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Legal Humanism

1.
The
meaning
humanism

of

legal

To the non-specialist, the term


"legal humanism" is open to
misinterpretation. The general term
"humanism"
has
two
distinct
meanings. In its modern usage
humanism refers vaguely to a
philosophy which lays emphasis on
the material welfare of mankind in
this world, and is thus often
contrasted to the religious outlook.
In its second meaning humanism
refers specifically to the study of
antiquity in the period of the
Renaissance. Legal humanism is
used exclusively in the latter
context and refers to a particular
direction in the study of Roman law.
The first manifestations of legal
humanism can be detected in 15th
century Italy, but it is not until the
second half of the 16th century that
the first major school is active in
France. In other words, legal
humanism flourishes some two
centuries after the beginnings of
humanism in Italy in the persons of
Petrarch
and
Boccaccio.
To
compound
this
general
disorientation
in
historical
periodisation, the two most famous
names in medieval jurisprudence,
Bartolus de Saxoferrato (1314-57)
and his pupil Baldus de Ubaldis
(1327-1400) were contemporaries
of Petrarch and Boccaccio. Thus
while Europe had entered the Early
Renaissance in its art and literature,

its jurisprudence was at the zenith


of the Middle Ages.
It is important to distinguish
between the renaissance of Roman
law and Roman law in the
Renaissance, which have entirely
different connotations. The former
refers to the medieval rediscovery
of the basic sources of Roman law
and their study and teaching at the
University of Bologna in the 11th12th centuries. Certainly, some
further sources of Roman law were
discovered in the 16th century, but
the master source, the Corpus Iuris
Civilis of Justinian, had by then
been in active use for half a
millennium.
The
Renaissance
"discovery" of classical antiquity in
the legal sphere thus primarily lay
not in the bringing to light of new
physical remains, as manuscripts of
lost literary works or long-buried
sculptures, but in a new orientation
in the treatment of legal texts which
had been known for centuries.
In 1755 the German scholar
Ioannes Fridericus Jugler captured
the essence of legal humanism in
the following definition: "Legal
humanism is the study of Roman
law in close conjunction with
philosophy, antiquities, the Greek
and Latin languages, the art of
textual criticism, Roman history and
literature". (He does not use the
expression legal humanism, but
rather the Latin synonym used in
previous centuries, jurisprudentia
elegantior.) Legal humanism thus
signifies the investigation of Roman

law, using philological and historical


methods, as part of the historical
study of antiquity, and may be
contrasted with the pragmatic,
unhistorical application of Roman
law
to
the
conditions
of
contemporary Europe.
In the 16th century the legal
humanists developed a series of
sophisticated techniques for the
historical reconstruction of classical
Roman jurisprudence. The major
source handed down from antiquity,
the Corpus Iuris, was compiled by
order of the Emperor Justinian in
the 6th century A.D. It is a
patchwork of juristic writings and
enactments from the classical
period of Roman law, the 1st to 3rd
centuries
A.D.,
altered
and
rearranged to fit contemporary 6th
century
conditions.
This
the
humanists sought to "deconstuct" in
an effort to retrieve the original
sources. Through textual criticism
the humanists sought both to
cleanse the text of scribal errors and
also to retrieve those elements
which had been omitted in the
Middle Ages as of no interest. In
particular, through the restoration
of the "inscriptions" of the Digest
fragments (which identified the
works from which they were
derived), the humanists were able
to reconstruct the works of the
classical jurists. Through historical
and linguistic analysis they sought
to detect the "interpolations" of
Tribonian, the changes silently
introduced into the classical texts by

Justinian's compilers to bring the


law up to date. It was the humanists,
too, who first brought to light some
of the classical juristic texts which
have been transmitted to us outside
the Corpus Iuris. They began also
the discovery and editing of
Byzantine legal sources, the legal
tradition carried on in the Greekspeaking Eastern Empire until the
fall of Constantinople in 1453.
The unparalleled achievements of
the legal humanists in the historical
study of Roman law have led some
scholars to detect the beginnings of
modern,
critical,
historical
scholarship in their work. And yet,
paradoxically, the works of the legal
humanists
have
not
received
commensurate modern scholarly
attention. The reasons for this are
twofold and operate at both the
macro and the micro level. The first
is the inadequacy of the received
definition of legal humanism, which
has limited the breadth of the
enquiry. The second is a failure of
methodology, which has not taken
account of the importance of a
rigorously historical and philological
approach to the printed sources in
which the legal humanists published
the results of their researches. The
first necessary condition for the
remedying of both these defects is
a reliable bibliography of the works
of the humanists; this was the
original motivation behind the
series of bibliographical censuses of
legal writings printed up to 1800

