Irnerius

Irnerius Ken Pennington Peter Landau had a passion for connecting jurists to legal texts that circulated without authors’ names attached to them. He concentrated on Northern European jurists who worked from the Seine to the Rhine, or a little North or South of those rivers. He also dealt with Irnerius in the recent past.1 No medieval jurist’s works and achievements are more cloaked in mystery or buffeted by speculation than Irnerius’. He has been credited as being the first significant teacher of Roman law. Other scholars have declared that he never taught. His fame was a myth. In spite of the lack of sources, or more accurately, the difficulty of the sources, many more scholars have been written about his life and works than they have about any other jurist, perhaps with the exception of Gratian who has received his share of ink during the last twenty years. As Jean Gaudemet wrote fifty years ago:2 The extreme rarity of sources leaves the door open to a wealth of hypotheses with which one could describe the first forms of Bolognese teaching and the relationship of Irnerius to the Renaissance of law. There has been a flurry of activity recently that has deepened our understanding of the problems surrounding Irnerius’ life, writings, and teaching if not always providing us with certain answers.3 Peter Landau, ‘Irnerius’, HRG² 2 (2011) 1303-1306. My conclusions here differ on a number of points from Landau’s. 2 Review of Spagnesi, Wernerius Bononiensis judex in RHD 48 (1970) 653. 3 Ennio Cortese, ‘Irnerio’ 1.1109-1113, gives an excellent summary of the scholarly discussion on 1110 with bibliographical references, reprinted in Giovanna Murano, Autographa, 1.1: Giuristi, giudici e notai (sec. XII-XVI med. (Centro interuniversitario per la storia delle università italiane, Studi 16; Bologna 2012) 2-8. For further bibliography see my ‘Odofredus and Irnerius’, RIDC 28 (2017) 11-27 and Andrea Padovani, ‘Matilde e Irnerio: Note su un dibattito attuale’, Matilde di Canossa e il suo tempo: Atti del XXI Congresso internazionale sull’alto medioevo in occasione del IX centenario della morte (1115-2015): San Benedetto Po – Revere – Mantova – Quattro Castella, 20-24 ottobre 2015 (Spoleto 2016) 199-242, with an extensive bibliography. Luca Loschiavo, ‘Verso la costruzione del canone medieval dei testi giustinianei: Il ms. Oxford, Oriel College 22 e la composizione del Volumen parvum’, Inter 1 108 KENNETH PENNINGTON Modern scholarship has mirrored the theories of the medieval jurists who followed Irnerius. They told stories about Irnerius, they speculated about his life, and, in the end they marveled at his genius. I am convinced that the evidence is clear that he taught and that he was a major figure in the early years of the law school in Bologna. Irnerius was, most likely, of German descent. The various names that are attached to him in the sources are certainly Germanic.4 One may wonder, however, whether he was born in Germanic lands. Irnerius’ earliest document dating to 1112 labels him a Bolognese citizen, Guarnerius bononiensis, and the last document dating to 1125 also calls him a judge from Bologna, Warnerius iudex bononiensis. The designation of place would indicate that Irnerius was not a transplant but was Bolognese. Appending a family or place name was the standard way in which later jurists who taught in Italy were identified. Irnerius’ successor and student, Bulgarus, and the most important of the ‘Four Doctors’, also was, like Irnerius, referred to by only his name. However, Bulgarus’ close connection to Irnerius and Bologna cannot be doubted.5 Recently doubts have arisen about the 1125 case of arbitration in Casale Barbato between two monasteries.6 Rossella Rinaldi has cives necnon peregrinos: Essay in honour of Boudewijn Sirks, edd. Jan Hallebeek, Martin Schermaier et alii (Goettingen 2014) 443-458 at 444-445. 4 Guarnerius, Wernerius, Gernerius, Warnerius, Irnerius, Yrnerius, see Enrico Spagnesi, Wernerius bononiensis iudex: La figura storica d'Irnerio (Accademia Toscana di Scienze e Lettere ‘La Colombaria’, Studi 16; Firenze 1970) 27-106. 5 Luca Laschiavo, ‘Bulgaro’ DGI 1.357-359 for further information and Pennington, ‘The Beginnings of Law Schools in the Twelfth Century’, Les écoles du XIIe siècle, ed. Cédric Giraud (Leiden 2019) 226-249. 