Name der Zeitschrift: Das Mittelalter Jahrgang: 20 Heft: 2 Seiten: 251-265.

In lieu of an abstract, here is a brief excerpt of the content:Guillaume Budé, Andrea Alciato, Pierre de l’Estoile: Renaissance Interpreters of Roman LawMichael L. MonheitIn the Renaissance, jurists and other scholars intensely debated the problem of how to interpret correctly the Corpus iuris civilis (CIC), Justinian’s great sixth-century-ad compilation of Roman law. 1 Yet by the sixteenth century jurists had been closely interpreting its texts for four centuries; indeed Roman law jurists, much more than pre-Reformation theologians, innovated through close (...) commentary on the text (a characteristic sometimes wrongly considered a humanist innovation). Assuming that these texts were fully consistent, largely lacking a sense of historical distance, they “found” the CIC’s dictum on a given question by weaving many passages that seemed to address it partially into a complex logical fabric, and eliminated apparent internal conceptual disparities in the same way. 2But from the fifteenth century such humanists as Lorenzo Valla (1407–57) and Angelo Politiano (1454–94) applied humanist critical methods to the CIC and ridiculed the methods of the civilians. In the early sixteenth century the work of Guillaume Budé (1468–1540), Andrea Alciato (1492–1550), and Ulrich Zasius (1461–1535) intensified the crisis in legal interpretation. Budé, the [End Page 21] period’s leading French humanist, was the first humanist to publish an exhaustive study of Justinian’s Digest, while the Milanese jurist Alciato and the German jurist Zasius were among the first humanist-trained Roman lawyers to tackle the CIC. Across the century’s first three decades these humanists debated each other and other jurists, including the eminent Orléans professor of Roman law, Pierre de l’Estoile (1480–1537), best known to scholars as the teacher of a youthful law student named Jean Calvin. 3 We consider here a debate between Budé, Alciato, and Estoile, which also involved Nicolas Duchemin, Estoile’s student and partisan, and Calvin himself, who made his first appearance in print by contributing a preface to the work of his friend Duchemin. Though often referred to in Calvin scholarship, the debate has never been thoroughly explored. 4 [End Page 22]Unlike some recent studies of interpretation in the Renaissance, this study focuses on each interpreter’s practice, rather than his explicit methodological pronouncements alone, on what Wittgenstein calls a writer’s “language game”—here the meaning of each interpreter’s statements in the context of his interpretive practices. Indeed we shall view this debate as a clash of three “forms of life,” since the three protagonists could not agree as to what rules to follow to determine the meaning of a particular expression. 5In the passage in question, Lex Nec quicquam, §Ubi decretum, from the Digest section On the Duties of the Proconsul and Legate (D.1.16.9.1), the third century Imperial jurist Ulpian, declares:Ubi decretum necessarium est per libellum id expedire proconsul non poterit: Omnia enim quaecunque causae cognitionem desiderant per libellum non possunt expediri. (Where a decretum [decree] is required, the proconsul will not be able to dispose of the matter per libellum. All matters whatsoever requiring causae cognitio [judicial investigation] cannot be disposed of per libellum.)In unravelling the meaning of such key terms as decretum and libellus, the interpreters applied assumptions and practices rooted in both the humanist and [End Page 23] scholastic traditions—sometimes the same individual applied both. The debate presents the issue of interpretation apart from that of textual recovery, for no participant claimed any passage involved had been corrupted or offered a significant variant. Had they possessed the Mommsen edition of the CIC (albeit without necessarily understanding its principles of construction), each would have faced little added difficulty.I. Guillaume Budé on §Ubi decretumGuillaume Budé sparked the debate with his comments on the passage in the first part of his famous study of Justinian’s Digest, the Annotationes in quattuor & viginti Pandectarum libros (1508). He argued that the term libellus as used in the passage meant a supplicatory petition addressed to the Emperor. The matters involved could include both controversial cases, for which the Emperor would rely on the judgment of his council, and uncontested matters in which Emperors acted by their own “liberality or beneficence.” Budé confined himself to the... (shrink)

