4

Gratian and the Decretists

The last few chapters, hopefully, have underscored that throughout the early medieval and reform periods, compilers constructed an array of legal collections, each adapted to suit the particular needs of its users. The collections highlighted represent but a few among those actually compiled; the number is far greater. As one might expect, such active production of law resulted in discrepancies among the collections and thus within the legal tradition. After all, no one authority was responsible for the production of law and the compilation of legal collections was a private affair; that is, not at the direction of a ruler for use in government but rather by individuals who had a need for a usable text. Discrepancies also arose with the recopying of collections as errors were introduced or texts were altered to suit the needs of the copyist. Throughout the centuries, discrepancies went unchecked and multiplied.

As we saw at the end of the last chapter, at the turn of the twelfth century compilers of canonical collections in northern France were taking part in a renewed interest in Roman law. The compiler of the Collectio Britannica, for example, excavated Roman libraries and archives of the papal curia for the original texts. He was the first to cite the Digest of Justinian directly since Pope Gregory I had cited it in the seventh century. But what was this Roman law that had piqued the interest of so many? Justinian, Emperor of the Eastern Roman Empire (527–565), had recaptured many of the areas in the West previously lost.¹ In addition to his campaign of reconquest, Justinian called for a reform of the Roman legal system. From these reforms came the Corpus iuris civilis (Body of Civil Law) which, in theory, reconciled all the contradicting laws and systematized the legal code in such a way to make it more comprehensible and usable. The Corpus iuris civilis comprised of four collections. The Institutes was a textbook that quickly summarized and served as a general introduction to the main principles of Roman law and procedure. It relied heavily on the earlier Institutes of Gaius. The Digest was drawn from the work of legal writers between the first and the fourth centuries A.D., though the bulk of it was drawn from the jurists of the classical period of Roman law (Julian, Papinian, Ulpian, and Paul). It is important to remember, however, that the Digest represents old law as filtered by Justinian’s commission who was ordered to eliminate everything that was obsolete or contradictory and to modify the rest to bring it up to date. It contained three parts: the Digest vetus (Books 1–24.2); the middle part known as the Infortatium (Books 24.3–38.17); and the last part known as the Digest novum (Books 39.1–50.17). The Codex comprised of all imperial law still in effect at the time of the work. It drew upon the Gregorian, Hermogenian, and Theodosian Codes, the post-Theodosian laws, and Justinian’s own laws. Finally, the Novellae were Justinian’s legislation after 535 and was the only part of the Corpus iuris civilis to be issued in Greek.

1 Justinian’s general Belisarius had regained North Africa and southern Spain from the Vandals by 533 along with Sicily and Italy (including Rome) from the Ostrogoths and Lombards by 540 for the Eastern Roman Empire.

While Justinian’s reconquest would have a short shelf life as his gains were lost again after his death, his legal compilation would continue to influence law for centuries—the German civil legal code at the turn of the twentieth century, the Bürgerliches Gesetzbuch (BGB) drew upon Roman law—though not without interruption. The Institutes remained known throughout the early medieval period. There is some evidence that the Digestum vetus and the Infortatium were used, as were Books 1–9 of the Codex.² The permanent transition of political authority from the Roman Empire to the Germanic kingdoms, however, resulted in parts of the Corpus iuris civilis being “lost”. The Novellae, the Digestum novum, and Books 10–12 of the Codex (the Tres libri) were not rediscovered until the twelfth century.³

2 S. Kuttner, “Harmony from Dissonance: An Interpretation of Medieval Canon Law,” in Wimmer Lecture X, 1956, St. Vincent College (Latrobe, 1960), 6. Jean Gaudemet, however, has argued that the Digest was not used, and the Codex was unknown in Gaul and quickly forgotten in Italy, though it initially had a little more success there because of the Sententiae Pauli. The Institutes were studied and glossed, but they too did not cross the Alps. See J. Gaudemet, “Le droit romain dans la pratique et chez les docteurs aux XIe et XIIe siècles,” Cahiers de civilization médiévale 8, no. 31–32 (1965): 365–380, here 366–367.3 W. P. Müller, “The Rediscovery of Justinian’s Digest in the Middle Ages,” BMCL 20 (1990): 1–29; M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. L. G. Cochrane (Washington, DC, 1995), 61.

Irnerius has received much of the credit for reviving Roman law. He was a jurist working early in the twelfth century in northern Italy, arguing cases in the court of Countess Matilda of Tuscany (d. 1115) and then serving as a judge appointed by the Emperor Henry V. He simplified Latin translations of the Greek Novellae, adding some of his own words, and copied them in the margins of the Codex next to the imperial statutes that needed updating, clarification, or change. Later jurists referred to these reworked texts as “authenticae” and together they became known as the Authenticum. Irnerius’s comments on Justinian’s legal code can be found in the Institutes, Digest, and Codex, along with his work on the Novellae.⁴ Finally, he gained renown as a teacher of law at Bologna, reportedly having taught the famous “Four Doctors”—Martinus, Bulgarus, Hugo, and Jacobus de Porta Ravennate—who themselves taught Roman law there in the mid-twelfth century.⁵

Figure 4.1 Folio from Justinian’s Codex with gloss, ca. 1300 © Flickr’s The Commons4 Manuscript copyists and binders normally combined the Tres libri (Books 10–12 of the Codex), the Institutes, and the Authenticum into a single tome, which they referred to simply as The Volume (Volumen).5 A. Padovani, “Irnerius (c.1055 to c.1125),” in Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, eds. O. Condorelli and R. Domingo (London-New York, 2020), 25–40; M. Ascheri, The Laws of Late Medieval Italy (1000–1500): Foundations for a European Legal System (Leiden, 2013), 21–28; F. Roversi-Monaco, “‘Il circolo’ giuridico di Matilde: Da Bonizone a Irnerio,” Bologna nel Medioevo, ed. O. Capitani (Bologna, 2007), 387–409; E. Cortese, Il diritto nella storia medievale. II: Il basso medioevo (Rome, 1995), 57–102.

