La jurisprudence élégante dans le Danemark du XVIIe siècle. Influences transfrontalières sur l’œuvre de Scavenius, Resen et Bornemann. Résumé : L’accession, à partir de 1657, de juristes danois à la chaire de droit de l’Université de Copenhague correspond à l’apparition d’un droit national. Les trois professeurs qui se succèdent dans cette université, Scavenius, Resen et Bornemann, sont des adeptes de la « jurisprudence élégante » et fondent leurs dissertations sur des sources philosophiques et humanistes. Pour autant, ils ne négligent pas les auteurs étrangers qui leur servent à comparer le droit danois avec les autres droits européens.
1. When, in 1657, Peder Lauridsen Scavenius became professor of law at the University of Copenhagen, Danish jurisprudence seems to have taken a new direction. Until then, the dissertations produced in Denmark had been focused on single, narrower issues, often connected to Roman law and usually not studied very closely or extensively. Now, the dissertations became more comprehensive, the focus was to a pronounced degree on Danish law – especially old law – and Scavenius and his successors Peder Hansen Resen and Cosmus Bornemann included philosophical and sometimes even philological investigations in their dissertations. During the period of Scavenius, Resen and Bornemann Danish jurisprudence took the form of elegant jurisprudence – jurisprudence with a philosophical and humanistic touch – which was known from the universities in Leiden, Groningen and Franecker.  And it was the period, when Danish law became an object of study and scholarly discussion and analysis of its own.
2. In what follows I shall shortly sum up the educational background of Peder Lauridsen Scavenius, Peder Hansen Resen and Cosmus Bornemann, their careers and jurisprudential achievements. My aim is to show how the elegant jurisprudence was practiced in Denmark, to give an impression of the extent of Danish jurisprudence in the second half of the 17th century and to outline a topic that is yet to be investigated thoroughly in order to establish to what extent and exactly in what ways foreign jurisprudence did influence the development of Danish jurisprudence. 
Peder Lauridsen Scavenius
3. Peder Lauridsen Scavenius (1623-1685) was the first of the three ‘elegant’ doctores at the University of Copenhagen. Until 1928, when the University of Aarhus was founded, the University of Copenhagen, founded in 1479, was the only university in Denmark. Scavenius was one of the most travelling professors, thus he was abroad in the period 1643-1651 and again, after a short return home, in 1651-1655. Over these years he went to the universities in Franecker, Leiden, Oxford, Orleáns, Padova and Basel, but spent most time at the two first mentioned universities in the Low Countries. Shortly after his return to Copenhagen in late 1655 he was offered a professorship in mathematics which he declined, and in 1657 he then became professor of law ; the first year actually without pay. The same year he defended his dissertation, and after the introduction of the absolute monarchy in 1660, he was appointed ‘generalprokurør’, i.e. the highest legal office in the Danish central administration. He functioned as such until his death in 1685. Besides these two offices he functioned as the head of the university in 1661, and in the period 1662-1684 he was one of the most active judges in the newly established Supreme Court.  In 1681 he relinquished his professorship, but due to his proficiency as an administrator, the king convinced him to stay as a member of the different central administrative organs. As such he joined the different commissions working at a new Danish law code, and in 1683 he witnessed that such a law code was finally completed and published as the Danish Law, the first law book applying to the whole kingdom.  Until then the provincial laws of the Middle Ages and later statutes had been the formal background of all legal decisions.
4. The reason why Scavenius had so many administrative offices was that – in 1660, when the absolute monarchy was carried through in Denmark with the support of the citizens of Copenhagen against the will of the Nobility – the king needed new men, not being part of the Nobility, to take over the administrative offices in the central administration.  Scavenius was one of them, just as Resen and Bornemann later on. This meant that neither Scavenius nor his successors had much time to produce scholarly work besides their doctoral dissertations, and in general the number of dissertations and scholarly works was much lower in Denmark than in, for example, Sweden and Finland during the same period.  As such, Scavenius was a typical professor of the young absolute monarchy : he had as few lectures as possible and published few scholarly works, but functioned instead as an administrator and advisor to the king.
