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 Introduction
Law and Families,
1300–1600

The period covered by this book was one of astounding developments

and events – in art, culture, intellectual life, and the economy. The realities
of family life were shaken by the great plagues, the constant spread of
warfare, and the ups and downs of economic affairs. Family provided
much of the social context in which Italians met these developments and
attempted to cope with them. This was a period, as well, in which
awareness of family and gender became more prominent, in and out of
law. The “quarrel about women” became a literary genre, as did tracts
about family, aimed especially at fathers. Images of the Holy Family and
even scenes of domestic life came into art. Spurred by plagues and other
swift messengers of death, the art of dying too became a trope and came
to include making provisions for one’s property, both for the good of
one’s soul and for the sake of one’s heirs. Coats of arms, family surnames,
and more elaborate domestic architecture came to frame elite families
apart from others. Governments used households as tax units and gener-
ated bodies to tend to orphans and destitute, to widows and abandoned
wives and children, to poor girls unable to marry, and even to the policing
of sexuality and morals.
It was also a period of transformation in law. Law, while not changing
at anything like the pace of economic change (not to mention the some-
times dizzying political changes), did evolve over the three centuries under
consideration. Family law especially was not static. The varying local
laws, overlaid as they were upon a shared, complex, learned legal heri-
tage, were formative of domestic life and generated possibilities for legal
action and thereby conflict. There were both local legislative initiatives,
especially with respect to women’s legal capacity, and, if at yet slower

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 2 Law and Families, 1300–1600

pace, academic doctrinal developments. Laws responded to the exigencies

of plagues and depressions, wars and political upheavals. Leading this
legal response and addressing the complexities and gaps in the various
laws were the university-trained experts who took an active role in court
cases, attempting resolutions to problems that they brought into view.
Laws regulating marriage, dowry, property ownership, and inheritance
underwent developments, whether from external factors (e.g., demo-
graphic collapse) or from internal (e.g., jurisprudential elaboration of
doctrinal texts), that facilitated certain developments and precluded or
hindered others. Continuity and change in family law, and the factors that
militated for or against change are an important focus of this study.
There is no claim here that law is the key to understanding family life in
the past, but it is one of several keys, and it has been more neglected than
respected. It set parameters for much of daily life and it was integral to
shifting those parameters. It defined the status and agency of the family’s
members. In that regard law served to distinguish family from household,
which had and retains distinct functional as well as symbolic qualities.
And family itself had varying extensions, horizontal and vertical, meta-
phorical and legal.
It is also necessary to remain aware of the different possibilities of law
by class and region, although it is difficult to plot them in any exact way.
Poorer people had less use for law, but they too used it, especially when
land and other real assets were at stake. But any simple distinction in legal
roles between wealthy and poor has to yield to the reality that a debtor in
one situation was quite likely a creditor in another. City dwellers whose
wealth lay to a greater extent in commercial capital and bank assets
availed themselves of contracts and other legal devices in manners that
varied from those of nobles with large rural estates and firm claims to
political offices. Women, of course, had different legal potentials and
experiences from men, but also from women in other communities. The
truly poor had little to adjudicate (and could not afford the costs). For the
rest, some tenuous indicators may allow us to peg social and economic
circumstances from time to time.

gender and law

There are studies of families for many Italian communities for parts of the
period 1300 to 1600. There are some, as well, that are comparative and
range across the peninsula. These are enormously useful. Their utility is
recognized throughout the notes and bibliographical entries. What the

