Boucher, P. (2010). Inductive Topics and Reorganization of a Classification. In: Gabbay, D.,
Canivez, P., Rahman, S., Thiercelin, A. (eds) Approaches to Legal Rationality. Logic, Epistemology,
and the Unity of Science, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9588-6_3


Abstract;

Contrary to a generally accepted idea, the legal use of topics within the framework of late
scholastic, did not have as a function to introduce indecisiveness or relativism into the treatment
of particular cases. On the contrary, its function was to obtain unquestionable conclusions, based
on the logical properties of a classification of genus and species, it constituted deductively,
inductively and analogically by the examination of substantive law and ratio legis.

Keywords
  * Legal argumentation
  * Topics
  * Scholastic
  * Casuistry
  * Legal rationalism
  * Viehweg
  * Villey
  * Everhardus
  * Gammarus
  * Cantiuncula
  * Leibniz
  * De Casibus Perplexis
  * Mos italicus

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In an article entitled “Modes classiques d’interprétation du droit”,^Footnote^1 written on the
occasion of a congress on the legal reasoning, Michel Villey summarized his research on
jurisprudential technique, while endeavouring to find the methods of roman jurisconsults,
glossators and bartolists who, according to him, “ressuscitèrent le droit Romain de la manière la
plus fidèle” until the XVI°. For that, he distinguished three possible models in the representation
of legal reasoning, namely: the scientist, rhetoric and dialectical models. The first consists in
the use of a formal step copied on the method of mathematicians and logicians, and proceeds in a
deductive way. It has the advantage of rigour but in same time, the disadvantage of altering the
true nature of legal reasoning really used by Romans jurisconsults, because it hides the fact that
this reasoning was accompanied by a casuistry and a dialectical art in the invention of solutions.
The second model insists on the bond connecting the art of persuasion aiming at true and the
treatment of legal controversies, but it does not hold account of the fact that the “style” of
rhetors basically differed from that of Romans jurisconsults, because its purpose was the
formulation of particular solutions while that of jurisconsults tended to the expression of general
precepts taking the form of laws. The third models at last, that of dialectic, according to Mr.
Villey has as an essential characteristic to be used in the works of scholastics and lawyers of
Middle Ages, and to be quite unfamiliar with analysis of cases, because it lays in a search of
singular solutions for particular cases, whereas the undertaking of roman jurisconsults aimed at
the expression of general solutions. Thus, none of these models corresponds to roman
jurisprudential art, because this art was a “quasi dialectical method”, intermediate between the
particularism of rhetoric and the abstract universality of logic. It relied on semantic analysis of
legal statements to extract the definitions necessary to the construction of an argumentation by
topics, and led thus to an art of controversy based on the distinction of casus,
causae and quaestiones.

These thesis of Michel Villey raise some interrogations, especially when we recognize in them a
conception of original roman law, defined as an art quasi dialectique, of which we can wonder
whether it does not express an irrational conception of legal argumentation. Indeed, even if old
roman law finds indeed its origin in the observation of the societies, customs and habits of
ancestors, nothing allows to transform this origin into a criterion of purity and to present
the quasi-dialectique processes of this old right or of its version, hypothetically reconstituted
by glossators, as the indisputable models of any authentique processes. More, if it is true that it
is from the true reality, completely considered, that juridical solutions are
extracted, ^Footnote^2 nothing allows to condemn a priori the rationalization attempted of
the décadente scholastic^Footnote^3 and of the legal humanism supporters, if they aim to perfect
the logical instruments of dialectic to make them able to rationally express the complexity of
social relationships. And this impossibility would increase if it was proved that one of the
principal objectives of this décadente scholastic was precisely to constitute a logic for the
evaluation of the degrees of probability of opinions, especially in the theory of the legal proof,
for avoiding the risk of approximate judgements. One could not then support that the dialectical
reasoning are constituted on dubious opinions; they could only lead to dubious results, precarious,
and problematic themselves ^Footnote^4 because that would come down to transform a circumstantial
incapacity into an essential impossibility and to limit the use of the quasi-dialectical method to
the sole research of dubious solutions.

These interrogations increase when we discover the inaccuracy of the concept of topic in the
article of Mr. Villey. Indeed, this word is successively used to indicate a fragile
opinion,^Footnote^5 a general standard,^Footnote^6 an argument,^Footnote^7 or a
standpoint.^Footnote^8 However, this mixture of different thesis is prejudicial in a theory of
legal argumentation for two reasons: it confuses in the same relativism, this which belongs to the
category of factual statements (flimsy opinions and standpoints) and this which concerns the
judgement (the arguments). It finally reduces the logical properties of the calculation of probable
to the relational objectives of an art focused on the discussion of irremediably dubious proposals.

In fact, this convergence of debatable thesis in the article of Mr. Villey has its explanation,
both in an excessive valorization of the irrational components of legal rhetoric, and in a certain
ignorance of the scholastic theory of topics.

Indeed, Michel Villey builds his argumentation by opposing on a side the quasi-dialectic reasoning
of the jurisconsults previous to Justinian and of the partisans of the mos italicus, and on the
other side, both the syllogistic deduction which he ascribes to the scolastique décadente, and
its représentation euclidienne by the partisans of legal humanism. Then, he draws an inevitable
conclusion from it: this quasi-dialectical reasoning has a true fruitfulness^Footnote^9 because it
fulfil a perpetual mixing of various opinions, released from the constraints of
systematicity^Footnote^10 and rules of rational coherence.^Footnote^11 But then, in spite of his
well-known hostility to kelsenian thesis, he is inevitably led to support a strictly positivist
conception of law, since the absence of rational criterion of validity makes all the opinions also
probable or also improbable, and justifies eventually that we leave to the argument of authority to
favour a solution.^Footnote^12 A contrario, the syllogistic deduction and
the Euclidean reconstruction of the system of laws receive the defects of theoretical
artificiality, without obtaining in compensation the recognition of the rational validity of their
conclusions, since their logical nature basically prevents them from expressing the changing nature
of legal reality. For Michel Villey, only an art of perpetual calling into question of opinions can
therefore express the complexity of a legal reality where positions never be definitively acquired.
Because if le Droit se tire en dernière instance … de la nature de chaque rapport d’affaire (natura
rei), this observation cannot lead to an unquestionable knowledge of natural reports, since la
nature n’offre qu’un reflet, obscur, caché au fond des choses, qu’il est besoin d’interpréter, and
because there is not absolute criterion for the validity of interpretations.

But rather than to limit us to a very general criticism of the relativism of opinions raised to the
legal criterion of authenticity, or the refusal of rational speech aptitude to understand legal
reality by means of definitions, classifications and rules, it’s better to concretely refute the
main thesis of Michel Villey by showing that the method of some casuists of
the décadente scholastic had nothing to do with the déduction syllogistique unilatérale l’emportant
sur l’art polyphonique de la discussion. ^Footnote^13 For that, we must necessary leave the
simplifying representation of the methods of mos italicus, and return to the basic works of the
lawyers who leaned on the methods of the Bartolist school to constitute a casuistry founded at once
on topics use, aristotelician analytic and systematic classification. In other words, we must prove
that this décadente scholastic, criticized by Mr. Villey, did not leave the advantages of
the discussion of cases to the benefits of logical processes constraints, and that she did not
think that we had to find antinomy between such requirements, because she estimated that
universality of reason and complementarity of deductive, inductive and analogical topics, prevented
that there could be. We must also necessary underline that this methodological and doctrinal
position was not the lonely expression of a small group of logician-lawyers, unfamiliar to legal
art of the Doctors of mos italicus and that we could not reduce it to the research of the prémisses
sûres … fournies, dans l’école rationaliste (chez un Leibniz ou chez un Wolff) par des évidences
rationnelles quasi cartésiennes, ^Footnote^14 because the true function of the inductive and
analogical topics is precisely to allow the adaptation of legal reasoning to the diversity of
concrete cases and to obtain an unquestionable knowledge, although presupposing a normative
innermost depth, from incomplete or different data. We must finally demonstrate the two following
facts: there is no fundamental difference between the partisans of this so-called scolastique
décadente applied to the research of topics, and the protagonists of the mos italicus since even a
logician as Leibniz builds his legal work by systematically supporting on post-glossateurs and
bartolists works in the whole. We don’t neither need to lay into logical deduction to defend the
originality of legal reasoning (if necessary, while supporting that it can free from the
non-contradiction rules in accordance with its quasi-dialectique nature), because the theorists of
topics never claimed to deal with legal cases by a priori deduction, but defend on the contrary an
a posteriori conception of topics use.

