2. Legal humanism and legal history
The first major stumbling block to be surmounted is constituted by the very definition of the parameters of the subject. The study of legal humanism has been undertaken as a branch of legal history. European legal history, as it is studied and taught at universities all over the world, is conceived as the story of a succession of schools of legal scholars. These schools are presented as operating in distinct periods in distinct European centres. The story begins in Italy, in the Middle Ages, which are synonymous with the schools of the Bolognese Glossators of the 12th-13th centuries and the post-Glossators or Commentators of the 14th-15th centuries. In the 16th century a new era in legal history begins, the era of legal humanism. The new humanist method was inititiated by Andreas Alciatus (1492-1550), who carried it from Italy to France. Between the years 1529 and 1533 Alciatus taught at Bourges, the university which was to become the great citadel of legal humanism. Hence the humanist method was to be named the French method or mos gallicus, as opposed to the mos italicus, for in Italy in the 16th century the medieval method of Bartolus and Baldus was to remain dominant. Legal humanism was thus a Northern affair, always tainted with Protestantism; clear analogies could be drawn between the Protestant rejection of the authoritative character of the Latin Vulgate of the Bible and the humanist challenge to the traditional text of the Corpus Iuris. Both used critical, historical and philological methods, including a knowledge of Greek. For that reason the massacre of St. Bartholomew's Night in 1572 sounded the death-knell of legal humanism in France. A Protestant or crypto-Protestant subject had necessarily to flee to a Protestant country. Donellus fled to Germany, before settling at the newly founded University of Leiden. It was the Netherlands, and Leiden in particular, that witnessed the flourishing of the Dutch Elegant School, the successors of the French in the practice of the jurisprudentia elegantior, which in turn paved the way for the German Historical School of the 19th century.
This in outline is the traditional story of European legal history as it crystallised in the 19th century. In the modern period, then, from 1500 onwards, legal humanism lies at the very heart of a story which effectively recounts a translatio studii of the jurisprudentia elegantior from Italy to France to the Netherlands to Germany. Paradoxically, however, this apparent elevation of legal humanism has been as deleterious to the study of legal humanism as it has been to that of legal history in general. The superficiality of the outline emerges if we subject it to elementary chronological scrutiny.
First, the French school flourished a generation after Alciatus' departure from Bourges, and the connection thus requires closer scrutiny. Secondly, legal humanism clearly did not come to an abrupt end in France with St. Bartholomew in 1572. The greatest of the French humanists, Iacobus Cuiacius, continued to produce work after work until his death in 1590. Brissonius was not executed until 1591, after, for example, the publication of the 858 folio pages of his De formulis et sollemnibus populi Romani verbis in 1583. Even more telling is the continuation of important work on legal humanism in France well into the 17th century. It was in 1606 that Carolus Labbaeus published at Paris his collection of Byzantine novellae and lexica, with his annotations on the Synopsis Basilicorum. In 1610, Franciscus Raguellus, professor at Bourges, published his commentary on the constitutions of Justinian as they could be isolated from the Codex, a typically humanist approach to the source. Emundus Merillius, also professor at Bourges ("the Cuiacius of the 17th century"), lived between 1579 and 1647, and issued his eight books of humanist Observationes at Paris in the years 1618, 1626 and 1638. And it was between 1641 amd 1647 that Carolus Fabrot published the seven volumes of the first Greek edition of the principle Byzantine legal code, the Basilica; and in 1658 that he procured a new edition of the Opera Omnia of Cuiacius. In other words, as regards the humanist tradition, the picture is one of continuity in France, proceeding into the middle of the 17th century.
If we turn our attention to the Dutch Elegant School, the most striking feature, first of all, is the confusion which surrounds the very definition of the School. This is not evident in the traditional story, where we will read of the Dutch Elegant School in which flourished a galaxy of jurists of European fame, such as Grotius, Bynkershoek, Vinnius, Voet, Noodt, Huber, Schultingh, Brenkman. This blurred picture, however, will not stand up to closer scrutiny. The Dutch Elegant School, that is to say, the group of exponents of the jurisprudentia elegantior or legal humanism, was supposed to have been founded in Leiden by the legal humanist Donellus in 1579. But it is not legal humanism which flourished at Leiden in the century following Donellus. The age of Dutch legal humanism begins with Gerard Noodt towards the end of the 17th century and flourishes in the Netherlands in the first half of the 18th century.
But the weakest point in the traditional image is revealed if we consider where the greatest legal humanist scholars were active in the middle of the 17th century. And the answer, by a supreme irony, is in the heart of southern, Catholic Europe, at the University of Salamanca. From the numerous Spanish legal humanists active at Salamanca in the middle of the 17th century it must suffice to cite its three leading exponents: Franciscus Ramos del Manzano (1604-83), Ioannes SuÃ¡rez de Mendoza (d.1681), and Iosephus FernÃ¡ndez de Retes (1620-78). The Spanish origin of their works is clear from their citation of other Spanish scholars, but the rest is all familiar territory: the citation of Latin and Greek authors, of Byzantine legal compilations, of pre-Justinianic sources, of manuscript readings, of textual conjectures, of epigraphical evidence, of the inscriptions of the Digest fragments, of Tribonian's interpolations, and of the whole panoply of preceding legal humanist scholarship from Alciatus up to and including Merillius. In short, this is legal humanism in its purest form; thus in Salamanca we find, a half century in anticipation, the entire spectrum of legal humanist scholarship ascribed by traditional legal history to the Dutch Elegant School. Indeed, it was a leading member of the latter school, Gerard Meerman, who recognised the importance of the Spanish school and gathered their writings in his monumental Novus thesaurus juris civilis et canonici published at The Hague in 1751-53, a work which will be found in every major research library. It is the subtitle, however, which tells the story, for it continues: continens varia et rarissima optimorum interpretum, inprimis Hispanorum et Gallorum, opera.
Thus the traditional outline of European legal history, which appears at first sight to promote legal humanism to centre stage, is revealed on closer inspection to be seriously defective. It confines the French school to the 16th century although it flourished up to the middle of the 17th century; it completely ignores the second great school of legal humanism, the school of Salamanca; it misdates the Dutch Elegant School by a century; and it leaves out of account the important contributions from time to time of individual Portuguese, Scottish, German and Italian scholars. A global, pan-European survey of the sources of legal humanism, from the 15th to 18th centuries, remains a fundamental desideratum.
See: The Myth of European Legal History.
Rechtshistorisches Journal 16 (1997) pp.393-410