L’analyse des juristes médiévaux nous montre comment la manipulation des contradictions déontiques prima facie est associée, dans l’argumentation interprétative, à la théorie de la légitimité de la hiérarchie normative, entendue non seulement comme instrument politique mais aussi et essentiellement comme un instrument de rationalité au sein d’une science juridique orientée vers une théologie politique. La notion de droit naturel telle qu’elle apparaît dans certains documents emblématiques dont le Decretum de Gratien du XIIe s., ne peut être réduite au modèle intellectualiste (...) aristotélo-thomiste du XIIIe s. Il y a plusieurs façons de penser le droit naturel dans le monde médiéval chrétien et latin ; elles se maintiennent sur plusieurs siècles et l’une d’elles au moins a des points de contacts et de désaccord avec les traditions juives et musulmanes. Ces courants de pensée qui s’écartent du modèle intellectualiste aristotélo-thomiste peuvent être regroupés au sein d’une famille (au sens wittgensteinien) de modèles volontaristes : les contradictions déontiques peuvent être plus fortes que des contradictions prima facie, elles peuvent être d’authentiques contradictions renvoyant à un nouvel acte de volonté comme la seule façon d’éliminer la contradiction déontique. La théorie de Duns Scot peut être utilisée comme illustrant le problème d’une approche ontologique volontariste extrême. | Une autre version de cette contribution a été publiée dans Parisoli (2008d : 124–141). (shrink)

In this essay, I compare two pioneer thinkers of the “just war” tradition across cultures: Gratian in the Christian tradition, and Mengzi (Mencius) in the Confucian tradition. I examine their historical-cultural contexts and the need for both to discuss just war, introduce the nature of their treatises and the rudimentary theories of just war therein, and trace the influence both thinkers’ theories have had on subsequent just war ethics. Both deemed just cause, proper authority, and right intention to be necessary (...) conditions for initiating a just war. However, Gratian’s theory has a presumption against injustice whereas Mengzi’s theory has a presumption against war. As a jurist of the Church, Gratian sought to discriminate just from unjust wars, while Mengzi, a moral-political advisor to rulers, was more concerned with avoiding bloodshed and building lasting peace. In addition to examining these thinkers’ respective historical influences, I submit that Gratian’s Decretum and the Mengzi are pioneering in two more senses. First, they offer important clues to understanding how just war ideas were developed very differently in medieval Europe and in premodern China. Second, both embodied features that helped shape their subsequent intellectual tradition, which in turn molded the different legacies of these two works. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Spiritual AuthorityA Christian PerspectiveKarl BaierOne could define spiritual authority as the power to support the opening of the entire universe —and especially of the life of human beings—toward union with the redeeming ultimate reality. Christian tradition knows several holders of this power: God, Jesus Christ, the angels, the saints and priests, spiritual guides, and last but not least each and every Christian and person of goodwill. They all are (...) spiritual authorities and together create a field of liberating power with many interdependent centers. One can conceive of spiritual authority in Christianity as a complex interplay between these various forces. The manifestation of spiritual power through them does not take place for its own sake, or to celebrate the holder of spiritual authority, but to empower other centers. Thus, spiritual power is not private property. It is only real insofar as it is passed on to others. In the field of human spiritual authority, tensions and struggles arise if the flow of authority is blocked by a particular center attempting to monopolize spiritual power for the establishment of an illusionary self-identity.Rather than going into an analysis of the entire field, I would like to take a closer look at one of its facets: “spiritual guides,” those who are acknowledged specialists in helping others to a life in the presence of God. Of course, other centers of spiritual authority will sooner or later also come into the picture, because in the field of spiritual power one authority cannot be understood without the others. Fields of other forms of power and their centers of authority (scriptural authority, political authority, etc.) also influence and partially permeate the field of spiritual authority, but that is a subject for another enquiry.Spiritual Guidance in the History of ChristianityA central socioreligious form of spiritual authority manifests itself within relationships of spiritual guidance, or (to use the common Christian phrase) within spiritual direction. The remaining part of this paper deals with concepts of spiritual direction and ways of understanding the authority of the director in his or her relationship to [End Page 107] the directee within Christian spiritual life. Before looking into the current situation, I will highlight some milestones in the history of Christian spiritual guidance.From late antiquity onward, spiritual authority