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The Teaching of Law in the Twelfth Century
by Anders Winroth
Teaching of law began in earnest during the twelfth century. The sources of Roman law, and in particular Justinian’s Digest were rediscovered after many centuries of neglect. Gratian compiled, at around 1140, a collection of canon law for teaching. Students swarmed to the law schools to learn this new discipline that was so useful in landing a well-paid job. By the end of the century, the existence of a group of administrators educated in law had changed the way that popes, kings, and bishops managed their affairs. A new class had been born, that of bureaucrats.
This is all familiar. But there is still much in the history of legal studies in the twelfth century that is unknown or misunderstood.
I will attempt to make and illustrate two points. The period around 1100 is usually thought of as the first flourishing of the Bologna Law School. I will argue that there is no evidence for this view, and that as far as we know teaching began there only in the 1130s. My second contention is that as soon as teaching got started in Bologna, many other law schools followed suit. There was a great flourishing of law schools all over Europe from the middle of the twelfth century to its end.
When did law start to be taught in earnest in Bologna? The university celebrated its ninth centenary in 1988, and claims to be the world’s oldest continuously active institution of higher learning.[1] How do the Bolognese know that their university was founded in 1088?
This foundation year was arrived at, just in time for the celebrations in 1888, by a committee, which was chaired by the renowned poet and Nobel Prize Laureate Giosuè Carducci, who was then the professor of Italian literature at Bologna. The committee was not able to point to any specific event in 1088. The reason for opting for that year probably has more to do with the suitability of the year 1888 for the celebrations than with historical considerations. But the committee, like the scholarly world at large, was convinced that law started to be taught in Bologna at some point in the late eleventh century.
They lead the beginnings of legal teaching in Bologna back to the exceptionally productive law teacher Irnerius. He is usually credited with having single-handedly started off the legal renaissance of the twelfth century by mastering and teaching all volumes of Justinian’s enormous Corpus iuris civilis, after having organized its components in an efficient way. Irnerius was the gleaming light at the beginning of the medieval tradition of legal teaching, and everyone that followed him was greatly in his debt.[2]
I have given the bare outlines of a story that has been retold many times over the centuries. The first man we know to have told it was the law professor Odofredus, who died in 1265. His lecture courses are published. If I were to study Roman law, I would have liked to have Odofredus as my professor. He was a pleasant, urbane, and loquacious man who knew how to liven up the dry fare of Justinian’s Digest with anecdotes. He loved telling stories about his predecessors among Bolognese law professors. Odofredus told his students that the great Bulgarus had become senile as he aged, to the degree that towards the end of his life he liked to play with the children in the sandbox. Historians have learned to take such anecdotes with at least a grain of salt. Not so when Odofredus talked about Irnerius, who lived more than a century before him. This is what he told his students about Irnerius:
Now, sirs, you should know that Irnerius was the lamp of law among us, that is the first who taught in this city…he began to study on his own in our books and…he was of great fame and the first illuminator of the science, and he was the first who glossed our books.[3]
The modern view of Irnerius is essentially the story of Odofredus with some further elaboration. This is remarkable, since modern historians usually are wary of testimony purveyed more than a century after the events. We prefer to write history based on contemporary documents. What image of Irnerius appears out of such documents?
Well, for starters, Irnerius was certainly a historical person, although his name was not Irnerius. He appears in a dozen or so records of court cases from between 1112 and 1125.[4] Some of them are preserved in the original and contain his autograph signature. He signed Wernerius, so this was his name, not Irnerius. In these documents, he is one of several assessors who assisted the judge in adjudicating disputes, often on behalf of the famous Countess Mathilda of Tuscany. He is always outranked by other jurists, who get to sign before him.[5] And Roman law never enters these court cases, which are judged according to local Italian law.[6] In other words, Irnerius appears as one in a group of North-Italian jurists of Italian law active in the courts. There is no hint in these documents that he might have taught Roman law.
