pointed out that in the 14th century also Ockham, although distinguishing in a very precise way between logic and ontology, “had however to examine what the foundation of scientific propositions was in the real world”: Pinborg 1993, 370, n. 47.
- 164.
“While the logical structure of demonstrative or ‘scientific’ syllogism is simple, the additional requirements severely limit the number of full-fledged ‘scientific’ syllogisms”: Serene 1982, 498.
- 165.
“Aristotle’s Analytics, with its rigorously methodological approach, founded on a logical framework (that described in the other Organon books, of which it forms the culminating theory) […] imposes a scientific ideal with very precisely defined specific characteristics, by reference to which it is possible to build a hierarchy of knowledge (and therefore its own map and an organisational model of the studies which has profound implications in the field of learning), that very soon becomes determinant, with its inclusions and its exclusions, in the general process of cultural development”: Tabarroni 1997, 186. Verger (1997, 105) observed that in 13th century logic “was a complex enough art to stimulate the disciplines of the higher faculties in a remarkable way, because its progress obliged them to constantly question the evidence accepted up to that moment.”
- 166.
Therefore, in order to reach valid conclusions, it was essential that the propositions from which the syllogisms came were scientifically truthful, and every field of knowledge had to identify the first principles that defined it as a science and that provided the propositions on which suitable inferential reasoning could be built: cf. Wieland 1987, 74; Evans 1996, 59. On the concept of scientia demonstrativa (demonstrative science) in the 13th century and of the “knowledge-producing syllogism,” as well as on the dangers of an excessive generalisation of these concepts, cf. Serene 1982, 496–8.
- 167.
According to Crombie (1970, 211–2) the idea that permeates the scientific method of the later Scholastics consists of “rational explanation modelled on formal or geometrical demonstration; the idea that a particular fact was explained when it was possible to deduce it from a more general principle,” so that science was taken as “a system of deductions from indemonstrable first principles.”
- 168.
Cf. Van Steenberghen 1946, who identifies three periods: the acceptance of Aristotle in Paris (1200–1230), the growth of Aristotle’s teachings (1230–1250), the apotheosis of Latin support for Aristotle’s teachings (1250–1265). On this theme cf. also Tabarroni 1997, 188–90; Fossier 1987, 158, who states how scientific thought in the 13th century was uniformly linked to a “more or less rigorously Aristotelian” system.
- 169.
As regards the relationship in general between Aristotelian thought and theology in the 12th and 13th centuries cf. Grabmann 1980, vol. 2: 7–15; Wieland 1987, 70–80; De Libera 1999a, 353–9.
- 170.
“If theology did not involve principles, it would be neither an art nor a science. It therefore has principles, namely, the articles of faith, which however constitute nothing but principles for believers; for them they are things that are known for themselves that have no need of proof taken from other sources.” On this piece cf. Vignaux 1990, 87.
- 171.
For this form of words cf. Vignaux 1990, 118. On William of Auxerre’s doctrine cf. Chenu 1995, 86–7; Colish 2001, 467.
- 172.
“Faith is a way of arguing beyond phenomena, by virtue of the articles of faith that are known principles in themselves.” Cf. De Libera 1999a, 353.
- 173.
De Libera 1999a, 355. Eudes Rigaud’s ideas develop in a similar way; on which cf. Chenu 1995, 91–2.
- 174.
Cf. Chenu 1995, 93–131; Tabarroni 1997, 190. It has been written that “Thomas Aquinas is better known for treating theology as a demonstrative science than for contributing to the theory of science. But his consideration of demonstrative science is interesting just because he seems so sympathetic to the details and spirit of Aristotle’s enterprise, as is clear from his exposition of the requirements that demonstrative premisses be true, necessary, and certain”: Serene 1982, 504. On Thomist philosophy cf. Dal Pra 1960, 451–63. A close examination of the different historiographical positions regarding the importance to attribute to Thomism in medieval philosophy is found in Inglis 1998, 1–13.
- 175.
Between the 13th and 14th centuries a great debate divided the various theological positions “around the conception of theology as a science, where being scientific was often measured against the yardstick of Aristotelian logic”: Gregory 1992, 3. In particular, Thomas Aquinas admitted that some sciences regarding natural phenomena can only partially proceed through rigid scientific demonstration, but was convinced that none of the other disciplines should avoid respecting the rules of the Aristotelian gnosis. On this theme cf. Serene 1982, 504–5; Tabarroni 1997, 192, who also affirms that (ibid., 190) Thomas Aquinas “agreed with Aristotle in holding that the evidence for a scientific proposition consisted entirely of its being demonstrated (namely, obtained as the conclusion of a demonstrative syllogism) and therefore derives its epistemic value from that of its premises and from the reliability of the syllogistic inference.” For Aquinas, therefore, “knowledge does not exist that is not of and by universal concepts”: Alessio 1994d, 336.