These demonstrations suppose the preliminary resolution of the following difficulty: the thesis
Michel Villey presents in his article in a simplified way, are the same that Theodor Viehweg
details in Topik und jurisprudenz, ^Footnote^15 justifying the interpretation according to which
the topics would be simple standpoints, by the fact that theories of topics similar to thoses that
Matteo Grimaldi Moffa <1506-1562> expose in his De methodo ac ratione studendi libri tres, are a
matter for problematic and no apodictic, i.e. of demonstration, because they are based in different
degrees, on aristotelician or ciceronian theories of dialectical argumentation. And he claims to
confirm this thesis by quoting like similar examples^Footnote^16 to the treaty of Moffa, the
theories of topics worked out by lawyers of the same time, like Everhardus, Gammarus or
Cantiuncula. However, the examination of these theories we will proceed further, shows that their
authors precisely uphold the opposite since their thesis come within a rationalist context and aim
to formulate the rules allowing to reach indubitable conclusions. Thus, there is here an amazing
contradiction we must try to eliminate, not only because it comes within a general research about
the nature of legal reasoning, but also because it results from a recurring criticism of
the deduction applied to Law, that we always tries to justify by leaning on the presupposition of
an intrinsically no-deductive nature of the theories of legal reasoning worked out by the
lawyers-logicians of the late scholastic. Indeed, Bobbio and Bovero (2002) repeat the same ideas in
a recent article,^Footnote^17 explicitly referring to the works of Viehweg and
Perelman,^Footnote^18 whose Villey made usually the praise, and they basically draw from them two
conclusions which we will find in him: (1) the development of jusnaturalism was accompanied by the
progressive disappearance of the theories of topics, in same time as the demonstrative speech
focused on certainty took the place of the argumentative speech devoted to the analysis of
probability. (2) The authentic legal argumentation must proceed above all in a rhetoric and
probabilist way, and not in a deductive way.^Footnote^19

The refutation of this position defended by such authorities obviously force to return to the texts
of these logicians-lawyers who were Everhardus, Gammarus and Cantiuncula, to try to reach the
following targets: (1) to understand the reasons why their respective theories of topics were
interpreted in a relativistic way, while all the topics are stated there as rules imposing an
indisputable conclusion. (2) to see whether the analysis of topics has only developed in the
context of the mos italicus or if it is necessary to recognize in this processes, a method which
exceeds the opposition mos italicus/mos gallicus. (3) to understand the function of the various
topics in a general theory of argumentation, and their connexion with classification.

The position of Viehweg appears to find an indisputable justification in the two acknowledgment of
the heterogeneous feature of the various collections of topics carried out by Everhardus, Gammarus
et Cantiuncula, and in the frequency of use of the term probabilis.

The first point results from a convergence of several factors, because all these collections rest
on a mixture of different theoretical contributions where we recognizes obviously the
aristotelician doctrines, but where we also guess the ciceronian influence in the multiplication of
topics, and sometimes the ramist and melanchtonian additions. In the same way, if there is a kind
of agreement about the initial acceptance of common bibliographical sources,^Footnote^20 notable
divergences next appear in the detail of argumentation because Cantiuncula quotes first classical
authors and the humanistic ones, while Everhardus and Gammarus remain faithful to the tradition
of mos italicus by highly using the contribution of bartolists and the
postglossators.^Footnote^21 All these authors also differ on the number of topics, because
Everhardus counts 130 in his Loci argumentorum legales, ^Footnote^22 while Gammarus enumerates 81
in his Dialectica legalis ^Footnote^23 and Cantiuncula, 62 in his Topica
legalia. ^Footnote^24 Moreover, quite an arbitrary seems to be the rule in the differentiation of
topics, because Everhardus is satisfied with the introduction of only one (generic) topic a simili,
while Gammarus distinguishes 34 and Cantiuncula 28. In the same way, Everhardus and Gammarus
propose only one topic a verisimili, while Cantiuncula distinguishes 8 different forms. The same
obvious arbitrary could be finally recognized in the various presentations that the same author
proposes for his topics, in several times, because the 130 cases of the Loci argumentorum legales
become 143 in the Synopsis locorum legalium. ^Footnote^25 whose function however is to summarize
the Loci argumentorum, and are reduced to 100 in the Centum modi argumentandi ^Footnote^26 of the
same Everhardus, like if the basically subjective nature of standpoints, prohibited to define an
objective criterion allowing to draw up the exhaustive and definitive list of topics. Finally, all
these presentations differ or seem to differ on the criterions for classification. Indeed, Gammarus
points out the existence of several^Footnote^27 principles for ordering topics, before distribute
them in three categories, according to that they come from that we debate, or are born from
something else who is connected to that which we debate, or are completely
extrinsic. ^Footnote^28 Everhardus, who is however the most precise in his analysis of topics and
in his recall of their basic rationality, uses as for him a more complex classification where
intervene the syntactic and logical criterions, the diversity of people, institutional mechanics
and rights, and the multitude of special cases. At last, Cantiuncula mainly based himself on
aristotelician categories (whole, genus, species, specific difference, definition, cause, form), to
which he adds the logical properties justifying the arguments (conjunction, connection,
correlation, contrariety, similarity).

The second point, is due to the fact that the share of uncertainty, and thus of relativism in the
expression of standpoints, grows partly with the frequency of use of the word probabilis. However,
the case of Everhardus shows that this frequency is important, since a census of the terms which he
uses and combines to summarize the properties of each 143 topic of his Synopsis locorum legalium,
give the following results: 103 are named useful, 98 frequent, 84 probable, 26 strong, 14 valid,
8 necessary and 2 effective. On the other hand, the most employed combination of terms which we
find in 65 cases, does not introduce any deductive necessity since it consists in the trio useful,
probable and frequent. Thus, we can be tempted to see in these heterogeneous collection of topics,
as much collections of pragmatic statements containing a share of uncertainty excluding the
undeniable knowledge which we would obtain by the application of a deductive method. But that means
in same time the end of the skeptic position of Mr. Villey, according to whom dialectical reasoning
are constituted on dubious opinions and can only lead to dubious and precarious results, themselves
problematic, since the label of topics by their respective degrees of probability (and in certain
cases, of certainty), forbid to regard them as simple and indefinitely
debatable standpoint’. ^Footnote^29 Thus, the true question is not to know if the proposals
contained in the Topics of Everhardus, Gammarus and Cantiuncula are purely subjective, but to
determine if their objectivity results from a simple institutional consensus, or on the contrary,
of from the acknowledgement of their argumentative validity. In other words, it’s to know if we can
leave a purely rhetoric conception of topics and substitute a logic of certainty for a logic of
conviction.

A precise return to the texts will make it possible to answer by showing that in spite of their
respective particularisms, all these authors have as a characteristic to use a common corpus of
presuppositions and methods which exceeds the opposition between mos italicus and mos gallicus,
because it tackles the question of topics by combining the general principles of legal rationalism
and the particularisms of casuistry.^Footnote^30

Thus, the preamble of the Loci argumentorum legales that Everhardus composed to summarize the
essentials of the lawyer’s method, state a whole of nonrelativistic definitions of topics, whose
contents are as follows: (1) in spite of the ambiguity of the word probabilis, which means at once:
probable, provable and agreedable, topics are aids for argumentation, proceeding by deduction,
induction or analogy, and whose function is to provide indubitable or convincing conclusions (fidem
facere), from legal, rational or factual data.^Footnote^31 (2) They make up for the generality
and/or the inaccuracy of laws^Footnote^32 while allowing to complete Law^Footnote^33 by a tidy call
to its sources and the respect of both the requirements of justice and reason.^Footnote^34 (3) They
provide this function when we proceed in accordance with the principles of rational exegesis, for
interpret the terms according to the ratio legis, ^Footnote^35 and when we respect the common rules
of syllogism, enthymem, induction and example, namely, when we fit the range of the conclusions
obtained by these arguments, to the generic or special nature^Footnote^36 of the legal cases we
consider. The same conclusions could be obtained in Gammarus, from his Dialectica legalis or the De
veritate ac excellentia legalis scientiae libellus who follows it in the edition of 1522, and where
we find a summary of legal rationalism principles inspired by Cicero,^Footnote^37 but that we would
read also well in an aristotelician, ramist or melanchtonian context. And we could finally discover
this same intimate connection between the theory of topics and legal rationalism, by resting also
on the Topica legalia of Cantiuncula, i.e. be by taking for support of demonstration the text of
this author not guilty of unmotivated sympathy for rational exegesis principles, since he was
largely influenced by German and French humanists, and wrote a De ratione studii legalis
paraenesis ^Footnote^38 where the rational exegesis method of the mos italicus, applied to the
analysis of Roman Law, was rejected with the profit of the historical and philological step of the
humanistics. However, the method he uses in his argumentation is opposes to the idea of standpoints
relativism. Because if we examine an ordinary topic, like a partibus, ^Footnote^39 who however has
this advantage on deductive topics like a genere, a definitione, a conjugatis or a toto, to be
potentially interpretable in a relativistic way since it is inductive, we are confronted with a
classification of cases, aiming to obtain rational certainty by the exhaustive enumeration of all
the possible ones, the taking into account of exceptions, and the formulation of constraining
reasoning. Indeed, Cantiuncula formulates the rules of use of this topic by proposing a
classification of cases resting on the relation of the parts to the whole, considered according to
essence, quality and quantity. Thus, he obtains the arborescence of valid arguments, affirmative or
negative, we find in the two tables below, that allows to apply to the whole what is noted for some
parts.

