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6 - Elegant Scholastic Humanism? Arias Piñel's (1515–1563) Critical Revision of Laesio Enormis

from Part III - LEGAL HUMANISM: A PAN-EUROPEAN METHODOLOGY?

Published online by Cambridge University Press:  05 September 2016

Wim Decock
Affiliation:
Leuven
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Summary

A. INTRODUCTION

B. THE CAREER AND CONVICTIONS OF A HUMANIST JURIST

  1. (1)Combining erudition with practical engagement

  2. (2)Praise of the individual against political absolutism

  3. (3)The social nature of man and the do-no-harm principle

C. UNHOLY NEW IDEAS: PIÑEL's CRITICAL INTERPRETATION OF LAESIO ENORMIS

  1. (1)The concept of laesio enormis is not part of classical Roman law

  2. (2)The concept of dolus reipsa is a late medieval invention

  3. (3)Imitating and emulating the French humanists

D. CONCLUDING REMARKS

INTRODUCTION

It is increasingly being recognised that broad tags such as “humanism” and “Scholasticism” fail to do justice to the “hybrid” nature of legal as well as theological sources of the early modern period, certainly in the Iberian world. A case in point are the Commentarii ad rubricam et legem 2, C. de rescindenda venditione by the Portuguese jurist Arias Piñel, a successful legal practitioner born in Sesimbra who combined his lawyering activities with a position at the University of Coimbra and later at Salamanca. By submitting C.4.44.2 to thorough philological and historical analysis, Piñel wanted to investigate the “true” meaning of laesio enormis. Against the gloss and the communis opinio doctorum, he claimed that the remedy by virtue of C.4.44.2 was unknown to the Roman jurists before the time of emperors Diocletian and Maximian. In Piñel's view, the irrelevance of lesion to pristine Roman law was obvious from a careful exegesis of various texts in the Digest. Although he expressed the fear that many scholars would bear the “new light of truth” on laesio enormis badly, Piñel went further in his critique of traditional legal scholarship by revealing the medieval origins of the allegedly Roman doctrine of objective deceit (dolus reipsa)– which was traditionally associated with the teachings on lesion. The mission of the jurist from Sesimbra was to combat anachronistic readings of the Roman sources. He believed that the French humanists did not go far enough in their exercise of contextualising the Roman legal tradition. Piñel wanted to highlight the fundamental difference between the pagan legal culture that had informed the classical Roman jurists, on the one hand, and the new mentality of the ius commune as it developed during the Christian Middle Ages, on the other.

Type
Chapter
Information
Reassessing Legal Humanism and its Claims
Petere Fontes?
, pp. 137 - 153
Publisher: Edinburgh University Press
Print publication year: 2015

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