In 1245 Canon Law reaches an apex. A Lawyer-Pope Innocent IV proclaims at the Œcumenical Council of Lyons the prestige of Canon Law and his professors. Canon Law is perceived as a new and sometimes controversial ecclesiastical science of power. This new status can be explained by the growth of the ius commune in Italian universities and the rivalries between Roman Law, Canon Law and theology. Innocent IV promotes the figure of the ecclesiastical judge. He (...) also delineates an ecclesiology where the world would be united by an universal religion of Natural Law. (shrink)

Throughout the medieval period law was seen as the product of social groups and associations that formed legal orders, as Max Weber elaborates, "either constituted in its membership by such objective characteristics of birth, political, ethnic, or religious denomination, mode of life or occupation, or arose through the process of explicit fraternization." During the second half of the Middle Ages, roughly the tenth through fifteenth centuries, there were "several distinct types of law, sometimes competing, occasionally overlapping, invariably invoking (...) different traditions, jurisdictions and modes of operation." Types of law included imperial and royal edicts and statutes, canon law, unwritten customary law of tribes and localities, written Germanic law, residual Roman law, municipal statutes, the law of merchants and of guilds, and in England the common law, on the continent the Roman law of jurists after the twelfth century revival of the Justinian Code. The types of courts included various imperial and royal courts, ecclesiastical courts, manorial or seigniorial courts, village courts, municipal courts in cities, merchant courts, and guild courts. Serving as judges in these courts, respectively, were kings or their appointees, Bishops and abbots, barons or lords of the manor or their appointees, local lay leaders, leading burghers, merchants, and members of the guild. These various positions were not wholly separate-many high government officials were in religious orders, while Churches held landed estates that came with local judicial responsibilities. "Bishops, abbots and prioresses, as lords of temporal possessions, controlled manorial or honorial courts at which they sometimes, though not generally, presided in person, exercising responsibility for criminal and customary law." "The result was the existence of numerous law communities," Weber wrote, "the autonomous jurisdictions of which overlapped, the compulsory, political association being only one such autonomous jurisdiction in so far as it existed at all." Jurisdictional rules for judicial tribunals and the laws to be applied related to the persons involved and the subject matter at issue. The personality principle linked law to a person's community or association, and under feudalism property ownership came wrapped together with the right to judge those tied to the property. "Demarcation disputes between these laws and courts were numerous." Jurisdictional conflicts arose especially in relation to ecclesiastical courts, which claimed broad jurisdiction over personal status laws (marriage, divorce, inheritance) and moral crimes, as well as church property and personnel, matters which regularly overlapped with the jurisdiction of other courts. Furthermore, different bodies of law could be applicable in a given court in a given case. "It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, 'It often happened that five mem were present or sitting together, and not one of them had the same law as another.'" In long settled areas, the personal law of communities became local customary law. People living within cities were subject to municipal statutes and customary law on certain matters (penal law, procedural), and the community law to which they were attached. (shrink)

The first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and legal scholar at all levels. The work is divided (...) in two parts. The theoretical part, consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes, accounts for the development of legal thought from ancient Greek times through the twentieth century. The entire set will be completed with an index. Volume 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics 2nd revised edition, edited by Fred D. Miller, Jr. and Carrie-Ann Biondi Volume 6 is the first of the Treatise’s historical volumes and is dedicated to the philosophers’ philosophy of law from ancient Greece to the 16th century. The volume thus begins with the dawning of legal philosophy in Greek and Roman philosophical thought and then covers the birth and development of European medieval legal philosophy, the influence of Judaism and the Islamic philosophers, the revival of Roman and Christian canon law, and the rise of scholastic philosophy in the late Middle Ages, which paved the way for early-modern Western legal philosophy. This second, revised edition comes with an entirely new chapter devoted to the later Scholastics and an epilogue on the legacy of ancient and medieval thought for modern legal philosophy, as well as with updated references and indexes. (shrink)

The meticulous printing at a moderate price of this remarkable work is a credit to the publisher. During the past thirty years M. Gilson has been the greatest single influence upon lay readers in reviving serious interest in the clerical speculation, which for twelve hundred years conscientiously spanned the gap between the collapse of Greek science and Roman law and the late sweep of modern sciences and their secular philosophies. Preoccupation with short-term apologetics after the Reformation increased clerical aloofness (...) from professional science and philosophy and probably increased the non-scholastic’s assumption that the Christian Era was merely a dark or middle age between ancient and modern intellectual life. In fact, early and medieval thinkers gradually confronted their Christian faith and pagan science and against the basso ostinato of secular warfare developed the varied themes of scientific theology and human philosophy, which crystallized into the mature Scholasticism of the thirteenth century. Hence the seventeenth century founders of modern philosophy, as M. Gilson first found à propos of Descartes, started to philosophize from a metaphysical inheritance much richer than the original Greek patrimony, especially in the light it cast upon the reality of God, the origin of the universe in which man lives, the nature and destiny of man himself. To overlook this linking inheritance, is to make modern philosophy less intelligible; while to personally judge its value, we must return to its historical sources. This is the task to which M. Gilson has devoted his pioneering judgment; this work is probably the final synthesis of his scholarship. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an (...) overview of the history of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

Voegelin's magisterial account of medieval political thought opens with a survey of the structure of the period and continues with an analysis of the Germanic invasions, the fall of Rome, and the rise of empire and monastic Christianity. The political implications of Christianity and philosophy in the period are elaborated in chapters devoted to John of Salisbury, Joachim of Flora, Frederick II, Siger de Brabant, Francis of Assisi, Roman law, and climaxing in a remarkable study of Saint Thomas Aquinas's (...) mighty thirteenth-century synthesis. Although _History of Political Ideas_ was begun as a textbook for Macmillan, Voegelin never intended it to be a conventional chronological account. He sought instead an original comprehensive interpretation, founded on primary materials and taking into account the most advanced specialist scholarship—or science as he called it—available to him. Because of this, the book grew well beyond the confines of an easily marketable college survey and until now remained unpublished. In the process of writing it, Voegelin himself outgrew the conceptual frame of a "History of Political Ideas," turning to compose _Order and History_ and the other works of his maturity. _History of Political Ideas_ became the ordered collection of materials from which much of Voegelin's later theoretical elaboration grew, structured in a manner that reveals the conceptual intimations of his later thought. As such, it provides an unparalleled opportunity to observe the working methods and the intellectual evolution of one of our century's leading political thinkers. In its embracing scope, _History of Political Ideas_ contains both analyses of themes Voegelin developed in his later works and discussions of authors and ideas to which he did not return or which he later approached from a different angle and with a different emphasis. _The Middle Ages to Aquinas_ has withstood the test of time. What makes it still highly valuable is its thoroughly revisionist approach, cutting through all the convenient clichés and generalizations and seeking to establish the experiential underpinnings that typified the medieval period. (shrink)

This volume addresses the study of family law and society in Europe, from medieval to contemporary ages. It examines the topic from a legal and social point of view. Furthermore, it investigates those aspects of the new family legal history that have not commonly been examined in depth by legal historians. The volume provides a new 'global' interpretative key of the development of family law in Europe. It presents essays about family and the Christian influence, family (...) and criminal law, family and civil liability, filiation (legitimate, natural and adopted children), and family and children labour law. In addition, it explores specific topics related to marriage, such as the matrimonial property regime from a European comparative perspective, and impediments to marriage, such as bigamy. The book also addresses topics including family, society and European juridical science. (shrink)

