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Pol Boucher

Pages 277 - 286

It is difficulty to show that the jurists of the 12th and 13th century applied vigorously to law a debate which was the proper task of philosophers and logicians to conduct, i.e. the debate concerning the part/whole relations. The reason why it is difficult to show this is quite simple: these jurists had been glossators who wanted to understand law by means of interpretatio. Reasoned implications of such an exegetical approach had certainly to be taken into account in cases which the law did not cover or whenever the law was obscure enough to prompt an examination of the ratio legis. However, since the investigation of the ratio legis was always carried out in the course of writing a gloss on texts stemming from the Justinian compilation, which was derived itself from either the Decree of Gratian or the Decretales, in reality it was predestined to favour the result which could be obtained by using the glossator’s method. Arguments favouring the use of the part/whole relations are found in both the marginal and the interlineal glosses. The glossators were content with applying these relations without studying the implications of this reasoning from a strictly juridical point of view – NB of a reasoning whose pertinence appeared more evident when it was systematically applied in rhetorical exercise and scholastic divisions.

1Institut de l’Ouest: Droit et Europe, University of Rennes

1 Agricola, Rodolphus De investigatione dialectica, ed. by Alardus of Amsterdam (1539) Tübingen: Niemeyer, 1992.

2 Barbosa, Augustinus De locis communibus argumentatorum juris, Lyon, 1718.

3 Boethius De topicis differentiis, in: Patrologia Latina, ed. by J.P. Migne, vol. 64, Paris, 1891, coll. 1173-1216.

4 Cantiunculaalias Claude Chansonnette, Topica legalia, Basel, 1520.

5 Everhardus, Nicolaus (1591), Loci argumentatorum legales, Frankfurt, 1591.

6 Grammarus Dialecticae legalis, sive topicorum libri tres, Antwerp, 1540.

7 Hegendorf, Christophorus Libri dialecticae legalis V, Leipzig, 1531.

8 Hotman, François Dialecticae Institutionis libri III, Geneva, 1573.

9 Jungius Logica Hamburgiensis. ed. by R.W. Meyer, Hamburg: Augustin, 1957.

10 Mopha (=Matteo Gribaldi), De methodo ac ratione studendi libri III, Lyon, 1541.

11 Oldendorp, Johannes Topicorum legalium, Marburg, 1551.

12 Peter, of Spain Tractatus (= Summulae logicales), ed. By L. M. de Rijk, Assen: van Gorcum, 1972.

13 Schickard, Martinus Logica juridical, Herborn (= Herbonae Nassoviorum), 1615.

14 Stephanus, de Phedericus (= Stefano Federici), De interpretatione juris commentarii IV, Frankfurt, 1535.

15 Themistius Analyticorum posteriorum paraphrasis, ed. by M. Wallies, Commentaria in Aristotelem Graeca, vol. 5.1, Berlin, 1900.


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