Edward Peters
The interests, activity, and influence of Latin philologists, students of rhetoric and Roman history, and teachers and practitioners of law in regard to learned law between the fourteenth and the seventeenth centuries have generally been considered under the broad label of “legal humanism.” Yet the nature of humanist interest—and the interests of individual humanists—in learned law was hardly uniform or unchanging from, say, Petrarch to the Dutch Elegant School. One of the dangers of such terms as “legal humanism” is that they imply a systematic consistency over time that surely did not exist. Another is that they also and always tacitly imply an equally unchanging “scholasticism” of which learned law was a component and an implacable opposition between the two. The problem is further compounded by the use of such terms as “renaissance” and “humanism” apropos periods much earlier than the fifteenth and sixteenth centuries, some of which impute a very different character to “humanism” than is conventionally understood. Both problems bear on the teaching, practice, and general public perception of legal learning from the fourteenth to the eighteenth centuries.
Upon the tomb of the great jurist Cino (c. 1270–1336/7) in the cathedral of Pistoia, the sculptor Cellino di Nese executed a relief that depicts the magister instructing a group of his law students. Included among the figures of the students, so legend has it, was that of the young Francesco Petrarca, who had indeed studied law at Montpellier between 1316 and 1320 and at Bologna from 1320 to 1323 (although quite possibly in neither place with Cino). If one of the figures is indeed supposed to be Petrarca (one should certainly be Bartolus), the inclusion is ironic, for Petrarca terminated his legal studies as soon as his father died, as did Boccaccio after him, although at a much more advanced stage of study—hence the several later references to Dominus Johannes Boccaccius.2
Petrarca had evidently received some sharp criticism for his decision from Johannes Andreae, since one of his early letters takes considerable pains both to avoid further irritating the great jurist and to explain that it was his preference for a life of solitude rather than that of the marketplace that led to his decision: et quod Bononiam vidi et quod non inhesi. He had, he says, discussed the decision with many people and repeatedly with the jurist Oldrado da Lodi, to whom, unfortunately, no letter from Petrarca survives. Later in life, in a letter to his childhood friend Guido da Sette, archbishop of Genoa, Petrarca looked back and praised his student days at both Montpellier and Bologna, the turba scholarium and copia magistrorum in the former, and of Bologna, Meministi plane qui studiosorum conventus, quis ordo, que vigilantia, que maiestas preceptorum: iurisconsultos veteres redivivos crederes! But now both Montpellier and Bologna had fallen on hard times, and so had the teaching and practice of law. Justifying— or rationalizing—his own change of career, Petrarca criticized the jurists of the mid-fourteenth century for having failed to live up to the ethical standards of their classical Roman and later Bolognese predecessors, and he returned to the contrast between law and letters in his Rerum Memorandarum (II.61), where he wrote of the thirteenth-century Paduan jurist and poet Lovato dei Lovati that Lovati would have been the first Latin poet of his age if he had not mixed the sacred muses with the Twelve Tables.3
Nor was Petrarca the first to criticize the incompatibility of the jurists’ profession (as well as the new logic and medicine) and the studia humanitatis, as a glance at the large literature of complaint and satire from the twelfth and thirteenth centuries readily reveals.4 From whatever definition of humanist activity one chooses—the philological, rhetorical, ethical, and historical interests of Petrarca and his successors, or the complaints of the representatives of the earlier studia humanitatis—jurists seem to have failed to satisfy either set of criteria. In some respects, of course, there were exceptions to the literary dimension of these criticisms. Some jurists, including Lovato dei Lovati, did engage in impressive extra-juridical literary enterprises, and some of their successors, including Erasmus’ friend and heir Boniface Amerbach and Alciato in his emblems, engaged in classical studies also independently of their legal study and practice.5 This category included jurists who also had literary interests, like Johannes Andreae, who indexed Valerius Maximus, and Cino (although Cino’s elegant verses were in the vernacular), but also Lucas de Penna and Alberico de Rosiate. This is one definition of “legal humanism” that can be safely left aside in the present discussion. Our concern is with humanists in matters touching the law.
A second look at Petrarch’s observations on the law and the legal profession, however, raises a question that is closer to the center of this topic. As critical of the study of law and the character of lawyers as he was in some of his writings, especially in his letter of 1340 to Marco da Genova and his regrets expressed about Lovato’s unfortunately bifurcated career, Petrarca also turned back to look at his own life and legal study in the Letter to Posterity.6 He observed that both he and others had thought that he would have had a very promising career in the law, and that he left it, not because its auctoritas did not please him, “since it is undoubtedly great and lives with that Roman antiquity which I so admire,” but because the practice of law seemed to him, in a society of dishonest litigants, to require corrupt habits. That is, Petrarca criticized the ethical (and in the case of Lovato, time-consuming and distracting) problems of the practice of law, not the value, learning, Latinity, or teachers of the law. Petrarca also maintained cordial relations with a number of jurists throughout his life, as did other fourteenth-century humanists, Petrarca himself knew Johannes Andreae, Guglielmo da Pastrengo, and Lucas de Penna, and he wrote a sonnet on the death of the great magister Cino. This aspect, too, we may leave aside as a chapter in the history of criticism of the lucrative professions.