was accepted within Christian communities as a specific form of authority, quite different from other forms and especially different from the authority of the clergy to lead the Church.The earliest context in which this difference appeared coincides with the beginning of spiritual direction. Spiritual direction in Christianity originated as a monastic concept.1 “Historically it was from the movement of desert monasticism that we received the idea of spiritual direction within the framework of Christian practice.”2 As abba (“father”) and amma (“mother”) ascetics, holy men or women, like the hermits of the Egyptian desert who lived on the periphery of the socioreligious zone controlled by the ecclesiastical hierarchy, functioned as independent spiritual authorities for their fellow monks and nuns as well as for people from further afield who visited the desert to ask for spiritual advice. As one can imagine, the relationship between the two forms of authority was complex, and one can observe tensions and attempts at reconciliation between the authority of the charismatic ascetics and the authority of the bishops, as well as between ascetical ideals taken from monasticism and the pastoral care for lay Christians from the fourth to the sixth century.3The Decretum Gelasianum, an official document dating back to the beginning of the sixth century, assessed that the vitae patrum—the books containing narratives of the lives and the spiritual teachings of the desert fathers—were to be accepted by the Church as valid teaching with all honor (cum omni honore suscipimus). The use of the term “father” in this text indirectly confirms that no ordination was necessary to receive this honorary title and the ministry connected to it. Most of the fathers acknowledged by the Decretum Gelasianum have never been ordained priests.When the desert tradition was superseded by organized monasticism, the charismatic authority of the abba or amma became institutionalized in the form of monastery rules, which functioned... (shrink)

In his Apology of the Church of England as well as many of his other works, John Jewel defended the orthodoxy of the Elizabethan Church on the basis of the following criteria: Scripture, the first four general councils, the writings of the Church Fathers, and the example of the primitive church.1 By emphasizing these authorities, the bishop of Salisbury also sought to impeach the Roman Church’s claim to orthodoxy by arguing that doctrines and practices which developed subsequently to the early (...) church as defined by these criteria contradict them, thereby nullifying its charge of heresy against Protestants while simultaneously indicting the papacy itself as heretical. A question that emerges from studying Jewel’s prodigious polemical works concerns the source of this means of determining orthodoxy. Answering this question requires a close analysis of the apologist’s use of sources. This article will attempt to answer this question by arguing that this criteria for defining orthodoxy derived mainly from canon law tradition that is confirmed specifically by Gratian’s Decretum. This thesis maintains that Jewel’s criteria constituted a form of the ius antiqua with which he attacked the ius novum that provided the authoritative basis for papal supremacy, and in so doing, sought to vindicate the Elizabethan Church’s place in ancient catholic tradition. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Moral Dilemmas in Medieval Thought: From Gratian to AquinasTaina M. HolopainenM.V. Dougherty. Moral Dilemmas in Medieval Thought: From Gratian to Aquinas. Cambridge-New York: Cambridge University Press, 2011. Pp. x + 226. Cloth, $90.00.In this book, M.V. Dougherty challenges the assumption that the medieval period of Western ethical thought has little to say concerning the question of moral dilemmas (while [End Page 138] understanding a moral dilemma generally as (...) “any situation in which an agent cannot fulfill all genuine impending moral obligations” [3]). He aims to show that this is not the case by examining debates on the subject of moral dilemma from the twelfth to the fifteenth centuries. According to medieval terminology, an agent in a moral dilemma is considered to be perplexed (perplexus) or to be suffering from perplexity (perplexitas). Dougherty emphasizes the importance to his study of the ontological and objective sense of perplexitas: an agent is said to be confused in the presence of a genuinely dilemmatic situation. The book deals with the topic through a selection of prominent thinkers from the major schools of the period (e.g. Franciscan, Dominican, and Thomistic).Canon law was the first discipline in which systematic discussion of moral dilemmas took place. Accordingly, in chapter 1 Dougherty discusses two opposing views from the twelfth and early thirteenth centuries that were equally authoritative and conveyed the canon law tradition to later medieval