Legal Humanism - Grade: A PDF

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Legal humanism and its impact on legal development in the 16th and 17th centuries...

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To what extent is the phenomenon identified by historians as “legal humanism” useful in explaining legal developments in sixteenth-century France and Scotland? To a large extent legal humanism is not useful as a concept to explain legal developments in sixteenth century France and Scotland. Although important in the progression of legal science and legal culture the limited contemporary impact made by legal humanism in the sixteenth century makes it less useful in explaining legal developments in France and Scotland. Legal humanism can be defined as a scholarly movement based around interpreting Roman law. Although Roman law had been studied in Europe since the rediscovery of Roman texts centuries earlier humanism was a reaction to the ways in which Roman law had been studied. The approach taken since the 11th and 12th centuries had been that of the glossators and commentators. These scholars aimed not to explain the law but instead focused on its practical application, attempting to harmonize it with contemporary legal customs and methods. The texts were considered almost biblical In terms of authority, and the role of the glossator was to interpret and adapt the document. The humanists however generally believed that these additions were less valuable than the original text, or even that the commentaries obscured the original text more than elucidated it. The humanists focused on the study of the original text, in a much deeper manner than had previously been attempted. Humanists looked at all aspects of Roman texts such as the historical context they could provide to analysing their use of language. Humanists also knew that the texts were not as unassailable as had been thought by the glossators but instead were often corrupt, forgeries or misinterpretations. However, many ideas of legal humanism although controversial at the time are accepted now as standard in European legal cultures. Numerous important developments happened in the 16th century in both Scotland and France, most of these developments were not directly impacted by legal humanism, making it less useful explaining these developments. In Scotland there were varying factors affecting legal development in the 16th century. One of the largest factors influencing Scotland was the reformation. The reformation was a reaction to the perceived corruption and theological inconsistencies of the catholic church. It led to a splitting the catholic church between those who no longer recognized the pope's authority and wished to replace the catholic church and those who remained loyal to the pope in Rome. In Scotland the issue was further complicated by the close relationship between Scotland and France. Whilst England had reformed and ceased recognising the pope in 1532 Scotland would not until 15601. This was due to the fact that Scotland was ruled by Mary of Guise, a powerful French Catholic noble woman. As France was still catholic and so was the Guise family Mary attempted to keep Scotland catholic by force. This would end in Mary of Guises death and the passage of the treaty of Edinburgh. This treaty allowed the protestant faction in Scotland to take control. Although technically Mary Queen of Scots was still in control, she gave permission for a parliament to be held in her absence, however it was not to touch on religious matters2. Ignoring this the parliament repudiated the pope's authority over Scotland and banned the giving of mass3. The parliament also commissioned a book of discipline which made sweeping reforms to the church in Scotland. The reformation therefore marked a profound change in legal sphere for Scotland, creating new ecclesiastical laws and systems and banning the giving of mass and other sacraments. Legal humanism, whilst bearing certain similarities with the reformation, especially in terms of the focus on original texts and bucking of tradition, it cannot be said that legal humanism is useful in explaining the reformation. Another example of an important legal development in Scotland took place in 1532 when the Court of Session was founded4. This was the culmination of years of development in the Scottish courts system as what we now call the court of session was once the lords of council and session and had been part of the king's council5. 1 Gerald Bray, Documents of the English Reformation, 1526–1701. Library of Ecclesiastical History. (James Clarke and Company, 1994). pg 115 2 Dawson, Scotland Re-Formed, 1488–1587, p. 211 3 Mackie, Lenman and Parker, A History of Scotland, (Penguin Books, 1978) p. 153. 4 O.F. Robinson, T.D. Fergus and W.M. Gordon, European Legal History, 3rd ed (Oxford, 2000) pg 167 5Thomas Broun Smith, British justice: the Scottish contribution. (London: Stevens & Sons, (1961). p. 54.

This is another important legal development that cannot be explained by legal humanism. Another important factor in the legal development of Scotland was the printing revolution. The new availability of mass-produced books ushered in an era of unprecedented communication, including legal ideas. For example, Erasmus had over 750,000 copies of his work sold during his lifetime6. The introduction of a way to quickly spread and recreate information also changed the way law was taught. Due to the production of books to be read privately and relatively widespread availability of books could refer readers to other books, whereas commentators relied on the oral tradition and so effectively had to include these sources and their information in their commentary7. Furthermore, the practical impact of legal humanism was limited in Scotland. The courts of Scotland still relied on older methods to decide cases, so the immediate impact of legal humanism on the practice of law was negligible8. Circulation and production of humanist texts was relatively low compared to works on the ius commune9. This further shows that the contemporary impact on legal developments was limited. Therefore, when attempting to explain legal developments in 16th century Scotland legal humanism is to a large extent not useful. The impact legal humanism had on France is to some extent larger than its impact on Scotland. The impact of legal humanism on France was like Scotland limited by external factors. A prominent example of this is the St. Bartholomew's Day massacre. Occurring on 23–24 August 1572, the eve of the feast of Bartholomew the Apostle, the massacre was a wave of violence against protestants by Catholics in France aimed at the Huguenots, a group of French protestants. An unpopular peace treaty resulting from one of the French wars of religion, the Peace of Saint-Germain-en-Laye had led to tension between the Catholics and the protestants in France for some time. An important Huguenot leader Admiral Gaspard de Coligny, along with a number of other Huguenot leaders, were assassinated whilst in Paris. The admiral had held a close relationship with the king. The kings Swiss mercenaries were sent out to kill protestant leaders, the citizenry was armed and the city sealed. Although the assassination of the admiral failed and only wounded him, he would die later from his wounds. Following this the violence against protestants swept through Paris. This set of the violence that spread from Paris to various other urban centers. This was a major turning point in the history of France and led to most surviving protestants wither converting or fleeing. Some of those that fled were prominent humanists. For example, Hugues Doneau one of the most prominent French legal humanists fled to Germany and took up a post at the university of Leiden10. The exodus of so many important French humanists led to a blunting of the impact of humanism on the legal developments of France in the 16th century. The St. Bartholomew's Day massacre actually contributed to other European schools of humanism such as the Dutch elegant school. However earlier in the 16th century the prevalence of Huguenots in France contributed to a greater impact of legal humanism. This is because there is an overlap between Protestantism and humanism. Bourges, a city in central France, played a central role in the rise of legal humanism in the 16th century. The city acted a center for legal humanism and teaching associated with the subject. Numerous prominent French legal humanists attended the university in the city such as Jacques Cujas and Andrea Alciato. Having such a center of learning on the subject increased the impact of legal humanism on the legal developments of France in the 16th century. Furthermore the lack of any major legal humanist schools being active in France until the latter half of the 16th century also reduce the impact legal humanism had on any legal developments in France at the time11. Overall legal humanism is to some extent not useful in explaining the legal developments of France in the 16th century.