6 Spagnesi, Wernerius bononiensis iudex 29-35 and 100-106 and in Codice diplomatico polironiano (961-1125), edd. Rossella Rinaldi, Carla Villani, and Paolo Golinelli (Storia di San Benedetto Polirone, 2.1; Bologna 1993) 331-335. In a letter of Pope Alexander II in 1067, PL 146.1326: ‘secundum sanius consilium sapientum et seniorum fratum sibi abbatem eligat’. Another letter of Alexander II dated between 1061-1073, PL 146.1402: ‘post multos dies quorumdam sapientum consilio’. The second letter is found in the Panormia 6.85 and in Gratian’s Decretum C.33 q.5 c.2, which occurs in all three IRNERIUS 109 made the argument that the document is ‘suspect’ because it contains the technical term consilium sapientum. She argues that since the term came into usage only much later, the authenticity of the document is questionable. However, the term can be found in many early medieval documents before 1125 that pre-date the emergence of the consilium sapientis in the late twelfth and early thirteenth centuries.7 Consequently, her suspicions about the text cannot be supported. Giuseppe Mazzanti accepted Rinaldi’s argument and added his own doubts.8 He noted that much later jurists thought that Irnerius stopped teaching because of ‘nimia senectus’, extreme old age, quoting an anonymous gloss from the late thirteenth or early fourteenth century found in the margins of a Digest manuscript and printed by Giacomo Pace that begins with a poem widely attributed in other sources to Irnerius at the end of his teaching career:9 Versus: recensions of the Decretum. The phrase also is found in a letter of Pope Calixtus II of 1122, PL 163.1233: ‘Si nos audire, et religiosorum et sapientum consilio nostris volueris monitis obedire’. King Alfred’s law ca. 872-900 declared, PL 138.451: ‘Ne accipias unquam dona, quoniam caecant saepissime sapientum virorum consilium, et verba eorum pervertunt’. There are many more examples. To find the term in a document of 1125 is not anachronistic. 7 In a letter of Pope Alexander II in 1067, PL 146.1326: ‘secundum sanius consilium sapientum et seniorum fratum sibi abbatem eligat’. Another letter of Alexander II dated between 1061-1073, PL 146.1402: ‘post multos dies quorumdam sapientum consilio’. The second letter is found in the Panormia 6.85 and in Gratian’s Decretum C.33 q.5 c.2, which occurs in all three recensions of the Decretum. The phrase also is found in a letter of Pope Calixtus II of 1122, PL 163.1233: ‘Si nos audire, et religiosorum et sapientum consilio nostris volueris monitis obedire’. King Alfred’s law ca. 872-900 declared, PL 138.451: ‘Ne accipias unquam dona, quoniam caecant saepissime sapientum virorum consilium, et verba eorum pervertunt’. There are many more examples. To find the term in a document of 1125 is not anachronistic. 8 Giuseppe Mazzanti, ‘Un falso irneriano? Riconsiderazioni sul document del 1125’, Il contributo del monastero di S. Benedetto Polirone alla cultura giuridica italiana (secc. XI-XVI): Atti del Convegno San Benedetto Po, ex refettorio monastico – Piazza Matilde 29 settembre 2007, edd. Pierpaolo Bonacini and Andrea Padovani (San Benedetto Po (Mantova) 2009) 37-44. 9 Giacomo Pace, ‘“Garnerius Theutonicus”: Nuove fonti su Irnerio e i “Quattro dottori”,’ RIDC 2 (1991) 123-133 at 131. 110 KENNETH PENNINGTON Bul<garus> os aureum, M<artinus> copia legum, H<ugo> mens legum, Ja<cobus> id quod ego. Tiberyus fuit primus secundum ista tempora, set secundum nostra, Y<rnerius>. Istos versus fecit Garnerius quando dimisit lecturam, quia rogabatur ut alicui istorum dimittet lecturam suam, quia non poterat plus legere per nimiam senectutem, et voluit eam alicui dimittere, set respondit per versus dictos. Unde isti erant scolares Garneryi. (Bulgarus has the golden voice, Martinus the knowledge of law, Hugo a legal mind, Jacobus is I. Tiberius was the first great Roman jurist; in our times Irnerius. Garnerius composed these verses when he stopped teaching because he was asked to choose someone to follow him in the classroom because he was too old to teach any longer. He answered their request with this poem. The jurists were all his students). Saint Omer, Bibliothèque muncipale lat. 451, fol. 9ra Dig. 1.2.2.5 s.v. Tiberium Mazzanti uses this text to make the point that there is no mention of Irnerius between his excommunication 1119 for supporting the IRNERIUS 111 election of an anti-pope and 1125. Therefore, one could conclude that the 1125 arbitration case took place when Irnerius was too old to participate in it.10 This argument ‘ex silentio’, based on a very late anonymous marginal text, can neither be confirmed or rejected — like all arguments from silence and those based on very late sources. What can confidently said is that there is no valid argument to reject the authenticity of the 1125 text. Irnerius was still alive in 1125. The fourteen documents that give us information about Irnerius’ work as a judge are also a good guide to the period in which his fame and reputation as a teacher and a jurist were at their peak.11 Scholars have long assumed that