Ippolito Marsili. Un giurista medievale alle soglie dell'et� moderna
Creators: name: GODANO, FRANCESCO
Publisher: name: Universit� degli Studi di Milano
Year: 2017

description: The research presented in this thesis focuses on the Italian iuris doctor Ippolito Marsili (Bologna 1450 - Bologna 1530). One of the founders of criminal law scholarship and teacher of the first known criminal law course, Ippolito Marsili is aknowledged as a prominent scholar of his age; nonetheless, his biographical and scientific profile still awaits an organic recontruction. The aim of the research is to examine a few aspects of the life and work of this jurist, in order to provide a starting point for a possible comprehensive study. The dissertation is divided into two parts. The first part is centered on Marsili's biography. In chapter 1 a short account of the Marsili family is presented; in particular, I highlighted the links of the family with the powerful Milanese Signoria of the Sforza. Chapter 2 is focused on the main stages of the jurist's life. After discussing a few problems concerning his doctoral degree (his alleged canon law degree is missing), I analyzed his professional career as a teacher - in Bologna - and as a judge - mainly in the Sforza dominion. The research shows a very strong, almost frantic connection between these two activities, which sometimes even seem to overlap; such a feature mirrors the bond between theory and practice of law that Marsili will later pour into his works. In his relationship with political power, our character reveals the struggle of the typically medieval, autonomous jurist to exercise his role in the growing, bureaucratic State entities. Finally, the research shows how - contrary to a generally accepted tradition - Marsili cannot be considered the inventor of the ?sleep deprivation? torture technique, which he arguably gathered from the praxis of the Lugano (Switzerland). The biographical part is completed in chapter 3 with an account of Marsili's literary production: lecturae/commentaria and repetitiones on the Corpus iuris, a few tractatus, a collection of singularia and his consilia. The second part of the thesis examines Marsili's main work, a criminal law treatise named Practica criminalis Averolda nuncupata (approx. 1525). Chapter 4 summarizes the development of criminal law science and the literary genre of Tractatus or Practicae criminales. Marsili's work can be thought of as a transition point between the ?medieval forerunners? and the ?mature? modern Practicae: such a position awards it peculiar and noteworthy features. Chapter 5 is dedicated to the Averolda's formal properties, examined through a comparison with a few other medieval and modern works of the kind. Practicae criminales have a main practical nature: they rationalize the criminal law emerging from medieval courts and statutes outside the scope of the Corpus iuris. Compared to other works, however, Marsili's Practica has a strong theoretical and educational purpose, combined with the practical scopes. Despite being written in the first half of the sixteenth century, the sources employed in this work (as in all the medieval ones) are the roman-canon law and the opinio doctorum. The Courts' decisiones are rapidly overcoming the scholars' law, and will have a central role in the modern Practicae, giving a territorial facet to ius commune; nonetheless, the Averolda completely ignores them, standing by a universalis, scholar-led system. Marsili's use of scholastic dialectics and particularly of the quaestio - resounding medieval procedures - reveals the purpose of extracting general rules and principles from case law, rather than giving precise solutions to each issue; the author intends to guide the reader through the reasoning behind the ermeneutic process. On the contrary, the main modern Practicae tend to reduce the role of the opiniones doctorum - often generically summarized as communis opinio - and to provide definite, clear solutions to practical issues, following the Courts' stylus. Finally, the Practicae criminales are generally deemed to lack a significant contribution to the building of a dogmatic/systematic order specific to penal law. However, the research shows how both the medieval, dialectic patterns and the modern, rationalistic structures of these works do present a ?dogmatic development?: through a diachronic analysis of the defensive activity in courtrooms, I highlighted how Marsili and his colleagues, with different methods, shape a set of rules and principles that gradually separate from the system of the Corpus iuris to form a new, modern system of criminal law. In chapter 6 I turned to the contents of the Averolda, examining the first stages of the per inquisitionem procedure. Specific attention is paid to the rules of imprisonment (carceratio), which show a variety of precautionary measures worthy of further, detailed analysis. Overall, the features of Marsili's Averolda mirror the professional outline of the author: both sides of the research clearly reveal a medieval scholar who faces the challenges of the incipient modern world with his own scientific and professional tools: destined to be progressively discarded, yet such tools prove to have been fruitful for the new age, and to provide us with a better understanding of legal history.