La doctrina legal en la Sicilia española de la Edad Moderna = The legal doctrine in early modern Spanish Sicily

              XXI Coloquio de Historia Canario-Americana (2014)
ISSN 2386-6837, Las Palmas de Gran Canaria. España, 2016, XXI-057, pp. 1-6 1
© 2016 Cabildo de Gran Canaria. Este es un artículo de acceso abierto distribuido bajo los términos de la licencia Creative Commons Reconocimiento-NoComercial-SinObraDerivada 4.0 Internacional.
LA DOCTRINA LEGAL EN LA SICILIA ESPAÑOLA
DE LA EDAD MODERNA
THE LEGAL DOCTRINE IN THE EARLY MODERN “SPANISH SICILY”
Francesco Di Chiara*
Cómo citar este artículo/Citation: Di Chiara, F. (2016). La doctrina legal en la Sicilia española de la Edad Mo-derna.
XXI Coloquio de Historia Canario-Americana (2014), XXI-057. http://coloquioscanariasmerica.casadeco-lon.
com/index.php/aea/article/view/9539
Resumen: El propósito de este trabajo es el análisis de la doctrina legal siciliana en la temprana Edad Moderna.
Particularmente presentaremos una síntesis sobre la contribución de esta doctrina a la configuración del derecho
positivo en el reino de Sicilia. En consecuencia, el análisis girará en torno a los géneros literarios presentes en la
disertación doctrinal.
Palabras clave: Regnum Siciliae; Decisiones; tratados; tribunales superiores
Abstract: The purpose of the present contribution is to analyze the sicilian legal doctrine in the early modern age.
In particular I would like to give an account of the contribution of this doctrine in the effective formation of the
positive law of the Kingdom of Sicily. Thus the analysis focuses on the literary genres used by the doctrine achiev-ing
that aim.
Keywords: Regnum Siciliae; Supreme Courts; Decisiones; treaties
Legal science Sicily, between ‘500 and ‘600 is characterized by a very close connection with the
field of procedure. This is evident, in fact, from the works of Sicilian jurists which are composed in
this period, at least from a purely quantitative point of view. A production which is so wide and varied
in terms of expressing the legal doctrine of Siciliy between the fifteenth and seventeenth century. It is
important from the quantity point of view but especially valuable from that of quality, according to the
high degree of authority both within the island and that which reached beyond the borders of it. This
is remarked especially from the dissemination of these works which were printed in various editions
across most of Europe.
Like all the others modern territorial-political systems in Europe, even Siciliy is characterized by the
presence of royal Courts of Appeal, institutions that a consolidated —even if outdated— legal-historical
tradition brought together under the generic name of “Grandi Corti” (Great Courts) or “Tribunali Su-premi
“ (Supreme Courts)1.
It is known that the definition of “Grande Tribunale” can be related to the Supreme Court of every
state-organization of the modern period; a high court composed only by the choicest jurists, person-ally
appointed by the sovereign, with exclusive competence on a number of subjects (above all crimen
laesae maiestatis) and competence of appeal on any sentence issued by lower tribunals. In the past de-cades,
the studies on the “Grandi Tribunali” had a significant development, even though characterized
by sporadic occurrence; in addition, it’s to point out that, at least by historians of law, it has been paid
* Research Fellow. Università di Palermo. Dipartimento di Scienze Giuridiche, della Società e dello Sport. Via Ma-queda
172, 90134. Palermo. Italy. Teléfono: +39 09123892001; correo electrónico: fra.dichiara@virgilio.it
1 Is known that the issue was addressed around the 70s of the last century from studies by GORLA (1977), pp. 445-
532; on conceptual and definitional problems posed by this historiographical category cf. ASCHERI (1989); SAVELLI (1994),
pp. 397-421; Birocchi (2002), pp.85-93.
Fra ncesc o Di Chiara
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more attention to the production of case law —in particular the collections of decisions— than to the
procedural documentation2.
Therefore, being so relevant the analysis of these structures, wich stood at the top of the adminis-trative
and jurisdictional organization of early modern kingdoms, equally valuable is the study of the
officiales, i.e. the judges who formed the courts. These figures, in fact, constituted a powerful and often
cohesive class, the so-called togati, which greatly influenced the institutional dynamics of the sixteenth-seventeenth
century monarchies.
Appointed by the sovereigns in order to set up their own judicial arm and ensure the strict application of
the royal law, these officials actually exercised an alternative power, often opposing to the central one. This
counter-power stemmed precisely from the prominent role performed, ex officio, in the administration of
justice of last degree, not to mention the personal prestige claimed by these judges, chosen among the most
distinguished jurists of the realm and coming from the most relevant families.
