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Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI)

Lorenzo Coccoli
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Mario Ascheri, Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI). Canterano: Aracne, 2020. ISBN 9788825531961, € 10,00 (PDF € 6,00).

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  • 1 Giovanni Filippo Ingrassia, Informatione del pestifero, et contagioso morbo: il quale affligge et h (...)

1Three allegoric images stood out from the frontispiece of Giovanni Filippo Ingrassia’s tract on the 1575-6 plague of Palermo: two bags full of money, some pyres, and a landscape grimly dominated by the well recognizable figures of two or three gallows. A couplet by one Maurizio Martelli helped make the message clearer: Lana, aura, et Linum captant contagia pestis / Ignis, furca, aurum sunt medicina mali.1 According to Ingrassia, fire, the gallows and money were in fact the main means to be used against contagion: the first symbolized the need to burn and destroy all infected or infectible objects, the second stood for the penal threat necessary to keep potential transgressors in line, while the third represented the large amount of resources required to pay for the huge expenses undergone by the city in order to enforce its costly sanitary policies.

  • 2 Giulia Calvi, Histories of a Plague Year. The Social and the Imaginary in Baroque Florence, trans. (...)

2In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice. During plague times, scaffolds were often erected in the most visible places (squares, bridges, city gates) and executions came to dominate narratives in chronicles, novels and iconographic representations. Also, emergency legislation deeply affected and meddled with the normalcy of everyday life. As Giulia Calvi put it, “during the virtual dictatorship of the Public Health officials, habitual routines became infractions of numerous regulations, motivated by the fear of contagion and designed to interrupt and block the common channels of communication”.2 These infractions could thus result in a trial or leave any number of written traces (however fragmentary and incomplete) in the archives, making criminal sources so valuable in registering the different movements and alterations of social interactions. But there may also be a more prosaic explanation for the extensive use of criminal records in historical researches on epidemics. In fact, while the criminal justice system was kept up and running even during plague outbreaks (with health boards sometimes setting up their own special courts), other tribunals were normally closed down to reduce gatherings and avoid contagion. The tendency to rely primarily on criminal sources could thus depend, in part at least, on their greater availability.

  • 3 See Mario Lavagetto, Oltre le usate leggi. Una lettura del Decameron (Turin: Einaudi, 2019).

3Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’,3 law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.

4Mario Ascheri’s Rimedi contro le epidemie can provide us with a useful compass to explore this partially uncharted territory. The book is in fact a well-timed reprint of a volume published in 1997 under a different title (I giuristi e le epidemie di peste), which was in turn a collection of three papers previously appeared in various publications. This is not precisely an instant book, then, written in the wake of the current COVID situation, and this very untimeliness helps place it above the suspicion of unwarranted anachronisms and hasty analogies. And yet, that only makes the occasional but undeniable similarities with the present all the more striking. The first chapter and the attached appendix present a concise summary of the main issues raised by three sixteenth-century legal tracts on the plague, along with some background information about their authors and the context of their publication: Gianfrancesco Sannazzari della Ripa’s Juridicus de peste tractatus (1522), Silvestro Aldobrandini’s Tractatus iuridicus de peste (which was composed around 1523 but remained unpublished) and Gerolamo Previdelli’s Tractatus legalis de peste (1524). They are the earliest known specimens of their genre, written more than a century and a half after the devastating appearance of the Black Death. The timing, Ascheri argues, is not casual. On the one hand, the relative delay with which jurists—as opposed, say, to physicians or theologians—came to devote ad hoc treatises to the topic can be explained by the incandescence of the matter itself—“since [the plague] could affect the most diverse social relationships, its legal phenomenology was hardly circumscribable” (12)—and by its absence from the sources of Roman law, which seemed to have kept virtually no record of ancient epidemic episodes such as the Justinian’s Plague. On the other hand, when legal tractati on the plague finally appeared in the third decade of the sixteenth century, that had to do less with the plague itself than with the crisis of credibility experienced by the ius commune as a consequence of humanist fierce attacks and the rise of the different iura propria. Faced with the risk of a decline in their professional authoritativeness, jurists responded by reaffirming the undiminished relevance of their expertise and their role of sacerdotes iuris even in circumstances of extreme uncertainty and normative chaos.

5The second and third chapters go into more details. They deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good.

