You are on page 1of 39

Chapter 5

The Triumph of the Legal Culture

he results of the Investiture Struggle had enormous consequences for the

T political life of the regnum in the twelfth century. The emperors loss of control
over appointments to crucial bishoprics entailed loss of his surest means of assert-
ing imperial power in his southern kingdom. To some extent the power vacuum
would be illed by the expansion of papal power relying on the massive buildup
of propapal sources justifying Romes position on church reform. The disruption
of the old political order, however, had also facilitated the rise of a number of new
centers of power, the communes. Energized by rapid economic development and
demographic growth in the twelfth century, these new institutions became increas-
ingly eager to encoach on the authority of local ecclesiastical and secular lords and
to usurp powers traditionally recognized as granted by imperial concession.
The irst two sections of this chapter briely outline the rapid expansion of the
regnums economy in the twelfth century and describe the resistance of the com-
munes to the eforts of Frederick I (115290) to reestablish imperial power in Italy
beginning in the 1150s after a hiatus of more than three decades. With this back-
ground in mind, the main body of the chapter will trace the fortune of the learned
disciplines in Italy in the irst eighty years of the twelfth century, primarily the
development of the culture of the legal book, namely, the texts of Roman and canon
law, and the associated discipline of ars dictaminis. Since knowledge of these disci-
plines led to inancially advantageous careers, down to the late thirteenth century
at least, the legalrhetorical disciplines dominated the intellectual landscape of the
regnum and attracted a broad mixture of laymen and clerics who were willing to pay
for an education that potentially had practical value for earning a living.1

The service of notaries, for instance, proved fundamental to the newly created communes because
until the Peace of Constance in 1183 they had an unclear status as public authorities. Communal
actions, consequently, could be considered analogous to those of private individuals. For this reason
communal governments relied on notaries to legalize their acts. See Pietro Torelli, Studi e ricerca
diplomatica comunale, Atti e memorie della Accademia vigiliana di Mantova, n.s., 4.1 (1911): 1112. To
reinforce Torelli on the role of notaries in legalizing the acts of communes, see as well Gina Fasoli,
Il notaio nella vita cittadina bolognese (secc. XIIXV), Notariate medievale bolognese, 2 vols. (Rome,
1977), 2:12528.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

The traditional book culture did not remain impervious to the expanding inter-
est in literacy and practical knowledge in general. An efort to systematize the teach-
ings of Latin grammar and present them in the form of new textbooks directed at
people who did not speak Latin as a native tongue constituted the best indication of
such an awareness. At the same time, grammarians likely cut back on the teaching
of literature in the knowledge that they would have to adjust to the lower expecta-
tions of ars dictaminis, the simpliied rhetoric that dictated Latin prose style into the
ifteenth century. It is not too much to say that, as a result, in the twelfth century
rhetoric came to rival grammars historic domination of the trivium.
Of activity in the third member of the trivium, logic, we surprisingly know
almost nothing for the period from the 1050s down to the thirteenth century, when
references to courses on logic and the names of masters at last begin to appear. In the
case of theology, while we might assume that courses were already available in major
cathedrals, there is no indication of active scholarship until the 1160s, when theolo-
gians at Bologna began producing a modest number of treatises heavily dependent
on French theological works, a production that appears to have ceased after about
thirty years. The general lack of creativity in traditional ields of book culture con-
trasts strikingly with rapid advances in the three new disciplines, which were fueled
by the demands of a new market for practical education.
The dynamics behind the development of Latin culture in Italy in the twelfth
century cannot be understood without taking into consideration the commercial
revolution that began roughly in the decades around 1100.2 Economic development
afected the demand for education by tending to privilege certain kinds of learning
over others, by encouraging a wider stratum of the population to seek literacy, and
by producing a inancial incentive to become a teacher that had largely been lack-
ing in earlier centuries. We begin, then, by sketching the outlines of the commercial


Northern Italy played a role in the commercial revolution comparable to that of

England in the industrial revolution.The economic revival that had resumed in Italy
by the second half of the tenth century signiicantly intensiied after 1100. Trade,
primarily maritime commerce, constituted the foundation of the revolution. Pisa
and Genoa sharply increased their trade with the western Mediterranean islands as
well by clearing the seas of Muslim pirates and by attacking their bases in the ports
of north Africa.3 In the course of the twelfth century both cities secured trading
privileges in southern French coastal cities and in Christian and Muslim Spain.

For the phrase, see Philip Jones, The Italian City-State: From Commune to Signoria (Oxford, 1997), 189.
To the south Amali seriously competed for this trade until the late eleventh century. See Robert
S. Lopez, The Trade of Medieval Europe: The South, in The Cambridge Economic History of Europe,
vol. 2, 2nd ed. (Cambridge, 1987), 34546 and 35357; Philip Jones, La storia economica: Dalla
caduta del Impero romano al secolo XIV, in Storia dItalia, vol. 2.2 of Dalla caduta delImpero romano
al secolo XVIII, ed. Ruggiero Romano and Corrado Vivanti (Turin, 1974), 169296, and his Italian
City-State, 17576. Marco Tangheroni, Commercio e navigazione nel Medioevo (Bari, 1996), provides an
extended account of the expansion of Italian trade from the eleventh to the fourteenth century.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

Beginning at the end of the eleventh century, the Crusades opened up the east-
ern Mediterranean for northern Italian cities, principally Pisa, Genoa, and Venice, to
launch commercial ventures.4 All three gained trading privileges in the major cities
of the eastern Mediterranean, most signiicantly at Constantinople and Alexandria.
They also established residential quarters endowed with extraterritorial rights for
their merchants. Because the eastern Mediterranean ports were the ultimate desti-
nation of Arab merchants bringing goods from the Far East, Italian merchants in the
cities there quickly established a lively trade in spices between East and West. By the
early thirteenth century Italians controlled most of the trade in the eastern half of
the Mediterranean basin as well as in the western half.5
Burgeoning maritime commerce stimulated the economic life of cities in the
regnums interior. From the early twelfth century Lucca became the major producer
of silk cloth in western Europe.6 At about the same time Italian cities began to
manufacture cotton and fustian cloth (a mixture of cotton and lax), cheap products
produced for both a regional and an international market.7 The early twelfth cen-
tury also marked the beginnings of a signiicant international trade in woolen cloth
of low quality. By the end of the century, however, making use of dye stufs and alum
from the East, certain regions, primarily Tuscany, the Val Padana, and Liguria, became
specialized centers for inishing high-grade cloth imported from northern Europe.
Hemp, leather, and weapons also became items for export.
From the 1170s, when the trade fairs of Champagne irst appear in the documents,
transalpine trade drew an increasing number of merchants from the interior of the
regnum, primarily Lombardy, Emilia, and Tuscany.They carried north not only goods
originally imported by eastern sea and land trade but also items of local production,
and they returned with merchandise, especially northern cloth, much of which they
inished before sale. Although they shared transalpine trade with foreigners in the
twelfth century, Italians of the regnum were able to gain a large part of the two-way
traic in the course of the following century.8
Sharply increased international and local trade coincided with signiicant demo-
graphic growth, a high rate of urbanization, and a rise in food prices and in the value
of food-producing farmland.9 The large landowners direct cultivation of his domain,

Lopez, Trade of Medieval Europe, 34654; Jones, La storia economica, 168992, and Italian
City-State, 17375. David Abulaia, Trade and Crusade, 10501250, in Cross-Cultural Convergences
in the Crusader Period, ed. Michael Goodrich, Sophia Menache, and Sylvia Schein (New York, 1995),
On the difusion of Italian merchants to the east and west beginning in the eleventh century, see
David Abulaia, Gli italiani fuori dItalia, in Storia economica italiana, ed. Ruggiero Romano, vol. 1
(Turin, 1990), 26286.
It is diicult to know how much competition early Luccan production encountered from Sicily.
Anna Muthesius, Byzantine Silk Weaving, AD 4001200 (Vienna, 1997), 11318, discusses silk produc-
tion in Sicily but does not ofer an estimate of its chronology. The irst Latin silk-weaving workshop
was established in Sicily by Roger II at Palermo in 1147: Anna Muthesius, Sicilian Silks, in Textiles,
5000 Years. An International History and Illustrated Survey, ed. Jennifer Harris (New York, 1993), 165.
Jones, La storia economica, 1707.
Jones, Italian City-State, 177.
Athos Bellettini, La populazione italiana dallinizio dellera volgare ai giorni nostri. Valutazioni
e tendenze, Storia dItalia, vol. 5: I documenti, ed. Ruggero Romano and Corrado Vivanti (Turin,

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

which by the early eleventh century had become consolidated and produced a large
part of the surplus that sustained urban development, went into decline after 1100 as
communal governments expanded their control of the surrounding countryside and
invalidated seigneural jurisdictions. In the course of the twelfth century most large
landlords tended to rent out their land to local peasants on a contractual basis and
lived of the income.10 Communal intervention in the neighboring countryside also
encouraged the production of foodstufs through abolishing tolls on the transport of
goods in the region, involving the city in the construction of local roads, encourag-
ing peasants to exchange their produce for silver, and increasing the peasants need
for money by imposing taxes on their communities.11
Agriculture would remain the principal occupation of the regnum throughout the
Middle Ages, but the driving engine of its economy proved to be commercial cap-
italism. By the twelfth century merchants of the regnums cities had already demon-
strated the ability to mobilize capital from rural and urban sources for investment in
trade that would make the area the center of European commerce for centuries.The
increasing political control of the urban centers of the regnum over the countryside
corresponds to the centrifugal nature of local economies.


The possibility of tapping into the immense wealth of the Italian cities was probably
an important motive in the decision of the German emperor, Frederick I (115290), to
descend into Italy two years after his crowning.12 More generally, however, he wanted
to reestablish central authority in the southern kingdom. His arrival in the regnum in
the fall of 1154 brought to a close three decades of relative freedom from imperial
supervision. During those decades powerful magnates and communes had extended
their authority over lesser powers, usurping imperial jurisdiction along with lucrative
regalian rights, that is, imperial rights and possessions such as the right to coin money,
impose taxes, and control mining. Fredericks efort to subordinate Italian communes
to his will would exert a profound inluence on Italian life for the next forty years.
From the outset of his rule in 1152, Barbarossas governing policy, irst in his
German territories and then in Italy, sought to establish the imperial oice as the

1973), 497, estimates that the population of the Italian peninsula rose from 5.2 to 6.5 million from
1000 to 1100 and from 6.5 to 8.5 million from 1100 to 1200. Statistics for the price of grain, perhaps
the best indicator of population growth and economic development in agriculture, begin, to my
knowledge, only with the thirteenth century; see Bernard H. Slicher van Bath, Agarian History of
Western Europe, A.D. 5001850, trans. Olive Ordish (New York, 1963), 326.
Jones, Italian City-State, 16668. In large areas of Lombardy Franois Menant, Campagnes lombardes
du Moyen ge: Lconomie et la socit rurale dans la rgion de Bergame, de Crmone et de Brescia du Xe au
XIIIe sicle (Rome, 1993), 38182 and 388, sees this process as having been complete by 1200.
Ibid., 29293.
On the central importance of iscal claims, see the observations of Karlrichard Brhl, La politica
inanziaria di Federico Barbarossa in Italia, Popolo e stato in Italia nellet di Federico Barbarossa:
Alessandria e la Lega Lombarda: Relazioni e communicazioni al XXXIII Congresso storico subalpino per la
celebrazione dellVIII centinario della fondazione di Alessandria. Alessandria 6789 ottobre 1968 (Turin,
1970), 2012.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

font of all jurisdiction. Accordingly, only the emperor could delegate jurisdictional
authority, and that involved a speciic grant of power entailing feudal investiture.13
In some places the emperor intended to govern directly through his own oicials;
in other places, the local communes, counts, or marquesses, bound by vassalic oaths
of fealty to the emperor, would act in his stead, on the condition that they respected
speciic rights that only he could exercise.14 His insistent demand for restitution of
usurped imperial powers and possessions was often coupled with an ofer to grant
them in ief at a price.
Fredericks policy was not intentionally directed against the communes per se; it
applied to all agencies claiming to exercise political power. In 1158, at Roncaglia, a
college of Roman lawyers for the irst time clearly articulated the emperors pro-
gram for the regnum in a set of principles, which an obedient assembly of Lombard
cities and magnates then approved.15 The following spring, however, in reaction to
what they viewed as a threat to their liberty, the communes of Milan, Piacenza,
Crema, and Brescia rose up in open warfare against Frederick, and the pope joined
the conlict in the communes support.16 The emperor, in turn, found allies among
communes traditionally hostile to his enemies and eager to avail themselves of
Fredericks promise to legalize most of their usurpations of imperial regalia. The
high-water mark of Fredericks power came with the defeat of the Milanese and
their allies in 1162 and the utter destruction of Milan, the greatest city of the reg-
num. Over time, however, the exactions of the emperors oicials aroused hostility
to his authority even in once friendly cities. In 1167 Cremona, Mantua, Bergamo,

Renato Bordone, Linluenza culturale e istituzionale nel regno dItalia, Federico Barbarossa:
Handlungsspielrume und Wirkungsweisen des stauischen Kaisers, ed. Alfred Haverkamp (Sigmaringen,
1992), 15354. Alfred Haverkamp, Herschaftsformen der Frhstaufer in Reichsitalien, 2 vols. (Stuttgart,
197071), 449, notes that the vocabulary of feudalism is sometimes missing in the privileges granted
to communes by the emperor, but considers the relationship of subordination established between
the two powers to have been feudal in nature (51719).
Bordone, Inluenza culturale, 168.
Against an older view going back to Ficker in the late nineteenth century, Alfred Haverkamp,
Herschaftsformen der Frhstaufer, 73139, convincingly argues that the emperors policies applied
not merely to communes but to all political authorities in the kingdom. Four famous Bolognese
masters together with twenty-four judges from twelve cities formulated the major legislation
approved by the assembly at Roncaglia. The legislation declared (1) that all jurisdiction belonged
to the prince and that every judge had to take an oath of obedience to him; (2) that he could
place his palaces and government buildings where he chose; and (3) that under Roman law the
emperor had a right to levy personal as well as real-estate taxes on his subjects; Vittore Colorni,
Le tre leggi perdute di Roncaglia (1158) ritrovate in un manoscritto parigino (Bibl. Nat. Cod.
Lat. 4677), in Scritti in memoria di Antonio Guifr, 4 vols. (Milan, 1967), 1:143. See also Constitutio
et acta publica imperatorum et regum, ed. Ludwig Weiland, MGH, Legum, no. 4, pt. 1 (Hannover, 1893),
24445. Kenneth Pennington, The Prince and the Law, 12001600: Sovereignty and Rights in the Western
Legal Tradition (Berkeley and Los Angeles, 1993), 837, discusses the statements that Frederick I
himself made at Roncaglia regarding his power and the interpretations of his claims down into the
thirteenth century.
The formation of the league and its actions against Barbarossa are discussed by Giulio Vismara,
Struttura e istituzioni della prima Lega Lombarda, Popolo e stato, 291332. See as well Paolo
Lamma, I comuni italiani e la vita europea, 11271204, in Storia dItalia, ed. Girolamo Arnaldi
et al., 2nd ed., 5 vols. (Turin, 1965), 1:28890.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

Brescia, and Milan formed the Lombard League, and over a ten-year period the
ranks of Fredericks enemies grew to include most of the communes of the prov-
ince. The league defeated the imperial army at Legnano in 1176; the parties signed
an armistice at Venice in 1177; and a peace treaty, at Constance, in 1183.
Although formulated as a limited set of concessions by the emperor to the
communes, the Peace of Constance rendered the communes de facto almost
completely autonomous. Under the terms of the treaty, the emperor recognized
the right of the cities of the league to elect their own rulers and make their
own laws. In fact, communal governments willingly recognized the suzerainty of
the emperor as deined by Constance because his acceptance of their obedience
legitimated their existence as political authorities.17 The communes made con-
cessions of their own. Consuls, the elected leaders of the town government, had
to be invested either by the bishop or the representative of the emperor; a series
of crimes was excluded from the consuls jurisdiction; and consuls could render
inal verdicts in other crimes only when sums of less than twenty-ive pounds
of gold were involved. Furthermore, cities were required to furnish soldiers and
tribute on the occasion of an imperial descent into Italy. Although the Peace of
Constance directly concerned only the cities of the Lombard League, within a few
years major cities of the Piedmont, Tuscany, and the Romagna assumed equivalent
autonomy on their own.18
Territorial lords, especially in the Piedmont, Liguria, and Lombardy, now felt
free to act as independent powers vis--vis the emperor. Nevertheless, Fredericks
allies, the greatest Italian feudal princes of Lombardy, Monferrato, Biandrate, and
Malaspina, emerged from Constance with their power diminished in relation to
their neighboring cities.19 Weakened in their position, at Constance they could not
speak for themselves, but were represented in the bargaining by Asti, Vercelli, and
Piacenza respectively.20
City-dwellers may have become even more loyal to their communes in the
aftermath of the epic struggle against Barbarossa, which generated myths that
nourished local patriotism for centuries. The lessening of the imperial threat after
Constance, however, not only ushered in a period of endemic warfare among the
communes but also increased factionalism within the consular elites that domi-
nated communal governments. Divisions in the upper classes in turn encouraged
the rise of broader-based groups demanding a right to participate in the commu-
nal government.