This volume surveys 150 law books of fundamental importance in the history of Western legal literature and culture. The entries are organized in three sections: the first dealing with the transitional period of fifteenth-century editions of medieval authorities, the second spanning the early modern period from the sixteenth to the eighteenth century, and the third focusing on the nineteenth and twentieth centuries. The contributors are scholars from all over the world. Each 'old book' is analyzed by a recognized (...) specialist in the specific field of interest. Individual entries give a short biography of the author and discuss the significance of the works in the time and setting of their publication, and in their broader influence on the development of law worldwide. Introductory essays explore the development of Western legal traditions, especially the influence of the English common law, and of Roman and canon law on legal writers, and the borrowings and interaction between them. The book goes beyond the study of institutions and traditions of individual countries to chart a broader perspective on the transmission of legal concepts across legal, political, and geographical boundaries. Examining the branches of this genealogical tree of books makes clear their pervasive influence on modern legal systems, including attempts at rationalizing custom or creating new hybrid systems by transplanting Western legal concepts into other jurisdictions. (shrink)

This book reveals how the medieval papacy grew from modest beginnings into an impressive institution in the Middle Ages and deals with a wide field. It charts the history of the papacy and its relations to East and West from the 4 th to the 12 th centuries, embraces such varied subjects as law, finance, diplomacy, liturgy, and theology. The development of medieval symbolism is also discussed as are the view of eminent political scientists of the period. This (...) re-issues reprints the revised, 3rd edition of 1970. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Rhetoric, Hermeneutics, and Translation in the Middle AgesMichael CalabreseRhetoric, Hermeneutics, and Translation in the Middle Ages, by Rita Copeland; xiv & 295 pp. Cambridge: Cambridge University Press, 1991, $64.95 cloth, $22.95 paper.In this deeply learned book, Rita Copeland studies the history of rhetoric and grammar and their shifting roles in the history of translation, commentary, and interpretation from classical antiquity through the (...) class='Hi'>Middle Ages. Copeland examines the ideological nexus of history, authority, and power in which commentary and vernacular translation function. “Vernacular writing,” she says, can “authorize itself by taking over the function of academic discourse” (p. 8). Her book then traces the history of this “authorization” and this “dis-placement” of Latin sources by the increasingly academically privileged vernacular. All in all, Copeland tells the story of how medieval literary culture articulated its translatio studii by confronting and preserving its Classical inheritance and also developing a role for the vernacular as an active, creative agent in the production of authoritative works. [End Page 413]Ultimately “rhetoric” is the star of Copeland’s book, and in essence she is telling its Roman and medieval life stories. By “rhetoric” we are to understand critical academic language that points toward ethics and practical action. Throughout the Middle Ages every modification or appropriation of critical tools expands the role of commentary and adds new forms of interpretive invention to the translation process. As Copeland puts it, “The medieval practice of translation as a form of appropriation and substitution will be conditioned, as in Roman contexts, by rhetorical theories of invention” (p. 36).The hermeneutical costar is grammar, for as part of the complex appropriation of classical practice, medieval readers recoup the “debased” Roman category of grammar, so that by the time of Martianus Capella it can “claim for itself the whole compass of literary activity” (p. 56). As grammar expands its power, so does rhetoric, a civic Roman art which gets “revalued in terms of service to theology” (p. 59). Medieval commentary now “assumes the character of rhetorical performance” (p. 86) and takes on a “primary productive character,” as it “continually refashions the [studied] text for changing conditions of understanding” (p. 64). What is emerging from all these developments is a medieval translation theory—and practice—which is informed by both academic and practical, ethical goals, that is, a hermeneutics forged by the link of grammar and rhetoric.The rest of the book studies the shifting status and the evolving role of the vernacular in this medieval hermeneutical drama. Copeland addresses the Ovide moralisé and the French translations of the Consolatio, and then Chaucer’s Legend of Good Women and Gower’s Confessio Amantis. We witness here how vernacular products take on authority by “inventing themselves” through authoritative discourse. In Gower’s Confessio we see the fusion of hermeneutics and rhetoric; the poem uses academic modes of discourse in the service of ethics or action. We thus see that by the late Middle Ages vernacular literature plays an authoritative role in the medieval translatio studii, as Gower seeks to “open the institution of learning to the widest possible audience and thereby empower it as a persuasive tool, leading to knowledge of the good” (p. 220). Overall, Copeland has told the story of the “leveling” of academic and vernacular discourse, so that the later, while not dispelling or overthrowing the former, can claim access to its traditional authority.Copeland’s prose is Latinate, at times pedantic and, at times, just plain Latin; reading the book can be a wearing experience. But it is all part of a history she knows in remarkable detail, a history that lies behind many assumptions we have about medieval ethical poetics. To have presented this history is a major scholarly feat. Copeland allows us to see medieval authors as both products and producers of methods of appropriation, imitation, conquest, and preservation—all strategies for “translating” the past and creating a present that can leave its intellectual mark on the future. One might now want to employ Copeland’s history of classical and medieval hermeneutics as a tool for [End Page 414] examining our own, contemporary academic rhetorics and for analyzing the “state of... (shrink)

The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, taken as a name (...) for threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)

This paper traces back the sources of our present legal system and of market economy to Medieval Europe which itself benefited from Hellenistic and Roman legal culture and commercial practices. Roman provinces placed Rome in the wider Greek cultural and commercial world. If Aristotle was already transcending the narrow polis-based conceptions of his predecessors, after him Hellenistic Civilization saw the emergence of a new school of philosophy: Stoicism. The legal thought in the Latin West will (...) hence be characterized by Cicero’s writings and its Stoic sources. The Roman legal system was similar to the later northern European customary law and the English common law; Roman law was evolutionary and customary. The rise of Western individualism, whether it dates back to St. Augustine in the fifth century, or to the two Papal Revolutions of Gregory I (establishing the nuclear family as the core of individualism) and of Gregory VII, also played a crucial role in shaping the western legal tradition. The paper describes the main forces that led to this second (Gregorian) revolution. Monasticism is one of them. Benedictine monasticism plaid a leading role in the Peace of God Movement. Hence collective oath-taking by groups in the name of peace was essential in the founding of cities and in the formation of guilds. Europe’s economic resurgence in the Eleventh Century was on the basis of the creation of the rule of law by the Peace of God movement. This movement also allowed for Europe’s agricultural economy to progress. Indeed, the European Middle Ages is one of the major periods of technological innovation in the history of the world. The Gregorian Revolution itself was supported and financed by the Commercial Revolution: Italian bankers sustained Papal reformers against the Emperors. The independence of the Italian cities and provinces reveals one of the most important consequences of the Gregorian Revolution: the polycentricism of Western Europe. This Revolution also witnessed the first large number of political pamphlets in European history; the Gregorian clergy emphasizing a compact theory of government. Soon after, the order of Cistercians was founded (1098) and underwent spectacular growth during the next two centuries. The Cistercians accepted no rents or labor services from feudal donors but would take only full possession of land to do with it as they wished.These monasteries were the most economically effective units that had ever existed in Europe, and perhaps in the world, before that time. Finally, the Magna Carta (1215) that will be so influential on modern political thought can be seen as a direct consequence of the Gregorian Revolution. (shrink)

