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Glosses, Canon Law

GLOSSES, CANON LAW

The practice of glossing owes its chief popularity among medieval jurists to the specifically juridical turn of mind and method of operation requisite for the interpretation of laws, the chief function of jurisprudence. When Canon Law as such began to flourish after the Decretum of gratian and the inception of papal decretal legislation, the canonists borrowed from the civil jurists who were treating Roman law the method of glossing that seemed the most promising way to cope with the growing mass of ecclesiastical legislation. Each individual passage of any source had to be given a meticulously accurate interpretation, and the gloss was the most appropriate method.

Form and Content. The glosses were entered either between the lines of the text (interlinear gloss) or in the margin (marginal gloss) beside the word being glossed; as the glosses became more extensive, they were entered also in the free space at the top and bottom of the page. If there was still space available, later copyists often added further glosses; in this process older glosses were often erased and new ones were entered in their place. There are manuscripts that have three, four, and even more layers of glosses.

With regard to content, the glosses developed very quickly from a primitive form to the highest degree of perfection. The earliest glosses are the allegationes, collections of concordant or discordant capitula (concordantiae and contraria, respectively). These glosses, representing simple citations, became the basis and set the problems for later presentations. The passage glossed is made to yield a brief legal rule, usually in the form of an argumentum, and parallel passages are adduced. Especially important legal axioms are prefixed with such notations as nota. The glosses give rise, upon addition of contraria, to the later Brocarda or Generalia collections. The content of the chapter being glossed or sections with still wider implications are briefly summarized. This sort of purely reportorial gloss is closely allied with the casus, which gives the facts of a case and the ruling of a passage in a law. But this summarizing individual gloss also becomes the nucleus for the systematic textbook summae. Continuationes elaborate the connection with preceding material. Individual words are explained philologically or juridically.

Glossing arrives at a more advanced stage as soon as it proceeds to the interpretation of the law itself, to a commentary that is analytic as well as systematic. This kind of gloss examines the internal connection of the parallel passages adduced, subsumes one passage under another, or deduces one from another. The collection of discordant passages is accompanied by a gloss offering a solution that will reconcile the contradictions, usually by way of distinctions. These steadily increasing commentary glosses become more and more important; instead of providing explanations of individual words, they might enter into greater detail on a legal question touched upon in the passage being glossed. Here it is often difficult for the modern historian of law to grasp the connection seen by the medieval jurist between the problem treated in the gloss and the legal text being glossed; this is why it is difficult to find the sedes materiae of a legal problem in the glosses. These discursive glosses take various forms. The individual glosses containing a simple statement of content are enriched by explanations of the juridical significance of that content; and this gives rise to the summae on the individual chapters (capitula ) and to summae on still more extensive sections of the text (the causae, quaestiones, and distinctiones of Gratian and the titles of the decretal collections). Summaries of these sections necessarily entail a summary and systematic presentation of the maxims drawn from them. Other glosses contain the distinction in the form of a schema or continuous text. A generic concept in the source, a legal rule, is analyzed into subordinate specific concepts by the use of distinctive characteristic features. Finally, many glosses contain juridical explanations having no definite form.

Apparatus Glossarum. Eventually the glosses of all sorts became more numerous and extensive until the more connected commentaries and finally the outright glossary apparatuses developed. The glosses of many authors (decretists, decretalists) are sometimes anonymous; sometimes they bear the initial or initials of the author. These logograms are not very reliable, and it is not known in many cases for what name they stand. The master writes the glosses in his copy of the text, so that they can then be transferred into other copies and disseminated. The universities provide another opportunity for their dissemination, the students copying glosses into their own texts from the copy loaned out by the master. The students also make copies of the lectures (reportationes ). And finally, there are manuscripts with glosses privately authored by their owners.

About the end of the 12th century, there began a collection of the glosses that had by then become quite extensive; less important elements were deleted, and the remainder was systematized, the compiler and reviser adding his own glosses, so that there came into existence a continuous comprehensive commentary, a melting pot of the glosses, the apparatus glossarum. This apparatus was subject to constant revision and expansion; thus there are several editions of many apparatus glossarum. The schools and courts recognized as the glossa ordinariathe one that was generally held to have made the best selection and provided defensible original opinions, while preserving completeness and distinguishing itself by succinctness and clarity. Such recognition was often very swiftly forthcoming, and the glossa ordinaria for the most part quickly and almost totally supplanted the preceding pertinent glossaries to become the final authority. Later canonists comment on the glossa ordinaria on an equal footing even with the text it glosses.

The importance of the glosses for medieval Canon Law can hardly be overestimated. Almost all the types of writing of medieval jurisprudence have their origin in the activity of glossing. The gloss was for the student the door to the whole realm of law; for the scholar, the prime means for coping with the material and enriching it with his own thoughts; for the judge, a tool to be used to prepare for and facilitate the application of the law. The glosses written from mid-12th century to the first half of the 14th century represent, in form and content, the foundation of the prodigious edifice of medieval Canon Law, the classical law of the Church.

Bibliography: f. k. v. savigny, Geschichte des römischen Rechts im Mittelalter, 7 v. (2d ed. Heidelberg 183451; repr. Darmstadt 1958) 3:552574. j. f. von schulte, Die Geschichte der Quellen und der Literatur des kanonischen Rechts, 3 v. in 4 pts. (Stuttgart 187580; repr. Graz 1956) 1:212220; 2:456484; and passim. j. juncker, "Summen und Glossen," Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 14 (1925) 384474. e. genzmer, "Die Iustinianische Kodifikation und die Glossatoren," in Atti del Congresso internazionale di diritto Romano, Bolognae Roma, 1933, 4 v. (Pavia 193435) Bologna, 1:345430. s. kuttner, Repertorium der Kanonistik (Rome 1937) 112 and passim. a. van hove, Commentarium Lovaniense in Codicem iuris canonici 1, v. 15 (Mechlin 1928) 1:412465, esp.412. a. m. stickler, Lexikon für Theologie und Kirche, ed. j. hofer and k. rahner, 10 v. (2d new ed. Freiburg 195765) 4:970971. Bulletin of the Institute of Research and Study in Medieval Canon Law, ed. s. kuttner, in each v. of Traditio since 1955.

[k. w. knÖrr]

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