Petrarca also respected the law—and respected Lovato’s legal work enough to metonymize it as the Twelve Tables (which it most assuredly was not in late thirteenth-century Padua or anywhere else). It is also worth pointing out what Petrarca did not criticize about the study and practice of the law in Lovato’s case or any other. He said not a word about “Bartolism” and the quality of its Latin, the lack of Greek, the defective historical understanding of jurists, or ante-Justinian law. Some of these issues concerned later humanist critics—Filelfo, Vegio, Traversari, Valla, Poliziano, and Budé—but they did not concern Petrarca. As Mario Ascheri and others have noted, throughout the fourteenth century, at least, there were generally close relations between Latin philologists and jurists in matters both philological and aesthetic. Several recent studies have also suggested that terms like “scholastic” and “humanist” and their accompanying “-isms” often ignored the use of the two different styles, methods, and materials by the same writers on different occasions rather than a permanent opposition or a conflicting epistemological program.7 Not only cordial personal acquaintance between practicing jurists and humanists, but the Latin philological interests of some traditional jurists themselves suggests neither a parting of the ways nor a significant degree of mutual hostility. But for Petrarch, few contemporary jurists were “priests of the law,” possessing a “nobilitas … propter magnam scientiam,” and from his perspective most of them were certainly not yet Alciato’s and Leibniz’s (and Kelley’s) jurisconsulti perfecti.8
Similar caution must be used in discussing those humanists between Petrarca and Alciati who criticized the law of their own day, and used the texts of Roman law in their search for philological or historical material, but were not practicing jurists themselves and usually lacked formal legal training and professional experience. One of the most important developments in scholarship has been the recognition of the dividing line before and after Alciato, Zasius, and Amerbach. The earlier figures constitute what Peter Stein has called the “first phase” of legal humanism:
What did these early legal humanists achieve? Principally they directed attention to the state of the authoritative texts. They tried to supply the Greek words and phrases which were in the Digest and Code but which had been omitted in the medieval versions. They sought to discard all the glosses and commentaries that stood between the reader and the texts—to discover directly the meaning of the texts.9
But they did so without, I suggest, proposing to discard or substantially transform professional legal teaching or practice at all. It may be said that in the first phase of legal humanism the humanists were not interested in the law at all, but in the thesaurus of the Latin language and the history contained in Roman legal texts or discovered behind them. Their occasionally savage criticisms of the historical and philological understanding of practicing jurists fell upon deaf ears, for they were not talking about the practice of the law; indeed, most of them until Zasius and Alciati knew little about it. One is tempted to add—neither had their hero Cicero, in spite of his having had to memorize the Twelve Tables as a boy and practicing as an advocate for many years—Nihil hoc ad ius, ad Ciceronem.
Douglas Osler has made a similar point about the alleged hostility of Guillaume Budé to contemporary juristic practice.10 In a persuasive reexamination of Budé’s attitude toward contemporary lawyers, Osler finds no “anti-Tribonianism,” “anti-Bartolism,” or juristic classicism in Budé’s comments on the jurists of his day. On the contrary, Budé complained that Tribonian was an imperfect collector of laws and what was needed in 1508 was a compiler who could produce a lean body of law out of the excessive number of legal commentaries, in order—echoing Cicero—ius in artem componere. Budé, who was not a jurist, although he is often said to have been one, complained about medieval jurists’ failure to understand the meanings of classical Latin terms, not their skill in the law itself. Osler concludes: “As [Budé] saw it, it was the Corpus Iuris of Justinian, together with the commentaries of Bartolus and Baldus, which must form the basis of a contemporary legal system.” The furious outburst of criticism by Lorenzo Valla appears to have been the exception, not the rule.11
Thus, neither Petrarch nor Budé criticized the necessity, professional learning, or the skill of the jurists of their age, the former criticizing the ethical dangers and the labor of the law, the latter criticizing the vast body of commentary and terminological misinterpretation that must be pruned, even though the pruning must be done in accordance with the texts of the Code and the Digest and the commentaries of Bartolus and Baldus.