This book compares the respective concepts of the law of nations put forward by the Spanish theologian Francisco Suárez and by the Dutch jurist Hugo Grotius. This comparison is based on the fact that both thinkers developed quite similar notions and were the first to depart from the Roman conception, which persisted throughout the entire Middle Ages and the early Renaissance. In Rome, jus gentium was a law that applied to foreigners within the Empire, and one which was (...) often mistaken for Natural Law itself. These two features can be found even in the works of writers such as Francisco de Vitória and Alberico Gentili. In Suárez and Grotius, the law of nations is applicable to an extra-national domain and inarguably becomes positive law. Yet, it also contains an ethical element that prevents it from transforming into a mere reflection of state interests. This work argues that this resemblance is hardly a coincidence: Grotius has read Suárez, and that influence has modified the foundations of his early thoughts on jus gentium. This should not be taken to imply that the Dutch jurist wasn't original: in both authors, the definition of the law of nations pursues his own internal logic. Nevertheless, Suárez's oeuvre allowed Grotius to solve a fundamental problem touched on in his early writings that had remained unanswered. Accordingly, his oeuvre promises to clarify one of the most significant moments in the History of International Law. (shrink)

Marital and family structures, together with the closely related areas of gender relations and attitudes to sexuality, constitute one area in which scholars have suggested medieval England clearly differs from other regions. It is always difficult to compare across regions when the nature of the evidence differs; but because marriage and sexual behavior were under the jurisdiction of the church courts and because the ecclesiastical court system used the same set of legal rules across Europe, one level of difficulty (...) disappears from a comparison. Records from different regions reflect somewhat different procedures or penalties, based on local synodal statutes, but are more commensurable than records of the secular courts, which did not depend on a common set of rules. Basic principles of canon law were universally accepted in western Christendom: marriage was formed by the consent of the parties; marital promises followed by sexual intercourse created an indissoluble marriage; and any extramarital sexual activity by either a husband or a wife was adultery. An examination of church court records from late-medieval Paris compared with better-known records from England suggests that differences between England and northern France in the understanding of sexual behavior and the formation of unions, while they reflect different approaches, were still addressing fundamentally the same issues, and the demographic patterns may not have been as different as scholars have assumed. (shrink)

Law and History contains a collection of essays by prominent legal historians, which explore the ways in which history has been used by lawyers past and present to answer legal questions. In common with earlier volumes in the Current Legal Issues series, it seeks both a theoretical and methodological focus. This volume covers a broad range of topics, from a discussion of the nature of norms in the middle ages to the role of war (...) crimes trials in the twentieth century. It includes wide-ranging historiographical discussions, which examine the nature and aims of the legal historian, as well as contributions which explore the methodology and aims of writers such as Coke, Maine, Weber, Montesquieu, and Kames, who sought to use historical models to explain law. A number of contributions examine developments in legal doctrine, particularly in the nineteenth century, including developments in the law of contract, administrative law, and perjury. These raise important questions about the nature of the legal categorizations which developed in that era. Law and History also includes a collection of contributons on the use of history in twentieth century trials, including the Nuremberg trials, the trial of the Gang of Four, and trials arising from the events in the former Yugoslavia and Rwanda. (shrink)

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)

In the late thirteenth century, western Europe suffered the notable disgrace of losing the last of the Christian strongholds in mainland Syria with the fall of Acre in 1291, and yet throughout the early fourteenth century Western powers were unable to launch a crusade to recover the Holy Land despite repeated and costly attempts. Until not long ago, historians of the crusades had interpreted the inaction of the fourteenth century as a sign that the age of true crusading was over (...) and that both disillusionment with the machinery of the papal indulgence and increasing local strife effectively removed the possibility of international cooperative action that a crusade to the Holy Land required. Recent scholarly work on the late Middle Ages has shown that this interpretation ignores both historical reality and late-medieval attitudes toward crusading. Acre's loss in many respects crystallized issues regarding crusade reform, and, though no new crusade to the Holy Land ever materialized, crusading in its various guises experienced renewed vitality throughout the fourteenth century—notably in Iberia, Italy, and the Baltic—in spite of the ravages of the Black Death, the suppression of the Templars, the collapse of prominent Italian banking houses that supported crusade finance, and the Anglo-French conflict. While the Holy Land may have remained in heathen hands, crusading remained a diverse, multifaceted, and vibrant set of practices that continued to be contested and redefined by various social groups despite the papacy's sophisticated descriptions of it in papal bulls and in canon law. In this study I hope to facilitate interdisciplinary discussion of crusade theory and practice by examining literary evidence—specifically, the Middle English romance Sir Isumbras—with a more broadly conceived notion of crusade discourse that includes connections among propaganda, chronicle, religious ritual, and popular romance. As I argue, Sir Isumbras critiques certain knightly behavior following Acre's loss and at the very least imagines, if not outright promotes, crusading reform and action for a mixed audience of lesser knights and non-nobles. The topicality of the poem's critique, however, is fully intelligible only when considered in light of other facets of crusade discourse; hence, I discuss below how features of popular fourteenth-century crusading movements, chronicle histories, and literary history are appropriated and reconfigured by the text. By reading these various sources as part of a connected, evolving discussion, we effectively expand our definition of the genre of the crusading romance in a way that not only incorporates historians' recent insights regarding the range of crusading practices but also reveals that crusading's personal and political aspects, in addition to its mass military campaigns, continued to shape a complex medieval outlook that found literary expression. (shrink)

The dominant and deceptively simple theme of this book is the relationship between the moral environment of the courtroom and that of the society in which the court is situated. Like other Past and Present conference proceedings, the volume ranges widely across time and space, from ancient Greece to twentieth-century Africa. As a consequence, it encompasses not only the highly professional legal systems of the Roman, later medieval and modern worlds, but also the relatively unprofessionalised courts of classical (...) Athens and of the early middle ages and the alien, imposed legal systems of colonial Rhodesia and Kenya. The Moral World of the Law is based upon papers delivered at the conference of that name, sponsored by the journal Past and Present and held at the University of Birmingham in 1996. (shrink)

The present volume, a tribute to Harry Dondorp, contains contributions to the symposium held on the occasion of his farewell at the Vrije Universiteit Amsterdam. Written by four eminent scholars in the field of legal history, the contributions are related to his areas of interest: delictual liability, Romano-canonical procedure and comparative law texts. The contributors are Wolfgang Ernst, David Ibbetson, Yves Mausen and Andreas Thier. The introductory words are by Eltjo Schrage, Jan Hallebeek and Hylkje de Jong.

While the study of legal history grew up largely within the confines of the legal profession, it was equally the offspring of Renaissance humanism. Legal humanism, a branch of philology developed by lawyers rather than historians, laid the foundation for the study of legal, institutional, and even some social history. These lawyers based their work on the humanist method of critical reading of original sources, but soon realized that a truly historical view of law (...) also required a systematic understanding of jurisprudence. Their method led them to explore canon and feudal as well as Roman law. Although the legal humanists had no intention of allowing the science of law to be governed by the liberal arts, they did professionalize the study of legal history and thus reshaped historical scholarship in general. This experience demonstrates the importance of interdisciplinary work in history. (shrink)

One clear indication of the increasing use of the written word in western Europe from the twelfth century onwards was the compilation of an unprecedentedly diverse and numerous body of legal texts. In part, the growing textualization of law built on earlier foundations. This was particularly true of Roman law, whose rediscovery in Italy in the late eleventh century led to a revival in the study of law. At the same time, the expansion of papal power from the (...) second half of the eleventh century accelerated the production of new collections of canon law, whose compilers sought to impose order upon a mass of written law going back to the earliest councils of the church and also to integrate contemporary additions to that law resulting from conciliar and papal legislation. Yet the diversification of legal writing also owed much to the compilation of texts of secular customary law, in both Latin and the vernacular. In some societies, such as Iceland and Scandinavia, these texts marked the beginning of written law; in others, including England, France, Germany, and, above all, Italy, where law and legislation had been written earlier in the Middle Ages, the custom of particular kingdoms or provinces was committed to writing in new forms with the compilation of coutumiers. Although their relationship to earlier Welsh legal writing is unclear, the lawbooks of medieval Wales provide a further instance of this textualization of secular custom. (shrink)

Ex interiore ipso exeas. Preface. This book reconstructs the history of a still open dialectics between several ethoi, that is, shared codes of unwritten rules, moral traditions, or self-aware attempts at reforming such codes, and ethical theories discussing the nature and justification of such codes and doctrines. Its main claim is that this history neither amounts to a triumphal march of reason dispelling the mist of myth and bigotry nor to some other one-way process heading to some pre-established (...) goal, but instead to a chain of controversies where the partners’ will to win unintentionally yields a wealth of insights on human existence that has still something to teach us. -/- 1. The Hellenic moral tradition. -/- Two different traditions of morality in vi-v century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. -/- 2. Plato and the Good. -/- Plato’s own reformulation of Socrates rejoinder to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 3. Aristotle and practical philosophy. -/- Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistency in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The relationship of individual ethics, or ‘monastics’, with the art and the science of the pater families, or ‘economics’, and the science of the ruler and citizen, or politics, is illustrated. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexes, or ‘dispositions’. Prudence, or better, practical wisdom, is the focus of the chapter. Its relationship with boùleusis or deliberation is discussed, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 4. Cynics and Stoics: ethics as therapy. -/- The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. The various phases of Stoicism are described, and the shifting place that was given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. The peculiar character of the Epicurean school is described, a combination of the science of well-being aiming, more than pleasure understood as in the popular view, the reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Roman and Imperial Moralists. -/- The chapter is dedicated to the reconstruction of a particular kind of literature, whose specific features have long been under-stressed, namely the Roman and Imperial moral literature. Cicero is treated at some length, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is given pride of place, stressing the novelty of his approach to ethics as cognitive therapy, in this case just following an already existing new wave of interest after nineteenth-century oblivion justified by alleged lack of authentic ‘philosophical’ character. -/- 6. The Hebrew moral tradition. -/- A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torah (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Levitic is stressed as the turning point when the stress on mercy, typical of the Prophetic tradition, starts being combined with legal tradition yielding the change in the sensibility of the Second Temple time. -/- 7. Second Temple Judaism. -/- This chapter describes the Long March leading from the post-exile Zadokite restoration to the first-century aevi vulgaris. The first topic reconstructed is the Zadokite theology of the double retribution. The second is the alternative Enochic tradition consistently rejecting the central role of the Temple, the Priesthood and worship as atonement for sins and offering as an alternative God’s unlimited mercy and preaching mercy, not sacrifice as the way of behaving requested by God. Wisdom literature, the third subject discusses, is a kind of third way, on the one hand increasingly critical towards the double retribution and ruling theology’s optimism facing the world as it is and on the other mocking at the Enochic current as a band of dreamers and visionaries. The third way consists in disenchantment facing the word as it is combined with a refusal of vain and childish hope of prizes for the righteous, suggesting instead the leading idea of right deeds for righteousness’s sake. Rabbi Hillel, Rabbi Yeshua and Philo of Alexandria are described as the three leading figures at the culminating point of such process of emergence of a new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This starting point consists precisely in the precept of one’s neighbour’s love or of the golden rule, whose meaning is, arguably, more consistent than a long-lasting Christian tradition deriving from John and Augustine made us believe. And Christian morality, vis-à-vis allegedly legalist ‘Ancient Testament’ teachings, is less of a novelty than most early Christian writers announced. -/- 8. Talmudic moral doctrines and proto-Christian paraenesis. -/- The first three sections examine the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirke Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deot, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexes and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was "the tool by which the world was built"; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous, but deeds are the inevitable effect of either faith or learning. The last two sections examine first the various Christian currents and then Gnostic para-Christian or non-Christian currents as well as Manicheism. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure, purest Judaism. The last section describes briefly the galaxy of Gnostic currents and Manicheism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. -/- 9. Christianity as “philosophy”. -/- The chapter reconstructs the stormy story of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and several rhetorical topics from the Stoic and Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua himself had been influenced by cynical preachers, is a proof of the necessity to translate the original Christian message in a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 10. Ethics in the Arabic-Islamic Philosophy. -/- The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on the retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince, had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries, a war raged among theologians and philosophers, finally won by the former with the disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 11. Ethics in the Jewish philosophy. -/- The encounter between the Talmudic tradition and Hellenic philosophy had taken place for the first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed too a few traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Tora and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirke Avot could be translated. -/- 12. The practical philosophy revival in Latin Europe. -/- A reconstruction is carried out of a fresh start of philosophical ethics in Latin Europe at the turn of the Millennium rescuing a Platonic and Augustinian legacy, with Anselm and Peter Abelard. In this phase remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions, gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of a full legitimization of natural morality, i.e. ethics without Revelation. -/- 13. Scholastic practical philosophy: Thomas Aquinas. -/- Aquinas’s ethics is theological ethics out of which it would be vain to try to extract self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to the repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave pure nature incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too ambitious, and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Prima Secundae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas was able to solve the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from the knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethics, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of the death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not the Thomist ethical theory. Finally, Thomas’s ethics is no way an ethical ‘absolutism’, as both the traditionalist Catholic theologians and secularists tend to believe, but rather an ethic of prudential judgment on the individual case. Exceptions to this approach – or better the result of logical fallacies – are provided by the thesis of the absolute character of negative precepts and of the existence of so-called intrinsically evil acts, a thesis that would simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences that Thomas did not live long enough to draw. -/- 14. Scholastic practical philosophy: John Duns Scotus and William of Ockham. A reconstruction is carried out of the ethical doctrines by both most authoritative Franciscan doctors. Their continuity with Aquinas is vindicated against prejudice carried by centuries of polemics within the Catholic Church and tendentious disparaging of both as forerunners of execrable Reformation. Besides aspects of continuity, also the important novelties are illustrated, first John’s abandonment of Aquinas’s and Augustine’s eudemonism, asserting righteousness for righteousness’s sake, and then William’s explicit defence of the philosopher’s virtues, that is, natural morality, and his solution to the dilemma of God’s omnipotence and the universal validity of natural law extending to God himself. -/- 15. Aristotelianism interpreted by the Magistri Artium. -/- A reconstruction of the until recently forgotten ethical doctrines by the Parisian Magistri Artium, falsely depicted as ‘Averroists’ and either deprecated as heretics or mistaken for predecessors of modern secularism. In fact, they illustrate a view of ‘natural’ virtue as may be understood by human reason without the assistance by Revelation. -/- Etiamsi daremus Deum non esse. Intermediate considerations. Three considerations may be suggested by the story told in the book. The first one is that intellectual histories have been mounted in the past with the same state of mind as one may mount a war chariot. Such constructions are not very helpful as tools for understanding the past. Wars waged in the past have left the field obstructed by ruins not easy to remove even by those historians who have animated by an impartial academic motivation. They have been influenced too by consequences of past emphasis on some authors and damnatio capitis suffered by others, by stratifications left on sources by secondary literature and translations, by allotment of originally close sources to different literary genres, by the monopolization of religious texts by churches with full cooperation by secular scholars who still fear contamination. The second one is that aware or unaware ethnocentrism has carried various calamities to our comprehension of the past. Their last vestiges have surfaced again in the semi-scholarly discussion on the idea of Europe occasioned by the debate on a project of a European Constitution. Mention of Europe’s Christian roots has been the clumsiest move. Proclamations of such roots were so obvious in what they affirmed as they were totally off-path concerning what they omitted, namely that he modern European moral tradition included legacies from Middle-Eastern wisdom, Hellenic philosophy, Roman Imperial legal literature, and, besides, a Jewish legacy in turn incorporating other more ancient Middle-Eastern legacies and which has been partly conveyed by Christianity. And the Islamic-Arabic philosophy too, in so far it made the Nicomachean Ethics available to Latin Christian scholars, is one more of Europe’s roots. The third is that religious traditionalists and secularist fundamentalists have gone hand in hand for a couple of centuries in either extolling or deprecating the allegedly Modern idea of Ethics without God, first formulated by Hugo Grotius with the claim that natural law would still be valid ‘etiamsi daremus – quod sine summo scelere dari potest – Deum non esse’. The facts are, firstly, that this is not an irreligious claim and Grotius was just a pious and meek Christian and, secondly, that it is not a ‘modern’ claim but rather one more formulation of the claim that there is a natural morality, independent of divine revelation, a claim shared by Moshe ben Maimon, Aquinas and William of Ockham. -/- . (shrink)

