Jurists use various kinds of arguments to defend their views while discussing a case. Many of these are still considered valid today. A present day legal scholar or practitioner is not unfamiliar with a contrario and a simili - reasonings. However, some more captivating species of argumentation, or, loci, such as the 'from slave to monk' proof (a servo ad monachum) or the argument from authority (ab auctoritate) have long since disappeared from legal treatises, if not as examples of fallacious reasoning. Yet, in a 16th -century case, handed down in the diaries of the Imperial Chamber Court's assessor Viglius from Aytta, we read that 'it is worth a deal to have a decision in the writings of some learned man, even if he speaks without being backed by law'. Studying the application of such loci in legal doctrine and practice throughout history can provide valuable insights as to how the ideas about 'doing law' changed over time. The present paper accordingly focuses on the locus ab auctoritate as it was conceived in late medieval times and the opinions 16th -century scholars held about the matter. Did humanist thought affect the value attached to the opinions of authorities in favor of a more rational approach to law? Or is such a demarcation between medieval and 'modern' times unwarranted? To answer these and similar questions, first, the locus ab auctoritate as presented by medieval scholars will be discussed. Among others, Bartolus de Saxoferrato (†1357) wrote a sophisticated argument in which he discusses the validity of argumentation grounded on the opinion of learned men (communis opinio doctorum), which argumentation, he opined, 'though probable, is not cogent'. Next, the author addresses 16th -century legal scholars such as Nicolaus Everardus (†1532), Ulrich Zasius (1461–1536) and Johannes Oldendorp (†1567) who also dealt with the argument from authority. To what extent did they adhere to the medieval scholars' views? What adjustments, if any, to their predecessors' theories did they make and, perhaps even more important, what urged them to revaluate the meaning of the locus ab auctoritate? Finally, the author will turn to 16th -century legal practice. In the case already cited above we hear another voice proclaiming that 'we grow red with shame if we speak without being backed by law'. The contradictory remarks made in one and the same case provide a handle to speculate on how the locus ab auctoritate in 16th –century was put to practice.
13 Apr 2013
2013 UK IVR Annual Conference: Legal Theory and Legal History: A Neglected Dialogue?