Osler’s point concerning Budé has been extended in the work of Hans Erich Troje and Peter Stein already cited. Stein has emphasized that until Alciato (Troje’s eigentliche Begründer) legal humanists focused upon the linguistic features of Justinian’s text and the linguistic and historical inappropriateness of the commentaries and gloss and the antiquarian information contained in the texts. They were not practicing (and not trained) jurists until Zasius, Alciato, Oldendorp, and Amerbach, and even in the cases of these latter, there was little practical headway made or attempted in applying humanist principles to the practice of law—the shaping of the famous mos gallicus, a mos of teaching, not practice. From Alciato on, the humanist impact on the study of Roman law was indeed marked by the eventual undermining of the authority of Justinian/ Tribonian’s texts on historical grounds (thereby, as Kelly has rightly shown, laying the foundations for a new kind of historical theory and practice), by the challenge to the validity or universal authority of Roman law based on its claims to justice, equity, and reason, by the concurrent and eventually triumphant arguments on behalf of the autonomy of national laws, and by movements for the reform of legal education along humanist and other philosophical (including confessional) lines. But, as Stein also emphasizes, these movements made little or no impression on the practice of law: “Thus, the scholar could be a humanist but the practitioner had to be a Bartolist.”12
And with good reason. The last several decades of research on the history of medieval thought and particularly law have revealed, often in considerable detail, the enormous investment of institutional development, professional learning, and practical application that medieval jurists made and the enormous impact on both public power and ideas of order in human affairs that they had. The universities and their masters created professional learning and its methodology and defined professional fields of competence in terms of both substance and method.13 Mario Ascheri has pointed out the extent to which the process of stabilizing the canonical texts of the ius commune and the standard of interpretation in the first half of the fourteenth century committed jurists to an increasing indifference to humanist criticism. The history of proposed textual revisions to the Libri Feudorum is a case in point for Ascheri. He cites a telling remark of Jason del Maino regarding proposed emendations to the received edition of the Libri Feudorum:
To renew the said book would be to confound the gloss of both laws and to impugn the doctors who make allegations of this book according to the form and order which we have; therefore, the schools do not accept these [new editions].14
From that point on, according to Ascheri, the roads of professional jurists and humanists parted ways. The invention of professional fields of study, of course, not only defined the organization of knowledge, but it also entailed the internal determination of appropriate means of access and certification of non-professionals. Professional thinkers and practitioners were products of this new and changing system but can hardly be considered as a uniform group. In economic theory alone, their variety of doctrines and approaches makes any coherent grouping impractical and misleading.15 Brian Tierney’s study of natural rights makes a similar point, emphasizing that for all of its technical and linguistic complexity, traditional legal doctrine proved to be both durable and workable in the new world and new problems of natural and international law in the sixteenth and early seventeenth centuries.16 Little wonder that the older and simpler dichotomy of “scholasticism” versus “humanism” in matters of law and other disciplines now seems reasonably defunct.17 Peter Stein and other scholars in the field generally now regard the humanist impact on the legal profession as taking effect in jurisprudence only at the end of the sixteenth and through the seventeenth and eighteenth centuries in different forms and in a very different intellectual and legal climate from that of the late fifteenth and early sixteenth centuries—a world of legislating princes and proto-national polities.
The arguments of Maffei and others—that the professional jurists lacked both philological skills and historical awareness of anachronism—are perfectly correct, but they do not diminish the centrality of those jurists’ understanding of Roman law for the purposes to which jurists and political authorities knew it had to be put. Justinian’s selection of classical juridical writings (and his or Tribonian’s explicit pruning, emending, and adaptation of Roman legal texts of the classical period to serve sixth-century needs, about which Justinian made no bones), the linguistic complexity of the sixth-century Latin texts of the Corpus, the often elegant and extremely difficult Silver Age Latin of the originals (compared to which, as Richard Kay once remarked, the Latin of Jerome’s Vulgate was child’s play), and the humanist emphasis on the original circumstances in which the laws were written and issued (a humanist anticipation of “original intent”) were hardly relevant to the operational character of learned law, ius commune, whether as an object of study and professional teaching or as the set of legal principles underlying the ius commune of early modern Europe. Neither an earlier new edition of the Digest based on the Florentina, nor a thorough reconstruction of ante-Justinian law would have altered the function of the professional teaching and practice of law—the imposition of the legal reasoning of the ius commune upon the lives, affairs, institutions, and disputes of fifteenth-and sixteenth-century Europeans which covered—for the most part remarkably creatively and satisfactorily—a very different configuration of political and legal territory from that of Justinian and Tribonian.18 Indeed, Troje has pointed to the relatively long delay in the publication of philologically improved complete texts of the Roman legal canon as well as the absence of any authority competent to enforce the use of such texts. Philosophers had long possessed good canonical editions of Plato and Aristotle, and physicians had them of Galen long before jurists had them of Justinian, thanks to Lelio Torelli, Antonio Agustín, and the Littera Gothofrediana of 1583.19 Of course, Erasmus’ edition of the Greek New Testament proved that in some circles canonical editions in other disciplines might encounter rougher going in the sixteenth century.
There were also areas of the law in which any form of humanist influence could make only limited headway. Ingrid Baumgärtner has emphasized that “the Europe-wide reception of Bartolus in the fifteenth and sixteenth centuries was enormous.”20 Humanist polemic need not be read as historical description. And it was in the seventeenth century when the great folio volumes of Bartolus first appeared. One may also cite criminal law and the Inquisitionsprozess as an example, a topic not prominent in either humanist interests or in earlier discussions of our subject (which have traditionally focused on Privatrecht) and were not effectively challenged until Christian Thomasius.21 There is also the quite distinct problem of the conflict of laws, including canon law, which hardly existed in the sixth century but had developed in tandem with civil law by the fourteenth century, if not earlier.22 Peter Landau has persuasively claimed that even the phrase usus modernus cannot be applied to Kanonistik after the Tridentine reforms and the Editio Romana of 1582: “The influences of Humanismus [on Kanonistik] remained only sporadic.”23 Yet another was the problem of the hierarchy of the sciences. Law, the higher scientia, could hardly be corrected by the humanists’ grammatica or rhetorica, the lower—an argument later used (for a while successfully) against the reasoning of Copernicus. Learned lawyers had argued for too long on behalf of their social parity with priests and nobles to share it willingly with or relinquish it to upstart humanist rivals. The extent to which the debate between representatives of the mos italicus and the mos gallicus was a debate between two different and incompatible views or philosophies of jurisprudence beyond the level of invective, polemic, personal hostility, and intra-university competition for teaching positions and status has not yet been finally determined, and a number of new elements have been brought into play. But in the sixteenth century as in the thirteenth, the maxim held: Chi non ha Azo, non vada a palazzo—“If your Azo is short, don’t go to court.” And going to court remained the name of the game.