Therefore, it is certain that in the last decades of the sixteenth century and the first half of the next
century, also in Sicily, a tecnique production flourishes. It grows around the nucleus of the Sicilian’s Su-preme
Courts, it was closely related to the activity of these courts. The authors of these doctrinal works
were at the same time judges but also jurists. Indeed, in large part they were professors or ex professors
at the University of Catania and Messina3.
The decisio is the literary genres that best represent this relationship between doctrine and judicial
practice.
Referring to case law in late-medieval and early-modern European law, particularly in the ius com-mune
tradition, usually means relying on collections of so-called Decisiones or continental-type law
reports, which were works written by authors in their private capacity, and therefore works which be-longed
primarily to legal doctrine. These collections rarely reproduced the text of the judgements, which
would anyway, as they did not express the legal principles upon which the judge or the court had relied,
not have fulfilled the purpose of reporting decided cases. Most collections of Decisiones contain a le-gal
analysis or commentary of one or more decisions from one or more courts. Because many of these
printed collections would nonetheless purport to present the legal grounds and reasoning behind the
decisions, they were instrumental, as a successful genre in early-modern legal literature, in establishing
the notion that cases did contribute to legal developments, and could therefore qualify as an authority or
a “source” of law, and therefore as “case law”4.
The dissemination of collections of decisiones of the main European Supreme courts is a global
event involving most of Europe. In fact, the authority of those Court allows their Decisiones to cross the
boundaries of states and give rise to international practice, a European usus fori.
It was perhaps the emphasis of this phenomenon to reinforce the idea of the European validity and
reception of the ius commune that although with new genres than medieval connote also the modern age
almost to the nineteenth-century codifications. This view was supported by most of the legal historiogra-phy
of the second half of the twentieth century, committed, through the search for a common legal past,
in the difficult attempt to build an integration on a continent still reeling from the recent World War. One
of the most important representative of this vision is certainly Helmut Coing, who moves from the idea
of a common law from the twelfth century come to the threshold of codification, in the preparation of his
monumental Handbuch der Quellen und Literatur der neureren europäische Privatrechtsgeschichte5.
This vision has been in recent years strongly opposed by those who have first reduce the global ex-tencion
of this ius commune, which would actually be limited to only a few territories in Western Europe
but also its effective penetration in the bodies of the early modern state, far more characterized by rising
native State law and Jurists who were active in this context. According to this approach, in fact, the con-tribution
of foreign lawyers would have a residual nature, in a scientia iuris that was predominantly “na-
2 The most significant examples are PETRON IO (1977); ID. (1997), pp. 355-453; G.P. MASSETTO (1990), pp. 75-
112; MILETTI (1995); SBRICCOLI- BETTONI (1993); KRYNEN (2000), pp. 353-66.
3 CORTESE (1985), p. 131.
4 WIJFFELS (2010), p. 37.
5 In particular, the author expresses this idea in an emblematic article, COING (1967), pp. 1-33.
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tional”. In this sense, for example, Duglas Osler criticizes this idea of a “pan-European jurisprudence”,
Instead he argues that “the real legal history was taking place somewhere else, namely in the national
legal systems which were coming into place in the modern period”6.
Albeit perhaps scaled from the point of view of its territorial extension, it seems, though, that for
everything that affects the circulation of collections of decisiones, we can still speak of a system of au-thoritative
citations related to the method of the ius commune on which it was built a real transnational
usus fori.
This phenomenon also applies to Sicilian collection of Decisiones if we pay attention to the large
number of editions printed outside of the island and the frequent references to them that decisiones is-sued
by the Supreme Courts especially Neapolitan and Spanish make.
The collection of Decisiones by Sicilian jurists stand on the crossroads of several legal traditions at
the end of the 16th and beginning of the 17th century. They are anchored in the civil law or ius commune
tradition, but their perspective is that of the Sicilian´s Kingdom. As works written primarily by the stan-dards
of the ius commune literature, they reflect in many ways the “law of the books”, but because their
proclaimed emphasis is on the practice of the Sicilian superior courts, they also reflect to some degree
legal practice, or, as it is sometimes called, the “law in action”.
In this structure the communis opinio that is the solutio of the disputes is made by a system of quota-tions
indifferently of domestic and foreign auctoritates, but the important is that these sources appear to
have been selected almost exclusively within the wide body of available ius commune literature.
In the Sicilian collectios of Decisiones, only few references to a foreign particular law could be
made directly through primary authorities, whether customary law, statutory law or case law. In the vast
majority of cases, sicilian Jurists —as most of his contemporaries— had to rely on secondary sources
in order to have access to foreign primary authorities. In addition, these secondary sources appear to
have been selected almost exclusively within the wide body of available ius commune literature. As for
customary law, statute law appears to be in most cases quoted via a doctrinal work. However, case law
appears to be by far the most frequently quoted type of foreign authority. Another feature of Sicilian´s
habits in referring to foreign courts reports is a tendency, already alluded to, to refer to a more or less ex-tensive
string of judicial authorities, as if the author sought safety (or rather: legal security) in numbers.