Validity or invalidity of the argument proceeding from the parts towards the whole, according to
the parts are:

Heterogeneous

Homogeneous

Secondaries

Main





Relating to

Relating to

Relating to

Relating to

Relating to

Relating to

essence

quality

essence

quality

essence

quality

Affirm.

Negat.

Affirm.

Negat.

Affirm.

Negat.

Affirm.

nEgat.

Affirm.

Negat.

Affirmg.

Negat.

arg.

arg.

arg.

arg.

arg.

arg.

arg.

arg.

arg.

arg.

arg.

arg.

+

−

−

−

−

+

−

−

+

+

−

−

Thus, in the case of an argument introducing heterogeneous and secondaries parts (like the
furniture of a house, which belongs to the house but are not identical to it, nor essential to its
existence), he can declare:

While considering the parts which are secondary, we will introduce a distinction to know if we
argue about the essence of the thing, or about its qualities. In the first case, the argument will
be valid in an affirmative way, and not in a negative way. Indeed, the reasoning is correct in:
it’s the foot of a man, so it’s a man … In the second case, consecution will be necessary neither
in an affirmative way, nor in a negative way. Thus, when we say: some furniture of the house are
bequeathed to me, so the house is bequeathed to me, we conclude wrongfully. Idem, we doesn’t
conclude anything necessary in the opposite case when we say: the furniture are not bequeathed, by
consequent the house is not so. indeed, it can happen that what we say about a part is true, even
if what we say of the whole cannot be so. And that mainly occurs if we speak about these things
which are in such a ratio with the whole, that they can be missing without any affects on its
essence.^Footnote^40

The processes is the same one when we aim to a conclusion relating to the whole from the
consideration of some main heterogeneous parts, (i.e. of an other nature that the whole, but
essential for its existence), or from some homogeneous parts (of the same nature as the whole),
since in this last case, and by supposing that the whole is considered from the viewpoint of the
extension, we arrives at the following conclusion:

We will never obtain anything valid while reasoning affirmatively or negatively concerning parts of
a whole considered from a quantitative standpoint, either by regarding the whole as a universal
proposal, or like a discontinuous quantity. Indeed in this case, we will have such an argument
like: the action which is born from a contract is a personal action, by consequent any action is
personal. Or in the opposite way: the complaint in justice is an action which is not personal, by
consequent no action is personal.^Footnote^41

But to be exhaustive, this classification must be supplemented by a whole of exceptions who result
either of dissensions about the concept of part, either of the introduction of additional norms.
Indeed, in the first case the invalids affirmative and negative inferences consisting in concluding
for the whole, starting from heterogeneous parts, secondaries and defined by their matter, yield
the place to valid affirmative and negative inference, when we define these parts by their formal
identity,^Footnote^42 since this one makes the part and the whole conceptually equivalent.
Likewise, the definition of the parts as a total part ^Footnote^43 or a no total, will have the
same discriminating effect on the reasoning, since the validity of the affirmative and negative
arguments is ensured when the total part becomes equivalent to the whole, and that it’s necessary
in the other hand to observe the rules of quantification ^Footnote^44 when the parts are no
total ones. Lastly, in the second case, the main principle of invalidity of the affirmative or
negative inferences, by which we want to go from some quantitatively definite homogeneous parts, to
the whole they make, will allow the three following exceptions: the negative inference turning on
discontinuous quantity^Footnote^45 is valid; the affirmative and negative inferences turning on
parts indicated in a generic way^Footnote^46 are valid; and the affirmative inference turning on
parts exhaustively named^Footnote^47 is also valid.

If we now examined the texts of Gammarus and Everhardus, we would find the same classifying
processes, only changed by these secondary constraints which are the brevity of the talk in the
first and the abundance of jurisprudential details in the second. But, even if the validity rules
of the inference using the topic a partibus are reduced in the first to two fundamental
statements,^Footnote^48 and are unliked multiplied in the second due to his casuistic of particular
rules and due to his different^Footnote^49 classification of the topics components, the identity of
their processes is obvious and allows to completely reject any relativistic interpretation of the
topics. And this is all the more indisputable that where the relativism of opinions seemed to be
able to be defended, every three agree on the principle^Footnote^50 according to which common
opinion can be used when a strictly rational solution proves to be impossible and doubt still
exist, because this resort gives authority to the permanency of collective uses and not to
brittleness of personal opinions.

Thus, the true defects^Footnote^51 we discovers in the treaties of these three authors, do not have
to occult a basic fact which was not really understood by Th. Viehweg and M. Villey. Topics are not
subjective standpoints, endlessly debatable, because they are inference rules, joined together in
a naturalist type classification where the relationship between the genus and their respective
species is the expression of a conditional necessity, because they allow a deduction a
posteriori ^Footnote^52 when species is juridically included in the genus, and do not authorize it
when there is an exemption to the rule.

The following data allow to establish this fact and the consequences which result from it:

1.     1.

A reading, even superficial, of the very teaching text of Gammarus, reveals immediately the
importance of the rules since he systematically uses this means to summarize the essence of each
one of his topics. Thus, he obtains 43 principal rules^Footnote^53 to which he adds 40 other rules
by the play of the negation, the reciprocal and the converse. This report would be identical if we
considered the texts of Cantiuncula or Everhardus, because each of the two, with his respective
style, proceeds in the same way and summarizes the argumentative function of topics by proposing a
rule of inference affirmatively illustrated by the enumeration of the cases where it is applied,
and negatively, by that of the exceptions.

2.     2.

The very title of the founder work of Everhardus, the loci argumentorum legales, clearly shows that
the loci legales, i.e. the topics, are general categories allowing to classify the arguments used
in laws. But the function of these arguments is to solve a case by determining how a norm can be
applied to it. Formation of topics is consequently the result of an abstraction and classification
process, where we start from positive laws to establish the reasoning which they contain, to gather
them in very precise categories, and to synthesize each one of them in a general rule of inference.

3.     3.

As in the case of any empirical classification, topics are mainly obtained by induction since it is
necessary to gather similar cases according to the arguments which they contain, and for each class
obtained in this manner, to formulate the abstract rule (the topic), which summarizes its way of
argumentation. But in same time, the function of topics is to provide inference rules allowing to
obtain an indubitable conclusion. This difference, which we can change into an opposition when we
estimate that the classification obtained by induction is the simple registration of subjective
convictions (cf. the intuitivism of Mr. Villey and his opposition to the deductivism of logicians),
can be easily explained within the framework of a rationalist approach of legal argumentation, as
soon as we precisely examine the list of topics named necessary and probable. Indeed, the
word necessaries ^Footnote^54 which is used by Everhardus to define some of his topics, either
express a purely normative relationship of absolute constraint (cf. the topic ab autoritate),
either a logical relationship of identity, implication or inclusion. In this case, are
named necessary, not only the topics in which there is an equivalence between the terms connected
by the inference,^Footnote^55 but also those in which there is a strict implication between the
first term and the second.^Footnote^56 In all other cases, the topics could be named
both probable and not-necessary, because they exist and that existence supposes the preliminary
acceptance of some norms. However, the use which is made of these terms in the treaties of
Everhardus, Gammarus and Cantiuncula, only corresponds partly to that, because the inductive
character of the mode of formulation and classification of topics lead to define each one of them
by a hierarchical organisation of logical properties and institutional constraints, that is to
confer a conditional validity to the rules of inference which characterize them. A very simple
proof is still once given by the superficial reading of some Topicae, since we see that all
necessary topics have their exceptions, and that there are intrinsically not-necessary topics (i.e.
proceeding by analogy or induction), which are however named as necessary ones owing to their
institutional valorization. Thus, in the case of the topic a minori,^Footnote^57 where the
inference goes from the whole to the part, Everhardus says in his Synopsis locorum legalium: This
locus a minori, that is a fortiori, provides in profusion a frequent, useful, very solid and
necessary argument, but he adds also:

This locus does not apply … when the least is not contained in the most by the way of species or
part (thus, that which refuses to give a goat can give a horse); in the cases derogating from
ordinary law, as in the case of someone which would argue proceeding from the allowed cases to the
weaker not-allowed cases; in the cases where the rule does not apply. (And which is four, as we
will see it in the locus: a ratione legis larga), and in all the cases with restrictive function.”
Similarly, he says in the Loci argumentorum legales about the locus “a simili”^Footnote^58:
“However, I want that one does not remain without knowing that the similarity is sometimes probable
and necessary, namely, when law defines the assimilation, see D.9.1.4,^Footnote^59 and that it is
sometimes only probable, when it is a judge or a lawyer who defines the assimilation of a person to
an other, or of a thing to an other, or of a fact to an other. And it is precisely that, that Balde
quotes in his comment of C.9.1.11, by declaring that when there are two similar, it is necessary to
choose that which is most similar.

