Consilia beta

Legal opinions of the ius commune

What a consilium is, how the great collections came into being, why historians prize them, and why they have remained so hard to use.

A jurist's answer to a case

A consilium is the written opinion of a learned jurist on a concrete legal case. From the middle of the thirteenth century the courts of the Italian communes, and soon those of the whole of continental Europe, turned to the professors of Roman and canon law when a case raised a doubtful point. Trevor Dean describes the result in one sentence: academic lawyers "produced thousands of 'learned opinions' (consilia)" on cases pending before judges, at the request of the judge, of another official, or of one of the parties.1 The practice began in the mid-twelfth century, grew explosively from the mid-thirteenth, and reached its height in the late thirteenth and the fourteenth century.2

Mario Ascheri, whose work underlies most of what is known about the genre, distinguishes several types. Two matter most. The consilium sapientis was requested by the judge or by one of the parties on a doubtful point of law from a jurist outside the court. It bound the judge in his sentence and was usually brief. The consilium pro parte was commissioned by one of the parties before or during the trial. It did not bind the judge, and precisely because it had to persuade him it was argued at length. That length made it useful for later cases of the same kind, and so opinions of this type were collected from around 1300 and, in the end, printed as collections.3

Julius Kirshner has shown how deeply the practice was built into the courts of the communes. Guillaume Durand's Speculum iudiciale already treats it as a general Italian custom of the thirteenth century that parties and judges asked learned jurists for formal opinions on difficult points, and in civil cases the opinion so requested bound the judge; a judge who failed to request one when a party demanded it risked a fine and the nullity of his sentence. The statutes of most northern and central Italian towns prescribed the procedure and directed judges first to the jurists of the local guild.4 The written opinion had a fixed shape: a statement of the facts (casus), the question of law (punctus or quid iuris), the arguments for and against drawn from the two laws and the statutes, the conclusion, and the jurist's subscription and seal, often with the formula salvo saniore consilio.5

The form of the documents followed their purpose. Vincenzo Colli has shown that by the mid-fourteenth century a consilium was drawn up as a letter to the person who had asked for it, whether a party or a court, and was authenticated by the jurist's seal and, increasingly, by his autograph subscription. The jurist kept the drafts. A prominent consultant had a staff of secretaries who wrote out the originals and entered the texts, in order, into the office copy, the liber minutarius or transcriptio in ordine. These office copies are the ancestors of the great printed collections.6

Why the opinions matter

Ascheri and Paola Maffei state the historical value of the genre in two sentences: consilia "are the best source to show the reception de facto of ius commune all over continental Europe; moreover, being bound to life cases, they let us better understand medieval and early modern society."7 In every opinion the jurist had to reconcile the texts of the Roman and canon law with the statutes and customs of a particular town, lordship or church, and with what other jurists had written on the question. The opinions therefore show the learned law not as it was taught but as it was applied, and they do so across the whole range of medieval life: trade and credit, dowry and inheritance, the powers of cities and princes, guilds, monasteries, clergy, and the duties and values of the people who went to law.8

That social-historical reading has a history of its own. Ingrid Baumgärtner argued in 1987 and 1990 that each opinion preserves a piece of lived reality, because the jurist had to set out the quarrel before he could decide it, and that consilia therefore complement the serial sources of urban history, tax registers and court records, with narrative detail about families, guilds, clergy and the moral norms of a town. She also named the limits: the clients were a social elite, and the texts speak in the jurists' terms, which have to be translated back into social relations.9 The handbook article by Thomas Woelki and Tobias Daniels sums up the current view: consilia stand at the threshold between theory and practice and show which arguments counted as lawful and capable of consensus, not simply who was in the right.10

The sheer quantity is part of the point. For Baldus de Ubaldis alone Colli's census has recorded about four thousand opinions. The printed collection of his consilia contains 2,518 pieces, which is more than a quarter of all consilia printed before 1501.11 Social historians have used individual cases from these volumes for decades.12 Yet Dean's verdict on the genre as a whole still stands: its potential "is rarely realised".13

