A European Jurisprudence

We need to summarize. 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 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 as 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 nu>demus Pandectarum, the “Secunda Scholastica”—were all European in scope and were present everywhere. There were Bartolists in Spain, legal humanists in Italy and Germany, and representatives of the “Secunda Scholastica” in Holland and Italy.

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