by Klaus Luig
1. Goals and foundations
The term humanism refers to an intellectual movement which began in 14th-century Italy and persisted until the early 17th century and opposed mediaeval scholasticism, seeking to perfect true humanity through the study of classical antiquity. According to its ideals, each person should strive to become a mature, self-determining and morally responsible member of society. This goal was to be pursued by the study of antiquity, drawing on the example of classical culture including, of course, legal culture. It concerned ‘humanity’ (humanitas), human virtues and the good, responsible life in private and public. Within the general humanist project of renewing the classical vision of humanity, humanistic jurisprudence aimed to develop the example of classical law for the needs of the present day. Discussion of the concept of aequitas was characteristic of humanist jurists. The large body of texts criticizing torture can be regarded as an example of humanistic innovation in law. Humanism may also be considered as part of the great movement ‘from status to contract’, described by Henry Sumner Maine, and the beginning of the ‘capitalist age’, considered by Werner Sombart to have originated at the beginning of the 16th century. The detailed implications for society and the law have yet to be researched comprehensively.
The proponents of humanism were self-conscious pioneers of a new age in which the classical tradition would blossom once again, and this attitude was fundamental to their project. Legal humanism was part of this broader intellectual effort to overcome the religious and social crises of the late Middle Ages through new and reliable principles. Therefore humanism opposed the theologically driven scholastic jurisprudence of the ‘clerical’ Middle Ages and enjoyed a symbiotic relationship with Protestantism, the Reformation, Gallicanism (independence of the national church in France), and Calvinism. Finally, recourse to pagan antiquity implied conscious secularization.
The renewed study of the great works of classical culture, in particular of classical literature, generally referred to as the Renaissance, provided humanists with the means to obtain these goals. Achievements in literature, art and philosophy which had been lost due to the collapse of the Roman Empire were revived in pursuit of humanism’s goals. Thus the term humanism refers primarily to the aim of the movement, namely the dissemination of a new vision of humanity, whereas the term Renaissance refers to the means and methods by which this renewal was sought. For this reason, reference is sometimes made to the ‘humanism of the Renaissance’ or even to ‘Renaissance-humanism’ as a unitary concept.
According to the humanist view of history, the civilization which emerged after the barbarian incursions and migration was much inferior to the magnificent accomplishments of the Roman Empire; however, since around the middle of the 14th century it had begun to flower again through recourse to ancient Rome and the development of a culture focused on the values of classical antiquity.
2. Humanist jurisprudence
a) Tendencies of development
Just as the general humanist project involved an attempt to reinvigorate the classical vision of humanity, humanist jurists sought to make use of the example set by classical law for their own day. Admittedly, humanism did not have a major influence on law until the 16th century; however, the criticism of mediaeval scholarship and the emphasis placed on classical examples in the study of the liberal arts by Italians such as Francesco Petrarca (1304–74), Coluccio Salutati (1331–1406) and Maffeo Veggio (1406–58) may be regarded as paving the way. The same may be said of the exposure of the Donation of Constantine as a forgery by Lorenzo Valla (1405–57). Angelo Poliziano (1454–94) was the first to study the Florentine manuscript of the Digest (Corpus Juris Civilis) and to compare it with the then standard vulgata manuscript. Poliziano’s efforts were finally brought to fruition in Lelio Torelli’s (1498–1576) edition of the Digest in 1553. The crowning achievement of humanist editorial efforts was the complete edition of the Corpus Juris Civilis published by Dionysius Gothofredus (1549–1622) in 1583. It remained indispensable in both practice and scholarship for centuries.
The decisive impetus for reform of legal scholarship and education along humanist lines came from Andrea Alciato (1492–1550), Guillaume Budé (1467–1540) and Ulrich Zasius (1461–1535), called the ‘Triumvirate’ by their contemporaries. Initially, the centre of these efforts was the University of Bourges, founded in 1464, where Alciato and Budé taught.
Less important were the northern Italian universities, which had been so important for the beginnings of historical legal scholarship but remained true to the traditional methods. Alberico Gentili (1552–1608) and Giulio Pace (1550–1635) must be mentioned as Italian humanists, although they taught outside Italy. Initially, Germany was only represented in this movement by the Freiburg town clerk and professor of law, Zasius. There was an intensive discussion about the opposition between the mediaeval method characterized as the mos italicus and the new style of teaching and scholarship called the mos gallicus. Johannes Apel (1486–1536), Johannes Sichard (1499–1552), Gregor Haloander (1501–31) and Johannes Fichard (1512–81) should also be mentioned. There was general agreement about the goal of legal scholarship: the use of classical texts whose authority was undisputed, the return ad fontes following the example of theology.