thinkers. Gratian asserts, in his Decretum, the existence of genuine moral dilemmas (through conflicts within natural law itself) and counsels agents in those situations to choose the lesser of two evils. Gratian’s views were commented on by many glossators who argued against him in the Glossa ordinaria, contending that moral agents can fulfill all moral obligations, as the well-known maxim “ought implies can” asserts, and so avoid moral wrongdoing. If an agent finds himself in a perplexed state, it is due to his own culpable negligence, never the result of the disordered moral order.In addition to canon law there were other forums for discussions of moral perplexitas. In chapter 2, Dougherty expands the theme to two influential thirteenth-century summaries of theology: the Summa aurea, authored by William of Auxerre, and the Summa Halesiana, associated with Alexander of Hales. In these, Dougherty thoroughly examines a number of dilemma cases and shows both works concluding that moral agents can find themselves trapped in such situations, with some degree of moral wrongdoing being inescapable. The maxim “ought but cannot” is evident, then, in these works. Further, their concrete advice for agents in a moral dilemma is to apply the principle of choosing the lesser evil, or, as William of Auxerre specifies in certain cases, “what obliges more greatly is to be done”; however, his connection between these two principles seems not so clear: why would the choice of that which obliges more be identified with the choice of a lesser evil?Chapter 3 is one of the book’s highlights. It presents the distinctive medieval moral dilemma position of Raymond Lull (ca. 1232–1316) through an analysis of four of Lull’s own dilemmas in his autobiographical work, Vita coaetanea. Dougherty argues that Lull is opposed to the traditional solution of medieval commentators on Lombard, since Lull did not claim that a judgment of conscience, which dictates something contrary to natural law or a command of God, had to be in error. Lull thinks that the world truly is such a place where agents find themselves in dilemmatic situations from which they are unable to escape by their own powers and therefore are in need of divine intervention (“the Divine Intervention resolution”). Dougherty also argues that Lull implicitly appeals to “the Lesser Evil resolution” in one dilemma case.In chapter 4, Dougherty considers passages from Aquinas’s texts in which agents appear to be perplexed. The aim is to confirm Alan Donagan’s interpretation of Aquinas and to reveal the misinterpretations by contemporary theorists who have claimed that Aquinas accepted the view that innocent agents could find themselves in situations of genuine moral dilemmas. According to Aquinas, all real moral dilemmas are generated by some prior moral failure (past misdeed) on... (shrink)

Medieval theologians took their concept of heresy mainly from the texts of Jerome and Augustine quoted in Gratian’s Decretum. Thomas Aquinas held that anyone w ho pertinaciously denies even a minor item of Church or Bible teaching falls into heresy. Ockham developed criteria for pertinacity and argued that a Christian, even if his or her opinions are actually in error, cannot be regarded as pertinacious simply for refusing to defer to the teaching of a pope.

In lieu of an abstract, here is a brief excerpt of the content:Lorenzo Valla’s Oratio on the Pseudo-Donation of Constantine: Dissent and Innovation in Early Renaissance HumanismSalvatore I. CamporealeWhy did I write about the Donation of Constantine?... Bear one thing in mind. I was not moved by hatred of the Pope, but acted for the sake of the truth, of religion, and also of a certain renown—to show that I alone knew what no one else knew.Valla to Cardinal Trevisan, 1443. (...) 1Lorenzo Valla’s well known work, the Oration on the Falsely-Believed and Forged Donation of Constantine, was written by the humanist in the year 1440. It was occasioned by the strife between Pope Eugenius IV and Alfonso of Aragon over the Kingdom of Naples. Valla wrote in favor of the Ara-gonese claim, arguing against pretensions of the Papacy to determine who should rule Naples that were based on the pseudo-Constantinian Donation. 