5. Administrator or not, in the 17th century a newly appointed professor at the University of Copenhagen had to produce a doctoral dissertation, when he was installed in his office. Usually this was done by reproducing and discussing another’s work, it might be one of the classics such as Bartolus’ Glosses, or simply by producing a set of short-sentenced theses – usually in Latin – concerning a narrow subject, more having the character of a position paper than a scientific discussion and argumentation ; the latter was to be the subject of an oral examination at the university. This examination was often in Danish, but that depended on the nationality of the examining professors – in the first half of the 17th century more of the professors in Copenhagen came from the German countries,  a consequence of a mainly still not highly educated and to some degree still illiterate Danish society.  Some of the reasons for these short dissertations were probably the tradition for short dissertations, that it was difficult enough to recruit well-educated teachers and thus the university could not demand too much work in advance of the future professors to be, and that the price for printing was still quite high – the economic fact was that at the beginning of the 17th century the university paid for the printing of only three pages per dissertation, and thus the future professor had to pay the rest himself. 
6. Scavenius broke with the tradition. Thus, he was one of the first professors in Copenhagen to produce and write his own dissertation from beginning to end, discussing his subject in print and not just waiting to do so at the examination. 
7. In his first writing dated 1657, Scavenius deals with military law according to divine law, canon law and Roman law.  Here he emphasizes that every subject has its own time, and that the time for discussing military law has come since Denmark is at war with Sweden ; and thus the jurists must know something about their role and legal questions in war time (a year later Denmark lost the province of Scania to Sweden, a hard blow to the Danish self-respect). Thus, both by discussing a subject of current interest and by writing it himself, Scavenius showed that a new kind of professor had taken over ; just as a new and more self-aware king did in 1660 when the absolute monarchy was introduced in Denmark.
8. Scavenius´ analysis of military law deals with bigger issues such as ‘just war’ and who is allowed to declare a war, but he discusses minor and more concrete questions such as the awarding of prizes for military deeds, as well as military criminal law. Like his successors Scavenius begins his analysis by quoting some of the major philosophers and writers of the classical Antiquity such as Cicero, Livius and Quintilian,  but he mentions medieval or humanist writers such as Aquinas and Baldus as well.  These are no doubt among the classical authorities used and commented in the 17th century, but Scavenius wants to do more than just discuss (once again) the classics : He wants to discuss a present problem and to use contemporary, i.e. from the 16th century especially, writers’ works. Thus, on the 21 pages on contemporary military law Scavenius quotes or discusses more than 20 of his European more or less contemporary learned colleagues’ standpoints made by on this issue, but only few of them are mentioned more than once.
9. Among the authors mentioned by Scavenius, we find more of the humanists of the 16th century such as the Italian Andreas Alciat, the Flemish Justus Lipsius and the Spanish Francisco Lopez de Villalobos,  who influenced jurisprudence and the study of legal texts and jurisprudential authorities in a more critical direction. This is not that surprising taking Scavenius´ education into account, and the same goes for mentioning of reformed theologians and jurists such as the German Eberhard von Weyhe (Wahremundi ab Ehrenberg) and the French Calvinist and jurist Lambert Daneau.  It is more surprising how well Scavenius knows, discusses and uses arguments put forward by Catholic theologians such as the Italian Giovanni Stefano Menochio and the Spaniards Gregorius de Valentia, Manuel de Sá, Bartholomew Medina and Louis de Molina,  who established his own system reconciling divine grace and free will. Thus most of the theologians and jurists mentioned in Scavenius’ first writing were from the 16th century, but he uses some of the more contemporary writers, i.e. from the 17th century, too : the German Jesuit Adam Contzen, the Catholic theologian Castropalaus and the Late Scholastics and Jesuits Giles de Coninck from Flanders and the Spaniard Francisco Suárez, the latter being the most prominent among them.  We find only one writer directly linked up with the elegant jurisprudence practised at the Dutch universities : the famous Scholastic and Humanist Hugo Grotius ; but like almost everybody else, Grotius is only mentioned once. 