The problem of access

The reason is not neglect but the nature of the material. The collections survive in folio volumes of several hundred leaves, printed in two columns of abbreviated Latin and ordered, where they are ordered at all, by the sequence of the jurist's archive rather than by subject. The printers added repertories, alphabetical lists of key words with references to opinion and number, and those sixteenth-century indexes have remained the only way into most of the collections. Modern library catalogues record the volume, not its contents.14

Ascheri and Maffei, announcing in 2020 a census of the printed consilia in the library of Domenico Maffei, more than three hundred volumes almost all in folio, describe the situation plainly. Despite a large literature on single collections and single opinions there is no general catalogue of consilia. For manuscripts an inventory piece by piece exists only in a few monographs and catalogues; for the printed editions the record is "even more sporadic". The result makes "extremely laborious, when not impossible, the identification and the retrieval of material useful for research on topics and persons", and they call this "a great gap in the toolkit of the legal historian and more generally of the historian" of the centuries in which the genre flourished.15 The complaint is old. In 1982 Ascheri wrote of a chronic lack of bibliographical tools for a source whose importance for political, institutional and social history was by then acknowledged, and proposed a computerised repertory of incipits that would give priority to the printed collections and index the names of parties, places and subscribers and the legal topics of each opinion.16 Baumgärtner called in 1987 for systematic, computer-assisted recording of the material.17 Giovanna Murano observed in 2014 that a considerable number of consilia and collections of consilia in archives and libraries still await inventory or digitisation.18 Woelki and Daniels list what is still missing: large parts of the manuscript tradition are untouched, critical editions are rare because of the sheer quantity of text, the cataloguing of miscellany manuscripts remains a desideratum, and they note that the digitisation of the old prints is improving availability and suggest indexing in the form of regesta so that persons and places become findable.19 Colli reaches a parallel conclusion from the side of the author: because Baldus could be read only in the old printed editions, his work was perceived as a single block of normative sources, usually without reference to his biography or to the historical context in which each opinion was written.20

The portal

The portal is meant as a collecting point for this tradition. The consilia of the ius commune survive in hundreds of printed collections and in thousands of manuscripts, and no single institution holds more than a fraction of them. The aim here is to bring them together in one place, author by author and collection by collection, in a form that lets each opinion be found, read and cited, and to build up the collection step by step. Methodically, the portal is an experiment in what may be called an epistemic infrastructure for the genre, in which the reading of large language models is combined with controlled vocabularies, structured records and explicit rules, so that the results can be checked, corrected and reused. How far that combination carries for a body of Latin legal texts of this size is one of the questions the portal is set up to answer. It begins where the ground is firmest, with the early printed editions of Baldus de Ubaldis (Venice 1575) and Nicolaus de Tudeschis, called Panormitanus (Venice 1571); further collections will follow, and with them the manuscripts, whose study the printed texts prepare. What the portal contains, how the texts were produced and how to use and cite them is set out on the About page.

Readers who want a modern translation of a selection of opinions will find about twenty consilia of Baldus and others in English in the source book edited by Osvaldo Cavallar and Julius Kirshner.21 None of this replaces the work that Ascheri, Baumgärtner, Colli, Kirshner and others have called for: the critical study of the manuscript tradition, the dating and attribution of individual opinions, and a census that reaches the opinions hidden in other jurists' collections.22 The texts here are the printed vulgate, produced by automatic recognition and not yet proof-read. What the portal provides is the condition for such work: the possibility of finding, reading and citing a single opinion without turning the pages of a folio.

