The Humanist Movement

As previously observed, the Renaissance and the Reformation brought about a broader appreciation of intellectual and cultural accomplishments and an emancipation of human reason from the fetters of traditional faith and dogma.

This new outlook and new spirit fostered impatience with the narrow pedantry of the old schools of law. The established doctrine of communis opinio doctorum, in its extreme form, hampered the logical development of principles and resolved legal problems by marshalling the opinions of legal scholars on the point at issue and then counting heads. Thus, during this period, the law schools of Italy, which until then had been famous throughout Europe, came to be regarded as the homes of an outworn theory (referred to as mos Italicus). The influence of the Renaissance produced a new school of jurists, the Humanists, who brought to legal writing the spirit of the revival of letters.

As has been noted, the rise of the School of the Commentators in the fourteenth century prompted a shift in scholarly attention from the dialectical examination of Justinian’s texts to the consideration of the adaptability of Roman law to the needs and conditions of medieval life. The Commentators were primarily interested in developing contemporary law and so they tended to disregard the historical framework and the primary sources of Roman law. From the fifteenth century, the increased interest in the cultural inheritance of classical antiquity cultivated the development of a new approach to the study of Roman law. Scholarly attention now turned to the consideration of Roman law as a historical phenomenon and special emphasis was placed on the importance of the techniques of history and philology for its proper understanding and interpretation.

The methods used by the Commentators in the study of Justinian’s texts had led to the formulation of theories that the Humanists perceived as utterly unwarranted when the texts were studied in their proper historical context; therefore, such theories had to be rejected in favour of interpretations based upon the true historical sense of the texts.^{^[784]} The chief aim of the Humanist scholars was thus the rediscovery of Roman law existing in Roman times through the application of the historical method instead of the scholastic method engaged by the medieval Commentators. They thus endeavoured to read the texts of the Corpus Iuris Civilis against their historical background, relating them to information provided by non-legal sources from antiquity. A considerable part of the Humanists’ work was concerned with the detection of the interpolations in the Justinianic codification as an important step towards uncovering the true character of classical Roman law. An important innovation was that, unlike the medieval jurists, the Humanists were able to read Greek texts, which enabled them to use Byzantine legal sources, such as the Basilica, to reconstruct the texts of Justinian.^{^[785]} The Humanists also endeavoured to achieve a more systematic treatment of the contents of Justinian’s Corpus. The medieval summae and other works had introduced systematic treatment for one work at a time, but it was now attempted to present the entire Corpus Iuris Civilis as one systematic whole.

The Institutes furnished an important model, since this was the only part of Justinian’s codification that contained a real system.^{^[786]}

The new school of thought was created in France by the Italian jurist Andreas Alciatus (1492-1550),^{^[787]} but its effects permeated throughout Europe. The leading representatives of this school included Jacques Cujas (Cuiacius, 1522-1590)^{^[788]}; Hugues Doneau (Donellus, 1527-1591)^{^[789]}; Guillaume Bude (Budaeus, 14671540)^{^[790]}; Ulrich Zasius (1461-1535)^{^[791]}; Antoine Favre (Faber, 1557-1624)^{^[792]}; Charles Annibal Fabrot (Fabrotus, 1580-1659)^{^[793]}; and Jacques Godefroy (Godofredus, 1587-1652).^{^[794]} The method adopted by the Humanist scholars in France for the study of Roman law became known as mos gallicus (in contradistinction with the mos Italicus of the Bolognese jurists) or Elegante Jurisprudenz.

From the late seventeenth to the mid-eighteenth century Legal Humanism also flourished in the Netherlands, where it engendered a highly advanced approach to the study of Roman legal sources, referred to as the Dutch Elegant School.^{^[795]}

In general, the Humanist movement did not exert much influence on the practice of law as the courts in France and elsewhere remained faithful to the Bartolist tradition.^{^[796]} This largely derived from the fact that most Humanists were concerned chiefly with the historical analysis of Roman law and paid little attention to problems relating to the practical application of the law or the need to adapt Roman law to contemporary conditions. At the same time, however, the Humanists’ approach to Roman law as a historical phenomenon helped jurists to appreciate the differences between Roman law and the law of their own times. By illuminating the historical and cultural circumstances in which law develops, they prepared the ground for the eventual displacement of the ius commune and the emergence of national systems of law.^{^[797]}

7.9

<< | >>

↑

Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The Humanist Movement

More on the topic The Humanist Movement: