From Italian “Practical Jurisprudence” to the Usus modernus Pundectarum in Germany

While the “reception” of the ius commune was making headway in Germany between the fifteenth and the sixteenth centuries, in Italy the times were ripe for “practical jurisprudence.” This movement drew strength from the method known as the mos italicus (to distin­guish it from the mos ^adieus), a method rooted in the perennial leg­acy of Bartolus and the commentators and consiliatores of the four­teenth and the fifteenth centuries.

The first trend to emerge and become consolidated was known as “practical jurisprudence.” It preceded a second movement, the Usus modernus Pandectarum, with which it was in part intertwined. “Prac­tical jurisprudence” nonetheless deserves separate consideration.

One major Italian jurist of “practical jurisprudence” was Giovan Battisa De Luca (1613-83),^[240] born in Venosa but Roman by adoption and a cardinal of the Holy Roman Church in the period of its greatest religious intransigence, expressed by the Counter Reformation and its operational arm, the Holy Inquisition. Giovan Battista De Luca went his own way, however. Above all, in the composition of his works he alternated between the use of the “vulgar” language (Ital­ian) and Latin, which was already a revolutionary novelty in the offi­cial culture of Europe. His most widely read work, IlDottor Volgare (written in Italian) was a sober and balanced work that took up the legal problems of civil coexistence and reorganized the “institutes” of private law. De Luca had two basic guiding principles: one must al­ways be a “person of good sense,” and one must listen to the voice not only of “reason” but also of “reasonableness.”

All the “practical” currents in Italian and European jurisprudence merged in De Luca’s thought, especially in the monumental collec­tion of jurisprudential “maxims” that he extrapolated from an im­mense number of judicial decisions.

After 1495 “practical jurisprudence” found a large audience in Ger­many as well, but following particular lines of investigation reserved to certain sectors Ofjurisprudence, limited fields within which we can identify principles and figures specific to a microsystem. Even so, German juridical culture was not isolated from other European cur­rents of the time, nor can it be seen apart from what it inherited from various other parts of Europe. Thus, for instance, if problems in com­mercial law seem to be specific to Germany, they were not a totally new phenomenon: both on the Iberian Peninsula, principally in Cata­lonia and Portugal,^[241] and in Italy, commercial law had been devel­oping as an autonomous branch of law for some time. In the sixteenth century there were major figures in commercial law, men such as Ben­venuto Stracca (1509—78) of Ancona, or Sigismondo Scaccia in Genoa, who were followed in the seventeenth century by Ansaldo degli Ansaldi in Florence and, bridging the seventeenth and eigh­teenth centuries, Giuseppe Maria Casaregi in Genoa.^[242] There were also major figures in civil and criminal trial law and in criminal law: Benedikt Carpzov (1595-1666) in Leipzig, who was preceded by such men as Giulio Claro (1525—75) in Alessandria and Prospero Farinaccio (1554—1618) in Rome.

This jurisprudence was occupied, constantly and on a daily basis, with solving the problem of using both the local laws (iura propria) and the common law (ius commune). It concentrated on discerning the elements of local law—content, form, principle, or legal institu­tion—that were consonant with the ius commune-, it took on the task of evaluating the ius proprium-, it tended toward serious consideration of the ius commune, but in ways that permitted giving particular weight to specific legal situations and that heeded the need to reorga­nize into homogeneous sections the arguments and institutes that were scattered in the Justinian compilation.

The second methodological trend, the Usus modernus Pandectarum, began in Germany after the “reception” of Roman law in 1495. The name of this event came from an expression coined considerably later by Samuel Stryk, a jurist who lived from 1640 to 1710 and was a pro­fessor at Frankfurt an der Oder and at Halle, a famous work of whose was entitled Usus modernus Pandtctarum (roughly, ^uRomanistic Prac­tice Brought into Line with the Needs of the Times”).^[243]

The Usus modemus Pandectarum put its stamp on a long period in German jurisprudence that included prestigious names, among them Hermann Conring (1606-81).^[244] The jurists who proposed an usus modemus of Justinian’s Pandects praised German jurisprudence for its powers of assimilation. They stressed the “national” character of the new law and pointed to the way that “German” jurisprudence had adapted to new needs while utilizing the ancient law. Part of this ad­aptation process was an ingrained habit of using the ius commune, made “national” by the everyday activities of judges and lawyers. It was also the result of theoretical reflection, however, capable of rein­terpreting the norms and doctrines of the ius commune, of transferring them to a new cultural terrain, and of reorganizing them sector by sector.

If European jurisprudence remained “systematic,” and if the very idea of “system,” as it had been experienced and practiced for centu­ries, could function in the nineteenth century as a central motive force and a cardinal sign presiding over the relaunching of legal science on the European continent, it owed it to the remodeling and the perpet­uation of the institutions and the experiences of the grand tradition of Italian legal doctrine, as these were relived and reinterpreted in the rich German experience of the Usus modernus Pandecturum.

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