Another category of contemporary documents is made up of Irnerius’s writings. Very few texts survive in medieval manuscripts with an attribution to him. This has not prevented scholars over the centuries to ascribe to Irnerius many anonymous texts, often with little other basis than wishful thinking. A hundred years ago Irnerius was believed to have written several voluminous treatises as well as hundreds if not thousands of glosses, that is to say those short but often important interpretative annotations that appears in the margins of manuscripts of Roman law books.[7]
The bulk of these texts are anonymous in the manuscripts that preserve them, and there is no reason to ascribe them to Irnerius. We have to focus on those few texts that were in fact attributed to him during the middle ages. They amount to a few glosses and a single, very brief treatise, altogether. Not many texts, and not of any remarkable brilliance. The great twentieth-century historian of medieval Roman law, Hermann Kantorowicz, judged the one surviving treatise written by Irnerius disappointing.[8] He was looking for the lamp of the law that Odofredus boasted about, and he was not finding it. To fix this problem, Kantorowicz made radical changes in his edition of the text, which thus better answered to the reputation of Irnerius.[9] More importantly for our purposes here today, there is nothing in these texts of Irnerius that suggests that he was a teacher. They are brief comments on specific passages in Justinian’s Corpus. He had only started to scratch the surface of Roman law. To find evidence of teaching of law, one has to go to the 1130s and 1140s. At this time, a group of teachers were active in Bologna. Gratian taught canon law, and the so-called Four doctors taught Roman law. Their surviving writings make it quite obvious that they were teachers.
One of the Four doctors was Bulgarus, who had started his career before 1141 and died c. 1158. That he was a teacher is clear from the practical exercises he gave his students. In them, he lets two students, or two groups of students, argue for the plaintiff and the defendant, while Bulgarus himself takes on the role of the judge. It looks like a moot court or a seminar. One example concerns horse-trading (see Appendix 1). The text starts by briefly setting up the situation. Titius sells a horse to Seius. The names used are those that classical Roman jurists used in their examples. Seius takes the horse, but does not pay at once. Instead he presents a guarantor, who promises to pay the price of the horse to Titius, if Seius does not deliver the monies. Seius does in fact default, so Titius seeks out the guarantor to get paid. He is in for a surprise. The man who warranted the purchase-price turns out to be a cross-dressed woman. The question now is whether Titius can sue her to get his money.
After this introduction, the text looks like a report from a court case. Each party argues their case and is countered by the other party. The woman says that Titius cannot sue her to get the purchase price for the horse from her, because she is a woman, and women cannot be sued in such cases under the Senatusconsultum Velleianum. Titius tries two arguments. First, he argues from analogy with the rules concerning sons-in-power. Under Roman law, they had as little legal standing as women to be guarantors, but a law protected those who were fooled by a son-in-power who behaved as if he had his own legal standing as a paterfamilias. Titius’s other argument is simpler. A passage in Justinian’s Digest states that the law should in general help women, unless they have acted deceitfully. Titius thought this woman was deceitful.
The woman responded by claiming ignorance of the rule that she could not stand surety, so she argued that she did not behave deceitfully, and she referred to the Senatusconsultum Velleianum.
In the end, Bulgarus acted the role of the judge, and determined that the woman won the case. She could not be held liable for the price of the horse.
This brief example gives a fascinating glimpse of the classroom of Bulgarus. There can be no doubt that he was a teacher. This kind of practical exercise must have been very useful for future lawyers. Cross-dressed women were perhaps not an urgent social problem in twelfth-century Italy, but the broader issue of whether women were able to conduct business was surely of great importance at a time and in a place that experienced the commercial revolution.
Bulgarus’ colleague in the area of canon law, Gratian, also used a question-format in his teaching. He wrote a textbook of canon law called the Decretum, which he finished in 1139 or soon after.[10] Within ten years of its completion, another law teacher doubled the size of the Decretum by adding new texts which he thought should also be included. Most of the material in this work was organized around thirty-six fictitious cases, each of which tells a little story that Gratian then uses to analyze legal issues.
Causa 29 is an example (see Appendix 2).[11] Gratian wrote what is in italics in the edition, while the text in ordinary Roman are the authorities, the laws which Gratian quotes. The text is that of the first recension. In case twenty-nine, Gratian tells us about a young, aristocratic woman, who through intermediaries agrees to marry a nobleman whom she has never met. On her wedding day, however, another man shows up and claims to be her fiancé. She is fooled and consents to marry him. Then the ruse is exposed, and to add insult to injury, she discovers that her new husband is not even a nobleman; he is a “servus”, which in twelfth-century Latin is an ambiguous term. It might mean either “slave” or “serf”.
When he has told his story, Gratian extracts the legally relevant questions. In this case, he asks, first, whether this is a valid marriage. Second, “if she first believed a man was free, and later discovered that he was unfree, could she lawfully divorce him?” Then he goes on to address each question separately.
In the first question, Gratian first states that the woman was indeed married to the imposter, since marriage comes about through mutual consent. And she had consented. But then Gratian responds to this statement by pointing out that the idea of consent presupposes that two persons agree to the same thing. But this woman and her groom agreed to different things. She thought she was marrying someone else. The conclusion is that there was no consent, hence no marriage.