This remarkable conjunction of probable and necessary we find for the aforesaid reason in topics
where the reasons of inference depend on the only institutions (ab auctoritate, ^Footnote^60 a
defectu formae ^Footnote^61), is also found in the topic a specie ad genus, that is in a topic
which, apparently, should not be described as necessary, since nothing guarantees that the species
to come will not be different from the preceding ones and will not invalidate a rule defined by
induction. However, the thesis which is stated in the beginning of the text, is without
ambiguity: The argument of the locus a specie ad genus is not probable, but necessary, and will be
formed in this way: when the species is stated, the genus which rules this species is affirmed, but
not the opposite. Or thus: the statement of the genus results from the statement of the species,
but not the opposite. So, all the question is here to know how Everhardus can call necessary, an
inference that we would qualify at best a probable one when the future exceptions to the rule are
in low number, and an improbable one in the opposite. To tell it in another way, the question is to
know by which means the logical no-necessity of the inductive inference proceeding from the species
to the genus can be transformed into pure necessity, in order to reach the degree of certainty we
obtain in the case of inferences based on the previous admission of criteria like authority or
formal validity.

There too, the reply of Everhardus is strictly in accordance with the principles of legal
rationalism as far as based on the logical properties of classification, that is, on a hierarchy of
categories defined by extension or comprehension, and on the implicit use of quantification in the
delimitation of the inclusion or exclusion relationships (case of the exemption), between species
and genus. Indeed, he distinguishes two modalities in the relationship^Footnote^62 between part and
whole: according to extension (relationship of inclusion^Footnote^63), and according to
comprehension (relationship of belonging ^Footnote^64), and he summarizes their respective
properties in the following way: when the relation of the species to the genus is characterized by
the extension of categories, two cases are possible: the very general case where species is
included in genus (semper specialia generalibus insunt) and confirms the rule, and the exceptional
case where it is not included in the genus (generi per speciem derogatur), because an exemption
enables it not to respect the hierarchical order and the logical properties of no-symmetry and
transitivity which result from it.^Footnote^65 Conversely, when the relationship of the species to
the genus is defined by the comprehension, the species is defined by the genus and the specific
difference, and it implies then the genus,^Footnote^66 like p.q ⊃ p.

This distinction allows him first to solve cases similar to those stated in D.32.47 §.1 and D.32.49
§.3, where the main question is to know if categories are defined by extension or comprehension.
Indeed, when a husband decides to bequeath to his second wife goods put at the disposal of his
first wife, and when those are composed with goods specifically bought for her and goods only
reserved for her use, the legacy of the genus (i.e. goods put at the disposal of the wife), involve
that of the species (goods bought for the wife) and not the opposite,^Footnote^67 while if he names
them in comprehensive way, it’s the opposite which will occur^Footnote^68 since the genus will
be: put at the disposal and the species: put at the disposal and bought.

It also enables him to obtain a necessary inference from a topic which is potentially dubious for
being possibly inductive, and to allow to obtain unquestionable solutions in this type of case, by
applying the two following principles (whose equivalents are easily found in the texts of
Gammarus^Footnote^69 and Cantiuncula): (1) the topic a specie ad genus will be used each time that
the categories implied in a legal case will be conceived in comprehension (that is, each time that
the definition of the species will contain that of the genus), and conversely, the topic a genus ad
speciem ^Footnote^70 will be used each time that the categories implied in a legal case will be
conceived in extension (that is, each time that it will be possible to enumerate the species
composing the genus). (2) This principle will be employed each time that it will be necessary to
rectify a classification by correcting the errors^Footnote^71 in the arrangement of genus and
species, that is, in a rationalist and no-relativistic viewpoint.

At last, it gives him a means allowing to logically deal with the discriminating effect that the
introduction of the causa, the ratio, or the intentio can have in a hierarchy of categories.
Indeed, when he says it follows that the things the paterfamilias wanted him to obtain by an other
way, will not be included in the legacy of the only bought things, ^Footnote^72 or: we can be
easily misled by an error proceeding from what is known secundum quid to what is simply known, he
introduces the consideration of what the scholastics lawyers called the circumstances, to modify
the relationships of belonging or inclusion (that is the ordering relations), between the
categories of genus and species. Thus, he based on this logic inspired by Aristotle, and revised by
scholastics, that the humanistic Cantiuncula presented in the following way in his Methodica
dialectice ratio ad jurisprudentiam adcommodata ^Footnote^73:

The jurisconsult enumerates seven circumstances in the law ‘aut facta’ of D.48.19 [(law 16)], that
is: the cause, the person, the place, the time, the quality, the quantity, the event. Others are
summarized by the following expression: who, what, where, how, why, while, when. … “These
circumstances have as a function to introduce differences into property, obligation and all that is
stated in laws. [So] the cause [(that is the legal intent)] transform the property. The one who
transfers his good to an other in accordance with a sale or a donation, makes of the one who
receives, an owner. But the one who does it in accordance with a ‘commodatus’ or a deposit, doesn’t
make the same thing, because the causes of these two transfers are not the same ones and that the
first wants a complete transfer while the second does not want it, argument of C.4.6.6.

But, it is obvious that donation, sale, commodatus and deposit can be considered on one hand as
species numerically constitutive of the genus transfer, and in the other hand, as differences added
to the indetermination of a common genus. In the first case, the inference from the genus to the
species will be valid (as in the case exposed in the beginning of D.32.47.§.1), while in the second
case, and according to what is related at the end of this law, only will be valid the inferences
from each species to the common genus, or the inferences from each cluster of species having a
common property, to this genus (since we can constitute subcategories like the complete transfer or
the costly transfer, to gather together some of these methods). Thus, we are inevitably led to
propose different possible classifications, according to the circumstances we favour for the
attribution of rights, in other words, according to the norms these circumstances imply.

So, it’s not in the true topics level that can lie the share of uncertainty claimed by the
supporters of the relativistic interpretation, since we are ensured to obtain indisputable
inferences when we proceed a posteriori like in a simili or ab exceptione, by the very fact that
these topics summarize institutionaly established inferences, or a priori like in a toto ad partem,
a genere ad speciem, a specie ad generem, etc., when the extensive or comprehensive relationships
between genus and species are conceived in such a way that they can only succeed to an undoubted
conclusion. In fact, it’s on the level of the norms introduced by the account of circumstances that
the possibility of a choice lies, since the true question in a classification finally based on the
precariousness of norms, is to define the reasons of the privilege granted to one circumstance more
than to another (like for the quid more than for the quantum in the above mentioned cases). And
this question is so much important that we find it as a watermark in the true text of Everhardus,
as in all those of scolastic lawyers who will try, like Gammarus and Cantiuncula, to join together
in the same theory of legal reasoning the two traditional and contradictory rules: semper specialia
generalibus insunt and generi per speciem derogatur, that is, to define the criteria of an
indisputable hierarchy of general norms and their exemptions, from the evaluation of their
circumstances.

This will clearly appears in the usual processing of ordering safeties questions, where the
difficulty does not come like above, of the interference of the quantity and quality circumstances
(simpliciter and secundum quid), in the delimitation of the part/whole or species/genus
relationships, but of the interference of the circumstances time and person in the order of
privileges. Indeed, the true fact that several creditors can compete claiming to override the
others in accordance with different priority rules, justified, either by temporal circumstances
(the setting up time of mortgages), either by personal circumstances (the holding of a lien),
impose to define a priority order within these rules. However, that cannot be obtained by the
consideration of topics, since their formation way a posteriori and the conditions of their
relevant use, presuppose the true existence of this order, as we clearly see it in the Leibniz’s De
Casibus Perplexis where are examined all the perplexed cases of concurse between creditors,
successively appeared in the roman, canonical and saxonic laws, and where the jurisconsults
arguments and their vain attempts of resolution of these cases by the only use of topics, are
discussed.

