The civil law glossators

A gloss (from the Latin for “tongue” or “language”) is a short comment or explanatory note for unfamiliar words or legal concepts that require clarifica­tion. It was the basic form of explanation.

The glossators’ method and teaching style, based on logic and rhetoric, formed the foundation of European legal theory for centuries. It can be said that the glossators were the fathers of European jurisprudence. At the heart of European jurisprudence lies the idea, supported by the glossators, that the legal application of an intellectual rationale in the administration of justice, and not the use of force, is the best path for resolving conflicts between and among humans and nation-states.

Civil glossators regarded the Justinian Compilation as sacred, and they used their glosses to underscore the indisputable truth and authority of the legal text. For the civil glossators, the primary authority was the Corpus Iuris, as the Bible was for theologians and the writings of Aristotle were for philo­sophers. The two principles illuminating the method of the glossators were unconditional adherence to the text as it was revealed and logical formalism. The glossators considered the law more closely related to logic than to ethics. They did not use logic to test the validity of the argument provided by the text, but to harmonize divergences and clarify truths that they considered suprarational in character.

Irnerius (also called Guarnerius or Werneius) was the founder of the school of glossators in Bologna, the first that applied the scholastic method of textual interpretation to the Corpus Iuris, especially to the recently rediscovered Digest. Irnerius can also be considered the first law professor in Western Europe. An expert in grammar and a legal practitioner, judge of the court of Emperor Henry V, Irnerius was supported by Margravine Mathilda of Tuscany and passed away sometime after 1125. After Irnerius, the oldest glossators at the University of Bologna were the so-called Four Doctors: Bulgarus, Martinus Gosia, Hugo de Porta Ravennate, and Jacobus. Like Irnerius, the Four

The revival of Roman law 91 Doctors wrote apparatuses or collections of marginal glosses, as well as quaestiones (disputations), distinctiones (elaborated classifications), and other kinds of legal writings.

The most celebrated and brilliant lecturer of the Four Doctors was Bulgarus, who was called “mouth of gold” (os aureum). Bulgarus and Martinus were the leaders of two opposing schools at Bologna, corresponding in many respects to the schools of the Sabinians and Proculians during the Roman Principate. Bulgarus adhered more closely to the letter of the law than Martinus. According to Bulgarus, the interpreter should look for the purpose of the law (ratio legis), taking into consideration other texts related to the same topic as necessary.

Bassianus’s outstanding pupil was Azo. A professor at Bologna, where he had been born around 1150, Azo was famous for his Summa Codicis, Summa Institutionum, and Summa Digestorum, which became longstanding treatises of European common law. He also elaborated a collection of brocards. His most celebrated work, however, was his collection of legal glosses (technically called apparatus) to the first part of the Digest (Digestum vetus) and the Codex (books 1 to 9). The popularity Azo enjoyed was so great among Italian lawyers that it used to be said that without Azo on one’s side, it was a waste of time go to court: Chi non ha Azzo, no vada al Palazzo. His Summa Codicis was translated into Old French and was consulted and often copied verbatim by Henry Bracton (c. 1210-c. 1268) in his famous work On the Laws and Customs of England.

Azo’s best-known pupil was Franciscus Accursius (c. 1185-1263). Accursius compiled the so-called Great Gloss (Magna Glossa or Glossa Ordinaria), which is the consolidation of more than a hundred thousand glosses of his predecessors. We do not know the exact date of the completion of the Great Gloss, but by the middle of the thirteenth century the work was largely com­plete. The Accursian gloss was considered the pillar of European common law. Its importance is reflected in the maxim: “What the gloss does not recognize, the court does not recognize.” After the publication of the Great Gloss of Accursius, the center of legal productivity and development switched

from Bologna to Orleans, where two great jurists taught: Jacques de Revigny and Pierre de Belleperche. These two lawyers have been considered the precursors of the school of commentators.