Gratian and the Schools of Law, 1140-1234

Second Edition

Stephan Kuttner, edited by Peter Landau

• Publisher: Routledge
• Year: 2018
• Topic: History
• eBook ISBN:
  9781351058933
• Subtopic: World History
• Index: History

Collected Studies CS1071

The central figure in this volume is that of Gratian, whose monumental compilation of canon law sparked off the revival of legal studies in the medieval West. In other collections of essays, Stephan Kuttner dealt with the development of canon law in the two centuries that followed the publication of Gratian's Decretum, and the ideas that this engendered; here he is concerned with the foundations upon which all these later efforts were based. The work of Gratian is, of course, the principal focus, but the studies then follow the spread of the teaching of law, from its inception at Bologna in the 1140s to its appearance soon after in other centres of learning in the West especially in France, in the Anglo-Norman schools and in Germany. With a quarter of the volume consisting of additional notes and extensive indexes, it makes a contribution of the greatest importance to the historical study of canon law. For this second edition, a new section of additional notes has been supplied, and the volume is introduced with an essay by Peter Landau; these take account of the important recent work on Gratian and the Decretum and chart the significance of Stephan Kuttner's work.

1

THE SCIENTIFIC INVESTIGATION OF MEDIAEVAL CANON LAW: THE NEED AND THE OPPORTUNITY

This study by Kuttner, published in 1949, was deliberately not brought up to date by the author in his volume of 1983. He only mentioned his study ‘The Revival of Jurisprudence’ (1982). (P.L.)

I

It is hardly possible to overlook the fundamental importance of canon law in the texture of mediaeval civilization. The student of the Middle Ages finds himself confronted with a world in which canonical institutions were an integral part of the social and political structure; with an intellectual framework for which canonical doctrines were living realities in the realm of thought and learning. The conspicuous place held by the magistri decretorum in mediaeval universities is as significant as is the appalling number of canon law books in mediaeval libraries. In the ever-recurrent conflicts between the spiritual and the temporal powers, canon law and its interpretation played a crucial role. From the Carolingian times to the Gregorian Reform canonical collections were frequently instruments as well as mirrors of reform movements and related ideologies. The economic history of the Middle Ages is largely determined by the financial system of tithes, of ecclesiastical benefices, and by the consequences of the canonical doctrine of usury. In the legal history of nearly all Western nations, the impact of canon law on contracts, wills, marriages, corporations (to name only a few institutions), on the judicial system and procedure is easily traced. Gaines Post has shown how this impact extends to the nascent constitutional law;¹ borrowings in Bracton from canonical treatises have been discovered by Schulz and Richardson.² The canonists’ practical needs and devices became of great importance for the arts of dictamen and the notariate; Latin and vernacular literatures, liturgical texts and sermons, offer numerous instances of a penetration of canonical terms and concepts.

Again, a web of interrelations connects the growth of scholastic theology, the medi-aeval development of rhetoric, the revival of Roman law, and the canonists’ methods of scientific inquiry. It is now nearly forty years since the late lamented Monsignor Grabmann demonstrated in his Geschichte der scholastischen Methode³ the decisive role which the hermeneutics of Ivo of Chartres, of Bernold of Constance played in the beginnings of scholasticism. Since then, a number of interesting details concerning the share of the jurists in the early elaboration of dialectical methods has come to light. The extent to which the sententiae of the theologians were indebted to the canonists for their systematic approach as well as for the transmission of patristic material, and the extent to which theology and canon law stimulated each other in the teaching on the sacraments, is most impressively presented in the work of another venerable mediaevalist, Père de Ghellinck’s Mouvement théologique du XII^esiècle — which, after having served many of us for more than thirty years as a companion of studies, has just been reissued in a revised and enlarged edition.⁴ No corresponding study, unfortunately, exists for the thirteenth century, although it would be most rewarding to trace, for instance, the absorption of canonistic material in certain parts of the Summa of St Thomas Aquinas.⁵

