Debates on ignorantia iuris in baroque scholasticism – what had changed from the Middle Ages?

Frankfurt Legal History Evening Lecture

  • Date: May 2, 2018
  • Time: 18:15
  • Speaker: Jacob Schmutz, Universität Paris-Sorbonne
  • Location: MPIeR
  • Room: Vortragssaal des MPI
Debates on ignorantia iuris in baroque scholasticism – what had changed from the Middle Ages?

Stemming from Roman law, the legal principle ‘ignorance of the law is no excuse’ (ignorantia legis non excusat) is quite well known. According to applicable German law, a perpetrator is only exempted from guilt if the error was not avoidable, i.e. if we are dealing with an unavoidable ignorance (the Scholastics and Glossators referred to it as ignorantia invincibilis). This means that the difficult question now revolves around the scope of the circumstances that lead to this ‘unavoidability’. The aim of my talk is to show that while the medieval tradition interpreted the circumstances of this unavoidability very narrowly, the modern Scholastics greatly expanded it (within certain contexts). It was above all the later authors of the Society of the Jesuits that in the second half of the 17th century demolished an entire legal-historical construction, the structure of which reached back to the 12th century. The Protestant thinker Pierre Bayle observed this and pointed out – according to him, rightly so – that the denounced position advocated by Petrus Abelardus had been revived. I will attempt to identify the lines of division within this new interpretation. These lines are visible in the different approaches used in the colonisation of the Americas: the Spanish approach, on the one hand, which is tied to the 16th century School of Salamanca, and the Portuguese approach toward the colonisation of Brazil, on the other, which first took shape in the second half of the 17th century.

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