Besides Alciato and Budé (who became the leading figure after Alciato), France produced other important humanists, for instance, Eguinaire Baron (1495–1550), François Le Douaren (Duarenus, 1509–59), Jean Coras (Corasius, 1513–72), Antoine Le Conte (Contius, 1517–86), François Baudouin (Balduinus, 1520–73) and most significantly, Jacques Cujas (Cuiacius, 1522–90) and Hugo Donellus (1527–91).
For the majority of jurists, including those of a humanist persuasion, Roman law as recorded in the Corpus Juris Civilis remained the centre of their attention. It was the ‘positive’ law of Germany, whereas in France it merely possessed authority as ratio. Legal education continued to proceed in the individual mnemonic steps formulated by Gribaldus Mopha in 1541 and then commonly followed: Praemitto, scindo, summo, casumque figuro, perlego, do causas, connoto et obiicio (I define the terms, distinguish, summarize, set out the details of the case, read the case out formally, refer to parallel texts and raise any objections). The major significance of the communis opinio persisted. Humanist jurists, particularly those in France, also dedicated themselves to the study of indigenous legal sources.
b) Main criticisms of the law
The humanists’ most important criticisms of mediaeval learning and scholarship focused on the blind trust placed in the authority of the communis opinio, which often had little regard for what the source texts actually meant, and on the prolix nature of the discussion of various doctrines and controversies which the communis opinio’s dominance entailed. Allied to these objections, there was criticism of the unmanageable body of consilia (Zasius).
Further criticisms were related to the use of flawed manuscripts containing corrupted texts and the failure to consider many of the relevant texts, and even whole statutes, particularly those drafted in Greek. The humanists also censured lack of linguistic refinement, use of ‘barbaric’ Latin and deficient historical understanding on the part of the mediaeval jurists, particularly the commentators, who were responsible for many unnecessary attempts to harmonize texts whose differences were explicable because they were not contemporaneous.
The role of humanistic legal scholarship emerged from this critique.
c) Focus of inquiry: legal sources
The first task facing humanism was production of reliable Roman law texts, in particular a reliable edition of the Corpus Juris Civilis, which were as close as possible to the originals through textual criticism and correction with the help of manuscript ‘genealogies’. Following the example of the Reformation, they strove for ‘pure’ texts.
The discovery and correction of erroneous readings was carried out with the help of all relevant sources, including the non-legal ones.
The next step was the reconstruction (palingenesis) of the works of the great jurists from the classical period of Roman law, excerpts from which had been gathered together to form the Digest. This allowed the reconstruction of the classical Roman law of the first and second centuries AD. This reconstruction reflected a wider concern with proper historical understanding of the sources. In addition, palingenetic research was motivated by the conviction that Justinian no longer had authority as a legislator and that therefore the prestige of Roman law derived from the exemplary quality of the classical texts. On the whole, however, the authority of the Justinianic Corpus Juris remained unaffected.
These efforts were supplemented by a broadening of the textual basis for legal scholarship through the study of those parts of the Corpus Juris Civilis which were written in Greek, as well as the other Byzantine legal texts. Further, attention was paid to all classical authors who offered some insight into the law of the time, particularly Marcus Tullius Cicero, but also to other authors of non-legal literature whose works helped to develop historical understanding.
The recognition that the validity of Justinian’s Corpus Juris depended on history rather than on a legislative act led to a reduced role for the Corpus Juris and opened the way for other sources of law. As a result, editions of native, national sources played a major role in the return to the traditions of national history. The trigger for this, as regards Germany, was Germania by Cornelius Tacitus. Beyond this system of written sources, aequitas (equity) continued to play a role as a source of law.
In this period other ancient legal texts such as the Twelve Tables and the Codex Theodosianus became objects of study. Interest in criminal and constitutional law also grew. In all this, the humanists also pursued political goals particularly in Germany, aiming to strengthen the position of the territorial principalities.
