Legal humanists

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The legal humanists were a group of scholars of

. Thus, they described the work of the glossators and commentators as a malignant cancer on the text. They particularly disliked the commentators because in their attempt to apply law in practice, they had moved further and further away from the texts.

Overview

This was the time of the Renaissance in Europe, where people sought a new birth of society. They believed this would come through a return to the eternal principles underlying classical society. The religious reformers sought a return to the pure Word. In law, the humanists were a parallel movement, seeking a return to classical Roman law. This involved purifying the texts. The humanists had great confidence in the mind and so originally this was done through a conjectural knowledge of antiquity. However, Cujaccius recognized the importance of studying the best and most original text, and thus used the Florentine manuscript. This enabled a better study of the interpolations of the text. However, as more and more interpolations were revealed, the quasi-Biblical status of the texts was undermined, which undermined the work of the humanists.

Since the Renaissance humanists were primarily concerned with a return to classical society, they were not solely interested in the law, but instead in the historical context. Some humanists placed little emphasis on the law except in respect to what it revealed about the Roman society, for example, Alicus. Pure law was thus given a monumental status. However, this resulted in a move away from practical application of the text. It was recognized that Roman law was the product of Roman society. This undermined the humanist movement as at the same time as arguing that Roman law was perfect for today's society, they revealed it was a product of Roman society. The logical conclusion of this was that French law should be a product of French society. The humanists, for example, Donellus, presumed that Roman law was rational and so tried to find an underlying rational structure. They distinguished sharply between questions of procedure (the means of obtaining an answer) and questions of substantive law (what is due).

Impact

The humanists had little impact on the immediate practice of law. Court advocates and notaries remained faithful to the commentaries because the work of the commentators had been better circulated. Since they already knew the works of the commentators, they had a vested interest in ensuring that they remained the basis of the court system. Consequently, there were fierce rebuttals, such as that of Scipione Gentili. Humanism was largely irrelevant since it was based around the discovery of pure Roman law, and pure Roman law was only appropriate for Roman society.

In the long term, however, humanism did significantly influence legal science. The principle of using the best available text was established and the quasi-biblical authority of the texts was undermined, resulting in the rise of legal science. The systematisation of the texts was both aided and encouraged, giving rise to the Pandectist school. The logical skills of the humanists in their search for interpolations meant that lawyers had skills that were useful for society as a whole. They were thus the natural mediator in Italy when there was no emperor (and they had Imperial authority), they created a comprehensive system of law. When in French the church and crown were opposed, the humanists were able to help the king gain control with their use of logic.

A disputed impact of the humanists was on the law of contract. The Gordley thesis does not consider their work at all, and opponents to this thesis have argued that they were crucial to the development of modern

. The humanists and commentators had reached the point where they acknowledged a large number of ways that agreement could be “clothed” in order to give rise to legal action, however, they still maintained that these were exceptions to the general rule that an agreement could not give rise to an action on its own. However, it was only a small step from this to the recognition that generally an agreement would give an action, but there were a few exceptions. That the transition was not made by the commentators is thought to be because of their adherence to the texts. This was undermined by the humanists. Thus, we might expect that the humanists would have brought the change that Gordley credits to the Spanish NeoScholastics. However, there is no evidence that this took place, perhaps because the humanists despised the work of the commentators to such an extent that they were unwilling to effectively build on the foundations laid down by the commentators in this area.

Most of the humanists were Protestants and so died or fled after the St. Bartholomew's Day massacre of Protestants in 1573. However, the direct link that Donellus fled to Leiden (via Germany) and started the Dutch Elegant School, has been questioned by Osler, who points out that the French Humanist school continued after the massacre and that the Dutch Elegant School did not really take off until Noodt at the end of the 17th century.^[1]

References

Literature

• Montheit, Michael L. (January 1997). "Guillaume Budé, Andrea Alciato, Pierre de l'Estoile, Renaissance Interpreters of Roman Law". Journal of the History of Ideas. 58 (1). University of Pennsylvania Press: 21–40.
  JSTOR 3653986
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• Kelley, Donald R. (1970). "The Rise of Legal History in the Renaissance". History and Theory. 9 (2). Blackwell: 174–194.
  JSTOR 2504125
  .