10. Thus, there does not seem to be a hierarchy among the works and writers mentioned : they are mentioned because they have good arguments or can be referred to as representatives of a specific ideology or jurisprudential school, i.e. as authorities in their field. And as such, Scavenius does not distinguish between their religious faith or their nationalities – which would not make any sense anyway as most of the writers mentioned often lived and taught in another country than their native country.
11. He does the same thing in his dissertation on engagement, also written in 1657.  His second dissertation has approximately the same size as his first one (22 pages), and Scavenius mentions almost the same number of foreign writers too, i.e. a little over 20, but none of them is found in his first dissertation. This time he deals with a less philosophical subject than military law and the question of what a ‘just’ war is. Thus, the writers mentioned here are more contemporary than the writers presented in his first dissertation : This time they are mainly from the last decades of the 16th century and the first decades of the 17th century. In his second dissertation Scavenius also makes specific connections to the laws on engagement applied in England, Italy, Spain, France and Belgium.  In the same way current Danish law is mentioned twice with references to specific rules,  which until then was quite unusual in Danish legal writings, and he even repeats an argument put forward by the Danish reformed theologian Niels Hemmingsen who was one of the main sources of the new Ordinance on Marriage published in 1582.  Scavenius mentions the German Aristotelian philosopher as well as the later, from 1620 until his death in 1636, doctor for the Danish King Christian IV, Henning Arnisaeus ; Arnisaeus is known as one of the main theoretical architects of the Danish Absolutism introduced in 1660. Here, however, Scavenius discusses Arnisaeus’ arguments concerning the nature of oaths in general and especially the lawfulness of taking apparently contradictory sworn promises. 
12. Among the non-Danish writers some are mentioned more than once, such as the French Calvinist and jurist François Hotman  and his 16th century contemporaries Jacques Cujas, one of the most prominent legal humanists, and the royal judge Jean Papon.  And so are the German jurist and humanist Conrad Rittershaus,  the German jurist Joachim von Beust  and the Flemish jurist Matthäus Wesenbeck, one of the 16th century experts on the Digests.  Once again Scavenius shows great knowledge of the Spanish Scholastics, mentioning both the Jesuit Thomas Sanchez  and Diego Covarruvias y Leyva who might have been the one to formulate the far-reaching reform-degrees at the Church Council in Trent, taking place between 1545 and 1563.  Besides these a couple of Italians are mentioned, the most famous being Aberico Gentili, one of the first writers on public international law and professor in Oxford until his death in 1608. But one of the most mentioned writers is Scavenius’ contemporary colleague from the university in Leiden : the reformed theologian Gerhard Johann Vosius. 
13. Thus Scavenius really discussed the Danish law on engagement in an international context. His knowledge of the writers mentioned was probably the result of his studies abroad, especially at the Dutch universities ; they had definitely not been used in Danish jurisprudence before. But as we shall see below, discussions with international colleagues went hand in hand with analyzing Danish law for Scavenius´ successors and fellowmen of the elegant jurisprudence, although this kind of discussions and analyses never turned into the kind of methodological research seen later on or today. 