By the middle of the twelfth century Bologna had become a center for legal studies. The city’s reputation began in the closing decades of the eleventh century, when Irnerius began teaching law. His renown as an original and inspiring teacher with a unique knowledge of Roman civil law had spread to Germany and beyond.⁶ Consequently, non-Italian students soon began to trickle across the Alps in the hope of acquiring a grasp of legal principles that would qualify them as men of practical learning and might lead to profitable careers in the service of powerful rulers, either in church or state. The teaching of law during Irnerius’s generation and in the generation of the “Four Doctors” was a private enterprise, without public subsidy, institutional framework, or governmental control. An individual could set up in business as a law teacher simply by buying or renting a house with a hall large enough for lectures, furnishing it with a desk and chair for the teacher, and perhaps adding a few benches for students. He announced the times and topics of the lectures he proposed to give, then waited for students to show up… and pay their fees. If he possessed a reputation for learning, had a circle of friends well situated to publicize his talents, and possessed the necessary amount of luck, he might succeed in attracting enough students to make a living.⁷ Law teachers and students gained a further measure of security and prestige around 1155, when Holy Roman Emperor, Frederick Barbarossa (d. 1190) published a decree, known as the Authentica “Habita”, that placed them under imperial protection and authorized judges to penalize with fourfold damages anyone who in the future dared to molest them. The emperor further bestowed exclusive jurisdiction over students upon their teachers and the bishop of the city in which they studied. This, in principle, essentially formed a “student guild” whereby students, as a collective, were exempted from the jurisdiction of local or municipal authorities and made them answerable for their misdeeds solely to academic and ecclesiastical authorities.⁸

6 K. Pennington, “Irnerius,” BMCL 36 (2019): 107–122; idem, “Odofredus and Irnerius,” RIDC 28 (2017): 11–27.7 See, in particular, J. A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), chs. 3, 5–6.8 See Ascheri, The Laws of Late Medieval Italy (1000–1500), 109–134 for a survey of the rise of university teaching of law in the twelfth century.

While Irnerius was reviving the study of Roman law in Bologna, schools in northern France—the cathedral schools of Chartres, Reims, and Notre Dame in Paris; and the monastic schools of Bec, and Ste-Geneviève and St. Victor on the Left Bank of Paris—were likewise thriving for their focus on the artes liberales (liberal arts) and the development of the scholastic method. The liberal arts were considered a preparatory course for the higher faculties of theology, law, or medicine. The study of grammar, rhetoric, and dialectic was applied to the use of reason (ratio) to prove a point through debate (disputatio). At Paris, dialectic and grammar were highly regarded as they were necessary prerequisites to the study of the arts and theology. By way of examples, Lanfranc of Bec’s commentary on Paul was organized in a question-and-answer format between those asking the questions and Paul answering them. Lanfranc repeatedly interjected phrases such as “it is as if someone said (quasi quis diceret)” to help the reader reconstruct the debate between Paul and the other party.⁹ Glosses, such as those on Paul’s letter to the Galatians (4:1–3), would then explain the text; elaborate or restate various words and phrases; separate the arguments into the categories of per similitudinem (likeness), pro diversitate causarum (differences between parts), and totum pro parte (the whole for a part); and reorder the words to remove obscurities.¹⁰ Anselm of Bec would develop this technique further by analyzing differing positions in his Monologion. Anselm of Laon’s Cur Deus Homo (“Why God Became Man”) likewise employed the dialectical method of question and answer in the form of a conversation between himself and Boso. This dialogue interpreted texts and served as the foundation using reason to provide a rationed argument about the truths of Christianity in order to convert disbelievers and doubters. Peter Abelard’s Sic et Non (“Yes and No”) highlights the flowering of the scholastic method as he demonstrated the conflicting views on any given subject of religious importance.¹¹ With his treatise Liber de misericordia et Justitia (“Book on Mercy and Justice”) Alger of Liège sought to counter what he deemed as the misinterpretation of canonical principles. Gathering precepts from a variety of sources, he distinguished between those focused on mercy and those focused on justice by paying particular attention to the diverse circumstances, persons, and times in which those precepts were issued.¹² Similarly, as discussed in the previous chapter, Ivo of Chartres’s Prologue, which circulated with a number of canonical collections, demonstrated his methodology reconciliation: authorities (auctoritates) who hold seemingly contradictory views should be considered through the lens of whether strict judgment was warranted or whether compassion and leniency was the better path. The scholastic method was fundamental to parsing the sources and reconciling the discrepancies that had arisen.