Finally, the very bedrock of humanist claims to authority, superior philological and textual accuracy, was certainly undermined by many humanist editorial practices that verged on pure conjecture and in one famous instance on a Digest manuscript that did not exist.24 Douglas Osler has pointed out the chief differences between legal treatises written in 1500 and 1600: at the later date, there is a better quality Latin, familiarity with both the Greek language and Byzantine legal sources, the more frequent citation of classical non-juristic legal authors, an awareness of the historicity of the Corpus Iuris Civilis and the interpolations of Tribonian in the Digest, the adoption of the Florentina, and the citation of medieval jurisprudence only with greater restraint, all of which Osler rightly terms “elegant in the non-technical sense.”
Manlio Bellomo’s account of the demise of the ius commune in the late sixteenth and seventeenth centuries lays much of the blame on the humanists, but it would rather seem that it was a case of a number of humanist principles being instrumentalized by thinkers with other agenda. The undermining of the authority of the Corpus Iuris on the grounds of its selectivity, its anachronistic character in respect to earlier Roman law, and the probing initiatives toward the juristic autonomy of different peoples may indeed have ended ultimately by driving Roman law out of the working law of Europe except insofar as it embodied ideal legal principles, jurisprudence, or legal science—but not as it had functioned, a body of living law. One might say that the end result of the movement begun by the humanist critics and taken over by others was the disenfranchisement of Roman law as law throughout Europe and its preservation either as the textual center of legal theoretical science or a textual treasure-trove of philological and other antiquarian pursuits and interests. As Donald Kelley put it, the combination of humanist philology and the humanist sense of history did indeed contribute toward a “modern sense of history,” and perhaps also to a more modern sense of law, but they did so by eviscerating the authority of Justinian’s law in favor of a philological and historical autopsy of Justinian’s texts. But they had little to offer in its place but the iura propria, now grown and legislated into national legal systems, as even England illustrates.25 They opened the way for modern law by denying the authoritative character of the substance of Justinian’s Corpus Iuris, allowing both for the growth of rationalized, usable, and professional collections of local and national laws and the philosophical approach to Roman law principles and history that began with Melancthon and the later practitioners of the mos gallicus and were developed by the natural law theorists and the Dutch Elegant School in the seventeenth century and later by the usus modernus Pandectarum.
When Charles Homer Haskins appropriated the term “renaissance” and applied it to the twelfth century in 1927, could “humanism” be far behind?26 By 1941 both Giuseppe Toffanin and David Knowles had appropriated “humanism,” and in 1970 Richard Southern contributed a new definition to the term in an essay entitled “Medieval Humanism,” describing a distinctive intellectual ethic that he later expanded into the improbable “Scholastic Humanism.”27 As Giustiniani has argued, “If a term like ‘humanism’ has been generally accepted and is widely used to denote an historically and culturally defined subject like the culture of the Italian Quattrocento, there is no point in making out of it an all-purpose word.”28 Perhaps it is time to take in some terminological sail in legal history, too, and rethink the nature and purpose of the debates about legal theory, teaching, and practice between the fifteenth and seventeenth centuries.
A generation before Petrarca’s observation about Lovato dei Lovati, another Tuscan poet made several observations about the law which revealed considerable knowledge and admiration, but no evidence of professional training. Dante Alighieri, like theologians and jurists before him, located natural law in the human heart and in human reason. Corrupted humans, unable to perceive this, must depend upon the embodiment of reason in the emperor, whose laws are ratio scripta. Connected by descent to eternal law, natural law also co-operates with positive law, issued in major matters by the emperor, but in other matters also permissibly by local communities, since these, like the distant Scythians and Garamantes, may best be able to regulate those areas of life that touch them— and only them—particularly. But even in the case of Scythians and Garamantes, these little laws must accord with civil law, just as civil law itself as ratio scripta must accord with divine and eternal law.29 For Dante, not only does the hierarchy of laws perform an essential function for human society, but it also governs and disposes the other arts and sciences:
For … legal justice disposes the sciences for our learning, and in order that they may not be forsaken, commands that they be both learned and taught.
Discord among the laws reflects for Dante the discord in human society, particularly in the face of claims made on behalf of the papacy and of Florentina civilitas for juristic parity with—or superiority to—imperial law.
In Letter VI, of 1311, written to the Florentines, Dante offers a key reason for his theory of imperial law: divine providence has made the emperor the single governor of human affairs, so that men might have peace, “and so that everywhere, as nature demands, men might live civiliter.” This adverb, whose later career as the substantive civilis scientia Donald Kelly has investigated, Dante drew from the most appealing ideals of his own vast culture and his own bitter experience. And Dante’s prescriptions for the restoration of civilitas humana did not long survive their author, at least not in the form in which he cast them as a concerned and learned layman who recognized emphatically a sphere of lay responsibility for them. But from the earliest manifestations of a distinctive lay responsibility for law and social order in the eleventh century, through the new literary and moral injunctions of the fifteenth and sixteenth centuries, the theme of the good of human society, the means and methods of best ordering it, and what benefits such ordering conferred always remained prominent. The jurists of the eleventh through the sixteenth centuries found themselves particularly obliged to recognize this aim, since theirs had a practical as well as a theoretical character. Both litterator and lawyer shared the responsibility for the maintenance of civilitas humana.
