Popular Autonomy and Imperial Power in Bartolus of Saxoferrato: An Intrinsic Connection

I. Introduction

Bartolus of Saxoferrato is well known because of his ideas on the autonomy of the populus or civitas.¹ He asserts that the populus can claim autonomous jurisdiction as a result not only of imperial concession but also of prescription, custom, or even eventual use on the ground of a de facto situation. Thus, the populus needs no authorization from a superior, not even the emperor, to make its own laws. The idea of an autonomous populus did not originate with Bartolus, however. Marsilius of Padua had already worked out a quite developed theory about the authority of the whole body of the citizens to legislate.² As opposed to the Aristotelian Marsilius, however, Bartolus bases his opinion about the populus essentially on the Corpus Iuris,³ though he knew at least the Politics and the Ethics too.⁴ What is important is not whether his knowledge of Aristotle was immediate or through Giles of Rome's De Regimine Principum but that he proves his ideas basically by showing that they agree with certain authoritative texts and that he considers the Corpus Iuris, not Aristotle, as the proper authority to support his opinion on the populus.

Such an emphasis on the autonomy of the civitas must not conceal the fact that, unlike Marsilius, Bartolus introduces the pope and the emperor alongside the populus as having jurisdiction of their own. Nor must the omnipresence of the Corpus Iuris hide the significance of the Bible in relation to the issue of the empire. Indeed he turns to the Scriptures not to substantiate the autonomy of the populus but to establish the divine origin of the royal (and papal) jurisdiction in general. Moreover, he uses them along with a particular interpretation of the popular origin of the empire to present the imperial jurisdiction as not subordinate to the populus.

The concept of an autonomous civitas based in human premises, therefore, coexists in Bartolus with a notion of imperial power established by God, the former being inseparable from the latter, by virtue of his use of authorities. In fact Bartolus turns to the Corpus Iuris and the Scriptures not simply to illustrate but to substantiate his point of view. The authority of the Corpus Iuris, however, which supports his views on the populus, comes from the fact that emperor Justinian was its autor. But the Corpus Iuris is by the same token less authoritative than the Scriptures, whose author is God and which support the divine origin of the imperial power. Thus, working out a theory grounded on the authority of the Corpus Iuris, Bartolus also favors the base on which the imperial power was founded.

The texts of interest here are the De Regimine Civitatis, De Guelphis et Gebellinis, and De Tyranno, where Bartolus more systematically presents his political ideas. In the De Regimine Civitatis he is concerned about "how many ways there are of governing a city,""which is the better way" and "which is the worst."⁵ The De Guelphis et Gebellinis treats both old and "recent" meanings of these nouns, whether these factions are licit, and the criteria to prove to which one belongs. At last the De Tyranno explains the origin of the word and the characteristics of the tyrant. Having discussed if there can be tyrant in a neighbourhood, household, and city, Bartolus divides the tyrants in the civitas into manifest, concealed, and tacit, and discusses whether their acts are valid. In tackling all of these issues, he turns to different sorts of proof—several authorities, including the Corpus Iuris, Scriptures, Aristotle, Giles of Rome, Gregory I, and Aquinas, as well as the jurisdictions of the populus, pope, and emperor. This essay shall refer mainly to these treatises, while picking up, from other works, any additional instructive elements.

Although Bartolus is particularly concerned about the de facto autonomous Italian cities in his time, his defense of their autonomy lies in arguments, and he has clear rules which define a valid form of argumentation. He generally considers that to prove a point means to show that...