The fictions of canon law. Nature, reality and fiction in the Twelfth Century
DOI:
https://doi.org/10.6092/1593-2214/6727Keywords:
Middle Ages, 12th Century, Europe, Augustine, Azo, Azzone, Simon of Bisignano, Gratian, Decretum Gratiani, Johannes Andreae, Yan Thomas, Ernst Kantorowicz, Anselm of Laon, Hugh of Saint Victor, Ivo of Chartres, Walther de Coutances, Hostiensis, fictio legis, fictio iuris, fictio canonis, fiction, Legal fiction, Medieval canon law, Non-imputability, Plenitudo potestatis, Uguccione/Uguccio da Pisa (Summa Decretorum)Abstract
The paper aims at proving the existence of a category of medieval legal fiction apparently unexplored by legal historical studies: the fiction of canon law. Starting from the analysis of a rich and complex gloss written around 1170 on the Decretum Gratiani, the paper focuses on the following issues: the impact of French theological debates of the 12th century devoted to fiction in canon law; fiction as an instrument employed by the medieval canonists to highlight cases of non-coincidence between subjective intention and objective result; the interaction between subjective fiction and the medieval idea of subjective nature, in opposition to the objective characteristics of nature and fiction in Roman law; the contribution of canon law ficiton to the 13th-century concept of plenitudo potestatis, against the background of Ernst H. Kantorowicz’s thought.
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