- 176.
In the Thomist system “the articles of faith can act as first principles in the supernatural world. When such principles have been acquired, one can proceed with deductive reasoning, coordinating one doctrine with another and drawing implications from them”: Colish 2001, 478. For Thomas Aquinas, therefore, “every science presents itself as a well structured edifice of inferential chains that rests on foundations made up of some indemonstrable first principles”: Tabarroni 1997, 191. On the articuli fidei (i.e., on the scientific principia of theology) in Thomist thought cf. Putallaz 1991, 131–48; Chenu 1995, 93–7. In general, on the concept of science in Thomas Aquinas cf. Martin 1997, 15–31.
- 177.
On the rationalist and speculative position of Thomist theology cf. Codignola 1954, 292–5; Gregory 1992, 36–53; Schulthess and Imbach 1996, 170–1. As regards Thomas Aquinas’ attempt to harmonise theological principia based on reason with theological principia obtained from evidence offered by the ecclesiastical auctoritates (articuli fidei) cf. Evans 1996, 62. A comprehensive review of principia is given for example in Summa theologiae, which consists of a “complete and systematically ordered collection of all the truths of natural and supernatural theology, classified in a logical order, accompanied by their shorter demonstrations, placed between the most dangerous errors that contradict them and the refutation of each of these errors”: Gilson 1983, 481–2.
- 178.
“I answer that, Sacred doctrine is a science. We must bear in mind that there are two kinds of sciences. There are some which proceed from a principle known by the natural light of the intelligence, such as arithmetic and geometry and the like. There are some which proceed from principles known by the light of a higher science: Thus the science of perspective proceeds from principles established by geometry, and music from principles established by arithmetic. So it is that sacred doctrine is a science, because it proceeds from principles established by the light of a higher science, namely, the science of God and the blessed. Hence, just as the musician accepts on authority the principles taught him by the mathematician, so sacred science is established on principles revealed by God” (Engl. vers. Fathers of the English Dominican Province, 2).
- 179.
“As other sciences do not argue in proof of their principles, but argue from their principles to demonstrate other truths in these sciences: so this doctrine does not argue in proof of its principles, which are the articles of faith, but from them it goes on to prove something else” (Engl. vers. Fathers of the English Dominican Province, 5).
- 180.
“The Aristotelian belief was something much greater that the works of Aristotle and the Latin comments that illustrated them. […] Largely due to the fact that Aristotle’s works formed the basis of the curriculum of studies of the medieval universities, Aristotle’s teachings became the principal, and practically uncontested, intellectual system of Western Europe”: Grant 2001, 130. In particular, as regards physics and medicine cf. Crombie 1970, 210–33.
- 181.
“The world does not contain anything that is not an object of science, meant therefore, through the words of demonstrable conclusions; in this way in fact all is scientifically knowable.” On this argument Ghisalberti (1983, 64, n. 56) specifies that “from Buridan’s writings […] it appears that by ‘scientific’ he means the knowledge of anything signified by the individual words that make up the conclusions of the demonstrations. Since true and proper science is a habit acquired through syllogism, and since the elements that converge at the conclusion are the premises, it follows that the subject matter of scientific knowledge consists of the significant words making up the premises and the conclusion of the demonstration, as also the things signified by such words.”
- 182.
Cf. Grant 2001, 205–12. In fact Aristotle had shown “how one had to use syllogism for the production of scientific demonstration in natural philosophy” (ibid., 237), and for this reason “the natural philosophers of the Middle Ages were convinced that Aristotle’s metaphysics and natural philosophy, with their corrections and additions, were sufficient to establish all that could be known about nature. […] To fill the remaining lacunae in their knowledge, they had simply to apply the fundamental principles of Aristotelian natural philosophy” (ibid., 240–1).
- 183.
Cf. Gregory 1992, 35–6; Garfagnini 1994, 236, 250–4. “The essence of Aristotle’s teachings lay in a hard core composed of some fundamental principles of a general character that all natural philosophers of the Middle Ages accepted and that no-one contested. […] These fundamental principles were, not only, never explicitly contested, but all found a series of applications that would have surprised, or even also disturbed Aristotle”: Grant 2001, 243, 250.
- 184.