Hailed by The New York Times as "tantalizing" and "learned," A History of Western Morals brings together an impressive range of knowledge of Western civilization. From the ancient cultures of the Near East, through the Ancient Greek and Roman worlds, to the Middle Ages, the Reformation, the Renaissance, the Age of Reason and the twentieth century, Crane Brinton searches human history for the meaning of ethics. A History of Western Morals raises controversial conclusions about (...) the value of religion in society, the practices of sex, the nature of crime and the possibility of progress. (shrink)

Some legal historians are startled by the fact that Grotius was able to develop a new theory of res communes omnium and mare liberum by using antique ideas whereas these ideas were known in philosophy and jurisprudence throughout the Middle Ages. This contribution shows that Grotius's theory of res communes omnium was innovative only because he developed a new concept of ownership and placed it within a new framework of ius naturale. Both new concepts, ownership and ius naturale, (...) had their predecessors in medieval theology and the jurisprudence of the Spanish Scholastics, but it was Grotius who merged them to a consistent new theory. This theory of res communes also enabled him to reconcile it with both the Roman legal sources and with contemporary practical needs. (shrink)

The ArgumentThe study of pain in a historical context requires a consideration of the cultural context in which pain is sensed and expressed. This paper examines attitudes toward physical pain in the later Middle Ages in Europe from several standpoints: theology, law, and medicine. During the later Middle Ages attitudes toward pain shifted from rejection and a demand for impassivity as a mark of status to a conscious attempt to sense, express, and inflict as much pain as possible. (...) Pain became a positive force, a useful tool for reaching a variety of truths. While this attitude stemmed from the religious wish to identify with Christ's passion, it permeated and affected all spheres of cultural expression and investigation. Late permeated and affected all spheres of cultural expression and investigation. Late medieval medicine accepted pain, trying to relieve it only when it became dangerous to the patient. Given the existence of analgesic medicines at the time, this attitude is comprehensible only within the cultural context of the period. (shrink)

Pierre Duhem is the discoverer of the physics of the Middle Ages. The discovery that there existed a physics of the Middle Ages was a surprise primarily for Duhem himself. This discovery completely changed the way he saw the evolution of physics, bringing him to formulate a complex argument for the growth and continuity of scientific knowledge, which I call the ‘Pierre Duhem Thesis’ (not to be confused either with what Roger Ariew called the ‘true Duhem thesis’ as (...) opposed to the Quine-Duhem thesis, which he persuasively argued is not Duhem’s, or with the famous ‘Quine-Duhem Thesis’ itself). The ‘Pierre Duhem Thesis’ consists of five sub-theses (some transcendental in nature, some other causal, factual, or descriptive), which are not independent, as they do not work separately (but only as a system) and do not relate to reality separately (but only simultaneously). The famous and disputed ‘continuity thesis’ is part, as a sub-thesis, from this larger argument. I argue that the ‘Pierre Duhem Thesis’ wraps up all of Duhem’s discoveries in the history of science and as a whole represents his main contribution to the historiography of science. The ‘Pierre Duhem Thesis’ is the central argument of Pierre Duhem's work as historian of science. (shrink)

This book is a study of an important revolution in the history of thought, a break-through on the twin fronts of law and history in which the outstanding campaigner, on both fronts, was Jean Bodin. Roman law was, from its revival in the eleventh down to the beginning of the sixteenth century, studied and interpreted in a very literal and textual fashion; it was assumed that the Codification of Justinian included all the legal wisdom there was (...) and that the function of the glossator was simply to show it forth. The sixteenth century philologists, led by Budé, raised serious doubts. And by the middle of the same century there was not merely a demand for a proper philological study of the texts but for a systematization of the vast mass of legal disposition that constituted the Corpus Iuris Civilis—jus in artem redigere. The result was an undermining of the authority of Roman law and a realisation that, while it might be an incomparable store of legal wisdom, there was no good reason for thinking that it was the only, or the best, system for actual conditions in sixteenth-century France. French customary law, which by now had been written down, was clearly adapted to the needs of the time in a way that Roman law never could be. This may seem obvious; but the realization of the obvious took time. And Bodin’s importance lies in his working out of a three-pronged comparative approach in his exposition of jus gentium, his comparative jurisprudence and his sociological theory of legal history. The stages in this revolution are fully documented by Professor Franklin in the first part of his book. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Images of Ancient Rome in Late Eighteenth-Century Neapolitan HistoriographyMelissa CalaresuThe case of the late Neapolitan enlightenment, the variety and sophistication of which has been little recognized outside of Italian scholarship, illustrates the significance of particular regional concerns and intellectual traditions in the development of enlightened movements in Europe. 1 This becomes apparent when examining how Neapolitans looked to their own past in relation to the unique set of political (...) and social problems of the Kingdom of Naples. In this article I shall examine a number of historical writings published in the 1780s. This was a decade of intense intellectual activity which saw the publication of the defining works of the later Neapolitan enlightenment, such as Gaetano Filangieri’s Scienza della legislazione from 1780 and Francesco Mario Pagano’s Saggi politici between 1783 and 1785. 2 It was also the decade in which Giuseppe Maria Galanti’s Storia filosofica e politica delle nazioni antiche e moderne [End Page 641] introduced in translation important texts of the British and French Enlightenments, and the journal Scelta miscellanea briefly became an important focal point of collaboration and intellectual exchange for reform-minded intellectuals in Naples. 3 The impetus which bound together these many projects of the 1780s was twofold: on one hand, the growing awareness of the particular problems of Neapolitan society and of the urgent need for reform, expressed through the language and concerns of the wider enlightened movement; and at the same time a revived sense of a distinct cultural and political identity. The writing of history, even of the most remote age, did not escape these concerns.The cultural renewal of the 1780s brought new histories of the Kingdom, and in these Rome played an essential role. As Naples’s most powerful neighbor in ancient times, Rome defeated the Samnites, the tribe which had inhabited the Kingdom, and brought the region under Imperial control. From the Middle Ages the universal pretensions of the Roman papacy had continually threatened the temporal authority of Neapolitan rulers, and the symbol of these pretensions had survived into the eighteenth century with the offering each year of a feudal homage, the Chinea, to Rome. It was against this threat which Pietro Giannone’s anti-clericalism in the Istoria civile del Regno di Napoli (1723) was directed. 4 The symbol of Rome, ancient and modern, served as an effective foil for Neapolitan intellectuals who believed that the development of good government in the Kingdom had been frustrated by the interference of outside powers.This interference was perceived as having broken the natural bond between the rulers of Naples and their subjects. The Spanish viceroys already had an established and especially reviled place in this history of misgovernment in Naples. 5 The arrival of Charles III in 1734 and the establishment of an autonomous monarchy in the Kingdom broke this history and brought a new optimism for the possibility of reform. As regalisti, the reformers of the end of the [End Page 642] eighteenth century continued their efforts to strengthen the jurisdictional rights of the now autonomous Bourbon monarchy against both the Papacy and the feudal nobility within the Kingdom. 6 Within these historiographical and political traditions Rome was clearly recognized as a recurring symbol of oppression and obstacle to Naples’s sovereignty, and late eighteenth-century historians looked back to a period before the arrival of the ancient Romans to find a native tradition which could inform contemporary reform and upon which a cultural identity could be constructed.Italian writers, from the Renaissance, had charted the early history of the various city-states, duchies, and kingdoms in the Italian peninsula relative to the rise and fall of ancient Rome. Despite the local patriotism which these histories expressed, Rome remained a powerful symbol and model of civilization, and it was from such a model that both politics and culture were discussed and compared in Europe. Consequently, interest in pre-Roman Italy most often related to the reconstruction of the origins and early history of Rome, and it was towards this which most antiquarians and historians worked in their attempts to understand the causes for its rise. 7 In any case antiquarian interest in pre-Roman... (shrink)

