Irnerius

Lantern and Light of the Law

(ca. 1060-1125 A.D.)

Master Irnerius, beacon of the law among us,
was the first one to teach that art in this city.
—ODOFREDO, In. D 1,1,6.

Introduction

Irnerius at Work

The name of Irnerius is not a household name; indeed, it is not even a “lawhold” name for most of us—though it clearly ought to be. In his great study on the formation of the Western legal tradition Law and Revolution, Harold J. Berman calls the twelfth century “the legal century.” If the twelfth century is the legal century, then the eleventh century is the century where lawyers were brewed in incipient law schools in anticipation of the percolation of legal science throughout Europe a century later. Irnerius was that earlier century’s law professor emeritus, and the law school at Bologna that he founded and where he taught was medieval Europe’s Harvard or Yale on a grand scale. Unfortunately, little is known of Irnerius’s personal life. “We know less about Irnerius’ personality than we do about Gaius or about Shakespeare; yet it must have been one of the great inspiring personalities of the ages.”¹ Irnerius’s successors recognized his contribution to the disciplined study of law and honored him with the epithet lucerna juris (lamp or lantern of the law) or lumen legum (light of the law). It is perhaps our sitting in the dark, stark corners of a legal presentism and not ever looking backwards—as if we were legal dunces—that has prevented us from seeing the morning light of Irnerius.

Legal Renewal: The Study of Law and Law Schools

The rise of the law school in the city-state of Bologna and its role in the resurgence of the Rule of Law in Western Europe—which the fons et origo of our own Rule of Law—present us with a fascinating historical phenomenon. Wigmore describes it as “one of the greatest intellectual phenomena recorded in European history,—the resurrection of Justinian’s law-texts.”² Five things combined to give spark to the notion of Western law and usher Europe away from the dark tutelage and rule of Barbarian folk law: the rise of the universities, the method of analysis known as scholasticism³, the papal resolve to free the Church from the unordained hands of secular rulers in what is often called the Investiture Controversy, the chance—in another age we might have said without social scruple providential—discovery of Justinian’s Digest,⁴ and the education of professional lawyers by law school associated with the growing university system.⁵

In the eleventh century an ancient copy of the Roman emperor Justinian’s Digest was found in an Italian library, and, as copies of it made its way around Europe, it was assiduously studied by scholars at the various recently-founded universities. Compared to the hotchpotch law of the Church,⁶ or the Barbarian folk law—that “rude muddle of conflicting customs”⁷—that prevailed in existing legal institutions, the Roman law as contained in the Digest was highly developed, sophisticated, and organized and systematic. It was viewed, not as the law of the Roman Empire in the sixth century, but as the “law applicable at all times an in all places” because it was the “true law, the ideal law, the embodiment of reason.”⁸ And thus, as Brian Tierney observes, that “whole conception seems to have come to medieval intellectuals with the force of a revelation.”⁹ What the Bible was to theology and Aristotle was to become for philosophy, Justinian’s Digest was to law. Next to Justinian’s storehouse of jurisprudence, the Barbarian’s laws appeared as nothing less than a ius asininum, the law of asses.¹⁰ Historians refer to this phenomenon as “The Reception.”

As the doctrine of Justinian’s Corpus Juris was grasped by the learned, schools were established. Students interested in learning the law as a separate discipline would combine and hire a teacher who had mastered the Corpus Juris Civilis—of which the Digest was the greater part—to teach them in a form of partnership (societas) between students and professor.¹²

Irnerius and the Law School at Bologna

Irnerius's Signature

In the very beginning of this legal renewal, Irnerius—who is also known as Guarnerius—a young teacher of grammar and rhetoric at the northern Italian city of Bologna, decided to study Justinian’s recently-discovered Digest. His sedulousness and devotion to his task are well-reflected in the fresco painted on the ceiling of the town hall of Bologna by Luigi Serra, who depicts the great Irnerius writing a gloss as he struggles with Justinian’s text. After Irnerius mastered the difficult text and gained a reputation as a glossator,¹³ he began teaching students law at Bologna around 1087. Irnerius may have done this at the prompting of Countess Matilda of Tuscany; together with Irnerius, she is said to have help found the University of Bologna, whose faculty initially only taught law.¹⁴ He was not the first such professor in Bologna; as just one example, Pepo the causidicus or consultant judge—the “bright and shining light of Bologna”—preceded him.¹⁵ Nor was Bologna the only city with a law faculty; other cities such as Rome, Pavia, and Ravenna also had competing schools.

