Il giudice e le sue fonti

Note su inquisitio e fama nel Tractatus de maleficiis di Alberto da Gandino

Abstract

The guiding thread of the treatise de maleficiis by the Lombard judge Alberto Gandino, who served Italian courts of the podestà for more than two decades (1281–1310), is represented by the attempt to legitimate both juridically and politically a new penal system based on the inquisitorial search for truth and on the necessity of a system of penalties. Gandino directs the extraordinary number of sources used to constitute his treatise to this purpose. The present article analyzes the relation between the sources he used and the chapters he dedicated to inquisition and an individual’s reputation. The Decretals can immediately be seen to play a key role: not only can the procedure be traced back in its totality to the Decretal Qualiter et quando, but the Liber Extra also serves to justify the role of reputation as a form of proof, being used as a sufficient »half proof« in order to apply torture. Using canon law allows Gandino to overcome the limits of Roman law still present in previous treatises (an anonymous De tormentis and the De fama by Tommaso da Piperata), which he embraced with only some modifications regarding the rules on torture. The »person’s reputation« (in other words his behaviour within the community) becomes a form of evidence beyond objective guilt, as it highlights a deeper, inherent characteristic of his personality: his addiction to good or evil. Yet Gandino took another important concept from the canon law: »the guilt« a man of bad reputation necessarily carries for having deliberately led a degenerate life, excluding himself from the community, a crime that always requires a judicial sanction.