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 Gender and Law 3

present work does that they generally have not is incorporate an attention
to gender and the exploitation of legal sources. Too often legal historical
studies neglect the dimension of gender or simply accept the biases
encoded in law on the assumption that they worked out that way in life.
We will find instead that women were capable of circumventing legal
limitations and of using the law to their advantage and that of their male
relatives on occasion. Social historical studies of family have necessarily
confronted law, at least to trace the outlines of vital legal institutions,
such as dowry and testament, but generally without awareness of the
gaps, ambiguities, and complexities that riddled the laws. The premise
here is that law was not backdrop; it was formative, an array of possibil-
ities for those looking to marry, establish households, and pass property
to others.
This book thus approaches the historical features of family, kinship,
and domestic life from two perspectives. It stresses gender, a “useful
category” for historical analysis, as Joan Scott put it thirty years ago.1
Gender (as a set of culturally constructed meanings loosely related to but
distinct from sexual biology) was enacted first and foremost in the home
in the roles of fathers and mothers, sons and daughters. As Cesarina
Casanova says, in an immensely useful study of Italian families in our
period, “in the interior of the house, in which the encounters and affec-
tions of everyday are lived, the real position of each member is configured
as the result of a continual negotiation, in which male and female con-
front each other and there are put into question the values and models of
comportment socially imposed on the sexes and the different age
groups.”2 Every aspect of family life struck men and women differently.
It is impossible to understand family and kinship in different areas of Italy
without considering the variant roles of men and women in the different
communities.
While sociological, anthropological, and economic perspectives on
family play a role – as they necessarily must, having been at the heart of
so much existing research – it is the more neglected realm of law as a
second perspective that holds a privileged position in this analysis. That
neglect needs to be addressed. As Lloyd Bonfield has said,
Law governing family relations seems to be regarded as a product of family
history, and not a participant in shaping either its biological or cultural elements.

1
Scott, “Gender: A Useful Category of Historical Analysis.”
2
Casanova, La famiglia italiana in età moderna, 148.

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 4 Law and Families, 1300–1600

In short, family law surfaces in historical studies of the family only occasionally,
indirectly, and tangentially, as a collection of rules to be obeyed or circumvented
as the case may be; its origins and nature, and its role as an integral part of the
family and its structure are not discussed in any great detail.3

Lack of attention to law as a formative element of family life is all the

more disturbing as so many of the processes of family life that historians
have explored, and the documents they have used to explore them, are
legal in form, purpose, and language. This is not to say that the sources
for investigation of domestic life in the Italian past are all legal, or even
predominantly so. For Florence, perhaps the most prolific site of family
history research in Italy, effective use of letters, diaries, domestic account
books, and civic fiscal records has been vital. But study of processes of
marriage and dowry, inheritance, guardianship, domestic enterprise, kin
membership, and more is not possible without utilizing records drawn up
in legal terms, mainly in the papers of notaries.
Yet it is not so much the records of notaries recording the legal business
of families, of men and women, in dowries, testaments, emancipations,
and more that is the focus of our attention. It is the very different judicial
records that are of concern here. Neglect of judicial materials and of
prevailing and changing norms can tend to overplay regular patterns of
family life and overlook or downplay consistent moments of intrafamilial
conflict and dispute resolution. Conflicts and disputes were a regular
feature of family life, especially at pivotal moments when the membership
and fortunes of a domestic group were in play. François-Joseph Ruggiu,
in one of the few studies directed at inheritance disputes, was moved to
speak of the “banality of intrafamilial conflicts.”4 Above all, inheritance
seems to have been regularly disputed. Marriage was another legal area
where disputes were common. Yet only recently has systematic use been
made of ecclesiastical court records to see how some marriages were less
than peaceful.
Conflicts involved emotions and interests and could take form outside
the legal, but they had to work themselves out in legal terms and to some
degree in legal institutions. The law is a separate domain, a “distinct
social form,” a distinct form of thought even that, especially in early
modern Italian societies, was sufficiently ambiguous to give rise to recur-
ring issues in dispute. Social life is and was messy, and so is and was the
law. Law does not just regulate; it constitutes society with whole sets of