Irnerius began teaching law around 1100.12 Odofredus thought that Irnerius began as a teacher of logic. The cleverness of Irnerius’ glosses support Odofredus’ claim. Irnerius was a gifted glossator who raised difficult questions about opaque texts of Roman law.13 Bulgarus sometimes began his lectures grappling with Irnerius’ glosses.14 Since he was last mentioned in a text dating 1125 Irnerius must have stopped teaching after that date and did not live much longer than the late 1120’s. It is likely, however, that he and Gratian, the father of canon law, overlapped. Gratian likely began teaching ca. 1125-1130. In the middle of the 1130’s when the papal chancellor wrote to Irnerius’ student Bulgarus for guidance on procedure in the courts, Bulgarus was the reigning law teacher in Bologna. Irnerius was gone. Gratian had not yet established his preeminence in canon law.15 Mazzanti, “Un falso Irneriano” 43-44. They do not give, however, sure evidence of his autograph. The subscriptions on the charters differ in a number of details; see the photos in Enrico Spagnesi, Wernerius bononiensis iudex and Giovanna Murano, Autographa, 1.1: Giuristi, giudici e notai (sec. XII-XVI med. (Centro interuniversitario per la storia delle università italiane, Studi 16; Bologna 2012) 2.4. 12 Andrea Padovani, ‘Alle origini dell’università di Bologna: L’insegnamento di Irnerio’, BMCL 33 (2016) 13-25. 13 Pennington, ‘Odofredus and Irnerius’ 26. 14 Loschiavo, ‘Bulgaro’ 357. 15 ‘The “Big Bang”: Roman Law in the Early Twelfth-Century’, RIDC 18 (2007) 43-70 at 48-52. 10 11 112 KENNETH PENNINGTON Aside from his glosses to Justinian’s codification, one might argue that Irnerius’ most creative contribution to the revival of Roman law was his adaptations of Justinian’s legislation after 535 called the Novellae and collected into a work named the Authenticum in the Middle Ages.16 Irnerius simplified the baroque Latin translations of the Greek Novellae, added some of his own words, and placed them in the margins of Justinian’s Codex next to the imperial statutes that needed updating, clarification, or change. The jurists called Irnerius’ reworked texts ‘authenticae’. When the scribes placed ‘authenticae’ in the margins of Codex manuscripts, they usually, but not always, placed the letters CN at the beginning of the texts to identify them. Irnerius also composed ‘authenticae’ for Justinian’s Institutes.17 The manuscript tradition of the Codex is clear evidence that the jurists and the schools quickly accepted Irnerius’ ‘authenticae’ as normative supplements to Justinian’s legislation.18 In the earliest manuscripts Irnerius’ siglum y. or yr. was sometimes attached to them.19 In any case, Pennington, ‘The Beginning of Roman Law Jurisprudence and Teaching in the Twelfth Century: The Authenticae’, RIDC 22 (2011) 35-53; see the essays by Loschiavo, Roumy, Viejo-Ximenez and Wallinga in Novellae constitutiones: L’Ultima legislazione di Giustiniano tra oriente e occidente da Triboniano a Savigny: Atti del Convegno Internazionale Teramo, 30-31 ottobre 2009, edd. Luca Loschiavo, Giovanna Mancini, Cristina Vano (Università degli Studi di Teramo: Collana della Facoltà di Giurisprudenza 20; Napoli 2011). 17 Hermann Lange, Römisches Recht im Mittelalter, 1: Die Glossatoren (München1997)74-80, Enrico Spagnesi, Libros legum renovavit: Irnerio lucerna a propagatore del diritto (Pisa: 2013) 86-101. 18 I would suggest that Burchard of Ursperg’s famous passage in which he alleged that Irnerius renewed (renovavit) Justinian’s books of laws when he ‘paucis forte verbis alicubi interpositis eos distinxit’. That passage might be translated ‘Irnerius brought clarity by inserting a few words at various places’. I do not think that we can know with certainty what Burchard meant, but I think that he would not have been thinking of Irnerius’ glosses. His glosses could not be described as being a few words. Ennio Cortese also seems to be inclined to interpret Burchard’s words as referring to the ‘authenticae’; see his Il rinascimento giuridico medievale (Roma 1992) 19-24 at 23-24. 