The work on the texts was accompanied by the task of improving the methods for interpreting them. This required a better grasp of Latin, encyclopaedic knowledge and historical understanding. However, the humanists did not aim to revert to history and the (‘antiquarian’) aesthetic cult of literary ideals. Rather they sought to bring substantive law into line with the requirements of the new, humanist vision of humanity. Put more briefly, they sought to improve substantive law. In this endeavour, humanist jurists engaged in thorough philological and historical study in addition to their doctrinal exploitation of the Roman sources. In this area, the greatest credit is due to Cujas.
The new materials on legal norms forced the jurists to consider how the body of legal materials should be organized, ie in accordance with systemic considerations. Initially, attention in this regard was directed towards discerning the original and thus ideal order of the material in the sources. This is another area where the work of Cujas is particularly important. However, the drafts for new systematic structures which did not draw on the systems discernible from the sources proved more influential in the long term. Franciscus Connanus (1508–51), Franciscus Duarenus and, most significantly, Hugo Donellus deserve credit in this regard. Donellus gave an account of the whole law, organized systematically according to logical categories and the principles of the law of nature (natural law) and nations. The systematization which began with Connanus was discussed across Europe for didactic purposes under the heading methodus. Justinian’s Institutes played a particularly significant role in this system. This new order served, in the first place, to make it much easier to learn the law. It remains controversial whether and to what extent this systematization of the law had an effect on its content.
Pursuit of the aims of humanism also required a reform of legal education, which was the subject of intensive discussion although very little was achieved.
The humanistic programme of reform was implemented in several forms of literature which had been almost unknown in the Middle Ages. Hans-Erich Troje developed a typology of these forms, albeit with some overlaps: editions, adnotationes and observationes for textual criticism, doctrinal monographs, writings on the ratio studendi (method of study), rhetoric, discussion of the proper structure for the law and detailed systems as well as commentaries and reference books.
The choices regarding the methods for interpretation on the second level of the humanistic endeavour varied from author to author, and different writers attached different degrees of importance to tools such as the detection of the historical origins of the fragment to be interpreted, the reconstruction of its original context (palingenesis), investigation of the circumstances in which the text was incorporated in the Corpus Juris Civilis (interpolation criticism), but also the explication of general principles or the formation of a system and incorporation of the results into that system.
Unlike natural law proponents in the later era of the Enlightenment, the humanists did not attempt to derive legal principles solely by reference to the independent reason which they attributed to humans, although the relationship between positive law and a higher natural law was certainly considered. The emphasis on the principles and the systematic analysis of the materials together with a recognition of the relationship between philosophy and legal scholarship were, however, apt to loosen the grip of the ancient sources. This was the starting point for the transition to the complete systems of substantive natural law.
3. Influence on private law scholarship
According to Helmut Coing, the direct influence of humanism on the private law scholarship of the ius commune was ‘not cataclysmic’. Coing believed that modern research had tended to overstate the substantive importance of humanism. Essentially, he suggested that the only significant effect was an increase in the importance of the national laws. It would be worthwhile, however, to re-examine the substantive influence of humanist legal scholarship on private law doctrine.
The persecution of the Huguenots, which began in 1573, hindered the establishment of a lasting humanistic tradition in French law. The successor to humanism was the so-called Elegant School in the Netherlands.
Domenico Maffei, Gli inizi dell’ umanesimo giuridico (1964); Hans-Erich Troje, ‘Die Literatur des gemeinen Rechts unter dem Einfluss des Humanismus’ in Helmut Coing (ed), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol II/1 (1977) 615; Helmut Coing, Europäisches Privatrecht, vol I (1985) 68 ff; Klaus Luig, ‘Humanismus und Privatrecht’ in Festschrift Gunter Wesener (1992) 285; Klaus Luig, ‘Staat und Recht in den Emblemen von Andrea Alciato (1492–1550)’ in Festschrift Bernhard Großfeld (1999) 727; Jan Schröder, Recht als Wissenschaft—Geschichte der juristischen Methode vom Humanismus bis zur historischen Schule (2001); Italo Birocchi, Alla ricerca dell’ordine. Fonti e cultura giuridica nell’età moderna (2002) 1 ff; Govart CJJ van den Bergh, Die holländische elegante Schule (2002); Aldo Mazzacane, ‘Humanism’ in Stanley N Katz, The Oxford International Encyclopedia of Legal History, vol 3 (2009) 188–193.