Intro_continental_legal_science [Unlocked]

scholastic methods of textological interpretation.

The Netherlands: the Roman-Dutch ‘elegant school’ of law in the newly established Republic of the United Netherlands. The subsidiary recourse to Roman law and ius commune. Theoretical and practical commentaries to Justinian’s law books. Influences of natural law ideas and methods.

Excerpts from Readings

Bellomo M. The common legal past of Europe (1000–1800), p.

204.

New currents of thought <in the 16th century>… rose to confront the traditional jurisprudence of the fourteenth century (Bartolus and his successors). All these movements, but the first two in particular, threatened an equilibrium that had permitted the ius commune and the lura propria to coexist within the order of a sistema iuris. Furthermore, in many parts of Europe, by casting doubt on the organizational function of the ius commune, they helped to redefine the roles of the jurist, the scholar, the philosopher, and the theologian.

Bellomo M. The common legal past of Europe (1000– 1800), p. 223–224.

A European Jurisprudence

During the sixteenth century the principal currents in European jurisprudence began to branch off from one another. Each one ended up not only as the expression of an institutional reality that was consonant with that jurisprudence and supported it but also as the projection of aspirations and political programs aimed at universal domination.

While the British Isles went their own way (as they had been

140

doing for centuries), a substantively distinct continental law came to be divided into several broad cultural areas. One of these was "old" Italy, where the "Bartolisti" and the system of the ius commune, in a crisis of adaptation, took the path of experimentation and reelaboration in legal practice. While the Italian jurists continued to follow the tradition of Bartolus, they were also sensitive to "practical jurisprudence," whose techniques and methods they knew and at times followed.

For centuries, vast German-speaking regions had stable connections with Italy, especially after 1495 and the "reception" in Germany of the common law and the methodology long practiced in Italian jurisprudence. In France, the national monarchy became firmly established, and along with it the humanistic tendencies in harmony with it. At the same time, however, all of these large areas suffered internal divisions and were lacerated by religious strife between Protestants followers of Martin Luther (1483–1546) or John Calvin (1509–64), and the Catholic faithful, who resisted Protestantism and grew increasingly radical and intolerant. The excesses of the Holy Inquisition were a result.

We need to remember, however, that defining cultural areas in Europe is a schematic exercise that suffers from the limitations and rigidities of all schemes. We might do better to consider the "areas" involved less as concrete physical and geographical entities and more

.is ideal moments, moments of the mind, or attitudes toward method on the part of those who professed jurisprudence. In fact, it is obvious that the various movements – legal humanism, Italian Bartolism, "practical jurisprudence," German Usus modernus Pandectarum, the "Second Scholasticism" – were all European in scope and were present everywhere. There were Bartolists in Spain, legal humanists in Italy and Germany, and representatives of the Second Scholasticism in Holland and Italy.

141

Developments in Italy: the Bartolists.

(see above the relevant excerpts topics 4 and 5)

Bellomo M. The common legal past of Europe (1000– 1800), p. 210-214.

… the juridical scene in northern Italy was still largely dominated by a traditional method <i.e. mos italicus> 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.

On the southern Italian mainland, in Sicily, and in Sardinia the scene was more varied and is even less well known… few significant traces of legal humanism appeared in southern Italy. Furthermore, we need to consider how much those regions were affected (and precisely how) by Spanish innovations in methodology launched by Francisco de Vitoria, the "school" of Salamanca, and the <Second Scholasticism> (see below). We also need to see what role the "system" of Bartolist ius commune continued to play in those regions, since for centuries they had been closely connected to the great university schools of northern Italy, and their jurists usually had an early acquaintance with works of the doctrines of the ius commune.

<...>

… 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

142

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 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…

<...>

Consilia were requested and given in a wide variety of forms, but they all documented a strong connection between theory and practice… Many, perhaps all, jurists published their consilia…

Pozzo B. Italy, in: Elgar Encyclopedia of Comparative Law, 2nd Edition. p. 454–455.

The Development of Roman Law in Medieval Italy

… From the beginning of the 13th century, the development of the law in Italy was the result of the interplay between academia and judges. Judicial decisions and their style were in fact strongly influenced by the writings of academic jurists in the form of quaestiones, allegationes, decisiones, and consilia.

Until the 16th century, it was customary for litigants and judges to request a learned jurist to issue a formal opinion or consilium sapientis. This opinion often had binding authority in civil cases and frequently served as the basis for the decision. And even when courts would not

frequently found their decision on the authority of the doctors.

