Christian theology and Roman law were also ascribed with identical levels of natural validity, namely their rationality, which was either intrinsic to the source of law itself (natural law), or derived from the source’s capacity of being a) a revelation of natural law (the Scriptures)58 or b) the authoritative rationality that Roman law, ratio scripta, had as such.59 Christian theology and the Bible were valid as a matter of fact, and in no need of further justification. However, the natural validity of Roman law needed explanation. After the rediscovery of the Corpus Juris, a doctrine developed providing Roman law with a special legal quality that other systems of law lacked. As Wieacker writes: Both natural law and positive law had identical, divine, metaphysical, and intrinsically rational origins and natures, which forced legal theory to give positive law the role of filling out and supplementing the gaps occurring in natural law.61 In order to a ca l l f o r s c i e n t i f i c p u r i t y 577 58 Wieacker, History, pp. 30-31. 59 Ibid., p. 35. 60 Ibid., p. 32. Contents of square brackets added here. 61 The task of positive law in early modernity, see Schröder, Recht als Wissenschaft, pp. 7-19 and 110-111. Because: “Das positive Recht konnte (und mußte) zwar das fragmentarische Naturrecht erweitern oder natürliche Freiheiten einschränken; ein positives Recht aber, das naturrechtliche Ge- oder Verbote aufhob, war schon gar kein Recht.” “It [Roman law] was natural law historically confirmed and metaphysically validated, and although it was not actually applied directly by the jurists, even in Italy, it ranked as generally binding morality throughout all medieval thinking on law.The idea of ius naturale, originally secular, was taken by the Decretists from the Institutes and Digest, so it was not only jurists who invoked Roman law but canonists and moral theologians too. On the other hand, the Glossators’ view of law was not purely legalistic; it, too, was rooted in the more general idea of natural law in the early Middle Ages, which had embraced the ideas and topics of Aristotle, the Stoics, Cicero, and the patristic writers, an adoption rendered all the easier since the Corpus Iuris itself had embraced some elements of stoic natural law.Thus it was not for technical law alone that people turned to the Corpus Iuris; they turned to it in the search for a firm foundation on which to base the political and social ethics of their day.”60
RkJQdWJsaXNoZXIy MjYyNDk=