Tra retorica ed enciclopedia

• Main Author: Mario Montorzi
• Format: Article
• Language: deu
• Published: Max Planck Institute for Legal History and Legal Theory 2006-01-01
• Series: Rechtsgeschichte - Legal History
• Subjects: MPIeR
• Online Access: http://data.rg.mpg.de/rechtsgeschichte/rg09_recherche_montorzi.pdf

The juridical reflection on origins clearly took place in a context dominated by a culture that was both of theological extraction and rhetorical formation. The »textual« culture of the theologians soon became the practice of interpretation of the jurists, who substituted the Justinian text for the Biblical one in their exegetic attitudes, but who nevertheless – at least initially– maintained intact the essentially rhetorical nature of their interpretative accessus to the textus of the Justinian corpus. It was with that interpretative tendency that the central role reserved for the maxim »nomina sunt consequentia rerum« emerged, which postulated the existence of a system of necessary correspondences between the nomina iuris and empirical reality which the jurist strove to fit into the interpretative structure of his own analytic discourse. Originally, mediaeval man considered the nomina iuris as the immediate and direct consequence of their ontological basis. To his eyes, the names of things were precisely the key to the privileged awareness of reality; knowing single physical entities meant first discovering their names. This also held true for the activity of the jurist, who essentially depended precisely on the nomina iuris of his work of constructing a normative system.Besides, the etymological logic of the mediaeval derivatores, from the Pisan Uggucione to the Genoese Balbi, to Papias vocabulista, had as its characteristic note precisely this essential basis in the field of sensory perception: the process of making names was not simply a formal, linguistic matter but was above all material and concrete. As in the hierarchy of being one thing derived from another, and similarly, consequently – and almost as a mirror image – in the structure of the language one name derived from another.The derivatio was the final fruit of the specific mutation of practical reality, the organisation of which was expressed in each single nomen. And the names were considered real and proper »normative objects«, as they might be called, which functioned as in the world of things and everyday experience.And the premise of that embryo of ideology lay precisely in this: that the jurist and the rhetorician, while »etymologising« and discussing the nomina iuris, seemed rather to be describing the autonomous semantic content of the nomina themselves, while in reality they were manipulating them – and without excessive scruples – and so were passing off as objective and incontrovertible normative prescription what was, in truth, the pure fruit of their conceptual elaborations.