Legal Humanism: An Overview

New currents of thought—legal humanism, the “Secunda Scholas­tica,” the Usus modernus Pandettarum—rose to confront the tradi­tional jurisprudence of the fourteenth century (Bartolus and his suc­cessors).

Let us take humanism first.^[223] Humanism ChaUenged the authority of the ius commune, weakening the certainty, universality, and eternity that it advocated and claimed as its own. When humanism proposed mutability and uncertainty as historical perspectives, it crumbled the monolithic structure and the theoretical basis of the ius commune. In the process, many of the areas that had been the special province of the jurist were gradua∏y occupied by the historian or the scholar or by early experiments in philology, with the result that the jurists’ function shifted and their social image was reduced to more modest dimensions. Not only was the universality and eternity of the ius com­mune contested and criticized; attempts were also made to replace it with a princely or royal legislation of a strongly national cast that viewed such systems of law as a general (hence a common) law.

In short, for the humanists the relationship between the ius com­mune and the iusproprium had been broken, and rightly so. They in­sisted that the law of the kingdom or the principality should no longer be considered iusproprium but a general and common law that stood in contrast to the variety of customary laws and local statutes. In this point of view the ius commune became either a residual law or a law to be taken into account on a cultural plane, valuable for the store of human reasoning and human reasonableness that it had elab­orated and embodied through the ages.

Scholars debated the relative excellence of the various branches of knowledge; now they wondered whether or not literature and philos­ophy had preeminence over jurisprudence and medicine. Even though the scholar who pored over documents from the past to see what value there might be in the extant evidence—narrations, con­tracts, or other—might easily have appeared to be engaged in an as­cetic activity untouched by politics, his place (and those of the philos­opher, the historian, and the philologist) in the society of the day and, even more, in the courts of the princes, was not determined by politi­cally disinterested criteria. The scholar’s operating space had been taken away from the jurist. Some jurists reacted by recasting their thinking; others only made a show of doing so or more simply adapted to the new method by sharing some of the humanist’s tasks, seeking to conform to the trends of the times and to aid the prince or the sovereign in working to construct a “national” order. There were also jurists who fought the new currents with all their might, both on the level of theory and on the level of a practice that remained—and, they insisted, must remain—tied to the traditional methods of juris­prudence. Then there were some jurists who played a starring role, occupied center stage, and had a hand in writing the scenario—al­though, as has prudently been remarked, the label of “humanist” did not always express a jurist’s entire personality, nor did it always repre­sent all the components of his thought.^[224]

3.