Notes

  1. Trevor Dean, Crime and Justice in Late Medieval Italy (Cambridge: Cambridge University Press, 2007), ch. 5, "Consilia", pp. 95–110, at p. 95. Bibliography: Dean 2007 ↩
  2. Mario Ascheri, "I 'consilia' dei giuristi: una fonte per il tardo Medioevo", Bullettino dell'Istituto storico italiano per il Medioevo 105 (2003), pp. 305–334, at p. 310, as summarised by Ruth Wolff, "Autorität und Authentizität: Zum Verhältnis von Text und Siegel-Bild am Beispiel des Rechtsgutachtens Giovanni d'Andreas vom 9.5.1329", Rechtsgeschichte 13 (2008), pp. 60–79, at p. 61. Bibliography: Ascheri 2003, Wolff 2008 ↩
  3. Ascheri, "I 'consilia' dei giuristi", pp. 314–319; Wolff, "Autorität und Authentizität", pp. 61–62. The oldest collections are those of Dino del Mugello (d. 1303?) and Oldradus de Ponte, from around 1300; see also Ascheri and Maffei, "Consilia extravagantia: un repertorio in corso d'opera", pp. 75–78. Bibliography: Ascheri 2003, Wolff 2008, Ascheri / Maffei 2020 ↩
  4. Julius Kirshner, "Consilia as Authority in Late Medieval Italy: The Case of Florence", in Mario Ascheri, Ingrid Baumgärtner and Julius Kirshner (eds.), Legal Consulting in the Civil Law Tradition (Berkeley: Robbins Collection, 1999), pp. 107–140, at pp. 107–111. Bibliography: Kirshner 1999 ↩
  5. Thomas Woelki and Tobias Daniels, "Consilia", in Jan-Hendryk de Boer, Marian Füssel and Maximilian Schuh (eds.), Universitäre Gelehrtenkultur vom 13.–16. Jahrhundert. Ein interdisziplinäres Quellen- und Methodenhandbuch (Stuttgart: Franz Steiner, 2018), pp. 83–94. Bibliography: Woelki / Daniels 2018 ↩
  6. Vincenzo Colli, "Per uno studio della letteratura consiliare. Notizia del ms London, British Library, Arundel 497, autografo di Lapo da Castiglionchio il Vecchio", in Honos alit artes. Studi per il settantesimo compleanno di Mario Ascheri, vol. 1: La formazione del diritto comune. Giuristi e diritti in Europa (secoli XII–XVIII), ed. Paola Maffei and Gian Maria Varanini (Florence: Reti Medievali and Firenze University Press, 2014), pp. 25–36, at pp. 25–26; id., "I libri consiliorum. Note sulla formazione e diffusione delle raccolte di consilia dei giuristi dei secoli XIV–XV", in Ingrid Baumgärtner (ed.), Consilia im späten Mittelalter. Zum historischen Aussagewert einer Quellengattung (Sigmaringen: Thorbecke, 1995), pp. 225–235; id., "Consilia dei giuristi medievali e produzione libraria", in Mario Ascheri, Ingrid Baumgärtner and Julius Kirshner (eds.), Legal Consulting in the Civil Law Tradition (Berkeley: Robbins Collection, 1999), pp. 173–225. Bibliography: Colli 2014, Colli 1995, Colli 1999 ↩
  7. Mario Ascheri and Paola Maffei, "Consilia extravagantia: progetto di un census", Historia et ius 17 (2020), paper 4, pp. 1–5 (doi:10.32064/17.2020.04), abstract. Bibliography: Ascheri / Maffei 2020 ↩
  8. Ascheri and Maffei, "Consilia extravagantia", pp. 2–3. On the authority of consilia in practice see Julius Kirshner, "Consilia as Authority in Late Medieval Italy: The Case of Florence", in Legal Consulting in the Civil Law Tradition, pp. 107–140. Bibliography: Ascheri / Maffei 2020, Kirshner 1999 ↩
