THE BARTOLIST REACTION

The ferment of humanist activity centred on Bourges affected civil law scholarship throughout the academic world and in the long term it transformed the civil law. Its immediate impact on the practice of the law, by contrast, was negligible.

Court advocates and notaries everywhere remained faithful to the Bartolist tradition. This was not because they were unaware of the challenge of legal humanism. Civil lawyers had become a formidable political and social force in all societies. In France they were accepted as constituting a noblesse de la robe and resented any movement which appeared to subvert the expertise which furnished their qualification for positions of power in state and local government.

Apart from the challenge to their vested interests, however, the civil law practitioners found much of the humanist scholarship irrelevant to their daily concerns. The arguments that would carry weight with a court were not to be found in humanist discussions of what Ulpian actually meant but in the writings of Bartolus and Baldus and their successors. The commentaries, which so offended the aesthetic sensibilities of the humanists, followed a set pattern which practitioners readily

mastered. Previous discussions were always carefully cited and fine distinctions drawn between different fact-situations. Repertoria abounded which enabled the practitioner to find what he was looking for and often he could skip the preliminaries and go straihht to the discussion of the contemporary application of the law.

That the mos italicus flourished is evidenced by the spate of reprints of the Commentators’ works, which throughout the sixteenth century poured from presses of printing houses not merely in Italy but also in Paris and Lyons. Indeed humanist works had only a small circulation, confined to scholars, and in modern libraries are rare compared with works on the ius commune.

The latter now acquired its own apologists. By way of defence against reliance on the original meaning of a text, they developed the notion of the communis opinio doctorum. Baldus had argued that, if the main commentators were agreed on a particular doctrine, that opinion had the force of custom. Now it was said that it had greater authority than any particular text of the Corpus iuris itself. This was the ultimate triumph of the commentary over the text in a struggle which had begun with the glossators.

Alberico Gentili was an Italian Protestant, who studied law, entirely in the Bartolist tradition, at Perugia. Being forced to leave Italy for religious reasons, he arrived in England in 1580 and two years later published his De iuris interpretibus dialogi sex, a fierce defence of the Bartolist methods against the French humanist school. His argument was based on practical considerations. The purpose of teaching civil law is to prepare students for practice in modern society. Where, he asked, did the humanist professors expect their students to go after their studies, to Plato’s Republic or to Utopia? (Dialogus, iv.)

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Source: Stein P.. Roman Law in European History. Cambridge University Press,2004. — 149 p.. 2004

THE BARTOLIST REACTION

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