On the terms of the peace, see Carlo G. Mor, Il trattato di Costanza e la vita comunale italiana,
in Popolo e stato, 36377; and Alfred Haverkamp, Der Konstanzer Friede zwischen Kaiser und
Lombardenbund (1183), Kommunale Bndnisse Oberitaliens und Oberdeutschlands im Vergleich, ed.
Helmut Mauerer, Vortrge und Forschungen, no. 33 (1987), 1161. For the general implications of
the peace, see Jones, Italian City-State, 33841.
Gina Fasoli, La politica di Federico Barbarossa dopo Costanza, in Popolo e stato, 39697.
Anna Maria Nada Patrone and Gabriella Airaldi, Comuni e signorie nellItalia settentrionale: Il Piemonte e
la Liguria, Storia dItalia, no. 5 (Turin, 1986), 3032; and especially for medieval Piedmont, Francesco
Cognasso, Il Piemonte nellet sveva (Turin, 1968).
Raoul Manselli, La grande feudalit italiana fra Federico Barbarossa e i comuni, Popolo e stato,
34361. Manselli concludes (361): i veri, i soli vincitori furono i comuni.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture


Law Schools
By 1100, the traditional book culture of litterae et mores, centered in the Italian
cathedral schools, a culture that was already threatened by the rapid development
of secular legal studies, the growing inluence of reform piety, and the disruption
of institutional continuity, had to confront a further challenge: the emergence of
private schools narrowly focused on teaching canon law and ars dictaminis. While in
principle the two new subjects, which were taking shape as clearly deined academic
disciplines, could be accommodated within a cathedrals educational program, they
could also be taught by private teachers beyond the cathedral walls. By the mid-
twelfth century, Bologna emerged as the unrivalled center of private education in ars
dictaminis and canon law as well as Roman law.
Why did it happen? Part of the answer lies in Bolognas natural advantages: cen-
trally located in the kingdom, it had access to a rich countryside where abundant
supplies of food were normally available, making the city capable of feeding a sub-
stantial student population.21 Although the cathedral must have ofered some level
of education, absence of evidence of a cathedral school in the late eleventh century
suggests that private teachers were not competing against a lourishing educational
institution. Indeed, the growth of private schools in the city may well have beneited
the cathedrals school by drawing students to the city.
Bolognas chief attraction for students, however, lay in the character of the legal
education ofered in the city. First, working in a territory where Roman law had
become the customary law, Bolognese lawyers enjoyed the advantage over their
Pavian counterparts of being able to study only one law; Pavian jurists had been
concerned with Roman law as a way of supplementing or conceptualizing Lombard
law and not with mastering it for its own merits. Second, by the fourth quarter of
the eleventh century, Bologna had already produced a famous jurist. Pepos pioneer-
ing citation of the Digest indicates that he at least thought a passage from the most
diicult book in Justinians corpus was applicable to a living issue.22 Pepos role in

Admittedly it is easier for Richard W. Southern, The Schools of Paris and the School of Chartres,
Renaissance and Renewal in the Twelfth Century, ed. Robert Benson and Giles Constable with Carol D.
Lanham (Cambridge, 1982), 11920, to explain why Paris, the royal capital and probably the largest
city in Western Europe, outdistanced its rivals.
I placiti del Regnum Italiae, ed. Cesare Manaresi, in FSI, vols. 92, 96, and 97 (Rome, 195560), 3:33335,
n. 437 (for March 1076). He also appeared in three other placita: 3:3047, n. 426 (June 7, 1072);
3:35558, n. 448 (February 1078); and 3:36769, n. 453 (November 1079). Kantorowicz maintained
that Pepo completely misunderstood the passage cited from the Digest: Hermann Kantorowicz
and Beryl Smalley, An English Theologians View of Roman Law: Pepo, Irnerius, Ralph Niger,
Mediaeval and Renaissance Studies 1 (194143): 250. By contrast, Ennio Cortese, Legisti, canonisti e
feudisti: La formazione di un ceto medievale, in Universit e societ nei secoli XIIXVI. Pistoia, 2025
settembre 1979 (Pisa 1982), 200, maintains that it was straordinariamente adatta al caso.
Charles Radding and Antonio Ciaralli, The Corpus iuris civilis in the Middle Ages: Manuscripts and
Transmission from the Sixth Century to the Juristic Revival (Leiden and Boston, 2007), 184, write: The
particular passage quoted was far from prominent little more than a phrase, and not an especially
memorable one in a long excerpt near the end of a rather technical title.That the passage had been

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

various placita in Tuscany points to his possessing some knowledge of Lombard as

well as Roman law. His interests may have extended to canon law as well.23 Although
Pepo was celebrated as early as 1090 as the brilliant light of the Bolognese, we must
concur with Odolfredo, who wrote in the mid-thirteenth century that whatever his
learning had been, it remains unknown.24 Nonetheless, the exalted appraisal of his
legal talents, accorded perhaps less than a decade after his death, can be taken to mean
that Pepo was at least among the pioneers in legal studies south of Lombardy.
A inal explanation for the rise of Bologna as the center of legal studies con-
cerns the citys reputation as a leader in notarial studies. As was said in Chapter 3,
by 1060 Bolognese notaries had made two historic advances in the ars notarie: they
had established the principle of notarial ides and conceptualized the distinction
between the juridical act and the document that registered it. Perhaps a kind of
symbiotic relationship existed between these innovations in the notarial art and an
the early development of the study of Roman law at Bologna. In any case, the two
disciplines appear closely linked at an early date in Bolognese legal history if indeed
Irnerio (d. 1125), the father of Roman law, also developed the theory of the four
instruments. The theory at least dates back to Bologna in the early twelfth century.
It maintained that all notarial documents could be organized under one of four
rubrics namely, sales contracts, mortgages, donations, and testaments. The theory
aroused the criticism of early thirteenth-century reformers, who felt that it strait-
jacketed the scope of ars notarie, but a century earlier the conceptualization of these
categories had proved fundamental to structuring the ars.25 Irnerio may also have

noted at all, much less remembered, tells us that the Digest was being read with special attention to
its description of Roman procedure. Such mastery could not have been achieved quickly.
Ludwig Schmugge, Eine neue Quelle zu Magister Pepo von Bologna, Ius comune 6 (1977): 19;
and Piero Fiorelli, Clarum bononiensium lumen, Per Francesco Calasso: Studi degli allievi (Rome,
1978), 41519.
Nino Tamassia, Odolfredo: Studio storico-giuridico, Atti e memorie della r. Deputazione di storia
patria per le provincie di Romagna, ser. 3, 12 (1895): 41. Writing circa 1090, Gualfredo, bishop of Siena,
refers to Pepo as clarum Bononiensium lumen; Arrigo Solmi, Il rinascimento della scienza
giuridica e lorigine delle Universit nel Medioevo, Contributi alla storia del diritto comune (Rome,
1937), 237. Ralph Niger circa 1180 emphasized Pepos role in the recovery of Roman law:cum igitur
a magistro Peppone velut aurora surgente iuris civilis renasceretur initium, et postmodum propagante
magistro Warnerio iuris disciplinam religioso scemate traheretur ad curiam Romanam, et in aliqui-
bus partibus terrarum expanderetur in multa veneratione et munditia, ceperunt leges esse in honore
simul et desiderio: Kantorowicz and Smalley, An English Theologians View of Roman Law, 250.
Cf. Giorgio Cencetti, Studium fuit Bononie: Note sulla storia di Bologna nel primo mezzo secolo
della sua esistenza, SM, ser. 3, 7 (1966): 79495. For bibliography on the origins of teaching law in
Bologna, see Gina Fasoli, Ancora unipotesi sullinizio dellinsegnamento di Pepone e Irnerio,
Atti e memorie della Deputaziione di storia patria per le Provincie di Romagna, n.s., 21 (1971): 1937.
Gianfranco Orlandelli, Documento e formulari bolognesi da Irnerio alla Collectio contractuum di
Rolandino, Notariado pblico y documento privado: De los orgines del sglo XIV. Actas del VII Congreso
internacional de diplomtica. Valencia 1986, 2 vols. (Valencia, 1989), 100936; and Irnerio e la teor-
ica dei quattro istrumenti, Atti della Accademia delle Scienze dellIstituto di Bologna. Rendiconti 61
(197273): 121. Cf. Orlandelli, La scuola di notariato, Le sedi della cultura nellEmilia romana: Et
comunale, ed. Girolamo Arnaldi et al. (Milan, 1984), 13334.
The notarial manual Formularium tabellionum di Irnerio, ed. Giovanni B. Palmieri, in Scripta anecdota
antiquissimorum glossatorum, Bibliotheca iuridica Medii Aevi, ed. Augusto Gaudenzi, 3 vols. (Bologna,
18881901), 1:199229, formerly attributed to Irnerio, is now generally considered to be a work

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

been responsible for reforming an important formula related to mortgage contracts

(petitionibus emphyteocariis annuendo) a formula that the two Bolognese notaries
whom I mentioned in Chapter 3, Bonando and Angelo, included for the irst time
in a document of 1116 and that was destined for a long life.26
As has been said earlier, aspiring students of the notarial art generally learned
their skill by apprenticeship to a notary, but the precocious sophistication of the
ars notarie in Bologna suggests that already by 1100 the city might have ofered
some formal training in the notariate. Be that as it may, as earlier in Pavia, Pepo and
Irnerio would likely have had disciples who learned from them both Roman law
and ars notarie. Most students would have been drawn to Bologna by the aspiration
of becoming a notary, but some, their curiosity about the Roman law aroused by
their masters, might have been inspired to move beyond the legal training needed to
draw up notarial documents.27
Recently several scholars have raised doubts about whether law schools existed
in Bologna before the middle decades of the twelfth century. While admitting that
lawyers such as Irnerio may have had young apprentices who accompanied them
into court and helped them prepare for their cases, scholars suggest that lawyers were
primarily devoted to activity in the courts and not to providing systematic analyses
of legal texts for students.28 Only at mid-century, their argument runs, with a work
of the late twelfth century: Orlandelli, La scuola di notariato, 13234. Enrico Besta, ed., Lopere
dIrnerio: Contributo alla storia del diritto italiano, 2 vols. (Turin, 1896), 1:17984, accepted Irnerios
authorship of such a work, but he denied that the edited text of 1888 was that of Irnerio.
On Bonando and Angelo, see Orlandelli,La scuola di notariato, 13334.Also see Cencetti,Studium
fuit Bononie, 800; and Gianfranco Orlandelli, Documento e formulari bolognesi, 101517.
On the basis of two thirteenth-century authors, scholars have sometimes argued that the suc-
cess of Bolognas earliest Roman lawyers was due in part to the patronage of Matilda of Tuscany.
Odolfredo wrote that Pepo began lecturing on the law auctoritate sua (i.e., Matildas); Tamassia,
Odolfredo, 41. Writing a few decades before Odolfredo, Burchardt of Ursperg, who seems to
have been well informed about Italy, explained that Irnerio irst began commenting on Roman law
per petitionem Mathilde comitisse. For Burchard, see Burchardi praepositi Urspergensis Chronicon, ed.
Oskar Holder-Egger and Bernard von Simpson, MGH, Scriptores rerum germanicarum in usum
scholarum, no. 16 (Hannover, 1916), 1516. In all probability both Pepo and Irnerio had contact
with the countess, but that this extended to patronage is doubtful.
Richard W. Southern, Scholastic Humanism and the Uniication of Europe: I. Foundations (Oxford, 1995),
27482; and Anders Winroth, The Making of Gratians Decretum (Cambridge, 2000), 170, as well as
his Origins of Legal Education in Medieval Europe,
winroth.pdf (accessed Oct. 1 2009), 8. For an earlier discussion of the issue, see Giovanni Diurni,
Lexpositio ad Librum papiensem e la scienza giuridica preirneriana, Rivista di storia del diritto italiano
49 (1976): 16668.
Winroth bases his judgment largely on the diference between what he argues were two editions
of the Decretum. Because of a reference the irst edition (Gratian I) makes to the Second Lateran
Council of 1139, he considers it written ca. 1140. He believes a revised version, double the size of
the irst, was probably inished after 1150 (Gratian II). The irst certain date is 115558, when it was
cited by Peter Lombard: Winroth, The Making of Gratians Decretum, 142. Gratian I knew very little
Roman law. Gratian II added most of the law texts, and his work demonstrates a thorough grasp
of its rules and terminology. According to Winroth, Gratian I represents the mediocre level of legal
studies in the city around 1140. By contrast, at the time of the writing of Gratian II, law schools
were lourishing (14445 and 17374).
Although Winroth follows John T. Noonan, Gratian Slept Here: The Changing Identity of the
Father of the Systematic Study of Canon Law, Traditio 35 (1979): 14572, in debunking the myths

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

like Bulgaros Stemma, which contains a series of ictitious lawsuits in which students
would take sides and the teacher would render and explain his verdict, can it be said
that law schools existed in Bologna.29
While no modern historian could argue for a broadly institutionalized form of
law training at Bologna early in the twelfth century, nonetheless it is likely that
individual lawyers like Irnerio devoted a signiicant part of their time to teaching
activities in their own schools. First, it is a fact that as early as the mid-eleventh cen-
tury contemporaries reported that law was being taught in Italian private schools.30
Second, there is abundant evidence of a high level of philological research being
carried out on all three major works of the Justinian corpus by the early twelfth
century.31 Scholarship of such a character went beyond whatever practical interests a
lawyer would have had for arguing a particular case.
Consequently, I see no reason to reject the traditional outline of the development
of legal instruction at Bologna according to which such instruction is traced back
at least to Irnerio. The four leading Bolognese jurists of the next generation, known
as the Four Doctors (Bulgaro, Martino, Ugo of Porta Ravegnana, and Jacopo), all
may have had him as their master. His public role in the last stages of the Investiture
Struggle may also have increased Bolognas visibility as a center for the study of
Roman law. A devoted follower of the imperial faction, his loyalty must have made
him a persona non grata to Matilda (d. 1115) until her formal reconcilation with the

surrounding the life and writings of Graziano, he tends to assume that Graziano wrote his Decretum
in Bologna. The traditional reason for that assumption depends on Bolognas reputation for the
study of law in the period leading up to Graziano (162). By denying such a reputation to that
generation, Winroth has partially removed the justiication for claiming Bologna as the site of
the composition of the early edition.
Winroth does not have the same problem dating Gratian II because he argues that the law
schools began to blossom between 1140 and the 1150s. The only speciic mention of Bologna in
the Decretum, however, is found in a letter included in Gratian II, C.2, 1.6, d.p.c. 31, but omitted
from Gratian I: Winroth, The Making of Gratians Decretum, 142. Winroth argues that, nevertheless,
the presence of a letter from the bishop of Reggio in the comparable section of Gratian I, a letter
also present in a letter collection attributed to Bologna, points to a connection of Gratian I with
that city. The letter is published by Wilhelm Wattenbach, Iter Austriacum 1853, Archiv fr Kunde
sterreichischer Geschichtsquellen 14 (1855): 8182. Although Bologna was the leading center for ars
dictaminis, the subject was the object of study in other areas of the kingdom, and Wattenbach ofers
no proof that the collection was Bolognese. Consequently, there is no reason to assume that Gratian
I tells us anything about the state of the study of law in Bologna in 1140.
Moreover, I would agree with Kenneth Pennington (review of Winroth, Speculum 78 [2003]: 295)
that, as Winroth thought earlier, Gratian I was written ca. 1120. No texts are cited in the work date
after ca. 1119, except the reference to canon 28 of the Second Lateran of 1139, which is imprecise,
the text of the canon is not given, and it might be an interpolation. At such an early date Gratian I,
a canonist, would not have been expected to be abreast of recent developments in Roman law.
Winroth, The Making of Gratians Decretum, 15968.
See Chapter 3, under Mania for Law. See as well the remark of Wipo, Chap. 3, n. 167. A poem writ-
ten ca. 1130 on the war between Como and Milan, waged between 1118 and 1127, associates Bologna,
an ally of Milan, with legal studies: Docta suas secum duxit Bononia leges and Docta Bononia
et huc venit cum legibus suis; De bello Mediolanensium adversus Comenses liber cumanus in RIS, vol. 5
(Milan, 1724), 418, v. 211, and 453, v. 1848.
Charles Radding and Antonio Ciaralli, The Corpus iuris civilis in the Middle Ages, is largely devoted
to advances made in establishing and analyzing the Justinian corpus in the regnum down to 1100.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

emperor in 1111. Irnerios appearances afterwards in comital placita ranging from 1112
to 1125 show him to have been both a causidicus (lawyer) and a iudex (judge), depend-
ing on the situation.32 By the last years of his life Irnerio became not only a leading
citizen of Bologna, but also between 1116 and 1118, a major igure in the court of
Henry V. His eforts to justify Henrys creation of Gregory VIII as antipope procured
Irnerio a papal excommunication in 1119 at the Council of Rheims, from which he
was absolved just three years later, with the signing of the Concordat of Worms.33
By the mid-thirteenth century, when Odolfredo commented on the life of Irnerio,
it had become part of the legend of the Bolognese school, thus we cannot take what
he reports at face value. He writes that he had heard from his teacher that Irnerio
had been a teacher in the arts before teaching law; and in another passage he refers to
Irnerio as loicus or logician.34 The recent attribution to Irnerio of a large collection
of theological sentences, Liber divinarum sententiarum quas Guarnerius [iurisperitissimus]
ex dictis Augustini aliorumque doctorum excerpsit, has led to his being characterized as a
cleric who subsequently became a jurist.35 While I ind unconvincing the evidence
adduced for his authorship of the work I consider Irnerio as having belonged to
what by his time had become a legal tradition of notaries and lawyers dominated by