2 [End Page 9]The Donation of Constantine: History and ForgeryAs is now well known, the Constitutum Constantini was a forgery that probably originated in the papal Curia in the eighth century. Subsequently it was often contested by the anti-papal Germanic Imperial tradition. The Constitutum portrayed the popes as assuming the role of the Emperor in the western part of the Empire as a result of the “donation” made by Constantine to the “Roman Pontiff and his successors.” The Donation was said to have taken place at a time subsequent to Constantine’s seizure of the city of Rome with the victory at the Milvian Bridge in a.d. 312, and immediately after his “conversion” to the Christian faith and his “reception of baptism” by the bishop of Rome, Pope (“Saint”) Sylvester.The Constitutum presents itself as an imperial decree, drafted and signed by Constantine himself, dated in Rome with an ambiguous formulation which could indicate the year 315 or 317 or even 330. The most significant and comprehensive passage of the entire document reads as follows:In order that the supreme pontificate may not deteriorate, but may rather be adorned with glory and power even greater than the dignity of earthly rule, behold, we give over and relinquish to the aforesaid our most blessed Pontiff, Sylvester, the universal Pope, our palace, as has been said, and also the city of Rome, and all the provinces, places and cities of Italy and the western regions, and we decree by this our godlike and pragmatic sanction that they are to be controlled by him and by his successors, and we grant that they shall remain under the law of the Holy Roman Church. 3The forgery was based an on older fictional source, the Legenda Sylvestri. It was later (at least as maintained first by Nicholas of Cusa, then by Valla) introduced by the canonist Paucapalea (Gratian’s disciple and collaborator) into the collection of canon law that had been made by Gratian, the Concordantia discordantium canonum, or Decretum (c. 1140). 4 Assertions that the Constitutum derived from the Legenda and that it was a later [End Page 10] insertion into the Concordantia represent discrete stages of Valla’s philological procedure. In fact Valla’s argumentation evolves in a kind of concentric movement. After discussing the hagiographic “fiction” of the Legenda, he treats the canonical “inauthenticity” of the Constitutum as a later insertion into the Concordantia. Then Valla returns to the notion that it was “made up” or “fictional” when he declares the Constitutum a juridical “forgery.” 5Valla’s Methodology and Argumentative ProcedureThe Oratio—this was how Valla titled his work—is a confutative discourse, rhetorically structured in the epideictic mode, although particular passages also assume forensic and deliberative modes. The oration was written in accordance with rhetorical norms for investigation and argumentation that Valla had learned from and elaborated on the Institutio oratoria of Quintilian, the writer Valla considered preeminent in the rhetorical tradition. 6“This speech of mine,” Valla emphasizes, is a speech intended for and offered to the universal assembly of Christendom. Although directly addressing the Papacy and in particular the ruling pope, Eugenius IV, the “oration” is conceived as though delivered in the presence of both the ecclesiastical hierarchy and civil authorities (“quasi... (shrink)

This article investigates the new attitude toward the reception and use of Augustine in the early thirteenth century as seen in the works of Helinand of Froidmont and Robert Grosseteste. Both scholars were products of the Twelfth Century Renaissance of Augustine, represented in Peter Lombard’s Sentences, the Glossa Ordinaria, and Gratian’s Decretum. Yet both Helinand and Grosseteste reconstructed Augustine’s texts for their own purposes; they did not simply use Augustine as an authority. Detailed and thorough textual analysis reveals that the (...) early thirteenth century was a high point in Augustine’s reception, and one which effected a transformation of how Augustine’s texts were used, a fact often been obscured in the historiographical debates of the relationship between “Augustinianism” and “Aristotelianism.” Moreover, in pointing to the importance of Helinand’s world chronicle, his Chronicon, this article argues for the importance of compilations as a major source for the intellectual and textual history of the high Middle Ages. Thus, the thirteenth century appears as the bridge between the Augustinian Renaissance of the Twelfth Century, and that of the Fourteenth, making clear the need for further research and highlighting the importance of the early thirteenth century for a thorough understanding of the historical reception of Augustine. (shrink)

The famous Epistola Luciferi, written in late 1351 or early 1352, caused quite a stir in the Avignon of Pope Clement vi, quickly became a medieval best-seller, and thereafter remained topical, being copied and printed down to the present day. Traditionally ascribed to Nicole Oresme or Henry of Langenstein, the letter was attributed to the Cistercian Pierre Ceffons by Damasus Trapp in 1957. Trapp merely took Ceffons’ authorship for granted, however, and in the most thorough study of the Epistola Luciferi (...) and of the entire genre of Devil’s letters, her 1982 PhD dissertation, Helen C. Feng rejected the attribution. Presenting codices and works of Ceffons of which Trapp was unaware, this article argues in favor of Ceffons’ responsibility for the Epistola Luciferi, while offering a new critical edition of the letter, an English translation, and a supplemental list of manuscripts and editions. (shrink)