A less pusillanimous explanation could also be that, whether considering the European ius commune
world or a particular polity, the amalgamated references of concurring case law was deemed to estab-lish
the judicial equivalent of the communis opinio doctorum, and that, since the authority of (supreme)
courts was said to stand higher than that of legal authors, such a judicial communis opinio could offer a
strong argument for establishing a particular principle.
The first collection of Decisiones of a sicilian court came out in 1593 and is assigned to the judge
Francesco Milanese7. The work opens, stating that this is a very fortunate series of Decisiones for Sic-ily.
It is, in fact, followed by editions of many other books whose authors, Mastrillo8, Intriglioli9, Del
Castillo10, Giurba11, Muta12, Caracciolo13 and Basilicò14, to name the best-known representatives are the
most influential among Sicilian lawyers and judges lived between the second half of the sixteenth and
the seventeenth century. Their collections are inherent mainly to causes discussed in the courts of the
Regia Gran Corte15 and of the Concistoro della Sacra Regia Coscienza16, with no discernible collections
of judgments of the Curia Rationum. Most of the decisiones regards the feudal matter, the most debated
6 OSLER (1997), p. 404.
7 MILANESE (1593).
8 MASTRILLO (1606).
9 INTRIGLIOLI (1609).
10 DEL CASTILLO (1613).
11 GIURBA (1616).
12 MUTA (1619).
13 CARACCIOLO (1641).
14 BASILICÒ (1669).
15 On The Decisiones issued by the Regia Gran Corte see ROMANO (1997a), pp. 137-194.
16 On this subject could see F. DI CHIARA (2011).
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in local courts, although there are collections entirely focused on criminal disputes or volumes that col-lect
judgments in the field of trade and census.
In Sicily, then, published examples of such literature are not found before 1593, but in the fifty years
from 1600 to 1650 there are more than even thirty editions, which then diminish to less than ten in the
second fifty years of the seventeenth century. The reasons behind that flourishing in this period are at-tributable
to a number of factors. First, the stabilization process of the High Courts in Sicily, which be-gan
in the mid-fifteenth century matures with the prammatica de reformatione tribunalium of Philip II
in November 156917. And ‘with that decision, in fact, the structure of the judiciary of the island with the
apex courts of the Regia Gran Corte end of the Concistoro della Sacra Regia Coscienza is essentially
defined, including in relation to a preconceived system of ordinary appeals18. Added to this is surely the
massive professionalization of the judiciary because of the presence, as judges of the supreme courts, of
the greatest jurists of the island, especially those which could not but help to increase the prestige of the
decisions taken by those courts. These same judges are also the authors of the collections of these deci-siones.
Significant influence may also have been a “fashion” which took the form of a literary genre in
those years, which largely succeed in Europe. . Do not underestimate the momentum which was finally
derived from the creation and dissemination of printing works in Palermo, useful for decreasing the cost
and facilitating the necessary contacts for the editions.
These collections of case law although totally neglected by historians to date, undoubtedly constitute
sources of knowledge of primary importance not only for the study of legal thought between the Sicilian
XVI and XVII century, but also to investigate the contribution of the doctrine to the interpretation and
effective formation of the positive law of the Kingdom of Sicily.
To complete the picture, always with regard to the production of doctrine, treaties explicitly on the
procedure for forensic activity are also held in high esteem, in addition to the collections of Decisiones.
This is also the case for the ‘practicae’ and commentaries on the civil and criminal Ritus Magnae Regiae
Curiae in particular19, the source of law with which Alfonso V in 1446 intended to regulate the internal
praxis of the courts of the Kingdom20.
These works, which were produced in considerable numbers as early as the second half of the fif-teenth
century, spread particularly in the late sixteenth and early seventeenth century, in the same period
in which, as has been seen, the collections of Sicilian Decisiones also thrive. Also the authors of these
works are all successful judges and lawyers, who often write not only treated but also collections of
decisions. This factor determines not only homogeneity, especially in style between the two genres, but
also a dense series of reciprocal citations among the Decisiones and treaties in a continuous exchange
between auctoritates that “play” to legitimize each other.
The two most important and popular treatises on Ritus magnae Regiae Curiae are surely the com-mentaries
of Joseph Cumia21 and Marcello Conversano22.
