THE CIVIL LAW GLOSSATORS

The school of Pavia pointed the way to a new approach to the study of legal texts but the honour of producing the first expositors of Justinian's compilation belongs not to Pavia but to Bologna.

The first law teacher at Bologna was said to be a causidicus, or consultant judge, called Pepo, in the last decades of the eleventh century. According to the English theologian Ralph Niger, writing a century later, his teaching was based on the texts of the Code and the Institutes, but he was apparently in a position to cite the Digest in his forensic arguments. For example, in 1076 the court of Beatrice, Marchioness of Tuscany, held at Marturi, had to deal with a dispute over the entitlement to a piece of land between a monastery, which claimed ownershipby virtue of a prior grant, and a long-standing possessor. The latter relied on forty-year prescription to retain the land but the court was persuaded that the prescription had been interrupted, since there had been a restitutio in integrum in favour of the monastery, in accordance with Digest 4.5.26, cited by Pepo.

Whatever Pepo's claims to have taught Justinian's law, it was Irnerius who marked the separation between the science of law and the practice of law. He had been a teacher of grammar and began his study of the legal texts with explanations of difficult terms that they contained. Then he moved on to whole passages. His comments were originally in interlinear glosses, which gradually expanded into the margins of the text. Irnerius was thus the first of a line of doctors at Bologna, known, from their characteristic method of expounding the texts, as the glossators.

The new approach was marked by a debate on how law fits into the general scheme of knowledge. The traditional view, expressed by Isidore of Seville, was that, since law deals with human behaviour, it must be categorised under ethics.

Now it was said that this was only true so far as the content of the rules was concerned. In so far as it concerns the interpretation of words in a text, law is part of logic. Logic embraced all three arts of that part of the traditional education known as the trivium, namely, grammar, dialectic and rhetoric. The scholastic techniques developed in these disciplines were exploited by the masters of Bologna. For them law was a higher study, only to be undertaken by those who had already mastered the arts of the trivium.

The glossators regarded Justinian's texts as sacred and ascribed to them almost biblical authority. They accepted without question Justinian's assurance that the texts contained no contradictions that could not be reconciled by one who tackled them with a subtle mind (Constitutio Tanta, 15) and they took it for granted that the compilation as a whole contained all that was necessary to answer any conceivable legal problem. The opening fragment of the Digest says that jurists are called priests and a succeeding fragment defines jurisprudence as ‘the knowledge of things human and divine'. Does this mean, asked the glossators, that the jurist should study theology? The answer was no, since ‘everything is found in the Corpus iuris'.

One of the main difficulties they faced was the appalling lack of coherence in the arrangement of the texts. The same matters were dealt with in the Institutes, Digest and Code, but without any order. The Bolognese glossators did not tamper with the order of the texts approved by Justinian. They supplied cross-references to all the texts which dealt with a particular topic, explaining differences and marshalling the arguments for and against a particular result. Their familiarity with the texts as a whole is indicated by the fact that they could cite every fragment in the Corpus iuris by its first words. No later generation of Roman law scholars has had a closer familiarity with the texts. They used all the techniques of dialectic to squeeze the correct meaning from a text.

For them every text, indeed every separate clause in every text, having been approved by the Emperor Justinian, had equal authority.

Various types of legal literature developed out of the glosses on individual texts. Summaries of the content of particular titles of the Digest or Code evolved into summae of the content of a whole part of the Corpus iuris, especially the Code and the Institutes. An apparatus was a collection of glosses covering the material contained in a particular title in a fuller manner than in a summa. A particular favourite for this treatment was the last title of the Digest, 50.17, de diversis regulis iuris antiqui, which contained over two hundred ‘rules', many in the form of general maxims. The glossators delighted in distinctiones, elaborate classifications with many divisions and sub-divisions, sometimes illustrated by diagrammatic tables. There were collections of opposing views on particular points ^l,dissensiones dominorum) and collections of quaestiones, disputed points, with arguments for each view set out with its supporting texts and usually a solutio. Whatever the form, however, everything they wrote revolved around Justinian's texts in all their complex entirety. The glossators worked in an incremental way, each generation imposing a new layer on that laid down by its predecessors.