But Bologna had the glossator Irnerius, and he quickly established a reputation as the teacher of civil law par excellence. It was Irnerius, Professor Stein tells us, “who marked the separation between the science of law and the practice of law.”¹⁶ Irnerius played the midwife in the parturition of law from the womb of rhetoric, and thus gave birth to the law as a course of independent, systematic subject of study.¹⁷

Students from all over Europe flocked to Bologna as if on a legal pilgrimage, among them Franks, Picards, Provençals, Alemanns, Angles, Spaniards, etc. These variegated students banded together by ethnic and geographical origins. They also formed two self-governing guilds or corporate bodies (universitas scholarum), one comprising all students from north of the Alps, another formed of students from south of the Alps. These guilds received concessions and charters from the city of Bologna, and thus were able to contract with professors, and govern the life of their student members. These guilds also provided lodging to students, determined the material and courses to be taught, regulated the price of rent and books, and even disciplined the students as they had both civil and criminal jurisdiction over them. Students paid the professors directly, who themselves acted on a private basis banding together in their own guilds. By the twelfth and thirteenth centuries law students in Bologna may have numbered between 1,000 to—if the thirteenth century law professor Odofredus and chronicler of the University of Bologna is to be believed—as much as 10,000.¹⁸

To accommodate the vast number of students that flocked to hear him, Irnerius resorted to open-air lecturing in the great square of San Stefano in Bologna. One wishes to yet hear his echoing voice in that square by the ashlar-built Romanesque palace and churches—the Palazzo Isolani and the Chiesa San Stefano—surrounded by the numerous domes, campaniles, and fighting towers of medieval Bologna as if silent witnesses to the lectures they were privileged to hear.

Irnerius was the author of numerous works on the law; however, most have been lost. His interlinear glosses were published and are known as the Summa Codicis. Also attributed to Irnerius is his Quaestiones de juris subtilitatibus. Other of Irnerius’s works are either fragmentary, if they exist, or his authorship of them not established.

Irnerius’s Contributions to the Law

Irnerius, then, may be said to be the father of all modern law professors and law schools. Heavily influenced by Irnerius, the Bologna system of legal education and curriculum was the model for other law schools that then sprang up throughout Europe—Padua, Perugia, Pisa, Salamanca, Montpellier and Orléans, Prague, Vienna, Cracow, and Heidelberg.¹⁹

The law developed mightily under the influence of the legal scholars who applied the principles of scholasticism, particularly the disciplined methodology of the trivium—rhetoric, grammar, and dialectic (or logic)—to the text of Justinian’s Digest almost as if it were scripture.²⁰ And from its beginnings in Bologna, it spread throughout Continental Europe and influenced even insular Albion, and through that island’s colonization of our continent our law. These scholars “built the debris of the Roman law” into the “walls” of our law.²¹ Pollock and Maitland, in their History of English Law Before Edward I, observed:

On his death bed, after a long life devoted to the study and teaching of civil law, Irnerius was asked to nominate his successor. But evidently one man was not enough to replace him, and so he named four of his students: Bulgarus, Martin Gosia, Hugo da Porte Ravennate, and James—the so-called “Four Doctors”²³—to take his place. He is reported to have said:

Bulgarus os aurum

Martinus copia legum

Mens legum est Ugo

Jacopus id quod ego

Bulgarus has a voice of gold

Martinus knows the detail of the law

Ugo has the mind of the law

James is like me.

