History, Law and the Human Sciences Professor Donald R. Kelley Donald R. Kelley History, Law and the Human Sciences Medieval and Renaissance Perspectives VARIORUM REPRINTS London 1984 British Library CIP data Kelley, Donald R. History, law and the human sciences. —(Collected studies series; CS205) 1. Historiography—History I. Title 907'.2 D13 ISBN 0-86078-153-4 Copyright © 1984 by Variorum Reprints Published in Great Britain by Variorum Reprints 20 Pembridge Mews London Wll 3EQ Printed in Great Britain by Paradigm Print Gateshead, Tyne and Wear VARIORUM REPRINT CS205 CONTENTS Introduction ix-xi I Gaius Noster: Substructures of Western Social Thought 619-648 The American Historical Review 84. Washington, D.C., 1979 II Clio and the Lawyers. Forms of Historical Consciousness in Medieval Jurisprudence 25-49 Medievalia et Humanistica, new series, 5. Denton, Texas, 1974 III De origine feudorum: The Beginnings of an Historical Problem 207-228 Speculum XXXIX. Cambridge, Mass., 1964 IV Vera Philosophia: The Philosophical Significance of Renaissance Jurisprudence 267-279 Journal of the History of Philosophy XIV. St. Louis, Missouri, 1976 V The Rise of Legal History in the Renaissance 174-194 History and Theory IX. Middletown, Ct., 1970 Civil Science in the Renaissance: Jurisprudence Italian Style 777-794 The Historical Journal 22. Cambridge, 1979 Civil Science in the Renaissance: Jurisprudence in the French Manner 261-276 History of European Ideas 2. Oxford, 1981 The Development and Context of Bodin’s Method 123-150 Jean Bodin: Verhandlungen der Internationalen Bodin Tagung, ed. H. Denzer. (Miinchener Studien zur Politik, 18.) Munich: C. H. Beck, 1973 Louis Le Caron philosophe 30-49 Philosophy and Humanism. Renaissance Essays in Honor of Paul Oskar Kristeller, ed. Edward P. Mahoney. Leiden: E. J. Brill, 1976 Murd’rous Machiavel in France: A Post Mortem 545-559 Political Science Quarterly LXXXV. New York, 1970 History, English Law and the Renaissance 24-51 Past and Present 65. Oxford, 1974 Vll XII Vico’s Road: From Philology to Jurisprudence and Back 15-29 Giambattista Vico’s Science of Humanity, ed. G. Tagliacozzo & D. P. Verene. Baltimore, Md.: The Johns Hopkins University Press, 1976 XIII The Prehistory of Sociology: Montesquieu, Vico and the Legal Tradition 133-144 Journal of the History of the Behavioural Sciences 16. Brandon, Vermont, 1980 XIV The Metaphysics of Law: An Essay on the Very Young Marx 350-367 The American Historical Review 83. Washington, D.C., 1978 XV Hermes, Clio, Themis: Historical Interpretation and Legal Hermeneutics 644-668 Journal of Modern History 55. Chicago, Illinois, 1983 Index 1-7 This volume contains a total of 334 pages. PUBLISHER’S NOTE The articles in this volume, as in all others in the Collected Studies Series, have not been given a new, continuous pagination. In order to avoid confusion, and to facilitate their use where these same studies have been referred to elsewhere, the original pagination has been maintained wherever possible. Each article has been given a Roman number in order of appearance, as listed in the Contents. This number is repeated on each page and quoted in the index entries. INTRODUCTION It is not retrospective illusion, I hope, that gives these essays a certain coherence and constancy of direction, despite their chronological and international sprawl. The underlying question is one that has preoccupied me even before beginning my historical apprenticeship. “How curious, after all, is the way in which we moderns think about our world!” I remember being struck by this opening sentence from E. R. Burtt’s Metaphysical Foundations of Modern Science and thinking later how much more curious, perhaps, was the way in which we think about the world of culture — our culture and those which we can penetrate to some extent. I still think so, even though we may be, many of us, post-modern and little subject to such sentiments of wonderment. All of these papers, stretching back over some twenty years, are directed to the question of how western scholars have tried to investigate and to interpret their (and to some extent our) cultural world. My point of departure was the sixteenth-century phase of Renaissance humanism. This is the subject of essays III, V and VIII-X, all of them byproducts of my Foundations of Modern Historical Scholarship (1970), which I hoped would recall and cut a small parallel to Burtt’s classic work. From this limited base I moved into other cultural contexts, especially Italian, German and English (e.g., essays VI, XI, and XIV); ranged backwards and forwards in time from antiquity and the middle ages (I and II) to the present century (XV); and shifted emphasis from historiography to the European legal tradition, which has always seemed to me the principal vehicle of social and cultural thought. More especially, my first area of study was the study of history, its theory as well as practice, in the sixteenth century, including not only humanist perspectives on “antiquity” but also more conservative notions of “tradition”. The link with law was essential for two reasons. The first is the importance of jurisprudence for historical method (the Italian ars historica being transformed into the French methodus) and universal history — X the “law of nations” (jus gentium) becoming the target of a series of historical and comparative studies leading from Bodin to the work of Vico, Montesquieu and others (nos. VII, XII, XIII). The second reason is the potential of legal scholarship for the development of political, institutional and social history. This in turn encouraged me to examination of the mainstream tradition of professional jurisprudence, extending ultimately from Gaius to Savigny (and his student Marx, who was in a sense a renegade jurist) and beyond, especially as it related to the history of society and culture. Most important here were legal discussions of the origins of laws and particular institutions (such as feudalism) and the importance of history in the development of legal hermeneutics. Various expeditions into the European legal tradition, especially in the medieval period, persuaded me that interest in “historical consciousness,” even very broadly defined, did not at all adequately express the value of jurisprudence for social and cultural studies. For “civil science” (as medieval jurists called their discipline) entailed a philosophy of society as well as a normative art of judgment and legislation; and it posed many fundamental questions about the human condition and its shifting patterns. A growing awareness of the “philosophical significance" of jurisprudence led me to examine the grand tradition of legal systematics, “Gaianism” I termed it, which established an anthropocentric and voluntaristic model of social thought which had stood in somewhat the same relation to the human sciences as Aristotelian naturalism has stood to natural philosophy. Like Aristotelian philosophy, Romanoid legal thought has been expanded, interpreted, criticized, transmuted and displaced over the centuries under the impact of various lines of thought and investigation, including scholasticism, humanism (“civil human¬ ism”, as 1 think of it) and modern natural law. Through inspiration, interpretation and various sorts of revulsion it has helped to spawn a number of newer and more specialized human disciplines, including political economy, sociology and anthropo¬ logy; and it served as a sort of archetype for modern cultural philosophies, such as those of Marx, Weber, Betti and Gadamer. Different aspects of this argument are presented in historical terms in essays I, IV, VI-IX, XII-XIV, and more philosophically in essay XV.