The documents are published by Enrico Spagnesi, Wernerius bononiensis judex: La igura storica
dIrnerio (Florence, 1970), 29106.
Irnerio was probably instrumental in obtaining a pardon from Henry V in 1115 for the revolt of
Bologna against Matilda the previous year: Spagnesi, Wernerius, 7374. A detailed account of the
years 111625 is given by Spagnesi, 13243.
Odolfredo reports that Irnerio began as a teacher in artibus: Dominus Yrnerius, quia loicus
fuit, et magister fuit in civitate ista in artibus...; Tamassia, Odolfredus, 42. Cf. Ernesto Besta,
Lopera dIrnerio, 1:5455, for discussion of the passage. Giacomo Paces argument that Irnerio was
of German origins (Guarnerius Theutonicus: Nuove fonti su Irnerio e i quattro dottori, Rivista
internazionale di diritto comune 2 [1991]: 12333), has been convincingly refuted: Enrico Spagnesi,
Irnerio teologo: Una riscoperta necessaria, SM, ser. 3, 42 (2001): 34142.
Guarnerius Iurisperitissimus, Liber divinarum sententiarum, ed. Giuseppe Mazzanti (Spoleto, 1999).
The identiication of Guarnerius as the author with Irnerio the lawyer (Incipit liber divi-
narum sententiarum quas Guarnerius Iurisperitissimus ex dictis Augustini aliorumque doctorum
excerpsit), however, is found as the title of the work in only one of the three extant manu-
scripts: Biblioteca Ambrosiana Milan, Y 43 sup., but not in Bibliothque municipale Troyes, 1317,
or Biblioteca Ambrosiana Milan, 40 sup. The Troyes manuscript gives no author, and 40 sup. omits
Iurisperitissimus. Nor was iurisperitissimus found in the manuscript on which the two Milanese
manuscripts were based (Mazzanti, Liber, 12). Moreover, in Y 43 the adjective iurisperitissimus is
written above the title line by the rubricator. Mazzanti argues that the adjective was not added as
an afterthought but, because of the words length, was consciously put there so as to allow the rest
of the title to it on the line. I consider it a later addition had the rubricator intended from the
beginning to include the word in the title, he would have put half of the title on the line occupied
by the interjected adjective and given better balance to the page.
Mazzanti further contends that the rubricator would not simply have picked the famous jurist as
the Guarnerius of the manuscript, because it would have been incongruous to make a jurist author
of a theological work were he not indeed the author (ibid., 1315). Essentially Mazzanti maintains
that Irnerio was already a well-known cleric, who subsequently took up Roman law (ibid., 8384).
On the contrary, as my Chapter 7 demonstrates, in the twelfth century there would have been no
incongruity in a lay jurist accruing a collection of theological sententiae. Consequently the rubri-
cator would have felt no contraint in making such an identiication. There is no place here for a
detailed analysis of Mazzantis other arguments for Irnerios authorship, none of which I consider
cogent, but his work has great merit on other grounds and deserves to be better known.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

laymen his interest in theology would not be surprising. As Chapter 7 will show,
laymen throughout the twelfth century, like Burgundio of Pisa, Mos del Brolo, and
Ugo and Leo Eteriano, also translated and composed theological tracts. Were the
Liber Irnerio of Bolognas work, the likely case would be that he was a lay jurist with
theological interests rather than a cleric with a genius for interpreting Roman law.
Of all the legal writings attributed to Irnerios pen over the last two hundred years,
however, only two short accessus, one to the Codex and the other to the Institutes,
and a series of glosses have been ascribed to him by modern legal historians.36 Now,
his authorship of the glosses has been questioned. The belief had been that those
glosses found in early manuscripts designated with the initial (siglum) y were those of
Irnerio. Recent critics, while allowing that the glosses concerned were the products
of a jurist or jurists writing in the earlier decades of the twelfth century, deny that
the sign necessarily denotes Irnerios authorship.37 It has also been argued that the
use of sigla identifying a particular authors glosses did not begin until the middle
decades of the century.38
Whether Irnerio wrote the glosses or someone else did, however, is inconse-
quential for our purposes, for if, as scholars seem to have assumed, these are early
Bolognese glosses, their contents tell us much about the general character of legal
study in the early decades of the Bolognese law schools.39 First, the glosses indicate
that their author or authors read widely through the Corpus iuris civilis, covering
the Digest and large parts of the Code (with the exception of the Tres libri) and the
Institutes.40 The brevity of the interpretations suggests that they may have served
only as aide-mmoires for lecturing or preparing to argue a case. At the same time
the glosses given to both the titles and individual parts of the Justinian books reveal

Hermann Kantorowicz with William W. Buckland, Studies in the Glossators of the Roman Law: Newly
Discovered Writings of the Twelfth Century (Cambridge, 1938); reprinted with addenda and corrigenda
by Peter Weimar (Aalen, 1969), 3750 and 23140.
Winroth, The Making of Gratians Decretum, 16468. Winroth argues convincingly that the identii-
cation of the siglum y to denote Irnerios glosses rests on pure assumption. He points to the fact that
by the second half of the century y was the common symbol used before a marginal commentary
to distinguish it from an addition to the text in the margin. The same would presumably be true of
the sign in earlier comments. Important for my purpose is Winroths argument that by the second
half of the twelfth century glossators regularly used their initials to indicate glosses they edited (167).
Consequently, while later glossators might occasionally write y-glosses without another siglum,
we might assume that if glosses are marked only by y, they can usually be assumed to have been
composed before the mid-1150s. See the next note.
Gero Dolezalek, Repertorium manuscriptorum veterum Codicis Iustiniani, Ius commune, Sonderhefte,
no. 24, 2 vols. (Frankfurt am Main, 1985), 1:46374. Cf. James A. Brundage, The Medieval Origins of
the Legal Profession: Canonists, Civilians, and Courts (Chicago and London, 2008), 84.
In what follows I have taken the judgments of scholars characterizing Irnerios approach to the
Justinian corpus based on the glosses to describe early twelfth-century Bolognese legal scholars
Hermann Kantorowicz, Studies in the Glossators of the Roman Law, 33, describes the glosses as
follows: Nearly all of them are purely technical; they display as well as demand a thorough under-
standing of the Justinian law, even of some of the more diicult parts of the Digest. Innumerable
references, similia amd contraria, are noted in the margin to connect the explained passages with
every other part of the sources (except the Tres libri).The style of the glosses is always concise, some-
times laconic, and the reasoning is often very subtle.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

the character of the methodology and the interests of the writer or writers. Generally,
the glosses are not so much concerned with establishing the meaning of the text
for example, with determining the Roman conception of property and property
rights as they are with the character of the legal procedures to which these rights
gave rise.41 The approach is that of a master teaching his students to be lawyers,
asking the questions: What was the character of a particular legal procedure? What
were the parties against whom the action proceeded? What kind of remedy did it
provide and how could the action be brought before the court? How, moreover, did
its nature compare with that of a related action? These are the questions of a person
long experienced in arguing cases in the courts.
In working out the meaning of the text, the glosses in numerous instances fol-
lowed closely the thought and style of the ancient jurists. Although terms from
logic, like deinitio, distinctio, and quaestio, are used to describe techniques of analysis,
the actual arguments are not dialectical. Even in the more extensive treatment of
legal points in summulae, where there would be space for dialectical arguments, the
distinctions and deinitions propounded are not original with the author but are
borrowed from the Justinian texts. Moreover, terms like natura, quantitas, genus, species,
and so on, in the glosses are not imposed upon the writings but are commonplaces
in the Justinianic writings themselves.42 Irnerios successors, the Four Doctors, took
the same approach in their commentaries.43
The fact that the early glosses do not relect the direct inluence of Aristotelian
logic casts doubt on Odolfredos claim that Irnerio had begun as a loicus, a claim that
relects his assumption that Aristotelian logic had been as important for legal study
in its earliest years as it had become in his own time. The statement by a student in
a model letter of the early twelfth century that he was devoting himself unstintingly
to the study of law and dialectic at Pavia (studio legum et dialectica) would seem to sub-
stantiate Odolfredos assumption.44 By dialectica, however, the student may have meant
the art of argumentation generally, an art taught by Cicero as well as by Aristotle. If

Radding, The Origins of Medieval Jurisprudence, 16669.
Bruno Paradisi, Osservazioni sulluso del metodo dialettico nei glossatori del sec. XII, Studi sul
medioevo giuridico, Studi storici, Istituto storico italiano per il medio evo, fasc. 16373 in 2 vols.
(Rome, 1987), 702. See also his Storia del diritto italiano: Le fonti del diritto nellepoca bolognese: I
civilisti ino a Rogerio, vol. 4.1 (Naples, 1967), 125. This would explain what Gerhard Otte, Die
Rechtswissenschaft, in Die Renaissance der Wissenschaften im 12. Jahrhundert, ed. Peter Weimar
(Zurich, 1981), takes to be Irnerios dialectical approach to the law. As Otte writes (13233): In
den wenigen berlieferten Texten des Irnerio inden sich nmlich verhltnismassig viele Stellen,
in denen von logischer Terminologie Gebrauch gemacht oder eine Diktion benuzt wird, die in
ihrer unerbittlichen Knappheit und Przision untrgliches Zeugnis intensiver Beschftigung mit
Logic ist. Ottes analysis here and in his book Dialektik und Jurisprudenz. Untersuchungen zur Methode
der Glossatoren (Frankfurt am Main, 1971) unfortunately deals only with secondary sources in
German and appears to be innocent of the ongoing discussion in Italy on the role of dialectic in
early Roman law studies. Cf. Harold J. Berman, The Origin of Western Legal Science, Harvard
Law Review 90 (1977: 894943. Of course, the terminology cited in the glosses could have been
found in Isidore and Papias.
Paradisi, Osservazioni, 7034.
Botho Odebrecht, Die Briefmuster des Henricus Francigena, Archiv fr Urkundenforschung 14
(1936): 250. In pleading for money, the student writes: innotescat me divina misericordia Papie
studio legum vel dialectice alacrem et sanum nocte dieque adherere.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

the student meant Ciceronian logic, then his statement would better coincide with
the current scholarly view that not Aristotelian but Ciceronian logic, more con-
genial to the rhetorical conceptions found in the Justinianic writings themselves,
constituted the primary ally of the new medieval jurisprudence.45 Admittedly, in the
course of the second half of the twelfth century, increasing doses of the logica vetus
appeared in the generation of Bolognese lawyers after the Four Doctors. Rogerio,
Giovanni Bassiano, and Pillio were particularly skilled in dialectical argumentation.46
The logica nova, however, only made its appearance in Azzos generation at the end of
the century, and even then was restricted to the De sophisticis elenchis.47
How did these later twelfth-century lawyers learn logic, whether Aristotelian or
Ciceronian? As we shall see, the students reference to the study of logic above was
one of the few references to the subject in the twelfth century. The paucity of evi-
dence would suggest that independent courses of logic might have been rare and
that they were at the elementary level. In any case, teachers of law would have been
responsible for teaching their students legal argumentation just as they had to teach
students, most of whom had had perhaps only two or three years of Latin grammar,
to read the legal texts.48
Legal logic in its Ciceronian form also played a vital role in the hermeneutical
practices of Bolognese legal scholars as it did in those of their predecessors at Pavia.
The early Bolognese glossators, so-called because glosses served as their typical form
of expressing scientiic investigation of the Corpus, employed distinctions, quaestiones,
and cross-references and sought to reconcile apparent contradictions in the laws.The
Bolognese difered from the Pavians, however, in that they worked on the complete
Digest.49 The Pavian Expositio ad librum papiensem, written in the 1070s or 1080s, had

Albert Lang, Rhetorische Einlsse auf die Behandlung des Prozesses in der Kanonistik des 12
Jahrhunderts, Festschrift Eduard Eichmann zum 70 Geburtstag, dargebracht von seiner Freunden und
Schlern in Verbindung mit Wilhelm Laforet, ed. Martin Grabmann and Karl Hofmann (Paderborn,
1940), 6971. See also Elizabetta Graziosi, Fra retorica e giurisprudenza, Studi e memorie per la
storia dellUniversit di Bologna, n.s., 3 (1983): 338; Erich Genzmer, Die justinianische Kodiikation
und die Glossatoren, Atti del Congresso internazionale di diritto romano: Bologna e Roma, XIIIIXXVII
aprile, MCMXXXIII, 4 vols. (Pavia, 1934), 1:36364; and Paradisi, Osservazioni, 703.
Bibliography on the debate between scholars over the issue of the inluence of dialectic on the glos-
sators of the twelfth and early thirteenth centuries is discussed in Paradisi, Osservazioni, 69598.
Paradisis conclusion that dialectic played an important role in legal analysis only after 1150 seems to
me convincing in the light of the history of dialectic in northern and central Italy in the preceding
150 years. See as well Gerhard Otte, Dialektik und Jurisprudenz, 22, who notes that before Placentino
no ancient thinkers except for Cicero are mentioned in the glosses.
Otte, Dialektik und Jurisprudenz, 22. Similarly, Paolo Marangon, Alle origini dellAristotelismo padovano,
sec. XIIXIII (Padua, 1977), 1517, inds no evidence in Padua of the use of the logica nova in the
twelfth century. His eforts to prove that the logica vetus was taught in the second half of the twelfth
century depend on manuscripts containing works of logic that, he argues on the basis of a series of
questionable assumptions, were in the Paduan monastic libraries at that period (2442).
See below, n. 132.
The Lombard writers tended to concentrate their attention primarily on the Digestum vetus, i.e.,
books 1 to 24.2. The Collectio britannica, compiled circa. 1090, contains excerpts of the work mainly
from this section as does the Liber decretorum of Ivo of Chartres, who collected material for his work
during a visit to Rome in 109394: Stephan Kuttner, The Revival of Jurisprudence, Renaissance
and Renewal in the Twelfth Century, ed. Robert L. Benson and Giles Constable with Carol D. Lanham

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

drawn on the Digest but primarily on its earlier books, while the Bolognese, in con-
trast, made glosses on all parts of the ifty books. Indeed, the Digest seems to have
occupied a cherished place in their teaching.
The most diicult of the four parts comprising the Justinian corpus, the Digest is
composed of 9,123 extracts from the writings of ancient Roman jurists organized
into ifty books, each of which is subdivided under titles. Each extract consists of a
sentence or two and is accompanied by the name of the jurist who wrote it and the
name of the work whence the extract was taken. Although the contents of the Digest
were sometimes not only repetitious but often mutually contradictory, Bolognese
legal scholars operated from the assumption that the work as a whole was utterly
consistent. This forced scholars to work hard to reconcile the seemingly irreconcil-
able. In efect, the obligation that the scholars felt to make the entire Digest agree
liberated them from the text and encouraged them to seek a consistency in the law
beyond what a scrupulous literal interpretation of the text would have provided.50
While by the time of Irnerios four famous successors in the middle decades of
the twelfth century Bologna was generally recognized for its leadership in legal
studies, it did not enjoy a monopoly in teaching civil law. To judge from the distri-
bution of manuscripts of various parts of the Justinian corpus in the second half of
the eleventh century, the new interest in Roman law had not been limited to Pavia
and to Pepo in Bologna. At least by 1124/27 training in Roman law was available in
Pisa, and from the middle decades of the century courses in Roman law were being
given at least at Modena. By the second quarter of the twelfth century, Roman law
was being taught as well in the ValenceDie region of southern Francia, and by the
third quarter at Montpellier.51 Nonetheless, at least into the early modern period,
Bologna would remain the most prestigious law school in Europe, where students
of all nationalities came to study.
Perhaps the major issue dividing the Bolognese glossators in the generation after
Irnerio was the extent to which Roman law ought to be qualiied by the principle
of equity.52 The two principal igures in the dispute were Bulgaro (d. 1166) and
Martino (ca. 11001160s). Bulgaro, taking the Justinianic texts as his focus, insisted
on a narrow and scientiic reconstruction of the law and refused to compromise its

