Intro_continental_legal_science [Unlocked]

account on a cultural plane, valuable for the store of human reasoning and human reasonableness that it had elaborated and embodied through the ages…

The ius commune was increasingly beset and compressed: relegated to the past, it was to serve as a means for gaining knowledge of ancient times; as a monument that had survived from former ages, it was to help reveal the true ancient world and, in particular, the grandeur of Rome.

Bellomo M. The common legal past of Europe, p. 207.

… It was fashionable in some sectors of the humanistic culture of the time to treat all jurists of earlier times as ignorant. Medieval jurists were defamed in long strings of insults: they were "plebs, noxious, inept, sophists, barbarians, unlearned, handling our discipline foully, to contend over goats' wool; that is, over trifles, born to the plough, not well endowed mentally, base, ambitious, greedy, men of exotic, that is, bad, language" and worse.

Sources of Law.

Van Caenegem R.C. An historical introduction to private law, p.

55.

… the Humanist School of Roman law was the last school to profess the primacy of the Corpus iuris… <Yet, they shifted focus on texts of the classical period of Roman law, and the critique of the compilers of the Corpus Iuris for distorting the words of the classical Roman lawyers>

ad fontes! <back to sources> was the motto of the humanist school

[A note from the instructor]

The medieval sources of canon law were rejected by many French

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legal humanists who sympathised with various currents of Protestantism. Protestants argued that these sources defaced the original meaning of the Holy Scripture (their motto was “Only the Scripture!”) and lacked the authority (according to Martin Luther, the Church had nothing to do with secular affairs, including legal relationships).

Therefore, mos gallicus did not produce any noticeable study on the sources of canon law of the Roman Catholic Church.

Methods.

Van Caenegem R.C. An historical introduction to private law, p.

55.

The original element in the humanist approach was to apply both historical methods, in order to understand the social context of legal rules, and philological methods, in order to determine the exact meaning of Latin and Greek texts. These principles enabled the humanists to expose the erroneous and anachronistic interpretations given by their predecessors. Sometimes they launched violent attacks on the jurists of the Middle Ages, describing them as fools and accusing them of having submerged Roman law under a mass of Gothic and barbaric accretions.

Gordley J. Comparative law and legal history, in: Oxford handbook of comparative law, p. 754–755.

Legal history was born when the Renaissance humanists found another <i.e. non scholastic> way to deal with texts. They used the methods of philology to determine what words originally meant to their authors. In 1340, <Italian poet Francesco> Petrarch, one of the founders of humanism, concluded that the scholastic method was deeply flawed. ‘I regret and will regret, as long as there is breath in me, so large a part of my life passed’ studying law in Bologna. ‘The greater part of our

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legists… care nothing for knowing about the origins of law and about the founders of jurisprudence…’. In the 15th and 16th centuries, Alciatus and Cujas and other able writers applied humanistic methods to Roman law generally.

Some critical remarks

The humanists regarded Roman law as a model not only for classical times but also for their own. Their objection was that the scholastics had distorted it. Petrarch complained that it ‘never occurs to our legists that the knowledge of arts and of origins and of literature would be of the greatest practical use for their very profession’. Nevertheless, humanists’ aspirations led to problems. What was to be done about contradictions and gaps in the texts and problems that the Roman jurists had not expressly confronted, after the scholastics’ innovations were condemned?

The 17th scholar <Jean> Bodin denounced the humanists and praised Bartolus…: ‘We cannot hope for assistance from those whom no one wants to consult in matters of law, who prefer to consider themselves grammarians rather than jurists…’…

For example… the humanists endorsed <the Roman rules that limited enforceability of informal agreements> as authentic Roman law.

Moreover, the humanists believed that recovering authentic Roman law would elevate legal thought. The Romans, however, were poor philosophers, albeit excellent lawyers.

Literature of the Humanist School.

Among the abundant humanist literature the following genres were of the greatest scientific value:

– philological and historical commentaries to the sources of Roman law (e.g. ‘Commentaries on Pandects’ by Alciato);

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–critical editions of all parts of the Corpus Iuris Civilis (most notably, the edition by Denis Godefroy);

–treatises on the ‘restored’ system of civil law (e.g. ‘Commentaries on civil law’ by Hugo Donellus).

