A Short Outline OF Legal Humanism - Legal humanism PDF

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Humanism, history of legal humanism, with sources...

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A SHORT OUTLINE OF LEGAL HUMANISM

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Contents

1. INTRODUCTION: What is humanism?.................................................................3 2. LEGAL HUMANISM....................................................................................... 4 2.1 BARTOLO DA SASSOFERRATO: Works and ideology among legal humanism................................................................................................. 14 3. CORPUS IURIS CIVILIS: The base to legal humanism and modern civil law................15 3.1 EVOLUTION AND ELEMENTS OF THE STUDY OF CORPUS IURIS CIVILIS.....17 3.2 IUS COMMUNE AND IUS PROPRIUM.........................................................18 3.3 THE DECADENCE OF IUS COMMUNE.......................................................20 4. REFERENCES............................................................................................ 21

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1. INTRODUCTION: What is humanism?

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 11th-12th centuries. Certainly, some further sources of Roman law were discovered in the 16th century, but the master source, the Corpus IurisCivilis 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.

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2. LEGAL HUMANISM

With the term ‘’Legal Humanism’’ (‘’Umanesimo giuridico’’, ‘’humanisme juridique’’ or ‘’Humanistische Jurisprudenz’’) storiography indicates usually those roman law’s study currents, which were innovative an critical towards medieval jurisprudence and that had their roots in the literary, historical and philological studies in the 15 th century in Italy. Their developments in the Europe of the 16 th century, which are considered as strictly connected with the previous century’s tendencies, are known with the terms mos gallicus1, cultism or giurisprudenza culta, that grew as Elegant Jurisdprudence in Netherlands. Trying to categorize the different schools and currents is not always easy as it seems since recent studies underlined that there are no identical opinion between members of the same party depending on the region, country and time. Nevertheless some basic lines

are

recognisable

in

the

different

examples.

The meeting between studia humanitatis and jurisprudence was varied, giving rise to different approaches in the different European regions and not only concerning the analysis of sources of Roman private law. It was a profound cultural movement, which invested progressively the whole field of legal science, including public, criminal law, commercial, customary territorial rights or monarchies’ and principalities’. But itsmotor center and the privileged place of theoretical and methodological discussions was without doubt the ius commune (built on the basis of Justinian's Corpus iuris) and the structure doctrinal which had given it the medieval tradition of glossers and commentators.

1Study and teaching method of Corpus iuris civilis linked to the scuola culta, which spread mainly in France in the 16th century. It was characterized by analyzing the work through a rigorous historical-philological critique of the text, in order to recover its original purity. It was opposed to the mos italicus, the study and teaching method of the Justinian compilation born in Italy and widespread in many countries of Europe, characterized by the tendency to consider Roman law as a living law and therefore directly practicable. (www.treccani.it)

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Against this tradition the first attacks arose in Italy towards the end of the fourteenth century

and

they

thickened

and

clarified

during

the

fifteenth

century.

In the beginning, they didn't come from within legal science, but from letters and philologists, masters of "liberal arts" (grammar, dialectic and rhetoric), intellectuals engaged in political activities, in the philosophical reflection, in the reform of teaching and learning methods discipline, in the reorganization of the encyclopedia of sciences (hierarchies between knowledges and their mutual relationships).

The impatience towards the exegetical method of the commentators, represented exemplarily by Bartolo da Sassoferrato (1314-1357) and followed in the Italian legal faculties (therefore called "bartolismo" or mos italicus), found an authoritative expression already in Francesco Petrarca, who reproached jurists for his lack of knowledge of history and of Roman literature. His arguments were taken up and deepened in the environments in which he was the push towards a general renewal of culture is more lively. In Florence Coluccio Salutati (1331-1406), intervening in the socalled "dispute of the arts" (the discussion on what was the field to which the primacy was attributed, whether to the natural sciences or to the sciences human), strongly emphasized the moral and civil value of jurisprudence. The lesson of the jurists and Roman speakers, obscured by medieval interpreters, was to be recovered, first of all by returning to the concept of aequitas2its function of final purpose and polar star of every practice of law, which must always be addressed to the common good.

The themes promoted by Salutati will be found, in a broader and more complex form, until late 16th Century: the notion of aequitas, for example, played a central role in reflections of jurists who, beyond the Alps, were educated to the principles of humanism from the teaching of Erasmus. The need to revive (Rinascimento, Renaissance), in its purity and wholeness, the heritage of wisdom of antiquity, returning to the direct study of sources and setting aside the deformations and incrustations that had accumulated over centuries of ignorance, was the fundamental conviction that inspired the most prominent intellectual elites of and that soon, from the field of literature, it extended to that of law. 2Justice that applies the law not rigidly, but tempered by human and indulgent consideration of the particolar cases to which the law must apply. (www.treccani.it)

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More and more voices rang out from those who were imputing glossers and commentators the crime of having corrupted the Latin language with "barbaric" terms and constructs, of having often misunderstood the meaning of the sources, of having abandoned themselves to endless discussions and unnecessary subtleties inspired by Scholastic procedures. They had overlooked it study of classical letters, a living source of all knowledge and every moral and civil virtue, indispensable tool for a correct interpretation of the same legal texts of antiquity.