(Oxford, 1982), 3023. See also Ennio Cortese, Alle origini della scuola a Bologna, Scritti, ed. Italo
Birocchi and Ugo Petronio, 2 vols. (Spoleto, 1999), 110710.
This is a paraphrase of Francesco Calasso, Medio Evo del diritto (Milan, 1954), 53132. Although
Kuttner, Revival of Jurisprudence, 300, may exaggerate in seeing the rediscovery of the Digest as
the beginning of everything, nonetheless it was surely key to further advancement.
Peter Classen, Italienische Rechtsschulen ausserhalb Bolognas, in Proceedings of the Sixth International
Congress of Medieval Canon Law, Berkeley, California, 28 July2 August 1980, ed. Stephan Kuttner and
Kenneth Pennington, Monumenta iuris canonici, ser. C, sub. 7 (Vatican City, 1985), 20521, discusses
various possibilities for law schools in twelfth-century Italy. He considers the existence of a school of
Roman law at Pisa and Modena as established. Also see chap. 8, Roman and Canon Law in Francia.
By espousing equity the glossators were not appealing to natural law. Rather equity had to be
based on the Corpus juris civilis; Paradisi, Storia del diritto italiano, vol. 4.1:409. See the whole discus-
sion 399414. Ennio Cortese, Il diritto nella storia medioevale, 2 vols. (Rome, 1995), 2:7681, suggests
that the debate relected disagreement over whether Roman law ought to be interpreted rigorously
in isolation from canon law or whether consideration ought not be given to canon law when canon
law addressed the same issues.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

demands according to contemporary circumstances. Martino, however, was com-

mitted to the world of utraque lex that is, he believed that Roman and canon law
worked together in establishing justice. Implicit in the two approaches were difer-
ing attitudes toward the three other kinds of law currently operative in the Italian
peninsula: Lombard law, feudal law, and customary law. Whereas Bulgaro considered
Roman law the ius unicum and wanted to keep it uncontaminated by other legal
systems, Martino had a more ecumenical approach.53 Apparently Martino deemed
other systems of law worthy of study in themselves and felt that knowledge of them
would be useful to scholars working on the Justinianic texts.54
Within the context of the Italian peninsula, where Lombard law prevailed over
wide areas, Martinos integrative approach was more relective of the way law was
actually being practiced. By the second half of the eleventh century the irst known
copy of Liber papiensis appeared.55 A later revision, called the Lombarda, circulated in
various editions. The most widely used version probably originated in Pavia at the
end of the eleventh century.56 Perhaps certain legists at Bologna taught both Roman
and Lombard law, but if so, it has not been proven.57 The earliest known commen-
taries on the Lombarda in the mid-twelfth century were those by Ariprando and
Alberto.58 Although it has been suggested that both commentaries were written

If we can judge by the glosses attributed to Irnerio, early Bolognese jurists showed no interest in
Lombard law. In that sense, Bulgaro was the defender of Bolognese tradition. Besta, LOpere dIrnerio,
110, n. 1, inds one allusion to Lombard law in an anonymous gloss found in a manuscript contain-
ing the so-called Irnerian glosses.
Bruno Paradisi,Diritto canonico e tendenze di scuola nei glossatori da Irnerio ad Accursio, Studi sul
medievo giuridico, 57981, identiies Martinos position with that of the French legists (580): Le idee
generali, dominanti tutto il sistema e tali da imprimergli un indirizzo coerente, il valore attribuito
allequit, lattenzione dedicata al diritto canonico e perino la prevalenza che gli veniva talvolta
concessa al diritto canonico e perino la prevalenza sul Giustineo, un riconoscimento implicito che,
attraverso questi criteri, veniva tributato al valore della consuetudine e lapertura verso il diritto
contemporaneo quale esso era in realt; tutte queste erano anche le linee del pensiero di Martino.
See also his Bulgaro (Bolgaro) Giovanni Battista, DBI, vol. 15 (Rome, 1972), 52. In describing the
contrast between Bulgaro and Martino, Cortese, Alle origini della scuola di Bologna, 111819 and
113637, maintains that not only French law schools but Italian law schools outside Bologna gener-
ally shared Martinos views. Cf. Giovanni Santini, Universit e societ nel XII secolo: Pillio da Medicina
e lo Studio di Modena:Tradizione e innovazione nella scuola dei Glossatori Chartularium: Studii Mutinensis
(regesta) (specimen 10691200) (Modena, 1979), 2850.
See Chap. 3, n. 221.
Peter Weimar, Die legistische Literatur der Glossatorenzeit, in Handbuch der Quellen und Literatur
der neuren europischen Privatrechtsgeschichte, vol. 1: Mittelalter, 11001500: Die gelehrten Rechte und die
Gesetzgebung, ed. Helmut Coing (Munich, 1973), 165.Weimar also provides a list of the editions and
bibliography. See as well Bruno Paradisi, Storia del diritto italiano: le fonti dal sec. X ino alle soglie dellet
bolognese: Lezioni universitarie (anno 19601961) (Naples, 1961), 44849.
The identiication of Ugo, author of a work on Lombard law, De pugna, as Ugo of Porta Ravegnana,
one of the Four Doctors, has been generally discredited; Hermann Kantorowicz, De pugna: La
letteratura longobardistica sul duello giudiziario, in Studi di storia e diritto in onore di Enrico Besta per
il XL anno del suo insegnamento, 4 vols. (Milan, 1939), 2:115. Kantorowicz considers Ugo, the author
of the work, to have been Pavian (15).
The texts are published by August Anschtz, Die Lombarda-Commentare des Ariprand und Albertus: Ein
Beitrag zur Geschichte des germanischen Rechts in zwlften Jahrhundert (Heidelberg, 1855). Two texts are
involved, the irst by Ariprando and the second by Alberto. The fact that both men are referred to in
the text in the third person suggests that we are dealing with reportationes: Luigi Prosdocimi, Alberto
Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

in Bologna, this seems unlikely, given that the texts seldom cite Roman law.59 The
smaller law schools, such as those at Modena and Piacenza, where both Roman and
Lombard law are known to have been taught, would have been more likely sites
for the commentaries composition. The legal writings of Vacella on the Lombarda,
composed during the late twelfth century, probably at Mantua, relect a similar lack
of interest in the Justinian corpus.60
The commentaries of Ariprando, Alberto, and Vacella on Lombard law involved
only portions of the Lombarda. That of Carlo di Tocco (d. after 1215) covered the
whole text of the work and became its glossa ordinaria. A native of Benevento, di
Tocco studied Roman law somewhere in northern or central Italy while at the same
time pursuing the study of Lombard law, which remained the basic law in former
Lombard areas in his native south. In his glosses to the Lombarda, which he completed
after his return to Benevento late in life, he consummated the process begun by the
Pavians early in the eleventh century of using Roman law and its categories to dom-
inate the heterogeneous material of Lombard origin. Already fallen into desuetude
in the north, the study of Lombard law in the south remained vital down to the late
fourteenth century, and di Toccos work served as its fundamental textbook.61
In his commentary on the Libri feodorum, written circa 1207, Pillio of Medicina
used Roman law to render another legal system, feudal law, more coherent.62 The
oldest edition of the Libri feodorum, a motley collection of decisions of feudal courts,
customs, imperial constitutions on the feud (i.e., beneice), and fragmentary pro-
nouncements of jurists on various issues relating to feudal tenure, was composed
after 1150 and has been attributed to the Lombard lawyer Oberto of Orto.63 While
the irst edition contained material relating to imperial legislation on feuds from
Conrad II in 1037 to Lothar III in 1136, a second, called the Libri ardizzoniani,
brought the legislation down to the end of the reign of Frederick I. It is the sec-
ond text on which Pillio commented.64 With Pillio the Libri feodorum came into
the mainstream of jurisprudence, and in the course of the thirteenth century the

longobardista, DBI, vol. 1 (Rome, 1960), 746. Cf. Kantorowicz, De pugna, 11. There are a few
citations of the Institutes and the Code in both. Alberto mentions the Digest once. The preface to
Ariprandos work and the longer version of the same preface to Alberto, however, contain other refer-
ences to the Justinian corpus: Kantorowicz,De pugna, 1112. Both versions of the preface appear to
have been written by an unidentiied Albacrucius; Prosdocimi, Alberto longobardista, 746.
Kantorowicz (De pugna, 13) suggests Piacenza, but Prosdocimi, Alberto longobardista, 746,
leaves the matter open. Cf. Cortese, Il diritto nella storia medievale, 12526.
Federico Patetta, Vaccella, giurisconsulto mantovano del secolo XII, Accademia delle scienze di
Torino 32 (189697): 116, establishes that Vacella was not the same person as Vacarius and that he
was from Mantua.
For his biography, see Giuliana DAmelio, Carlo di Tocco, DBI, vol. 20 (Rome, 1977), 30410. Cf.
Weimar, Die legistische Literatur, 186.
Cortesi, Il diritto nella storia medievale, 15961.
Calasso, Il medio evo del diritto, 554, for a description of the material. On the work of Pillio, see
Cortesi, Il diritto nella storia medievale, 16772. For his glosses on the text, see Antonio Rota,
Lapparato di Pillio alle Consuetudines feudorum, Studi e memorie per la storia dellUniversit di Bologna
14 (1938): 1170. For the editions of the Libri feudorum, see Weimar, Die legistische Literatur, 167.
Cf. Cortese, Il diritto nella storia medievale, 16162.
Cortese, Il diritto nella storia medievale, 163. It was called after the Veronese legist Jacopo dArdizzone
because he was believed to have been the irst to work on the new edition.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

text became a part of the Libri legales: in the series it followed immediately after the
Novellae, itself in fourth place after the Institutes, Code, and Digest.65
The intensity with which northern and central Italians pursued the study of law in
the eleventh and twelfth centuries can only be understood in the light of the political
history of the area. The sporadic Italian sojourns of the emperors were not suicient
to maintain German authority within the kingdom. The burning of the royal palace
at Pavia in 1024 as a protest against imperial exactions, moreover, was symptomatic of
the diiculties inherent in the eforts of a foreign ruler to maintain order. The long
minority of Henry IV, followed by ifty years of schism, in which the authority of both
emperor and pope was persistently challenged, brought into question the legitimacy
of all claims to power. The advent of communal governments in the late eleventh
and early twelfth centuries further complicated jurisdictional issues concerning the
competing claims of local bishops, counts, and others with pretensions to authority.
As argued earlier, in this long-term crisis of political authority, the image of the
law as objective and constant promised an impersonal, self-propelling order inde-
pendent of the weaknesses of individuals or contemporary institutions. Roman law
especially, enshrined in the Justinian corpus and a product of the greatest world
monarchy in history, proved particularly attractive as a potential template for order-
ing society. The law itself became the authority that Italians of the eleventh and
twelfth century so desperately needed: its principal ministers were not kings, counts,
or popes but notaries and lawyers.


The eleventh-century reform movement stimulated an interest in older collections

of canonical literature and in new sources in an efort to justify or attack what
appeared to many to be revolutionary principles. Written between 1008 and 1012,
the monumental collection of canon law texts compiled by Burchard of Worms in
his Decretum had dominated the study of the canons until the last quarter of the
eleventh century, but the sources that he used largely relected the state of canon
law in a Church dominated by emperors.66 As already stated, canonists in the cir-
cle of Gregory VII, inspired by the papalimperial conlict, emphasized canons that
exalted the authority of the papacy within the Church. They tended to focus more
than before on juridical questions and less on ethical or theological ones.67 The
Ibid., 167. In his intensive study of the Tres libri of the Codex, bk. 11, with its tendency to assimilate
mortgage to a form of property, Pillio was led to identify the feudal beneicium with dominium utile
and thereby to create the classic distinction between dominum directum and dominium utile (16972).
Paul Fournier, Yves de Chartres et le droit canonique, (Paris, 1898), 4851. For the date of the work,
see Paul Fournier and Gabriel Le Bras, Histoire des collections canoniques en occident depuis les Fausses
Dcrtales jusquau Dcret de Gratien, 2 vols. (Paris, 193132), 1:366. See as well the important obser-
vations of Greta Austin, Authority and the Canons in Burchards Decretum and Ivos Decretum, in
Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of
Linda Fowler-Magerl, ed. Martin Brett and Kathleen G. Cushing (Farnham, Surrey, and Burlington,
Vt., 2009), 3558.
Carlo Guido Mor, Diritto romano e diritto canonico nellet pregraziana, Scritti di storia giuridica
altomedievale (Pisa, 1977), 362. These collections, moreover, resort to citations of Roman law only
sparingly in contrast with an imperialist author like Pietro Crasso.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

most prominent of these new compilations, such as the Collectio canonum attributed
to Anselmo of Lucca (written before ca. 1085), the collection with the same name
by Deusdedit (written ca. 1085), and the Liber de vita christiana by Bonizone, com-
posed after Gregory VIIs death, also demonstrated a greater concern than had earlier
works to weed out texts of questionable authenticity.68
The writings of two transalpine contemporaries, however, were to exert an
important inluence on the development of canon law studies, in that their formu-
lations of the law relected the conciliatory tendency in promoting papal reforms
inaugurated by the French pope, Urban II. In contrast with the rigidity of Anselmo
and Deusdedit, the northern canonists Bernold of Constance (d. ca. 1100) and Ivo
of Chartres (10401116) laid down rules for calculating the valences of individual
canon laws and deined a large area in which prelates enjoyed a measure of free-
dom in granting dispensations from them.69 Ivos Decretum (ca. 1093) and Panormia,
composed sometime before his death in 1116, however, went beyond Bernolds De
excommunicatis vitandis, de reconciliatione lapsorum, et de fontibus juris ecclesiastici (ca. 1091)
in that it clearly distinguished a hierarchy of authoritative texts according to whether
they were indulgences, counsels, precepts, prohibitions, or dispensations from the
law.70 Both men argued, however, that most of what appeared to be contradictory
in the canons resulted from a failure on the part of the interpreter either to distin-
guish between absolute and contingent laws or a failure to sort out which authors
outranked the others in authority.71 At least Ivo of Chartress discussions of a prel-
ates power to dispense with canon law would ind themselves relected in various
passages in Grazianos Concordia discordantium canonum.

Gerard Fransen, Les collections canoniques, Typologie des sources du moyen ge occidental, fasc. 10.
A-III.1 (Turnhout, 1973), 26; Calasso, Il medio evo del diritto, 32224, with bibliography.
On Urban IIs less rigid approach to canon law and its similarity to that of Bernold and Ivo, see
Fournier, Un tournant de lhistoire, 10601140, Nouvelle revue historique de droit franais et tranger
41 (1917): 15658. Fournier, however, was misled into believing that Urban II himself had writ-
ten on the lexibility of ecclesiastical discipline: Stephan Kuttner, Urban II and the Doctrine of
Interpretation: A Turning Point? in Post Scripta: Essays on Medieval Law and the Emergence of the
European State in Honor of Gaines Post, ed. Joseph Strayer and Donald Queller, in Studia gratiana 15
(1972): 5385. Bernolds work is published; De excommunicandis vitandis, ed. Friedrich Thaner, in
MGH, Libelli de lite imperatorum et pontiicum saeculis XI et XII, ed. Friedrich Thaner, 3 vols.
(Leipzig, 1925), 2:7160.
Ivos Decretum and his Panormia were originally found in PL 161, cols. 471022 and 10461344
respectively. New editions of both works by Martin Brett and Bruce Brasington are available
at (accessed Feb. 27, 2010). The Panormia
has been dated variously from 1095 to 1118; ibid., Panormia, Method, 2. Ivos authorship of
the work, however, has been disputed by Christoph Rolker, The Earliest Works of Ivo of
Chartres: The Case of Ivos Eucharist Florilegium and the Canon Law Collections Attributed to
Him, Zeitschrift der Savigny-Stiftung fr Rechtsgeschichte, kanonistiche Abteilung 124 (2007): 10927.
See also his Ivo of Chartress Pastoral Canon Law, Bulletin of Medieval Canon Law, n.s., 25
(20023): 11445.
Joseph de Ghellinck, Le mouvement thologique du XIIe sicle (Brussels, 1948), 48889, cites the cru-
cial passages from Ivo. Bernolds statements on methodology are scattered throughout his text;
see, for example, De excommunicandis vitandis, 132, 135, 139, and 157. Cf. Fournier, Un tournant
dhistoire, 15765; as well as Stephan Kuttner, The Father of the Science of Canon Law, The Jurist
1 (1941): 5.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

Commonly referred to as the Decretum, Grazianos work became the basic text-
book for the study of canon law in western Europe, and it was at Bologna that the
work irst gained prominence.To an extent the creation of canon law as an indepen-
dent discipline involved distinguishing itself clearly from the study of theology, with
which it had historically been linked. Already under way in the eleventh century,
Grazianos Decretum constituted a milestone in this process of separation.
Although additions appear to have been made very early on, by the 1150s
the Decretum had taken on its inal form. The irst of three parts contained 101
distinctions, or sets of statements (frequently, quotations from canonical sources),
each grouped around a particular point. Thirty-six ictional causae (legal situations)
together with questions and answers rising from them, comprised the second part.
The third part, De consecratione, contained ive distinctions concerning sacraments
and liturgy.
The history of the Decretum has recently been complicated by the discovery that
there were two versions of the work, Gratian I and Gratian II, the irst completed
either in the early 1120s or early 1140s and the second in the early 1150s. It has also
been argued that portions of Gratian I may go back to the irst years of the twelfth
century.72 The inal version, Gratian II, is based on Gratian I, but there are major
diferences: (a) The second version contains more than twice the amount of source
material as the irst; (b) Gratian I makes a handful of references to Roman law and
interprets them clumsily, whereas Gratian II cites almost two hundred passages and
handles them in a sophisticated fashion; (c) Given that the author of Gratian II added
a great number of interpolations to his version, the earlier version has greater logical
consistency and must have been a better school text; (d ) Only Gratian II contains
the third part of the Decretum, namely, the Tractatus de consecratione.73
Scholars have not yet established whether the two versions were written by the
same author. In any case the author of Gratian I deserves to be regarded as the father
of canon law. His cogent use of dialectical reasoning suggests that he was heavily
inluenced by work being done in logic in transalpine Europe. Already before
Abelard, scholars in Francia had been using Aristotelian dialectic to resolve conlicts
arising from disagreements in the sources of Christian theology.74 In his Sic et non