Peder Hansen Resen
14. Just a year after Scavenius´ dissertation, in 1658, Peder Hansen Resen (1625-1688) was appointed to a second chair as professor at the Law Faculty, and as such he became the second of the ‘elegant’ doctores. Resen too was travelling abroad to get the highest education, and thus, in the period 1647-1653, he went to Leiden and Paris, and after some travelling in Spain he continued his studies in Padova and Rome. Returning to Copenhagen he was appointed professor of ethics in 1657, and a year later he also became professor of law ; he kept both chairs until 1683 when he laid down all his public offices. Besides the two chairs as professor at the university, these offices included from 1664 being mayor of Copenhagen for several years, from 1669 functioning as a judge in the Supreme Court, and being a member of some of the commissions working at a new Danish law code. But Resen was interested in many other subjects than law. Thus, he published some of the older Danish laws, and probably he is most known for his comprehensive topographical Atlas Danicus in 40 volumes, of which only four volumes still remain – the rest were lost in the big fire of Copenhagen and the Royal Library in 1728, in which a lot of the Danish historical (among others also legal) documents and sources burned.  Understandably, this meant that Resen did not have the time (nor the desire) to produce substantial works on jurisprudence, but at least he lectured from time to time on Danish law as well as Roman law at the university and produced the necessary dissertation. 
15. In his dissertation  - which is the same size as Scavenius’ two put together, namely 43 pages – Resen discusses the conception of justice. As the tradition prescribes, he begins by quoting some of the classics such as Cicero, Plato, Seneca and Hieronymus, followed by an analysis and discussion much more intensive than these of Scavenius and his predecessors. Thus, Resen uses and discusses the writings and arguments of almost 100 different theologians, jurists and philosophers of the 16th and 17th centuries especially, many of them are mentioned several times. About half of those are already mentioned and discussed by Scavenius : Andreas Alciat,  Justus Lipsius,  Conrad Rittershaus,  Jacques Cujas,  François Hotman,  Louis de Molina,  Gregorius de Valentia,  Matthäus Wesenbeck,  and Diego Covarruvias y Leyva  from the 16th century, and Adam Contzen,  Castropalaus,  Hugo Grotius,  and Aberico Gentili  from the 17th century.
16. Besides these, the most quoted and discussed writers are some of the greatest jurists, theologians and philosophers of the 16th century among such as the French jurist and political philosopher Jean Bodin,  the Calvinist jurists Christoph of Ehem  (Christophorus Ehemius who often argued against the French humanist Jean de Coras ) and Hugo Donellus, the latter knowing both Cujas and Hotman,  the Flemish jurist Hubert Giphanius,  the Spanish Dominican theologian Dominiq Soto,  the famous French philologian Denis Lambin (Dionysio Lambino who edited a lot of the classical texts),  the German humanist Joachim Camerarius (probably ‘the Older’),  and the Aristotelian philologian Johannes Argyropylus.  That Aristotle plays a major role in Resen’s discussion is obvious, as Michael of Ephesus, one of the most important medieval commentators on Aristotle, is mentioned several times. 
17. Among the more contemporary writers mentioned or discussed, we find the English philosopher Francis Bacon,  the Scottish Aristotelian philosopher Eustachius a Sancto Paulo,  the German jurist Ernst Cothmann,  the German jurist Helfrich Ulrich Hunnius,  the Dutch philologian Daniel Heinsio,  famous for his work on the New Testament among others, and the German philosopher and theologian Konrad Hornejus.  Besides the above mentioned writers, Resen refers to about 100 different writers, an impressing number considering the standard of Danish dissertations until then. This is probably due to the systematic way in which Resen worked, just as he did with his Atlas Danicus. At the same time he follows the example of Scavenius, analysing his topic in a Danish as well as an international aspect. Thus, Resen mentions both Belgian and French law, the Emperor’s law and Danish law,  comparing the preamble of the Medieval Law of Jutland with its later glosses by Bishop Knud Mikkelsen and the contemporary Castilian Siete Partidas, and he concludes that the conception of justice is the same in the Danish and the Castilian law, both reflecting the ius commune of the 13th century.  Until 1683, when the codified Danish Law of King Christian V was published, the Law of Jutland was still one of the cornerstones in Danish law, and therefore, studying the preamble was still to study current Danish law. But in Resen’s way it was done on the basis of an almost antiquarian interest as he knew that a new compilation of current Danish law was on its way.
