The History of Medieval Canon Law in the Classical Period, 1140-1234
458
The History of Medieval Canon Law in the Classical Period, 1140-1234
458Hardcover
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Product Details
| ISBN-13: | 9780813214917 |
|---|---|
| Publisher: | The Catholic University of America Press |
| Publication date: | 06/18/2008 |
| Series: | History of Medieval Canon Law |
| Pages: | 458 |
| Product dimensions: | 6.10(w) x 9.50(h) x 1.30(d) |
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The History of Medieval Canon Law in the Classical Period, 1140-1234
From Gratian to the Decretals of Pope Gregory IXThe Catholic University of America Press
Copyright © 2008 The Catholic University of America PressAll right reserved.
ISBN: 978-0-8132-1491-7
Chapter One
The Establishment of Normative Legal TextsThe Beginnings of the Ius commune Michael H. Hoeflich and Jasonne M. Grabher
The 'rediscovery' of Roman law and the concomitant development of canon law in twelfth-century Europe have intrigued historians since the sixteenth century. The rediscovery and renewal of what the Germans have called 'scientific jurisprudence' played a key role in the development of Charles Homer Haskins' vision of the 'Renaissance of the Twelfth Century' and of R.W. Southern's concept of the scholastic unification of medieval Europe. Central to this notion of rediscovery and renewal is the growth in importance of legal studies at universities during this period and the growing production of university graduates trained in law who could hold important offices in both religious and secular worlds. Equally important to this Renaissance was the growth in two ideas: the law was a discipline worthy of recognition as distinct from theology, and those who worked with the law and with law-related problems formed a distinct group, what we today would call a profession.
The idea of profession and professionalism has fascinated sociologists and historians for decades. In a 1995 article James Brundage summed up the various definitions of profession that have been proposed by scholars: 'In ordinary usage ... a profession means a full-time occupation that not only enjoys high social esteem, but also confers privileges and prestige upon its practitioners. Professional prestige, in turn, rests upon mastery of esoteric knowledge and skills unknown and unavailable to non-professionals'. The focus of this essay is the history and significance of the last issue raised by Brundage. Namely, we will address his notion that a profession, in order to be a profession, must be founded upon a 'body of esoteric knowledge', the mastery of which is the essential qualification for membership in that profession, and from which professional prestige is derived. Before we proceed with this topic, however, we must first explain how the medieval body of esoteric legal knowledge came into being. An understanding of the texts that people of the twelfth century considered normative 'law' is crucial for any discussion about the establishment of canon law as a discipline.
The texts that constituted the body of esoteric knowledge in Roman law had been in existence for hundreds of years prior to the twelfth century. The Byzantine emperor Justinian's compilation of Roman law in the sixth century was introduced into the West after his successful reconquest of large sections of Italy. This, and the slow recovery of these lands by Germanic rulers, allowed Roman law to survive in the West. The texts in use, however, contained omissions and errors, and the Digest was altogether unknown. Scholars reshaped the Code sometime between the end of the seventh century and the beginning of the eighth, keeping the first nine books, but dropping the last three (Tres libri), while the Novels survived in an edited form known as the Epitome Iuliani. The Institutes were the only part of Justinian's compilation known in their entirety during the early Middle Ages, and they are the only part of the work for which we have numerous early manuscripts complete with glosses.
One source for the survival of Roman law in the early Middle Ages is the canonical textual tradition in the period prior to the legal revival of the twelfth century. Focusing exclusively on the texts of Justinian, the canonists knew and made use of Roman law. The Digest played little if any role in their work, but various early canonical collections do include references to the other parts of the Corpus. Sections of the Code and Institutes appear, for example, in the mid-ninth century Lex Romana canonice compta, and the later Collectio Anselmo dedicata, while the Novels in the form of the Iuliani Epitome are cited by ninth-century church councils, the Collectio in IX libris, the Collectio Veronensis, the Collectio XII partium, Anselm of Lucca, and Ivo of Chartres, to name only a few. Unfortunately, given the low survival rate of early medieval manuscripts, it is very difficult to trace accurately just how and by what means the reception of Roman law in the canonical collections occurred.
Roman law, then, with the notable exception of the Digest, was known in parts of early medieval Europe. But it was not until the late eleventh and twelfth centuries that Roman law began to take shape as a 'body of esoteric knowledge' essential to the development of a legal profession. Key to this development was, of course, the reappearance of the Digest, the first mention of which is found in a document from Tuscany dated to 1076. Shortly thereafter, two canonistic works were completed which made use of the Digestum vetus (Books 1-24): the anonymous Collectio Britannica, completed c.1090-1093, and the Decretum of Ivo of Chartres which appeared slightly later. Early in the next century, Cardinal Gregory of Grisogono included three citations to the Digestum novum in his Polycarpus. Once again, important clues for developments in Roman law are to be found in canon law collections, while non-canonical manuscript sources are rare. One exception, the Expositio ad Librum Papiensem, does contain citations to the texts of Justinian including the Digest. At the same time, noticeable improvements in legal practice took place, particularly in the technical precision of notarial acts, and portions of Justinian's compilation began to be more frequently cited in court cases. By the early decades of the twelfth century, then, an interest in and use of Roman law had been gradually expanding for several decades. It was at Bologna, however, that these first tentative steps were expanded into a full-fledged reception of the texts of Justinian into the body of medieval legal scholarship.