Indeed, let us examine the case n°19 where there is a concurse between a former creditor holder of
an anterior mortgage, an intermediate creditor holder of an express mortgage, and a widow holder of
a dowry lien. The first overrides the second in accordance with the rule: prior tempore potior
jure already stated in the Sexte^Footnote^74 (that is, in accordance with the time circumstance).
The second overrides in turn the widow in accordance with the fact that the
Constitution Assiduis ^Footnote^75 which gives her priority on all the holders of tacit mortgage,
does not concern the holders of an express mortgage. However that means, as Johannes de
Ripa^Footnote^76 points it in his comment of this Constitution, that the lien of the woman applies
only secundum quid and no simpliciter. Therefore, it gives her priority on the sole species of the
creditors holders of tacit mortgages, and no on the whole genus of creditors holders of tacit and
expresses mortgages. The third at last, that is the widow, overrides the first in accordance with
the Constitution Assiduis and the rule generi per speciem derogatur that it illustrates, since the
priority that this Constitution gives her departs from the general rule prior tempore, potior jure.
In this case, the circularity of the relation of order is obvious, and the perplexity which results
from it is all the more serious since it’s due to the gathering of legal rules whose function is
precisely to solve cases, and that it cannot be abolished when we try to restore a transitive
relation of order between the three terms, by means of the only logical properties of a topic
like a primo ad ultimum, or of its traditional expression si vinco vincentem te, vinco te ipsum [if
I overcome the one who overcomes you, I overcome you too]. Indeed, in this perplexed case (and in
all others cases of perplex concourse), each competitor is overcome by the precedent and overrides
the following. Calling them by the letters A, B, C, we do obtain the following series: A>B. B>C.
C>A, and some Doctors thought then that a competitor as A could claim to overcome on C despite
everything, by the means of the victory that B (which he overcomes in other respects), obtained
over C. The use of the rule si vinco vincentem te, vinco te ipsum would thus hypothetically allow,
to restore a transitivity (and so a hierarchy of safeties), by a conclusion a primo ad ultimum and
by neglecting the fact that the relation of order is opposite in the intermediate phase. But we
immediately see the invalidity of their attempt, since each competitor could invoke this rule to
his own benefit. Moreover, it’s completely contestable, since it amounts to disguise a normative
choice^Footnote^77 behind a logical rigour appearance. Indeed, as Leibniz said
ironically^Footnote^78:

I admired the genius of the Doctors who venerate this axiom they state as follows: ‘if I overcome
the one who overcomes you, etc.’, in each time it’s in favour [of them], and who depreciate it in
each time it’s opposite [to them]; and they doesn’t less overuse this rule when they demonstrate
that [the privilege of] the dowry must be preferred to the others. Because they start where they
want in their reasoning, that is obviously from what they think better, as if that did not make any
difference, but that much imports in these circular relations.

In fact, the solution comes once more from a use of topics combining the respect of logical laws
and the delimitation of the normative context of their use. Because the use of the topic a primo ad
ultimum or of the rule si vinco, is only justified when we complete the logical writing of the
connector by the account of the circumstances, that is in this case: the ratio and
the personae determining the secundum quid. And this has been clearly stated by
Everhardus^Footnote^79 when he declared by quoting all those which had previously upholded the same
idea:

However, to decide clearly and lucidly on this common statement: if I overcome the one who
overcomes you, etc., it’s necessary to make a distinction following Petrus de Ancharano and Cynus
de Pistorio in their comments of the Authentique ‘Licet patri’ of C.5.27, as Johannes Andreae in
his comment of the Authentique ‘Autoritate Martini’ of the Sexte, Petrus de Ancharano about the
same passage, and Lambertus de Ramponibus about the law 16, ‘Claudius Felix’, of D.20.4, as
Ludovicus Romanus at the beginning of his advice n°436. Either we ask the question about different
cases, or we ask it about the same case. In the first situation, the rule if I overcome the one
which overcomes you, therefore I overcome you too, does not have any justification to be applied,
and it’s in this way that speaks the Authentique ‘Licet patri’ of C.5.27.8, and also the §.15 of
D.38.17.2, the §.3 of D.38.17.5 et the §. ‘his consequens’ of the Authentique ‘De aequalitate
dotis’ [Novel 97]; in the second situation where we speak about the same case, it’s necessary to
introduce the following distinction: either the reason which makes that I overcome you is the same
one as that which makes that I overcome the one who overcomes you, and so the rule stated above is
true, because I must overcome you still more easily, according to D.44.3.14 §.3, or the reason
which makes that I overcome you is not the same one as that which makes that I overcome the one
which overcomes you, and then this rule does not have grounds for being.

This syntactic and semantic distinction, does not affect the validity of the inferences we obtain;
on the contrary, it creates their conditions of possibility by subordinating the use of topics to
an increased precision in the formulation of circumstances. But by imposing that, it highlights
still more the function of norms in the delimitation of the scope of topics since it’s finally
considerations of public utility,^Footnote^80 introduced by the circumstances, which found the
superprivilege of the dowry and restore an uncontested order of priorities between safeties.

Thus, topics are prototypes of inferences producing arguments, gathered by the synthesis of
positive laws and which are always accompanied by exceptions (including in the case of topics
logically necessary as those which proceed from the definiens to the definiendum or from the whole
to the part, etc.), because the effectivity of inferences is here subordinated to normative choices
concerning the scope of each topic and the importance of the exemptions (plea and fictions) that
the consideration of circumstances introduces. We could therefore estimate that they all are
inductive in a certain way, since they are all the result of an empirical classification of
arguments. And we could also uphold that they are all deductive, because each one of them allows,
within the precise limits of its scope, to reason from universal to particular (since any
particular proposal is universal for the individuals to which it corresponds, in the same way that
the rule of an exception applies to all the concrete cases corresponding to the criteria of this
exception). In fact, the differences between these extreme topics or all those which are
distributed on intermediate levels, are obtained by the conciliation of the two following
constraints, partly independent: (1) the basic precariousness of the norm which prohibits to apply
the déduction a priori criticized by Mr. Villey, for both the reasons that there is no universal
statement to which we cannot derogate by a plea, and that there is not two similar cases joined
together by the topic a simili, which we cannot separate in two distinct classes by considering
them simpliciter and secundum quid. (2) the two necessity of simplifying the laws system by
formulating statements as general as possible, and consolidating their social effectivity by giving
them a rationally constraining shape.

So, the specific difficulties of topics theories don’t result from the dubious handling of a quasi
dialectical art, because the advantage of the way in which they are formed is precisely to exclude
uncertainty. They do result from the true consequences that this a posteriori way of formation can
have on the questions of rational coherence and foreseeability of the system of laws. Indeed, as we
have tell it above, a topic such that a specie ad genus, allows to obtain an unboubted inductive
inference when we ensures the conformity of the species to the law of the genus by defining a
recognition criterion of these last excluding on principle any exception. But we cannot limit the
topics function to the repetition of usually received arguments, since they must be also used to
facilitate the application of these arguments to new cases. However, we known that the introduction
of a new norm can be in contradiction with the legal system of a pre-existent classification and
lead to the formation of perplexed cases. Thus, the application of topics in the processing of new
cases, can only be ensured if we admit the continuity of causa or ratio between the former laws and
the laws to come, and so, the main question asked by their use in legal argumentation is to know
how to transpose a whole of inferences made up a posteriori, and to confer them a creative function
in the same time. More precisely, it’s to know: (1) why the provisions of common law can be
extended to the new particular cases in accordance with the logical rule generi per speciem non
derogatur. (2) Under which conditions a relation of total or partial similarity allows the
inclusion of a new term in a pre-existent category, with accordance to a principle of institutional
coherence (cf. the case of the topics a praesumptione eiusdem facti and a simili). (3) By which
normative constraints the reorganization of a classification and the introduction of a new category
are authorized in accordance with the principle generi per speciem derogatur. However, the answers
to these questions are systemic and suppose a work of classification, codification, abstraction and
comparison that perhaps could not completely fulfil the Doctors of mos italicus, on account of the
true semi-empirical character of their approach. They were satisfied on this point, to build a
theory of the argumentation combining aristotelician logic and grammatical analysis. But some of
these Doctors and those which applied their methods within the framework of romano-saxon Law, had
however three basic merits we must recall in conclusion, since they are too often unknown: (1) they
knew to connect casuistry to classification, that is to ensure the treatment of concrete legal
cases within the framework of a general theory of reasoning. (2) They often achieved^Footnote^81 to
combine the techniques of cases discussion of mos italicus with the contractualist analysis of
norms hierarchy (and so, to exceed a traditional opposition), by giving greater place to
the classifying aspect of problems. (3) They finally tried to rationalize the creative use of
inductive or analogical topics, while allowing the distinction of the various rationes,
intentiones and causae we can call upon thanks to a logical theory of predication.