19 E.g. Paris, BNF lat. 4528 (1150), fol. 5r. Giovanni Baptista Palmieri, ‘Authenticarum collectio antiqua’, Scripta anecdota glossatorum, ed. Augustus Gaudentius (Biblioteca iuridica medii aevi 3; Bologna 1901) lists 5 16 IRNERIUS 113 later jurists recognized them as Irnerius’ work. Much more work has to be done on these texts to understand how he altered the texts in the Authenticum to produce ‘authenticae’ into the Codex.20 We will never know how many of the ‘authenticae’ Irnerius composed. There are over 200 in the vulgate edition of the Codex. Three collections of ‘authenticae’ have been found that circulated outside the Codex and not in the margins of the Codex where they are normally found.21 Later jurists who commented on the ‘authenticae’ provide substantial evidence for Irnerius’ role in composing and editing the ‘authenticae’.22 They evaluated his work. In an early Parisian Codex manuscript, an anonymous jurist commented that the last sentence in the ‘authentica Qui res iam dictas to Cod. 1.2.14 (Auth. 9.3.11 = Nov. 120.11)’ could not be found in the ‘body of authenticae’ but was added by Garnerius.23 The glossator is right. Neither the sentence nor the idea in the sentence is in Justinian’s original text. Another glossator simply stated that Irnerius was the author of the last sentence: ‘Guarnerius dicit’.24 ‘authenticae’ that have the y. signum, 72, 74, 81, 82 and one that has yr. 73, from Berlin, Staatsbibliothek lat. 275, fol. 4vb: ‘Idem est de immobilibus ut possint pignori dari uel alienari, nisi ex conditione date sunt ne aliquot modo alienentur. yr.’ which appears in very few manuscripts. 20 Palmieri lists over 200 as does Paul Krueger in an appendix to his edition of the Codex. Palmieri’s list is more useful because it is based on the manuscripts; Keuger’s list is based on those ‘authenticae’ that became part of the medieval vulgate Codex. 21 See Franck Roumy, ‘Une collection inédite d’authenticae composée en normandie à la fin du xiie siècle’, Novellae constitutiones: L’Ultima legislazione 155-204 at 158-160. 22 See Spagnesi, Libros legum renovavit 88. 23 Paris, BNF lat. 4528, fol. 5rb, s.v. Set melius dicatur: ‘Hoc non est in corpore autenticarum set additum a G<arnerio>. See Gero Dolezalek, Repertorium manuscriptorum veterum Codicis Iustiniani (2 vols. Ius Commune, Sonderhefte 23; Frankfurt am Main 1985) 1.362. 24 Vienna, ÖNB lat. 2267, fol. 4vb: ‘Guarn<erius> dicit’. 114 KENNETH PENNINGTON At another place in the same manuscript a gloss in a similar hand added to the ‘authentica In testamento to Cod. 6.56.7 (Authen.8.12 = Nov. 115.4)’:25 This authentica was added here because of an over abundance of material. Why did Garnerius place it here? I believe there was no reason other than he had no other place to put it. Both these comments must have been written before Y. or Yr. became the standard name with which the glossators cited Irnerius. Luca Loschiavo has done yeoman work on Irnerius’ glosses that provides a model for future research. Most importantly he has provided a list of early Codex manuscripts that contain extensive Irnerian material.26 In an essay on Justinian’s post-codification legislation, the Novellae, he analyzed two intriguing glosses in which Irnerius discussed the legal force of the collection. Irnerius wrote these two glosses to the last paragraph of Justinian’s text, Cordi nobis, in which the emperor mandated that no one could cite his previous legislation but only this new, revised body of laws. Loschiavo concluded that Irnerius argued the medieval collection of Justinian’s Novellae in its medieval format, the Authenticum, was not an official collection since it lacked a statute of promulgation.27 Justinian did promise, however, new legislation when it was needed. Ibid. fol. 74vb: ‘Hoc authenticum ex abundanti uidetur hic apositum. Quare ergo aposuit Garn<erius>? Certe nullam credo rationem esse aliam, set quia non alicubi posuerat’. 26 E.g. Arras, BM 265=A, Bamberg, SB Jur. 20= B; Berlin, SB 408=B1; Leipzig, BU 883= L; Montpellier, BU H.85= M; Munich, BSB lat. 22=M1; Paris, BNF lat. 4517 = P; Stuttgart, Württembergische Landesbibliothek jur. Fol. 71=S; Verona, BC CLXXII (180)= V; Vienna, ÖNB 2267=V1; Zeil, Fürstlich Waldburg-Zeil’sches Gesamtarchiv 123= Z. Loschiavo has identified these manuscripts in his published works and in public lectures. 27 Luca Loschiavo, ‘La riscoperta dell’Authenticum e la prima esegesi dei glossatori’, Novellae constitutiones: Novellae constitutiones: L’ultima legislazione di Giustiniano tra Oriente e Occidente, da Triboniano a Savigny: Atti del Convegno Internazionale, Teramo, 30-31 ottobre 2009, ed. Luca Loschiavo, Giovanna Mancini, Cristina Vano (Università Degli Studi Di Teramo, Collana della Facoltà di Giurisprudenza 20; Napoli 2011) 111-139 at 128-136. 