The revival of Roman law at Bologna began with a school that tradition says was founded by Irnerius, who was active there c.1112-25. Very little is known about this legendary figure, but it seems clear that he, together with an ever-growing circle of students, began the arduous task of reconstructing Justinian's texts. It took a long time. Wolfgang P. Müller has shown that the emerging school at Bologna and the work of its earliest scholars did not rely on a single complete text of the Digest prior to the time of Irnerius. Rather, he argues, a Bolognese version of the work gradually emerged in the decades between 1076 and the death of Irnerius (after 1125). Further, he convincingly shows that there is no evidence that the incorporation of the missing parts of the Infortiatum (Dig. 24.3-Dig. 25), all of the Tres partes (Dig. 35.2.82-Dig. 38), and the Digestum novum (Dig. 39-Dig. 50) was based on the now-famous Codex Florentinus, a sixth-century manuscript containing the entire text. Irnerius and his pupils were, it seems, responsible for the organization of Justinian's texts. The process began when the Digestum vetus and the known sections of the Infortiatum were added to the Institutes and the first nine books of the Code. Next, the missing sections of the Infortiatum, the Tres partes, and the Digestum novum were added. And finally, the missing sections of the Code (the Tres libri) and the Novels were included to complete the reorganization. The final version of Justinian's codification, standard throughout the Middle Ages and beyond, filled five folio volumes in the early modern printed editions. Volume one includes books 1-24.2 of the Digest; volume two holds books 24.3-38.17, and volume three, books 39.1-50.17. The fourth volume contains the first nine books of the Code, while the final volume is made up of the four books of the Institutes, the last three books of the Code (the Tres libri), and the Novels in the expanded version known as the Authenticum. This arrangement of Justinian's compilation is known as the Corpus iuris civilis. With its completion, medieval Roman law scholars had recovered a 'body of esoteric knowledge'. We shall see subsequently how they were able to master this knowledge and become professionals.
Canon law, unlike Roman law, flourished in late antiquity and the early Middle Ages. In its earliest form the law of the Church was designed to regulate relations between the faithful and to define the rights and obligations of various groups. It also set liturgical norms and provided for the governance of the Church. Canon law entered a new phase when the emperor Constantine (311-37) embraced Christianity. Under him and his successors, the Church became an integral part of Roman government, growing and adapting to its new role both in structure and in organization. Church councils met to answer questions of doctrine and practice, and also to settle disputes arising within the Christian community. The decisions of these large councils, together with those of smaller regional assemblies known as synods, became important sources of canon law. An additional source of new law came in the form of decisions by bishops, who were authorized by the emperors to address spiritual and moral issues. They set up courts, audientia episcopalis, to hear matters that fell under their jurisdiction, although in most cases bishops acted more as mediators than as judges. By the fifth century, the bishops of Rome were beginning to stake out their claim to primacy over the other leaders of the Church. As this claim was strengthened and ultimately accepted in the West, the decisions of the Roman bishops took on a growing importance in the collections of canon law.
The end of Rome's political dominance in the West did not mean the end of canon law. Councils and synods continued to meet, and the church continued to adapt to the changing political and social circumstances of Western Europe. Canon law in this period was far more localized, however, and the audientia episcopalis was limited to deciding disputes between clerics. The penitentials, written in the seventh through the ninth centuries, did provide one new source of law, although they rarely were promulgated formally. Designed to help clerics who heard confessions, the penitentials catalogued sins and suggested various kinds of penance depending on the type of sin committed. The penitentials reflect a move away from public penance and contain useful information about what constituted unacceptable behavior.
Conciliar canons, papal letters (decretals), and other sources of canon law were compiled from the earliest times, but it was not until the early decades of the eleventh century that canonical compilations of later significance were produced. The most influential of these was the Decretum of Burchard of Worms (1000-1025). Burchard and his staff of compilers attempted to cover the entirety of canon law in this work. It contains 1,785 canons organized into twenty books, and covers topics from the organization of the church and the jurisdiction and powers of its component parts, to theological topics such as predestination and the resurrection of the dead. Burchard's Decretum was the first attempt to organize canon law systematically, and although it is far from easy to understand his organizational schema, the work was enormously popular for several generations after its completion in 1012. Additional eleventh-century compilations emerged out of a movement calling for church reform. Led by Pope Gregory VII, the reformers were determined to use canon law to advance their program for the reorganization of the church. Before they could go any further, however, new compilations of law were needed and, thus, many canonical collections were compiled in the second half of the eleventh century and the first years of the twelfth.
