2. DESARROLLO DEL TEMA
2.5. Análisis de resultados
Except in the case of Roman and canon law, the glossators rarely mention the existence of bodies of law different from the ones that they are expounding. This characteristic of leg- al writing changed in the period of the commentators (four- teenth through sixteenth centuries) perhaps as a result of
university-trained jurists' attempting to come to grips with strong customary legal systems in the north of France. Main- stream Italian jurists of the fourteenth century frequently cite differing customs and statutes of the Italian city-states, and when they cannot reconcile them with their learning (which they normally attempted to do), they simply recognize that they are different. Thus, when Bartolus is discussing the same issue about wounding a wild animal that Accursius had attempted to reconcile with the customary law in a way not true to the Roman-law text, Bartolus holds to the obvious meaning of Justinian's (and Gaius') ruling: ‘The Lombard Law, “On hunters,” next-to-last law,35 is opposed [i.e., sug- gested as an authority for reaching a contrary result]. Solu- tion: that law is one thing this law is another, but by custom the opinion of Trebatius is approved’.36
Not only did the commentators acknowledge the existence of differing bodies of law, they also began, at first quite tentat- ively, to explore why there might be such differences. For ex- ample, the fifteenth-century canonist Panormitanus con- siders the difference between Roman law and canon law on the topic of parental consent: ‘Canon law’, he says, ‘con- sidered the freedom of marriage. The civil law, however,
considered the crime of the ravisher37and deception of wo- men’.38 The past tense will be noted; having considered these things, the law became fixed.39
Open acknowledgement of the differences between laws ne- cessitated the creation of a system to deal with conflicts of laws. Bartolus's justly famous repetitio on the imperial consti- tution Cunctos populos (Code 1.1.1) is not only the first ex- tended treatment of the topic, it also makes considerable use of what we would call policy analysis in an effort to determine the legitimate scope of conflicting laws.40
It has recently been argued, correctly in my view, that in at least one place the Bartolan repetitio shows considerable sophistication in comparative analysis.41 Most of the con- flicts with which the repetitio deals are relatively standard ones involving the statutes of Italian city-states. In one ex- ample, however, Bartolus poses a conflict between the ius
commune, with its provision for equal inheritance in intestacy
among children of the deceased, and English law with its system of primogeniture. The relevant variables for determin- ing which law will apply, as Bartolus sees them, are the cit- izenship of the deceased (English or Italian) and the location
of the property (in England or Italy). He then adds one more: ‘The words of the statute or custom are to be carefully ex- amined, for they either make a determination about a thing (circa rem) “The goods of the deceased shall go to the eldest son” … or [they] make a determination about a person (circa
personam): “The eldest son shall succeed”’.42 This distinc- tion has long been criticized on two grounds: first, that the English law was customary and not redacted, and second, that a difference as important as this one should not be made to depend on wording. A statute-making body (or a re- dactor of a custom), aware of this distinction, would always use the personal wording in order to increase the scope of the statute or custom. If, however, we assume that Bartolus was reasonably well-informed about the differences between the English legal system and the Italian ones in his period, and that he phrased the problem in terms of the language of statutes or redacted customs because that is the way his listeners thought about local law, then the distinction may be quite sophisticated. The Italian city-states in Bartolus's period used the Roman system of universal succession. ‘Let the first-born succeed’ to an Italian of Bartolus' period would mean that the first-born was the universal heir, inheriting all
the property and the active and passive of the obligations. He was charged with the responsibility of paying the legacies and frequently also charged with fideicommissa, roughly the equivalent of the modern Anglo-American trust. ‘The property shall go to the eldest son’, by contrast, means just that. Noth- ing is implied about obligations, administration, or trusts. In fact, it is the second alternative that corresponds to the Eng- lish legal system of Bartolus' day. Primogeniture applied only to land and not even to all land.43In short, if we focus not on the wording of the ‘statute’, but on the underlying substantive differences between the English and the Italian systems of succession in Bartolus' day, his distinction may be based on an important comparative insight.
Considerable work that can be regarded as comparative is found in the consilia of the fifteenth- and sixteenth-century Italian commentators that deal with conflicts between the statutes of the Italian city-states and between those statutes and the ius commune. Systematic exploration of these con-
silia is in its infancy. We will have something to say about
them when we consider the better-known work of the sixteenth-century French legal thinkers.44
Contemporary with the commentators, but operating in a de- cidedly different legal tradition is Sir John Fortescue, a mid- fifteenth-century English judge of the Lancastrian party. Fortescue made numerous comparisons between the legal systems of England and France, both in his De laudibus
legum Anglie and in his Governance of England.45The pur- pose of both works, however, was to show how English law and governance were in all respects superior to those of France. Whether one regards Fortescue as a practitioner of the comparative method depends on whether just making comparisons—which Fortescue surely did—is sufficient. One may, however, argue that the comparative method requires more. In particular, it may require an openness to the com- parative process, a willingness to admit that what is on the other side of the comparison is better than what is on one's own side, or—if one does not want to be normative—an openness to seeing that some differences may be more ap- parent than real and that the remaining differences may have quite intelligible explanations. If that is required, then Fortes- cue was not a true practitioner of the comparative method. He made comparisons, but the result of his comparisons was a foregone conclusion: English law was better than French.