  9. Ingrid Baumgärtner, "Consilia. Quellen zur Familie in Krise und Kontinuität", in Peter-Johannes Schuler (ed.), Die Familie als sozialer und historischer Verband. Untersuchungen zum Spätmittelalter und zur frühen Neuzeit (Sigmaringen: Thorbecke, 1987), pp. 43–66; ead., "Stadtgeschichte und Consilia im italienischen Spätmittelalter. Eine Quellengattung und ihre Möglichkeiten", Zeitschrift für historische Forschung 17 (1990), pp. 129–154. The older foundations are Guido Rossi, Consilium sapientis iudiciale (Milan, 1958), and Guido Kisch, Consilia. Eine Bibliographie der juristischen Konsiliensammlungen (Basel and Stuttgart, 1970), both cited there. Bibliography: Baumgärtner 1987, Baumgärtner 1990, Rossi 1958, Kisch 1970 ↩
  10. Woelki and Daniels, "Consilia", pp. 83–84. Bibliography: Woelki / Daniels 2018 ↩
  11. Vincenzo Colli, "Von der Handschrift zum gedruckten Buch im Mittelalter: Repertorium der Werke von Baldus de Ubaldis (1327–1400)", Max-Planck-Institut für europäische Rechtsgeschichte, research report 2013. Bibliography: Colli 2013 ↩
  12. Colli, research report 2013. Bibliography: Colli 2013 ↩
  13. Dean, Crime and Justice, p. 95. Bibliography: Dean 2007 ↩
  14. Ascheri and Maffei, "Consilia extravagantia", pp. 3–4. Bibliography: Ascheri / Maffei 2020 ↩
  15. Ascheri and Maffei, "Consilia extravagantia", pp. 3–5. The Italian reads: "rende estremamente faticosa, quando non impossibile, l'individuazione e il reperimento del materiale utile alle indagini su temi e personaggi" and "Si tratta di una grande lacuna nello strumentario dello storico del diritto e più in generale dello storico". The project is set out at length, with a survey of the historiography, in Mario Ascheri and Paola Maffei, "Consilia extravagantia: un repertorio in corso d'opera", Revista Española de Derecho Canónico 77, no. 188 (2020), pp. 67–85. Bibliography: Ascheri / Maffei 2020, Ascheri / Maffei 2020 ↩
  16. Mario Ascheri, I consilia dei giuristi medievali. Per un repertorio-incipitario computerizzato (Siena: Il Leccio, 1982), pp. 7–9 and 23. Bibliography: Ascheri 1982 ↩
  17. Baumgärtner, "Consilia. Quellen zur Familie", pp. 43–66. Bibliography: Baumgärtner 1987 ↩
  18. Giovanna Murano, "I consilia giuridici dalla tradizione manoscritta alla stampa", Reti Medievali Rivista 15/1 (2014), pp. 241–277, abstract: "un numero ragguardevole di consilia e collezioni di consilia (libri consiliorum e consilia diversorum) conservati negli archivi e nelle biblioteche attendono ancora di essere inventariati o digitalizzati". See also Antonio Padoa-Schioppa, "Note sui consilia nell'evoluzione dello ius commune", in Martine Charageat (ed.), Conseiller les juges au Moyen Âge (Toulouse: Presses universitaires du Midi, 2014), pp. 15–23. Bibliography: Murano 2014, Padoa-Schioppa 2014 ↩
  19. Woelki and Daniels, "Consilia", pp. 89–90. Bibliography: Woelki / Daniels 2018 ↩
  20. Colli, research report 2013. Bibliography: Colli 2013 ↩
  21. Osvaldo Cavallar and Julius Kirshner (eds.), Jurists and Jurisprudence in Medieval Italy. Texts and Contexts (Toronto, Buffalo and London: University of Toronto Press, 2020). Bibliography: Cavallar / Kirshner 2020 ↩
  22. Baumgärtner (ed.), Consilia im späten Mittelalter; Ascheri, Baumgärtner and Kirshner (eds.), Legal Consulting in the Civil Law Tradition; Ascheri and Maffei, "Consilia extravagantia", p. 4. Bibliography: Baumgärtner 1995, Ascheri et al. 1999, Ascheri / Maffei 2020 ↩