Sixteenth-Century Legal Crisis & Methodology
The Sixteenth-Century Legal Crisis and Its Methodological Implications
The Emergence of a New Legal Reality: Legislation
The fourteenth century, the era of the commentators’ theoretical activity, saw the full integration of Iura Propria into the Roman Ius Commune. Legal scholars sought to systematize this vast body of knowledge. Social evolution and the centralization of political power shifted the balance of legal sources, establishing the supremacy of kingdom or city laws over the Ius Commune formulated by fourteenth-century jurists.
This shift impacted public, criminal, and commercial law. While parallels could be drawn between the Roman Empire’s power structure (as described in the last three books of Justinian’s Code) and public law, this was not the case for criminal and commercial law.
The departure from Roman civil law principles in these areas reflected a broader subordination of Roman-canon law to emerging national laws. Codification of these national laws was underway, driven by the centralization of royal power.
In France, the codification of customs was ordered by Charles VII, Louis XI, and Henry III. In Spain, a codification ordered by Queen Isabella appeared in 1484, with royal legislation compiled in 1657. In Germany, Duke William IV of Bavaria compiled Bavarian legal sources while unifying the legislative process and ducal administration.
These compilations gradually superseded common law. The intricate interpretation of Roman law became less relevant as new, independent legal codes emerged. The perceived inadequacies of Roman law became apparent as legislation diverged from the Corpus Iuris.
Three doctrinal trends emerged. The Mos Gallicus viewed Roman law through a historical and philological lens, rejecting its contemporary relevance and seeking to restore its classical purity.
Another trend, the Usus Modernus Pandectarum (modern use of the Pandects/Digest), integrated new legal realities into the commentators’ conceptual frameworks. This predominantly German approach rewrote and expanded the existing legal system.
In civil law domains, the legal knowledge of the commentators was largely maintained and developed, albeit with diminishing returns on its scientific methodology. This “Late Bartolo” school continued civil law doctrine in Southern Europe until the eighteenth century.
Internal Development of Legal System Knowledge
The commentators’ legal scholarship had initiated a process of internal legal unification using Aristotelian-Scholastic dialectic. This revealed fundamental dogmatic principles, the structure of various legal fields, and the technical meaning of legal terms.
The next step was the construction of general legal systems structured around these principles. The commentators’ meticulous analysis of individual texts gave way to synthesis, unifying law under organic axioms and rules. The model shifted from the Digest to the Institutes.
At this stage, deductive reasoning became possible. Legal remedies were found not through complex interpretation of Roman texts, but through the application of newly formulated legal axioms.
This marked the era of rationalist natural law, which posited that higher legal principles are products of reason, reflecting a universal order. Legal thought moved beyond discovery to active creation of these principles.
This systematic construction of law necessitated a simplification of logical and conceptual tools. The commentators’ intricate arguments, now unnecessary, became cumbersome. With the completion of the instrumental task, simpler reasoning processes became preferable.
A mid-sixteenth-century German jurist advocated for a “popular” approach to legal problems, accessible to the public.
As the conceptual system stabilized and the commentators’ complex arguments were replaced by more restrictive rules, the disciplining role of the communis opinio diminished.
Legal solutions were derived from logically connected axioms within the legal system. The potential for conflict between principles, common in the commentators’ incomplete system, was reduced as legal rules were unified within a logically consistent system.