9 A. Novikoff, “Anselm, Dialogue, and the Rise of Scholastic Disputation,” Speculum 86, no. 2 (2011): 387–418. Novikoff has argued that the application of dialectical disputation to Scripture was not common prior to 1050.10 C. Radding, “The Geography of Learning in Early Eleventh-Century Europe: Lanfranc of Bec and Berengar of Tours Revisited,” Bullettino dell’Istituto storico italiano per il Medio Evo e archvio muratoriano 98 (1992): 145–172, esp. 149–160.11 For works on the schools of Paris in the first half of the twelfth century, see: C. Giraud, ed., A Companion to Twelfth-Century Schools (Leiden, 2020); I. P. Wei, Intellectual Culture in Medieval Paris: Theologians and the University c.1100–1330 (Cambridge, 2014); S. Young, Scholarly Community at the Early University of Paris: Theologians, Education and Society, 1215–1248 (Cambridge, 2014); A. Novikoff, The Medieval Culture of Disputation: Pedagogy, Practice, and Performance (Philadelphia, 2013); M. Clanchy and L. Smith, “Abelard’s Description of the School of Laon: What Might It Tell Us about Early Scholastic Teaching?,” Nottingham Medieval Studies 54 (2010): 1–34; P. W. Rosemann, Peter Lombard (Oxford, 2004).12 “Preface to Alger of Liège’s Book concerning Mercy and Just (Early Twelfth Century: Preface in the Form of a Letter ‘To All Catholics’,” in Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–1317, 2nd edn., trans. R. Somerville and B. Brasington (Washington, DC, 2020), 138–140; R. Kretzschmar, Alger von Lüttichs Traktat De misericordia et iustitia: Ein kanonisticher Konkordanzversuch aus der Zeit des Investiturstreits (Sigmaringen, 1985), esp. 141–154.

The twelfth-century “Concordance of Disconcordant Canons” (Concordia discordantium canonum, i.e., the Decretum) compiled by Gratian exemplifies the rediscovery of Roman law taking place in Bologna and the scholastic method to reconcile discrepancies taking hold in the schools at Paris. Also known as the “Father [of the Science] of Canon Law”, Gratian remains a shadowy figure. While once thought to be a Camaldolese monk at the monastery of Saints Felix and Nabor, an affiliation with a monastic order is in doubt. We do know that Gratian was both a canon lawyer and a pastoral theologian.¹³ His treatise on penance, the De penitentia (C.33 q.3), circulated as a part of his canonical collection. We do not know, however, where he trained. While his thoughts seem to have been shaped by the school of Laon, we are uncertain whether he studied at Laon or was influenced by works from the Laonese masters who travelled to Bologna along the Via Francigena.¹⁴ We know he taught canon law at Bologna in the early to mid-twelfth century, but we do not know if he had a long or a short teaching career. While we are uncertain as to whether Gratian compiled his canonical collections in finished versions or whether it was a work in progress, the manuscript tradition reveals the dissemination and adaption of legal thought as it engaged in a broader religious, political, social, and intellectual climate.¹⁵ Finally, we believe Gratian ended his career as a bishop, though scholars do not necessarily agree on which episcopal see.¹⁶

13 See, for example, A. A. Larson, “Gratian (Late Eleventh Century to ca. 1145),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 43–52; P. Landau, “Gratian and the Decretum Gratiani,” in HMCL, 22–54. On the Via Francigena, see L. Fowler-Magerl, “The Collection and Transmission of Canon Law along the Northern Section of the Via Francigena in the Eleventh and Twelfth Centuries,” in Bishops, Texts and the Use of Canon Law Around 1100: Essays in Honour of Martin Brett, eds. B. C. Brasington and K. G. Cushing (Farnham-Burlington, 2008), 129–139.14 A. A. Larson, Master of Penance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century (Washington, DC, 2014); J. C. Wei, Gratian the Theologian (Washington, DC, 2016).15 For a synthesis of the recension debate and its implications, see M. H. Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,” History Compass 11, no. 12 (2013): 1111–1125. For views on manuscript tradition and the transmission of legal knowledge, see the essays in S. Dusil and A. Thier, eds., Creating and Sharing Legal Knowledge in the Twelfth Century: Sankt Gallen, Stiftsbibliothek, 673 and Its Context (Leiden, 2022).16 On different views regarding Gratian’s the relationship between teaching career and his elevation to an episcopal see, K. Pennington, “The Biography of Gratian, The Father of Canon Law,” Villanova Law Review 59, no. 4 (2014): 679–706; and A. Winroth, “Where Gratian Slept: The Life and Death of the Father of Canon Law,” ZRG Kan. Abt. 99 (2013): 105–128.

The Decretum was a teaching tool that fully engaged in the twelfth-century intellectual climate. The Decretum was composed between ca. 1130 and ca. 1140s, and it experienced a wide circulation by 1150. Canonists, particularly Italian canonists, continued to expand and update the Decretum with the addition of texts, approximately 150 in all, known as paleae. The additions to Gratian’s text continued until about 1190, at which point the fluidity of the text hardened.¹⁷ Part III of the Decretum, known as the De consecratione, circulated before 1158 and is an appended theological tract on the sacraments now believed to have been authored by someone other than Gratian.¹⁸

17 G. Murano, “The List of paleae in Ms Pal. Lat. 622,” in Sacri canones editandi: Studies on Medieval Canon Law in Memory of Jiří Kejř, ed. P. Otmar Krafl (Brno, 2017), 146–175.18 K. Wojtyła, “Le traité de ‘penitentia’ de Gratien dans l’abrégé de Gdańsk Mar. F. 275,” SG 7 (1959): 355–390; J. Van Engen, “Observations on De consecratione,” in Proceedings Berkeley 1980, 309–320.

