INTRODUCTION

All interpretative activity necessarily begins with the explanation of words. This is what the medieval jurists first did when they started to explore the corpora of Roman and canon law. Next to this “literal” approach, they soon applied other exegetic methods, such as indicating texts containing identical (similia) or contrary (contraria) solutions to a legal problem or casus. These similia and contraria, originally listed in the margins of the manuscripts at a fixed distance from the main text, presented a challenge to inventive legal minds: was it possible to explain the discrepancies and reduce these to apparent contradictions? The method chosen for this end was usually the distinction (distinctio). Harmony was attained by a reduction of all the relevant texts to a “tree” of casus, of variable complexity, in which all the aspects of a specific subject matter were supposed to have found their place.

An alternative method, also aimed at reduction of the texts pertaining to a specific matter, was to develop a regula or regulae. In this case the stress was less on the analytical process of explaining (apparent) differences, and more on achieving a synthesis that found a rule or rules that connected casus at a higher level. This way it was sometimes possible to create more order in areas of law that had not – or not sufficiently – been the object of this technique of generalisation. There was a title in the Digest on the point (D 50.17), consisting of 211 regulae iuris antiqui (rules of the old law, that is, the law of the so-called classical period).