In Pavia, both in 1433, two of the most radical writings of the humanistic controversies against medieval jurisprudence were composed. In the De verborum significatione of MaffeoVegio (1406-1458) are clearly indicated the serious defects in the way glossers and commentators used to operate. But Vegio also advanced another relief, destined to become a recurrent topos of the romanistic of the modern age. In his view, the roots of evil nestled in the same compilation of Justinian, since the commission that had prepared it, chaired by Tribonian, had mutilated and altered the works of classical jurisprudence, that is, the most precious patrimony of Roman juridical science. The same themes mentioned by Vegio were illustrated with greater breadth and vigor by Lorenzo Valla (1400-1457), recognized master of humanistic philology and severe critic of the legal tradition. In the Epistula to Bartolo De insigniis et armis libellum , he attacked not only Bartolo, but Justinian himself, responsible for having shattered and manipulated the treasure of Roman jurisprudence’s knowledge and thus having opened the way to multiply of crude and uncultivated interpretations and comments3. In his major work, the Elegantiae latinae linguae (1435-1444), composed in Naples, insisted on the need to refer directly to the teaching of ancient writers and reiterated the need for restoration of legal texts, that could be capable of restoring their genuine letter and meaning. In his view, no document had to escape historical and philological criticism. So in a writing of the 1440 showed that the so-called "Donation of Constantine" was a fake packaged in Middle Ages. Later on, he attacked on the philological field, an authority of the Church, such

as

the

famous

canonist

Graziano

(active

around

1140).

3Michael Andrew Screech Some Renaissance Studies: SelectedArticles 1951-1991 with a Bibliography, pag . 189

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These attitudes played a decisive role in European Renaissance culture. From the Protestant Reformation they were also applied in the theological and religious fields, with regard to the Holy Scriptures and ecclesiastical institutions. They questioned the authoritative foundations of medieval knowledge: ancient monuments had to be rediscovered in their historicity and had to be read without the mediation of "authorized"

interpreters,

who

had

sown

confusions

and

errors.

2. The examples reported so far of the criticisms, often violent and resulting in real invectives, which writers and philologists turned against the jurists, followers of the dialectical methods of Scholasticism and perched in the juridical faculties, could easily be multiplied. However, they only marginally affected the way of working and teaching of the fifteenth-century masters of law. In some great commentators, such as Paolo di Castro (1360 / 62-1441) or Giason del Maino (1435-1519), there is a cure for the style previously unknown and a fair knowledge of the classic letters. But the courses they held in universities (lecturae), faithfully mirrored in the monumental Commentarii, unfailingly followed scans and precepts of "bartholism": an address that for centuries was unrivaled in Italian universities and which largely dominated European universities. Matteo Gribaldi Mofa († 1564) summarized it in the De methodo ac ratione studendi in iure (1541) with a lucky couplet which describes the technique of mositalicus in the exegesis of the Justinian’s 3 texts, inspired by the logical criteria of Scholasticism: ‘’Praemitto, scindo, summo, casumque figuro, / perlego, do causas, connoto et obiicio4’’. At the end of the fifteenth century, the program advanced by humanist writers in reference to all the knowledge of antiquity was now outlined in its essential features. It was soon taken over by jurists, who developed it especially in the following century. It can be summarized as follows: philological study of the texts (recensio and emendatio, i.e. control of the dictation and correction of erroneous lessons with the help of all sources, including non-legal ones); historical study (location of documents in their respective contexts); diplomatic study (research and comparison of the most reliable manuscripts to find the exact version of classical sources). 4The study follows rigorous steps: it starts with a premise that defines the boundaries of the topic to be addressed and defines the sources;ananalysis of the text is made dividing it into its fundamental elements; were turn to reassemble it in its unity; examples are given to move from theory to practice; reread carefully;the ratio of the norm is sought (why it was created and what objectives it sets itself); the commentator reports his personal notes, perhaps making connections with other passages; objections are addressed by trying to prepare a clear interpretation. (Biblioteca centrale nazionale di Firenze, https://thes.bncf.firenze.sbn.it/termine.php?id=33178)