Notes
 1. 1.

Archives de Philosophie du Droit, t.XVII (1979), ‘L’interprétation’, p. 72–88.
 2. 2.

Op. cit. p. 86.
 3. 3.

Op. cit. p. 88: “Ensuite, dans la scolastique décadente, la déduction syllogistique unilatérale
l’emporte sur l’art polyphonique de la discussion; les Analytiques d’Aristote, sur sa Rhétorique et
sur ses Topiques; la méthode encore dialectique des postglossateurs (mos italicus) se voit bientôt
contestée par les humanistes... ”
 4. 4.

Op cit. p. 82. Idem p. 83: “Les sentences des juristes consultés (sententiae et opiniones), étant
le fruit d’un travail de dialecticien, sortes d’opinions seulement plausibles, ne sont elles-mêmes
que des opinions.”
 5. 5.

Op. cit. p. 83: “... le Digeste n’est qu’un catalogue de topoi, d’opinions fragiles... Il faut bien
qu’il en soit ainsi si la méthode est dialectique...”
 6. 6.

Op. cit. p. 84: “On y voit les postglossateurs, ces successeurs authentiques des jurisconsultes,
user selon les circonstances parfois du texte des statuts écrits des communes, des textes romains
ou coutumiers, ou bien des lieux en sens divers que fournissent la philosophie et la littérature
commune comme l’équité, le droit naturel ou l’utilité...”
 7. 7.

Op. cit. p. 84–85: “Il ne s’agissait pas d’une suite déductive de normes, mais d’un classement des
genres de cas ou parfois des types de sources, ou des topoi, des arguments applicables à chaque
problème.”
 8. 8.

Op. cit. p. 87: “…ainsi nous autres sur le monde, les rapports justes dans le monde, n’avons jamais
que des points de vue d’où naissent les topoi, les opinions particulières, point de départ de la
dialectique.” The standpoints would only be in fact the preliminary material of
the topoi (themselves assimilated to particular opinions), if M. Villey did not add then quoting
Viehweg (Topik und jurisprudenz. München. 1953) “les topoi sont des points de vue”.
 9. 9.

Op. cit. p. 84: “Le droit du Moyen Âge non plus n’est pas un ni plusieurs systèmes mais une
incessante dialectique entre sources hétérogènes; d’où sa grande fécondité...”
10. 10.

Op. cit. p. 85: “Le droit à Rome ne possède pas de forme achevée; il n’a pas d’existence actuelle;
il n’est qu’en puissance. Il est une recherche, un art; disposant..., d’un lot disparate
d’instruments (de règles, de topoi)...”
11. 11.

Op. cit. p. 83: “...Il apparaît que le jus civile Romain n’est pas fait de règles certaines et
nécessairement consolantes … Nées de la dialectique elles demeurent dans la dialectique; elle sont
encore soumises au feu de la discussion dialectique. Et rien n’empêche qu’elles ne discordent: on
peut alléguer contre Labeon l’opinion de Sabinus...”
12. 12.

Op. cit. p. 83: “Les sentences des jurisconsultes étant le fruit d’un travail de dialecticien,
sortes d’opinions seulement plausibles, ne sont elles-mêmes que des opinions. On doit sans doute
leur reconnaître une autorité supérieure, à cause du prestige de leurs auteurs et du long travail
de recherche dont elles ont été le résultat., cette autorité cependant demeure relative.” Idem p.
87: “Et, comme il est de l’essence de la dialectique de ne pouvoir jamais accéder à des solutions
démontrées, il faut qu’au terme de sa recherche, ayant pesé le pour et le contre, le jurisconsulte
prononce sa sentence autoritairement…La dialectique ne conclut que grâce à l’intervention d’un
maître.”
13. 13.

Op. cit. p. 88.
14. 14.

Op. cit. p. 85.
15. 15.

Theodor Viehweg. Topik und Jurisprudenz. Mûnchen (1953), (the Italian translation which is used
here, has been published under the title Topica e Giurisprudenza. Giuffrè editore, 1962. Milano).
Indeed, we find in this book he same judgment on the “unilateral syllogistic deduction” principle
(“..sembra esistere un nesso, che non consente di esser ridotto, semplificato in un nesso logico,
sicché noi veniamo ad occuparci soltanto, in definitiva, di costruzioni che sono ancora isolate ed
indifferenti.” p. 40), the concomitant valorization of a pluralist and no-verifonctional approach
of the diversity of practical cases (“...le premesse vengono qualificate come ‘rilevanti’ o
‘irrilevanti’, ‘accettabili’ o ‘inaccettabili’, ‘da condividere’ o ‘da non condividere’,
‘sostenibili’ o ‘non sostenibili’ e così via e che anche delle posizioni intermedie, come ‘appena
sostenibile’, ‘ancora sostenibile’, p. 43–44), and the assertion of the antinomy between deductive
logic and the art of topic (“la topica presuppone la mancanza di un sistema di tal genere... Se
tuttavia si riesce a costruire un sistema deduttivo, verso il quale ogni scienza, considerata dal
punto di vista della logica, deve tendere, la topica viene in larga misura abbandonata.” p. 45).
16. 16.

Op. cit. p. 84: “Il suo lavoro, già piừ volte citato, De methodo ac ratione studendi libri tres,
non costituisce un fatto particolare, ma si pone accanto ad altri lavori consimili.” (with the
following note added for the term ‘consimili’: “Si tratta della cosiddetta letteratura topica. Ề
vero che essa si ha nell’età dell’Umanesimo (per es. Gammarus, 1507, Everhard, 1516; Cantiuncula,
1520; Apel, 1533; Oldendorf, 1545), ma contiene in larga misura spirito medioevale.”
17. 17.

Bobbio N and Bovero M (2002). El caracter del Iusnaturalismo, in Sociedad y estado en la filosofia
moderna (article diffused on Internet by http://www.sociologia.de.
18. 18.

Op. cit.: “Como el lector entendió, me refiero a la obra de Ch. Perelman tan vasta que no puede ser
exhaustivamente presentada en una nota ... No debe olvidarse en la misma dirección el libro de Th.
Viehweg, Topik und Jurisprudenz ... que si bien partiendo de supuestos diferentes llega a
resultados similares.”
19. 19.

Op. cit.: “Con el avance de la ‘escuela’ van desapareciendo los tópicos y las dialécticas, todas
las ‘regulae docendi et discendi’, que se refieren a la lógica de lo probable. El redescubrimiento
de la retórica como técnica del discurso persuasivo, opuesta a la lógica como técnica del discurso
demostrativo, y el reconocimiento de que las operaciones intelectuales efectuadas por los juristas
en su función de intérpretes pertenecen a la primera, puede servir para explicar el carácter
específico del iusnaturalismo, con una claridad de la que en general no hay huella en la historia
de la escuela. Si bien con una cierta simplificación, es válido sostener que el iusnaturalismo fue
la primera (y también la última) tentativa de romper el nexo entre el estudio del derecho y la
retórica como teoría de la argumentación, y de abrirlo a las reglas de la demostración.”
20. 20.

See the preamble of the Loci argumentorum legales (p.8 of the edition of Francfort, 1591) where
Everhardus declares: “The pieces of writing on ‘loci legales’ are not only useful for students in
law, but mostly necessary (and it’s on this subject that wrote Balde in his comment of C.1.3.15,
the Speculator [Guillaume Durand] in his ‘De disputationibus et adlegationibus’, Alberic de Rosate
in his ‘Dictionarium juris tam Civilis quam Canonici’ and Arnold of Rotterdam in his ‘Tractatus de
Dialecticis graecorum principalibus’. But Ciceron spoke of that more exactly in his Topics, and
after him, Boece, Quintilien in his book ‘Institutiones oratoriae’, and Rodolphe Agricola in his
book ‘De inventione Dialectica libri tres’. See also the §. ‘Divisio locorum’ of the Topica
Legalia where Cantiuncula says “Others have differently classified the loci and difficulty agree
between them. Thus, Rodolphus Agricola, which follows the opinion of le Great Erasme, is in
disagreement with Aristote, Ciceron and Boèce… But Ph. Melanchton differently deals with topics in
his pieces of writings on rhetoric… and a long time before that, lawyers like Alberic of Rosate,
the Speculator, Balde and some others, have put together a great number of arguments from the
interpretation of laws.”
21. 21.

