Jurisprudence of the Baroque

A Census of Seventeenth Century Italian Legal Imprints

Compiled by Douglas J. Osler

Studien zur europäischen Rechtsgeschichte 236
Bibliographica Iuridica 5
Frankfurt am Main: Klostermann 2009. XXIX, 831 p.

ISSN 1610-6040
ISBN 978-3-465-03604-3

The European legal history of the modern period between 1500 and 1800 has been notoriously neglected in traditional legal-historical scholarship. From the time of Savigny, the resultant historiographical void between the Middle Ages and the nineteenth century was occupied with the concept of a translatio studii, a succession of juristic schools said to have carried the torch of jurisprudence from medieval Italy to France to the Netherlands and finally to Germany. In this scheme both Italy and Spain were wholly omitted from the legal history of the modern period, or at best relegated to the role of decadent Bartolist backwaters in the on-flowing European legal stream. The currently dominant notion of a European ius commune, a uniform legal culture which prevailed throughout Europe from the eleventh century to the era of codifications, is no less simplistic and no less devoid of any basis in historical research. Both conceptions have been propagated by modern jurists seeking a theatrically impressive historical backdrop for their contemporary legal agendas, rather than by historians interested in researching the reality of the European legal past.

The present work in usum historicorum represents the first attempt to assemble the totality of the juristic production of a major European country for an entire century of the modern period. It is based on over twenty years' research in a series of important libraries in Milan, Florence, Siena, Rome and Naples, on the vast holdings of the Max Planck Institute in Frankfurt and the Robbins Collection in Berkeley, as well as drawing on important modern published catalogues such as those of Cambridge and the British Library. Where possible, the holdings of specialist legal libraries have been described in their entirety through direct inspection of the books. Each edition is given a detailed bibliographical description including author, extensive title transcription, imprint, colophon, format and pagination; every library copy is listed with its individual shelf-mark.

The three volumes seek to register all editions of works of law printed in Italy between 1601 and 1700 and together encompass over 7,700 editions. A special section is devoted to legal sources and lists the published statutes of Italian cities and regions; the enactments of trade, professional, educational, beneficent and religious associations; and the constitutions of religious orders and congregations. A significant feature is a complete record of over 750 editions of the decrees of all provincial, diocesan and local synods published in Italy in the seventeenth century. The accompanying PDF file on CD-Rom enables the user to quickly search any word throughout the catalogue.

The production of well over a thousand jurists, the vast majority hitherto unknown to legal-historical scholarship, is here made accessible for the first time. The resulting record of the legal printing of Counter-Reformation Italy reveals that these jurists were almost exclusively Italian or Spanish, with only a very small number of jurists from the Protestant North admitted through specially prepared editions expurgated according to the rules of the Inquisition. The full range of the canon law of the Catholic Church, effectively eliminated in Germany and the Northern Netherlands after the Reformation, here stands at centre stage. The legal works applicable to the monastic and other religious orders, which continued to flourish in seventeenth century Italy, and to the jurisdictions of different ecclesiastical institutions and officials, are notable features. The intricate exposition of the casus conscientiae by the theological jurists is one of the most comprehensively represented genres. There is also an exhaustive survey of the many collections of consilia and decisiones compiled by the jurists serving the great tribunals of Italy: the senates of Milan, Piedmont and Mantua; the Rotae of Florence, Siena, Genoa, Lucca, Bologna, Ferrara, Perugia, the Marche, Macerata and of course the Sacra Rota Romana itself; and finally the whole network of courts operating in the Kingdom of Naples and Sicily.

The bibliography for the first time presents the juristic literary production of an Italo-Spanish Rechtskreis that stands in marked contrast to the world of the French coûtumes, arrêts and grandes ordonnances on the one hand, and to the more humanistically orientated Germano-Dutch legal sphere on the other. It thus exposes the superficiality of the prevailing legal-historical discourse of an undifferentiated ius commune in Western Europe in the sixteenth to eighteenth centuries, and challenges the legal historian to begin a serious study of the diversity that existed among the legal systems of continental Europe in the modern period.

This bibliography will prove an indispensable research resource not just for the historian of law, but for anyone interested in the Church, social relations and the general culture of Italy in the century of the Baroque.

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