  • 4 Daniel Defoe, A Journal of the Plague Year, ed. Cynthia Wall (London: Penguin, 2003), 94.

6The reference to the authorities’ need for exceptional sources of funding takes us back to the third ingredient of Ingrassia’s receipt: aurum. The government of plagued communities usually required a huge amount of money and, for that reason, cities often risked to fall deeply into debt. Indeed, one of the major innovations to be found in early modern legal treatises is their authors’ attention to the economic aspects of epidemic flows. In order to prevent or alleviate the direct effects of disease outbreaks, public officials had to intervene in matters of production and trade, control prices, ban exports of essential goods, fight hoarders and speculators. According to Sannazzari and the other jurists, the main aim (and justification) of this series of measures was to provide a minimum living standard for ‘the poor’—a collective denomination that, we may add, could encompass at the time all those propertyless people who were wholly or largely dependent on their labor for their daily survival. The book touches here on a point that is worth stressing. When dealing with the lot of the poorer sorts under plague legislations, most of the recent and less recent scholarship has tended to frame the issue in the terms of the repression and banishment of marginalized groups (beggars, vagrants, prostitutes etc.). Ascheri recalls how, for example, the doctores consistently urged rulers to keep the streets clean, both from actual filth and from “socially dangerous individuals” who could spread the contagion all over the city (48). However, by highlighting the special care devoted by jurists and public authorities to the relief of the (deserving) poor, he also helps reveal a wholly different facet of this relationship. In fact, once the focus is shifted away from the more repressive elements of plague regulations, something as a ‘moral economy’ of epidemics begins to appear, i.e. a set of moral, legal and political values that presided over the distribution of resources to the lower classes in times of health crises. Its founding principle was that the poor formed an integral part of the community, so that “the ‘civitas’ could not be complete (‘perfecta’) without them” (47). Hence the regular allowances (‘alms’) that, according to Ingrassia himself and other chroniclers, those at the top of society granted to those at the bottom for the entire duration of the emergency. They were intended as a partial compensation for the damages inflicted either by the pestilence or by the measures designed to contain it, with partial and general quarantines causing lots of people to lose their job. In this respect, Ascheri also reports how some jurists believed that the rich could be legitimately compelled, officio iudicis, to give alms to the poor, following the well-known legal maxim whereby tempore necessitatis omnia debent esse communia. However, organicist reasons were probably not the only ones behind these and other forms of (more or less obliged) largesse. Describing the vast social distress into which the Great Plague of 1665-6 had plunged the town of London, Defoe noted that “had not the Sums of Money, contributed in Charity (…) been prodigiously great, it had not been in the Power of the Lord Mayor and Sheriffs, to have kept the Publick Peace; nor were they without Apprehensions as it was, that Desperation should push the People upon Tumults”.4 It is not unlikely, then, that concerns with the stability of the community might play a role at least as relevant as those with its completeness and perfection.

7The chapter goes on listing other ‘remedies’ suggested by jurists to manage the situation and restore public health. Sometimes they just seem to take note of the standard procedures followed by public authorities after the outbreak had been officially declared—establishing lazarettos and special plague cemeteries outside the city walls, closing schools and universities, prohibiting spectacles and other unnecessary occasions for gathering, implementing a system of health passes etc.—and simply discuss and elucidate their legal implications. Other times, however, the strict adherence to the sources of the ius commune posed more problems than it solved, standing in the way of what cities usually considered as the safest course of action. This is the case, for example, with the policies of access control implemented during pandemics: while rulers were prone to immediately setting up cordons sanitaires and barring entry to all people coming from infected places, jurists recalled the duties of hospitality and charity enshrined in legal texts, which imposed to open the doors to those fleeing for their life, provided, of course, they were themselves healthy and showed no symptoms of the disease.

8The notion of iusta fuga can also be found at the beginning of the third chapter, which deals with “subjective legal situations” and the ways in which disruptions brought about by the plague might affect them. This is probably the most technical, and most original, part of the book. It is also the most dramatic one: it shows the doctores faced with the highly difficult task of relaxing provisions that the ius commune would normally require but without disfiguring them, so as to ensure the overall survival of the system. The point was, in Ascheri’s words, “to use the zones of elasticity provided by the law in order to safeguard its essential goals” (63). That was a challenge that did not admit a single, general solution. Jurists were therefore to proceed on a case by case basis, assessing for each and every circumstance what was the right amount of relaxatio to be applied. Ascheri guides the reader through the subtleties of this rich and intricate casuistry, showing how jurists often struggled to come to an agreement and sometimes failed to reach it.