currently being pursued as a project


of the Institute.
2. Legal humanism and legal
history
The first major stumbling block to
be surmounted is constituted by the
very definition of the parameters of
the subject. The study of legal
humanism has been undertaken as
a branch of legal history. European
legal history, as it is studied and
taught at universities all over the
world, is conceived as the story of a
succession of schools of legal
scholars.
These
schools
are
presented as operating in distinct
periods in distinct European centres.
The story begins in Italy, in the
Middle Ages, which are synonymous
with the schools of the Bolognese
Glossators
of
the
12th-13th
centuries and the post-Glossators
or Commentators of the 14th-15th
centuries. In the 16th century a new
era in legal history begins, the era
of legal humanism. The new
humanist method was inititiated by
Andreas Alciatus (1492-1550), who
carried it from Italy to France.
Between the years 1529 and 1533
Alciatus taught at Bourges, the
university which was to become the
great citadel of legal humanism.
Hence the humanist method was to
be named the French method or
mos gallicus, as opposed to the mos
italicus, for in Italy in the 16th
century the medieval method of
Bartolus and Baldus was to remain
dominant. Legal humanism was
thus a Northern affair, always

tainted with Protestantism; clear


analogies could be drawn between
the Protestant rejection of the
authoritative character of the Latin
Vulgate of the Bible and the
humanist
challenge
to
the
traditional text of the Corpus Iuris.
Both used critical, historical and
philological methods, including a
knowledge of Greek. For that
reason the massacre of St.
Bartholomew's Night in 1572
sounded the death-knell of legal
humanism in France. A Protestant
or crypto-Protestant subject had
necessarily to flee to a Protestant
country. Donellus fled to Germany,
before settling at the newly founded
University of Leiden. It was the
Netherlands,
and
Leiden
in
particular, that witnessed the
flourishing of the Dutch Elegant
School, the successors of the French
in the practice of the jurisprudentia
elegantior, which in turn paved the
way for the German Historical
School of the 19th century.
This in outline is the traditional
story of European legal history as it
crystallised in the 19th century. In
the modern period, then, from 1500
onwards, legal humanism lies at the
very heart of a story which
effectively recounts a translatio
studii
of
the
jurisprudentia
elegantior from Italy to France to
the Netherlands to Germany.
Paradoxically,
however,
this
apparent
elevation
of
legal
humanism has been as deleterious
to the study of legal humanism as it

has been to that of legal history in


general. The superficiality of the
outline emerges if we subject it to
elementary chronological scrutiny.
First, the French school flourished a
generation after Alciatus' departure
from Bourges, and the connection
thus requires closer scrutiny.
Secondly, legal humanism clearly
did not come to an abrupt end in
France with St. Bartholomew in
1572. The greatest of the French
humanists,
Iacobus
Cuiacius,
continued to produce work after
work until his death in 1590.
Brissonius was not executed until
1591, after, for example, the
publication of the 858 folio pages of
his De formulis et sollemnibus
populi Romani verbis in 1583. Even
more telling is the continuation of
important work on legal humanism
in France well into the 17th century.
It was in 1606 that Carolus
Labbaeus published at Paris his
collection of Byzantine novellae and
lexica, with his annotations on the
Synopsis Basilicorum. In 1610,
Franciscus Raguellus, professor at
Bourges, published his commentary
on the constitutions of Justinian as
they could be isolated from the
Codex,
a
typically
humanist
approach to the source. Emundus
Merillius, also professor at Bourges
("the Cuiacius of the 17th century"),
lived between 1579 and 1647, and
issued his eight books of humanist
Observationes at Paris in the years
1618, 1626 and 1638. And it was
between 1641 amd 1647 that