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In 1490 Angelo Poliziano (1454-1494), writer and poet, but also a graduate in law, undertook a difficult collation of the littera bononiensis or vulgata 5 (the Digest lesson used since the time of the Bolognese glossers) with a famous manuscript, by Justinian age and arrived first in Pisa and then in Florence, where it was kept with religious scruple in the Medici library. The critical reconstruction work of the Pandette on the basis of the Pisan or Florentine littera continued with the contribution of other authors. It culminated in the edition edited in Florence by Lelio Torelli (1498-1576) in 1553, completely devoid of annotations and comments and also including the texts in Greek, omitted by medieval jurists for ignorance of the language. The knowledge of Greek had in fact spread among humanists in Italy during the fifteenth century (in the sixteenth century it became a must for European intellectuals) thanks to the arrival of Byzantine scholars who fled before the Turkish conquest of Greece and which were numerous species after the fall of Constantinople (1453). They brought with them the secular experience of a refined textual criticism, whichtaught a lot to the Italian masters. Thus began a study (intended for significant developments in Europe in the sixteenth century) not only of the Greek passages contained in the Digest and the Codex, but of the entire corpus of Byzantine legal sources. Starting from the early sixteenth century, the philological investigation of ancient texts, aimed at restoring their authentic lesson, was practiced practically by all the major jurists of Europe. It also led to the research and edition of Pre-Justinian sources. But the dream of recovering classical Roman jurisprudence did not neglect the objective of an adequate edition of Corpus iuris. A new literary genre therefore flourished, consisting in the restoration of the fragments that were contained therein or the actual meaning of the terms that were used there (Observationes, Adnotationes, Emendationes, etc.). The various attempts to provide a critical edition of Corpus finally ended in 1583 with the Geneva edition of the Frenchman Denis Godefroy (Gothofredus, 1549-1622), who took refuge in Geneva following his adherence to Calvinism. Reprinted several times, it was the standard text for Justinian's compilation for centuries. Philological research around single passages was accompanied by attempts to trace the history of Roman law. At first in Italy, then in Europe, scholars and antiques dealers 5 L. bononiensis or vulgata, the text of the Digest according to the great majority of the manuscripts, all after the 11th century. and dating back to an archetype other than the Florentine, important because they represent the Justinian work in the form in which it was studied and popularized by the Bolognese glossers and reproduced in the old editions.

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devoted themselves to it, and more and more often jurists. Particular attention was paid to the judiciary and public law institutions, neglected in the Middle Ages because they no longer existed, and therefore to sources that the middle age tradition had almost completely ignored (for example the so-called Tres Libri, i.e. last three books of the Code). A thick literature was born, in which many authors today see the moment of foundation of a modern historical sensitivity and a modern historiography. Perhaps the most conspicuous monument of the historical-juridical studies of the "cults" is represented by the annotated edition (published posthumously in 1665) of the Codex Theodosianus by Jacques Godefroy (Gothofredus, 1587-1652), son of Denis and to whom we also owe a reconstruction of the XII Tabulae6. During the sixteenth century, investigations into the judiciary and Roman institutions often had a comparative accent, making comparisons between the ancient and the contemporary, in order to legitimize the modern ones with the prestigious examples of antiquity, or on the contrary to support their autonomy and the diversity. This tendency was manifested especially in France, where a process of construction of royal absolutism was taking place, destined to offer Europe of ancien régime one of its main constitutional models. From historical-comparative research a large literature on the juridical institutions of the kingdom developed, written more and more often in French, rather than in Latin, to underline the independence of national culture. It represents one of the most important contributions to public law and to political doctrines of the modern age: it is sufficient to remember the “Republique” (1576) by Jean Bodin (1529/30 - 1596), a capital text of western juridical-political thought, which in the Latin translation had a very wide circulation and that founded modern reflection around the concept of sovereignty.

3. Comparative ideas are already present in the work of Guillaume Budé (Budaeus, 1467 / 68-1540), who formed with Alciato and Zasius - as Claude Chansonnette wrote (Cantiuncula, 1490-1549) - the "triumvirato" of doctissimi viri that made humanistic jurisprudence anEuropean phenomenon, to whose diffusion the cultural revolution produced by the invention of the press contributed greatly.

6 The laws of the XII tables (duodecim tabulae; duodecim tabularum leges) are a body of laws compiled in 451-450 BC. from the decemviri legibus scribundis, containing rules of private and public law. They represent one of the first written codifications of Roman law, if we consider the oldest mores and lex regia.

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More literate than jurist, founder of the Collège de France in 1530, Budé brought the program of Italian humanists to a high level: historical and philological reconstructions, repudiation of medieval interpreters, criticism of Justinian's compilation. His ‘’Adnotationes in Pandectas’’ (1508) and the ‘’De asse’’ (1515), highly erudite works, became a constant point of reference for scholars. In the general renewal of culture that took place under the reign of Francis I, the primacy in intellectual life now passed to France. In the field of legal studies, a decisive impulse came from the teaching held by the Milanese Andrea Alciato (1492-1550) in Bourges between 1529 and 1533, which made that university the main center, for a long period, of humanistic jurisprudence. A university professor in various Italian and French locations, Alciato had already emerged with the ‘’Adnotationes in tres posteriors libros Codicis Ius...