Zuständiger Wissenschaftler

Dr. Douglas J. Osler
Douglas J. Osler
Wissenschaftler
Telefon: +49 (69) 789 78 - 153
Fax: +49 (69) 789 78 - 169

Vernetzung im Forschungsprofil

Forschungsprojekt | Abteilung I

Juristischer Humanismus

1. The meaning of legal humanism

To the non-specialist, the term "legal humanism" is open to misinterpretation. The general term "humanism" has two distinct meanings. In its modern usage humanism refers vaguely to a philosophy which lays emphasis on the material welfare of mankind in this world, and is thus often contrasted to the religious outlook. In its second meaning humanism refers specifically to the study of antiquity in the period of the Renaissance. Legal humanism is used exclusively in the latter context and refers to a particular direction in the study of Roman law.

The first manifestations of legal humanism can be detected in 15th century Italy, but it is not until the second half of the 16th century that the first major school is active in France. In other words, legal humanism flourishes some two centuries after the beginnings of humanism in Italy in the persons of Petrarch and Boccaccio. To compound this general disorientation in historical periodisation, the two most famous names in medieval jurisprudence, Bartolus de Saxoferrato (1314-57) and his pupil Baldus de Ubaldis (1327-1400) were contemporaries of Petrarch and Boccaccio. Thus while Europe had entered the Early Renaissance in its art and literature, its jurisprudence was at the zenith of the Middle Ages.

It is important to distinguish between the renaissance of Roman law and Roman law in the Renaissance, which have entirely different connotations. The former refers to the medieval rediscovery of the basic sources of Roman law and their study and teaching at the University of Bologna in the 11th-12th centuries. Certainly, some further sources of Roman law were discovered in the 16th century, but the master source, the Corpus Iuris Civilis of Justinian, had by then been in active use for half a millennium. The Renaissance "discovery" of classical antiquity in the legal sphere thus primarily lay not in the bringing to light of new physical remains, as manuscripts of lost literary works or long-buried sculptures, but in a new orientation in the treatment of legal texts which had been known for centuries.

In 1755 the German scholar Ioannes Fridericus Jugler captured the essence of legal humanism in the following definition: "Legal humanism is the study of Roman law in close conjunction with philosophy, antiquities, the Greek and Latin languages, the art of textual criticism, Roman history and literature". (He does not use the expression legal humanism, but rather the Latin synonym used in previous centuries, jurisprudentia elegantior.) Legal humanism thus signifies the investigation of Roman law, using philological and historical methods, as part of the historical study of antiquity, and may be contrasted with the pragmatic, unhistorical application of Roman law to the conditions of contemporary Europe.

In the 16th century the legal humanists developed a series of sophisticated techniques for the historical reconstruction of classical Roman jurisprudence. The major source handed down from antiquity, the Corpus Iuris, was compiled by order of the Emperor Justinian in the 6th century A.D. It is a patchwork of juristic writings and enactments from the classical period of Roman law, the 1st to 3rd centuries A.D., altered and rearranged to fit contemporary 6th century conditions. This the humanists sought to "deconstuct" in an effort to retrieve the original sources. Through textual criticism the humanists sought both to cleanse the text of scribal errors and also to retrieve those elements which had been omitted in the Middle Ages as of no interest. In particular, through the restoration of the "inscriptions" of the Digest fragments (which identified the works from which they were derived), the humanists were able to reconstruct the works of the classical jurists. Through historical and linguistic analysis they sought to detect the "interpolations" of Tribonian, the changes silently introduced into the classical texts by Justinian's compilers to bring the law up to date. It was the humanists, too, who first brought to light some of the classical juristic texts which have been transmitted to us outside the Corpus Iuris. They began also the discovery and editing of Byzantine legal sources, the legal tradition carried on in the Greek-speaking Eastern Empire until the fall of Constantinople in 1453.

The unparalleled achievements of the legal humanists in the historical study of Roman law have led some scholars to detect the beginnings of modern, critical, historical scholarship in their work. And yet, paradoxically, the works of the legal humanists have not received commensurate modern scholarly attention. The reasons for this are twofold and operate at both the macro and the micro level. The first is the inadequacy of the received definition of legal humanism, which has limited the breadth of the enquiry. The second is a failure of methodology, which has not taken account of the importance of a rigorously historical and philological approach to the printed sources in which the legal humanists published the results of their researches. The first necessary condition for the remedying of both these defects is a reliable bibliography of the works of the humanists; this was the original motivation behind the series of bibliographical censuses of legal writings printed up to 1800 currently being pursued as a project of the Institute.

 
loading content