These “Four Doctors,” each with his own contribution and talent, carried on the work Irnerius had started. Neither Europe nor the West nor its law was ever to be the same, and we are all better for it.

Sources

Berman, Harold J. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge: Harvard University Press, 1983.

Brundage, James A. Medieval Canon Law. New York: Longman , 1995.

Stein, Peter. Roman Law in European History. Cambridge: Cambridge University Press, 2002.

Wigmore, John Henry. A Panorama of the World’s Legal Systems, Vol. III. St. Paul: West Publishing Company, 1928, 981-94.

Art Sources

http://www.filodiritto.com/artediritto/artediritto.htm

Notes

¹ John Henry Wigmore, A Panorama of the World’s Legal Systems, Vol III (St. Paul: West Publishing Company, 1928), 983. ⇑

² Wigmore, 981. ⇑

³ The scholastic method typical of scholasticism worked from the authority of certain texts (in theology, the Scriptures, the Church Fathers, and the Church’s magisterial teachings; in law, e.g., the Corpus Juris Civilis; in philosophy, e.g., the works of Aristotle). While accepting the authoritative nature of those texts, it recognized that gaps or apparent contradictions might exist in them. Applying logical methods derived largely from Aristotle (called “dialectical”) it sought to harmonize any seeming contradictions, make explicit what was only implicit, and fill in any gaps so as to arrive at a fully synthetic doctrine based upon those texts. See Berman, 131-32. ⇑

⁴ The Digest was a lengthy compilation and organization of the legal opinions of Roman jurists under the headship of the lawyer Tribonian initiated under the reign of the Emperor Justinian. It formed the greater part of the Corpus Juris Civilis, the whole body of law of the Roman Empire during the reign of Justinian. It embraced the law of property, wills, contracts, torts, family relations, criminal law, and constitutional law. ⇑

⁵ The rise of the Western legal tradition is artfully expounded in the classic text by Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983). See specifically Berman, 122-23. ⇑

⁶ The law of the Church was found in many sources, largely uncompiled. Canon law had to await the synthesis of the monk from Bologna, Gratian, before it had a text equivalent to the Digest. It was in about 1140 that Gratian compiled A Concordance of Discordant Canons. It constituted the first comprehensive and systematic legal treatise in the West, though it built upon the earlier work of St. Ivo of Chartres. ⇑

⁷ Brian Tierney, The Crisis of Church and State, 1050-1300 (Toronto: University of Toronto Press, 1988), 97. ⇑

⁸ Berman, 122, 123. ⇑

⁹ Tierney, 97. ⇑

¹⁰ William Seagle, The History of Law (New York: Tudor Publishing Co., 1946), 166. ⇑

¹¹ Rudolph von Ihering, Geist des römischen Rechts, 2, translated and quoted in Seagle, 170. ⇑

¹² Berman, 123. ⇑

¹³ After the discovery of Justinian’s Digest, commentators would expound the original 6th century text with interlinear glosses or commentary (glossa), which gradually grew into the margins of the original text. Thus were these scholars known as the glossators. See Stein, 46. ⇑

¹⁴ Berman, 127. ⇑

¹⁵ Charles Haskins, The Renaissance of the Twelfth Century (Cambridge 1927), 199, quoted in Berman, 582 n. 2; Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, 2002), 45. ⇑

¹⁶ Stein, 46. ⇑

¹⁷ See Haskins, 199 quoted in Berman, 582 n. 2. ⇑

¹⁸ Berman, 124, 582 & n. 3; Brundage, 52. ⇑

¹⁹ Berman, 127. ⇑

²⁰ Stein, 46. ⇑

²¹ Henry Maine, Ancient Law (1861), ch. 2. ⇑

²² Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I (Cambridge: Cambridge University Press, 1923) (2nd ed.), 23-24. ⇑

²³ James A. Brundage, Medieval Canon Law (New York: Longman 1995), 44-45. ⇑