The Glossators: The Revival of Roman Law in The High Middle Ages

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The story of the rediscovery of Roman law by the Italian scholars of the High Middle Ages and their devotion to the Corpus Iuris Civilis.

Roman systems of law survived in a fragmented form through the Early Middle Ages, being maintained quite loosely by some Germanic kingdoms, and returning to prominence towards the end of the first millennium with an increase in the complexity of trade and commercialism, which necessitated the old Roman standards of contract law.

Corpus Iuris Civilis

It was in the late 11th century, however, that, corresponding to a rise in legal interest and capability, the Digest was rediscovered in Western Europe. The Digest was the most complex part of the Corpus Iuris Civilis, a codification of Roman law made during the reign of Justinian I. The Corpus, thanks to its scope and depth, serves as a manifestation of all that is Roman law. Although it had seemingly been distributed around Mediterranean Europe in the mid-5th century, the Corpus had never been studied in great detail by European students of law. The single copy of the Digest, which allowed the aforementioned rediscovery, remained hidden away in an archive in Pisa throughout the early medieval period.

Through the 12th century, a picture of the entire Corpus Iuris Civilis was reconstructed in Europe. The recently found Digest added to the Institutes, the first nine of the twelve books of the Code, and the Novels – the other parts of the Corpus which had survived in Italy thanks to Byzantine contacts in the south. Prior to this, the quality of those segments of the Corpus which had survived were quite limited.

The Epitome Juliani, an extremely poor 6th century translation of the Novels which had been available in the West in the early medieval period, was replaced in this 12th century revival by the Authenticum, a much more clear version. After the Tres Libri (the final three books of the Code) were rediscovered, meanwhile, the entirety of the Code could be grouped together with added commentary in the resultant Volumen Parvum.

Importance of the Digest

The effects of the rediscovery of the Digest itself, however, should not be underestimated. While other parts of the Corpus Iuris Civilis provided insight into Roman law, the Digest was by far the most substantial and well formed part of Justinians products.

One of the specific reasons for the generation of interest in the Digest was the Investiture Controversy, the name given to the contest between the papacy and the Holy Roman Empire, beginning in 1075 with Pope Gregory VII and Emperor Henry IV and remaining unsettled until the 1122 Concordat of Worms, regarding the investiture of bishops and other church officials. Supporters of both sides raided the archives to find verification for their positions, and in so doing came across records of the Digest.

The law school at Pavia

The 11th century was a time of increased academic learning generally, driven by the rise of urbanisation in Italian towns and cities and the development of further trade with Northern and Western Europe. In law, at the beginning of this period, there began to be a notion of a jurist once again, a scholar with a particular interest in law of the kind which had diminished since the fall of the Roman Empire.

The most important law school where these legal scholars studied was at Pavia, the capital of the Lombard kingdom, although there was another large institution at Ravenna. At Pavia there was a general focus on Lombard and Germanic law, as contained within the Liber Papiensis, a compilation of laws of the Lombard kings before the Frankish conquest.

In their analysis of these works, the Pavian jurists developed the technique of using glosses, small commentaries to the text alongside it. Glosses from the early 11th century were recorded in an Expositio to the Liber Papiensis in the 1070s, making reference to Pavian scholars like Bonifilius and Wilhelmus, who espoused their views on various legal disputes, especially citing Roman law where Germanic law did not cover a particular example.

They relied mainly on the segments of Justinians codification which had already established their presence in Italy – the Epitome Juliani, the Code and the Institutes – but they did include some references to the newly rediscovered Digest.

Another such commentary on the Liber Papiensis was the Walcausina, which drew upon Justinian law even for issues relating purely to the Lombard kingdom – reflecting the assertion in the Expositio that Roman law was the lex omnium generalis, the common law (where Germanic interpretation remained disputed.

The law school at Bologna

These commentaries and assessments of the applicability of Justinians law were strongly influential in its later study, and have lead modern scholars such as Wieacker to suggest that the version of law present in the High Middle Ages was neither Roman law nor Justinian law, but rather a hybridisation of these and the perceptions of the glossators, who drew upon contemporary influences relating to customs in their societies – of law, commerce, economy and life (Wieacker 1995: 98). As the number of glosses increased, the actual original text became a muh smaller feature of the page.

