Legal Humanism: France

The new legal humanism had representatives in Italy (as we shall see), in Germany, and in Spain. In German-speaking lands there was Ulrich Zasius (1461-1535), active in Freiburg, who was sensitive to the influence (through Basel) of Erasmus of Rotterdam and Bonifacius Amerbach.

But it was in France, with the so-called mosgallicus, that humanism offered the most serious challenge to a still-vital equilibrium that had gradually formed from the thirteenth century on within a system of iura propria based in the ius commune. Some French jurists were moti­vated by a “nationalistic” sentiment that they displayed openly. They claimed full and preeminent validity for French law on the two levels of the particular laws (city and seigniorial law; royal law), and they assigned to the royal law the function of a general law in respect to the local laws {coutumes, statutes, and so forth). These jurists, however, embodied and documented only one aspect of a more complex phe­nomenon. Various methodological tendencies competed to reach a common goal of increasing the scope of the national law in force: some jurists accused Justinian of irrationality; others suggested that the reworked legislative materials that they had inherited could be given a new and rational order; still others studied and used Justini­an’s compilation only as an important witness to the past.

We need to follow all three of these tendencies. The task of discred­iting the Justinian compilation fell in particular to Franςois Hotman (1524—90), a jurist of less than outstanding intelligence who neverthe­less became famous for the clarity and incisiveness with which he tackled this historically significant task. Hotman lived in the mid-six­teenth century, an age in which the chief themes of legal humanism were fully mature.

Hotman was the author of a diffuse work, the Antitribonianus, in which he attempted to strip bare the peccadillos, the failings, and the errors of the Byzantine compilers. (Tribonian, as is known, headed Justinian’s legislative commissions and bore the major responsibility for compiling and editing the Corpus.) Hotman’s critical judgments were openly aimed at promoting the French national law.^[225]

Hotman’s work was not isolated from the context in which he moved or from critiques that had preceded it. It was fashionable in some sectors of the humanistic culture of the time to treat all jurists of earlier times as ignorant. Medieval jurists were defamed in long strings of insults: they were “plebei, nocui, inepti, sophistae, barbari [plebs, noxious, inept, sophists, barbarians]... imperiti [unlearned]... sordide nostram tractantes disciplinam, rixantes de lana caprina [handling our discipline foully, to contend over goats’ wool; that is, over trifles]... ad aratrum nati, non bene de mente constituti [born to the plough, not well endowed mentally]... improbi, ambitiosi, avari [base, ambitious, greedy]... exoticae linguae homines [men of exotic, that is, bad, language]” and worse.^[226]

The jurists of the second group worked to reformulate the materi­als and the arguments of the Corpus iuris civilis on a more rational level and on the plane of historical relativity and to redistribute them in a new architecture. Such men took care to point out (and they made it abundantly clear by the way they themselves operated) that the vari­ous topics and legal institutes were bundled together in no proper order in the Justinian compilation, where they were sometimes juxta­posed and sometimes divided among titles and books that were orga­nized with no logical or systematic arrangement. A new order was needed. Among the many jurists who shared such ideas were Guil­laume Bude (Guillelmus Budeus, 1465—1530), Franςois de Connan (Franciscus Connanus, 1508-51), Andre Tiraqueau (Andreas Tira- quellus, 1488—1558), Franςois Duaren (Franciscus Duarenus, 1509—59), Charles Dumoulin (Carolus Molineus, 1500-66), and, above all, Hugues Doneau (Hugo Donellus, 1527—91) and Antoine Favre (An­tonius Faber, 1557—1624), the author of one work, Rationalia ad Pan­dectas, whose title was a clear indication of his program.

Jurists of the third current in French legal humanism were less apt to expose their political motives and less explicit about their polemic biases. Some of these were jurists who continued to study the Corpus iuris civilis in depth, but with a shift in method and within the context of other sources, which they sought with passion and sometimes found, with good luck. Motivated by a need, a desire, even a yearning to study the past and to appreciate the grandeur of Roman or Greek antiquity, they launched massive scholarly projects. They also inaugu­rated modem philological studies in the field of law. They approached Roman law with love rather than criticism, reproach, or aversion, but they saw it with new eyes. They used Roman law as testimony to the past; as documentation that made it possible to know an epoch, a civi­lization, and a culture that, because they belonged to the past, were no longer entirely of the present. At most Roman law could be regarded as the base or the foundation for a present that was completely differ­ent because it had and practiced its new national, regional, or local “laws.” There was admittedly a connection between the present and the past, and the past generated interest, curiosity, and a need to know, but the present was not the same as the past, hence the laws of the past could not be the laws of the present.

One of the best-known of the jurists in this third current in French legal humanism was Jacques Cujas (1522-90). A contemporary of Hotman, Cujas followed a totally different direction. Avoiding po­lemics, accusations, and scornful judgments, he worked construc­tively in a number of powerful works to relegate Roman law to the past. A few decades after Cujas came Denis Godefroy (1549—1622), the author of a painstaking edition of Justinian’s Corpus iuris civilis, and Jacques Godefroy (1587—1652), who wrote a masterly commentary to the Codex Theodosiunus.

It should hardly be necessary to note that defining three tendencies in French legal humanism and mentioning the principal figures in each current does not mean that individual humanist jurists were not influenced by tendencies that were not particularly congenial to them, or that they did not to some extent consciously accept that influence.

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