“Now since every truth which is not itself a first principle must be demonstrated with reference to the truth of some first principle, it is necessary in any inquiry to know the first principle to which we refer back in the course of strict deductive argument in order to ascertain the truth of all the propositions which are advanced later. And since this present treatise is a kind of inquiry, we must at the outset investigate the principle whose truth provides a firm foundation for later propositions” (Engl. vers. Shaw, 4–5).
- 185.
Dante could have obtained his knowledge of Averroës’ doctrine from Bologna, where a lively Averroist school flourished in the second decade of the thirteen hundreds. About this cf. Vanni Rovighi 1978.
- 186.
Marsilius of Padua’s philosophical training caused Defensor pacis to be different from the majority of political writings of the time, for “the rigour of a systematic process that gives the most accomplished medieval treatment of the theory of the State […] and of the relationships which should exist between political society and the community of ‘Christ’s faithful,’ constituted by the Church and formed, however, by the ‘citizens’ themselves”: Vasoli 1994, 520.
- 187.
“I shall divide my proposed work into three discourses. In the first I shall demonstrate my views by sure methods discovered by the human intellect, based upon propositions selfevident to every mind not corrupted by nature, custom, or perverted emotion. In the second discourse, the things which I shall believe myself to have demonstrated I shall confirm by the established testimonies of the eternal truth, and by the authorities of its saintly interpreters and of other approved teachers of the Christian faith, so that this book may stand by itself, needing no external proof. From the same source too, I shall refute the falsities opposed to my conclusions, and expose the intricately obstructive sophisms of my opponents. In the third discourse, I shall infer certain conclusions or useful lessons which the citizens, both rulers and subjects, ought to observe, conclusions having an evident certainty from our previous findings” (Engl. vers. Gewirth, 7).
- 188.
“Although we might unite medicine, theology, astronomy, canon law, jurisprudence, and natural science under one common idea—that of scientific rationality which uses conceptual means and aims at general statements—a general conception regarding contents can no longer be established”: Wieland 1987, 74. The doctrine proclaimed by Raymond Lull (†1315) in his Ars Magna can be considered the culmination of this concept and an indication of the crisis of scientific specialism. In this work he tries to show logic as a universal and fundamental science for all the other sciences, based on the argument whereby “since each science has its own principles, different from the principles of the other sciences, there must be a general science whose principles contain and imply those of the particular sciences, as the particular is contained in the universal”: Abbagnano 1993, 598. Cf. also Garin 1969, 62–3.
- 189.
Cf. Chenu 1995, 101, where we read—regarding the doctrina sacra—that science “essentially brings with it a movement of the mind from the known to the unknown, by means of a demonstration, that proceeds from principles (known) to conclusions (to be known). This is its elementary structure, as opposed to immediate knowledge, intellectus: It directs all its efforts to and finds its cognitive value in the full initial possession of its principles, which are reached from what is evident.” In this way an important scientific habitus demonstrativus emerges with the 13th century, based on Aristotle’s epistemology: cf. Schulthess and Imbach 1996, 170.
- 190.
On the changes that took place in the law schools within the general context of the epistemological evolution during the 13th century cf. Verger 2000, 75–6.
- 191.
The blossoming of the Orléans law school and the reasons for its success form the subject of a fundamental study by Meijers (1959). On this topic also cf. Maffei 1967, 71–3.
- 192.
X 5.33.28 (= Potthast 1874, 539–40, n. 6165).
- 193.
Cf. Meijers 1959, 28; Piano Mortari 1976, 40–1; Cortese 1995, 394–5. On the teaching of law at Paris at the start of the 13th century and on the decree Super speculam cf. Coppens 1999.
- 194.
Cf. Meijers 1959, 6–8, who describes the university at Orléans as a higher college for the clergy and notes that the laity there were referred to as rustici. In particular cf. Maffei 1967, 54– 7, on the link between Jacques of Revigny and the Dominican environment in Orléans, where that theological teaching would have taken place which would explain “the possession of dialectical techniques which the theologians considered correct and proper, techniques introduced by him into the field of legal argument.” On the point also cf. Cortese 1982a, 271–2.
- 195.
Verger (1997, 110) has pointed out that “the progress of jurisprudence is so much more notable if one thinks that it took place in a period like the last third of the twelve hundreds when the most innovative doctrines in the field of philosophy and theology were in decline.”
- 196.
The interest paid by the commentators’ school to the ratio legis inherent in Roman sources has always been stressed as a characteristic feature of the commentators; cf. Solmi 1930, 514; Calasso 1954, 571; Piano Mortari 1986, 31–8.
- 197.
Cf. Meijers 1959, 102–3; Cortese 1982a, 265. On the extensive structural modification of the quaestio at the time of the commentators (despite the preservation of the same terminology used by the glossators in their series of explanatory works) cf. Bellomo 1974a, 66–73.