3
Bonfield, “Developments in European Family Law,” 88.
4
Ruggiu, “Pour préserver la paix des familles,” 139.

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 Gender and Law 5

categories and relationships. It is a way of understanding as well as

manipulating one’s world. And in early modern Italy there was not one
law, but several. In that mess of materials were various ways of compre-
hending individuals and families, gender, property, generations, and
much more.
The legal dimensions of gender and the experiences of women in law
have also been relatively neglected, in contrast to the attention that has
been shown to other matters, such as sexuality and marriage, mother-
hood, education, religion, and work. A seminal essay on women in the
Renaissance entirely neglects the law in favor of examining images of
women in literature.5 Three decades later a collection of 29 essays on
women in the Italian Renaissance placed five of them under a heading
about “legal constraints,” yet one was in fact about marital love and two
were about sumptuary laws. Only one essay truly examined the legal
contradictions revolving about gender in a particular city.6 Even a fine
overview of women in medieval Europe devotes only six pages to law,
despite the fact that it notes that access to property gave women access to
power and that changes in women’s rights of inheritance and property
holding are the “principal key” to understanding their shifting social
position.7
The general disregard of law in relation to gender can be attributed to
two things. For one, there is an assumption that law was not good to
women. In an account of women in the Renaissance, Romeo De Maio
devoted a chapter to women’s “legal inferiority” (in fact largely relying on
literary texts), and depicted marriage as the passage of a woman from the
prison of her father’s patria potestas (legal paternal authority) to her
husband’s control. He bemoaned the “harsh illegality, contrary to
nature” of parentally dictated marriage choices that included directing
women to convents rather than married life.8 His is far from a solitary
position.
Closely related is the sense that law itself was and is just not that
important in life (not to say boring, perhaps). History has taken a linguis-
tic and cultural turn. It has embraced narrative again. It is poststructural
and postcolonial. It is about metaphor and representation. And, after all,
the realities of daily life and love do not proceed through legalities, except

5
Kelly, “Did Women Have a Renaissance?”
6
Meek, “Women between the Law and Social Reality in Early Renaissance Lucca.”
7
Ward, Women in Medieval Europe 1200–1500, 4–11.
8
De Maio, Donna e Rinascimento, esp. 95–96.

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 6 Law and Families, 1300–1600

of course at pivotal moments like marriage or buying a house. And

neglect of law is also to a degree the fault of legal history, of legal
historians, whose neglect of more general history and pursuit of arcane
details and stilted language can leave their perspectives as an outlier in
historical practice, rather than in the mainstream. And it is undeniable, in
our context, that looking at women and family through a largely legal
lens means that we will see only hazy aspects of them as wives and
widows, and nothing at all of them as thinkers, as midwives, servants,
or even as nuns or prostitutes. We will be concerned with property
and power.
Equally it can be said that early modern Italian families were about
property and power. They were certainly different from the families of the
contemporary West. Studying them puts us in a world where marriages
were arranged and their economic bases carefully negotiated. Parental
control over career choices was paramount. And yet parents were not
themselves uncontrolled. Testaments had to recognize children and leave
them an appropriate share. Testators were not entirely free to do what
they wanted with their belongings after death. Kin relationships, across
geography and across time, provided an individual with both options and
constraints, places to seek help but from which help might also be sought.
In all of this, then, law was a central element.
Law seems to have a certain autonomy in western European societies,
including early modern Italy, with its numerous law courts relying on
written documents and procedures, in dense, difficult, and arcane legal
Latin. But law cannot be reduced to simple application of a rule. Law, as
the French sociologist Pierre Bourdieu saw it (and he was not alone),
obscured relations of power and contests over it. That does not mean that
law is then only epiphenomenal. Law operates in the social and judicia-
lizes it. Or, in terms of Bourdieu’s seminal contribution, the notion of
habitus, people know how to act and succeed in the particular historical
situation that is the law. There is a certain plasticity and motion in a field
like law.9 The relationship of law to power is not to be assumed but
precisely what needs to be studied.10
To take a cue instead from a historian, Renata Ago, who notes that
early modern Italian litigiousness was the result of more than a failure to
banish all ambiguity from contracts: “Recourse to the court cannot
indeed immediately be considered as the sign of the failure of an

9
Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field.”
10
Engel, “How Does Law Matter in the Constitution of Legal Consciousness?”