The classification of authors quoted in the Dialectica legalis of Gammarus, according to their
frequency of call, gives: Bartole, Balde, Aristote, Abbas Panormitanus, Dynus Mugellanus, Johannes
Andreae, Boece, Jason of Mayno, Imola, Butrio, Paul of Castro, Gambilionibus, Geminianus,
Pistoriensis and various postglossators incidentally used. Quite the same classification would be
obtained from the Loci argumentorum legales of Everhardus, with the three following specificities:
the number of references to postglossators works is considerable there; the quotations of Balde are
more frequent than those of Bartole; and the references to the topics of Aristote are negligible,
owing to the more ‘casuisitic’ character of the Everhardus processes. On the other hand, the
classification of the authors quoted in the Topica legalia of Cantiuncula reveals his membership of
legal humanism since we obtain: Cicero, Zasius, Alciat, Agricola and Boece, to which Bartole, who
is practically the only one representative of the mos italicus, finally succeeds.
22. 22.

Loci argumentorum legales, Francfort (edition of 1591).
23. 23.

Petri Andreae Gammari Bononiensis Dialecticae legalis sive topicorum libri III (edition of 1522).
24. 24.

The Topica legalia which was consulted, follows the Methodica dialectice ratio ad jurisprudentiam
adcommodata in the edition of Bâle (edition of 1545).
25. 25.

Synopsis locorum legalium, Darmstadt (edition of 1610).
26. 26.

Centum modi argumentandi, Venise (edition of 1539).
27. 27.

(1)According to the arguments can be obtained by deduction, induction or analogy; (2) according to
they can be necessary and provable, only necessary, only provable; (3) according to they can be
obtained by syllogism, induction, enthymem or by one example. (op. cit. p. 8).
28. 28.

Gammarus, op. cit. p. 10.
29. 29.

The comprehension of the relationships between logic and norms in the use of topics is no more
ensured when Th. Viehweg uses the words ‘cliché’ and ‘standpoint’, to join together and confuse in
the same category, contents as different as legal topics, ‘literary topic’ and ‘musical topics’
(p.38). Because the indisputable fact that the word Topica was used in a generic way to indicate as
well “rules” of reasoning as criteria of empirical classification (cf. the ‘medical Topics’), or of
taste, doesn’t imply the argumentative identity of these various collections.
30. 30.

Everhardus, Loci argumentorum legales, ‘Preambula’, §.7: “We must know that it is easy to solve all
legal difficulties if we pay attention to what contain the following terms: the cause, the place,
the time, the person... Because law changes if they are added... See also what Odofredus and Balde
say in their ‘Proemium’ of the Digeste, when they skilfully teach us that the force of any
misleading argument can be invalidate in three ways: by the consideration of modalities, people and
relations...”.
31. 31.

Everhardus, op. cit. §. 1: “We call places [locos], some positions [sedes] immediately available,
by which we build necessary or probable arguments, about matter of points which it is necessary to
confirm or invalidate”… “An argument consists of all this which give a conviction [fidem facere],
in whatever way, about a doubtful thing we discuss.” … “It’s arguing and disputing that we find the
truth.” We must finally underline that Everhardus quotes only one very ‘dubious locus’: “a tractatu
sive perplexis aut implicitis”, and that his argumentation aims to remove this uncertainty by
analyzing the implicit one.
32. 32.

Op. cit. §. 7: “We know by argument what we cannot notice in an obvious way.”
33. 33.

Op. cit. §.14: “What somebody tell be true according to law,, he must prove it by putting forward
an express text or by leading to a text thanks to an argument using one of the legal loci… Whe
argue in law, in three different ways, namely: by law, by reason, and by one example… We argue
thanks to the reason, when an express law is missing, but however natural reason imposes something…
And here Balde says in his comment of D.27.1 that we don’t be astonished to see the reason
receiving such a force, since reason is the soul of law and that it represents a kind of inner
tacit law in the spirit of men, and his text says that reason, truth and God are equivalent… But we
argue by an example when we proceed from a particular case to an other, owing to something similar
we recognize in them. And there is not any way of argumentation which cannot be reduce to one of
these three modes.”
34. 34.

Op. cit. §. 13: “The jurisconsult looks after what is just and unjust”; §. 16: “The reason is quite
a tacit law which is inscribe in the spirit of men”; §. 17: “In discussions, it’s necessary to
finally refer to the most valid and most constraining argument.”
35. 35.

Op. cit. §. 16: “The reason is a kind of tacit law inscribed in the mind of men.”
36. 36.

Op. cit. §. 27: “Who studies law must be humble, and must not foresee to be able to judge according
to the law if he did not examine the totality of laws, since the terms which follow sometimes
clarify or sometimes depart from those which precede.”
37. 37.

Gammarus, De veritate ac excellentia legalis scientiae libellus, pp. 160–161: “In his book De
republica, Ciceron elegantly spoke about it in this way: the true law is the right reason,
congruent with nature, present in everybody, eternal and constant... And there will not be a law
for Rome, an other for Athens, an other now, an other afterwards, but only one eternal law for all
and in any time... The law is the highest reason inscribe in nature, which orders the acts having
to be done and prohibits the others.”
38. 38.

De ratione studii legalis paraenesis, Bâle (1522).
39. 39.

Cantiuncula, Topica legalia, pp. 28–30.
40. 40.

Op. cit. p. 28.
41. 41.

Op. cit. p. 30.
42. 42.

Op. cit. p. 29: “The argument proceeding from the parts to the integral whole is valid in an
affirmative way when we consider the shape of the thing as an integral part of this thing. Indeed,
since this part exists and disappears at the same time as the whole (as we will teach it in the
place “a forma”), we can reason in an affirmative and negative way from a part of this type.”
43. 43.

Op. cit. p. 29: “There is indeed parts... which take the name of the whole only when they are
joined together. Thus, since the foundations, the walls and the roof constitute a house, they form
a house when they are joined together. But alone, the foundations cannot be named by the name of
house... It’s not the same in the case of species whose all receive the whole name of the genus,
like when man and horse receive the name of animal.”
44. 44.

Op. cit. p. 29: “In the enumeration of the parts which do not receive the name of the whole, unless
being all joined together, we will follow the Boece’s doctrines in the following rules. If we want
to destroy an argument, it will be enough to find one missing element. If we want to confirm it, it
will be necessary to find them all joined together.”
45. 45.

Op. cit. p. 30: “But [this invalidity] is not accepted in three different cases. Firstly, if we
speak about a discontinuous quantity, such as a promised or bequeathed species. As when we indicate
this money which is in this coffer. Indeed, if this money is destroyed, we can infer that no
discontinuous quantity is due, since the promisor is released by the destruction of the species,
when there is neither fault nor fraud from him.”
46. 46.

Op. cit. p. 30: “Secondly, if the statement turn on a matter which give the same substance to the
part and the whole, like when we say: an action in rem is in conformity with law, so any action is
in conformity with law. And it’s the same thing when we reason in a negative way, like when we say:
the action ‘ex empto’ comes from a contract and is not an action in rem, so, no action coming from
a contract is an action in rem.”
47. 47.

Op. cit. p. 30: “Thirdly, each time that we reasons starting from all the parts joined together at
the same time, to go towards the whole, as we will underline it in the locus ‘a specie’. We argue
then affirmatively proceeding from a part so conceived, towards the whole, as follows: somebody has
the intention of a good faith owner, thus he possesses in good faith. When we argue negatively, we
do not create any right.”
48. 48.

These rules are stated in the topic a specie ad genus as: “De quocunque dicitur species, de eodem
dicitur genus”; “Si in hac universali quaelibet singularis non est vera, tota oratio reditur
falsa.”
49. 49.

Indeed, Everhardus distributes the properties of the topic a partibus, in two relatively minor
topics: ab enumeratione partium and a minori, and in the basic topic: a ratione legis larga ampla
seu generali ad extensionem ipsius legis (to which he devotes the pages 481 to 540 of his Loci
argumentorum legales), distinguishing the argumentation rules according to whether they apply to
cases rectifying a previous law (casus est correctorium), derogating from common law (casus est
exorbitantium a jure communi ac regulari), coming under criminal law (casus est poenalium, ubi
locum habet extensio), or simply expending this law (casus est de extensione, in non correctoriis,
nec exorbitantibus, nec poenalibus).
50. 50.

We find it especially in the §. 3 of the topic ab opinione vulgi of Everhardus’s Loci argumentorum
legales. (p. 113).
51. 51.

Cf. the disputable feature of the mixture of categorization criteria proposed by Cantiuncula in the
case of the topic a partibus (according to the nature of the parts and the way of reasoning that we
apply to them).
52. 52.