- 198.
French legal tradition gives Roman law (also for political reasons linked to the existence of strong monarchical power in France) the mere value of a ratio scripta, i.e., of a criterion of reasonableness expressed in a written norm: cf. Piano Mortari 1976, 42–3.
- 199.
Apropos of the method of the “comment,” it has been written that “the medieval idea of science was that of Aristotle, of learning built on a base of certain knowledge, deduced by demonstration from supreme and indisputable true principles. Scientific procedures required the use of an argumentative method that had its starting point and support in a complex of necessary and unchangeable eternal principles. […] It did not raise any doubt that jurisprudence had all the attributes of the scientia”: Piano Mortari 1960, 801.
- 200.
Roman jurisprudence had been decidedly averse to any process of definition and for a long time subsequent legal science felt the effect of this aversion towards definitions, which had also been expressed in Corpus iuris civilis: cf. Orestano 1987, 148–9.
- 201.
In general on the technique of compiling dictionaries in the Middle Ages cf. Manacorda 1914, t. 2: 246–55.
- 202.
For a rendition of this passage from Dictionarium iuris cf. D’Amelio 1972, 67–8.
- 203.
Cf. Piano Mortari 1986, 32. On the concept of regula iuris and on its history in the Middle Ages cf. Caprioli 1961–1962, 267–305; Stein 1966, 131–52; Cortese 1992b, 476–7; Alpa 2000, 30–1.
- 204.
In the world of law, Revigny’s Dictionarium iuris satisfies “one of the great intellectual ambitions of the 13th century” that Thomas Aquinas had already addressed in the field of theology, namely, “that of summarising all contemporary knowledge in a vast encyclopaedia”: Vincent 1997, 123. On the importance, for the systematic development of legal science, of the appearance of legal dictionaries cf. Giuliani 1997, 143–5.
- 205.
The epistemological change introduced in Orléans led to “a growing movement towards a search for the ‘substance’ of relations and towards definitions,” so that “the search for the substance of things leads—from a new point of view—to a broadening of the legal world of definitions. […] The process of transformation took centuries and brought about the ‘translation’ of all the Roman heritage into new forms of legal thought and the passage to a new form of scientia iuris. It is the creation of a totally new mental habit, still largely dominant today, that in itself generates the conviction that there can be no other”: Orestano 1987, 150–1, 392–6.
- 206.
We need to note that the law historians, from the earliest to the most recent, have as a rule limited themselves to emphasising the importance (and at times to reproaching the exuberance) of resort to dialectical procedures as a distinctive and characteristic element of the origin and development of the Commentator’s school: cf. Savigny 1857, 565–7; Ciccaglione 1901, 111–5; Brugi 1921a, 50–61; Besta 1925, 843–73; Solmi 1930, 513–21; Trifone 1943, 231–6; Calasso 1954, 564–70; Piano Mortari 1960, 796; Pecorella 1966; Horn 1973, 263–4; Orestano 1987, 65, 148; Cortese 1995, 409. In reality, the glossators just as much as the commentators knew and used exactly the same reserve of logical-dialectical techniques, above all syllogism: cf. Cortese 1992b, 468. The difference between the two schools therefore lies not in the diversity of heuristic tools used, but exclusively in the different value attributed to dialectical or apodictic syllogism as a fundamental epistemological canon. As regards the different epistemological structures adopted by the two schools, their common heritage of logical techniques was lacking an overall framework and this has not allowed the historian to grasp the difference existing between the hermeneutic and didactic methods used. These were effectively homogeneous as regards the tools that were adopted (since both were based on inference), but their application started from different syllogistic premises (endoxa or principia propria). The similarity of the logical techniques used by the glossators and commentators has also prompted some to emphasise the continuity (rather than the break) between the two schools, causing them to hold that the logical foundations remained substantially unaltered despite the change that occurred in legal method: cf. Solmi 1930, 516; Paradisi 1976, 233–8; Astuti 1976, 140–2, 146–8 (who speaks of only the quantitative development, and not about the qualitative difference between the dialectical procedures used in the two schools, and ends by denying any novelty from a methodological and scientific point of view); Cortese 1995, 410 (who speaks of “dialectical techniques that the jurists had tested for some time”). Piano Mortari, above all, expresses a lively criticism of those historical descriptions that highlight aspects of continuity between the various lines taken by medieval jurists, rather than the significant changes in the ideas between the two schools: cf. Piano Mortari 1976, 63–4; Piano Mortari 1979, 202–11.
- 207.