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 The Law in Italy 7

agreement. It rather is seen as a means to integrate or remediate a

defective situation.”11 Which is not to ignore the prevailing ambiguities
in law regarding ownership, agency, person, and family. In families in
which law was so pivotal, such ambiguities broke out in conflict with
frequency.
With regard to women and gender, law is doubly important, for while
law took a lead in defining and disadvantaging women, it is also true that
within law women were able to do important things for themselves and
others.12 Women could turn notions of their supposed frailty and
irrationality, notions also enshrined in the law, to their advantage to gain
protection of their rights and persons. Above all, while law defined gender
in part by agencies and abilities conceded to men but not to women,
women still had important roles in transmitting and preserving family
wealth. Women and men, as various studies have shown, used testaments
differently. Those differences had to do with what laws allowed them to
do. To understand such matters, in turn, requires that we look at what
law was like in Italy between 1300 and 1600.

the law in italy

The law at work in Italy drew on two types of sources, issuing in two
types of law. There was what was known as ius commune (“common”
law). This common legal heritage itself derived from several sources. At its
simplest, ius commune was the body of law given sophistication and
coherence and expounded in the law schools to be found in several Italian
towns (first of all Bologna, but also importantly in Padua, Perugia, and
elsewhere). Its major components were the texts of Roman civil law,
excised and assembled at the behest of the emperor Justinian in the sixth
century, and collectively referred to as the Corpus iuris civilis. There were
also the texts of canon law of the Church, of more recent creation,
assembled and released in different forms from the early twelfth century,
and known in parallel as the Corpus iuris canonici. To these were added a
few fragments, imperial decrees, and a collection of traditions covering
what is widely referred to as feudal law. Even more, ius commune
included the glosses and opinions of jurists who read the texts into a
coherent system, or tried to. Ius commune itself was no simple matter of
distillation from Roman and canon law texts. The ius commune

11
Ago, Economia barocca, xi–xii.
12
Wiesner, Gender, Church and State in Early Modern Germany, 82.

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 8 Law and Families, 1300–1600

constituted a bedrock of institutions and generally valid norms (Venice

was a notable exception to its reach).
Alongside ius commune, presupposing it, relying on it, but also con-
sciously modifying or rejecting it in line with local cultural models and
customs (some deriving from Lombard or other traditions), lay the ius
proprium, or more properly iura propria (plural). These were local stat-
utes and customs, compiled sporadically in each community legislating
for itself, as well as intervening provisions and exemptions. Here is where
a great deal of variety crept into the legal situation on the Italian penin-
sula. Though many similarities can be found among the laws of very
different localities (and notably so in regard to women’s dowry and
inheritance rights, as we will see), no two places were precisely the same
(even when, as with Milan, a dominant city’s statutes were the basis of
those in nearby subordinate communities). One necessary dimension of
the present project is thus comparison of statutes from different commu-
nities, large and small. These are not always easy to locate, and it is very
difficult to track changes in them for communities that did not redact new
versions with any regularity (as Venice did not after 1244, or Florence
after 1415). I have pursued these in a large sampling of those Italian
community statutes that are in print.
The pluralistic quality of the law necessarily made for uncertainties,
which in turn made the law into a field of doubt and argument. As a noted
scholar of Italian family history has recognized, “the incongruities
between common law and particular laws opened a space of uncertain
definition at the heart of which arose conflicts that were resolved in a
disparate manner, depending on the court and the judge.”13 Those called
on to adjudicate these conflicts thus stood at a privileged point where
meaning and enforcement, law and culture, were in flux. It is their work,
and those moments and types of fluctuating meanings, that are our focus.
In the juristic culture that came to maturity in the medieval universities,
what mattered was mastery of grammar, rhetoric, and logic, and under-
standing of the fundamental elements of civil, canon, and feudal law.
Proficiency in local law was left to practitioners to pick up as they went.
Students in the law schools encountered the authoritative glosses, com-
mentaries, manuals, consilia, and all else that contributed to the commu-
nis opinio (common position) on a multitude of issues, questions, and
points of law. They learned rules and forms of interpretation, such as