For this reason, the Topics are both argumentation treaties and interpretation treaties whose
target is to constitute a grammar of laws. This find expression in the presence of ‘necessaries’
topics like a definitione, ab etymologia, ab allusione vocabuli, etc, and the frequent compiling of
works mixing logical, grammar and law (cf the opuscule Particularis juris of the Leibniz’s uncle,
J. Strauch).
53. 53.

This number is obtained by counting for only one genus of topic the various species of the topic a
simili.
54. 54.

We could perhaps reproach him to have confused necessity and obligation. However his interpretation
is justify by the fact that all topics are naturally obligatory since the laws of which they
summarize the way of reasoning (including those which derogate from the rule), have this character
by definition.
55. 55.

That is the definiens and the definiendum in a definitione, the demonstrans and
the demonstrandum in a descriptione, the sum of the parts of a thing and the thing itself in ab
enumeratione partium, the single species of a genus and this genus in a specie ad genus.
56. 56.

Cf. the topic a defectu formae where the no-respect of legal procedures implies the nullity of the
act, and those in which there is inclusion of the second in the first (like the species in the
genus in a genere ad speciem).
57. 57.

Op. cit. pp. 43–44.
58. 58.

Op. cit pp. 120–131.
59. 59.

The ‘Assimilation’, i.e. the analogical extension about which speaks D.9.1.4, is that by which the
‘actio noxalis’ defined by the ‘Leges XII tabularum’ and that we can exert against the owner of a
quadruped which caused a damage, is extended to any animal. (“And this action can be usefully
brought if it’s not a quadruped but an other animal which caused the damage”).
60. 60.

p.95 of the Synopsis and pp. 637–655 of the Loci argumentorum legales.
61. 61.

p.10 of the Synopsis and pp. 86–92 of the Loci argumentorum legales.
62. 62.

Loci argumentorum legales p. 50: “I don’t want not more to let you be unaware of that species forms
part of genus and that genus forms also part of species, but in a different way. This is why, so
that you would not be misled by the ambiguity of the word ‘to form part’, I informed you that
something can be said ‘to form part of something else’ in two different ways.”
63. 63.

It’s indicated in Latin by the expression: contentive sive comprehensive, who does not
mean comprehensively, but well inclusively (continere and comprehendere with the meaning of: to be
materially included or intellectually understood in something).
64. 64.

The latin sentence says: illative, positive, consecutive seu per consequentiam.
65. 65.

Op. cit. p.51: “The first way is done in inclusion, and in this case, the species forms part of the
genus, that is, the species is contained or included in the genus, and it’s in this way that speak
the end of the §. ‘but if the fact of defrauding’, when we say that the fraud is understood in the
deceit, according to the first interpretation of the glose, see what say Bartole, Balde and the
Doctors about this matter.” … “And its in this way that speaks D.50.17.80” [“In toto jure generi
per speciem derogatur et illus potissimum habetur quod ad speciem derectum est”], see Dino de
Mugello, [on this rule] in the Sexte [rule 34: “generi per speciem derogatur”], and the rule “plus
semper” [rule 35: “plus semper in se continet quod est minus”], with its note and the glose turning
on the same title of the same book. But in this case, the exception forms part of the rule, in
other words, is included or contained in the rule, as say it perfectly the glose turning on the
rubric ‘De regulis juris’ of the Sexte, and Dino de Mugello, Albericus Roxiati and the Doctors,
about D.50.17.1. And in a general way, the special categories or which are less common, form part
of the most general or most common, in other words, are included or understood in them, see
D.50.17.147 [“Semper specialia generalibus insunt ”].
66. 66.

Op. cit. p. 52: “In the second way, something is said to form part of something else, not in
comprehension as I said, but by implication, or consecution, i.e. by the consequence; because the
second term is implied or follows when the first term is stated; and thus, the genus, i.e. what is
more common, is a part of the species, i.e. what is less common, because once the species is
stated, the genus is stated; and once the least common is stated, the most common is stated, as
with: it’s a man, consequently it’s an animal.”
67. 67.

Op. cit. p. 53: “The genus or the most common, implies its species or the least common, by
inclusion; thus, when the husband bequeaths to the wife the things which are at the wife’s
disposal, then the things which were bought for she are supposed to be bequeathed to her.”
68. 68.

Op. cit. p. 53: “But [from a comprehensive standpoint] the genus or the most common, does not imply
the species, or the least common, because we have not the following consecution... it’s at the
woman’s disposal, so, it is bought, because there can be another way of acquisition”. See also the
conclusion of D.32.47 §.1: “If the husband bequeathed to the second wife the goods [not bought]
which had the first wife, these goods are at the second wife’s disposal, even if the husband has
bought nothing to her, and the legacies are obtained, even if they are not specifically allocated
to her. But the goods which are bought for the first wife and which are at her disposal, are only
due to the second wife if they are specifically allocated to her, because the husband did not think
of the second when he bought them.”
69. 69.

See in Gammarus: “De loco a toto universali, seu a genere ad speciem” and “De loco a specie ad
genus”, op cit. pp. 23–28, and in Cantiuncula: op. cit. pp. 31–32.
70. 70.

Op. cit. p. 47: “There exists in Law an other locus of frequent use, which we call a genere ad
speciem, and which allows to obtain an argument which is not probable, but necessary.”
71. 71.

Op. cit. p. 54. “The glose ... rightly says that the fact of declaring that the whole is in the
part secundum quid [i.e. comprehensively], because the whole is not simply in the part [i.e.
extensively], must always be understood... by the consequence and not by the contents. And this
must be kept in memory, because if not, we can be easily deceive because of an error proceeding
from what is said secundum quid to what is said as simply; see what I said in the former locus [a
genere ad speciem] and what I will say in the next [a toto ad partem].”
72. 72.

Op. cit. p. 53.
73. 73.

Cantiuncula C.: Methodica dialectice ratio ad jurisprudentiam adcommodata (edition of Bâle,
1545), Chapter 7 (pp. 159–160). The Proemium of this book refers to the precursors of Cantiuncula,
and especilally quotes Petrus Andreas Gammarus Bononiensis. Once more, it proves that the
opposition mos italicus/mos gallicus is quite secondary when the thing to do is to elaborate a
theory of legal reasoning.
74. 74.

Sexte, book 5, De regulis juris, rule 54.
75. 75.

Constitution Assiduis stated in C.8.17.12: “We were disturbed by the constant taking away [made on
the goods] of women, whose they deplore that they make lose their dowries and [which are made] by
creditors former [to the marriage], on the goods possessed by the husbands. This is why we examined
the ancient laws which provide in personal actions, an important prerogative with the action for a
claim for dowry, so that women have a privilege against almost all personal actions and that they
come before the other creditors, even if they were former.”
76. 76.

Johannes Franciscus de Ripa Papiensis, Commentaria primae and secundae left digesti novi and
infortiati and postremo in primam codicis, fol.58 and 59, Lyon (edition of 1538): “It is said that
the woman is preferred with all the creditors, by a special provision, for the things given by way
of dowry. Consequently, she is not preferred with the other creditors for the rest of the husband’s
goods and so, she is not preferred with those which have an express mortgage by the only fact that
she comes before those which have a tacit mortgage in accordance with the Constitution Assiduis.
And this opinion opposite to that of Bartole is more veracious and more common.”
77. 77.

“Thus, every time that this is objected to them, from an other standpoint (i.e. when themselves
argue as follows: the posterior dowry precedes the former tacit mortgage and this one [precedes
the] middle express [mortgage], an so, the dowry [precedes] the latter; and that we object: start
rather from the express mortgage in the following way: the middle express mortgage precedes the
posterior dowry, the [posterior] dowry [precedes] the tacit former [mortgage], so, the first
precedes the latter; or as follows: the former tacit mortgage precedes the middle express
[mortgage], this one [precedes] the posterior dowry, so, the first precedes the latter), they
immediately retort: this rule, ‘if I overcome, etc’, make a mistake in the two last relations.
Thus, why doesn’t it mistaking in the same way (in the first relation) when you are in favor of the
dowry?”
78. 78.

Leibniz, De Casibus Perplexis, Chapter 22. Akademie der Wissenschaften, VI.2. (1990).
79. 79.

Loci argumentorum legales, p. 729.
80. 80.

Cf. D.24.3.1: “The cause of dowries is everywhere and always in favour. Because it’s the public
interest to preserve the women’s dowries because it’s very necessary that women be provide with
dowries to have children and to fill the city of them.”
81. 81.

Cf. the works of Cantiuncula, but also and especially those, posterior, of Berlich, Carpzov and
Leibniz.

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