The opinions of the Italian professors who derided the French contemplative studies of dialectic are found recorded by Meijers 1959, 118–9. On this argument cf. Nicolini 1964, 64.
- 208.
Meijers (1959, 117–8), for example, records that the legal method developed in France was brought to the fore not only by the Italian jurists who had taken themselves off to the Orléans school, but also by the close connection existing between the Roman curia and the Orléans teachers, all of whom were members of the clergy.
- 209.
Cinus of Pistoia’s intention to embrace the “novitates modernorum Doctorum” (i.e., the innovations of the Moderni doctors) is expressed in Cynus Pistoriensis 1578, 1ra. On Cinus as a jurist cf. Libertini 1974, 23–40; Astuti 1976, 129–52. Bellomo offers a different meaning for the adjectives antiqui and moderni and, placing his faith on two Libri magni quaestionum from the Vatican library, fixes the transition between the two approaches at around about 1270: cf. Bellomo 1974a, 53 (where, however, in footnote 84, we also read that “it cannot be excluded that the name moderni serves in general to denominate those doctors of the Italian schools who, in common with some teachers beyond the Alps, gave a lot of space to Scholasticism in their cultural formation and in the actual application of scientific and practical activity”); Bellomo 2000, 545–65, where we read that, besides the merely chronological criterion, there could have been “differences in method that were substantial and radical, or such, however, as to justify the two qualifications” (ibid., 563).
- 210.
Cinus of Pistoia was ironical about the way the lawyers idolized the Magna Glossa: cf. Bellomo 1993, 433.
- 211.
For a recent work on Bartolus of Saxoferrato cf. Bellomo 1998a, 181–93.
- 212.
The observation that the traditional didactic method, based principally on the explanatory reading of legal texts, begins to die out from the time of Cinus (the start of the 14th century) (cf. Bellomo 1993, 430) is linked to the fact that the definite establishment of Aristotle’s philosophy in Italy and the development of the Italian Aristotelian movement started only towards the end of the 13th century and lasted until the 16th (cf. Piano Mortari 1976, 65–7).
- 213.
On the importance in the glossators’ school’s understanding the Justinianian verba legis, and on how the objective of applying the logical tools provided by the dialectical method was the use of analogy to extend the scope of the verba legis cf. Piano Mortari 1976, 44–54; Piano Mortari 1979, 180. It has been written on this that in the twelve hundreds and thirteen hundreds “legal thought is dominated by the need to not distance oneself from scientific sources, from the ‘dogma’ of Justinian’s laws, from their own verbal format”: Bellomo 1996, 22.
- 214.
Azo 1506, 346a (Prooemium, ca. me.): “Everyone must yearn to have a correct knowledge of the legislative texts that regulate the lives of men, in order that he is not induced by his ignorance to deviate from the straight and narrow.”
- 215.
Odofredus’ passage on the didactic method (Prooemium in the Digestum vetus) is published in Savigny 1854, 734 and is analysed by Haskins 1972, 174–5. On the didactic method in use at Bologna in the first half of the 13th century cf. Bellomo 1974a, 49, n. 76; Bellomo 1992a, 207.
- 216.
The commentators’ school affirmed “the widespread idea of having to stand back from the literal meaning of the words in the interpretive work”: Piano Mortari 1986, 36.
- 217.
It is true that, recalling Cicero, Azo had already stated in the preface to Summa Institutionum that every science has its principles and roots (“habet quaelibet scientia principia et radices, super quibus regulare constituitur fundamentum”: Azo 1506, 346a), but for Azo, this foundation lies in the “noticia legum” (knowledge of the legislative texts) which appears a few lines earlier in the same preface (on this passage of Azo cf. Bellomo 1992b, 185, n. 34). In reality, the glossators’ and commentators’ schools had two different conceptions of the basic principia of the scientia iuris, consequently developing radically different gnostic systems and heuristic methods. It is sufficient for example to reflect on the fact the regula explained by the commentators is the result of an inductive syllogistic process which tends to replace the verba legis, while the definition created by the glossators generally represents the product of an analytical process based on the distinctio used on precisely those verba that cannot be set aside: cf. Otte 1971, 212–3; Carcaterra 1972, 302–4. On induction as an argumentative process in Aristotle’s logic cf. Vanni Rovighi 1962, 184–8.
- 218.
On the meaning of the materia legis adopted by the commentators (different from that taken by the glossators) cf. Horn 1973, 325–6.
- 219.