13
Casanova, La famiglia italiana, 88.

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 The Law in Italy 9

analogical reasoning. But their professional treatment of local laws, even

at moments when they restricted or argued to void those laws, served to
enlarge their weight and that of the institutions linked to them.
The learned law was a written law (especially in contrast to the
Germanic procedures widely used in northern Europe), with little in the
way of oral proceedings, aside from the taking of witness testimony where
appropriate, and little of the drama of an actual trial. Just about every
Italian city was teeming with notaries, who for a fee would record in Latin
the legal (at times also illegal) doings of the city’s residents, or, perhaps
better, clothe their doings in legal garb. In a real way it was the notaries
who embodied law, at the junction of ius commune with local statutes.
But there were other legally relevant records as well. Merchants’
accounts, for example, were part of the legal record in debt cases, one
reason accounting methods and private accounts were so relatively
advanced and sophisticated in Italy.
Though the law often being applied consisted of texts decades and
frequently even centuries old, that does not mean that the law was an
unchanging backdrop to the lives of individuals and their families. It is
true that statutory legislating (or the official amending of a commune’s
statutes as a whole) was sporadic. But tinkering with statutory language
and crafting exemptions was a continual process in some communities.
Statutes and other forms of legislation clearly changed, annoyingly so, to
judge by frequent complaints on that score, which reached a more sophis-
ticated level at the hands of Francesco Petrarca (1304–74) and later
humanists, who were regular critics of law and legal professionals. But
the interpretations and uses of even the older canonical texts of the ius
commune also changed.
We begin our examination around 1300 because of the state of the
learned law by that point. The great gloss to the civil law and the parts
(most of it) of canon law, also glossed, were completed around that point.
The canonical texts had been seemingly integrated into a comprehensive
corpus. The era of post-glossators or moderni saw new and more system-
atic approaches to areas of law. Rolandino de’ Passaggieri (d. 1300) of
Bologna constructed a summa of the notarial art; Alberto da Gandino
(1278–1310) penned a treatise on statute interpretation; Guglielmo Dur-
ante (d. 1295) composed what amounted to a procedural treatise, Specu-
lum judiciale; Dino del Mugello (d. 1303) supposedly talked Pope
Boniface VIII into adding a section on rules of law (regulae iuris) as the
final title in his compilation of new decretals to be added to the body of
canon law in 1298.

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 10 Law and Families, 1300–1600

The so-called moderni of the late thirteenth and early fourteenth

centuries began to look as well beyond the canonical texts to the chaotic
and often ill-written statutes of various city-states. The more legal objec-
tions were raised in courts as to the meaning of local laws and their
relation to the “common law” as a font of logic and justice, the more
judges who fielded those questions turned to learned jurists for help. Such
jurists thus acquired real power to decide, or at least influence, the
decision of actual cases. The means they used was the formal legal
opinion, the consilium, which examined arguments advanced in litigation
and, relying on canonical texts, texts of local laws, opinions of great
academic jurists, and consilia of others, offered a resolution. From around
1300, then, it can truly be said that “to draft consilia became the most
relevant judicial activity performed by professors, doctores legum, and
simple judges.”14 The phenomenon would grow throughout the period
and reach its apogee between 1400 and 1550.
The transition ran to the generations of commentators who followed,
beginning perhaps with Cino da Pistoia (1270–1336), but encompassing
figures like Riccardo Malombra (d. 1334), Jacopo Bottrigari (ca.
1274–1347), Oldrado da Ponte (d. 1335), Alberico da Rosate
(d. 1354) – but most famously Bartolo of Sassoferrato (1313–57), his
students Baldo (1327–1400) and Angelo degli Ubaldi (1323–1400), the
canonist Giovanni d’Andrea (ca. 1270–1348), and later Paolo di Castro
(1360–1441) and others, some of whom we will encounter. In their
academic lectures and in their consilia, they made attempts at harmoniz-
ing diverse texts, including those of their predecessors, who determined
the casus of each text and sought the underlying rule (regula). It is no
accident that the writings of these men were cited and treated as authori-
tative. They were systematic, comprehensive in many cases, and learned.
As practitioners themselves they shared the same problems so many other
doctors of law faced.
Also arising early in the fourteenth century, after the full elaboration of
judicially driven inquisitory procedures, was a new summary procedure.
Problems of procedural delay, which had become apparent, were thus
addressed to a degree. Litigation did not have to be so lengthy and
expensive. Statutes quickly adapted it from canon law. Indeed, one of
the other legally relevant developments in place by around 1300 was the
fact that it was about then that civic statutes began to be assembled in a