Part I of the Decretum comprises of 101 Distinctions (Distinctiones). The first twenty distinctions (distinctiones) (D.1–D.20) outline the hierarchical structure of law with natural law (ius naturale) superseding the man-made law (ius gentium).¹⁹ He identified natural law with divine law, that is the teachings found in scriptural revelation, and he equated this in turn with “what is right” (ius).²⁰ What is right, he believed, was unchangeable. Law also included human law (lex), which is variable. Human laws, Gratian concluded, must be reasonable and must conform to the practices of a community if they were to be valid and effective. Gratian accordingly maintained that when laws no longer responded to a community’s current behavior, they ceased to be effective and lost the validity that they once enjoyed.²¹ The next sixty distinctions (D.21–D.80) deal with clerical ordination and promotion and the remaining twenty distinctions (D.81–D.101) serve as its epilogue by adding further nuance to many of the same topics.

19 Gratian, The Treatise on Laws (Decretum DD. 1–20) with the Ordinary Gloss, trans. A. Thompson (Washington, DC, 1993).20 Grat., D.1 d.a.c.1, c.1, d.p.c.1.21 Grat., D.4 d.p.c.3.

The relationship between the first part of the Decretum, the Distinctiones, and the second part, the Causae (cases) has served as a source of confusion since the commentators, the Decretists, began writing their summa. Sicard of Cremona, for example, found this first part clumsy. In fact, Gratian never actually referred to the first section as the “Distinctiones”; instead he referenced tracts, such as a “Tract on ordination” (Tractatus ordinandorum) and a “Tract on the promotion of clerics” (Tractatus de promotione clericorum).²² Part II comprises of 36 cases (Causae) and marked a new way to teach law. Gratian began each case with a hypothetical case statement that presented a number of legal issues. The hypothetical is followed by a series of questions that focused on particular aspects of the case and disentangled the legal issues. Each question begins with a statement that introduced the legal issue to be explored. For example, Gratian drew the introductory statement of Causa 29 question 1 from Roman law for a definition of marriage. According to the Institutes and the Digest, a marriage is “the union of a man and woman keeping an undivided way of life. Mutual consent makes marriage… Consent occurs when two or more perceive the same thing.”²³ The canons that made up the questions originated from different authorities—conciliar decrees, letters of the Church Fathers (e.g., Augustine and Jerome), papal letters, Roman law, and secular law—and either proved or disproved the issue under consideration. Gratian also demonstrated a familiarity with the work of contemporary Roman jurists. For example, Causa 2 on judicial procedure and Causa 15 on clerical crimes exhibit a familiarity with themes and language found in Bulgarus’s tract on procedure known as Tractatus de iudiciis (ca. 1130) and in his tract De iuris et facti ignorantia (ca. 1140) on the ignorance of law and deed.²⁴ The quaestio, a hallmark of the northern French theological milieu, particularly the school at Laon, stems from disputatio, which was integral to teaching.²⁵ Inserted throughout the question (questio) are dicta, that is, Gratian’s opinion on the matter at hand. While Gratian was not the first insert his own opinion, as Bonizo of Sutri did so in his Liber de Vita Christiana (ca. 1089–1095),²⁶ he was the first to do so in a systematic and extensive fashion. The cases themselves address simony (Causa 1), procedure (Causae 2–7), clerics and ecclesiastical property (Causae 8–15), monastic issues (Causae 16–20), and marriage (Causae 27–36), which includes the De penitentia (C.33 q.3).

22 On the idea of tracts, see M. H. Eichbauer, “Rethinking Causae 23–26 as the Causae hereticorum,” ZRG Kan. Abt. 101 (2015): 86–149, here 103–108.23 Grat. C.29 q.1 d.a.c.1; Inst. 1.9.1; Dig. 2.14.1.2; K. Pennington, “‘The ‘Big Bang’: Roman Law in the Early Twelfth-Century,” RIDC 18 (2007): 43–70, here 59.24 Bulgarus, interestingly enough, compiled Tractatus de iudiciis—also known as De arbitris, De iudiciis, or Excerpta legum—at the request of the papal chancellor Haimeric and it was referenced by Pope Innocent II. See Pennington, “‘The ‘Big Bang’”, 48–58; J. A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians and Courts (Chicago, 2008), 86.25 A. Padovani, “Sull’uso del metodo questionante nel Decretum: Un contributo,” BMCL 30 (2017): 61–87.26 W. L. North, “Bonizo of Sutri, the Dicta Bonizonis and the Development of the Jurisprudence of Canon Law before Gratian,” in The Use of Canon Law in Ecclesiastical Administration, 1000–1250, eds. M. H. Eichbauer and D. Summerlin (Leiden, 2018), 159–184.

Causae 22–26 nicely illustrate Gratian’s method of linking related legal issues together to form a tract on a particular topic. These causae are often understood as cases that address the oath and perjury (Causa 22), just war (Causa 23), the pope’s ability to grant privileges (Causa 25), and heresy and magic (Causae 24 and 26). However, these themes are a springboard into larger issues, and the cases coalesce to form a tract on obedience and the execution of one’s office. Gratian used the bilateral norms inherent in the oath, societal norms laid out in Causa 22, to establish boundaries within and between the various ecclesiastical ranks. Causa 23 applied those norms to explore the bishop’s navigation of his duties to the pope and the emperor. The pope had to accept the bishop’s holding of secular properties, and the emperor—as the feudal lord—had to offer protection. Causa 24 applies the bonds to the bishop’s ability to bind and to loosen, which was intertwined with adherence to the bishop of Rome as the pope was the keeper of orthodoxy. The bond between the pope and the universal church grounds Causa 25 as he was tasked with the duty to preserve the universal church. While the pope should uphold the general decrees of the councils and of his predecessors, he may have to deviate from them by granting special privileges to punish or to ensure the wellbeing of a church. Finally, the bonds linking the priest both to his bishop and to his parish ground Causa 26. While the priest was obligated to adhere to his bishop and not infringe upon the latter’s purview of binding and loosening, he also was to safeguard the salvation of his flock both by ensuring they did not succumb to superstition and by reconciling the dying if the bishop was unavailable.²⁷