Irnerius was succeeded by the generation of the Four Doctors, of whom the most distinguished were Bulgarus and Martinus Gosia. Bulgarus was pre-eminent at Bologna, where he was known as ‘the golden mouth'. Martinus favoured a more liberal approach. They differed over the kind of interpretation of the texts that would produce sensible and just results. Bulgarus assumed that Justinian's law was equitable and that the interpreter's function, in relation to any text, was to seek out the ratio legis, the purpose of the particular rule. In order to find this, other texts might be consulted, so long as they related to the same subject matter.

For Martinus, on the other hand, that was not enough. The apparent meaning of a rule, when taken in isolation, could be modified by reference to equity. This was not merely a general idea of fairness (equitas rudis), but the equity which was to be gleaned from a consideration of the Corpus iuris as a whole (equitas constituta). In interpreting a particular text, therefore, one was not limited to a consideration of other texts dealing with the same topic but could take into account any text which seemed to throw light on the problem.

Bulgarus was succeeded as leader of the Bolognese school by his pupil Johannes Bassianus, who perfected the method of expounding the texts. In his view a proper treatment of a difficult text should have four stages. First, there should be a bare statement of the problem without any elaboration. Secondly, the teacher should cite contrary texts and the solutiones which had been suggested. Thirdly, the matter should be projected on to a wider plane by the citation of general propositions that were relevant to the case. Such propositions, Bassianus said, were popularly known as brocards. Finally, there should be a broad discussion of the problem, either immediately in class or in the evening, when more time was available. This method started from the individual text and broadened the discussion outwards, first to other relevant texts on the same matter and then to the law as a whole.

One of the aims of glossatorial scholarship was to discover the general principles, or brocards, inherent in the Corpus iuris. Some of them were already assembled in the last title of the Digest, dedicated to maxims. Others were detached from their original context and were used as part of an argument on any matter to which they could be made relevant. Their function in litigation was to establish a presumption in favour of the party relying on them, but their exact scope was undefined and frequently they could be met by a counter-proposition, which put forward an opposing view.

Collections of brocards appear in the last quarter of the twelfth century. They always introduced strings of texts, which either supported or denied the proposition adopted by the brocard. Although apparently a civil law invention, they were taken up with enthusiasm by the canonists. They directed the busy lawyer quickly to the textual authorities, with which he could embellish his argument and impress the judge; often they were used to ‘blind the judge with science'.

Bassianus's pupil Azo began the task of synthesising the detailed case discussions of the previous generations of glossators. His summa on the Code was to have enormous influence, so that it came to be regarded as indispensible for legal practice; the adage was ‘who does not have Azo, should not go to court'. Finally, a century after Irnerius, between 1220 and 1240, the opinions of the whole school of civil law glossators were collected together by Azo's pupil, Accursius, in what became the standard Glossa ordinaria to Justinian's texts. It contains over 96,000 separate glosses, immediately superseded all earlier work and was always copied, and later printed, together with the original texts.

Without the help offered by Accursius's Gloss, it was thought, the texts could only offer partial guidance. For centuries, the Accursian Gloss was the basis of any doctrine which claimed to be derived from Roman law. The maxim came to be accepted that ‘What the Gloss does not recognise, the Court does not recognise.' It is only in the last decades of the twentieth century that serious study of pre-Accursian writing has revealed the wealth of ideas produced by the generations between Irnerius and Accursius. The authority of the Gloss is the origin of the idea, still characteristic of the continental civil law, that authoritative academic comment on a legal text is itself an authentic source of law.

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Source: Stein P.. Roman Law in European History. Cambridge University Press,2004. — 149 p.. 2004

THE CIVIL LAW GLOSSATORS

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