Droit coutumier et consentement chez Bartole de Sassoferrato

Abstract

In the present article, my aim is to study some of the political treaties of Bartolus of Sassoferrato, from the perspective of the idea of consent in the Middle Ages. Although the concept is not explicitly mentioned in the three political treaties which I have examined so far (Tractatus de Guelphis et Gebellinis, Tractatus de regimine civitatis and Tractatus de tyranno), Bartolus mentions within his juridical writings the notion of tacit consent, expressed as tacita voluntas populi. Starting with the Tractatus de Guelphis et Gebellinis, Bartolus seems to be interested in the classification of political regimes, with the goal of identifying the best regime. The opposite of the best regime would be the regime of tyranny, which never pursues the common good of the citizens. The discrete intervention of the principle of consent in the political treaties of Bartolus takes place with the question regarding the necessity of a general consent for the elimination of the tyrant. Legitimating thus any attempt of installing a better political regime, Bartolus proves to be as prudent as Thomas Aquinas when the Italian jurist avoids, in the Tractatus de Guelphis et Gebellinis, to give a definite answer to the question of reversing a tyrannical regime. The hesitative answer of Bartolus concerning tyranny in this treaty does not diminish the role of will, when it comes to change the meaning of the notion of affectio for a citizen. My research has put forward the fact that the most significant situation, both from the juridical and the political point of view, is that of the tyrant ex defectu tituli. In times of tyranny, all contracts are null because no one has the capacity to decide what is just. The tyrant ex defectu tituli can no longer legitimate his power, although he may subsequently govern, by respecting the will of the citizens. Far from assigning a marginal role to the idea of consent, Bartolus transforms it into the fundamental principle of his favorite regime, which is the incarnation of the popular sovereign will itself: regimen ad populum.