Kuttner mentions Grabmann’s ‘Geschichte der scholastischen Methode’ for the beginnings of scholasticism and de Ghellinck’s ‘Mouvement Théologique du XII’ siècle’ for the extent in which theologians and canonists stimulated each other in the twelfth century. He explains that no corresponding study exists for the thirteenth century, especially for St. Thomas Aquinas. A short summary of Thomas Aquinas’ doctrine of natural law is given by Ch. Lefebvre in: Le Bras/Lefebvre/ Rambaud, L’Age Classique 1140–1378. Sources et Théorie du Droit (Histoire du Droit et des Institutions de l’Eglise en Occident VII, Paris 1965), 382–384 (p. 3: Les conclusions Thomistes). See also P. Mikat ‘Gesetz und Staat nach Thomas von Aquin unter besonderer Berücksichtigung der Lehre vom Gesetz in der Summa Theologiae, in: Beiträge zur Rechtsgeschichte, Gedächtnisschrift für Hermann Conrad (Rechts- und Staatswissenschaftliche Veröff. der Görres-Gesellschaft, N.F., H. 34, Paderborn etc. 1979), 439–465. (P.L.)

Let us add that the very strictures of Roger Bacon or Dante on the legalistic spirit that led the clergy to run to the law schools in search of the canonist’s promising career; the very railings of the satirists against the ambitious, greedy, artful canon lawyers, reflect in a way the actual truth that in the mediaeval world canon law was an all-prevading social and cultural power.

And yet, compared with the organized efforts and achievements of modern scholarship in other fields of mediaeval research, active interest in its scientific investigation has remained the concern of a handful of specialists. From the days of Antonio Agustín, the learned archbishop of Tarragona in the sixteenth century, to our own time, it has always been a few scholars only who carried in succeeding generations the burden of patiently advancing the frontiers of our knowledge: a fact which makes the progress achieved in the last eighty-odd years all the more respectable.⁶ The fascinating historical process which stretches over the early centuries of the Middle Ages and in which a huge mass of accumulated, heterogeneous sources grew into the consistent body of common law of the church universal, has become known in its major phases, thanks in particular to the labors which filled the lifetime of the late Paul Fournier and are being carried on by Professor Le Bras. The researches of Maassen and Schulte, continued and corrected in numerous details by the studies of Singer, Gillmann, and others, have made it possible to discern the outlines of the rational perfection of this law in the ever more elaborate doctrines of the schools from the twelfth to the fourteenth century. The counterpart of this scholastic development, viz., the crystallization of new doctrines into legislative authority by the decretal letters and conciliar enactments of the popes, has been particularly explored by Friedberg, Seckel, and Professor Holtzmann. The greater part of a body of manuscript material that runs into thousands of codices has been recorded, identified and classified, at least for the period down to the mid-thirteenth century.

The yield of all these researches is as unexpected as promising, but the more the material has increased at the hands of pioneer scholars, the more it becomes evident that its full utilization is beyond the forces of individuals: only a fraction of the mediaeval works which have become known are at present completely analyzed and evaluated; still smaller is the number of those that have been edited, competently or otherwise. Except for the parallel case of Roman law — of which the mediaeval revival, scholastic interpretation, and gradual transformation into a system of common law has likewise remained the domain of an almost esoteric scholarship⁷ — this situation is not found in other fields of so universal a significance for the intellectual context of the Middle Ages.

II

To substantiate the preceding general observations, I wish to state some specific and urgent needs. Let me begin at a central point. It is commonly known that the Concordia discordantium canonum composed by Gratian at Bologna about 1140 — later on simply called the Decreta or Decretum — constitutes the great divide in the history of mediaeval canon law. As a collection of canons, it marks the end of a plurisecular development of assembling, in ever new selection and combination, the authorities of the past in all their bewildering variety. As a methodical treatise, which submits the thousands of auctoritates to the analysis of reason, it became the starting point and fundamental text of a new science in the schools, as well as the foundation for the juristic reasoning by which the popes since the mid-twelfth century — in particular, since Alexander III — created in their responses and judicial decisions the new law of the decretals. With Gratian, briefly, canon law enters into its specifically juristic stage as a highly technical subject of specialized learning. This fact explains perhaps why historians on the whole have been less attracted by his work than by the canonical collections of the early Middle Ages,⁸ which lend themselves more easily to a description of their trends and tendencies in general matters of ecclesiastical policy. But to the canonist proper the Decretum remains fundamental.