27 On this, see Eichbauer, “Rethinking Causae 23–26 as the Causae hereticorum,” 109–123.

The Decretum, as we now know, did not circulate in one edition;²⁸ rather, as the changes and additions to Causae 22–26 exemplify, the text was modified and the legal thoughts found therein continued to evolve. The additional texts not only hardened the tenor of the cluster by emphasizing the hierarchical pyramid that structured relationships to allow supervision and correction to happen efficiently, but also showed more concern for the laity. The additions to Causa 22 emphasized swearing by God alone to more closely align the supervision of the oath to the Church and, as such, augment the Church’s ability to punish perjury. Additions to Causa 23 reflect the secular realm’s duty to assist the Church when called upon, particularly in matters of correction. Conversely, the ability of the feudal bishop to serve in a secular capacity was curtailed in favor of his spiritual functions. Additions to Causa 24 re-emphasized the connection between Rome’s unerring nature and its place as the sole keeper of orthodoxy and obedience. Faith and fulfillment of one’s duty (that is, adherence) to Rome went hand in hand with excommunication playing a necessary corrective role. Additions to Causa 24 also stressed the utility of sentencing, laid down procedural norms, and expanded the list of excommunicable offenses (both faith- and non-faith-based) to correct the erring laity. Additions to Causa 26 likewise focused on the correction of priests and laity for superstition. While the priest did retain his ability to reconcile if the individual was on his deathbed and the bishop was not available, the additions underscored the bishop’s purview over penance and the joy with which the penitent should undertake it. The pope also found himself bound by the hierarchical pyramid. Additions to Causa 25 emphasized the pope’s obedience to previously made decrees, with the ability to grant special privileges downplayed. Just as the secular realm was obligated to assist the Church when called upon, as laid out in Causa 23, the emperor should not disturb but rather uphold the privileges of churches, bishops, metropolitans, and the papacy. Collectively, the additional texts reflect a crystallization of the Church as the keeper of societal norms.

28 The development of Gratian’s text is a point of disagreement. Some scholars have argued that Gratian compiled his Decretum in completely formed redactions. Others have interpreted the Decretum as a work of progressive development, evolving as Gratian’s teaching career evolved. For the former view, see, for example, A. Winroth, “Recent Work on the Making of Gratian’s Decretum,” BMCL 26 (2006): 1–29; M. Sommar, “Gratian’s Causa VII and the Multiple Recension Theories,” BMCL 24 (2000): 78–96.; A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2000). For the latter view see, for example, M. H. Eichbauer, “From the First to the Second Recension: The Progressive Evolution of the Decretum,” BMCL 29 (2012): 119–67; J. M. Viejo-Ximénez, “Les Étapes de l’incorporation des textes romains au Décret de Gratien,” RDC 51, no.1 (2001): 251–260; Pennington, “The ‘Big Bang’,” 43–70.

Gratian had adapted techniques used by scholastics at the twelfth-century schools of Paris, namely those of divisions (divisiones), distinctions (distinctiones), questions (quaestiones), dialectical arguments (a minori, a maiori), and the solution of contraries (solutio contrariorum). His Decretum quickly became the standard textbook in the canon law schools as seen both by the questions and explanations that teachers raised in their lectures about various problems, and by cross-references to other relevant parts of Gratian’s text found in the margins of manuscripts. A new literary genre thus sprung from the schools as teachers commented on texts such as the Decretum as a part of their classroom use. “Glosses” are the comments made or questions posed on a particular word or passage. Glosses can explain the significance of a difficult word or can provide cross-references to other legal texts. “Notabilia”, known for their opening words Nota quod (“It is noted that…”), are glosses that point to the most important parts of a text. “Allegationes pro et contra” (“Arguments for and against”) address a question raised in the text. A “gloss apparatus”, or lectura, is a collection of numerous or extensive glosses made by a particular teacher on an entire text. A lectura should summarize the text, pointing to the most noteworthy topics or associated ideas, explain the difficulties within the text, show parallels with other texts, refer to and reconcile arguments against the text, and answer the questions arising from the text. A summa is a concise but systematic commentary on an entire text, without the word-for-word explanation of a gloss apparatus.

Commentaries on the Decretum originated from the schools of Bologna, Paris, in the Rhineland, and by the efforts of those who worked in the Anglo-Norman regions.²⁹ Those who glossed and/or compiled works such as lectura, summa, abbreviations, and transformations of the Decretum were referred to as Decretists.³⁰ The earliest surviving collection of glosses on Gratian’s text is from the school at Bologna and is ascribed to a teacher named Paucapalea, who composed his glosses on Gratian before 1148.³¹ Another early Bolognese law teacher who commented in detail on Gratian’s text was Master Rolandus. He wrote shortly after Paucapalea and modern scholars had assumed that he was the same Rolandus who later became Pope Alexander III (d. 1181), although this is no longer believed to be correct.³² Among the most important twelfth-century Bolognese Decretists were Rufinus (d. 1192),³³ along with Huguccio (d. 1210) whose ideas and insights have continued to influence some basic legal and political ideas right down to the present.³⁴ Rufinus and Huguccio exemplified a career pattern that became extremely common among later canonists. They began their careers as law teachers and occasionally engaged in practice as legal experts or consultants (iurisperiti) both to high-ranking church officials and to civil authorities of various kinds. Both men received appointments to the church’s hierarchy toward the close of their careers: Huguccio as bishop of Ferrara in 1190, Rufinus first as bishop of Assisi and later as archbishop of Sorrento.