  • 5 Ascanio Centorio, I cinque libri degl’avvertimenti, ordini, gride et editti: fatti, et osseruati in (...)

9One almost universally shared principle was that escaping from an unsafe area was not only a legitimate individual remedy against the risk of infection, but also a highly advisable one. This had a number of relevant consequences on personal statuses: it authorized the interruption of activities which people—from peasants to judges—were otherwise contractually obliged to perform; it excused someone who was judicially bound to reside in a given place for moving away from there; it dictated a series of legal protections for the fugitive, from the postponement of debt repayment to the suspension of prescription periods; and so on. But the same principle also had effects on the form and contents of obligations. It was generally admitted, for instance, that tenants who had left their rented dwellings for fear of contagion were not required to pay any rent to their landlords for the time of their absence, by analogy with what Roman law prescribed in war situations (once again, the warlike metaphor is at work here). Incidentally, this could probably shed light on the decision made by some public authorities to impose a rent reduction or at least a temporary ban on evictions in favor of those who had not been able to leave, as in the case of a decree issued in 1577 by the Senate of Milan and included in Ascanio Centorio’s collection of Milanese anti-plague provisions5. Escaping was in fact a privilege that only a few could afford. For those who were not so lucky, the ‘moral economy’ of epidemics required that some sort of protection should be provided.

10However, the doctores were not necessarily interested in the defense of the weaker party of the legal relation. When discussing the contract of locatio operarum, they seemed to have not even tried to find a way to ensure that workers (who figured here as locatores of their labor power) were to be paid even when their employers (the conductores of that labor power) had escaped from the plagued city and shut down their businesses, leaving them jobless. The only exception jurists could think of concerned, not surprisingly, the salary of university professors. Following Bartolus’ opinion, they all agreed that lecturers had to be paid in full, even if the plague had caused universities to close and courses to be canceled. Their fee was in fact not due as a remuneration for a mechanical and manual activity (propter laborem), but as a reward for a priceless intellectual performance (propter probitatem intellectus principaliter) that exceeded what normally applied to baser kinds of work.

11These are just a few samples of a much wider range of legal, social and political issues that Ascheri navigates with clarity and dexterity. His study results in a comprehensive exploration both of the problems posed by epidemic outbreaks to individuals and communities in late medieval and early modern societies, and of the ius commune resources that were available to jurists to solve them. There were some successes, but also (and maybe more frequently) some spectacular failures to rise to the occasion. Not the least merit of the book is to record the former without omitting the latter.

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Notes

1 Giovanni Filippo Ingrassia, Informatione del pestifero, et contagioso morbo: il quale affligge et have afflitto questa città di Palermo, & molte altre città, e terre di questo Regno di Sicilia, nell’anno 1575 et 1576 (Palermo: appresso Giovan Mattheo Mayda, 1576).

2 Giulia Calvi, Histories of a Plague Year. The Social and the Imaginary in Baroque Florence, trans. Dario Biocca and Bryant T. Ragan Jr. (Berkeley, Los Angeles and Oxford: University of California Press, 1989), 5.

3 See Mario Lavagetto, Oltre le usate leggi. Una lettura del Decameron (Turin: Einaudi, 2019).

4 Daniel Defoe, A Journal of the Plague Year, ed. Cynthia Wall (London: Penguin, 2003), 94.

5 Ascanio Centorio, I cinque libri degl’avvertimenti, ordini, gride et editti: fatti, et osseruati in Milano, ne’ tempi sospettosi della peste; ne gli anni MDLXXVI et LXXVII. con molti avvedimenti utili, e necessarij a tutte le città d’Europa, che cadessero in simili infortunij, e calamità (Venice: appresso Giovanni, e Gio. Paolo Gioliti de’ Ferrari, 1579), 345.

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Lorenzo Coccoli, « Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) »Journal of Interdisciplinary History of Ideas [En ligne], 18 | 2020, mis en ligne le 31 décembre 2020, consulté le 14 janvier 2026. URL : http://journals.openedition.org/jihi/2110

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