The casus legis and the summarium legis present in the lecturae of the commentators synthesised the causa of each law in a general and abstract rule, capable of general application in the contemporary legal context: cf. Di Bartolo 1997, 210–5. Already in Riccardus of Saliceto (†1379) the casus legis does not any longer represent “the account of the fact nor even the norm with its content,” but “the legal principle that is in the norm, […] that runs through the norms as the essential life-blood of their existence, and for this reason it is opportune that it is expressed, as Riccardus does, in a form and way that is ever more refined and synthesised”: Bellomo 1996, 30.
- 220.
On Mattheus Gribaldi Mofa’s complex scientific personality, in which the cultural need to preserve the commentators’ method combines with that of humanist requirements, cf. Quaglioni 1999.
- 221.
“We do not draw even a word from any of the law, but, thanks to an elaborate interpretation, we extract a general rule from the implicit ratio of the legal provision, and we thus arrange to explain not what the jurist said in the norm, but his thinking. And I ascertained that among all law teachers, two were without doubt the most outstanding in this type of interpretation, and they are Bartolus and Baldus, who summarise the profusion of words found in the laws so briefly that one cannot discover anything briefer or more ingenious than their formulae or syntheses.”
- 222.
“Who wants to know the effects, must know the causes. Who wants to know the nature of every thing, must know its principia. […] Definition is in fact a brief exposition created for contrast, which includes the essential properties of each thing.” Orestano’s considerations on this passage are found in Orestano 1987, 150.
- 223.
Baldus 1599, 19rb (ad legem De legibus et senatusconsultis, et longa consuetudine, l. 17 [Dig. 1.3.17], ad verba Scire leges).
- 224.
Baldus 1599, 7va (ad legem De iustitia et iure, l. 1 [Dig. 1.1.1], ad verba Iuri operam daturum; additio).
- 225.
Giuliani 1966, 181, observes that reasoning a similibus is useful and understandable only in the ambit of the probabilistic logic that distinguishes the science of the glossators; if, on the contrary, “the law were certain and rigorous, the processes of justification would be deductive and rigorous, and not those of the similis ratio.” We would add that, this is really what happens in the science of the commentators.
- 226.
Gribaldi Mofa 1559, 5r (I, 3, rubrica). For a careful examination of this theme cf. Quaglioni 1999, 200–1.
- 227.
“All scientific progress must be obtained from general precepts that, as the foundations of every art, are so essential for a knowledge of all the particular and individual expressions that are not to be ignored or put in doubt. Universal principles cannot be ignored because without them knowledge of individual and particular realities is not possible, and they cannot be doubted because nothing exists that is more evident and more certain than them.”
- 228.
It has been shown that Gribaldi Mofa’s De methodo ac ratione studendi is an “expression of a rationalism that, in the text as much as in the richness of the marginal notes, assumes the quality of a great concordia Aristotelis et Corporis iuris, i.e., of an intrinsic concordance between philosophical principles and legal axioms”: Quaglioni 1999, 203. Similarly, in the 17th century Everhard Bronchorst (1554–1627) stated that the legal regulae are no other than the indispensable prima iuris principia, i.e., the irreplaceable basis of all the deductive reasoning created by the scientia iuris: cf. Stein 1966, 166–7.
- 229.
On the vitality of this form of presentation, even after Albericus’ work cf. Ascheri 2000, 277.
- 230.
He deals with principia such as “Impugnare non dicitur qui ius suum tenetur” and “Ignotus aliquando accipitur non paciscendo” (these regulae are cited by Horn 1973, 350, n. 12). In addition to the regulae iuris (which make up the main part of the work), Albericus also inserts an explanation of some words and gives indications of the Justinianian passages connected with some of the entries listed in his Dictionarium: cf. Savigny 1857, 627–8.
- 231.
Cf. Albericus 1581, s.v. “Arguitur” (followed by a long list of argumenta). Cf. Ascheri 2000, 266, n. 21.
- 232.
Gribaldi Mofa 1559, 5v–8r (I, 3). The intention of dealing with inferential techniques in a comprehensive manner also induces Mofa to list the loci communes that are typical of dialectical syllogisms: cf. Gribaldi Mofa 1559, 32v–42r (I, 17–18).
- 233.
Gribaldi Mofa 1559, 14v–15r (I, 7: Regularum usum quam maxime necessarium esse).
- 234.
A broad analysis of the format of De methodo ac ratione studendi is found in Quaglioni 1999, 206–7.
- 235.
“Haec scientia, quae figurata est in quinque panibus, et duobus piscibus, ex quibus saturata est turba; Io‹annes› 6 c. Quid enim aliud quinque panes, nisi quinque volumina lib. ff. huius civilis scientia, scilicet ff. Vetus, Infortiatum, ff. Novum, Codex, et Volumen, duo pisces sunt duo sensus legales, scilicet sensus literalis, et sensus argumentalis. Ex istis enim quinque panibus, et duobus piscibus, totus mundus saturatur”: Bartolus 1615, 182vb. For comment on this passage by Bartolus cf. Quaglioni 1990, 134.