For the two versions, see above, no. 28; for a possibly earlier form of the work, see Carlos
Larrainzar, El borrador del la Concordia de Graziano: Sankt Gallen, Stiftsbibliothek MS 673,
Ius ecclesiae: Rivista internazionale di diritto canonico 11 (1999): 593666. Also see Larrainzars earlier
conclusion in the same journal: El Decreto de Graciano del Cdice Fd (= Firenze, Biblioteca
Nazionale Centrale, Conventi Soppressi A.I.402): in memoriam Rudolf Weigand, Ius Ecclesiae 10
(1998): 47175. Kenneth Pennington,Gratian, Causa 19, and the Birth of Canonical Jurisprudence,
in Panta rei: Studi dedicati a Manlio Bellomo, ed. Orazio Condorelli, 4 vols. (Rome, 2004), 4:33955,
concludes that the San Gallo manuscript is an Ur-Gratian and that both it and Gratian I belong
to the early twelfth century.
The diferences are based on Winroths analysis (1) 122, (2) 12830, and (3) 14445, respectively.
Marcia Colish,From the Sentence Collection to the Sentence Commentary and the Summa: Parisan
Scholastic Theology, 11301215, Manuels, programmes de cours et techniques denseignement dans les
universits mdivales: Actes du Colloque international de Louvain-la-Neuve (911 septembre 1993), ed.
Jacqueline Hamesse (Louvain-la-Neuve, 1994), 13, maintains that Abelard and his followers were
less adept at applying these rules in practice than were many other scholastic theologians work-
ing before and during his lifetime. Cf. Ermenegildo Bertola, I precedenti storici del metodo del

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

Abelard codiied the process by grouping quotations from the authorities under
systematically arranged rubrics designed to cover the whole range of theological
problems. By carefully distinguishing the meaning of the texts and sharpening the
theological conceptions involved, Abelard envisaged constructing a uniied theolog-
ical doctrine.75 Gratian I skillfully adopted Abelards methodology, originally applied
to theology, for his own purposes.
Certainly the author of Gratian I found inspiration for structuring his work at
least in part by studying the writings of two northern canonists: Alger of Lige
(10701131) and the aforementioned Ivo of Chartres.76 Each in his way furnished the
author of Gratian I with a model for his approach to organizing the texts of canon
law. Whereas canonists before Alger had organized their collections under subject
categories without comment, Alger asserted a strong authorial presence. He had no
intention of creating a general collection of canon laws but addressed an issue of
immediate local interest in the diocese of Lige: the eicacy of sacraments admin-
istered by unworthy priests.77 Nevertheless, his work, De misericordia et iustitia (early
1090s), provided a new methodology for dealing with texts generally. He organized
the work around questions and used canonical sources as the basis for his answers.78
In the process of citing the canons relevant to a particular question, he pointed out
apparent contradictions in the texts, resolved conlicts, and provided answers based
on his understanding of his sources.79
In one sense Ivos undertaking was more ambitious. His monumental collec-
tion of texts, also called the Decretum (written in the early 1090s) set out to provide

Sic et non di Abelardo, Rivista di ilosoia neo-scolastica 53 (1961): 25580; and Mary McLaughlin,
Abelard as Autobiographer: The Motive and Meaning of His Story of Calamities, Speculum 42
(1967): 47880.
Ghellinck, Mouvement thologique, 174, writes that lefort constructif dAblard pour une laboration
rationelle de toute la doctrine rvele et lentranement suscit par ses essais ont profondment
marqu de leur empreinte toutes les gnrations, partir du premier quart du xiie sicle. On assiste
alors un tournant dans lhistoire de la thologie: le dsir dune synthse complte, rationelle, fait
surgir lre des Summistes et assure leur succs.... Kuttner, Father of the Science, 9, stresses the
close link between early collections of canon law and those of theology. Although the Investiture
Struggle drew canonists to focus more on juridical problems, until Graziano, legal and theological
sententiae were commonly mixed together in both varieties of collections.
For a listing of the canonical collections deinitely used by Graziano in his own work, see Peter
Landau, Neue Forschungen zu vorgratianischen Kanonssammlungen, Ius commune 18 (1984): 15.
Gabriel LeBras, Le Liber de misericordia et justitia dAlger de Lige, Revue historique de droit
franais et tranger 45 (1921): 80118; and his Alger de Lige et Gratien, Revue des sciences philoso-
phiques et thologiques 20 (1931): 1821.
This work, generally dated to about 1104, has been convincingly redated to the early 1090s by
Nikolaus Hring, A Study in the Sacramentology of Alger of Lige, Mediaeval Studies 20
(1958): 4142.
His De misericordia et justitia is found in PL 180, cols. 857968. It has been reedited by Robert
Kretzschmar, Alger von Lttichs Traktat De misericordia et iustitia: Ein kanonistischer Konkordanzversuch
aus der Zeit des Investiturstreits, Quellen und Forschungen zum Recht im Mittelalter, no. 2
(Sigmaringen, 1985). On his methodology, see Fournier and Le Bras, Histoire de collections canoniques,
2:34344; and Kuttner, Father of the Science, 7. Algers methodology had some parallels with the
dicta found in Bonizones canonical collection, Liber de vita Christiana (109095), but the latters
interventions in the text were meant to describe the organization of the sources and to ofer pas-
toral admonitions: Kuttner, Father of the Science, 6.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

canons for a much broader range of issues related to ecclesiastical discipline and jus-
tice. Like his predecessors, however, Ivo merely placed his texts under appropriate
rubrics without authorial comment. Ivos Panormia, which he based largely on mate-
rial taken from his Decretum, was more systematically arranged.While lacking Algers
consistent authorial presence, Ivo did intervene by including brief summaries of the
texts, often indicating what principle of law he believed they illustrated.80
Ivos Panormia was contemporary with Algers De misericordia, and both contributed
to the approach that the author of Gratian I took to the texts of canon law, the irst
principally by using commentary throughout the work and the second by its scope.81
But the identiication of precedents should not lead us to overlook Grazianos origi-
nality. Although by the early twelfth century it had become a common goal of canon
lawyers such as Bernold, Ivo, and Alger to seek resolution of contradictions in the
canons by a variety of means, including dialectical argument, no author before the
author of Gratian I seems to have conceived of the systematic use of such analysis to
reconcile seemingly intractable contradictions in the sources with the goal of creating
a unitary complex of juridical norms for the Christian Church.
In both conceiving and implementing his project, the author of Gratian I was
indebted to theological and philosophical doctrines developing in Francia by 1100.
Parallel to his contemporary Abelard in theology, he set out to exploit for canon law
the full dialectical method of raising doctrinal problems for the sake of systematic
progress and synthesis.82 Although previous canonists had already made progress
in the direction of separating juridical from theological questions, the author of
Gratian I went further in isolating legal issues as the focus for his new methodology,
and thereby separating canon law from dogmatic theology.83
Given the revolutionary potential of Gratian I, why do no commentaries on
it survive? The poor knowledge of Roman law that its author evinced makes
it improbable that Gratian I, even if composed in the 1120s, was written in the
Bologna of Irnerio. By contrast, Gratian II, ifteen to thirty years later, almost cer-
tainly was produced in Bologna, where it enjoyed great success, as is shown by
the rash of commentaries that followed its publication. Whether or not both ver-
sions were written by the same author, it was the second version of the work that

Fournier and Le Bras, Histoire de collections canoniques, 2:98.
Ghellinck, Mouvement thologique, 452.
Kuttner, Father of the Science, 1011. On the doctrinal ainity between Graziano and Abelard
as well as Hugo of Saint Victor, see Kuttner, Zur Frage der theologischen Vorlagen Gratians,
Zeitschrift der Savigny-Stiftung fr Rechtsgeschichte, kanonistiche Abteilung 23 (1934): 24368. Describing
Grazianos methodology, Kuttner, Father of the Science, 1516, writes: He always raises a prob-
lem, proposes an answer which he supports with a series of canons, each of them introduced with a
summarizing rubric, then indicates an objection and supports it in the same way, concluding with a
solution in which the contrasts are reconciled by a remarkable range of dialectical distinctions. Cf.
his Discorso commemorativo tenuto nellAula Magna dellUniversit di Bologna nella mattina del
17 aprile 1952, Studia gratiana 1 (1953): 2428.
For an example of the close relationship between sacramental theology and canon law, see Nikolaus
Hring, The Interaction between Canon Law and Sacramental Theology in the Twelfth Century,
Proceedings of the Fourth International Congress of Medieval Canon Law, Toronto 2125 August 1972, ed.
Stephan Kuttner, Monumenta iuris canonica, ser. C, subsidia, no. 5 (Vatican City, 1976), 48393. Cf.
Arthur M. Landgraf, Diritto canonico e teologia nel secolo XII, Studia gratiana 1 (1953): 373413.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

became historically important, and its author was the Graziano known to the earliest
Bolognese commentators.
Methodologically the Decretum may have had signiicant repercussions on the
study of Roman law. Whereas the irst generations of Roman lawyers made their
discoveries by depending primarily on tools of rhetoric, Graziano relied heavily
on advances made in dialectical reasoning, guided by the logica vetus, primarily in the
ield of theology. The success of Grazianos book in turn might have played a role in
the increased reliance on dialectical reasoning found in the work of scholars of civil
law in the generation after that of the Four Doctors.84
Between the 1150s and the 1180s, Bolognese canon lawyers wrote about one
hundred and ifty sets of glosses on Grazianos work, as well as a series of system-
atic textbooks and detailed commentaries.85 Already by the 1150s the Decretum had
been abridged by an unknown legist in Incipit Quoniam egestas (ca. 1150); Paucapalea
had written his Summa (ca. 1150); and perhaps Rolando had published his Stroma
ex decretorum corpore carptum (early 1150s).86 Consisting of a scattering of marginal
notes indicating parallel or contrary passages, notable facts, and summaries of speciic
arguments, the latter two commentaries were superseded within a decade (ca. 1164)
by Ruinos Summa decretorum, which provided a general and detailed commentary
on the whole Decretum. Ruinos work, however, was not composed of glosses but
rather consisted of summaries of the contents of individual chapters.87 Highly inlu-
ential, the Summa decretorum directly inspired two members of the next generation
of canon lawyers: Stephen of Tournai and Giovanni of Faenza.88

The increased use of dialectical legal reasoning in Roman law seems to have begun with Rogerios
Quaestiones super Institutis. He was a student of Bulgaro: Paradisi, Osservazioni sulluso del metodo
dialettico, 704.
Stephan Kuttner, Bernardus Compostellanus antiquus: A Study in the Glossators of the Canon
Law, Traditio 1 (1943): 27980. A repertorium of many of these glosses is found in Rudolf Wiegand,
Die Glossen zum Dekret Gratians: Studien zu den frhen Glossen und Glossenkomposition, Studia gratiana,
vols. 25 and 26 (1991).
On Rolando and Paucapalea, see Rudolf Weigand, Frhe Kanonisten und ihre Karriere in der
Kirche, Zeitschrift der Savigny-Stiftung fr Rechtsgeschichte, kanonistiche Abteilung 76 (1990): 13637.
Weigand argues for a series of versions of Rolandos Summa into the 1160s. On the abbreviation,
see Rudoph Wiegand, Die Dekretabbreviatio Quoniam egestas und ihre Glossen, in Fides et
ius: Festschrift fr Georg May zum 65. Geburtstag, ed. Winfried Aymans, Anna Egler, and Joseph
Listl (Regensburg, 1991), 256. John T. Noonan, The True Paucapalea, in Proceedings of the Fifth
International Congress of Medieval Canon Law, Salamanca, 2125 September 1976, ed. Stephan Kuttner
and Kenneth Pennington, Monumenta juris canonici, ser. C, subsidia, no. 6 (Vatican City, 1980),
15786, has argued that the Summa ber das Decretum Gratiani, ed. Johann F. von Schulte (Giessen,
1890), considered to be the summa of Paucapalea, was derived from it. Rudolf Weigand,Paucapalea
und die frhe Kanonistik, Archiv fr katholisches Kirchenrecht 150 (1981): 13757, convincingly refutes
Noonans position that Bib. Naz., Conv. Soppr. G. IV, 1736, not known to Schulte, was Paucapaleas
Summa. Rolandos Stroma was edited by Friedrich Thaner (Innsbruck, 1874).
Stephan Kuttner, Repertorium der Kanonistik (11401234): Prodromus corporis glossarum, Studi e testi,
no. 71 (1937), 13132; Gabriel Le Bras, Charles Lefebvre, and Jacqueline Rambaud, Lhistoire du
droit et des institutions de lglise en Occident, vol. 7: Lge classique 11401378 (Paris, 1965), 27879; and
Robert Benson, Ruin, Dictionnaire de droit canonique, vol. 7 (Paris, 1965), 77984.Weigands Frhe
Kanonisten, 13839, dates the work to 1164.
Weigand, Frhe Kanonisten, 132. tiennes work was written in the 1160s and Johns about 1171
(140 and 143).

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

By 1160, however, a form of commentary consisting of a mixture of summa-

ries and gloss apparatus characterized most of the production of the Italian school.
Of the dozen or more commentaries of that type produced over the next thirty
years, the most complete representative of the genre was Uguccio of Pisas Summa
decretorum, probably composed between 1188 and 1190. Generally considered the
greatest of all the decretists, Uguccio built a bridge between the ius antiquum and
the ius novum between the earlier school of canon law that focused on Grazianos
compilation and the later one concerned with welding his Decretum into a unitary
structure with papal decretals.89
After an extended introduction on the general nature of canon law, Uguccio
submitted the complete text of the Decretum to an exegetical and analytical gloss. As
he moved through the work, his interpretation took the form of a continual dia-
logue with the opinions of canonists, theologians, and Roman lawyers of his own
century. He closely analyzed the legal decisions of ecclesiastical authorities, church
councils, and so on, as well as the positions of individual writers, and he was always
ready to make his own position clear. His reliance on Roman law, his use of papal
decretals in his interpretations, and his tendency to treat canon law as independent
from theology all signaled a new orientation. His work provided the foundation for
John the Germans commentary (before 1217) that became the glossa ordinaria for
the Decretum.90
The achievements of Italian canon lawyers, from the author of Gratian II to
Uguccio, were considerable. With the Decretum the Church inally had a codiica-
tion of its laws, and the rich mantle of interpretation, which Uguccio ultimately
systematized, lending its provisions coherence and intelligibilty. At the same time
the interpretive tradition tended to expand the concept of the spiritual sphere and
emphasize its superiority to secular rule. At least its dominance seemed symbolically
guaranteed: Was not the sun superior to the moon, the soul to the body, and the
spiritual to the temporal? In the period after the Investiture Struggle, canon lawyers
consistently endeavored to expand spiritual jurisdiction and to present the papacy as
the highest administrator, legislator, and judge of the Church.