25 IRNERIUS 115 Irnerius wrote two glosses to explain the Authenticum’s relationship to Justinian’s codification.28 A short one that outlined the essence of his argument and a longer one that expanded his thought. I think we may assume that the shorter gloss preceded the longer one and that both reflect Irnerius’ thought:29 It can be assumed from Justinian’s mandate that this book, that is the Authenticum, is to be repudiated. The style is different from Justinian’s other constitutions and disagrees with them. There is not a promulgating decree, not an end, and not any order. These new constitutions, of which the text speaks, are not promised <by the legislator> except in the case of new cases that are not yet entangled in the snares of the laws. y. Irnerius had further thoughts about the Authenticum and later expanded his gloss:30 y. Here Justinian refers to the book that they call the Novellae Constitutiones, entitled the Authenticum of which a certain part was taken from a volume that was not Justinian’s. Here Justinian speaks of new constitutions that are promised concerning new cases not yet entangled in the snares of the law. These laws [i.e. Authenticum], if they must be called laws, simply conflict with the Codex in many things. Justinian truly did Both glosses are edited by Loschiavo, ‘La riscoperta’ 129. Ibid.: Hinc argumentum sumi potest quod liber iste, idest Autentica, sit repudiandus. Eius enim stylus cum ceteris Iustiniani constitutionibus nullo modo concordat, sed omnino inter se discrepant. Item eius libri principium nullum est, nec seriem, nec ordinem aliquem habet. Item novellae istae constitutiones, de quibus hic loquitur, non promittuntur nisi de novis negotiis et nondum legum laqueis innodatis. y. P fol 1v and Paris 4528, BNF lat. 4528, fol. 2rb both append y. to the gloss. 30 B fol. 1r, S fol. 2vb, V1 fol. 2rb: y. (add. B) Hinc conicitur librum quem novellarum constitutionum appellant, ‘autenticum’ dictum, quod ex eo fuerit pars quedam excerpta Iustiniani non esse. Novellarum quippe constitutiones, de quibus loquitur, non nisi de novis negotiis et que nondum laqueis legum sunt innodatis, promittuntur. At leges ille, si modo ‘leges’ dicende sunt, de <h>is dumtaxat loquuntur de quibus et Codex et in pluribus adversantur. Non autem verisimile Iustinianum <h>uic operi ac tanto labore tantaque diligentia confecto mox adversa constituisse, ut scilicet contra suum propositum repperiatur aliquid contrarium in legum articulis. Set nec eius operis stilus indubitabilibus constitutionibus Iustiniani congruit, cuius etiam nullum certum principium extat, nullusque ordo fuit nec certus. y. (add. V1) Dolezalek, Repertorium 1.130 prints the Bamberg text. Loschiavo reported in a lecture he gave at the University of Bologna (November 2019) that the gloss in A and B1 had the siglum yr., a siglum for Irnerius which seems to have become more common in the second half of the twelfth century. 28 29 116 KENNETH PENNINGTON not finish his Codex with so much labor and diligence to have composed so soon another work contrary to the first. The style of this work does not conform to the style of his undoubted constitutions. There is no certain letter of promulgation, and no order to the text and no certain order. y. In the thirteenth century Hugolinus de Presbyteri and Accursius continued to reflect on and debate Irnerius’ glosses.31 To Justinian’s statement in Cordi nobis that if the emperor would promulgate new constitutions that he would call them Novellae. Accursius copied a gloss of Hugolinus almost exactly and commented:32 One may gather that Justinian made the Authenticum. Almost as if those constitutions entered his mind at this time during the production of the Codex according to Jacobus (or Johannes). Irnerius thought otherwise and thought that the Authenticum ought to be rejected. Accursius then repeated Irnerius’ longer gloss and concluded: ‘I have made a contrary argument in the title dealing with laws and constitutions.33 In a constitution of Theodosius and Valentinianus See Giovanni Chiodi, ‘Ugolino Presbiteri’, DGI 2.1994-1997 and Giovanna Morelli, ‘Accursio (Accorso)’, DGI 1.6-9 and with the assumption that the h. glosses in Munich SB lat. 28178 are Hugolinus’. 32 Berlin, SB lat. Fol 20, fol. 7rb, Karlsruhe, Badische Landesbibliothek Aug. perg. 7, fol. 3ra, Munich, SB lat. 28178, fol. 2vb, Paris, BNF lat. 4530, fol. 3rb, lat. 4531, fol. 2vb, 4532, fol. 4ra, 4533, fol. 3ra-3rb lat. 8940, fol. 2va, St. Gall, SB 746, fol. 7ra, s.v. in alia congregatione: ‘Sic sume argumentum quod Iustinianus fecit librum autenticorum. Quasi tunc iam uenerat in mente sua eas quandoque componere secundum Jacobum (Jo. Paris 4530, 4532, 4533, St. Gall). Set y. contra et elicit hic argumentum in contrarium in quantum quare, scilicet ille liber autenticorum, sit repellendus, nam non nominatur sicut hic dicitur, set autenticorum. Item eius enim stilus cum ceteris Iustiniani constitutionibus nullo modo concordat, set omnino inter se discrepant. Item eius libri principium nullum est, nec stilus, nec ordo. Item nouelle iste constitutiones sunt de quibus hic loquitur, non promittuntur, nisi de nouis negotiis’. The text shows many small variations. I have noted only the important ones. 33 Ibid. ‘Item ad hoc est contra arg. infra de legibus et consti. l.Humanum, in fine ut ibi notaui (ut ibi notaui om. Berlin) (Cod. 1.14(17).8). ac.’ (ac. Paris, 4531, 4533, 8940, St. Gall). In Munich lat. 28178, fol. 2vb at the top of the folio is Hugolinus’gloss that Accursius copied: ‘Hic potest dare percipi autenticas leges per Justinianum confectas fuisse et etiam quod in mente sua iam uenerat eas quandoque componere secundum Ja. . . .’ 31 IRNERIUS 117 in which the emperors declared that all laws must emerge from cases that are not covered by previous legislation and must be considered by and consented to in an assembly of nobles and judges. Finally the laws must be promulgated by the emperor.34 Consent to legislation was a key element in medieval legal thought.35 Hugolinus and Accursius point out that the Authenticum ignored these rules.36 An anonymous glossator in a Vienna manuscript noted that the Lombarda also failed to follow these rules for promulgating laws.37 As in his gloss to Cordi nobis, Accursius copied Hugolinus’ gloss almost word for word. At the end of the twelfth century, Johannes Bassianus (Azo?) gave an interesting interpretation of Irnerius’ glosses, with a sarcastic comment on the scholarly skills of his fellow law teachers:38 34 Cod. 1.14(17).8. For the importance of consent in medieval thought see Pennington, ‘Representation in Medieval Canon Law’, The Jurist 64 (2004) 361-383 and Repræsentatio: Mapping a Key Word for Churches and Governance: Proceedings of the Sam Miniato International Workshop, October 13-16, 2004, ed. Alberto Melloni and Massimo Faggioli (Münster-Hamberg-Berlin-WienLondon: LIT, 2006) 21-40. Gratian thought that customary usage validated legislation, Gratian, D.4 d.a.c.3: ‘Leges instituuntur, cum promulgantur, firmantur, cum moribus utentium approbantur. Sicut enim moribus utentium in contrarium nonnullae leges hodie abrogatae sunt, ita moribus utentium ipsae leges confirmantur’. 36 Ibid. Munich, SB 28178, fol. 20ra: ‘Arg. pro y. ad id quod scripsit supra de emend. Iustin. Cod. in fine . . . h.’ Accursius’ gloss follows directly after Hugolinus’. 37 Vienna, ÖNB 2267, fol. 14va to Cod. 1.14.(17).8: ‘Hac lege argumentantur quidam longobardam legem non esse’. 38 Johannes Bassianus (Azo?), Prohemium cum additionibus domini Accursii (Venice 1496, Hain 2233) fol. 1r: ‘Huius autem libri fuit auctor dominus Justinianus . . . Unde est argumentum ab opinione vel ab auctoritate, quia sic indicant plures sapientes . . . licet a quibusdam temere sibi blandientibus aliquando contrarium non solum dictum sed etiam scriptum fuerit quod scilicet a monacho vel ab alio scriptum fuerit, ut ait Irnerius quod apparet per suam notulam in Codex de emendatione Iustiniani Codicis circa finem positam, ut plenius circa litteram dici potest. Sed tamen quod Irnerius voluit dicere verum esse potest quo ad dicta, sed tamen auctoritas Iustiniano data fuit’. On the question of attribution see Ennio Cortese, ‘Bassiano (Bosiano, Boxiano), 35 118 KENNETH PENNINGTON Justinian was the author of this book . . . It is proven by the opinion and by the authority of many learned men . . . although some jurists rashly claim the contrary — in their lectures and even in their writings — that a monk or someone else wrote the text as Irnerius appears to say in his gloss to the Cordi nobis . . . Nevertheless, what Irnerius wanted to argue can be true as far as the language, but undoubtedly Justinian gave the work its authority. Loschiavo has given these Irnerius’ two glosses on the Authenticum a close reading. He notes that the first gloss makes linguistic objections to the laws in the Authenticum and demonstrated his philological talent, which is the main evidence for his having been a teacher of logic before he turned to law. The second gloss concentrates on the relationship between the Codex and the Authenticum. There he noted that the ‘laws’ in the Authenticum often contradict or correct the statutes in Justinian’s Codex. How could Justinian have created a collection of laws lacking the clear organization that we find in the Codex?39 The answer to these questions is difficult if impossible. Irnerius must have spent much time and labor in his quest to reconcile the laws in the Authenticum with those in the Codex. His conviction that the laws in the Authenticum rested on unstable foundations must have given him the freedom to alter, change, and reinterpret and modify them with his ‘authenticae’. In the end Irnerius accepted the Authenticum as a malleable vehicle to up-date Justinian’s Codex.40 Later jurists were inspired by Irnerius to compose their own ‘authenticae’. The sigla of Bulgarus, Albertus, Jacobus are found in the manuscripts.41 Although many of these later ‘authenticae’ were dropped out the manuscript tradition in the thirteenth century Giovanni’, DGI 1.191-193 at 192a. I have not found evidence to doubt the original text’s attribution to Bassianus, although Accursius did revise it. The manuscripts must be examined before we can come to certain conclusions. 