Having begun this chapter with a reference to one tomb, I will close it with reference to another, or at least to an epitaph. Upon his death, Alciato was buried in the cathedral of S. Epifanio at Pavia—the city of Valla’s original broadside against Bartolus—where his nephew and heir Francesco Alciato erected a monument, which was removed in the eighteenth century to the university of Pavia. The inscription reads: Qui omnium doctrinarum orbem absolvit. Prima legum studia antiquo restituit decori—He completed the entire cycle of learning and was the first to restore the study of the laws to its ancient dignity. But, more to the point of Petrarca’s dilemma about Lovato, there is also an epigram by Matthaeus Gribaldus Mofa: Consultissimus ornat Alciatus musas, eloquium, sacrasque leges: “The universal Alciatus adorns the muses, eloquence, and the sacred laws.”30 By 1550, at least in the case of Alciato, there was no longer a perceived conflict between the sacred muses and the Twelve Tables, and, at least according to Mofa, it was now the laws, and not only the muses, that were sacred.
1 I am grateful to Richard Kay for his extensive comments on an earlier version of this chapter, delivered at the New College Conference on Medieval and Renaissance Studies, Sarasota, in 1990. A later version was delivered at the annual meeting of the American Society for Legal History in 2000 at Princeton at the invitation of James Gordley under the chairmanship of James Q. Whitman. I am grateful to both scholars and to Donald R. Kelley who commented, as well as to Klaus Luig and members of the audience. I am most grateful of all to James Brundage, to whom it may be said, as Zasius said to Johannes Renner, “Tibi itaque, Jacobe splendidissime, hos labores quodam velut iure dicamus. Quid enim tibi non debeo, qui innumeris prope beneficiis tot iam annos me adfecisti ….”
2 Pier Giorgio Ricci, “Notizie e documenti per la biografia del Boccaccio, 5. Dominus Johannes Boccaccius,” Studi sul Boccaccio, 6 (1971), pp. 1–10. On the significance of jurists’ tombs, Renzo Grandi, “Le tombe dei dottori bolognesi: ideologia e cultura,” Università e Società nei secoli XII–XVI (Pistoia, 1982), pp. 429–446, and Martin Bertram, “Mittelalterliche Gelehrtengräber in Bologna,” Quellen und Forschungen aus italienische Archiven und Bibliotheken, 61 (1985), pp. 427–435.
3 Francesco Petrarca, Le Familiari, ed. Vittorio Rossi (4 vols, Florence, 1968), vol. 4, lib. 16, pp. 13–14. That Petrarca’s decision may have been more specific to particular Bolognese circumstances than he lets on is suggested by James Q. Whitman, “The Lawyers Discover the Fall of Rome,” Law and History Review, 9 (1991), pp. 191–220. Some of that criticism surely stung; twice in the correspondence Petrarca recalls having been called a soldier who has deserted his post. The letter to Guido Sette is in Epistole di Francesco Petrarca, ed. Ugo Dotti (Turin, 1978), Senilium rerum libri X, pp. 708–710. On Johannes Andreae, Stephan Kuttner, “Johannes Andreae and his Novella on the Decretals of Gregory IX” (reprinted in Studies in the History of Medieval Canon Law [Aldershot, 1990], no. XVI). On Lovato, Francesco Petrarca, Rerum Memorandarum libri, ed. G. Billanovich (Florence, 1943), lib. 2, p. 61. See now Ronald G. Witt, “In the Footsteps of the Ancients”: The Origins of Humanism from Lovato to Bruni (Leiden, Boston, MA, and Cologne, 2000), pp. 84–93.
4 Much of the twelfth- and thirteenth-century criticism of the anti-humanism of the medieval lawyers is conveniently summarized and discussed in Alexander Murray, Reason and Society in the Middle Ages (Oxford, 1978), pp. 218–227; Gaines Post, Kimon Giocarinis, and Richard Kay, “The Medieval Heritage of a Humanistic Ideal: Scientia donum Dei est, unde vendi non potest,” Traditio, 11 (1955): pp. 195–234; Stephen C. Ferruolo, The Origins of the University (Stanford, CA, 1985), chapters 4–5; Stephan Kuttner, “Dat Galienus opes, et sanctio Justiniana” (reprinted in The History of Ideas and Doctrines of Canon Law in the Middle Ages [London, 1980], no. X); James A. Brundage, “The Medieval Advocate’s Profession,” Law and History Review, 6 (1988): pp. 439–464; Kuttner, “Teaching Canon Law,” in John Van Engen (ed.), Learning Institutionalized: Teaching in the Medieval University (Notre Dame, IN, 2000), pp. 177–196, at pp. 180–181; Brundage, The Profession and Practice of Medieval Canon Law (Aldershot, 2004), and now the splendid The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, IL, 2008).
5 In excluding the non-professional humanist interests of jurists from the thirteenth to the seventeenth centuries, I suggest that the distinction between general humanistic activity and the application of humanist principles and values to the essential texts and procedures of the profession is important. Ernst Kantorowicz, “The Sovereignty of the Artist: A Note on Legal Maxims and Renaissance Theories of Art,” in Kantorowicz, Selected Studies (Locust Valley, NY, 1965), pp. 362–365. For Amerbach, see Myron P. Gilmore, Humanists and Jurists (Cambridge, MA, 1963), pp. 146–177. More recently, Mario Ascheri, Diritto medievale e moderno: Problemi del processo, della cultura e delle fonti giuridiche (Rimini, 1991).
