The emperor is married to the res publica: A legal analogy of Cino da Pistoia

Abstract

The medieval jurists viewed the ancient Roman law as an authoritative source of directives for the interrelations of men that was rational and absolute. However, because the public law context for this private law code had been swept away with the fall of the Roman Empire, the lawyers of the fourteenth century had to adapt it to contemporary understanding. One way they did this was by the use of legal analogy. This article explores some of the implications behind Cino da Pistoia's comparison of the contractual position of a German emperor-elect with that of a husband who was newly married. Cino viewed marriage as a contract that was created solely by the freely given mutual consent of the parties involved. In like manner, Cino argued, the election of the emperor creates a consensual contract with the same features. The election contract is at once complete, and requires no further measures, such as papal consecration, to bestow the jurisdiction of the imperial office upon the successful candidate. By understanding some of Cino's ideas about marriage law, we can better appreciate how he enriched his discussion of a public law concern with a concretely defined private law structure.