Kuttner points out that Gratian’s Decretum constitutes ‘the great divide in the history of mediaeval canon law and that with Gratian canon law enters into its specifically juristic stage’. He also demands to trace anew the transmission of Gratian’s original sources in the preceding collections he did put to use. For this question I can refer to my contribution: P. Landau, Gratian and the Decretum Gratiani, in: W. Hartmann/K. Pennington (ed.), The History of Medieval Canon Law in the Classical Period, 1140–1234. From Gratian to the Decretals of Pope Gregory IX (Washington D.C. 2008), 22–54, mainly pp. 30–32. Kuttner counted ca. 50 manuscripts from the twelfth century — I estimated for this time a total number of about 160 manuscripts (p. 48). Five codes contain the first recension of the Decretum, discovered by Anders Winroth — cf. A. Winroth, The Making of Gratian’s Decretum (Cambridge Studies in Medieval Life and Thought. Fourth Series, Cambridge 2000). A separate edition of this first recension is planned by Winroth. (P.L.)

There is no lack of studies on Gratian. His book, preserved in hundreds of manuscripts, and part of the Corpus iuris canonici in force till 1918, has been printed time and again since the fifteenth century. A critical edition, however, does not exist.⁹ What passes for one, the edition of Friedberg (1879), is based on eight manuscripts only, all chosen from German libraries, and at that not even all chosen with good judgment. As arbitrary as the national restriction is the recensio mixta of the text; the recording of variants is unreliable, the historical apparatus composed without method, outmoded, and full of misleading statements. A new edition, however, is a task of immense proportions. In the codices, the Decretum usually fills between two hundred and three hundred large folios, and about fifty of the extant manuscripts date from the twelfth century; all these will have to be examined before a stemma can be established and the best manuscripts selected for the recension of the text. The transmission of the original sources in the collections preceding Gratian has to be traced anew in the light of all the discoveries made by Fournier and others — a problem of fundamental significance for determining the genesis of Gratian’s text. It cannot be answered by a mere listing of the earlier testimonia, for we have to ascertain which of the intermediary collections that Gratian may have used he did put to use. But here it is necessary to remember that only a few among the earlier collections are available themselves in critical editions: of the indispensable works of Burchard of Worms and Ivo of Chartres we have only the worthless texts printed in Migne; the so-called Polycarpus and other collections of the early twelfth century which may have served Gratian are not printed at all.¹⁰ Still another problem is presented by certain groups of Roman law texts in Gratian which Professor Vetulani has recently indicated must have been inserted by way of afterthought: an observation which reopens the question as to whether it was Gratian alone who composed the whole of the Decretum.¹¹

Kuttner thought that Vetulani’s research on the use of Roman law by Gratian reopened the question whether it was Gratian alone who composed the whole of the Decretum. (P.L.).

These are only a few of the difficulties to be surmounted, and it is but fair to state that it would be foolhardy to attempt their solution by other means than the co-ordinated effort of a great Institute.

III

To take another example. After Gratian, it was left for nearly eighty years to the initiative of the canonists to incorporate the rapidly accumulating papal cases, responses, and conciliar legislation into the body of canon law. Over sixty private collections of the contemporary new material, differing in selection and arrangement, originated during this period. The first pope ever to make himself a choice among the decretals of his pontificate in an official collection was Innocent III, in 1209; the pope who united all of the recognized new decretal and conciliar texts in a definitive compilation was Gregory IX, in 1234. Additional decisions and enactments of his successors — likewise in a first stage the object of minor, official or private collections — received their final shape in Boniface VIII’s Liber Sextus (1298); and in 1317, John XXII published the Constitutiones Clementinae of his predec...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Preface to the Second Edition
• 1. The Scientific Investigation of Medieval Canon Law: The Need and the Opportunity
• 2. Graziano: L’uomo e l’opera
• 3. Zur Frage der Theologischen Vorlagen Gratians
• 4. New Studies on the Roman Law in Gratian’s Decretum
• 5. Additional Notes on the Roman Law in Gratian’s Decretum
• 6. Les débuts de l’école canoniste française
• 7. Bernardus Compostellanus Antiquus
• 8. Anglo-Norman Canonists of the twelfth century
• 9. Réflexions sur les brocards des glossateurs
• 10. Papst Honorius III. und das Studium des Zivilrechts
• Retractationes
• Indices