From the early decades of the twelfth century Bolognas fame grew not only as a cen-
ter for legal studies but also for instruction in ars dictaminis, the art of letter writing,
a newly formalized discipline that by mid-century had largely coopted the ield of
rhetoric.91 What explains the emergence of the sudden popularity of this new ield of

Alfons M. Stickler,Uguccio de Pise, in the Dictionnaire de droit canonique, vol. 7 (Paris, 1965), 135762.
See also Le Bras, Histoire du droit, 27981; and Kuttner, Repertorium, 157160. Cf. Cortese, Il diritto
nella storia medievale, 2:22628. Weigand, Frhe Kanonisten, 145, ofers no date of composition.
This paragraph is based on Stickler, Uguccio de Pise, 135860. See as well Le Bras, Histoire du droit,
27980; and Kuttner, Repertorium, 3. On Johannes Tentonicus, see Brundage, The Medieval Origins of
the Legal Profession, 119.
The ield of letter writing has produced a series of excellent scholarly summaries and bibliograph-
ical tools. See Giles Constable, Letters and Letter-Collections, Typologie des sources du Moyen ge
occidental, fasc. 17, A-11 (Turnhout, 1976); Martin Camargo, Ars dictaminis, ars dictandi, Typologie

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

study? Chapter 4 maintained that intense popular interest in religious reform, which
was stimulated by written as well as oral argument, awakened a relatively large num-
ber of laymen and clerics to the advantages of both reading and writing. Especially
in the context of the rapidly widening economic and political horizons of Italian
society, the ability to write a letter could prove a ticket to success.
Ars dictaminis aimed at simplifying letter writing, a genre of composition that had
hitherto been very lexible and had often been used as a medium for attaining liter-
ary distinction. The character of the letter style that emerged as the standard model
by the middle decades of the twelfth century was in large part determined, irst, by
the low level of Latin literacy the Latin had to be highly formulaic, with minimal
opportunity for individual variation liable to error and second, by the increasingly
legalistic mentality of the regnum.92 The new style of letter writing as developed in
Bologna was a sister of the notarial document.
The kinds of situations requiring notarial documentation, while numerous, were
limited, and even a barely Latin-literate notary could keep a collection of documents
covering all occasions on hand to serve as models. Manuals of ars notarie would
not appear until the irst quarter of the thirteenth century, when notarial schools
spread. The subjects for letter writing, however, appeared almost ininite in number.
Therefore, any serious efort to regulate the letter in accordance with the twelfth-
centurys passion for organization demanded manuals laying down general rules of
composition. From the outset, examples of model letters were often appended to the
manuals, and by the second half of the twelfth century collections of model letters
without theoretical introductions were circulating independently.
Although throughout its long career ars dictaminis claimed to be based on ancient
antecedents, it was in fact a medieval creation largely determined by the needs of
the contemporary society.93 Nonetheless, the teachers of the ars dictaminis did take

des sources du Moyen-ge occidental, fasc. 60, A-V.A.2 (Turnhout, 1991); Franz-Josef Worstbrock,
Monika Klaes, and Jutta Lutten, Repertorium der Artes dictandi des Mittelalters.Vol. 1:Von dem nfangen
bis um 1200 (Munich, 1992); hereafter referred to as Repertorium; and John O. Ward, Ciceronian
Rhetoric in Treatise, Scholion, and Commentary, Typologie des sources du Moyen ge occidental, fasc.
58, AV.A.2 (Turnhout, 1995). Emil Polak surveys the thousands of manuscripts containing medi-
eval manuals of dictamen and letters in Medieval and Renaissance Letter Treatises and Form Letters: A
Census of Manuscripts Found in Eastern Europe and the Former U.S.S.R. (Leiden and New York, 1992),
as well as the companion volume, Medieval and Renaissance Letter Treatises and Form Letters: A Census
of Manuscripts Found in Parts of Western Europe, Japan, and the United States of America (Leiden and New
York, 1994).
For the interplay between dictamen as both a product of this process and an active force in its
development, see Giles Constable, The Structure of Medieval Society according to the Dictatores
of the Twelfth Century, Law, Church, and Society: Essays in Honor of Stephan Kuttner, ed. Kenneth
Pennington and Robert Somerville (Philadelphia, 1977), 25367.
In fact, the ancients had little to say about letter writing because the letter was considered to require
the lexibility of conversation.The earliest surviving Greek treatise (3rd. c. A. D.) deines the structure
of the letter as loose and not too long, while Cicero contrasts letters written as they are in plebian
style and everyday words with the rich variety of styles used in his orations: George M. A. Grube,
A Greek Critic: Demetrius on Style (Toronto, 1961), 112. In the case of oicial or public communica-
tions, letters that were read aloud on delivery, the rules governing oratory, for which there were
many textbooks, were applicable. Julius Victor in the fourth century contrasts litterae negotiales to lit-
terae familiares: Julius Victor, Ars rhetorica, ed. Karl Halm, in Rhetores latini minores (Leipzig, 1863), 447.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

what help they could get from antiquity and sought guidance for letter composi-
tion in the ancient handbooks of oratory, primarily in Ciceros De inventione and the
pseudo-Ciceronian Ad Herennium. The ancients had understood that oicial com-
munications, particularly important letters, were often read aloud by the recipient or
in the recipients presence and thus at the moment of communication took on the
appearance of orations.
Circumstances of political and social life, however, encouraged the medieval dic-
tatores to impose on what earlier and later ages considered personal letters the same
stylistic practices imposed on oicial ones.94 Lacking in large part ancient or modern
distinctions between public and private, medieval society had no reason to separate
private from public personalities or individuals from oice or status within a partic-
ular group. A letter, whatever its purposes, was expected to relect the power rela-
tionship between writer and addressee.
Conceived along such impersonal lines, the letter became an eicient vehicle for
oicial purposes. Diplomacy particularly required an elaborate protocol by which
subtle changes in formulas or structure constituted signals of altered attitudes and
situations. Dictamens tyranny of stylistic prescriptions, however, discouraged the
spontaneity and direct expression of thought and feeling that, at other times in his-
tory, have given the personal letter its distinctive character. With the difusion of the
prescriptions of ars dictaminis the personal letter as such disappeared.95
The irst surviving handbook of the new discipline in the art of letter writing,
the Flores rhetorici, was composed by Alberico (d. 1105) in the monastic setting of
Montecassino around 1075. We would have expected the new simpliied version of
letter writing to have begun in the busy area north of Rome where the economy
and the political system were in rapid development. There is suicient evidence,
nevertheless, to suggest that the doctrines taught by Alberico were common to
other classrooms in the period, and that his was but the irst surviving example of a
synthetic treatment of the subject.96

For more bibliography on ancient epistolography, see my Medieval Ars dictaminis and the
Beginnings of Humanism: A New Construction of the Problem, Renaissance Quarterly 35 (1982): 7.
John O. Ward, Rhetorical Theory and the Rise and Decline of Dictamen in the Middle Ages and
Early Renaissance, Rhetorica 19 (2001): 177, cogently attributes the lack of manuals in antiquity to
the use of formularies and models in the schools and various secretariats of the empire.
On oral reading of writings, see Ruth Crosby, Oral Delivery in the Middle Ages, Speculum 11
(1936): 88110; and Constable, Letters and Letter Collections, 5354. Also see Letters of Peter the Venerable,
ed. Giles Constable, 2 vols. (Cambridge, Mass., 1967), 2:27, n. 115. Paul Saengers Space between
Words:The Origins of Silent Reading (Stanford, Calif., 1997) is devoted to a consideration of the rela-
tionship between silent and oral reading.
The inluence of Italian-style dictamen becomes obvious in northern Europe only after 1200. The
letters of Peter of Blois (d. 1205) are the last survivors of the old epistolography. Joseph de Ghellinck,
Lessor de la littrature latine au xii sicle, 2 vols. (Brussels, 1946), 2:67, criticizes the dictatores for misun-
derstanding the character of the letter as a means of communication: en transportant dans le genre
pistolaire ce que lOrator de Cicron reservait au genre oratoire, appel captiv loreille pour
mieux conqurir lesprit, ils enlevaient la lettre tout ce quelle pouvait avoir de charme personnel,
dabandon conidentiel, de sentiment et de vie. While valid for letters of a personal nature, as sug-
gested above, the criticism is unfounded as far as oicial letters are concerned.
The existence of a tradition of rules for letter writing prior to Albericos formulation of the art
is the focus of William D. Patts study, Early Ars dictaminis as Response to a Changing Society,

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

Albericos manual began by dividing the letter into ive parts, the salutatio, the
exordium or proemium, the narratio, the argumentatio, and the conclusio.97 His associa-
tions with the model of the ancient oration become clear when he characterizes the
task of the exordium as rendering the reader attentive, kindly disposed and receptive
and illustrates his discussion of the structure of the letter by examples drawn indis-
criminately from letters and speeches.98 He then turns to a detailed consideration
of colores rhetorici applicable to all kinds of composition, which takes up more than
half the book.99 The extensive and often frequent quotations from ancient literature
relect the assumption that the student would have had training in pagan texts before
studying letter writing. Another work attributed to Alberico, Brevarium de dictamine,
also discusses letter writing, but only as part of a longer treatise considering a range
of other rhetorical topics.100
Because Alberico wrote the irst surviving manual providing the rules for the com-
position of letters, some scholars tend to regard him as the founder of ars dictaminis.
Others, however and I include myself among their number disagree with that
judgment. Alberico melds letter writing into a broad treatment of Latin composi-
tion.101 In contrast, the prime characteristic of medieval ars dictaminis as it developed
in the twelfth century was its separation from the study of rhetoric in general.102
The igure who should more properly be considered the founder of ars dictaminis
was Adalberto of Samaria, a layman teaching in Bologna, whose Praecepta dictaminum
(written in Bologna between 1112 and 1118) was concerned only with letter writ-
ing to the exclusion of all other aspects of rhetoric.103 He knew Albericos work

Viator 9 (1978): 13555. Alberico of Montecassinos manual is published as Flores rhetorici, ed. Mauro
Inguanez and Henry M. Willard, Miscellanea cassinese, no. 14 (Montecassino, 1938). See the bib-
liography for Alberico in Anselmo Lentini, Alberico, in DBI, vol. 1 (1960), 646; and Paul Oskar
Kristeller, Philosophy and Rhetoric from Antiquity to the Renaissance: The Middle Ages, in his
Renaissance Thought and Its Sources, ed. Michael Mooney (New York, 1979), 318, n. 22.
He did not, however, consider the salutatio a part of the letter proper; Flores, 3638.
Because conirmatio and refutatio appear to be included by Alberico in argumentatio, only partitio from
the classical oration is omitted: Inv., I:2223. In composing his letter in the form of an invective,
Gunzo, it will be remembered, followed the six-part oratorial pattern faithfully.
In the edition of the work, Alberico devotes pp. 3541 to letter writing and 4156 to the colores and
other aspects of composition.
The most complete edition of the Brevarium de dictamine is that by Peter-Christian Groll, who edited
chapters 117 (of 22) for part 2 of his doctoral dissertation,Das Enchiridion de prosis et de rithmis
des Alberich von Montecassino und die Anonymi ars dictandi, Ph.D. diss., University of Freiburg,
1963). His edition, however, was based on only three of the ive manuscripts that have so far
been identiied. Janine L. Peterson, The Transmission and Reception of Alberic of Montecassino,
Scriptorium 57 (2003): 3435, dates the irst seventeen chapters to 1082 and pp. 1822 to early in the
twelfth century. Alberico is the likely author of at least part of the work.
Camargo, Ars dictaminis, ars dictandi, 3031.
Ward, Rhetorical Theory and the Rise and Decline of Dictamen in the Middle Ages, 17790,
maintains that in the twelfth century in both Italy and transalpine Europe ars dictaminis was taught
separately from classical rhetorical theory.
The text is published in Adalbertus samaritanus: Praecepta dictaminum, ed. Franz-Josef Schmale, MGH,
Quellen zur Geistesgeschichte des Mittelalters, no. 3 (Weimar, 1961). Schmale believes him to be
a layman (8). For dating, see Worstbrock, Repertorium, 1. Doubtless there were other masters in
between Alberico and Adalberto whose works have not survived. Enrico Francigena (l. 1120s)
refers to his own master as Anselmo: Patt, Early Ars dictaminis, 143, and Ugo of Bologna (l. 1120s)

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

and criticized it for repetitiousness (reciprocaciones) and unspeciied oddities

(inusitationes). Nevertheless, while Adalbertos manual relected his awareness of a
public primarily concerned with knowledge of the mechanics of letter writing,
his observation that preparation for that art required previous training in gram-
mar, rhetoric, and dialectic suggests that he had not yet divorced ars dictaminis from
the traditional curriculum.104 From the fact that Adalberto frequently cited ancient
authors in the theoretical sections of the manual and in the model letters, together
with the fact that he composed the models in elaborate language, we may infer his
commitment to the book culture of the previous century.105 His inclusion of papal,
imperial, and episcopal letters indicates that he was setting a high standard for his
students to imitate.
Nonetheless, Adalbertos emphasis on the importance of letter writing threatened
the broad curriculum of study that he inherited. In a passage from one of his own
model letters in which he endeavored to promote dictamen, Adalberto was unknow-
ingly prophetic when he wrote, For what advantage is it to anyone to sweat for a
long time in the profession of grammar, if he does not know how, when it shall be
necessary, to write at least one letter?106 If, as the passage suggests, knowledge of
letter writing might be the goal of ones formal education, what need would there
be to sweat for a long time in the profession of grammar? Adalbertos successors
would decide that there was none.
The manuals of two of Adalbertos contemporaries, Ugo of Bolognas Rationes
dictandi prosaice (ca. 111924) and Enrico Francigenas Aurea gemma (ca. 111924),
probably written in Pavia, were also narrowly concerned with letter writing.107
Enricos model letters resemble those of Adalberto in that they are written in a
learned style with classical references, although fewer. By contrast, Ugos manual,
dedicated to D., Citizen of Ferrara, most just judex sacri palatii of the emperor,
ofers numerous models of letters for diferent occasions ranging in style from stilus
altus to stilus humilis.108 In this way his manual meets the promise that he makes in

in his Rationes dictandi prosaice, published in Ludwig Rockinger, Briefsteller und Formelbcher des eilften
bis vierzehnten Jahrhunderts, Quellen und Errterungen zur bayerischen und deutschen Geschichte,
no. 9 (Munich, 1963), 1:53, defends Alberico against the attacks of Adalberto and a certain Aigulfo,
who remains without further identiication.
Adalberto, Praecepta, 31: Primum itaque dictatorem oportet cognoscere grammaticam, rhetoricam,
dialeticam, eloquentie studia huic operi necessaria.
In my discussion of ars dictaminis in my The Arts of Letter-Writing, in The Cambridge History of
Literary Criticism. Vol. II: The Middle Ages, ed. Alastair Minnis and Ian Johnson (Oxford, 2005), 70, I
presented Adalberto as both reducing the ield of rhetoric to letter writing and divorcing it from the
literary tradition grounded in the classics. I now conclude, however, that while he deserves credit
for the irst innovation, the divorce from the Latin classics occurred in the work of Adalbertos con-
temporary Ugo and generally in writers of the following generation.
Adalbertos letter is included among the model letters in Ugos Rationes dictandi, 84: Quid enim
prodest alicui diu gramaticae professioni insudare, si nescierit cum oportuerit saltim unam epis-
tolam dictare?
Enricos collection of letters is published by Odebrecht, Briefmuster, 24261. The preface to the
work was published by Ernst H. Kantorowicz, Anonymi Aurea gemma, Medievalia et humanistica 1
(1943): 5657.
Ugos salutation reads (53): Ugo bononiensis ecclesie canonicus et sacerdos humillimus seruus
crucis Cristi D Ferariensium civi sacri palacii imperatoris equissimo iudici salutem et peticionis

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

the preface that the work will serve the needs not only of beginning students but
also of more experienced letter writers. Generally his models for the salutation and
exordium are elaborate, and students could have been expected to choose among
them for the one appropriate to a particular occasion. If Adalberto was the foun-
der of ars dictaminis, Ugo was the creator of the letter in stilus humilis, which would
become the trademark of Bolognese ars dictaminis and the dominant style of letter
writing in Italy for the next three hundred years.109
The Summa dictaminum (1144/45) by Master Bernardo, a cleric who was either
French or had close ties to Francia, returns letter writing to its place in the broader
ield of rhetoric in general.110 Bernardo had already published an earlier letter-
writing manual in Bologna, the Rationes dictandi (ca. 113843), that would exert an
enormous inluence on the ield. Apparently a partial draft of the longer Summa, the
Rationes dictandi laid out in detail what was to become the standard ive-part letter
of ars dictaminis: salutatio, benevolentie captatio (also called the exordium), narratio, petitio,
and conclusio.111
While the Summa constituted an ampliication of the teachings of the Rationes on
letter writing, the work in its later sections went beyond dictamen to treat a wide range
of genres of literary composition.112 Uncharacteristically for Italian artes dictaminis of
the period, the book began with a verse prologue consisting of thirty-six hexameter
lines, seventeen of which were borrowed from the epilogue of Marbod of Renness
De ornamentis verborum. It then proceeded to discuss at length the ive-part letter
with many examples (fols. 137) and then gave instructions in writing metric (fols.
37v58v) and rhythmic poetry (fols. 5970), and in colores rhetorici (fols. 7086).113
We might expect that the evident commitment of the author to the traditional
book culture would have produced letters as elaborately worded as those of

efectum. As for his audience, he writes that, with these rules, disciplinam rudibus et documenta
provectis breviter conmodeque traderem.
For an example of Ugos stilus humilis, see my The Arts of Letter-Writing, 72.
Repertorium, 30. In his examples in the Summa, he mentions such place-names as Paris, Lyon, Arles,
Cluny, and Clairvaux, along with Italian place-names.
For a description, see Repertorium, 2427. The irst of the two parts of the Rationes dictandi was
published by Rockinger, Briefsteller und Formelbcher, 1:928, who mistakenly attributed it to
Alberico of Montecassino; Repertorium, 25. Signiicantly, in the course of explaining the rules of
the art, the author made only one classical reference and that a commonplace. The author para-
phrased Cicero, In Cat. 3.5: Quis sim, ex eo quem ad te misi cognosces. See James J. Murphy,
Three Medieval Rhetorical Arts (Berkeley and Los Angeles, 1971), 20, who translates from Rockingers
edition. Murphy, however, attributes the quotation to Sallust.
For a description of the Summa dictaminum, which remains unpublished, see Repertorium, 2931. My
folio citations are taken from Biblioteca dellAccademia dei Filopatridi Savignano dei Rubicone,
45. I am grateful to Dr. Arturo Menghi Sartorio, librarian of the Accademia, for sending me a disk
version of the manuscript. The treatise on rhetorical colors is essentially taken from Marbods De
ornamentis verborum. The manuscript also includes two letter collections, one ascribed to Bernardo
(fols. 86133v) and the other to his disciple Guido (fols. 13454v). For Guidos letter collections, see
below n. 122.
The opening verses and the section on Latin verse in the Summa make it highly probable that he
was the author of the treatises on Latin metric and rhyme in the Savignano di Romagna manu-
script. Bernardos manual enjoyed enormous popularity in northern Europe, where it it well with
a thriving traditional book culture: Repertorium, 24.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

