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Questioning the characteristics of modernity and post-modernity in law, this article examines the consequences that these characteristics may have had for the history of law. With the recognition of the social nature of the law, the consciousness of the historicity of law constitutes an essentiel conquest in the collective consciousness of the Europe of civil law.

The author wishes to identify the legal message given by Europe in the Middle Ages and in contemporary times, when a legal entity was achieved therein. This message has ancient roots, but has the following common elements: achievement of a legal unit, while also respecting internal diversity; enhancement of the value of jurists in legal production (because law is the field of jurists, and not of politicians); and especially enhancement of the value of legal science, for its capacity to establish harmonising and generally boundless principles. It is singular that this enhancement of the value of jurists and legal science may also be found in the great movement often called legal globalisation, a movement borne of the needs of the global economic market, and in which jurists and legal science play a decisive part.

Chapter 2 of L’ordine giuridico medievale, entitled « Premesse ordinative », presents the fundamental methodological issues at the heart of the book. After discussing the historicity of law, the author introduces the notions of « legal order » and « legal experience », which form the basis of his understading of medieval law. The Middle Ages are described as a unified experience, characterised by the presence of multiple legal orders.

With a point of departure in the relation from the civil law professor Pugliatti about property and properties, the article proposes to use the plural form in order to relativize the absolutist conception of property that has triumphed during the 19th century. The medieval experience is the one of another relationship between Man and Things, based on the possession and exploitation of land, and leading to the idea of a plurality of properties upon the same thing. Appeared during the early Middle Ages, this superposition of ownerships was theorized, thanks to the rediscovery of Justinian’s compilation, through the notions of dominium utile and divided domain. Although it was founded on a contradiction in the very terms of dominium utile, this juridical construction was anchored in mentalities during centuries. Finding its origin in the thought of theologians and of philosophers from the 14th century, the new anthropologic conception of the relationship of Man and Things gave birth to the possessive individualism and to the ‘modern’ property.

Paolo Grossi brings the perspective of a legal historian to the definition of political modernity. He deciphers the slow shift in the conception of law from the 14th century to the dawn of the 19th, focusing in particular on the kingdom of France. He seeks to demonstrate that political modernity is characterised by a process of individualisation that inverts the relationship between law and politics: whereas in the Middle Ages “first there is law; political power comes only later”, from now on “the basic certainty is that before law, there is the State”.

In this text – a written version of a lecture given at the Italian National School for the Judiciary in 2019 – Paolo Grossi begins by examining the legal nature of the Constitution and the relationship between the Republic and the State, highlighting the multi-layered nature of the Italian Constitution. Paolo Grossi invites to understand that living the constitutional dimension of the Republic today means respecting its inherent legal pluralism. For this reason, Paolo Grossi advocates moving « from law to interpretation », which is also possible thanks to the epistemological support of the « hermeneutic revolution ». Finally, from this perspective, he asks two fundamental questions : what about the « subordination of the judge to the law » ? What about the so-called separation of powers ?

This Paolo Grossi's text invites scholars of medieval legal history to get rid of two notions that the Italian jurist considers “cumbersome” and profoundly alien to the medieval legal experience, namely the notions of “sovereignty” and the “State”. To this end, Grossi contrasts a modern unitary model, in which the sovereign State is the only legitimate instance to legislate, with a medieval pluralist model characterized by a variety of sources, powers, and communities authorized to shape the law. Grossi highlights the analytical value of the notion of “autonomy” in understanding the plurality of medieval legal orders. In doing so, he highlights the idea of a “law without state”, that is fundamentally connected to the social world and expressing it in all its dimensions. The article offers a radical re-reading of medieval political and legal thought.