- 236.
On consilia literature (pro parte or pro veritate) cf. Ascheri 1995, 185–209.
- 237.
As regards the importance of the consilium works as a vehicle for the diffusion of the ius commune cf. Ascheri 2000, 268–9.
- 238.
“We can say that as soon as the assimilation of the doctrine contained in Analytics ended, in about the middle of the 13th century, an equally intense and fervid process of redefinition started immediately, which, in the last analysis, was critical of the Aristotelian scientific ideals. This led, above all in the 14th century, to the introduction of revolutionary changes to the perspective contained in these ideals”: Tabarroni 1997, 186. On this topic cf. Pinborg 1976, 240–51.
- 239.
On the 1277 condemnation of Averroism cf. Dal Pra 1960, 443; Weinberg 1985, 176–7; Fossier 1987, 154; Vignaux 1990, 56–7. An early condemnation of Aristotelian doctrine had taken place at a Provincial Council held in Paris in 1210 and presided over by Peter of Corbeil, but on that occasion (as at the subsequent condemnation of 1215) Aristotelian logic remained absolutely without any form of sanction: cf. Grabmann 1941, 42–69; Copleston 1971, 272–5; Vignaux 1990, 51; Gregory 1992, 24; Fumagalli Beonio Brocchieri and Parodi 1996b, 262. In general on the hostility towards Aristotle’s scientific and philosophical works in the 13th century cf. Grant 1997, 37–43.
- 240.
The text of the articles in question (3 and 4) can be read in Hissette 1977, 20–1. On the subject cf. Serene 1982, 507, n. 43.
- 241.
Cf. Crombie 1970, 44–5; Tabarroni 1997, 193. More generally, “the collection of condemned propositions […] precisely indicates, apart from the inevitable deforming and forcing, the cornerstones of a well defined philosophical system: Aristotle’s teachings”: Fioravanti 1994, 315.
- 242.
Other propositions condemned by Tempier in 1277 are even more explicit in deprecating the philosophers’ conviction that they possessed the one true wisdom and in criticising the opinion that noetic and intuitive theology did not have scientific value: cf. Dal Pra 1960, 444–5; Vignaux 1990, 57. Among the writers against whom the Parisian condemnation was most clearly directed is indeed Boethius of Dacia whose radical adhesion to the Aristotelian epistemology was abhorred since it led to a doubting of the scientific validity of the Church’s official teachings: cf. Weinberg 1985, 177–9. On the distance between Thomist thought and the rationalism of the radical Aristotelian cult cf. Van Steenberghen 1980b, 75–110.
- 243.
On the dianoetic position on the problem of scientific truth in Aristotle cf. Calogero 1927, 23–8.
- 244.
Duns Scotus’ doctrine continues the theme evident in the constant Franciscan polemic already conducted by Bernard of Clairvaux (in the 12th century) and by Bonaventura of Bagnoregio (in the 13th century) against cognitive processes based on Hellenic philosophy rather than on what God revealed: cf. Codignola 1954, 291–2; Alessio 1994a, 345–53. On the rivalry between the Platonism (Augustinian and mystical) of the Franciscans and the Aristotelian culture (rational and doctrinal) of the Dominicans cf. Dal Pra 1960, 429, 466–7; Tabarroni 1997, 194–5; Trottmann 1999.
- 245.
In the same way as Aristotle and Thomas Aquinas, Duns Scotus also “believes that first principles can be evident on the basis of experience, but he insists that the apprehension of the correct premisses of a scientific syllogism does not suffice for scientific knowledge”: Serene 1982, 509. Cf. also Gregory 1992, 51–2. On this subject, Vignaux (1990, 109) indicates how, for Duns Scotus, theology does not have the characteristics of a truly scientific reasoning because knowledge of God is not based on appropriate general ideas that can be used as secure syllogistic premises.
- 246.
Cf. Serene 1982, 514, where we read that, in Ockham’s doctrine, “scientific knowledge is not epistemologically decisive.”
- 247.
Cf. Crombie 1970, 234–5; Mugnai 1994. “In the epistemological field, Ockham’s starting point is the primary importance given to an intuitive knowledge of the particular as a font of scientific evidence,” which he puts alongside the “traditional categories of the immediate knowledge of principles per se noti and of the knowledge of conclusions syllogistically derived from necessary and evident premises”: Tabarroni 1997, 196.