During the 16th and 17th centuries the law was developed by what Gino Gorla called the 'Grandi Tribunali': the Grand Tribunals, which were the most important courts of the Italian states. From these originated the Italian judicial style known as stile rotate. This rotal style, in both its origin and period of formation, was strongly influenced by the writings of the doctors of law in the form of the consilia, the quaestiones, the allegationes, and the decisiones.

So, to a large extent the law was in essence judicial law, developing through lawyers' interpretation and judicial opinions. Nevertheless, from the beginning of the 16th century onwards, the overwhelming production of legal literature produced uncertainties in the application of the law, which were strongly criticized by Ludovico Antonio Muratori in his work 'On Defects of Jurisprudence' (1742). The idea of correcting the weakness of the system through the search for a communis opinio doctorum (the common opinion of the doctors) remained a Utopia and with the passage of time the grounding of judicial decisions on the authority of the doctores was simply forbidden.

Even today, Article 118 of the 'Supplementary provisions' annexed to the 1941 Civil Code provides that 'judicial opinions must omit any reference to legal writers.

Braun A. Professors and judges in Italy: it takes two to tango, p. 671, 680–681.

The decisions of these courts <i.e. Great Tribunals>, in particular the <papal> Rotae of Rome, Genoa and Tuscany, were in fact characterized by long lists of doctoral authorities.

<...>

In Italy, judges often write their opinions as if they were composing an academic article, adopting the same language and almost the same style. In other words, judges seem to mimic the behaviour of

144

legal writers.

Italian judges… seem to be afraid that their judgments will not meet with the approval of legal doctrine, and in some cases may even radically change their position following critical remarks by academics. In doing so they demonstrate an attempt to establish a dialogue which they expect to be reciprocated by academic legal writers. But the latter, in fact, do not always respond. Indeed, academics usually do not seem to really care about the opinions of judges on their writings. While judges seemingly acknowledge the authority of ‘legal doctrine’, academics paradoxically do not appear to acknowledge the authority of the judges.

In consequence, contrary to the situation in the 16th and 17th centuries, there seems today to be no real dialogue between judges and legal writers in Italy; rather, what one finds is some sort of monologue by the courts.

Developments in France: the jurisprudence of the

Parlements.

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

70

In northern France… official compilations of traditional customary law were made and promulgated. Although this preserved the customary character of these regions for the following centuries, the ius commune was not ignored and it played an official supplementary and interpretative role. Even in the customary regions, an education in written law was in any event indispensable for all those laying claim to be lawyers.

Dawson J.P. The oracles of the law, p. 339–349.

The Role of Doctrine.

It had become apparent at an early stage that schoolmen learned in Roman law were not destined for the ascendancy in France… In

145

northern France the salvaging of the local customs meant that the reception of Roman law would be partial and selective; though the influence of Roman law persisted, it could only infiltrate and not displace those crucial sectors of private law that the customs purported to regulate. Furthermore, effective leadership in law creation had been assumed by the courts in the great areas left unprovided for, or insufficiently provided for, by rules of local custom. The rewards that could be gained by service to the monarchy soon attracted able lawtrained men into judicial posts, augmenting the authority with which the courts could speak and diverting many, including the professors themselves, from scholastic pursuits. Roman and canon law were still taught in the universities. Actually twelve new law schools were organized during the fourteenth and fifteenth centuries, in addition to the old and famous schools of Paris, Orléans and Toulouse. But the fifteenth century, in particular, has been justly described as a period of "great mediocrity" in the quality of its legal literature. On the whole the main workload had shifted from the schoolmen to the courts.

On the other hand, there was no system of vocational training, organized and directed by lawyers in the manner of the English Inns of Court. The "brotherhoods" of lawyers that were formed in due course in the Parlements continued to be religious, social, and protective groups with some powers of internal discipline; only in rare instances did they undertake any organized instruction of novitiates. In the lower courts, especially the courts of the royal bailliages, older lawyers must have transmitted informally to their juniors much knowledge of local rules of custom and procedure. But practitioners before the Parlements did not have a transmissible body of knowledge that was derived specifically from their practice and that was in any way comparable to Year Book learning. Aspiring young lawyers were encouraged, and later they were expressly required, to attend court sessions regularly and learn by listening. No doubt, there were juniors who attached themselves as apprentices to older lawyers of distinction. But formal training in law was left to the universities and this meant training in Roman or canon law. It was not until 1679 that lectures on French law were introduced

146

in university curricula.