French legal culture, from the Middle Ages to the present day, has had an impressive influence on legal norms and institutions that have emerged in Europe and the Americas, as well as in Asian and African countries. This volume examines the lives of twenty-seven key legal thinkers in French history, with a focus on how their Christian faith and ideals were a factor in framing the evolution of French jurisprudence. Professors Olivier Descamps and Rafael Domingo (...) bring together this diverse group of distinguished legal scholars and historians to provide a unique comparative study of law and religion that will be of value to scholars, lawyers, and students. The collaboration among French and non-French scholars, and the diversity of international and methodological perspectives, gives this volume its own unique character and value to add to this fascinating series. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Individualization of Crime in Medieval Canon LawVirpi Mäkinen and Heikki PihlajamäkiIn The Mourning of Christ (c. 1305, fresco at Cappella dell'Arena, Padua, Italy), Giotto di Bondone (c. 1267-1337) depicts the Virgin Mary embracing Christ for the last time after he has been taken down from the cross. Whereas his predecessors in the devotional Byzantine tradition concentrated on flat, still figures, Giotto emphasizes their humanity and individuality. The (...) grief on the Virgin's face is touching and convincing but in a slightly different way than the sorrow experienced by St. John or the other accompanying figures. Even the ten angels following the scene seem to grieve for the Redeemer in their own personal way. The individuality of Giotto's figures may not seem much if we compare it with the seventeenth-century Flemish masters. Giotto's Virgin and her company still show a restraint in their grief which does not seem entirely natural. In late medieval art, however, Giotto's approach was fresh and new, reflecting a trend toward individualization which was not peculiar merely to art but was taking over many other areas of late medieval life as well. Philosophy, theology, and law—the medieval scientiae—were all putting increasing emphasis on the rights and responsibilities of the individual.Nor does this trend leave criminal law and the law of evidence untouched. The medieval development of law was just as revolutionary as the development of other branches of knowledge. Starting in early twelfth-century Bologna, the Corpus Iuris Civilis became an object of systematic academic research and teaching for the first time in history. The development of canon law was perhaps even more striking. Positive, enacted law first became not only an object of academic studies but also an instrument of social engineering in the domain of church law. The hierarchical structure of the worldwide Catholic Church was built and run in conjunction with positive, enacted legislation.1 [End Page 525] The development of criminal law was just as innovative as the changes that took place in other branches of law, with canon lawyers taking the lead. Aspiring for universal power and competing for it with secular rulers, the Church was in need of an efficient system to control disobedient priests and monks and suppress heretical movements.2 The traditional system of criminal control was clearly not sufficient. Canon law, making use of the contemporary trend toward increased individualization in theology, philosophy, and Roman law, was developed to meet the church's need to master the situation.One of the most important and influential developments in thirteenth-century criminal law concerned the individual's criminal intention and responsibility. Before the change criminal responsibility was mainly based on the consequences of a crime. The canon lawyers began to determine different modes of subjective responsibility. In the law of criminal evidence the individual was also shifted from the margins to the center of attention. Earlier criminal evidence had been produced from sources external to the individuality of the defendant, such as oaths, compurgators, and ordeals. In the thirteenth century and with the development of the so-called statutory or legal theory of proof, increasing attention was paid to the stories of both the defendant (in the form of confessions) and the witnesses. The development of criminal law and criminal procedure in the thirteenth and fourteenth centuries can be understood in the context of the simultaneous trend toward individualization that took place in moral philosophy and theology as well as in canon law.3 These connections are not the only way of understanding the modernization of canon criminal law, for the prevailing view sees the transformation in conjunction with the twelfth-century hierarchization and centralization of church bureaucracy. The particular form that the criminal law and law of proof assumed in these changes did not arise out of a vacuum but, however, has to be understood in relation to the neighboring fields of thought.The Human Will and the Individual in Medieval Moral PhilosophyThe primus motor of medieval philosophy, Aristotelianism, encountered its first competing theories in the thirteenth century. One of the most far-reaching ideas concerning human psychology and behavior, developed by the Franciscans... (shrink)

O principal propósito deste artigo é discutir uma das mais importantes questões relativas à interação entre Cristianismo e Política nos vários períodos da Idade Média: a relação entre Império e Igreja. O tema será abordado com base no exame de alguns dos aspectos políticos e imaginários envolvidos nesta relação que, à partida, contrasta dois projetos de cunho universalista que terminam por se opor no contexto político e religioso do período medieval. Entre as questões examinadas, um ponto importante será constituído por (...) uma reflexão sobre as origens da noção de Império a partir do Império Romano e, posteriormente, do Império Carolíngio, assim como suas projeções subseqüentes, inclusive no período que ultrapassa a Idade Média em direção à Modernidade. O relacionamento entre Império e Papado, conforme veremos, foi constituído no período examinado por uma alternância de momentos de aliança e oposição política, mas durante todo o período também pode ser pensado nos termos de um grande confronto, entre os poderes secular e religioso, que envolve as noções de “igreja”, “império” e “reino”. Palavras-chaves : Império, Igreja, Realeza, Papado, PoderThe mainly purpose of this article is to discuss one of the most important questions refereed to the interaction between Christianism and Politics in the various periods of the Middle Ages: the relation between Empire and Ecclesia. The theme will be analyzed on basis of the examination of some political and imaginary aspects involved of this relation that, in first place, contrasts two universal projects that falls in opposition in the political and religious context of the Middle Ages. Among the questions examined, an important point will be constituted by the origins of the notion of Empire since the Roman Empire and, later, the Carolingian Empire, as also their subsequent projections, including in the period that exceeds the Middle Ages in direction to Modernity. The relationship between Empire and Papacy, as we shall see, was constituted by the alternation of moments of alliance and political opposition, but throughout the entire period it can be also thought in terms of a great confrontation between secular and religious powers that involves the notions of “ecclesia”, “empire” and “kingdom”. Key words : Empire, Church, Royalty , Papacy, Power. (shrink)