14
Vallerani, “The Generation of the Moderni at Work,” 153.

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 The Law in Italy 11

widespread fashion. Statutes included rules of procedure for use in local

courts. They made formal litigation possible and gave shape to local
norms and customs, making their comparison to ius commune feasible.
Indeed, one good reason for them was to set out rules that diverged from
the common legal heritage and to cover areas not in ius commune (includ-
ing political offices, guilds, and regulation of public spaces). Jurists them-
selves had an active role in the composition, compilation, and revision of
civic statutes and in the elaboration of judicial procedures. And all these
developments arose in the aftermath of the popular movements, success-
ful at least momentarily in many communities, in wresting power from
old oligarchic nobilities, in the course of the thirteenth century. Jurists,
notaries, and the rule of law in general thrived on the assertion of popular
perspectives on city-states and citizenship.
The major exception to such developments lay in the Mezzogiorno, the
Italian south of the kingdoms of Naples and Sicily. There educated jurists
concentrated on questions of practice, including those more germane to
the south, such as feudal law. Consilia and other practical writings drew
their attention, but little of that was eventually published. Law there
evolved on the basis of models developed to the north (and important
questions were at times referred to northern jurists for their input), but
local norms and practices were different for such essential matters as
inheritance and marital property. It is difficult, as a result, to integrate
the legal situation of families and gender into an Italy-wide picture.
The learned law and the legal profession continued to evolve after the
great fourteenth-century commentators had erected their imposing and
authoritative bodies of work. Problems still arose in practice and were
discussed in academic and judicial fora. The appearance of the printing
press raised new opportunities to spread and preserve important works.
Consilia could be gathered for circulation, and major jurists had one eye
to accumulation of their opinions into volumes, even as they wrote them
for the different courts and litigants. Courts themselves began to compile
their decisions, especially as some courts, like the Ruota in Florence, were
staffed with professional jurists serving for long or even open-ended
terms. Such judges became their own source of precedents, eclipsing the
judgments and authority of those who wrote consilia for them. This
process would provoke what has been labeled a “crisis” for law in the
sixteenth century. Judges and courts had opened up more avenues to
argue for the weight of legislation, especially that of the great European
monarchs, but also that of many lesser princes and cities, against the
common law and its interpreters.

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 12 Law and Families, 1300–1600

The use of law in practice and growing litigation also spurred the
exploration of different areas of law in monographic treatises that became
even more widespread and useful. The publication in 1584–86 of an
enormous collection of treatises in eighteen volumes (26 bound books),
known as the Tractatus universi iuris, was an important moment. It
marked the maturity of a system of law that arose with the professor
and the jurist, with the interpreters of law, even as their influence was
waning in favor of the legislator. The future would belong to the latter
and ultimately to codes of legislation.