39 Loschiavo, ‘La riscoperta’ 130. 40 For similar a conclusion see Spagnesi, Libros legum renovavit 87. 41 As well as Pilius, Henricus de Baila, Johannes Bassianus; see Palmieri’s list. IRNERIUS 119 as the standard medieval text of the Codex developed, they demonstrate the power of Irnerius’ example beyond the grave.42 Gratian acknowledged Irnerius’ authority in the world of early twelfth-century law as he compiled the stages of his Decretum. Probably because of Irnerius’ authority and fame, Gratian included 30 of his ‘authenticae’ in his Decretum. Significantly, he chose to include the ‘authenticae’ but not the texts of the Codex to which they were attached. Gratian must have taken his texts from an original corpus he considered to be the work of Irnerius or from the margins of Codex manuscripts. He added them to the last recension of his Decretum either as texts or by incorporating them into his dicta.43 Irnerius took liberties with his texts, and Gratian followed his example.44 In their comments on the ‘authenticae’ the jurists recognized Irnerius’ editing. As Accursius noted in his Ordinary Gloss to one ‘authenticae’ that ‘these are Irnerius’ words not Justinian’s’.45 The jurists were aware that the ‘authenticae’ were abbreviated and created by Irnerius and many others. Gratian also edited or supplemented Irnerius’ texts. He placed the ‘authentica Presbiteri diaconi’ to his dicta after C.5 q.6 c.3 that dealt with clerics who give false testimony. The ‘authenticae’ called for three years of punishment for a cleric giving false testimony. Gratian changed Justinian’s and Irnerius’ three years of punishment to twelve.46 Twelfth- and Tammo Wallinga, ‘The “authenticae” of Irnerius and their Tradition’, Novellae constitutiones: L’Ultima legislazione di Giustiniano tra oriente e occidente da Triboniano a Savigny: Atti del Convegno Internazionale Teramo, 30-31 ottobre 2009, edd. Luca Loschiavo, Giovanna Mancini, Cristina Vano (Università degli Studi di Teramo: Collana della Facoltà di Giurisprudenza 20; Napoli 2011) 141-154 at 154: “it is clear that there was a wide variety of summaries of the same Novels, and this is difficult to reconcile with the idea of all authenticae having been written by Irnerius’. 43 Viejo-Ximenez, ‘Las Novellae de la tradicion canonica occidental y del Decreto de Graciano’, Novellae constitutions 205-277. 44 Viejo-Ximenez gives a nice example ibid. 251 of Gratian’s editing the ‘authenticae’ Presbiteri. 45 Accursius, to Cod. 1.5.20 (Venice: 1496) fol. 12v s.v. Nunc autem: ‘ vel dic hec verba esse Yr. non legis’. 46 C.5 q.6 d.p.c.3; Viejo-Ximenez, ‘Las Novellae’ 251-252 prints the texts. 42 120 KENNETH PENNINGTON thirteenth-century jurists had no qualms about altering the legislative texts to suit their own times.47 Scholars have not expressed any doubts about Irnerius’ role in composing the ‘authenticae’, but a few have questioned whether he ever glossed the texts of Roman law. They have concluded that if he did not write glosses, then he never taught.48 The three most prominent historians who have questioned Irnerius’ importance in one way or another, and whether or when he entered a classroom, are Johannes Fried, Richard Southern, and Anders Winroth.49 Fried has made the most sustained argument beginning in 1974 and extending it into the twenty-first century.50 Irnerius’ fame in the early twelfth century, he claims, benefitted from the work of the later jurists who polished and enhanced the myth of a gifted figure who left his mark on Bolognese law school and jurisprudence. Fried summed up his argument with the phrase that Irnerius was ‘ein Kunstprodukt und selbst ein Mythos’ created by the jurists.51 Not many myths have had so many earthly foundations. Anyone who has more than a passing acquaintance with twelfthcentury Roman law manuscripts finds many glosses attributed to 47 For a discussion of how the jurists altered and edited legislative and legal texts see K. Pennington, ‘The Making of a Decretal Collection: The Genesis of Compilatio tertia’, Proceedings Salamanca 1976 (Vatican City 1980) 67-92. 48 E.g. Anders Winroth, “Irnerius’, Medieval Italy: An Encyclopedia (2 vols. New York-London 2004) 1.532: ‘there is little evidence that Irnerius was a teacher of Roman law . . . his role in creating the Bologna law school is much exaggerated . . . the school was founded by a later generation, including Bulgarus de Bulgarinis and Martinus de Gosia’. 