Although'Otherness' is an extremely common phenomenon in every society, related research is still at its beginnings.'Otherness' in the Middle Ages is a versatile and complex theme that covers a great number of different aspects, facets, and approaches: from non-human monsters and cultural strangers from remote places up to foreigners from another country or another town; it can refer to ethnic, cultural, political, social, sexual, or religious'Otherness', inside or outside one's own community. In any case, however,'Otherness' is a subjective phenomenon (...) depending on personal views and ascriptions, an issue of'imagination' and experience rather than'reality'. There is neither one single model of alterity nor is'Otherness' a stable phenomenon, but it changes over time and according to the cultural context. All this calls for methodological reflection and needs thorough investigation.00The methodological introduction and the 18 contributions of this volume demonstrate the great diversity of the theme and its different manifestations and perspectives. They tackle the problem from distinct angles and disciplines (history, art history, archaeology, literary history, and philology) in a wide chronological and thematic frame, using different methodological approaches, dealing with different areas (from Northern and Southern Europe to Byzantium and India), perspectives (including law, social order, the past, a sea), and diverse kinds of sources. They examine all kinds of'Otherness' mentioned above, highlight demarcation and rejection, aversion or acceptance, assimilation and integration, thus relativizing a strict dichotomy between'the Self' and'the Other' or between inside and outside. This volume is so far the most comprehensive attempt to tackle the huge problem of'Otherness' in the Middle Ages. (shrink)

Philosophy of Mind in the Early and High Middle Ages provides an outstanding overview to a tumultuous 900-year period of discovery, innovation, and intellectual controversy that began with the Roman senator Boethius and concluded with the Franciscan theologian and philosopher John Duns Scotus. Relatively neglected in philosophy of mind, this volume highlights the importance of philosophers such as Abelard, Duns Scotus, and the Persian philosopher and polymath Avicenna to the history of philosophy of mind. Following an introduction (...) by Margaret Cameron, twelve specially commissioned chapters by an international team of contributors discuss key topics, thinkers and debates, including: mental perception Avicenna and the intellectual abstraction of intelligibles Duns Scotus soul, will, and choice in Islamic and Jewish contexts perceptual experience the systematization of the passions the complexity of the soul and the problem of unity the phenomenology of immortality morality the self. Essential reading for students and researchers in philosophy of mind, medieval philosophy, and the history of philosophy, Philosophy of Mind in the Early and High Middle Ages is also a valuable resource for those in related disciplines such as Religion. (shrink)

ABSTRACTDavis argues that the familiar periodization dividing European history into medieval and modern phases disguises a claim to power as a historical fact. It justifies slavery and subjugation by projecting them onto the “feudal” Middle Ages and non‐European present, while hiding forms of slavery and subjugation practiced by “secular” modernity. Periodization thus furnishes one of the most durable conceptual foundations for the usurpation of liberty and the abuse of power.In part I, devoted to “feudalism,” Davis traces the (...) class='Hi'>legal, political, and colonial struggles behind the development of the concept of “feudal law” in early modern France and England and unravels just how that concept hides colonial oppression while justifying European sovereignty. In part II, devoted to “secularization,” she demonstrates the failure of twentieth‐century critics of “secularization” like Carl Schmitt, Walter Benjamin, Karl Löwith, Hans Blumenberg, and Reinhart Koselleck to break out of the limits imposed by the medieval/modern periodization. Part II concludes with a look at conceptual alternatives in the writings of Amitav Ghosh and the Venerable Bede.Three limitations of this book are worth mentioning. It traces the political history hidden by the concept of “feudalism,” but does not trace the political history hidden by the concept of “religion.” It offers no answer to the question of how to break the link between scholarship and politics without ending up in a logical impasse or reinforcing the link. It does not address the possibility that answering this question may require breaking with the terms of professional historical inquiry. Perhaps the question could be answered in terms like those that led Wittgenstein to characterize his Philosophical Investigations as remarks on the natural history of human beings. (shrink)

Philosophy of Mind in the Early and High Middle Ages provides an outstanding overview to a tumultuous 900-year period of discovery, innovation, and intellectual controversy that began with the Roman senator Boethius and concluded with the Franciscan theologian and philosopher John Duns Scotus. Relatively neglected in philosophy of mind, this volume highlights the importance of philosophers such as Abelard, Duns Scotus, and the Persian philosopher and polymath Avicenna to the history of philosophy of mind. Following an introduction (...) by Margaret Cameron, twelve specially commissioned chapters by an international team of contributors discuss key topics, thinkers and debates, including: mental perception; Avicenna and the intellectual abstraction of intelligibles; Duns Scotus; soul, will, and choice in Islamic and Jewish contexts; perceptual experience; the systematization of the passions; the complexity of the soul and the problem of unity; the phenomenology of immortality; morality; and the self. Essential reading for students and researchers in philosophy of mind, medieval philosophy, and the history of philosophy, Philosophy of Mind in the Early and High Middle Ages is also a valuable resource for those in related disciplines such as Religion. (shrink)

This book presents a broad overview of succession law, encompassing aspects of family law, testamentary law and legal history. It examines society and legal practice in Europe from the Middle Ages to the present from both a legal and a sociological perspective. The contributing authors investigate various aspects of succession law that have not yet been thoroughly examined by legal historians, and in doing so they not only add to our knowledge of past succession (...) law but also provide a valuable key to interpreting and understanding current European succession law. Readers can explore such issues as the importance of a father’s permission to marry in relation to disinheritance, as well as inheritance transactions and private, dynastic and cross-border successions. Further themes addressed by the expert contributors include women’s inheritance rights, the laws of succession for the prince in legal consulting, and succession in the Rota Romana’s jurisprudence. (shrink)

The notion of freedom was in ancient philosophy formed in the sense of the privileges belonging to adult free citizens, and thus foreigners, minors, women, and slaves were deprived of the possibility of freedom. This definition of freedom was also adopted by Roman law, unlike Stoic philosophy and the New Testament Christianity, where freedom was extended to belong to all human beings. In comparison, the Stoics condemn slavery, while Christianity eschatologises freedom. The Middle Ages built on such a (...) concept of freedom. Still, in that period the secular concept of freedom was formulated, which especially comes to the fore in the Magna charta libertatum. The modern concept of freedom was shaped in the Modern Age, from Locke’s definition of life, freedom, and property as inalienable civil rights, through Voltaire’s request for the freedom of thought and Rousseau’s identification of freedom with the essence of human being, to Kant’s understanding of freedom that is possible only through the mind. The ideals of French Revolution, Liberty, Equality, Fraternity, are concretised in the Declaration of the Rights of Man and of the Citizen. John Stuart Mill formulated the classical liberal concept of freedom. Today freedom is discussed, on the one hand, at the level of questions about individual freedom, and on the other hand, at the level of the problematisation of social presumptions regarding the freedom of human being. (shrink)

