Francesco Calasso’s Legal History: Statism & Medieval Law
Francesco Calasso: Statism and Medieval Legal Thought
The pervasive influence of psychological statism is clearly evident in the work of legal philosophers themselves. Figures like Capograssi and Cesarini Sforza enthusiastically embraced Romano’s proposals, striving to imbue them with a proper philosophical foundation.
Calasso’s Incisive and Liberating Presence
Francesco Calasso’s presence in legal scholarship was both incisive and liberating. Drawing upon the highest lessons of Italian idealism, he contributed significantly to freeing legal history from the confines of local narratives, where a misunderstood cult of positive law seemed to exile it. Calasso gracefully recovered the fertile field of the history of civilization, emphasizing the central position of legal science within the sources and conceiving legal history as the history of thought itself.
He opened the eyes of a Romanist province, hitherto privileged yet somewhat eccentric and strange, and often ignored by those professionally concerned with medieval society, thereby integrating it into the broader common law movement. His presence was liberating, even when he felt the need to rethink medieval law and legal harmony.
The Incomplete Pluralism and the State
However, Calasso’s pluralism was incomplete. Even amidst the plurality of dense systems he was happy to consider fully legal, he recognized a qualitatively different order, as did Capograssi: the state. Calasso was convinced of the inner rationality of the state. For him, ‘state’ and ‘sovereignty’ were not random words; Calasso’s use of them was always supported by clear knowledge.
Contradictions in Calasso’s Thinking
A significant contradiction exists in Calasso’s thinking: completely dominated by the state, it prevented him from shedding a load of annoying notions that hindered the understanding of medieval society. The acclaimed plurality of systems is, in reality, conditioned by the presence of the order par excellence. Calasso, when reading Santi Romano, still viewed things through the lens of statism.
Calasso, Ius Commune, and the Principle of Legality
The brilliant historian who had introduced the central phenomenon of ius commune to contemporary consciousness, conceiving it as a ‘legislative’ system and insisting on the principle of legality as a foundational hinge of the medieval legal system, had not perfectly delineated its legal and historical nature. While he substantially assumed it as exegetical doctrine, he nevertheless felt its greatness and importance.
The Romanist Hypothesis and Medieval Reality
Calasso’s testimony confirms our earlier conviction: the Romanist hypothesis offers a suitable theoretical framework to understand the complex world presented by medieval historians. This framework prevents jurists from being unduly influenced by surrounding models linked to intense legal ideologies (such as bourgeois concepts) that are separate from the Koine of the medieval political and legal establishment.
Regarding these modern models (the state, sovereignty, rule of law, hierarchy of sources), it is necessary to state that while Calasso measured “certainly decisive steps” in “the natural course of historical evolution,” this evolution is mostly contrasted by a fissure so deep that it is useless and harmful to attempt to rediscover subtle and unlikely threads of continuity.
The True Medieval Legal Universe
Therefore, the medieval legal experience was characterized by multiple legal systems, a swarm of autonomies, but not states with sovereignty. In this universe, the legal dimension was quite strong and central, representing its true constitution—an ontic dimension, precedent to and then dominant over the political.