DOUGLAS OSLER

Legal Humanism*
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

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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. 2. Legal humanism and legal history1 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
1 D. OSLER, The Myth of European Legal History, in Rechtshistorisches Journal, 16 (1997), pp. 393-410.

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 3

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 Surez de Mendoza (d.1681), and Iosephus Fernndez 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, 4

remains a fundamental desideratum. 3. Printed sources and the philological method2 Traditional scholarship in legal history is based in principle and practice on the conviction that early printed editions are effectively interchangeable. Although its practitioners would doubtless hesitate to formulate the principle quite so nakedly, it is perhaps best captured in the nuances of the English expression "any old edition will do". Thus contemporary works of legal-historical scholarship generally exhibit in their "bibliographies" the list of early editions consulted, a list which inevitably reveals the entirely random concatenation of editions which happened to stand on the shelves of the library most conveniently at the disposition of the individual scholar. Underlying such works lies the unspoken assumption, as erroneous as it is universal, that all editions of printed books are "more or less the same". The difference between the manuscript and the printed book, so the argument runs, is that whereas every manuscript is different, every edition is the same. The invention of printing assured the mass production of identical texts, while each successive edition simply reproduced the text of its predecessor. In reality, however, the invention of printing had precisely the opposite effect. The economics of early printing, when labour was cheap and paper enormously expensive, when conditions of storage were primitive and neither insurance nor copyright sufficiently developed to protect a publishing enterprise, compelled the early publisher to make small printruns of a book for relatively secure, immediate sale. Quite apart from the contingent risks, it was economically unviable to tie up considerable sums of capital in the paper entailed in the storage of a large stock of books in the expectation of future sales. On the other hand, were a book to prove particularly successful, it could, taking advantage of low labour costs, be quickly and cheaply reset in print in another edition. It is for this reason that we find the long succession of editions of the same work which is the hallmark of the early printed book. As an example we may cite the work considered on the conventional view to inaugurate the modern period in legal history, the Annotationes in Pandectas of the French humanist, Gulielmus Budaeus. This great compilation of encyclopedic classical scholarship was published repeatedly by Badius Ascensius at Paris in the years 1508, c.1519, 1521, 1524, 1527, 1530 and 1532. This pattern of printing had a vital effect on the text itself. For it meant that a contemporary author was able to introduce changes into his text every two or three years. The tendency of an author to add, cancel or emend parts of his text over time may well be universal, as indeed is suggested by the autograph manuscripts of authors from medieval times to the present day. The innovation of early printing was to freeze particular moments in this process, so that clearly discernible strata of the text achieved the permanence of print. With early printing, therefore, a new form of text emerges, a text which not only lives and moves, but one which can
D. OSLER, Text and Technology, in Rechtshistorisches Journal, 14 (1995), pp.309331; ID., Developments in the Text of Alciatus' Dispunctiones, in Ius Commune, 19 (1992), pp.219-35; ID., Dies Diem Docet, in Ius Commune, 18 (1991), pp. 207-224.
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transparently be seen to do so. "The text" has given way to a succession of texts, a sequence of recensions, all evidencing alterations introduced by the author himself. In the end, the final version of the text may diverge markedly from the first thoughts of the author, published perhaps decades previously. No better example of this phenomenon can be adduced than the same Annotationes in Pandectas of Budaeus. With the possible exception of that of 1532, each of the editions listed above presents a different text. The final version, which has come to be disseminated most widely (both in the 16th century and most recently through the 1966 anastatic reproduction of the posthumous edition of Budaeus' Opera Omnia), quite apart from evincing editorial intervention not sanctioned by the author, is profoundly transformed from that originally published at Paris in 1508. Scholarship on legal humanism which relies upon the use of a random edition is pre-determined to fall into error. The first principle of serious research on the legal humanists is the construction of an accurate analytical bibliography of the editions of their works. This will pave the way for the necessary collation of the text in the primary editions in order to reveal the changes made by the author in successive editions. 4. Humanist philology and the text of the Digest3 A monograph currently in course of preparation traces the results of humanist philology on the editing of the Digest from the 15th century to the definitive edition of Gothofredus published in 1583. Beginning in Quattrocento Italy with the philological works of Philippus Beroaldus (1453-1505) and Politian (1454-94), it examines the continuation of the "lexicographical" tradition in the Annotationes in Pandectas of Gulielmus Budaeus (1468-1540) published in 1508. At the centre of the study stands Andreas Alciatus (1492-1550), whose philological works influenced a generation of editors of the Digest. It is a different tradition, however, which is represented by the Spanish humanist Antonius Augustinus (1517-86), whose work points forward to the Digest edition of Laelius Taurellus (14891576). The edition of Taurellus, published in 1553 after a decade of preparation, is one of the great achievements of humanist philology, anticipating to a remarkable degree the modern edition of Mommsen. The edition of Taurellus, shorn of its philological sophistication to make a more readily useable text, forms the basis of the text of Dionysius Gothofredus (1549-1622), which was first published in 1583 and thereafter remained definitive for three centuries. The history of the Digest text in the Renaissance thus represents not only the essential background to the philological work of the succeeding Spanish and Dutch schools of the 17th and 18th centuries, but is in itself one of the most remarkable stories of the printed textual tradition of any ancient Latin text.
D. OSLER, Magnae Jurisprudentiae Injuria: Cornelius van Bynkershoek on early legal humanist philology, in Ius Commune, 19 (1992), pp. 61-79; ID., Vestigia Doctorum Virorum. Tracking the Legal Humanists' Manuscripts, in Subseciva Groningana, 5 (1992), pp. 77-94; ID., Filippo Beroaldo e l'umanesimo giuridico, in Sapere e/ potere. Discipline, Dispute e Professioni nell'Universit Medievale e Moderna. Il caso bolognese a confronto, Bologna 1990, vol. I, pp.233-41; Id., Budaeus and Roman Law, in Ius Commune, 13 (1985), pp. 195-212.
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