Greek culture matters because its unique pluralistic debate shaped modern discourses. This ground-breaking book explains this feature by retelling the history of ancient literary culture through the lenses of canon, space and scale. It proceeds from the invention of the performative 'author' in the archaic symposium through the 'polis of letters' enabled by Athenian democracy and into the Hellenistic era, where one's space mattered and culture became bifurcated between Athens and Alexandria. This duality was reconfigured into an eclectic (...) variety consumed by Roman patrons and predicated on scale, with about a thousand authors active at any given moment. As patronage dried up in the third century CE, scale collapsed and literary culture was reduced to the teaching of a narrower field of authors, paving the way for the Middle Ages. The result is a new history of ancient culture which is sociological, quantitative, and all-encompassing, cutting through eras and genres. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:470 HISTORY OF PHILOSOPHY of fundamental notions (e.g.,"creator" and "demiurge") are omnipresent. Sometimes even a confusion happens of Anaxagoras with Democritus when the "atom" is ascribed to Anaxagoras (p. 48). And the author does not seem to feel the fatal inadequacy of merely second-hand knowledge. While he in longura et latum argues with Aristotelian presentations and misrepresentations of Anaxagorean tenets, there is good reason for the suspicion that (...) he might never have read even one authentic sentence written by Anaxagoras himself. For those interested in general cultural history, this book, the religious diatribe of a modem Zoroastrian believer, is very worthwhile reading. For the historian of philosophy, itis of rather modest value. P-~LIX M. CLEVE New School for Social Research New York City The Esthetics of the Middle Ages. By Edgar De Bruyne. Trans. Eileen B. Hennessy. (New York: Frederick Uugar, 1969. Pp. viii+232. $6.50) This book has a very complex character. It is the English translation of a French work, L'Esth~tique du moyen dge,I which, in turn, is a one-volume abridged version by Edgar De Bruyne of his own original three-volume work, I~tudes d'Esth~tique M~di~vale.2 Thus, one may evaluate this book either as a translation or, presupposing the faithfulness and correctness of the translation itself,as a relatively short work by E. De Bruyne, or else in its relation to or as compared with the original three-volume work. I will confine myself here to the lattertwo considerations.3 First, considering this book in comparison with the three-volume original work, one of the principal writings of De Bruyne and one of the most significant contemporary contributions to the history of medieval aesthetics, we can find both quantitative and qualitative differences between the original work and its abridged version. The quantitative difference is considerable. While the abridged work, at least in its English translation, is less than a quarter of a thousand pages in length, the original work includes altogether 1,224 pages 4 and is thus more than five times longer than thc translated abridged version of it. The qualitative or methodological difference is at least equally great. In the original work, each of the three volumes deals primarily with the various medieval authors of aesthetic works and doctrines in a chronological order.5 In contrast, the contents of the translated abridged version follow a topical arrangement with chronology playing only a subordinate role, if any at all, within Louvain. L'InstitutSupdrieur de Philosophic, 1947. Brugge: De Tempel, 1946. s I have had no access to the abridged French original. 9 Vol. I, xiv+370; II, x-{-420; III,x-F400. 9 VoL I: Boethius to Erigena; II. "L'l~poque Romane," from the Carolingian period to the schools of Chartres and St. Victor; and Ill:the thirteenthcentury, from St. Bernard to Duns Scotus. BOOK REVIEWS 471 each topic. The six chapters are entitled, "'The Sources," "The Fundamental Principles," "Various Esthetic Systems," "The Esthetic Experience," "Art," and "The Fine Arts." To this may be added a third difference that is the result of the first two differences. There is virtually neither any direct quotation from any author on any topic, nor a~y direct reference to texts in the works of medieval authors mentioned or discussed. While the quantitative difference in itself is understandable, since only a scholar specializing in this field would read over 1,200 pages on medieval aesthetics, and while the qualitative difference is perfectly justified in terms of an intelligent summary, the absence especially of direct references to discussed texts is, as will be shown below, deeply regxettable. So much for the relative consideration of this translated abridged work. Let us next consider the abridged work in itself in the form of a positive and a negative evaluation. Second, despite the relative brevity of the work, one finds this book extremely valuable both in terms of the quantity and the quality of the data it contains. As to quantity, De Bruyne manages to compress an enormous amount of information about medieval aesthetic thought into this book. The significance of this, to confine ourselves at this point only... (shrink)

One of the most striking experiences of my early days as a postgraduate student of medieval Scots law was an encounter with a twelfth-century charter which, apart from being written in Latin, might have served as a model or template for the land transfer documents which I had learned how to draft the previous year in the undergraduate class called Conveyancing. Alliterative thoughts came into my head—conveyancing, conservatism, consistency, continuity—but also the question of when this seeming stability was first (...) achieved, and how it crossed from Latin into the formal Scots-law English of my own day. Joanna Kopaczyk’s fascinating study of legal language in Scottish towns from the late middle ages to the Reformation in Scotland does not address the conveyancing question but it raises similar issues about legal and administrative record-keeping, addressing them from the perspective of historical linguistics. She is interested in the tendency of both law and language towa .. (shrink)

Legal humanism has become deeply entrenched in most modern works on European legal history from the 17th century onwards and has been accepted with such blind faith by many modern scholars that few have challenged it. As a result, it has been used to substantiate larger claims about the deathof Roman law, the separation between the golden age of a pan-European medieval ius commune and the fragmented reception of Roman law into the nation states of (...) Europe, and the relevance of 'dogmatic' Roman law as opposed to 'antiquarian' Roman law.Now, the traditional grand narratives of European legal history have begun to be questioned, to the extend that the nature and legacy of legal humanism now deserve closer scrutiny. Building on the groundbreaking work by Douglas Osler, who has been critical of the traditional narratives, this volumeinterrogates the orthodox views regarding legal humanism and its legacy. Fundamentally reassessing the nature and impact of legal humanism on the narratives of European legal history, this volume brings together the foremost international experts in related fields of legal and intellectual history to debate the central issues. (shrink)

Beginning with the complexities involved in the definition of the modern European Community identity, the author proceeds to examine the historical dimensions of the development of Europe as a continent. The Roman and Greek antecedents are recognised and the emergence of Constantinople as a pivotal consideration is discussed. By the early 16th century, what Europe meant is explained in more comprehensive terms than those that prevail today. The unity of Christendom under the papacy is identified as germane to the (...) political unity of Europe as a continent. The Reformation unleashed a process of disintegration and division into national and religious states that has taken centuries to begin to heal. Recognising the failure of modern European structures to secure cohesion among its member countries, the article recognises an attempt to develop unity in diversity: based on the notion of economic collaboration berween trading cities. This notion was very much a feature of the Hanseatic League of the middle-ages, and indeed a founding principle of the Greek city confederacy. History remains a potent and pertinent dimension in our understanding of Europe as a continental concept. (shrink)

Great Christian Jurists and Legal Collections in the First Millennium is a systematic collection of essays describing how Christian leaders and scholars of the first millennium in the West contributed to law and jurisprudence and used written norms and corrective practices to maintain social order and to guide people from this life into the next. With chapters on topics such as Roman and post-Roman law, church councils, the papacy, and the relationship between royal and ecclesiastical authority, as (...) well as on individual authors such as Lactantius, Ambrosiaster, Augustine, Leo I, Gelasius I, and Gregory the Great, this book invites a more holistic and realistic appreciation of early-medieval contributions to the history of law and jurisprudence for entry-level students and scholars alike. Great Christian Jurists and Legal Collections in the First Millennium provides a fresh look, from a new perspective, enabling readers to see these familiar authors in a fresh light. (shrink)