6 The letter to Marco da Genova is Rerum familiarum libri, lib. 20, p. 4; the Letter to Posterity in Francesco Petrarca, Lettera ai posteri, ed. Gianni Villani (Roma, 1990), p. 46. The arguments of both letters should be read carefully. His criticism of jurists is of a piece with his criticism of other branches of study: Wilhelm Kölmel, Aspekte des Humanismus (Münster, 1981), pp. 37–43, who does not discuss law. For Petrarca’s jurist friends, see Arnaldo Foresti, Anedotti della Vita di Francesco Petrarca, ed. Antonia Tissoni Benvenuti (Padua, 1977), p. 13; Francesco Petrarca, Rime, Trionfi e Poesie Latine, ed. F. Neri, et al. (Milan-Naples, 1954), p. xcii.
7 Mario Ascheri, Diritto medievale e moderno; cf. August Buck, “Die Rezeption es Humanismus in den juristischen und medizinischen Fakultäten der italienischen Universitäten,” in Gundolf Keil, Bernd Moeller, and Winfried Trusen (eds), Der Humanismus und die oberen Fakultäten (Bonn, 1987), pp. 267–284. There is an analogy here with physicians who were also literary scholars without bringing their literary interests to bear on their medical practice: Nancy Siraisi, “The Faculty of Medicine,” in Walter Rüegg (general ed.), A History of the University in Europe, vol. 1: Universities in the Middle Ages, ed. Hilde De Ridder-Symoens (Cambridge, 1992), pp. 360–387, and Siraisi, “Anatomizing the Past: Physicians and History in Renaissance Culture,” Renaissance Quarterly, 53 (2000): pp. 1–30. On the mixing of styles, Katherine Elliot Van Liere, “Humanism and Scholasticism in Five Student Orations from the University of Salamanca,” Renaissance Quarterly, 53 (2000): pp. 57–107, at p. 86: “For [Diego de] Covarrubias y Leyva, 1512–1577] humanism was neither a creed nor a calling; it was, rather, a rich collection of words and images that could be artfully pillaged for his own professional and polemical purposes.”
8 Donald Kelley, “Jurisconsultus perfectus: The Lawyer as Renaissance Man,” Journal of the Warburg and Courtauld Institutes, 51 (1989): pp. 84–102.
9 Peter Stein, “Legal Humanism and Legal Science,” in Stein, The Character and Influence of the Roman Civil Law (London, 1988), pp. 91–100. The pioneering work was Domenico Maffei, Gli inizi dell Umanesimo giuridico (2nd edn, Milan, 1968), followed by that of Hans Erich Troje, “Zur humanistischen Jurisprudenz,” in Festschrift für Hermann Heimpel (3 vols, Göttingen, 1972), vol. 2, pp. 110–139, and Troje, “Die Litteratur des geminen Rechts under dem Einfluss des Humanismus,” in Helmut Coing (ed.), Handbuch der Quellen und Literatur des neuereu Privatrechtsgeschichte, vol. 2: Neuere Zeit (1500–1800): Das Zeitalter des gemeinen Rechts, Part I, Wissenschaft (Munich, 1977), pp. 615–795.
10 Douglas J. Osler, “Budaeus and Roman Law,” Ius Commune, 13 (1985): pp. 195–212. I am grateful to Alan Watson for this reference. See also Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition (Cambridge, MA, 1990), pp. 109–208, and Kelley, “Law,” in J.H. Burns (ed.) with Mark Goldie, The Cambridge History of Political Thought, 1450–1700 (Cambridge, 1991), pp. 66–94.
11 Osler, “Budaeus,” p. 211. On Valla, see Mario Speroni, “Lorenzo Valla a Pavia: Il Libellus contra Bartolo,” Quellen und Forschungen aus italienischen Archiven und Bibliotheken, 59 (1979): pp. 452–467. More recently, Michael L. Monheit, “Guillaume Budé, Andrea Alciato, Pierre de l’Estoile: Renaissance Interpreters of Roman Law,” Journal of the History of Ideas, 58 (1997): pp. 21–40.
12 Stein, “Legal Humanism and Legal Science,” p. 98; Cf. Joseph Canning, The Political Thought of Baldus de Ubaldis (Cambridge, 1987), pp. 228–229; G.C.J.J. van den Bergh, The Life and Work of Gerard Noodt (1647–1725): Dutch Legal Scholarship between Humanism and Enlightenment (Oxford, 1988), pp. 108–124; Robert Feenstra, “Hugues Doneau et les juristes néerlandais du XVIIe siècle: L’influence de son ‘système’ sur l’évolution du droit privée avant le Pandectisme,” in Feenstra, Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries (Aldershot, 1996), no. IV.