The real thrust of glossation and the revival of Justinians Corpus sits not with the law school at Pavia but instead with that at Bologna, where, in the 12th century, the science of law developed. A causidicus (a type of advocate) called Pepo is supposed to have been the first teacher of law at Bologna, in the late 11th century.

Although the theologian Ralph Niger, writing after a century had passed, claimed that Pepo was not familiar with the Digest, he was acknowledged as being very learned in the Code and Institutes. It has, however, been suggested that this was the same Pepo who appeared in a story about Beatrice, Marchioness of Tuscany, quoting the Digest in a court case relating to a conflict between a monastery and the current landowner over the proprietorship of territory, making him extremely learned in his field extending even to the Digest.

If even this was not the same Pepo, the example clearly shows how scholarship of the Digest was already being integrated into legal practice in the late 11th century.

A scientific study of law

Study of the Corpus at Bologna began in earnest with the scholar Irnerius, whose prime was a few decades after Pepos. He was responsible for turning the study of law into a science, with scientific method, to shift its study from an issue of philosophical ethics into an issue of logic worthy of using (and indeed requiring the use of) the classically educative traditions of the Trivium method: grammar (the practice of language), rhetoric (the pratice of persuasion), and dialectic (the practice of thought).

Irnerius and his successors nonetheless held a great unscientific respect for their beloved text, believing it to contain almost all that one would need to know. They accepted Justinians assertion that “as for any contradiction occurring in [the Corpus], none such has any claim to a place in it, nor will any be found” (Costitutio Tanta 15 in the Digest) without any doubt.These men honed the techniques of the gloss to accommodate this more scholarly attitude, and to honour their complete veneration of the Corpus.

They developed new genres of legal writing based on their ways of dealing with the study of Justinians codification: distinctiones became the pattern of distinguishing categories within the codification to reflect perceived various groups; the form of dissensiones dominorum catalogued conflicts of interpretations; quaestiones chronicled disputed points, most often with an answer – a solutio. The summa, originally a summary of a specific title within the Code or the Digest, became a summary of an entire segment of the Corpus, whilst an apparatus was a series of glosses analysing one particular area in much more detail than a summa. A favourite subject for the apparatus genre was De diversis regulis iuris antiqui, the final section of the Digest which contained a list of general rules (Digest 50.17).

The “Four Doctors” and their successors

Through the 12th century, Irnerius was followed by the so-called “Four Doctors”, his pupils Hugo, Jacobus, Martinus and Bulgarus. These constituted a generation of extremely talented jurists, the latter two of whom were the most prolific.

Martinus and Bulgarus differed in their approaches: Martinus favoured a more liberal understanding of the Corpus, looking across the whole text to find anything which might be relevant to the disputes at hand, whilst Bulgarus was a more conservatively minded student who strongly adhered to the direct interpretation of Justinians law – showing, at least, that there was healthy scholarly debate amongst the pupils of the Bologna law school.

In the next few generations, the early 13th century produced the two Bolognese figures with perhaps the strongest legacy in legal studies. The first was Azo, who began to assimilate glosses on the Code and Institutes to produce the Summa Codicis and the Summa Institutionum respectively, two texts which were recognised as essential in law studies for the next few centuries.

The second was Accursius, who, working between 1220 and 1240, compiled the Glossa Ordinaria, collecting the opinions of all of his Bolognese forerunners and partners at the school in an apparatus form containing more than 97000 entries – itself becoming perhaps the key legal text upon which all assessments of Roman civil law were based in the following centuries.

Roman law in the High Middle Ages

With a slow start of several hundred quiet years under the disunity and lack of interest of the Germanic kingdoms, Roman law – and in particular Justinians codification – spent a long time in the intellectual wilderness, applied or mused sporadically in territories with former Roman subjects or connections to the Church, and simmering tacitly in Italy.

The social, economic, and resultant intellectual rises of the late Early Middle Ages fertilised the potential of Roman law to embed itself within the growing traditions of scholarship in Italy. This revival of Justinians codification here, especially in Bologna, was crucial to the so-called “Reception” of Roman law, that being the transference of Roman law from the realm of university studies into actual authority within the governed land.

The jurists who trained at Bologna, the other Italian schools, and the schools which sprouted up in response in France at Orleans and Toulouse set the pattern for the future: graduates dispersed into administrative or judicial settings and brought with them an understanding of Justinians law in opposition to the less sophisticated native laws, and in time interwove the former with the latter.