Differentiae iuris civilis et canonici: The methodological premises of an early modern German legal genre
Palabras clave:canon law, Roman law, legal method, comparative law, legal pluralism
The legal genre differentiae iuris canonici et civilis underwent significant changes at the threshold of the 17th century, compared to its form in the late Middle Ages. One of the markers of this change was a growth in the methodological insights of the authors of differentiae. The benchmark in this respect is Konrad Rittershausen’s Differentiarum libri septem. In the vast introduction to this work, he discusses various theoretical aspects of the relations between canon law and civil law. The most subtle methodological premise of his work are regulae generales, which explain when each of the two bodies of law may and should be applied on the opposite forum. These rules may be seen as a doctrinal tool applicable for resolving the conflict of norms typical for legal pluralism. His rules are excerpted from earlier legal writings and founded on the broad basis of references to the then recent jurisprudence, with particular attention paid to the consilia and responsa of the authors important for German scholarship (Mynsinger, Wesenbeck, Pistoris). Rittershausen’s work influenced the later developments in differentiae as there were no examples of more elaborated general rules for the application of canon law on the civil forum than the ones he proposed. The emergence of methodological notions in differentiae may be seen as an example of distinctive feature of modern jurisprudence, namely the search for a legal method.
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