13 On the material setting, Witold Maisel, Rechtsarchäologie Europas, trans. Ruth Poni’nskaMaisel (Vienna, Cologne, and Weimar, 1992). On the substantial creation and definition of a legal profession, Ennio Cortese, “Legisti, canonisti e feudisti: La formazione di un ceto medievale,” in Università e società nei secoli XII–XVI (Pistoia, 1982), pp. 195–281. There is a growing literature on the formation and influence of the legal profession on political and social practice. See, e.g., Consilia: A Bibliography of Holdings in the Library of Congress and Certain Other Collections in the United States, eds Peter A. Pazzaglini and Catherine A. Hawks (Washington, DC, 1990); Das Publikum politischer Theorie im 14. Jahrhundert, eds Jürgen Miethke, with Arnold Bühler (Munich, 1992); Consilia im späten Mittelalter. Zum historischen Aussagewert einer Quellengattung, ed. Ingrid Baumgärtner (Sigmaringen, 1995); Joseph Canning, “Italian Juristic Thought and the Realities of Power in the Fourteenth Century,” in Joseph Canning and Otto Gerhard Oexle (eds), Political Thought and the Realities of Power in the Middle Ages (Göttingen, 1998); Helmut G. Walther, “Learned Jurists and Their Profit for Society: Some Aspects of the Development of Legal Studies at Italian and German Universities in the Late Middle Ages,” in William J. Courtenay and Jürgen Miethke (eds), with the assistance of David B. Priest, Universities and Schooling in Medieval Society (Leiden, Boston, MA, and Cologne, 2000), pp. 100–126. Ascheri has summed up this aspect effectively (p. 119): “Il movimento umnanistico, le grandi scoperti o riscoperte di classici sono sopragiunte tropo tardi per scongevole un linguaggio tecnico, altramente specializzato e facilmente recptibile a livello europeo secondo le esigenze di ceti professionali e di apparati publici (e in particolare della Chiesa).” And see the works of Brundage cited above, n. 3.
14 Ascheri, Diritto medievale e moderno, pp. 126–127 quoting Jason del Maino: “renovare dictum librum esset confundere glossam utrasque iuris e [si noti] utriusque censure doctores, qui allegant illum librum secundum formam et ordinem quam habemus; et ideo Studia non recipiunt dictas renovationes.”
15 Odd Langholm’s unhappily titled, The Legacy of Scholasticism in Economic Thought: Antecedents of Choice and Power (Cambridge, 1998), and the astute review by Joel Kaye, Speculum, 75 (2000): pp. 705–708.
16 Brian Tierney, The Idea of Natural Rights (Atlanta, GA, 1997), esp. 236–254.
17 Wilhelm Kölmel, “Scholasticus Literator. Die Humanisten und ihr Verhältnis zur Scholastik,” Historisches Jahrbuch, 93 (1973): pp. 301–335; Erika Rummel, The Humanist-Scholastic Debate in the Renaissance and Reformation (Cambridge, MA, 1995); Vito R. Giustiniani, “Homo, Humanus, and the Meaning of ‘Humanism’,” Journal of the History of Ideas, 46 (1985): pp. 167–195.
18 On the legal power of artificial creation, for example, the doctrine of citizenship laid out in learned law exemplifies the value of the learned law in contemporary Italy: Julius Kirschner, “Civitas sibi facit civem: Bartolus of Sassoferrato’s Doctrine of the Making of a Citizen,” Speculum, 48 (1973): pp. 694–713, and Canning, The Political Thought of Baldus de Ubaldis, pp. 169–184. On nature producing new things and forcing the law to respond, William E. Brynteson, “Roman Law and Legislation in the Middle Ages,” Speculum, 41 (1966): pp. 420–437.
19 Troje makes the point in “Zur humansitische Jurisprudenz,” pp. 111–113.
20 Ingrid Baumgärtner, “Kontinuität und Wandel in Literatur und Praxis des gelehrten römischen Rechts,” in Peter Segl (ed.), Mittelalter und Moderne. Entdeckung und Rekonstruktion der mittelalterlichen Welt (Sigmnaringen, 1997), pp. 173–186, at p. 177; cf. p. 184: “Humanism neither intended nor achieved a paradigmatic change in legal science. Legal science remained a text-science, the Corpus Iuris remained the standard text, and the goal of its interpretation remained thoroughly juristic.” That is, the ius commune did not consist of Roman law alone, but of a combination of Roman and canon law as adapted to the requirements of contemporary societies from the fourteenth century on. See also James Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change (Princeton, NJ, 1990), pp. 3–40. The best short surveys are Manlio Bellomo, The Common Legal Past of Europe, 1000–1800, trans. Lydia G. Cochrane (Washington, DC, 1995), and Ennio Cortese, Il Rinascimento Giuridico Medievale (2nd edn, Rome, 1992).
21 Aside from the unconvincing arguments of Friedrich Schaffstein, Die europäische Strafrechtwissenschaft im Zeitalter des Humanismus (Göttingen, 1954), there is no entry for “humanism” in John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, MA, 1974). More recently, Strafrecht, Strafprozess und Rezeption. Grundlagen, Entwicklunhg und Wirkung der Constitutio Criminalis Carolina, eds Peter Landau and Friedrich-Christian Schroeder (Frankfurt, 1984), and Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley and Los Angeles, CA, and Oxford, 1993), esp. pp. 268–290; Joy Wiltenburg, “The Carolina and the Culture of the Common Man: Revisiting the Imperial Penal Code of 1532,” Renaissance Quarterly, 53 (2000): pp. 713–734, which emphasizes the degree to which Rezeption had to operate on a number of different cultural levels and depended heavily on the understanding of people to whom the humanist arguments, such as they were, would have meant little in the face of other, more immediate problems of using the learned law. Most recently, the collection Criminalità e giustizia in Germani e Italia: Pratiche giudiziarie e linguaggi giuridici tra tardo medioevo ed età moderna / Kriminalität und Justiz in Deutschland und Italien. Rechtspratiken und gerichtliche Diskurse in Spätmittelalter und Früher Neuzeit, eds Marco Bellabarba, Gerd Schwerhoff, Andrea Zorzi, Contributi/Beiträge dell’Istituto storico italo-germanico in Trento, 11 (Bologna and Berlin, 2001).