29 On the rise of the universities, see H. Rashdall, The Universities of Europe in the Middle Ages, Vol. 1: Salerno, Bologna, Paris (Oxford, 1936); and more recently H. de Ridder-Symoens, ed., History of the University in Europe, Vol. 1: Universities in the Middle Ages (Cambridge, 1992).30 R. Weigand, Glossatoren des Dekret Gratians (Keip, 1997) is one of the best introductions to key Decretists. A useful resource for looking up jurists is the “Bio-Bibliographic Guide to Medieval and Early Modern Jurists” eds. K. Pennington and C. Donahue, Jr., http://amesfoundation.law.harvard.edu/BioBibCanonists/HomePage_biobib2.php. The database is an encyclopaedic guide to canonists beginning with Gratian to 1500. Users can search either by author or by work. Each entry begins with a brief description of the jurist or text and will end with a bibliography of relevant secondary literature. Entries include a list of texts attributed the author (if the author is known), a list of manuscripts, and a list of early and modern editions of each text.31 For a comprehensive introduction to the Bolognese canonists, see K. Pennington and W. P. Müller, “The Decretists: The Italian School,” in HMCL, 121–173; Paucapalea über das Decretum Gratiani, ed. J. F. von Schulte (repr., Aalen, 1965).32 Die Summa magistri Rolandi nachmals Papstes Alexander III, ed. F. Thaner (Innsbruck, 1874). On the decoupling of Magister Rolandus’s identity from that of Pope Alexander III, see R. Weigand, “Magister Rolandus und Papst Alexander III,” AKKR 149 (1980): 3–144; J. T. Noonan, Jr. “Who was Rolandus?,” in Law, Church, and Society: Essays in Honor of Stephan Kuttner, eds. K. Pennington and R. Somerville (Philadelphia, 1977), 21–48.33 Summa Decretorum: Rufinus,von Bolgona, ed. H. Singer (repr. Aalen, 1963).34 W. P. Müller, Huguccio: The Life, Works, and Thought of a Twelfth-Century Jurist (Washington, DC, 1994).

Transmontane schools—schools north of the Alps—also produced summae of the Decretum in addition to other legal texts.³⁵ Between 1170 and 1190 in northern France, a peculiar family of Decretum manuscripts were produced at Paris and Sens, the latter at which Pope Alexander III spent his exile from 1164 to 1165 and Archbishop Thomas Becket of Canterbury spent his from 1166 to 1170.³⁶ Teachers of canon law at Paris included Stephen of Tournai (d. 1203); and the anonymous authors of the Summa Parisiensis (ca. 1170), the Summa Monacensis/Summa “Inperatorie maiestati” (1175–1178), the Summa “Tractaturus magister Gratianus” (ca. 1181–1185), and the Animal est substantia/Summa Bambergensis (ca. 1206–1210). Key characteristics of the Paris summae include: the use of theological questions, references to Paris theologians and legal cases or problems in the area, and the excessive use of Roman law in argumentation (until it was banned in Paris in 1219). The Anglo-Norman legal tradition was flourishing by the 1190s and concentrated on matters of practical interest, such as procedure, actions, and formularies. Vacarius, an Italian canonist and theologian who had studied at Bologna in the 1140s before serving in the household of the Archbishop of Canterbury (ca. 1145) followed by the Archbishop and York (from c.1159), compiled the Liber pauperum (ca. 1170), which became the textbook for the study of the Digest and the Codex in England.³⁷ The procedural treatises such as the Ulpianus de edendo and the Ordo Bambergensis (ca. 1182–1185) set forth Romano-canonical procedure found in the Digest, Codex, Authenticum, and Causa 2 of the Decretum. Such texts served as important references for judges and judges-delegate, their staff, and advocates engaged as practitioners of law.³⁸ The Rhineland school at Cologne and Mainz in the late twelfth century seems to have been short-lived, flourishing in the 1170s. Bertram of Metz had studied at Paris before teaching at Cologne. He may have compiled the Summa “Elegantius in iure divino”/Summa Coloniensis around 1169, which was the main work of the Cologne school.³⁹ Gérard Pucelle (d. 1184) briefly taught at Cologne and Sicard of Cremona briefly taught at Mainz between 1179 and 1183.⁴⁰ The Paris, Anglo-Norman, and Rhineland schools demonstrate that the formal teaching of law spread quickly, and yet it was not taught with the same emphasis everywhere.