Carolus Fabrot published the seven


volumes of the first Greek edition of
the principle Byzantine legal code,
the Basilica; and in 1658 that he
procured a new edition of the Opera
Omnia of Cuiacius. In other words,
as regards the humanist tradition,
the picture is one of continuity in
France, proceeding into the middle
of the 17th century.
If we turn our attention to the Dutch
Elegant School, the most striking
feature, first of all, is the confusion
which surrounds the very definition
of the School. This is not evident in
the traditional story, where we will
read of the Dutch Elegant School in
which flourished a galaxy of jurists
of European fame, such as Grotius,
Bynkershoek, Vinnius, Voet, Noodt,
Huber, Schultingh, Brenkman. This
blurred picture, however, will not
stand up to closer scrutiny. The
Dutch Elegant School, that is to say,
the group of exponents of the
jurisprudentia elegantior or legal
humanism, was supposed to have
been founded in Leiden by the legal
humanist Donellus in 1579. But it is
not
legal
humanism
which
flourished at Leiden in the century
following Donellus. The age of
Dutch legal humanism begins with
Gerard Noodt towards the end of
the 17th century and flourishes in
the Netherlands in the first half of
the 18th century.
But the weakest point in the
traditional image is revealed if we
consider where the greatest legal
humanist scholars were active in

the middle of the 17th century. And


the answer, by a supreme irony, is
in the heart of southern, Catholic
Europe, at the University of
Salamanca. From the numerous
Spanish legal humanists active at
Salamanca in the middle of the 17th
century it must suffice to cite its
three leading exponents: Franciscus
Ramos del Manzano (1604-83),
Ioannes Surez de Mendoza
(d.1681), and Iosephus Fernndez
de Retes (1620-78). The Spanish
origin of their works is clear from
their citation of other Spanish
scholars, but the rest is all familiar
territory: the citation of Latin and
Greek authors, of Byzantine legal
compilations,
of
pre-Justinianic
sources, of manuscript readings, of
textual conjectures, of epigraphical
evidence, of the inscriptions of the
Digest fragments, of Tribonian's
interpolations, and of the whole
panoply of preceding legal humanist
scholarship from Alciatus up to and
including Merillius. In short, this is
legal humanism in its purest form;
thus in Salamanca we find, a half
century in anticipation, the entire
spectrum
of
legal
humanist
scholarship ascribed by traditional
legal history to the Dutch Elegant
School. Indeed, it was a leading
member of the latter school, Gerard
Meerman, who recognised the
importance of the Spanish school
and gathered their writings in his
monumental Novus thesaurus juris
civilis et canonici published at The
Hague in 1751-53, a work which will
be found in every major research

library. It is the subtitle, however,


which tells the story, for it
continues: continens varia et
rarissima optimorum interpretum,
inprimis Hispanorum et Gallorum,
opera.
Thus the traditional outline of
European legal history, which
appears at first sight to promote
legal humanism to centre stage, is
revealed on closer inspection to be
seriously defective. It confines the
French school to the 16th century
although it flourished up to the
middle of the 17th century; it
completely ignores the second great
school of legal humanism, the
school of Salamanca; it misdates
the Dutch Elegant School by a
century; and it leaves out of
account the important contributions
from time to time of individual
Portuguese, Scottish, German and
Italian scholars. A global, panEuropean survey of the sources of
legal humanism, from the 15th to
18th
centuries,
remains
a
fundamental desideratum.
See: The Myth of European Legal
History.
Rechtshistorisches
(1997) pp.393-410

Journal

3. Printed sources
philological method

and

16

the

Traditional scholarship in legal


history is based in principle and
practice on the conviction that early
printed editions are effectively

interchangeable.
Although
its
practitioners
would
doubtless
hesitate to formulate the principle
quite so nakedly, it is perhaps best
captured in the nuances of the
English expression "any old edition
will do". Thus contemporary works
of
legal-historical
scholarship
generally
exhibit
in
their
"bibliographies" the list of early
editions consulted, a list which
inevitably reveals the entirely
random concatenation of editions
which happened to stand on the
shelves of the library most
conveniently at the disposition of
the individual scholar. Underlying
such works lies the unspoken
assumption, as erroneous as it is
universal, that all editions of printed
books are "more or less the same".
The
difference
between
the
manuscript and the printed book, so
the argument runs, is that whereas
every manuscript is different, every
edition is the same. The invention of
printing
assured
the
mass
production of identical texts, while
each successive edition simply
reproduced
the
text
of
its
predecessor.
In reality, however, the invention of
printing had precisely the opposite
effect. The economics of early
printing, when labour was cheap
and paper enormously expensive,
when conditions of storage were
primitive and neither insurance nor
copyright sufficiently developed to
protect a publishing enterprise,
compelled the early publisher to