The decay of French law schools, which had progressed far in the late middle ages, was accelerated in the sixteenth century. The Parlement of Paris intervened repeatedly with decrees ordering reform measures, but if they had had much effect they surely would not have been repeated so often. One should not lay much stress on the brawling of students and their conflicts with townsmen, for these had been normal features of university life from its first beginnings in medieval Europe. But there was real jeopardy to education from absentee professors who took the fees but seldom lectured and who sold or rented their lectureships to persons who were wholly unqualified. Degrees and attendance certificates were freely sold. Examinations became purely nominal. These scandals existed, it seems, in all the universities within the jurisdictional area of the Parlement of Paris. The University of Paris, the ancient school of Orléans, the schools in Bourges, Poitiers, and Angers were all repeatedly admonished and regulated by the court.

The decay of the law schools continued in the seventeenth century and could not be arrested by exhortation or threat. What was lacking, it seems, was adequate incentive, either for mature men of ability to devote themselves to teaching careers or for students to apply themselves to the mastery of Roman or canon law. Even the introduction of courses in French law after 1679 and the other attempted reforms of Louis XIV had only temporary effect. Undoubtedly, there were learned men in the French bench and bar learned in law as well as the Roman poets but in the period from 1500 to 1789 it seems unlikely that many of them owed much to the law schools.

<...>

French legal scholarship, it is true, acquired an international reputation, but it came from men who disclaimed any purpose of adapting Roman law to contemporary needs. These were the French

147

humanists, a small but remarkable group… Indeed, the whole group of humanists continued to be read by like-minded scholars, but their influence on French law was minimal. By their own choice they rejected responsibility for the immediate problems of contemporary life. Perhaps this helped them to perfect their lasting contribution to legal and historical scholarship. But the inspiration did not last. They were active for less than a century and after 1600 they had only a scattering of followers. By their record they confirmed and dramatized the isolation of the schoolmen in France. During the period of their activity and until 1789 the workload in doctrinal writing was carried, overwhelmingly, by practicing lawyers.

The greatest of these was Charles Dumoulin (1500-1566), who began his career as an avocat before the Parlement of Paris. Hampered by a speech defect, he turned from advocacy to legal writing and the preparation of expert opinions… Probably the most important work of Dumoulin was his commentary on the Custom of Paris, which was never completed but which began appearing in instalments in 1539. He also wrote short notes on the other published customs, a treatise on contracts and rents, tracts on canon law, and commentaries on selected topics of Roman law… He was the Bartolus of France <also comparable with the famous German scholar Benedikt Carpzov>.

Dumoulin can also be compared with Carpzov in his ability to mobilize a great mass of doctrinal resources for the solution of immediate practical problems. He was thoroughly familiar with the Corpus Juris, the glossators, and the later Italians, including the canonists. He cited them all voluminously and wrote his own commentaries on sections of the Corpus Juris and on contemporary problems of canon law. He employed the argumentative style of the Bartolists, marshalling all the arguments pro and con, the deviant views of the various authors, and subdistinctions that he himself conjured up before coming forth with his own resolution. But if in form and method he was a follower of Bartolus, in substance he was independent and original. He rejected with emphasis those doctrines that he thought

unsuited to French needs and introduced freely his own 148

adaptations.

<...>

<Among other 16th-century jurists who achieved considerable influence>. In the province of Brittany there was Bertrand d'Argentre (1519-1590), a royal judge who wrote a learned commentary on the custom of Brittany, using, like Dumoulin, a Bartolist style with voluminous references to Italianate learning. René Chopin, a lawyer who practiced before the Parlement of Paris, was best known for his commentary on the Custom of Anjou, which relied somewhat less on the Italian doctors and somewhat more on French practice and court decisions.' Guy Coquille, a prominent local lawyer in the district of Nivernais, wrote a readable and discursive commentary on the Custom of Nivernais. All these men used as their starting point the published texts of particular local customs, but their view was not parochial. They drew heavily on Roman law for specific solutions and analogies. They were also much concerned with matching and comparing the local customs of other districts in northern France… The authors thus reached toward the notion of a "common law of the customs" which was not completely embodied in the custom of any particular district, though most nearly approximated by the Custom of Paris.

… The "common law of the customs" was thus not a fixed set of rules but a developing body of opinion held by courts and authors which helped to conserve, and to a limited extent to unify, the private law of northern France…

The same mixture of elements appeared in legal literature after 1600…

The custom of every large district had its own commentator, usually several. Of commentaries on particular customs there were hundreds of volumes published. There was in addition almost an equal number of volumes on special topics— marriage, guardianship, successions, fiefs, civil and criminal procedure, and so on. The quality of these works was uneven. Some were done with thoroughness and

149