Significance of the Humanist School.

Elgar encyclopedia of comparative law, p. 397–398.

The position and authority of Roman law has not been left unchanged. Humanists, who formed in the first place a critical philological movement, also submitted, from the end of the 15th century onwards… the authoritative Roman law texts to a textual criticism. As a result, many interpretations had to be revised. Humanist criticism led to the rediscovery of classical Roman law, which in the eyes of the humanists had been misformed by the Justinianean codification. In general, Roman law was historicized…

Van Caenegem R.C. An historical introduction to private law, p. 55–58.

The positive results of humanism were considerable. Numerous errors committed by the glossators and commentators owing to their lack of historical and philological expertise were corrected, and knowledge of the ancient world therefore became much more precise and profound; the ‘Annotations’ of Guillaume Budé, for instance, exposed a whole series of misconceptions by the jurists of the Middle Ages. Their approach enabled the humanists to see the Corpus iuris as a historical phenomenon of its own time and place, as a human achievement, and not a 'gift fallen from heaven' as Budé said ironically of the naive medieval approach.

Yet humanist criticism had its unfortunate consequences. The Bartolists <i.e. the late commentators who followed the opinions of Bartolus> had adapted the Roman law of the Corpus iuris to the needs

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of medieval society. The humanists rejected these adaptations on the ground that they corrupted the original purity of Roman law; and so they reduced that law to the state of an academic relic, a historical monument, a dead law for scholarly study only. It will be recalled that the Latin language had undergone a parallel evolution: in the Middle Ages Latin had remained a living language, owing to constant adaptation and the introduction of new terms and expressions, but the purism of the humanists turned it into a mere academic tool, a dead language.

By demonstrating the historicity and thus the relativity of the Corpus iuris, the humanists destroyed the absolute authority which it had until then enjoyed. If Roman law was no more than the product of a given society of a given period, what reason was there to submit to it in another period, or to accord it an authority superior to the laws of modern peoples?

<...>

The Humanist School made an unprecedented contribution to broadening and deepening knowledge of ancient law and the ancient world… Practitioners throughout Europe, however, continued to apply Roman law in the Bartolist tradition, since Bartolist commentaries, treatises and consilia supplied solutions to real and present problems.

Yet the opposition between mos gallicus and mos italicus should not be exaggerated. Many lawyers-judges, advocates, and scholars were inspired by both schools. They still based themselves on the practical work of the medieval Italian school, but from the humanists they acquired a broader conception of law, a more philosophical approach, and the taste for elegant development of their ideas and arguments.

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The influence of the old schools, however, did not altogether disappear. Traces of the mos italicus are still to be found in legal doctrines and in some parts of the modern codes such as the law of

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obligations; while the mos gallicus survives in the more academic study of ancient law, and in the general culture of legal education.

Persistence of mos italicus in Legal Practice.

Bellomo M. The common legal past of Europe, p. 208–214.

After Francesco Petrarca (1304–74), whose groundbreaking and original thought long preceded the new trends, no significant breach was opened in the traditional method <i.e. mos italicus>. The scholarly humanism so powerfully represented by such major figures as Flavio Biondo (1392–1463) and Lorenzo Valla (1407–57) had little effect on jurisprudence <in Italy>.

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…the juridical scene in northern Italy was still largely dominated by a traditional method that recognized Bartolus of Saxoferrato as its figurehead; hence, those who continued Bartolus's work and shared his stance and his vision of the law, either out of interest or from conviction, were known as Bartolists. (p. 210)

…In much of Europe the potential of the Bartolist "system" is best seen in the massive activity of the practical jurists. When the lawyer or the judge had to think through an act, prepare a defense, or hand down a judgment, he may well have been obliged to apply the law of the ius proprium, but he also had to use the ius commune in his work, arguing from passages in the Corpus iuris civilis or the Corpus iuris canonici, citing precedents one by one, and accumulating large numbers of citations in support of his argument or his decision.