the interventions of legal experts

Our study of families and law coincides with the heyday of consilia, when
jurists were the pivotal figures in formulating judgments. They are our
main source to understand the complexities of property, gender, and
family. These texts are dense, difficult, and important. They are where
the ius commune, local laws, and social practices all met.
The academically trained attorneys relied heavily on the texts and
premises of ius commune that they learned in school, but they were no
longer in an academic setting when acting as a consultor. They were not
free to ignore local positive law, much as they might be inclined to modify
and restrict it. They were operating and practicing in and among courts
run by governments or jurisdictional institutions such as guilds. Their
interventions in cases made and kept ius commune as a living force in
society, but it was not the only living force. Litigants could craft their own
compromise resolutions that did not conform to, though they might be
shaped by, any judicial resolution handed to them by a court. Judges
could be influenced by consilia and at times bound by law to follow them,
but they could also reach their own conclusions. It is just about impossible
to determine what the outcome was in any one case, especially if a
consilium is our sole source. But consilia are particularly useful and
fruitful sources for study of family and gender because they can allow
us to see how much law both constrained and enabled peoples’ actions.
We can see what possibilities law opened up. Laws made it possible to
preserve families and their patrimonies over generations. Laws made it
possible to exploit differences of gender and also to elide or circumvent
them. Laws defined who was married to whom and who was not. Laws
defined who were heirs. They provided procedures to examine and resolve
disputed questions. How exactly they did all that was what jurists had to
figure out.

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 The Interventions of Legal Experts 13

To make all the forgoing clear, it is perhaps useful once to see a con-
silium in some detail. Here in translation from the ponderous legal Latin
(making unfortunately for some ponderous English prose, which serves
here simply to impart some flavor of the original) is a portion of the Paduan
jurists’ argument in a case we will see in Chapter 1. The problem is the legal
presumption of consent of a father to a son’s business contracts:
I judge [arbitror] that it should be ruled to the contrary because the statute
demands knowledge, consent, and will. And knowledge alone without contradict-
ing an act, according to its proper meaning, is not consent and will, but a sort of
middle between wanting and not wanting something, <as in> lex 1, in the
paragraph si tamen and said lex 1, the paragraph si is qui navem <in the Digest
title> De exercitoria actione [D. 14.1.1,22 and 19], and in the rule is qui tacet of
the rules of law in the Liber Sextus [VI. 5.13.44] and plainly by Bartolo <in the
Digest title> Soluto matrimonio, the lex Que dotis [D. 24.3.33]. Therefore in a
municipal law departing from common law this case is not covered, given that
consent would appear by means of a fiction, as is well alleged above by the lex 3,
paragraph hec verba <of the Digest title> De negotiis gestis [D. 3.5.3,1]. For
which argues that the statute speaks by a [rhetorical] linkage, which links seem to
join things <as in the Digest title> De legatis iii, the lex ea tamen adiectio
[D. 32.1.46] and its nature must fall between diverse things, as is noted <in the
Digest title> De iuris et facti ignorantia in its rubric [D. 22.6]. Fittingly therefore
the statute was not content with knowledge alone but demanded true consent and
express will, and as it clearly appears, this was the intent of the statute, because in
the first part, when a son stands as master or partner, it was content with
knowledge, without contradiction, <but> where he stands as factor or apprentice
it demanded more.15

As can be seen, the jurist came to this resolution in a roundabout and

technical way, but also in a thorough and authoritative way. He had
recourse repeatedly to legal texts, once to a jurisprudential commentary,
and to rules of grammar (copulative expressions), as he played one
portion of a statute against another. The texts latched onto for analogies
concern activities different from (though at times close to) those in the
case. In this way he comprehended the statute within the terms of ius
commune while conceding it, as he had to, some weight. He was building
part of an argument to the effect that a father’s knowledge that his son
was in a business did not mean that he consented to every contract and
obligation the boy entered into.
Generally there were two types of consilia. Consilia sapientis could be
rendered for hypothetical cases, in which case they were extensions of

