HUMANISM AND THE CIVIL LAW

The fifteenth-century Italian humanists were aware that the texts of the Digest, which were available to them, were faulty. The glossators and Commentators had been satisfied with the litera bononiensis, the tradi­tional text which had been used at Bologna already in the eleventh century and which was the basis for the early printed editions of the Digest.

The humanist Politian, although not a jurist, saw the need for a thor­ough study of F, which he believed to be the actual manuscript which Justinian had sent to Pope Vigilius in the 550s (as indeed is possible). He obtained permission from Lorenzo the Magnificent to make a collation of F with a printed edition. He worked intensively, noting at the end of the Digestum vetus that he finished collating it at 12.30 a.m. on ig July 1490; six weeks later he completed the whole collation. Although Poli- tian published only a few of his readings of F, he established the idea that the Florentine was the archetype of the Digest tradition and the best text was one based on it.

The first humanist jurists, who appeared in the first half of the six­teenth century, concentrated their efforts on ridding the texts of the glosses and commentaries that engulfed them. The Frenchman Guillaume Bude (Budaeus), in his Annotationes in Pandectas in 1508, although a jurist, showed more interest in the unusual words found in the Digest and in what it had to teach about ancient life than in the law itself. He described the commentaries, which showed no interest in such questions, as a malignant cancer on the texts, which had to be cut away. His German contemporary Ulrich Zasi (Zasius), Clerk of the city council of Freiburg im Breisgau and professor in the university, called the commentaries a giant creeper which had taken root around the texts.

The most influential jurist of this first phase of legal humanism was the Italian Andrea Alciato (Alciatus). He was thirty years younger than Zasius but published three short works, that made his name, in the same year as that of Zasius, 1518. It was the Paradoxa (which set out objections to received opinions) that had the biggest impact. Born in Milan, Alciatus studied law in Pavia under the last masters of the Bartolist methods, Jason de Mayno and Filippus Decius, but at the same time was caught by the excitement of humanist learning. He set himself the task of combining legal and humane studies, beginning with the reconstruc­tion of Roman political institutions, not only from a purely historical standpoint but also from that of a jurist.

Alciatus taught at Avignon from 1518 to 1522 and introduced the new approach to law into France, where it was accepted with enthusiasm and became known as the mos gallicus, by contrast with the traditional Bartolist approach, now called the mos italicus. From 1529 Alciatus taught at Bourges, which became the main centre of legal humanism. Bourges was a Huguenot stronghold and almost all of the prominent French legal humanists were Protestant. Indeed the movement was seriously weak­ened after the Massacre of St Bartholomew in 1573, when many of its leading figures either fled from France or were killed. There is a clear parallel between their legal and their theological thinking.

The early legal humanists were concerned to improve the quality of their texts but, instead of following Politian's lead and systematically col­lating their texts with the Florentine manuscript, they relied largely on conjecture, using their knowledge of antiquity to guess what the text ought to be. It was not until 1553, almost sixty years after the death of Politian, that Lelio Torelli, in collaboration with the distinguished Spanish scholar Antonio Agustin, produced an edition of the Digest based on the Florentine manuscript.

The greatest humanist textual critic was Jacques Cujas (Cujacius). He recognised the importance of F, but realised that one could not slavishly follow the best manuscript reading; one had to take account of the legal conclusion to which that reading led and consider whether, in all the circumstances, the Roman jurist in question was likely to have written it. For Cujacius that meant balancing the reading of F against the ratio iuris, or principle behind the rule. To do that successfully required an ency­clopedic knowledge both of the texts of the Corpus iuris and of human­ist studies of ancient literature generally. Cujacius was unsurpassed in this regard and his works are still cited on the interpretation of Justinian's texts. He and his colleagues began the study of interpolations in the Digest texts.

In their task of recovering the true Roman law from the obfuscations of the glossators and Commentators, the humanists realised that Justinian's texts revealed not only the law of sixth-century Byzantium but also the law of the second and third centuries, the period of the great jurists whose works were excerpted in the Digest. This they identified as the classical period of Roman law.

When they distinguished between the various strata of law repre­sented in the Digest, the humanists recognised that the state of Roman law was related to the state of Roman society, and that as that society changed, so did the law. In particular they noted that the law of a par­ticular period was affected by the political situation of the time. In chart­ing the development of Roman law, they drew parallels with the political changes that were going on in contemporary France. Some thought that the study of ancient law might offer answers to their own constitutional problems. But the more they related Roman law to what they discovered about Roman society, the more they realised how different their six­teenth-century society was from the society of ancient Rome. That real­isation led them in turn to question whether it was appropriate to seek to use Roman law as a model for contemporary France at all.

By stressing the connection between Roman law and ancient Roman society, the humanists were in effect challenging the claims of the Roman civil law to universal validity. The main exponent of this line of argument was Francois Hotman. He stressed the distinction between public law and private law, arguing that the public law of any country was necessarily related to its form of government. But even in private law, Roman law changed as society changed and many rules became obsolete.

Both the humanists' criticism of the texts of Roman law and their stress on the relationship of Roman law with ancient Roman society undermined the veneration in which the Corpus iuris had been held. Most of the humanists recognised that, for rational and equitable solu­tions to many perennial legal problems, the work of the classical Roman jurists was unrivalled. They felt free, however, for the first time to criti­cise the form in which those rulings were transmitted. The difficulties of discovering what was ancient Roman law were compounded by the obscure form in which the texts of the Corpus iuris were arranged. Neither the Digest nor the Code had a rational order and they contained many repetitions and antinomies. The result was that there was far too much scope for contradictory interpretations and, in the minds of ordi­nary citizens, civil lawyers had acquired a reputation for complex argu­ments, which served as an invitation to chicanery.

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