The most important development in canon law, however, occurred between 1125 and 1145, when a Bolognese scholar named Gratian completed a textbook called the Concordia discordantium canonum, or Decretum for short. As recently as 1997 it was common to date the completion of the Decretum to 1140, but such accuracy is no longer possible. Thanks to the groundbreaking work of Anders Winroth, we now know that Gratian's work appeared in several recensions. The first recensions were shorter, clearly argued, had a limited circulation, and were compiled between ca. 1130 and 1139. The vulgate recension, which was destined to become the standard edition, was considerably longer, and had achieved wide circulation by 1150. These texts, more than any others, elevated the study of canon law to a science. Gratian wrote within the same general context as the great civilians of the early twelfth century, and he was part of the same revolution in law associated with the law schools of Bologna. Where Irnerius and his followers worked to reconstitute the texts of Justinian's compilation, Gratian sought to produce a comprehensive collection of canon law organized in a way that would facilitate study. He did not, however, stop there. Gratian's goal was also to reconcile the numerous contradictions that had developed during eleven centuries of canonical development. His success in accomplishing these goals is clear: medieval canon law teachers adopted the Decretum as their fundamental textbook within two decades of its completion.
The structure of Gratian's Decretum and his methodology are what make the work revolutionary. He did not simply list legislative enactments or detail general norms. Instead, he grouped his source material to bring out discrepancies of opinion and then used dialectical reasoning to harmonize the contradictions. The complexities produced by Gratian's methodology, both in his use of sources and in his dicta, are what made the Decretum so useful both in the classroom and for practitioners who had to apply legal principles to real world situations; the sheer scope of the work ensured its success. While the Decretum was never officially promulgated by Church authorities, its importance was recognized within a few years of its first appearance. Teachers used it as the standard textbook on canon law, and officials in the papal chancery assumed knowledge of it by people with whom they corresponded. The canonists, by the end of the 1140s, found in the Decretum their own 'body of esoteric knowledge'.
Speaking of Roman and canon law generally once more, the renewal of legal studies in the twelfth century may be seen as a rediscovery or a recreation, depending on whether one is speaking of civil or canon law. In the case of civil law, we should speak of the renewal of interest in Roman jurisprudence deriving in large part from the 'rediscovery' of Justinian's Digest. In the case of canon law, we should speak of the recreation of a body of canonical rules through Gratian's compilation and publication of his Decretum.
It is important in both cases, however, not to be caught in the myth of fortuity. The renewal of legal studies in the twelfth century was not sparked by chance occurrence, nor can one discount the importance of socio-economic factors in setting the stage for these developments. Indeed, we must recognize that a substantial amount of Roman law was in use before the 'rediscovery', and that there was a considerable body of canon law available throughout Christendom prior to Gratian's monumental compilation. Had conditions been right, these earlier sources might well have been enough to form the basis for the required body of esoteric knowledge necessary as a precondition to the formation of a legal profession. But conditions in pre-twelfth-century Europe were not right for the formation of such a profession. Furthermore, the lawyers' rediscovery of the Digest and Gratian's compilation of the Decretum helped this process in a very important manner.
(Continues...)
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Table of Contents
Contents
Acknowledgments....................viiAbbreviations....................ix
1. The Establishment of Normative Legal Texts: The Beginnings of the Ius commune Michael H. Hoeflich and Jasonne M. Grabher....................1
2. Gratian and the Decretum Gratiani Peter Landau....................22
3. The Development of the Glossa ordinaria to Gratian's Decretum Rudolf Weigand....................55
4. The Teaching and Study of Canon Law in the Law Schools James A. Brundage....................98
5. The Decretists: The Italian School Kenneth Pennington and Wolfgang P. Müller....................121
6. The Transmontane Decretists Rudolf Weigand....................174
7. The Decretalists 1190-1234 Kenneth Pennington....................211
8. Decretal Collections from Gratian's Decretum to the Compilationes antiquae: The Making of the New Case Law Charles Duggan....................246
9. Decretal Collections 1190-1234 Kenneth Pennington....................293
10. Conciliar Law 1123-1215: The Legislation of the Four Lateran Councils Anne J. Duggan....................318
11. The Fourth Lateran Council and the Canonists A. García y García....................367
12. The Internal Forum and the Literature of Penance and Confession Joseph Goering....................379
General Index....................429
Index of Citations....................435
Index of Manuscripts....................437