18. In many ways the antiquarian interest can also be found in the teaching and writings of Cosmus Bornemann (1637-1692), the third of the ‘elegant’ doctores. Having studied in Copenhagen for a couple of years, Bornemann went abroad in the period 1659-1665 to visit and learn from some of the most famous teachers at the time in Rostock, Danzig, Franecker, Groningen, Leiden, Antwerpen, Bruxelles, Paris and Saumur. After his return to Copenhagen, he defended his dissertation in 1668 and got a new, a third, chair as professor of law ; a chair that he kept until his death in 1692. In 1684 and 1689 he functioned as the head of the university, and for the period 1684-1692 he was appointed mayor in Copenhagen after having had different municipal offices. A year later, in 1685, he was appointed judge of the Supreme Court, an office he held until shortly before his death. His main interest was Danish law and in the late 1650s he was among the students in Copenhagen who suggested a chair of Danish law – a wish which was finally fulfilled with his own appointment in 1668. 
19. In his first dissertation, which was written under the guidance of the famous Dutch teacher Ulric Huber – at that time one of the most influential practitioners of the elegant jurisprudence – Bornemann discusses the implications of expulsion from a country, and he did it so well that he could defend his Dissertatio historico-politica de ostracismo at the university in Franecker in 1663. 
20. In his second dissertation (32 pages), defended in Copenhagen in 1668 Bornemann discusses who is to be regarded as a foreigner in the Danish as well as in other European legal systems, when it comes to the question of inheritance. This is a classical, traditional topic, but it was Bornemann’s hope that his dissertation should be usable, so he gives a thorough overview of the contemporary rules and discusses their fairness. Thus, in his analysis and argumentation he discusses both Danish law – especially the Law of Jutland from 1241 and King Christian IV’s Recess of 1643  – and Norwegian/Icelandic,  Swedish,  German  (i.e. here Bremen), Belgian,  Scottish,  French law  and the Emperor’s law.  Besides this, he twice draws upon the introduction to the Danish legal system given by the jurist Christen Ostersen Weile in 1652,  and once on the historical observations made by the Danish historian and royal chancellor Arild Huitfeldt (1546-1609). 
21. Besides this comprehensive law material, Bornemann mentions and discusses the arguments and statements of more than 60 jurists, philosophers and theologians, most of them mentioned more than once, actually, even several times. Among these we find some of those mentioned by Scavenius and/or Resen too, the most well-known being François Hotman,  Jacques Cujas,  Jean Bodin,  Alciat,  and Eberhard von Weyhe  from the 16th century, and Hugo Grotius,  Ernst Cothmann,  and Henning Arnisaeus  from the 17th century.
22. Among those mentioned several times we find the French student of Cujas Guilaume Ranchin,  the French jurist Renatus Choppin,  the German jurist Christoph Schwanmann  from the 16th century, and the student of Ulric Huber Johannes Jacobus Wissenbach,  the German jurists Jakob Andreas Crusius,  Joachim Scheplitz,  Johann Jacob Speidel,  and the famous constitutional jurist Johannes Limnäus  from the 17th century.
23. With Bornemann the interest for the Late Scholasticm seems to have declined and the interest for especially German jurisprudence to have increased, but the most remarkable thing about Bornemann’s work is that for the first time Danish law is analysed and discussed at the same level as foreign law. As a student, Bornemann had pled for more focus on Danish law and now he himself fulfilled this wish.
24. Although this shift towards a jurisprudence discussing the current state of Danish law did not characterize the predecessors, drawing on international literature and taking a more philosophical direction with Scavenius, Resen and Bornemann, the aim of Danish jurisprudence had changed : Now the law professors had something to compare Danish law with, thus making it possible to discuss and challenge existing rules. This was never done by the German professors having the chairs in Copenhagen before Scavenius, Resen and Bornemann. Actually they did not write anything at all about Danish law in their dissertations.  Thus – although Danish law did not become the common object of Danish jurisprudence and dissertations before the beginning of the 18th century – the cross-border-influences of foreign literature on Danish jurisprudence must not be underestimated. On the contrary.
Per Andersen, University of Aarhus