35 For a comprehensive introduction to the transmontane school, see R. Weigand, “The Transmontane Decretists,” in HMCL, 174–210.36 Titus Lenherr referred to as this particular manuscript group as the Σ-group and Regula Gujer referred to as the S-group; for those studies, see T. Lenherr, “Die Summarien zu den Texten des 2. Laterankonzils von 1139 in Gratians Dekret,” AKKR 150 (1981): 528–551; and R. Gujer, Concordia Discordantium Codicum Manuscriptorum? Die Textentwicklung von 18 Handschriften anhand der D.16 des “Decretum Gratiani” (Cologne, 2004). On the localization of this group to Paris and Sens, see Wei’s detailed analysis of two particular manuscripts of French origin that made their way to Halberstadt in “Gratian’s Decretum in France and Halberstadt,” in Rechtshandschriften des deutschen Mittelalters: Produktionsorte und Importwege; Tagungsband des Arbeitsgesprächs an der Herzog August Bibliothek (Juni 2010), eds. G. Drossbach and P. Carmassi (Wiesbaden, 2014), 367–387.37 Kuttner and E. Rathbone, “Anglo-Norman Canonists of the Twelfth Century: An Introductory Study,” Traditio 7 (1951): 279–358; J. Taliadoros, Law and Theology in Twelfth-Century England: The Works of Master Vacarius: 1115/20–c.1200) (Turnhout, 2006).38 B. Brasington, Order in the Court: Medieval Procedural Treatises in Translation (Leiden, 2016); L. Fowler-Magerl, Ordines Iudicarii and Libelli de Ordine Iudicorum (From the Middle of the Twelfth to the End of the Fifteenth Century) (Turnhout, 1994).39 Summa ‘Elegantius in iure divino’ seu Coloniensis, 4 vols., eds. G. Fransen and S. Kuttner (Vatican City, 1990); S. Kuttner, “Bertram of Metz,” Traditio 13 (1957): 501–505.40 P. Landau, “Simon von Bisignano, Sikard von Cremona und Die Mainzer Kanonistik der Barbarossazeit: Zur Biographie des Simon von Bisignano und zur Forschungsgeschichte,” BMCL 28 (1971): 119–144.

Some canonists tried to collect the extensive marginal commentaries into one work to serve as the “standard gloss”. This effort became known as the Glossa ordinaria (“Ordinary Gloss”) of the Decretum, a task undertaken first by Johannes Teutonicus (d. 1245), a German canonist whose personality is said not to have sparkled. He drew together the contributions of previous teachers such as Huguccio, Laurentius, and the work of “Ordinaturus magister”.⁴¹ Additions to the Glossa ordinaria were made on occasion by others, such as Bernardus Compostellanus antiquus and Raymond of Penyafort. Bartholomaeus Brixiensis (d. 1258) completed the last revised version ca. 1240. Others sought to make a text, such as the Decretum, more usable by creating abbreviations (abbreviationes). Abbreviations comprised of texts selected from a collection and transcribed literally or with few changes, eliminating the rest as irrelevant to the abbreviator’s purpose.⁴² Transformations (transformationes) of texts such as the Decretum, as seen with those of Omnebene and Laborans, changed the order of selected texts from the original collection.⁴³

41 For an overview of the types of glosses and other legal literary genres, see Ascheri, The Laws of Late Medieval Italy (1000–1500), 194–206. On the development of the Glossa ordinaria, see R. Weigand, “The Development of the Gloss ordinaria to Gratian’s Decretum,” in HMCL, esp. 82–86 on Teutonicus; see also K. Pennington, “Johannes Teutonicus (ca.1170/75–1245),” in Great Christian Jurists in German History, eds. M. Schmoeckel and J. Witte, Jr. (Tübingen, 2020), 1–12. Teutonicus taught canon law at Bologna in the first decade of the thirteenth century before going to S. Mariae in Halberstadt.42 For example, see those analyzed in A. Beyer, Lokale Abbreviationen des Decretum Gratiani (Frankfurt-am-Main, 1998).43 S. Dusil, Wissensordnungen des Rechts im Wandel: Päpstlicher: Jurisdiktionsprimat und Zölibat zwischen 1000 und 1215 (Leuven, 2018), 454–461; R. Weigand, “Die frühen kanonistischen Schulen und die Dekretabbreviatio Omnebenes,” AKKR 155 (1986) 79–91; N. Martin, “Die ‘Compilatio Decretorum’ des Kardinals Laborans: Eine Umarbeitung des gratianischen Dekrets aus dem 12. Jahrhundert” (PhD diss., University of Heidelberg, 1985).

Teachers commenting on Gratian’s text sought to clarify and elaborate concepts they found in Gratian’s text. Take, for example, Gratian’s understanding of law as springing from two basic sources—natural law and customary practices—discussed above. Drawing on the Roman jurist Ulpian,⁴⁴ Huguccio sought to elaborate on Gratian’s text by identifying equity and justice as inseparable, for both sought to give to everyone what was due to them.⁴⁵ He also distinguished between natural justice and positive justice. Natural justice for Huguccio meant the benevolence that arises from natural human affections, such as the love of a mother for her children, and its origin is ultimately divine. Positive justice is of human origin. Positive justice, he continued, aimed to punish offenders and to make good the losses that victims suffered. Human law, according to Huguccio who again drew on Ulpian, differs from justice, for law in this world is an art that tries (not always successfully) to achieve goodness and fairness.⁴⁶ Huguccio further maintained that laws derive their authority from reason. An unreasonable law cannot be valid, he concluded, no matter what authority decrees it. God, who personifies reason, could not possibly make an unreasonable law; and while human legislators might perversely attempt to do so, any unreasonable legislation they might enact was ipso facto void.⁴⁷

44 Dig. 1.1.10.pr: “Iustitia est constans et perpetua voluntas ius suum cuique tribuendi.”45 Huguccio, Summa, D.50 c.25 s.v. ut constitueretur, quoted in G. Le Bras, C. Lefebvre, and J. Rambaud, L’âge classique, 1140–1378: Sources et theorie du droit (Paris, 1965), 357 n.4.46 Huguccio, Summa, D.50 c.25 s.v. iubeo, quoted in Le Bras, Lefebvre, and Rambaud, L’âge Classique, 358 n.1; Dig. 1.1.10.pr.47 Huguccio, Summa, D.4 d.p.c.3, quoted by K. Pennington, Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (Philadelphia, 1984), 21–22.

