Mos gallicus

from Wikipedia, the free encyclopedia

The mos gallicus (Latin: the Gallic / French custom) is a specific way in which learned jurists in the early modern period dealt with the texts of the traditional legal books Corpus Iuris Civilis and Corpus Iuris Canonici . The mos gallicus was also called humanistic jurisprudence because it stood between French humanism and the German usus modernus pandectarum of the 16th and 17th centuries.

Guillaume Budé (1468–1540), Andreas Alciatus (1492–1550) and, for Germany, Ulrich Zasius (1461–1535) are considered the founders of this orientation . Other representatives of the mos gallicus are Jacques Cujas (1522–1590), Donellus (1527–1591), Dionysius Gothofredus (1549–1622), Iacobus Gothofredus (1587–1652), and later in the Netherlands Gerhard Noodt (1647–1725), Arnold Vinnius (1588–1657) and Johannes Voet (1647–1713).

Humanistic influences

In the Middle Ages people were interested in timeless truths. In the early modern period , people began to be interested again in bygone times, especially in Greco-Roman antiquity . The humanists therefore undertook more precise language studies than was the case in the Middle Ages. In particular, efforts were now made to use the Latin language correctly, and the Greek language was also learned and used again. Many humanists were also Protestants, as both views were based on similar logical conclusions.

Criticism of the mos italicus

In the Middle Ages and the beginning of the early modern period, the law according to the custom of the Italians ( mos italicus ) was taught at the universities in the medieval tradition .

Jurists who belonged to the newly emerging scientific direction of humanism now discovered that the corpus luris civilis taught at the universities had so far been partly inadequately processed linguistically by the representatives of the mos italicus . In addition, it was discovered that the legal texts used in jurisprudence at the time did not correspond to the original ancient legal texts. The legal texts in use came from copies of the ancient original ( Littera Florentina ), some of which were flawed . With a correct translation of the ancient original, some legal passages read differently than in the usual versions.

The humanistic jurists noticed through their linguistic training that the legal texts of the Corpus Iuris Civilis are not uniform and that they came into being at different times (several centuries lie between the origin of the oldest and the most recent legal texts). In such a long time the law had evolved. Emperor Justinian I also had some of the legal texts revised when creating the Corpus Iuris Civilis. The revisions (so-called " interpolations ") were sometimes not entirely successful. In addition, other ancient, original writings had been found that showed the changes in comparison. In short: one could not uphold the thesis advocated by the lawyers of the mos italicus that the Corpus Iuris Civilis contained an ahistorical, non- contradicting law .

Eventually it was recognized that the mos italicus lawyers were very focused on legal practice. In order to bring the Corpus Iuris Civilis into conformity with applied law in practice, certain rules of the Corpus Iuris had been deviated from. The humanistic lawyers also criticized these legal deviations.

mos gallicus

On the basis of this criticism, which was mainly submitted by French legal scholars, the law of the Corpus Iuris Civilis began to be processed differently. Attempts were made to take into account the criticism expressed at the mos italicus . In particular, efforts were made to restore the ancient original text and to find the revisions of the Justinian Legislative Commission. In addition, they wanted to understand ancient Roman law from within, regardless of its legal applicability. Humanistic jurisprudence was generally less concerned with contemporary legal practice, which placed it in opposition to the usus modernus that emerged in Germany in the 17th century , which was precisely what it was all about.

All these aims of the humanistic jurists they set in scientific contrast to the representatives of the mos italicus . Since the mos italicus continued to be taught at the universities, two different scientific lines emerged, such as how the Corpus Iuris Civilis could be scientifically processed. The mos gallicus was the leader in France (where it was created), the mos italicus especially in Italy, but also in Germany.

Since the mos gallicus was primarily interested in the facts of historical Roman law from a scientific point of view, its effect was mostly limited to the universities, and humanistic knowledge only sparsely penetrated legal practice; the mos italicus continued to dominate there .

Recent research shows a different picture for the Reich Chamber of Commerce , for example . There were judges at the Reichskammergericht who argued and worked entirely on the basis of the mos italicus , for example the judge Mathias Alber (RKG: 1532–1533). Other judges, such as Viglius van Aytta (RKG: 1535–1537), however, observed the mos gallicus .


  • Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 2 no. 11-13.
  • Gerhard Köbler : Lexicon of European Legal History , p. 382. Munich 1997.
  • Hans Erich Troje: Humanistic Jurisprudence. Studies of European law under the influence of humanism. Bibliotheca Eruditorum. International Library of Science, ed. by Domenico Maffei and Horst Fuhrmann Volume 6. Goldbach: Keip 1993, XX, 334 Ss.
  • Hans Erich Troje: The literature of the common right under the influence of humanism. in: Handbook of the sources and literature of recent European history of private law, publications by the Max Planck Institute for European Legal History, ed. by H. Coing, 2nd volume. More recent times (1500-1800). The age of common law. 1st volume: Wissenschaft, Munich: CH Beck 1977, pp. 615-795.
  • Hans Erich Troje: Graeca leguntur. The appropriation of Byzantine law and the emergence of a humanistic corpus iuris civilis in the jurisprudence of the 16th century. Research on the modern history of private law Volume 18, Cologne / Weimar / Vienna: Böhlau 1971, XII, 358 Ss.
  • Gunter Wesener : Humanistic Jurisprudence in Austria. in: Festschrift for the 80th birthday of Hermann Baltl , ed. by Kurt Ebert , Vienna 1998, pp. 369–387.

Individual evidence

  1. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 2 no. 11-13.