Gratian then addresses the second question about whether you may divorce your husband because he is unfree. He proceeds in a similar way. He quotes several passages from the Pauline Epistles and an excerpt from what he thinks is an ecclesiastical law passed by Pope Julius.[12] In Gratian’s readings, all of these texts make the point that a free person is capable of marrying an unfree person. Thus, no reason to dissolve a marriage just because one partner is unfree, which was a point well worth making since it was far from self-evident.[13] Gratian then quotes two decisions of an early medieval church council to the effect that if a free person marries an unfree person, whom she mistakenly believes to be free, the marriage may be dissolved. Here, the unfree status of one of the partners dissolves the marriage, but only if the free person has been fooled about it, as Gratian also points out.
Gratian behaves like a teacher. He tells a story containing interesting and lively details that will stay in the memory of his students. Notice also that the case reeks of the classroom. It is an artificially construed case that Gratian made up to be able to discuss the issues that interested him, namely, in which circumstances do mistakes or deceit invalidate a marriage. The case from the classroom of Bulgarus could be a real court case. Gratian’s case is not. If the woman in the case sued for a divorce, she would have been granted one as soon as the judge had made clear the nature of marital consent. It would be irrelevant whether the imposter was free or not. In the courtroom, it would have been enough to answer Gratian's first question. In the classroom, both questions were interesting.
Gratian’s cases are not court cases. And his questions are not records of real or imagined legal arguments in court, as we saw that Bulgarus’s questions are. Gratian uses a similar back-and-forth method, but the contradictions are not between lawyers for opposite sides, they are between seemingly contradictory texts. The back and forth is Gratian’s pedagogical method of arriving at and presenting a common ground among legal authorities that seem incompatible. His method is typical of early scholasticism. We must conclude that Gratian’s questions are not records of practical exercises; they are records of the knowledge he wanted to impart to his students, in other words, his lectures.
To summarize my first point: this evidence shows that Gratian and Bulgarus taught law in Bologna by the 1130s. There is no evidence for any earlier teaching there, by Irnerius or anyone else. 1088 is certainly too early a date for the foundation of the Bolognese law school.
What we do know about twelfth-century Bologna is impressive enough. It was there that Gratian produced the first university textbook of canon law, and it was there that Bulgarus and his colleagues produced innovative and insightful readings of Roman law. Against this background, we tend to overlook what was happening elsewhere in Europe. The story about the teaching of law in the twelfth century is not a story that plays out only in Bologna.
Let me give a simple illustration. During a military campaign into Italy, Emperor Frederick Barbarossa met with his Italian subjects on the fields of Roncaglia in 1158.[14] The emperor issued several laws and privileges, the most famous of which is the one that in the technical terminology of medieval law is known as the authentica “Habitum”.[15] In some textbooks of medieval history one may read that this was a privilege for the University of Bologna, through which the emperor took students and teachers of law there under his protection. A group of Bolognese teachers of Roman law had assisted Barbarossa, and historians have speculated that this put them in a position to influence him to give Bologna special protection. Against this background, any reader of Habitum will be surprised. The law does not mention Bologna at all, nor does it mention studies of law. It simply says that the emperor protects all students in Italy. It mentions no school in particular or any discipline in particular. So why say it is about Bologna? It seems that some historians at some point lacked the imagination to think there might be other Italian seats of learning than Bologna.
We get a glimpse of the spread of legal studies in Italy in a letter probably from the 1180s that survives in the original.[16] It was sent to the abbot of the monastery of St. Victor in Marseilles from one of his monks, whose name begins with the letter R. The monk is embarrassed and apologetic. His abbot had sent him to deal with important matters at the pope’s court in Rome, but he had never arrived there. Instead, when he wrote the letter, he was studying law in Pavia. The monk has clearly put a lot of effort into formulating his letter in such a way that his actions seem defensible, even laudable. It is written in a high rhetorical style. He wrote, “the animal, through whose conveyance I endeavored to reach Rome, at first and by God’s will, fell sick and at length passed away, in Pavia. I began to blush violently in shame and hesitated what to do about my unfinished business, but then I decided to devote myself to study.”[17] The monk goes on to describe how scholars, and particularly his Provençal countrymen, crowd to Italy to study law.[18] It would be useful for our letter-writer, when he arrives in Rome to argue his monastery’s case before the pope, to know just a little about law. To that end, he now plans to go to Pisa to continue his studies, and he wonders if the abbot might arrange to send some money.