Despite being limited in its contemporary application in France and Scotland, it can be said that in the long-term Legal humanism contributed greatly to the development of law in Europe. The humanist 6 Charles Issawi , "Europe, the Middle East and the Shift in Power: Reflections on a Theme by Marshall Hodgson", Comparative Studies in Society and History, 22 (4): 487–504, (1980) 7 O.F. Robinson, T.D. Fergus and W.M. Gordon, European Legal History, 3rd ed (Oxford, 2000) pg 177 8 Peter stein, Roman Law in European History, (Cambridge university press, 1999) pg 85 9 ibid pg 86 10 Douglas J Osler, ”Legal Humanism” , 11 ibid

school's emphasis on precise and correct word use and grammar has clearly had an influence on law as it is still a focus in modern law. The focus modern law has on specific and clear language can trace it’s history back to the first legal humanists. The focus on finding the most original source and best source is still considered best practice today. Other ideas such as an understanding that law is a reflection of society also were first prevalent amongst humanists. Legal humanism was like the renaissance partly responsible for bridging the gap between the modern world and the medieval era by introducing many of the ideas that are core elements of law today. The legal humanist study of the history of Rome as revealed by their laws also foreshadows modern developments. As Douglas Osler states, “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” 12

However, at the time the old systems were ingrained by centuries of use, and worked quite well. External factors also kept legal humanism from having the impact it might have had, such as wars of religion. Although legal humanisms direct impact in France and Scotland in the 16th century may have been limited by certain factors, the overall importance and impact of legal humanism to European legal development is large. In conclusion legal humanism is to a large extent not useful in explaining the legal developments of 16th century Scotland and France. In Scotland numerous legal developments such as the reformation of the church and founding of the court of session took place predominantly without the influence of legal humanism. Other important developments such as the invention of the printing press also contributed to legal developments in16th century Scotland. The continued use of the commentators in courts shows the impact on Scotland was not that large. The limited contemporary writings on legal humanism and continued prevalence of writing on the ius commune also demonstrate this. In France the contemporary impact of legal humanism on legal developments was likewise limited. One of the key factors responsible for this was the St Bartholomew's day massacre. This not only led to the increased suppression of the Huguenots in France which hurt the progress of legal humanism, but the exodus of prominent legal humanists also served to reduce the impact of legal humanism on the legal developments of France. This development may have aided in the long term impact of legal humanism by contributing to other countries developing legal humanism. France did have some positive factors influencing the impact of legal humanism on legal development. The existence of Bourges as a centre for legal humanist thought and teaching had a positive impact on French legal development in the 16th century. The prevalence of the Huguenots in France also aided in the spread and impact of legal humanism in France. The lack of any major centres for legal humanism until the latter half of the 16th century also show that the impact on French legal development at the time was necessarily limited. Overall whilst the impact of legal humanism has been extremely large over time, with many modern ideas tracing their origins to legal humanism, the contemporary impact on legal developments in the 16th century was limited. Bibliography Gerald Bray, Documents of the English Reformation, 1526–1701. Library of Ecclesiastical History. (James Clarke and Company, 1994). Dawson, Jane E. A. , Scotland Re-Formed, 1488–1587, (Edinburgh University Press, 2007) Peter stein, Roman Law in European History, (Cambridge university press, 1999) O.F. Robinson, T.D. Fergus and W.M. Gordon, European Legal History, 3rd ed (Oxford, 2000) Thomas Broun Smith, British justice: the Scottish contribution. (London: Stevens & Sons, (1961) Mackie, Lenman and Parker, A History of Scotland, (Penguin Books, 1978) p. 153.

12 ibid

Charles Issawi , "Europe, the Middle East and the Shift in Power: Reflections on a Theme by Marshall Hodgson", Comparative Studies in Society and History, 22 (4): 487–504, (1980)

Douglas J Osler, ”Legal Humanism” , Word count, 1250...