Adalberto or Enrico. The letters in the collection ascribed to Bernardo dated from
their contents to 114244, however, are syntactically uncomplicated and highly
formulaic. They raise the question of why Bernardo would have thought the
Summas extensive treatment of rhetorical igures and linguistic detail necessary.114
As for classical references, the letters contain only two. Aphoristic in character,
the one taken from Lucan and the other from Sallust, both had probably already
become proverbial among dictatores.115 The collection of model letters attached to
the Introductiones prosaici dictaminis (114552), a work closely related to the Summa
dictaminum, perhaps composed by one of Bernardos students, exhibits the same
tendency to streamline letter writing by composing in stilus humilis.116 The anony-
mous author imitates earlier manuals by including letters from emperors and popes
in his collection, but in this case they are all imaginary creations, written in the
same simpliied style as his other models.117 A second contemporary collection, this
one of Tuscan origin, dated 1154/55, ofers model letters that can easily be imitated,
but they deal largely with local politics and everyday relationships.118 The editor of
the collection refers to it as a forerunner of municipal ars dictandi.119
The collection was typical of ars dictaminis manuals in the second half of the
century in that it consisted merely of model letters with no discussion of theory.120
It has been suggested that after 1150 dictatores no longer needed to discuss the theo-
retical aspects of dictamen in their manuals because they could teach theory from the
older manuals.121 While this may be partly true, the absence of theoretical discussions
after 1150 more likely indicates that, given the development of a new streamlined
style of letter writing, teachers felt able to teach students dictamen simply by imitating
Bernardus bononiensis: Multiplices epistole que diversis et variis negotiis utiliter possunt accomodari, ed.
Virgilio Pini (Bologna, 1969). I do not understand the ascription bononiensis.
Bernardo cites (20) Lucan, I:281: semper nocuit diferre paratis, and quotes (21) Sallust, Iug.
10.6: nam concordia parvae res crescunt, discordia maximae dilabuntur. The latter quotation had
already appeared both in Adalberto, 24, and Enrico of Francigena, 253.
The Introductiones prosaici dictaminis is described in Repertorium, 3742, and dated as written between
1145 and 1152 (38). The Repertorium says of its author (24): Mglicherweise handelt es sich um das
Werk eines Schlers des Bernardus. Charles H. Haskins, An Italian Master Bernard, in Essays in
History Presented to Reginald Lane Poole, ed. H. W. Carless Davis (Oxford, 1927), 215, notes that no
classical author is mentioned in the manual except Cicero. Presumably, the citations from Cicero
would have been from the rhetorical manuals.
Hermann Kalbfuss, Eine Bologneser Ars dictandi des XII. Jahrhunderts, Quellen und Forschungen
aus italienischen Archiven und Bibliotheken 16 (1914): 135.
Helene Wieruszowski, A Twelfth-Century Ars dictaminis in the Barberini Collection of the Vatican
Library, Traditio 18 (1962): 38292. She dates the manuscript 1154/55 (384).
Ibid., 385. Wieruszowski (385) considers the references to mythology and the scattering of Ovidian
references as indicating that the teaching of ars dictaminis was still based on a thorough study of
ancient authors. Given that these are models, the level of Latin training required of a student to put
together his own letter would have been equivalent to Latin II in a modern American high school.
Cf. Patt, Early Ars dictaminis, 149.
I should add that two northern Italian manuals were roughly contemporary with Bernardos
Summa: Praecepta prosaici dictaminis secundum Tullium, ca. 1140, and Alberto of Asti, Flores dictandi,
ca. 114853. Both were devoted strictly to letter writing. For a description of the manuals, see
Repertorium, 15253 and 1920, respectively.
Charles H. Haskins, Early Artes dictandi in Italy, Studies in Medieval Culture (New York, 1929), 188.
Cf. Wieruszowski, A Twelfth-Century Ars dictaminis, 385.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

the forms and language of the model letters that they provided in their manuals
without speciic recourse to theory.
About twenty years lay between the irst and second generation of manuals, but
already in the irst generation Ugo, when writing to a layman, showed himself will-
ing to abandon the elitist conception of the letter as a manifestation of the writers
training in the book culture. Despite the elaborate pretensions of second-generation
manuals such as the Summa dictaminum and the Introductiones prosaice dictaminis,
dictatores realized that style had to it the capacities of the expanding mass of new
learners, both laymen and clerics.That involved fashioning a new form of eloquence
using elements of the stilus humilis, a form that could be mastered by students with
only a modest level of training in grammar.
As it had done in the study of Roman and canon law, Bologna became the
leading center for the study of ars dictaminis in Italy, with a continuous tradition of
teaching over the following century. One of Bernardos students, Guido, a canon
of the Bolognese cathedral, taught the subject at the cathedral in the 1150s.122 In
the 1180s, Geofrey of Vinsauf was giving instruction in dictamen in the city, likely
in his own school, and from the 1190s Boncompagno and Bene of Florence taught
ars dictaminis there for several decades.123 Guido Faba followed them in the 1230s
and 1240s.


Although the methods of teaching Latin grammar in Italian schools do not appear to
have altered drastically in the twelfth century, two new textbooks were introduced,
one composed in the second half of the eleventh and the other early in the twelfth
century. Until then the basic textbooks for grammar had been the late-ancient
Ars grammatica of Donatus, an elementary text, and the Institutiones grammaticae of
Priscian, an advanced one.124 Both of the older texts provided a prescriptive analysis
of Latin grammar and used examples drawn from ancient Latin authors to illustrate
the rules, but neither paid much attention to the construction of sentences using the
parts of speech. Conceived as a basic text for students whose native language was
Latin, Donatuss work did not provide models for declining nouns and adjectives or
for conjugating verbs.
Guido is probably the author of Modi dictaminum, which Repertorium (6970) dates to ca. 1159.
Like Ugo, Guido was a canon of Bologna: Augusto Campana, Lettera di quattro maestri dello
Studio di Bologna allImperatore Federigo I nelle Epistolae del dettatore Guido, Atti del Convegno
internazionale di studi accursiani (Ott. 2126, Bologna, 1963), ed. Guido Rossi, 3 vols. (Milan, 1968),
1:13438. A letter collection, Incipiunt epistole secundum rectum et naturalem ordinem a Guidone non
inutiliter composite, very probably his, is found in Savignano sul Rubiconte, Ms. 68, fols. 134154v. It
remains unpublished: Repertorium, 69.These letters consistently begin with elaborate salutationes and
exordia (easily compiled from lists in manuals) followed by simple narrationes. The clerical character
of most of the correspondence likely relects Guidos teaching in a cathedral school.
The work of these later dictatores will be discussed in Chapter 11, The New Arts of Rhetoric.
The best analysis of the development of grammar in Western Europe is Robert Black, Humanism
and Education in Medieval and Renaissance Italy:Tradition and Innovation in Latin Schools from the Twelfth
to the Fifteenth Century (Cambridge, 2001). For the relationship of Priscian and Donatus to the new
grammar manuals of the eleventh and twelfth centuries, see especially 4455.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

The southern Italian grammarians of the ninth century Ilderico and Orso had
already indicated dissatisfaction with Donatus and Priscian by composing their own
advanced grammars that combined instruction found in Donatus and Priscian with
that of other ancient grammarians.125 Nonetheless, Ildericos and Orsos books proved
no easier to study than those of their ancient predecessors, and neither seems to have
enjoyed wide circulation. Papiass mid-eleventh-century Ars grammatica, however,
took a diferent approach to teaching advanced grammar. Essentially a summary of
Priscians rules, the Ars grammatica drew on other sources as well. Papias remained
largely faithful to Priscians organization, but he treated only phonetics and parts of
speech. He did so, but in a form that made it easier for students to memorize the
rules and generally facilitated learning the language.126
In his efort to summarize Priscian, Papias omitted almost all references to the
Greek language as well as most of the Latin quotations that Priscian had used to
illustrate the lessons. When Papias did provide examples taken from Priscians text,
he usually deleted the name of the ancient author. Where he felt the need to clarify
the presentation, he rearranged the order of treatment and occasionally added dei-
nitions of Priscians terms. Aware of changes in the language since Priscians time,
Papias designed his grammar to it the needs of contemporary learners.127
Of forty-six twelfth-century copies of Priscian whose provenance is known
almost all have been found in transalpine monasteries. Only four have been identi-
ied in the regnum. The regnums holdings of Priscian, however, rose relatively in the
decades around 1200 to three of twelve.128 The number of manuscripts of Papias
from known locations are much fewer in the twelfth century: ive of which one was
from the regnum.129
By the twelfth century, although comparison of the number of manuscripts of
Priscian with those of Papias would suggest the opposite, Priscian may already have
been replaced in innovative educational institutions by Papiass summary. Priscians
is a large manuscript, laborious to copy and diicult to replace. It would have been
carefully warehoused. Papiass summary version is considerably smaller, easier to
copy, and less likely to be closely guarded in monastic libraries. Paradoxically, there-
fore, if in this case we accept the rule of the survival of the unittest, the smaller
number of surviving Papias manuscripts would relect the fact that the work was
more heavily used than was Priscian, both in Italy and in Francia.130 I see no way of
moving from this assumption, however, to a solid assessment of the extent to which
the two grammars served teachers needs on either side of the Alps.
A second new manual, designed to remedy the shortcomings of the ancient text-
books of grammar at the elementary level, appeared as early as the irst decades of
the twelfth century. Destined to become the core manual for teaching the sub-
ject down to 1500, the Janua ofered students extensive paradigms of nouns, verbs,

See Chapter 1, under Italian Intellectual Life Beyond the Regnum.
The text has been edited by Roberta Cervani, Papiae Ars grammatica (Bologna, 1998).
Roberta Cervani, Considerazioni sulla difusione dei testi grammaticali: La tradizione di Donato,
Prisciano, Papias, BISI 91 (1984): 41121. Cf. Black, Humanism and Education, 49 and 51.
Cervani, Considerazioni sulla difusione dei testi grammaticali, 4013.
Ibid., 406.
For my discussion of the rule, see my introduction, p. 11.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

participles, and pronouns, along with rules for their formation and a thorough dis-
cussion of irregularities in their application. Whereas Donatuss grammar assumed
knowledge of Latin morphology, the Janua made no such assumption. Divided into
eight sections, each corresponding to a part of speech, the Janua proceeded by asking
a question, providing an answer, and giving an example or examples.The author left
no technical term undeined.131
For earlier centuries in Italian schools, teachers who were charged with teaching
elementary grammar had doubtless complemented oral instruction with morpho-
logical paradigms, accompanied by lists of exceptions. The originality of the author
of the Janua lay in his integrating this instruction into a systematic form. In light of
the expanding Italian interest in practical Latin literacy, it is tempting to see this new
elementary grammar as an efort to simplify instruction, even though the course of
study that its pages suggest would have required about two or three years of gram-
mar school to complete.132 While, given its elementary nature, the Janua would have
been far more widespread than the manual of Papias, no Italian manuscripts of the
work or even fragments exist before the thirteenth century.133 Evidently the Janua,
a schoolbook of little monetary value, passed from the hands of one generation of
masters to another and did not survive rough and intensive usage.134
The circulation of the Janua was not conined to Italy, but by the second half of
the twelfth century, a northern elementary grammar similar to it, probably of French
origin, also appeared.135 These two elementary manuals along with Papiass led to a
general improvement in the instruction of Latin grammar and relected a growing
interest in learning the language. In the case of Italy we have no idea, however, what
reading texts complemented the grammar manuals, nor what reading material, if
any, followed the basic courses. Formal grammar education for most students in
the regnum did not likely go much beyond the Janua, and if further education was
involved, students rarely went beyond lessons in ars dictaminis.
Black, Humanism and Education, 4463 and 36978.
As we shall see, only two years of grammar training was suicient for entry into notarial school
(see Chap. 9, n. 32). According to a model letter in Bene of Florences Candelabrum (Bene lorentini
Candelabrum, ed. Gian C. Alessio, Thesaurus mundi: Biblioteca scriptorum latinorum mediae et
recentioris aetatis, no. 2 [Padua, 1983] 219), three years of preparation in grammar were normal for
canon law in early thirteenth-century Bologna: Sciatis quod Bononie gramaticam tribus annis
audivi, biennio in logica laboravi, tandem in iure canonico sum titulum magisterii consecutus. It
seems likely that these requirements relect the expectation that the basic grammar book would be
completed within two or three years. Black, ibid., 48, maintains that it was assumed that pupils
would progress further in the study of Latin language and literature. Given the practical orien-
tation of Italian Latin culture, I do not think that this can be assumed. Although the irst example
of the text is a Germanic manuscript dating from the second half of the twelfth century, the Italian
origin of the text is indicated by the geographical names mentioned in it, all belonging to post-
ancient Italy (ibid., 369).
The manuscript tradition for the Janua is found in ibid., 37378.
The argument that the absence of evidence suggests extensive use of the Janua cannot be extended
to Donatus, who seems not to have exercised much inluence on the teaching of grammar in the
twelfth century (ibid., 4849). See the listing of twelfth-century Donatus manuscripts whose origin
can be ascertained, Cervani, Considerazioni sulla difusione dei testi grammaticali, 401.
Black, Humanism and Education, 46, shows that the full Janua was already in circulation before the
two earliest skeletal manuscripts appear. He believes these manuscripts were written in northern

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

Apart from the discussion of ars dictaminis, there is little more to say about the
study of rhetoric in the regnum down to 1180, nor do we know much about the
teaching of the other member of the trivium (logic or dialectic). Despite what
appears to have been a vigorous beginning in the eleventh century down to the
Investiture Struggle, the study of logic in the twelfth century waned, becoming
subservient to instruction in Roman and canon law. Of the seven indications that
logic was being taught in the twelfth century, three are unhelpful. A certain Petrus
dialecticus witnessed a document in Mantua in 1140; at Vercelli late in the twelfth
century a canon was skilled in dialectica; and a manual of dialectic, with no marginal
annotations, survives in a twelfth-century manuscript that had been donated to the
cathedral school in Lucca sometime before 1194.136 Adalbertos insistence that the
study of ars dictaminis required preparation in grammar, rhetoric, and logic, and the
claim of Enrico of Francigenas student to be studying law and dialectic at Pavia
(if it was indeed Aristotelian logic), evidence coming from the irst quarter of the
twelfth century, however, makes it likely that logic was being taught at least at Pavia
and Bologna in that period.
If a late twelfth-century gloss on the De sophisticis elenchis that attributes an earlier
commentary on the work to a certain Master Alberic is correct, we have reason to
believe that the master wrote it while teaching somewhere in the regnum in the sec-
ond quarter of the century.137 He was likely the Parisian logician with whom John
of Salisbury studied and who left Paris for Bologna around 1142, not to reappear
in Paris until sometime after 1146. Alberic not only based his commentary on the
translation of the text by Giacomo of Venice, but he also utilized Giacomos com-
mentary on the work written about 1130. Given the recent nature of Giacomos
work, it seems likely that Alberic irst encountered the De sophisticis elenchis and
Giacomos commentary in Italy.138
The strongest evidence for the existence of courses in logic in the regnum, how-
ever, is found in a poem composed by Walter of Chtillon in 1174 and addressed to
students at Bologna, among them young students of the trivium, that is, logic, gram-
mar, and rhetoric.139 It seems unlikely, however, that instruction in logic at Bologna
For Mantua, see LArchivio capitulare della cattedrale di Mantova ino alla caduta dei Bonacolsi, ed. Pietro
Torelli (Verona, 1924), 26, doc. 18. For the canon of Vercelli skilled in dialectic, see Chapter 9, n. 72.
The Lucchese manual is discussed in Chapter 6, The Cathedral Schools.
Lambertus M. de Rijk, Logica modernorum: A Contribution to the History of Early Terminist Logic, 2 vols.
in 3 pts., Wijsgerige teksten en studies, no. 6 (Assen, 1962), 1:8283.
Ibid., 8586. Citing John of Salisburys Metalogicon, 10, as evidence, de Rijk suggests that Master
Alberic was in Bologna after 1142. The relevant passage in John is found in Ioannis Saresberiensis
episcopi carnotensis Metalogicon libri IIII recognovit et prolegomenis, apparatu critico, commentario, indicibus, ed.
Clement C. I.Webb (Oxford, 1929), 7879. De Rijk reasons that the gloss was composed at Bologna:
Logica modernorum, 1:8788. Cf. Lambertus M. de Rijk, Some New Evidence on Twelfth-Century
Logic: Alberic and the School of Mont Ste. Genevive (Montani), Vivarium 4 (1966): 1819.
On Giacomos commentary, see Sten Ebensen, Jacopus Veneticus on the Posterior Analytics and
some early 13th-century Oxford Masters on the Elenchi, Cahiers de lInstitut du moyen ge grec et latin
21 (1977): 13. Incidentally, it might have been by means of Alberics teaching that the De sophis-
ticis elenchis gained entry into the legal commentaries in the second half of the twelfth century. It
appears to have been the only text of Aristotles logica nova to do so.
The speech is published in Moralish-Satirische Gedichte Walters von Chatillon: Aus deutschen, englischen,
franzsischen und italienischen Handschriften, ed. Karl Strecker (Heidelberg, 1929), 3852.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

or in any other school of the regnum went beyond the elementary level, in that
until well into the thirteenth century no document provides us with the name of
a teacher of the subject. Until at least late in the twelfth century, consequently, the
study of logic in the regnum appears to have remained elementary, afording students
only the basic knowledge of the subject useful in their legal studies.140
Like the trivium, theology was a traditional subject of the cathedral school, but
apart from the writings of Pietro Damiani, it is diicult to identify a theological work
written in the regnum in the eleventh century or the early decades of the twelfth.
A revival of interest in theology appeared only in the 1130s, and by mid-century
Bologna had become the principal center for teaching the subject in Italy. Between
1159 and 1161, four teachers at Bologna sent a letter to Frederick I appealing his
order that all students from anti-imperialist cities be expelled from the city. Their
request was that an exemption be made at least for clerics from three cities, Brescia,
Cremona, and Milan.141 In all likelihood all four petitioners were canonists, but
only Gandolfo and Rolando, who were both canonists and theologians, can be
Rolando, canonist and theologian, was possibly French, but given the frequency
with which Italians studied philosophy and theology in Francia, he may have been
an Italian who returned to his country after inishing his schooling.143 The expe-
rience of Landolfo Junior and his Milanese friends, who studied theology and
biblical exegesis at Laon circa 1109, suggests that a stream of young Italians, who
initially sought out Lanfranco and Anselmo, continued to low across the Alps in