15
Biblioteca Nazionale, Florence, Landau Finaly 98, fols. 309r–20v, at 313v.

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 14 Law and Families, 1300–1600

academic exercises. But by and large they were produced at the request of
a judge or other official, on his own initiative or at the request of the
litigants, who usually bound themselves to abide by the jurists’ sentence.
Judges, even those of learned background, had limited knowledge of local
laws and could feel the need for advice. Citizen judges, as legal laymen,
might have some degree of knowledge of local laws or not – but little of
the overarching framework of ius commune or its interpretive mechan-
isms – and similarly could feel impelled to seek guidance. Dossiers with
copies of pertinent statutes and documents, a narration of legal facts, and
questions of law and/or fact that needed answering, were sent to one or
more jurists. As one expert in dealing with these texts has nicely put it,
equipped with analogy-serving passages drawn from Roman and canon law and
supported by references to ius commune authorities, all held together by syllogistic
inevitability, jurist-consultors nimbly traversed the minefield of statutory indeter-
minacy to fashion determinate case outcomes that enabled judges and public
officials to apply the city’s laws expeditiously.16

The result, if requested by or through the court, was typically considered

binding on the parties. The consilium could thus provide a solution that
had weight and might end disputes and litigation in a surer and quicker
way. It is important to realize that local governing authorities, including
those of guilds and other corporations, created and staffed courts and
issued procedural statutes that streamlined and modified the fulsome
procedures outlined in academic jurisprudence and embodied to a degree
in ecclesiastical courts. These bodies welcomed consilia for their proced-
ural impact, although they also had to face the fact that the legal
consultants might contest the legitimacy and justice of the rules and
claims of such governing bodies and corporations. Legislation to reject
jurisprudential voiding of local statutes (as Florence did in 1388) was
one result.17
Consilia were gathered and ultimately those of the most authoritative
jurists were printed. Others, faced with similar cases, could mine them for
ideas, terms, citations, and arguments. But it is important to keep in mind
that consilia possessed only “normative authority.” There was no system
of precedent by which previous judicial decisions were binding in subse-
quent similar cases. It could always be argued that a better opinion might
come along, and authors of consilia often signed their works with a

16
Kirshner, “A Critical Appreciation,” 20.
17
Kirshner, “Consilia as Authority in Late Medieval Italy: The Case of Florence.”

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 The Interventions of Legal Experts 15

disclaimer should a better argument arise.18 Legal theory remained intact,

moreover, as practical exceptions remained on the local level and did not
need to be “normalized.”
In fact, most of the consilia thus gathered were probably composed not
at the behest of the court but for one of the parties involved in or
anticipating litigation. The aim of these consilia pro parte was not juristic
truth, but advancement of one party’s claims. Such legal arguments were
delivered to judges who, however, were not obligated to follow their
findings (and how could one if there were consilia for both sides in a
dispute?), but clearly were open to being influenced by them and having at
hand legal arguments to back the subsequent judicial decision. Such
advocacy of clients’ interests provoked denunciations of consilia pro parte
and consulting in general for obfuscating and delaying justice, even by
jurists themselves, let alone humanists and other vociferous critics.
If anything, consilia pro parte had to be more thorough, rehearse both
sides of a question, cover all the relevant authorities, and systematically
argue both pro and contra. They had to be persuasive and legally authori-
tative in appearance. Such arguments had to be fully “motivated”
(explained and textually backed), whereas decisory consilia sapientis
could be quite sparing and were well advised to be so, so as to be beyond
challenge in any particular. Clothed in the dignity of the legal profession
and solemn forms, the consilium, with its invocation of the holy and its
subscription and wax seals in the original, can thus seem rather oracular.
As a practical matter, especially as surviving consilia, more so in print,
excised factual material in favor of the jurisprudential arguments and
references, it is often impossible to determine if a particular consilium
was sapientis or pro parte, as they were otherwise so similar. Consilia
were cited as authorities and examples, “arsenals of possibilities,” as
Mario Ascheri put it. From the point of view of a historian whose interest
is social, not legal per se, such consilia retain a stubborn anonymity and
resist contextualization. We will be able to say little about most litigants
in the cases we will come across.
Still, the texts fashioned resolutions to the patchy relations between
statutes and ius commune. The jurists who interpreted the texts, doctrinal
and statutory, were providing law where there was none (at least in terms
of a statutory rule). Where the relations among texts were uncertain,
where the actions of people threw further doubt at the meaning of texts,

18
Ascheri, “Il consilium dei giuristi medievali,” 255.

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