Evolution of Legal Culture: From Tradition to Rationalism
Item 9. Transformation of Legal Culture
9.1. Legal and Second Scholastic Humanism
The legal culture oscillated between continuity (maintenance of mos italicus) and change (development of legal humanism). Legal humanism coexisted with mos italicus. The late mos italicus evolved during the 16th and 17th centuries, facing a crisis in the 18th century due to its strong attachment to tradition. It was characterized by:
- Prevalence of forensic work over teaching.
- Progressive distancing from original texts.
- Trend towards specialization, with treaties on various legal matters.
- Abuse of authority argument, relying on consolidated views rather than innovation.
- Reliance on communis opinio as the most reliable criterion.
This resulted in fragmentation and territorialization of mos italicus, leading to an accumulation of data and a chaotic case-by-case approach. Legal humanism reacted against this, adopting a historicist attitude towards Roman law texts. It aimed to adapt humanism to the legal world, originating in Italy and challenging the tradition of mos italicus due to its lack of Latin and Roman history knowledge. Alciato, considered the first humanist jurist, operated in France, leading to the term mos gallicus. This movement was characterized by:
- Strong criticism of mos italicus for its ignorance of Latin and ancient history.
- A new understanding of Justinian texts as historical artifacts.
- Restoration of the original purity of Roman texts and establishment of an orderly legal system based on guiding concepts.
Legal humanism had limited influence in Spain due to its association with the Protestant Reformation. Spanish lawyers maintained links with the increasingly degenerate mos italicus. The School of Salamanca, or Second Scholastic, sought to adapt Thomistic scholasticism to the times. Theologians analyzed and resolved specific legal problems, cultivating moral theology. Key figures included Francisco de Vitoria, Domingo de Soto, Francisco Suarez, and Father Mariano. They believed in a legal system derived from God, influencing European thought and bridging traditional scholasticism with rationalism.
9.2. Legal Enlightenment
Legal rationalism, the last branch of legal humanism, distanced itself from ius commune, relying on reason and the deductive method. It postulated that law is the product of human reason, not tradition. Key beliefs included:
- Existence of an immutable natural legal order.
- Reason as a sufficient tool to discover and articulate legal rules.
Natural law was seen as dualistic, distinguishing between natural and positive law, with the former holding primacy. Methodological principles were antithetical to ius commune, emphasizing axiomatic, deductive, and routine methods. Legal rationalism advocated for reforming the existing social order, criticizing judicial discretion, and promoting the secularization of law.
Impact on Spain
The impact in Spain was limited and uneven. Scholastic thought was more influential. Works of Grotius, Montesquieu, and Voltaire were banned. The Enlightenment critique of Roman law came from two positions: laws of reason and defense of royal rights. The patriotic movement followed legal humanism, with figures like Arnold Vinnio and Heinecio. Simplification of law was challenging, but rationalist postulates offered potential for dramatic simplification. The debate about patriotic law highlighted its deficiencies and led to discussions about recovering the former Spanish constitution, culminating in the Cortes of Cádiz (1812 Constitution).
10.3. Political Economy
According to the Encyclopedia of D’Alembert, economy originally meant the legitimate government of the household. This meaning extended to the state, encompassing domestic and political economics. General economics aimed to reconcile the prosperity of subjects with the state, covering customs, commerce, and industry. Political economy revealed the incompatibility between traditional legal structures and economic development. It evolved into a citizen science, formulating market laws and leading to classical economics with Adam Smith. These elaborations acquired constitutional value and contributed to the Cortes of Cádiz.