In fact, we have only a sketchy idea of what teaching of logic there was before 1250. It is revealing
that the articles in Linsegnamento della logica a Bologna nel XIV secolo, ed. Dino Buzzetti, Maurizio
Ferriani, and Andrea Tabarroni, Studi e memorie per la storia dellUniversit di Bologna, n.s., no. 8
(Bologna, 1992), make no reference to the history of logic at Bologna before the second half of the
thirteenth century.
Campana, Lettera di quattro maestri bolognese, 1:14041. The title of the letter to the emperor,
Magistrorum epistola ad Imperatorem pro suo negotio (ibid., 140), implies that the teachers were
directly concerned with the efects of the imperial decree of expulsion were it to be fully enforced
(ibid., 143). Doubtless their income would have been afected. Conciliar decrees of 1179 and 1215
forbade beneiced clergy to teach for compensation, but only if students were clerics of the same
church or pauperes: Giuseppe Manacorda, Storia della scuola in Italia. Il medio evo, 1 vol. in 2 pts. (Milan
and Palermo, 1913), 1.1:6972.
Rudolf Weigand, Magister Rolandus und Papst Alexander III, Archiv fr katholisches Kirchenrecht
149 (1980): 7, n. 20, identiies Guidotto as possibly G. de Bornardo but cannot further identify magister
Petrus. He considers both canonists. On Gandolfos theological writing, see Ghellinck, Mouvement
thologique, 297373. On his canon law writings, see Augusto Campana, Lettera di quattro maestri
bolognese, 146, n. 30. The Rolando subscribing to this document is not identical with Alexander
III, who taught theology earlier at Bologna according to the later witness of Uguccio: John T.
Noonan, Who Was Rolandus? Law, Church, and Society: Essays in Honor of Stephan Kuttner, ed.
Kenneth Pennington and Robert Somerville (Philadelphia, 1977), 4344; and Weigand, Magister
Rolandus, 78. Cf. Weigand, Frhe Kanonisten, 13637. Rather, he is a canonist and theologian
writing in the 1150s and early 1160s. Also see James A. Brundage, Marriage and Sexuality in the
Decretals of Pope Alexander III, in Miscellanea: Rolando Bandinelli Papa Alessandro III, ed. Filippo
Liotta (Siena, 1986), 59, n. 3.
While he acknowledges extensive traits of Abelardian thought in Rolandos work that may have
come from study in Francia, Noonan, Who Was Rolandus? 3940 and 41, suggests that he might
have been Modenese in origin.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

the twelfth century, now principally in search of French masters in cities like Laon,
Paris, and Orlans.144
In his Summa (ca. 1155), Rolando goes further than any contemporary theologian
except Pietro Lombardo in critically examining the sources in his theological trea-
tise and identifying his own position toward them.145 The inluence of Abelard is
shown in Rolandos reliance on dialectic, his clear deinition of terms, his rigorous
analytical methodology, his use of questions and answers, and in the major rubrics he
used for organizing his material. By contrast, Gandulfos theological tract, Sententiae,
written perhaps a decade later, is largely an abridgement of Pietro Lombardos Liber
sententiarum, which Pietro had written in Francia. Gandulfo reproduced Lombardos
solutions but lacked the citations and critique of authorities that the original
For a brief period from the 1130s to possibly the 1150s the cathedral school at
Lucca appears to have ofered courses in theology. Oddone of Lucca, bishop of the
diocese of Lucca after 1138, may have been one of the young men who studied the-
ology in Francia, but the only evidence for his teaching theology at Lucca comes
from a mistaken attribution to him of a Summa sententiarum in some manuscripts of
the work.147 Oddones one appearance in the surviving documents of the cathedral
chapter lists him only as a priest.148 Nevertheless, there is some indication that at least
Lotulfo of Novara, a cleric hostile to Abelard, was such an migr scholar who came to Francia
to study with Anselm of Laon and remained: Lino Cassani, La scuola di Novara ai tempi di Pier
Lombardo, Miscellanea lombardiana (Novara, 1957), 369; Damien Van den Eynde, Du nouveau sur
deux matres contemporains du Matre des Sentences, Pier Lombardo 1 (1953): 69; and John R.
Williams, The Cathedral School of Reims in the Time of Master Alberic, 11181136, Traditio 20
(1964): 93114.
Rolandos Summa is published by Friedrich Thaner, Summa magistri Rolandi nachmals Papstes
Alexander III (Innsbruck, 1874), who considered it to have been authored by Rolando Bandinelli.
I have summarized the basic aspects of the work drawing on Marcia Colish, Systematic Theology
and Theological Renewal in the Twelfth Century, Journal of Medieval and Renaissance Studies 18
(1988): 15051.
Ghellinck, Mouvement thologique, 31543, as well as the editors introduction to the Sententiae: Magistri
Gandulphi bononiensis Sententiarum libri quatuor, ed. Joannes de Walter (Vienna and Breslau, 1924),
xllxix. My characterization of the work is taken from Marcia Colish, From the Sentence
Collection to the Sentence Commentary and the Summa, 1819.
Ferruccio Gastaldelli, in his Wilhelmus Lucensis: Comentum in tertiam Ierarchiam Dionisii que est
De divinis nominibus, ed. Ferruccio Gastaldelli (Florence, 1983), xxviixl, identiies the Summa
sententiarum, a work of systematic theology on which Lombard depended heavily for his own
compilation, as Oddones achievement. On the attribution of the work in surviving manuscripts,
see ibid., 53741. On the great importance of the work, see Ghellinck, Mouvement thologique,
197203. For a description of its contents, see Marcia Colish, Systematic Theology, 14546; it is
published in PL 176, cols. 41174. Gastaldelli dates the writing between 1138 and 1141 (La Summa
sententiarum, 546). David E. Luscombe, The School of Peter Abelard:The Inluence of Abelards Thought
in the Early Scholastic Period (Cambridge, 1969), 21112, believes that the author could have been
a disciple of Hugh of Saint Victor, but he ofers no name. Marcia Colish, however, informs me
that the author, in discussing sacraments in cases where there were diferences in administration as
between the Gallican and Roman churches, identiies himself as a member of the former church:
Summa sent. 5.4, 7.147.17, 7.20: PL 176, cols. 130, 16566, and 170. This efectively refutes the attri-
bution to Oddone.
Nos Albertus et Albericus et Rainerius et Oddus presbiteri et Gerardus et Amatus diaconi atque
Hubertus simulque Anselmus subdiaconi et confratres ecclesiae et canonice S. Martini ...: Regesta

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

two theologians of the next generation, Pietro Lombardo and Guglielmo of Lucca,
had studied in the local cathedral school in Oddones time, and that the cathedral
was not without contact with some of the great theological minds of Francia.
A letter of Hugh of Saint Victors expressing appreciation for Luccas hospitality
in providing housing for him may not be much, but evidence of the tie of Lucca
to Gilbert de la Porre and Bernard of Clairvaux is stronger.149 A letter of Bernard
to Gilduin (111455), abbot of Saint Victor, written circa 1134, explained that Pietro
(Lombardo) had, with Bernards assistance, already spent a brief time studying at
Rheims and now wanted to come to Paris for a short period.150 He recommended
the young man on behalf of pater et amicus noster Uberto, bishop of Lucca. That
phrase suggests that not only Bernard but also Pietro had a connection to Lucca.
Indeed, Ubertos support of the young scholar may mean that Pietro had studied in
his city, perhaps with Oddone.
As his name indicates, Guglielmo of Lucca (d. 1178), a professor of theology at
Bologna in the third quarter of the twelfth century, originally came from Lucca and
probably began his studies there.151 Guglielmos aggressive use of Abelardian dialectic
raises the possibility that he had studied in Francia and aligns him with two col-
leagues, Rolando and Omnebene (d. 1185), another Bolognese teacher of theology
whose work showed strong sympathies with Abelards thought.152 Guglielmo applied
Abelards methodology in composing a commentary written between 1169 and 1177
on Pseudo-Dionysiuss De divinis nominibus, written between 1169 and 1177 and his
only surviving work.153
Generally speaking, the theological work done in Italy in the middle decades of
the twelfth century was heavily inluenced by Abelards methodology and thought,
but possibly with the exception of Rolando, whose origin is obscure, it does not
seem to have been especially innovative. To a large extent, the traditional symbiotic

del Capitolo di Lucca, ed Pietro Guidi and Oreste Parenti, Regesta Cartarum Italiae, vol. 6 (Rome,
1910), 354, doc. 821 (1125).
Before his death in 1141, probably in 1133 when the curia was at Pisa, Hugh of Saint Victor visited
Lucca and later wrote to the canons thanking them for his stay: Ghellinck, Mouvement thologique,
190. The gift of a manuscript of Hilarys rare De Trinitate to the cathedral of Lucca made by the
French theologian Gilbert of Poitiers (d. 1154) suggests a special tie with the cathedral. His name
was also registered among the obituaries of the cathedral: Gastaldelli, Wilhelmus lucensis. Comentum,
xxxiixxxiii. Uberto may have met Bernard when the latter was at Pisa in 1133: Gastaldelli, La
Summa sententiarum, 543. The relationship, however, could have predated 1133.
Epistole, Sancti Bernardi Opera, ed. Jean Leclercq and Henri Rochais, 8 vols. (Rome, 195777),
8:391: Dominus Lucensis episcopus, pater et amicus noster, commendavit mihi virum venera-
bilem P. Lombardum, rogans ut ei parvo tempore, quo moraretur in Francia causa studii, per ami-
cos nostros victui necessaria provideram ...; cf. Gastaldelli, La Summa sententiarum, 54243. On
Lombardos life, see Joseph de Ghellinck, Pierre Lombard, Dictionnaire thologique catholique, vol.
12 (Paris, 1935), cols. 194143; and especially Marcia Colish, Peter Lombard, 2 vols. (Leiden and New
York, 1994), 1:1523. Colishs study is the deinitive work on Lombards thought.
On his teaching in Bologna, see Gastaldelli, Wilhelmus lucensis: Comentum, xliv.
Luscombe, The School of Peter Abelard, 24460. On Omnebene as canonist and theologian, see
Weigand, Frhe Kanonisten, 13738. He left Bologna in 1157 to become bishop of Verona. On
Rolando as a canonist, see above, n. 142. On Guglielmo and Abelard, see Gastaldelli, Wilhelmus
lucenis: Comentum, lxiii.
Gastaldelli, Wilhelmus lucenis: Comentum, xciii, for dates.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Dominance of the LegalRhetorical Mentality

relationship between canon law and theology served for a time to maintain a level
of interest in theological studies in Bologna, but that interest steadily diminished
as canon lawyers, especially Uguccio, systematically iltered theology out of canon
law in favor of more strictly juridical conceptions. That no theological works by
Bolognese theologians after Guglielmo exist up at least to 1250 does not mean, of
course, that none were written, but rather that none have survived. Theological
thinking could not go much beyond the point it had reached by the 1180s without
making use of the corpus of Aristotelian works on philosophy, natural science, and
advanced logic, but Italian cathedral schools, the likely site for such speculative work,
evinced no particular interest in such a demanding undertaking. The future of the
ield lay in the hands of thinkers in transalpine Europe who were eager to create
ambitious conceptual models of the universe based on the full Aristotelian corpus
of writings on natural science and logic. From the 1220s, Paris-trained Franciscan
and Dominican theologians would introduce to the regnum the new scholastic
approach to theology, but until the second half of the thirteenth century, such the-
ology remained largely a transalpine importation.


The twelfth century witnessed a reconstruction of the political institutions of the

regnum, a task that thrust legal professionals into new positions of responsibility.
Consequently, intellectual life during the century was caught in an updraft caused
by the rapid growth of new disciplines. An intellectual elite, Roman and canon
lawyers, represented the pinnacle of achievement in the evolving legalrhetorical
culture, while notaries occupied a second tier. However, of greater importance than
legal studies for fostering the new mentality because many more people had access
to it, ars dictaminis, the third new discipline, provided a democratized version of rhe-
toric only somewhat less formulaic than that of notarial documents. Requiring only
elementary grammatical knowledge, the rules of ars dictaminis could be learned in a
matter of months, and in exercising the art individuals had at their disposal model
letters to guide their own compositions.Within the context of legalrhetorical edu-
cation ars dictaminis served at the secondary level between elementary grammar and
specialization in one of the legal disciplines.
The appearance in the early twelfth century of an innovative grammar book, the
Janua, designed to meet the needs of students whose irst language was not Latin,
relects a new creativity on the part of teachers of one of the traditional subjects
of the school curriculum. This eicient manual shortened the period required for
embarking on the study of ars dictaminis and of canon and Roman law texts. Papiass
Ars grammatica would have fulilled the same purpose at the next level of gram-
mar study in the case of students intending to read ancient pagan and patristic
As for theology, Italian scholars who, attracted to the innovative thinking intro-
duced in Francia by Anselmo of Aosta and Peter Abelard, had crossed the mountains
for their training and then returned home, succeeded by the middle decades of the
century in raising the level of theological discourse in their own country. By 1180,
however, that time had passed. In the absence of a concerted efort in Italy to exploit

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at
The Triumph of the Legal Culture

the logica nova and Aristotles philosophical and scientiic texts, the study of theology,
insulated from developments in the ield taking place north of the Alps, by the late
twelfth century lost whatever vitality it had enjoyed.
As we shall see in the next chapter, the spectacular success of ars dictaminis attests
to a growing market for literacy among laymen and clerics alike, a market that
encouraged the expansion of private schools, often mobile, devoted to teaching
grammar and rhetoric. Private schools were mentioned as early as the tenth century,
and in the eleventh the private law school, run by a practicing lawyer, already seems
to have been the dominant institution for teaching the subject. In teaching the
new discipline of canon law, canon lawyers in the twelfth century tended to follow
the institutional model of their colleagues in secular law. The disruptions caused in
the ecclesiastical establishment by the decades of conlict over investiture, more-
over, coupled with the inlexibility of traditional institutions, opened to laymen the
opportunity to exploit the new market for a streamlined approach to rhetoric and
even to rival the parish priest and collegiate churches in teaching grammar school,
if not so much primary school.
Although we can speak only in general terms regarding the link between the
commercial revolution and the developments in education discussed in this chap-
ter, nonetheless it is fair to say that the expanding economy reinforced the causes
promoting the ascension of the legalrhetorical disciplines. Because landholding,
agricultural techniques, and commercial transactions all became more complex,
knowledge of the ars notaria and of Roman and feudal law became a valuable
commodity. Ars dictaminis not only often served as the bridge between grammar
school and notarial training but facilitated communication in a commercial and
political society whose interests extended beyond the local perimeter. The increas-
ing monetarization of the economy and the widened distribution of the growing
wealth of Italian society, moreover, encouraged the commodiication of education,
making teaching a possible way of earning ones livelihood and ultimately leading
laymen to compete with clerics for students at every level of education.

Downloaded from https:/ New York University, on 28 Jun 2017 at 14:00:19, subject to the Cambridge Core terms of use, available at