make small print-runs of a book for


relatively secure, immediate sale.
Quite apart from the contingent
risks, it was economically unviable
to tie up considerable sums of
capital in the paper entailed in the
storage of a large stock of books in
the expectation of future sales. On
the other hand, were a book to
prove particularly successful, it
could, taking advantage of low
labour costs, be quickly and cheaply
reset in print in another edition. It
is for this reason that we find the
long succession of editions of the
same work which is the hallmark of
the early printed book. As an
example we may cite the work
considered on the conventional view
to inaugurate the modern period in
legal history, the Annotationes in
Pandectas of the French humanist,
Gulielmus Budaeus. This great
compilation
of
encyclopedic
classical scholarship was published
repeatedly by Badius Ascensius at
Paris in the years 1508, c.1519,
1521, 1524, 1527, 1530 and 1532.
This pattern of printing had a vital
effect on the text itself. For it meant
that a contemporary author was
able to introduce changes into his
text every two or three years. The
tendency of an author to add,
cancel or emend parts of his text
over time may well be universal, as
indeed is suggested by the
autograph manuscripts of authors
from medieval times to the present
day. The innovation of early printing
was to freeze particular moments in

this process, so that clearly


discernible strata of the text
achieved the permanence of print.
With early printing, therefore, a new
form of text emerges, a text which
not only lives and moves, but one
which can transparently be seen to
do so. "The text" has given way to
a succession of texts, a sequence of
recensions,
all
evidencing
alterations introduced by the author
himself. In the end, the final version
of the text may diverge markedly
from the first thoughts of the author,
published
perhaps
decades
previously. No better example of
this phenomenon can be adduced
than the same Annotationes in
Pandectas of Budaeus. With the
possible exception of that of 1532,
each of the editions listed above
presents a different text. The final
version, which has come to be
disseminated most widely (both in
the 16th century and most recently
through
the
1966
anastatic
reproduction of the posthumous
edition of Budaeus' Opera Omnia),
quite apart from evincing editorial
intervention not sanctioned by the
author, is profoundly transformed
from that originally published at
Paris in 1508.
Scholarship on legal humanism
which relies upon the use of a
random edition is pre-determined to
fall into error. The first principle of
serious research on the legal
humanists is the construction of an
accurate analytical bibliography of
the editions of their works. This will

pave the way for the necessary


collation of the text in the primary
editions in order to reveal the
changes made by the author in
successive editions.
See:
Text
and
Rechtshistorisches
(1995) pp.309-331

Technology.
Journal
14

Developments in the Text of


Alciatus'
Dispunctiones.
Ius Commune 19 (1992) pp.219-35
Dies
Diem
Docet.
Ius Commune 18 (1991) pp.207224
4. Humanist philology and the
text of the Digest
A monograph currently in course of
preparation traces the results of
humanist philology on the editing of
the Digest from the 15th century to
the definitive edition of Gothofredus
published in 1583. Beginning in
Quattrocento
Italy
with
the
philological works of Philippus
Beroaldus (1453-1505) and Politian
(1454-94),
it
examines
the
continuation of the "lexicographical"
tradition in the Annotationes in
Pandectas of Gulielmus Budaeus
(1468-1540) published in 1508. At
the centre of the study stands
Andreas
Alciatus
(1492-1550),
whose philological works influenced
a generation of editors of the Digest.
It is a different tradition, however,
which is represented by the Spanish
humanist
Antonius
Augustinus
(1517-86), whose work points

forward to the Digest edition of


Laelius Taurellus (1489-1576). The
edition of Taurellus, published in
1553 after a decade of preparation,
is one of the great achievements of
humanist philology, anticipating to
a remarkable degree the modern
edition of Mommsen. The edition of
Taurellus, shorn of its philological
sophistication to make a more
readily useable text, forms the basis
of the text of Dionysius Gothofredus
(1549-1622), which was first
published in 1583 and thereafter
remained
definitive
for
three
centuries. The history of the Digest
text in the Renaissance thus
represents not only the essential
background to the philological work
of the succeeding Spanish and
Dutch schools of the 17th and 18th
centuries, but is in itself one of the
most remarkable stories of the
printed textual tradition of any
ancient Latin text.
See:
Magnae
Jurisprudentiae
Injuria: Cornelius van Bynkershoek
on early legal humanist philology.
Ius Commune 19 (1992) pp.61-79
Vestigia
Doctorum
Virorum.
Tracking the Legal Humanists'
Manuscripts. Subseciva Groningana
5 (1992) pp.77-94
Filippo Beroaldo e l'umanesimo
giuridico.
in: Sapere e/ potere. Discipline,
Dispute e Professioni nell'Universit
Medievale e Moderna. Il caso
bolognese a confronto. Atti del 4o.

Convegno. Bologna, 13-15 Aprile


1989. vol.I, pp.233-41.
Budaeus and Roman Law.
Ius Commune 13 (1985) pp.195212

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