22 Peter Stein, “Bartolus, the Conflict of Laws and the Roman Law,” reprinted in The Character and Influence of Roman Civil Law: Historical Essays (London and Ronceverte, WV, 1988), pp. 83–90.
23 Peter Landau, “Methoden des kanonischen Rechts in der frühen Neuzeit zwischen Humanismus und Naturrecht,” Zeitschrift für Neuere Rechtsgeschichte, 21 (1999): pp. 7–28, at p. 28; Landau, “Die Bedeutung des kanonischen Rechts für die Entwicklung einheitlicher Rechtsprinzipien,” in Heinrich Scholler (ed.), Die Bedtutung des kanonischen Rechts für die Entwicklung einheitlicher Rechtsprinzipien, Arbeiten zur Rechtsvergleichen, Bd. 177 (Baden-Baden, 1996), pp. 23–47. Douglas Osler, “Jurisprudentia Elegantior and the Dutch Elegant School,” Ius Commune, 23 (1996): pp. 339–354, at p. 343.
24 Douglas J. Osler, “Magna Jurisprudentia Injuria: Cornelius van Bynkershoek on Early Humanist Philology,” Ius Commune, 19 (1992): pp. 61–79, at p. 61: “Only a long and painstaking study will reveal the full extent of the damage which [early humanist] philology wrought in the texts of the Corpus Iuris published in the first half of the sixteenth century.” Most recently, Osler, Catalogue of Books Printed on the Continent of Europe from the Beginning of Printing to 1600 in the Library of the Max-Planck Institut für europäische Rechtsgeschichte, Frankfurt am Main (Frankfurt, 2000), Preface, pp. xii–xviii. On intra-university rivalries, see Rummel, and Antonio García y García, “The Faculties of Law,” in Hilde De Ridder-Symoens (ed.), Universities in the Middle Ages, pp. 388–408; Walter Rüegg, “Themes,” in De Ridder-Symoens (ed.), Universities in Early Modern Europe (1500–1800), vol. 2: A History of the University in Europe (Cambridge, 1996), pp. 3–42.
25 The new reading of Maitland’s suggestion of a sixteenth-century English “Reception” of Roman law in J.H. Baker, “English Law and the Renaissance,” in Baker, The Legal Profession and the Common Law: Historical Essays (London and Ronceverte, WV, 1986), pp. 461–476, esp. p. 471: “But ‘Romanising’ was only one aspect—and maybe only a side-effect—of the Renaissance legal revolution. The effect of entrusting sovereign legal power to learned tribunals was not merely to import Roman procedures and scholarship, but to give the decisions of such tribunals the force of law and thus to create a new kind of legal authority.” See Richard Helmholz, Canon Law in Reformation England (Cambridge, 1990), pp. 121–195.
26 Charles Homer Haskins, The Renaissance of the Twelfth Century (Cambridge, MA, 1927). The term survived in the semi-centenary volume dedicated to Haskins’s work: Renaissance and Renewal in the Twelfth Century, eds Robert L. Benson and Giles Constable, with Carol D. Lanham (Cambridge, MA, 1982). Haskins’s remarks on the revival of Roman jurisprudence were considerably modified and expanded in the latter volume in perceptive essays by Stephan Kuttner and Knut Wolfgang Nörr. The phrase survived in European scholarship as well. The volume edited by Peter Weimar, Die Renaissance der Wissenschaften im 12. Jahrhundert (Zurich, 1981), contained essays on jurisprudence and legislation by Gerhard Otte and Armin Wolf. The classic history is Wallace K. Fergusson, The Renaissance in Historical Thought (Cambridge, MA, 1948). There are brief histories of the various usages in Walter Rüegg, “Die Humanismusdiskussion,” in Hans Oppermann (ed.), Humanismus (Darmstadt, 1970), pp. 310–321; Wilhelm Kölmel, Aspecte des Humanismus (Münster, 1981), pp. 1–14, and Vito Giustiniani, “Homo, Humanus.”
27 David Knowles, “The Humanism of the Twelfth Century” (reprinted in The Historian and Character and Other Essays [Cambridge, 1963], pp. 16–30); Richard W. Southern, “Medieval Humanism,” in Southern, Medieval Humanism and Other Studies (Oxford, 1970), pp. 29–60; Southern, Scholastic Humanism and the Unification of Europe, vol. 1: Foundations (Oxford and Cambridge, MA, 1995). The best attempt I know of since the Renaissance and Renewal volume to come to grips with Haskins’s idea is that of Stephen Ferruolo, “The Twelfth Century Renaissance,” in Renaissances Before the Renaissance: Cultural Revivals of Late Antiquity and the Middle Ages (Stanford, CA, 1984), pp. 114–143.
28 Giustiniani, “Homo, Humanus,” p. 174.
29 I have considered the point in “The Frowning Pages: Scythians, Garamantes, Florentines, and the Two Laws,” in Giuseppe Di Scipio and Aldo Scaglione (eds), The Divine Comedy and the Encyclopedia of the Arts and Sciences (Amsterdam and Philadelphia, PA, 1988), pp. 285–314.
30 Both cited in Henry Green, Andrea Alciati and His Book of Emblems (London, 1872), p. 292. The monument itself is the frontispiece of the book. On Mofa, see Ascheri, Diritto medievale e moderno, pp. 147–149.