Law

Renaissance Europe inherited a variety of legal codes and procedures from the Middle Ages. Much of this legal tradition remained intact throughout the period. However, the Renaissance also saw the spread of ancient Roman law to parts of northern Europe, as well as the development of new legal systems based on humanism*. By the 1600s, the foundations of modern international law had begun to emerge.

Law in the Middle Ages. The 1100s marked a turning point in the development of law in Europe. During that century, the study of ancient Roman law revived in Italy. At the same time, the related study of canon law, or church law, developed. The Italian city of Bologna became one of the most important early centers for legal study, which focused on written texts.

The texts of Roman law had been assembled in the 500s by order of the Roman Emperor Justinian. They included the Codex, a collection of existing laws; a textbook on law; and a collection of writings from Roman jurists*. Roman civil law focused on such matters as kinship and status, inheritance, property, and obligations. Criminal law and judicial procedure received much less attention. Canon law, however, developed those areas further.

The central text of canon law was the Decretum, assembled in the 1100s by a monk named Gratian. Unlike Roman law, canon law was used, interpreted, and applied in courts throughout Christian Europe. When problems arose with canon law, the pope in Rome would settle the disputed point. These papal* rulings on legal issues such as marriage became part of the body of canon law.

Learned jurists in Bologna saw these unrelated ancient and medieval* legal codes as forming a single body of law, based on a basic, unchanging standard of reason and justice. They made no attempt to find or correct errors in legal texts. Instead, they studied the texts and instructed others in the law, chiefly by preparing comments that explained legal terms, highlighted principles, and referred to other sections within the legal code. These comments became the basis from which students learned how to apply and extend the ius commune—the body of common law.

By the mid-1200s, many Italian cities and states had books of their own local laws on such matters as government offices, public places, crimes, and inheritance. Similar sets of laws appeared in France, Spain, and Portugal. These laws and customs made up the iura propria—a set of laws peculiar to a specific place, in contrast to the ius commune. However, the ius commune served as a secondary source of rules on the local level. Local laws changed frequently, but common law provided a fixed body of rules and principles.

Counsels and Commentaries. Legal scholars of the 1300s and 1400s developed new types of legal writing that had a major impact on the study of law. The two chief forms were commentaria (commentaries on legal texts) and consilia (advice on legal cases or problems).

The commentaria were the personal views of jurists on how to interpret medieval legal texts. Many of them sought to identify connections between different legal principles and to give reality to the body of law. Consilia, by contrast, were written opinions that jurists had given in actual cases. These texts often focused on the question of which law, within the body of common law or local laws, applied in a given case. Consilia first appeared in the 1100s, and by the late 1300s they had became a regular feature of judicial practice. They could serve to aid a judge or to support the arguments of one of the parties in a lawsuit.

Many consilia by famous jurists were collected and published in the 1400s. Other jurists referred to them for arguments to use in their own consilia. In Italian cities, the production of legal opinions became a major activity and a source of income for jurists. As the century progressed, consilia became longer, including more and more notes on each point of law. The material in the consilia served as a body of communes opiniones (common opinions) on legal points—in essence, a form of judicial precedent*.

In some cases, jurists used these precedents to overturn existing laws. Rulers came up with various strategies to avoid this problem. The city of Florence set up a court called the ruota, staffed by trained jurists, both local and foreign. The decisions of this court, rather than the precedents established in common opinion, were the final authority in matters of law. In other cases, rulers simply used their authority to rewrite laws or overturn decisions.

One of the most important authors of commentaria and consilia was the Italian jurist Bartolus of Sassoferrato, who lived in the 1300s. During his life, Bartolus produced hundreds of commentaries, consilia, and treatises* based on his study of legal texts. His work helped make the law more flexible, adapting ancient legal principles to the realities of his day. Another Italian jurist of the 1300s, Baldus of Ubaldis, expanded on Bartolus's work, seeking to adapt the law to the standards of his time. The works of Bartolus and Baldus became key references for later jurists, who often quoted them in their own legal writings.

Humanist Ideas on Law. The humanistic approach to law had its roots in the 1300s, when scholars such as PETRARCH and Giovanni BOCCACCIO criticized legal practice and teaching because it lacked a sense of history. They began to question the role of law in human knowledge. Humanist criticism of medieval legal ideas increased in the 1400s. A number of humanist scholars strongly attacked the work of earlier jurists, such as Bartolus, on the grounds that they contained errors in their language and in their interpretation of ancient texts.

The work of these humanist scholars turned the common view of Roman law on its head. They saw Roman law as the product of a specific social and political environment, rather than as a universal standard. They rejected the idea of Bartolus and Baldus that ancient laws could be adapted to modern societies. Humanists presented Roman law as a leftover from the past—useful in some ways, but not essential.

Law Across Europe. Like other Renaissance ideas, the different views of law spread from Italy to other parts of Europe during the 1400s and early 1500s. The English king HENRY VIII established faculties of civil law at Oxford and Cambridge Universities. The Holy Roman Empire* also adopted the practical methods of Italian law. One example was a new means of conducting trials, in which judges questioned witnesses directly rather than listening to the evidence presented by the opposing parties. The law faculties of German universities also adopted Italian methods of teaching law. A new class of jurists arose who helped spread Italian legal ideas to the courts of cities and rulers.

The jurists of France, however, rejected both Roman law and Italian legal methods as foreign and unsuitable. They adopted their own method of humanist study of law, creating a "French style" to counter the "Italian style" of Bartolus and Baldus. Spain, by contrast, continued to cling to the legal ideas of the Middle Ages. Spanish scholars believed in an eternal standard of justice contained in "natural law"—a code of rules and behavior inspired by God, which applied to all human societies.

Natural Law. Debate over natural law deepened in the 1600s. By that time, humanistic views on law had undermined Roman law, which could no longer serve as a universal standard. Similarly, the Protestant Reformation* had made it impossible for traditional canon law to provide a universal standard, as there was no longer a single, unified church. Legal publications began focusing on existing laws, customs, and court rulings, and many proposals appeared for creating a modern code of law.

In 1625, Dutch humanist Hugo GROTIUS launched the modern era of international law with the publication of his book The Law of War and Peace. Grotius based his ideas on the principles of natural law, rather than on ancient Roman codes. Grotius, however, saw natural law not as inspired by God but as an extension of human reason. His work inspired legal reform through much of Europe, and international law grew throughout the 1600s.

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