Decretists’ commentary reflected the climate in which they worked.⁴⁸ As we will see in Chapter 8, by the later twelfth century the Church had come to regard heresy as an existential threat. The glosses of Rolandus, the Summa Parisiensis, and Simon of Bisignano on Causa 24 echo this climate. Heresy was more than simply disobedience; it was a crime. Rolandus equated the crime of heresy to crime of simony, while the Summa Parisiensis noted that one who followed a now-damned heresy was subject to a sententia lata (automatic sentence). He would go on to note that it was permitted to be accused and excommunicated after death for the crime of simony, heresy, and sacrilege—the Summa Parisiensis added high treason to this list—but it was not possible to do so for other crimes.

48 See Eichbauer, “Rethinking Causae 23–26 as the Causae hereticorum,” 127–133.

Also by the later twelfth century, the bonds linking a cleric to his superior and associated obligations expected were firmly entrenched. In their comments on Causa 23, Rufinus, Rolandus, the Summa Parisiensis, and Simon of Bisignano paid particular attention to the authority tasked with punishment and what constituted the “right order” for doing so. All commented that because justice was secular—and not spiritual—business and power of the military, for example, could not be in the hands of clerics. Rufinus noted that bishops who had accepted civil power over cities lacked the power to issue corporal sentences—maiming and capital punishment—against the recalcitrant. Rolandus noted that those who did not have the power of the sword could not issue a death sentence while Simon of Bisignano commented that those who had issued such sentences could not be promoted to the sacred orders. The Summa Parisiensis distinguished the sentence of a civil judge, of an ecclesiastical judge, and that of ecclesiastical and civil judges. While a civil judge issued a judgment of blood, an ecclesiastical judge inflicted ecclesiastical requital such as excommunication and degrading. Monetary punishment fell under the purview of both. In essence, a bishop may continue to have feudal functions, but those functions could not counter the obligations associated with his ecclesiastical rank. Their glosses on Causa 26 focused on the limits of the priest vis-à-vis his bishop. The Summa Parisiensis introduced Causa 26 by commenting that the previous causa (Causa 25) showed that no bishop was able to violate decrees of the apostolic see as it was the eternal axis of churches. Causa 26, accordingly, addressed the ability of a priest to usurp the power of a bishop. Rolandus stated that those of lesser rank (minores) ought to show obedience to their superiors in all things. As such, priests were not able to cut short (mutilare) the judgments of bishops. Rolandus and Rufinus stated that a priest could not reconcile the excommunicated by name unless the bishop was absent and death was imminent. Rufinus then distinguished between ceremonial (sollempnem) and private reconciliation. The former was the purview of the bishop alone; the priest’s reconciliation was a private one.

Stephen of Tournai brought his tenure as an abbot to bear with his comments on Causae 10, 12, 13, 14, and 16. Whereas Gratian had focused on prescriptions and tithing rights through the lens of a bishop’s rights and privileges, Stephen used the same texts to emphasize the preservation of monastic rights and privileges.⁴⁹ He drew on precedents in support of his legal argument, namely that a bishop may retain spiritual rights to a parish, but through prescription he could lose the property and tithing rights. This argument countered Gratian who emphasized the bishop’s control over that which was in his diocese. In one example, the bishop of Chartres had possessed a church, along with its temporal and spiritual revenues, located in the diocese of Orléans for 30 years without interruption. While the revenues were to remain with the bishop of Chartres, the parish itself would remain in the diocese of Orléans. In another example, the bishop of Bologna had possessed a certain church for 30 or 40 years that the bishop of Modena insisted was within the limits of his diocese. If the church was found to be within the diocesan limits of Bologna, it remained with Bologna. If the bishop of Bologna had held the church undisturbed, though it was found to be in the diocese of Modena, it remained with Bologna. If the bishop of Modena, however, had raised an exception before the end of the 30 years and the church was found it be within his borders, the unjust retention by Bologna would result in the church being restored to Modena without delay.⁵⁰ Having spent twenty years as abbot of two houses of canons regular before becoming bishop, Stephen adapted his legal education at Bologna to his circumstances. Prescription provided a means by which monasteries could augment their holding at the expense of the bishop.

49 Prescription is found in Roman law and refers to rights obtained through long usage. See also M. H. Eichbauer, “Law in Service of a Community: Property and Tithing Rights in Gratian’s Decretum and Stephen of Tournai’s Summa,” in The Use of Canon Law in Ecclesiastical Administration, eds. Eichbauer and Summerlin, 69–88.50 Stephen of Tournai, Summa, ad C.16 q.3 c.6 s.v. Inter memoratos, s.v. cuius quamvis vetusta, s.v. limis provisus monstraverit vis signis (Munich, BSB, 17162, fol. 119ra–rb).

The Decretists’ commentary on Gratian’s Decretum was the maturation of an intellectual revolution that began at the end of the eleventh century. Irnerius’s teaching of Roman law in Bologna paralleled the interest northern French canonists were taking in such texts. Meanwhile the schools of Paris actively engaged in a method of inquiry that provided tools to analyze, cross-reference, and reconcile texts. Such techniques for critical analysis would continue to be refined at universities, such as Bologna, Paris, and Oxford, as faculty taught the next generation of lawyers, administrators (both ecclesiastical and secular), theologians, and pastors. Innovations aside, law remained private; even Gratian’s Decretum was never officially adopted as the legal collection for the Church. That would change in the first quarter of the thirteenth century as the papacy reached the peak of legislative pre-eminence.