While the first work follows a classical pattern in which the author gives his own interpretation of
each article of the Ritus, the second one has a particular structure. This is, indeed, the edition of the
most authoritative commentaries “quae ante in Curiis allegabantur Manuscripta”: the aim, stated in the
dedicatory letter to the publisher Angelo Orlandi, is to preserve the memory of all those eminent jurists
who wrote on the Ritus and who were still mentioned in the Sicilian courts. The collection contains the
full text of the Ritus, includes, among others, comments by Antonio Blasco Lanza, Pietro Rizzari, Gian
Luigi Settimo, all professors at the studium of Catania and active in the last two decades of the ‘400 and
the first of the next century. To them, teachers of law but also judges in the major courts of the kingdom,
17 Pragmaticarum (1637), pp.1-7.
18 On Modern Sicilian administration of justice see BAVIERA ALBANESE (1992), pp. 109-158; SCIUTI RUSSI
(1983); ROMANO (1997b), pp. 111-161; for a period longer dating see PASCIUTA (2003), pp. 41-68.
19 The full text of the Ritus Magnae Regiae Curiae et totius Regni Siciliae Curiarum, by Alfonso V il Magnanimo is
in TESTA (1741), t. I, pp. 240-273.
20 On the Ritus Magnae Regiae Curiae see PASCIUTA (2003), pp.88-91.
21 CUMIA (1578).
22 CONVERSANO (1614).
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it is due the start of the Ritus interpretation and the creation of the first nucleus of a communis opinio
destined to mark all the legal doctrine of Sicily in the following centuries.
At the same time, other important jurists are devoted to comment of other sources of law in force
in the Regnium. This is the case of Mario Muta, author of commentaries on the Capitula Regni23, the
Pragmaticae24 and Consuetudines25 of Palermo, or Mario Cutelli, that using its notae politicae, to make
a comment, in four books, on Capitula of Kings like Giacomo, Federico III, II Pietro and Martino26.
Instead, the Lucubrationes by Mario Giurba are devoted to the Statutory legislation of Messina27.
Another important contemporary work, carried out by one of the most famous jurist of the island, as
well as author of a widespread collection of decisiones, is the De imperio et eorum magistratibus iuris-dictione
of Garsia Mastrillo28. This is not a commentary, such as those analyzed so far, but a political
treatise, in which the author analyzes meticulously origin, powers and limits of magisterial authority.
This was the first, and in some ways the only of its kind produced in Sicily. For this reason, the treaty
enjoyed considerable success since it was perceived as a real essential source for the knowledge of the
judicial system.
Conclusion
Works of doctrine, despite their undeniable differences, mainly due to the different literary genres
used by the authors, are characterized, in fact, for the purpose of explaining, and perhaps most impor-tantly,
for interpreting the Ritus, an interpretation that necessarily become creative, arise sufficiently to
make the work of teaching a source which takes precedence over the original legal text. This finding
seems incontrovertible, even with regard to the perception that users have the same law. In fact, all cita-tions
of the Ritus, contained in the collections of Sicilian Decisiones which in the eyes of contemporaries
reflected the law as applied in judicial practice, do not make direct reference to Ritus, but to the works
in which this law is commented on, particularly in the two commentaries of Conversano and Cumia.
So that which goes to make up the communis opinio, resolving disputes, is not the source of law, since
it is the interpretation which makes the doctrine. The legislation, as such, seen rather in terms of in its
deterioration, is unclear and uncoordinated. Hence, this doctrine, with its rationality, corrects it, thus
providing a procedural model which to some extent offered an alternative to that imposed directed by
standardization.
Moreover, it is no coincidence that in the Sicilian collectios of Decisiones statute law —both domes-tic
and foreign— is occasionally, but not frequently, quoted as an authority. Indeed, case law essued by
Sicilian or foreign courts appears to be by far the most frequently quoted type of authority, together with
the works of doctrine, used as solutio to resolve disputes.
This is a response within the scope of the activity of lawyers, regarding the interpretation and imple-mentation
of the law, against the attempt by the Sicilian monarchy to include procedural matters entirely
within the legislative powers of the sovereign.
The formal law of the state and legal doctrine are therefore constantly engaged in a silent opposition
to electing procedure as an arena for activities and accommodation, with the purpose stated, to bring
order to a discipline which in itself is chaotic and less inclined to fall into grids which are unique and
preconceived29. Simply study the possible relation of the rule laid down by the king and the interpreta-tion
given by jurists is useful in order to identify the space occupied by the law actually applied in the
Kingdom.
23 MUTA (1605-1627).
24 MUTA (1622).
25 MUTA (1644).
26 CUTELLI (1622).
27 GIURBA (1620)
28 MASTRILLO (1616)
29 This theme is further developed by PASCIUTA (2012), pp. 315-330.
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