COURTS AND CONFLICT IN TWELFTH-CENTURY TUSCANY

Vol. 14 No. 5 (May 2004), pp.301-304

COURTS AND CONFLICT IN TWELFTH-CENTURY TUSCANY, by Chris Wickham. Oxford: Oxford University Press, 2003. 376pp. $ 85.00. £55.00. Hardback. ISBN: 0-19-926586-0.

Reviewed by Carlo Guarnieri, Department of Political Science, University of Bologna. Email: guarnica@spbo.unibo.it.

Twelfth-Century Italy was characterized by two significant developments: on the one hand, the progressive decline of the Carolingian political system and imperial power together with the establishment of communal government in the cities; on the other, the rise of the schools of Roman and canon law in Bologna. Therefore, while Italy’s legal erudition was the most developed in the west, its political and legal systems were maybe at the weakest in Italian history (at least since the eighth century).

Wickham’s excellent book addresses this situation of political transition by looking at the practice of disputing and dispute resolution in civil courts – both secular and ecclesiastical - in three Tuscan cities: Lucca, Pisa, and Florence. His research focuses not so much on the development of the law but on the practice and its dialectics with legal rules. Although the analysis relies mainly on the careful scrutiny of the historian, it also employs methods and concepts taken from the social sciences: the “extended-case” method – elaborated by Max Gluckman and his school – that aims at analyzing disputes in their widest context; the concept of “social drama” to describe the process by which a dispute develops more or less as a play, with a public phase, where the claims of the parties are emphasized in order to further resolution; and that of “habitus,” from the work of Pierre Bourdieu, employed in order to underline that social action is governed less by rules than by a more or less conscious process of strategic manipulation of rules.

Although belonging to the same region, the institutional setting of the three cases is somewhat different. Lucca had already established rather strong communal institutions in the field of the administration of justice, although it had not received Roman law. Pisa displayed both strong communal judicial institutions and a rather coherent body of legal rules derived by Justinianus’ CORPUS JURIS CIVILIS. By contrast, Florence’s judicial institutions were still weak and had little accepted authority, especially in the countryside. Nevertheless, they show some pattern of homogeneity, especially in the way judicial evidence and substantiation worked. In all cases, the probative power of documents, as well as public speech, was recognized. Also customary rules were everywhere respected. Above all, the importance of publica fama – common knowledge – in the proceedings must be stressed. But the legal and institutional differences across the region had a considerable effect on disputing strategies. For example, the presence of a comprehensive body of written law had an impact on the explicitness of legal argument. The greater acceptance of normative argument in Pisa created a space for the possibility of legal [*302] argument that depended only on the correct interpretation of the law. Similar arguments were occasionally available in the context of ecclesiastical courts, but never in secular disputes, in Lucca or in other cities. Here, one argued about facts, whose implications were, at least in principle, self-evident.

However, it is the institutional structure of disputing that mattered most. After the middle of the century, Lucca and Pisa established a complex set of communal or consular courts, hearing an increasing percentage of cases. These courts were not institutionally very strong, since their enforcement capacity was usually limited to few armed men. But they generated a predictable judicial process, allowing for lengthy arguments between the parties and the calling of witnesses or the presentation of written proofs. The result was a considerable level of effectiveness, despite the lack of coercive powers. As for arbitration, in both cities it was widespread and conducted by similar people and by similar rules, but it showed a greater tendency to compromise and it was therefore likely chosen by litigants who wished to reduce risk. Papal justice was organized differently. Legal hearings were managed in a way similar to those in Lucca and Pisa, but the possibility of constantly reopening a case allowed a peculiar type of disputing strategy. Not only could losers appeal as many a dozen times, but arbitration and compromise were an exit route from open-ended disputing. On the contrary, in secular cases in Lucca and Pisa one had to choose in advance between formal courts and arbitration. In all cases court judgment and arbitration were alternatives inside the system rather than structurally in opposition, but they had a different strategic relationship to each other in communal as opposed to papal justice. In the countryside of Florence, because of the weakness of judicial institutions, in most cases there was no alternative to arbitration. But, in the absence of a dialectic process with formal courts, arbiters were the focus of every type of secular disputing strategy, and as a consequence they produced compromises less often than did urban arbiters in Lucca and Pisa.

