The Sacred Muses and the Twelve Tables: Legal Education and Practice, Latin Philology and Rhetoric, and Roman History

Chapter 8
The Sacred Muses and the Twelve Tables: Legal Education and Practice, Latin Philology and Rhetoric, and Roman History1

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.

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