Osvaldo Cavallar, Baldus de Ubaldis (Abstract)
Baldus de Ubaldis on the Hermaphrodite: A Turning Point
Osvaldo Cavallar, Nanzan University (Nagoya-Seto, Japan)
My paper is just a thin slice of a larger project that Julius Kirshner and I have undertaken centered on the figure of the “hermaphrodite” in the ius commune. Though primarily focused on the legal sources of the Middle Ages, our research will also extend its scope to early modern law and conclude with the Quaestiones medico-legales of Paolo Zacchia—a work in which the hermaphrodite figures prominently and that marks the beginning of legal-medicine. The occasion that prompted our investigation was our encounter with a legal opinion (consilium) composed by the leading Italian jurist of the second half of the Trecento, Baldus de Ubaldis of Perugia, who, around 1391-92 while teaching at the University Pavia, was asked to resolve a dispute over the inheritance rights of Giovanni Malaspina of Mulazzo in Lunigiana to the imperial fiefs belonging to his branch of the family. Elsewhere we have provided a preliminary analysis of the historical context of Baldus’s consilium, touched upon the identity of Giovanni, or Ghisello, and speculated on the role Giangaleazzo Visconti, Duke of Milan and political allay of the Malaspina, may have played in that feudal dispute and in getting Baldus’s involved along with other jurists of the University of Pavia. In addition, we have also discussed the consilium, which we have critically edited and translated into English, paying attention to its sources, language, and logic. Aside being the first legal opinion a medieval jurist penned on the legal status of an intersexed person, Baldus’s text stands out, and deserves close attention, for another striking feature: the detailed description of the anatomical configuration of Giovanni’s sexual organs—his pudenda. That description was likely produced by an expert physician who examined Giovanni’s body in view of the dispute and then forwarded it to the jurists. Baldus himself, after writing his consilium, re-presented Giovanni’s pudenda twice: in his commentary to feudal law (the Libri feudorum) and the Codex of Justinian—two fragments that widely fell outside the established loci where jurists customarily addressed the issue of the sex of the hermaphrodite. First, the paper will compare, on one side Baldus’s commentary on the three fragments of the Digest where the hermaphrodite appears—lex Quaeritur (D. 1.5.10), lex Repetundarum, § Hermaphroditus (D. 126.96.36.199) and lex Sed est quaesitum, § Hermaphroditus (D. 188.8.131.52)—and, on the other, the elaboration proposed in the consilium and the two other related pieces in which he returned to Giovanni’s case. As not to loose sight of the complexities of the hermaphroditehas assumed among learned jurist, the figure of Albricus da Rosate will also be introduced for comparison. The hermaphrodite by displaying his pudenda exits the realm of the myth and ceases to be the “only happy couple”—to borrow the expression Lady Townsend used to describe her bronze copy of a sleeping hermaphrodite. Second, the presentation will clarify the contribution of civil lawyers to the doctrine that gave the hermaphrodite endoved with equal sexual capabilities the choice of the sex to which belong. Customarily, this doctrine is attributed to Enricus de Segusio, Cardinal Hostiensis, who elaborated it on the base of reminiscences of a case he saw adjudged by the bishop of his diocese, Susa. Elaborated by the French jurist Gulielmus de Cuneo, it became known to Italian Trecento jurists, such as Albericus de Rosate and Baldus, via Andrea de Pisis (Ciaffi).