In every area the possibility for litigants to choose between courts and other ways of settlement was not unlimited, but, when alternatives were available, they were used strategically. Parties made their decisions according to where they expected to get the most favorable hearing or be exposed to the least risk. In other words, the book suggests that some form of “forum shopping” ante litteram was very likely to occur. One interesting consequence was that those in charge of resolving disputes had to take this situation into account. Since courts could not take their presence and authority for granted, they were somewhat forced to give litigants what they wanted. However, even though city courts had a very weak structure of enforcement, and papal courts and rural arbitration had none at all, each system managed to create a framework in which consent to losing was made possible. Especially the cities, although institutionally not very strong, seem to have had a fairly effective judicial process. All in all, in each judicial system, the process, with the drama of force and argument, for the most part worked to quiet people down, to get them to accept decisions – defeat or compromise - to settle their disputes.

The book therefore confirms the main [*303] traits of triadic dispute resolution. Probably because the analysis is devoted only to civil litigation, the authors put courts firmly inside the mediating continuum, where the most fundamental devices for maintaining the triad is consent and mediation—that is the avoidance of dichotomous, imposed solutions (Shapiro 1981). When consent and mediation are not ready available – or when they are perceived as being too costly – they can be partly substituted by law and by the capacity of the system of enforcing decisions. However, enforcement cannot completely substitute for consent. Often judicial decisions incorporate compromise, and much of court procedure is devised to extract in some way the parties’ consent to judicial decision—e.g., in the cases analyzed in the book, initial oaths to accept the judicial verdict, multiple hearings, the possibility of appeal, and so on. Actually, complexity in procedure seems to have been a sort of functional substitute for the weak capacity of enforcement.

As we have seen, the political context of twelfth-century Italy was not characterized by strong political power. Imperial rule was declining and the Pope, although on the upswing, was not capable of providing strong enforcement to decisions by papal courts. As for the communes, their power was increasing during the century but was far from being consolidated. The courts of Florence, for example, did not yet reach the countryside, and the courts still had only a very rudimentary force at their disposal in Lucca and Pisa. Moreover, Italy lacked at that time a unified judicial system. Different courts were actually competing one against the other, and private or semi-public arbitration was available and often effective. The result was often long procedures, with cases going back and forth between different courts and with the stronger party trying to maneuver for advantages. But courts were developing procedures in order to constrain parties to accept their decisions. As already underlined, procedures were particularly important, and the role of the community was quite significant. Publica fama, common knowledge within the community, was important in determining customary evidence – for example, the possession of a portion of land – and also in putting pressure on the parties to accept judicial rulings.

The book, although focusing on Medieval Italy, has considerable contemporary significance. Indeed, today, Western countries are coming to resemble twelfth-century Italy. National courts are no longer the exclusive actors in a game in which important roles have been already taken over by supranational courts, and by transnational justice—that is, by courts belonging to a combination of national systems and interacting beyond traditional borders. The result has been a decline in the capacity of individual States to enforce the decisions of their own courts. Litigants – and especially powerful litigants – have increasing leeway at their disposal. They can choose, at least to some extent, the arena in which they want their case to be resolved, and often they can move back and forth among different judicial systems. It is possible to offset such a strategy by greater coordination among courts of various systems (Slaughter 2003). But cross-national coordination has its limits, and it is unlikely that room for maneuver by litigants will be erased. This book suggests that courts will react [*304] in at least two additional ways as well—by attempting to satisfy as many litigants as possible and to constrain, through always more elaborated procedures, losers to accept defeat.

REFERENCES:

Shapiro, Martin. 1981. COURTS. A COMPARATIVE AND POLITICAL ANALYSIS. Chicago: The University of Chicago Press.

Slaughter, Anne-Marie. 2003. “A Global Community of Courts.” 44 HARVARD INTERNATIONAL LAW JOURNAL 191-219.

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