Le competenze canonistiche di un civilista. Usura, questione ebraica e conflitti di giurisdizione nei consilia di Paolo da Castro

Starting from a research on the consilia sapientis by Paul de Castro, we have identified the case of conflicts of jurisdiction between civil law and ius canonicum, and in one of the most significant cases of that conflict - i.e. the debate about the prohibition of the usury on loans -, the principal scope of the survey, that otherwise would insist on a more heterogeneous material. Extending the research to the universitary works of Paul and of his contemporaries and masters, one could observe how the figure of Paul de Castro acquire a key relief. So much so that the interpretations of this jurist became the reference theories (the ill-famed communis opinion) for the jurists of the early modern age. In particular - and it is a new event on the state of the art - we observe that the opinions expressed in consulendo assume an absolute value, suggesting once again as the approach to applied cases of law was considered by jurists of time not lesser than Lecturae and Commentaria by the scholars. Commentaria tend to establish with minor variations the interpretative principle of law, with its ratio and cross references to other legislations, on the spirit of the utrumque ius. Principles that remained valid even if in practice their application in the Courts was bent to the changing requirements of law and society. In this way Paulus de Castro reiterates the opinio Bartoli about the conflicts of jurisdiction, reaffirming that in the lands subject to the Pope’s power ius canonicum prevails on the ius civile; which in turn is subjected to the canon laws even in the lands subject to the secular power in those cases where it would endanger the salvation of the soul. But, having to advise on a specific applied case, other priorities arise in the eyes of an experienced jurist, who is not afraid to bend the rigid principle in an answer that encourages the positive solution of the lawsuit. So he contributes not only to keep the common law in step with the times in rapid mutation, but to create an actual new law preserving the very foundations of the traditional one. In the specific case of the debate about usury, what we have now said seems evident. Once again, in legendo, Paul confirms the principle of the absolute prohibition to the usurary loan. But in many cases where the problem arises in the practice of the Court, the solutions are much more elastic than the principle: Paul, e. g., takes on the proposals of the Hostiensis (already carried out by Franciscans summistae) to distinguish from the usury a lawful interest. Intending, to return interests by the lender, the profits that from that money, in so far it would presumably intended to the trade, could derive if it for charity purposes would not distracted for the people in need. That thesis led to the creation of new contract figures and professional realities, thus creating new laws and giving fresh impetus to the economics. Paul’s thesis - as observe Poliakov - was held by the jurisprudence and marked the milestone of the debate on usury during the Renaissance.