- 248.
Ockham’s logic “abandons the Aristotelian attempt at a rigorous process capable of reexamining the categories of reality themselves. Science can, therefore, be only about the particular, outside of pure, formal-logical discourse: the Aristotelian-Thomist claim of the universality of knowledge is abandoned for a more modest programme of particular and probable knowledge, based on a continual resort to experience”: Garfagnini 1979, 271. For this reason, according to Ockham, all knowledge comes from sensitive intuition alone and not from reason, which leads instead to confused and uncertain conclusions at an ontological level: cf. Fossier 1987, 155; Gregory 1992, 55–6. In fact in Ockham’s conception, the world is totally subject to the inscrutable will of God, with the consequence that Ockham’s epistemology is characterised by a radical empiricism in which knowledge can be obtained only from experience through “intuitive cognition”: cf. Vignaux 1990, 120–32; Grant 1997, 43–7; Grant 2001, 213–4.
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“Ockham’s attack on contemporary physics and metaphysics had the effect of eliminating reliability from the majority of principles on which the system of physics was based in the 13th century”: Crombie 1970, 236. Tabarroni observes (1997, 197) how “with Ockham the Aristotelian ideal of demonstrative science was confined exclusively to the field of formal knowledge of an analytical nature,” thus producing a “fracture […] in the long debate on the subject of scientific knowledge” in the course of the 14th century (ibid., 199). Cf. Grassi 1994.
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Petrus de Alliaco 1513, 83vb (I Sent., q. 3, art. 3). The passage cited from Peter of Ailly is examined by Gregory 1992, 56. On this subject cf. also Fossier 1987, 160–2; Le Goff 1991, 142–5.
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Grant 1997, 47. On the empirical and sceptical tendencies of the 14th century cf. Crombie 1970, 237–8. However, we need to specify that the Parisian teachers of the Arts, in the same period, were far from wanting to completely undermine the Aristotelian foundations of the scientific vision of the world: cf. Tabarroni 1997, 202–3. In general on the characteristics of Scotus’ and Ockham’s doctrines, as well as on those of the Parisian philosophers that were inspired by the thoughts of the Oxford theorists, cf. Heer 1991, 272–6; Tabarroni 1997, 197– 204.
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Cf. Garfagnini 1979, 271. One of the consequences that Ockham’s doctrine had on theological studies was therefore “a general tendency to eclecticism and to scepticism”: Verger 1997, 123. Ockham’s epistemological doctrine even generated “a taking of sceptical positions with respect to the possibility of scientific knowledge in general”: Tabarroni 1997, 197.
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“It was certainly not against dialectic per se that the humanist jurists railed. But they could not support the decadent Aristotelian-scholastic dialectic of the commentators and proposed a new one. […] It is clear from what we have said that the humanist problem of a new logic, different from the medieval Aristotelian-scholastic one, was also profoundly felt by the jurist supporters of this humanist approach”: Piano Mortari 1978, 138–9. On this theme cf. Cortese 1992a, 490; Manzin 1994, 23–61. The first generic skirmishes of the crisis generated by an unfettered abuse of dialectic, had already begun in the first half of the 14th century: cf. Fioravanti 1992, 175–6.
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Calasso speaks of a “fatal wearing away” of the dialectic technique used by the commentators: cf. Calasso 1959, 72. On the progressive abandoning of the Aristotelian scientific ideal cf. Gregory 1992, 58–9; Graziano 1992, 47–55. As regards the possible link (also disputed in doctrine) between modern science and the final developments in medieval epistemology cf. de Muralt 1991, 26–36; Bianchi 1994, 488–9; Grant 2001, 252–308.
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Tabarroni 1997, 203, who adds (ibid., 204) how “the definite abandonment of the postulate of isomorphism between science and reality which had been correctly identified in the previous century as the indispensable metaphysical support of the Aristotelian ideal of science” became a determining factor in the 14th century. On the epistemological innovations immediately following the Middle Ages cf. Mamiani 1999. As regards the field of the physical sciences cf. Butterfield 1998. For conceptions of the nature of science and scientific explanation from the 16th century on cf. Bechtel 2001.
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The modern historian tends however to re-dimension the clear break between the mos italicus and the mos gallicus, to tone down the contrast between the two cultural systems and to stress instead the elements of continuity between the two models: cf. Maffei 1956; Quaglioni 1999; Minnucci 2002, 1–10.
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Errera, A. (2007). The Role of Logic in The Legal Science of The Glossators and Commentators. In: Padovani, A., Stein, P.G. (eds) A Treatise of Legal Philosophy and General Jurisprudence. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9880-8_3
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