This was how the jurist protected himself from an increasingly centralized political power that was becoming organized in increasingly authoritarian ways and was stripping many rulers… of their autonomy and their freedom of action. It was also how the jurist guaranteed himself and his class a vital and still prestigious social and political

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position within the princely order.

(As a medieval German proverb said, ‘Justinian bestows nobility’, i.e. the knowledge of his Corpus iuris converts a villain into a nobleman).

The consilium <a legal advice> was the genre that best expressed the great (or would be great) Italian jurist's sense of his social position. This was a tradition that had originated long before, in the twelfth century, and had given the "commentators" of the fourteenth century matter for study and theoretical elaboration…

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Consilia were requested and given in a wide variety of forms, but they all documented a strong connection between theory and practice.

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… many, perhaps all, jurists published their consilia… It was hardly by coincidence that a "humanist" jurist such as Andrea Alciato was hostile to the practice of printing immense sets of consilia.

Van Caenegem R.C. An historical introduction to private law, p.

58.

…the opposition between mos gallicus and mos italicus should not be exaggerated. Many lawyers-judges, advocates, and scholars were inspired by both schools. They still based themselves on the practical work of the medieval Italian school, but from the humanists they acquired a broader conception of law, a more philosophical approach, and the taste for elegant development of their ideas and arguments. These lawyers were above all practical, but they took a lively interest in ancient history and literature.

[A note from the instructor]

From Italian "Practical Jurisprudence" to the German national legal science.

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It was this Italian "practical jurisprudence" which provided the methodological foundations for the German national legal science after 1495.

Essential Readings

1.Van Caenegem R.C. An historical introduction to private law. Cambridge, New York: Cambridge University Press, 1992, p. 55– 58.

2.Robinson O.F. European legal history: sources and institutions. 3. ed. London: Butterworths, 2000. (Chapter 10)

3.Stein P. Roman law in European history. New York: Cambridge University Press, 1999, p. 75–85. <LMS resource>

Supplementary readings

1.Bellomo M. The common legal past of Europe (1000–1800). Washington: The Catholic University of America Press, 1995. p. 204–210. <LMS resource>

2.Black R. Humanism // The new Cambridge medieval history. Ed. Ch. Allmand, Cambridge University Press, 1998. vol. 7 (c. 1415=c.1500), p. 243–276.

3.Stein P. Regulae iuris. From juristic rules to legal maxims. Edinburgh, 1966. p. 162–170. <LMS resource>

4.Kelley D.R. Guillaume Budé and the first historical school of law // The American historical review, 1967, vol. 72, № 3, p. 807–834. <jstor.org>

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1)How did the school of legal humanism emerge in Europe?

2)What did legal humanists criticise mos italicus for?

3)Where did legal humanism flourished? Why was it in that particular region?

4)How could legal humanists of mos gallicus be grouped together?

5)What major methodological innovations did legal humanists bring to the study of legal sources?

6)Did legal humanism of mos gallicus succeed in improving the practical jurisprudence in the stronghold of mos italicus in Italy?

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Topic 6. Rise of national legal science in Western Europe in the 16th to 17th centuries

Topic outline

Italy: legal science (mos italicus) is paramount in legal education and practice.

France: ius commune in the centralised kingdom with the preserved local and territorial customs. Limited influence of the professors of ius commune upon legal practice. Degradation of the faculties of law. Rise of practical jurisprudence on the basis of the written customs and the case law of the French parliaments. The Coutume de Paris and the Parliament of Paris. Selective reception of Roman law.

Spain: renovation of ius commune by moral theologians of the school of Salamanca. The phenomenon of the second scholasticism of the 16th century. Its sources: Catholic moral theology, mos italicus, French humanism, Aristotelian-Thomistic philosophy. Development of generalised legal doctrine: methodology of consequent deducing of all legal doctrine from the categories of ‘justice’ and ‘law’, principlesoriented theory, separate legal norms grouped up into legal institutions.

Germany: the school of the modern usage of Justinian’s Pandects (usus modernus) in the late 16th and 17th century. Academic unity of university professors vs. legal diversity of local laws and political fragmentation in the late medieval Germany. The intricate combination of ius commune with the case law of the local courts. Continuation of the methodology of mos italicus: Digest-oriented commentaries,

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