49 Richard W. Southern, Scholastic Humanism and the Unification of Europe, 1: Foundations (Oxford 1995) 159, 223, 274-282, who reached his conclusions without any investigation of Roman law manuscripts; Anders Winroth, The Making of Gratian’s Decretum (Cambridge Studies in Medieval Life and Thought 49; Cambridge 2000) 168-174, who relies on printed sources. 50 Johannes Fried, ‘... ‛auf Bitten der Gräfin Mathilde’: Werner von Bologna und Irnerius’, Europa an der Wende vom 11. zum 12. Jahrhundert: Beiträge zu Ehren von Werner Goez, ed. Klaus Herbers (Stuttgart 2001) 171-206 51 Ibid. 201. IRNERIUS 121 Irnerius and many references of jurists to Irnerius’ opinions. Another myth that has taken root in the literature is that the siglum y. emerged only in the late twelfth or early thirteenth century. The y. siglum is found in early twelfth century manuscripts. To give just one example, Paris, Bibliothèque Nationale de France lat. 4517, a manuscript of the Codex that dates to the late eleventh or early twelfth century has numerous glosses with y.52 It is a remarkable body of evidence if not yet thoroughly explored and documented. Even if his glosses have not yet been exploited fully, they are indisputable evidence that he taught for many years in Bologna. His glosses are scattered in the interstices between the lines of the texts and also adorn the margins of these manuscripts. They are not just simple explanatory glosses. As we have seen in his glosses treating the Authenticum, they raise important and interesting issues.53 Later jurists recognized Irnerius’ genius and grappled with his ideas in the twelfth and well into thirteenth century. At the end nineteenth century, Gustav Pescatore and Enrico Besta published important studies of Irnerius’ glosses, but modern historians have not followed in their footsteps.54 Gero Dolezalek’s examination of his glosses in the manuscripts of the Codex was the only significant contribution to the study of Irnerian glosses in the twentieth century.55 The y. and yr. sigla that twelfth- and thirteenth-century jurists used to identify Irnerius’s glosses have been misinterpreted or misunderstood because legal historians have not done the hard manuscript work of identifying a corpus of Irnerian glosses. In the earliest Roman law manuscripts the sigla of jurists 52 See note 20 above. P fol. 7va, 9vb, 10rb, 11vb, 14ra, 18rb, 21ra, 21va, 28vb from Cod. Book 1. All these glosses have y. at the beginning of the gloss, which is evidence of their age. Another indication that these glosses are early twelfth century is that the Digest is cited as dig. 53 Cf. Winroth, Making 168-170. 54 Gustav Pescatore, Die Glossen des Irnerius (Greifswald 1888), Enrico Besta, L'Opera d'Irnerio (Contributo alla storia del diritto italiano) (Torino 1896). 55 Gero Dolezalek, Repertorium prints a number of Irnerius’ glosses that he found in Codex manuscripts in volume one and also prints glosses from the two titles that he explored in volume two, Cod. 2.1 and 5.1. 122 KENNETH PENNINGTON were often placed in front of a gloss.56 That fact convinced some that the y. in front of a gloss was a paragraph sign.57 However, the jurists adopted no standard system for early glosses. To identify Irnerius’ glosses, they sometimes placed the y. at the beginning of the gloss and at other times at the end,58 and occasionally at the beginning and the end of a gloss.59 Placing the sigla at the end of the glosses only emerged slowly as standard practice in legal manuscripts. In the future we may obtain a much better picture of Irnerius’ body of work if we use the manuscripts that Loschiavo has pointed to for the Codex and as-yet-to-be-identified Digest manuscripts.60 With his love of manuscript work, I have no doubt that Peter Landau would have enjoyed participating in the quest for the Corpus Irnerianum. The Catholic University of America Washington, D.C. Pennington, ‘Odofredus and Irnerius’ 13 n.8. See Dolezalek, Repertorium 1.461-485 and Winroth, Making 167: ‘[later jurists] began to read the paragraph marks preceding glosses in old manuscripts as a siglum ‘y.’ . . . which provided fertile ground for myths about Irnerius’. 58 E.g. Paris, BNF lat. 4450, fol. 3v and the examples in Pennington, ‘Odofredus and Irnerius’ 13 n.8, 19 n.28, n.30 59 E.g. Paris, BNF lat. 4536, fol. 48va and in Pennington, ‘Odofredus and Irnerius’ 20 n.34, 22 n.39. 60 Besta, L‛Opera d'Irnerio v, ix, xi used Padua, BU 941, Turin, BU F.II.14, Venice, Biblioteca di San Marco lat. DVIII, which are good manuscripts for Irnerian glosses. 56 57