Published in the Bulletin of Medieval Canon Law 27 (2007) 21-56
Early Stages of Gratian’s Decretum and the Second Lateran Council: A Reconsideration
Atria A. Larson
The traditional dating of Gratian’s Decretum to ca. 1140 has been modified
within the past decade due to Anders Winroth’s discovery of an earlier recension
of the work surviving in four manuscripts. Scholars
can no longer just mention 1140 as the date of the completion of the Decretum. They must clarify which Decretum they are talking about. The scholarship of the twentieth century
originally settled on the date of ca. 1140 partly because of the apparently
hasty incorporation of canons from Innocent II’s Lateran Council of 1139, known
later as the Second Lateran Council.
Although no canons from Lateran II appear in the recension Winroth discovered,
he is confident that the recension does refer to Lateran II in D.63 d.p.c.34
when it mentions a general synod (‘generalis sinodus’) held by Pope Innocent in
Two serious problems emerge if this
earlier stage of Gratian’s work does indeed refer to Lateran II. The first
major problem facing scholars is that, if this is so, one must postulate a
timeline compressed to the point of incredulity with regards to the production
of the final stage and dissemination and beginning scholarship on the Decretum. As Peter Landau has recently
pointed out, the earlier recension seems to have been known at the papal curia
under Celestine II (1143-44). He notes that Weigand has shown that the jurists
began to gloss the final recension as early as the late 1140s, for the first
glosses appear ca. 1150. In addition, Paucapalea wrote the first Summa on the Decretum as early as 1148, and the first known abbreviation of the
work (‘Quoniam egestas’) appeared in
This timeline becomes even further compressed to an
unreasonable degree when one considers the possibility of an even earlier stage
of Gratian’s work preserved in St. Gall, Stiftsbibliothek 673 (Sg), which also
contains the reference to Innocent’s ‘generalis synodus’ in Rome. While Winroth
maintains that the manuscript is an abbreviation of the ‘first recension’, and
John Wei is currently propounding the hypothesis that it contains an
abbreviation of that recension along with interpolations from the final one,
much good evidence has come to light to support the notion that the manuscript
contains an earlier stage in the development of Gratian’s work. Not the least
of such evidence is the recent work by
If D.63 d.p.c.34 originally referred to Lateran II, a second problem arises. Fransen and Lenherr and others, including Weigand and Landau, have argued that the canons of the council were the last to enter into the work. If all earlier stages in the formation of the Decretum were finished after the council and Gratian added the Lateran texts to the collection in 1145, he would not have scrambled to put in the canons, seeing that they would already be five years old. One would have to suppose that Gratian had been completely ignorant of that council for five years or, for some unaccountable reason, suddenly decided that those canons were worthy of being included in his collection. Either supposition stretches credulity.
These two problems lead one to question whether the ‘generalis synodus’ of D. 63 d.p.c.34 originally (i.e. in the stages represented by Sg, Fd, Bc, P, and the majority of Aa) referred to Innocent II’s Lateran Council of 1139. An overview of the meaning of the designation ‘synodus generalis’ in Gratian’s time and, more significantly, in Gratian’s own work, a brief look at the habit of repeating conciliar canons at later councils, and an examination of the activities of Innocent II earlier in his pontificate reveals a tantalizing possibility: Gratian was not referring to Lateran II and very well could have been referring to a synod in either Lent 1130 or, more likely, June 1133, all of which would open up a more reasonable timeline for the composition of Gratian’s Decretum and confirm what some twelfth-century chroniclers claimed: Gratian was working in the early 1130s. Moreover, regardless of whether or not Gratian was in fact referring to a council in June 1133 (which cannot be proven with the evidence available), a letter from Innocent II’s chancery from the same period proves that Gratian was active and influential in the early 1130s and thus that the completion of the early stages of his work could not have been as late as 1139.
The Meaning of ‘Synodus generalis’
Part of the attractiveness of
assigning the reference to a synod held under Innocent in Rome to Lateran II
seems to rest in the specific designation of the synod as ‘generalis’ and what
that designation signifies to modern ears. In the mind of twentieth and
twenty-first century Christians, the modifier ‘generalis’ appears synonymous
with ‘universalis’ and ecumenical.
Thus Gratian’s reference to a ‘synodus generalis’ in
The sources of the eleventh and early twelfth century yield up quite a variety of usages of the term ‘synodus generalis’ or ‘concilium generale’ and similar terms, including the nouns without the adjectives, but some things stand out clearly. First, quantitatively speaking, a general synod was more general, that is, involved more participants and affected more of the faithful, than a lower synod. This means that even a provincial synod could be termed ‘generalis’ because it was more general than a meeting of, say, the canons of a cathedral. Second, qualitatively speaking, a general synod signified for many medieval writers, from a tradition going back to Isidore of Seville, a catholic or universal synod, that is, one which espoused catholic doctrine. In this sense, the moral or doctrinal statutes of a general synod bear more authority and significance than those of a lesser synod. Third, a synod or council needed papal approbation for validity. For diocesan and provincial synods, such papal approval could not be given explicitly in each case but was always present indirectly in the form of the ancient canons of the church prescribing meetings twice a year. For special meetings, the pope’s specific and direct approval would be required, at least in the eyes of the reformers and the reform popes, in order to make the gathering a valid assembly. Fourth, in many though certainly not all cases, ‘synodus generalis’ or a similar term in the late eleventh and the twelfth century designated a council presided over, not simply approved by, the pope, and ‘generalis’, at least in the eyes of the popes when they specifically termed one of their councils as such, implied the participation of bishops from a wide geographical spread.
As is clear from these four points, one can expect to
find great variety in the usage of ‘synodus generalis’ or equivalent term in
the period leading up to and around Gratian, and one indeed does find such
variety. Rupert of Deutz speaks of a provincial synod called by a bishop as a
‘synodus generalis’. For the year 1076, he records the consecration of a
certain Henry as bishop of Liège performed by Archbishop Anno of
Gratian himself actually provides a specific and
consistent usage of ‘synodus generalis’. All six times he uses the term
(whether in a dictum, inscription, or rubric), he is referring to a papal
synod. In five of these instances (i.e. all but the dictum in question, D.63
d.p.c.34), the council in mind is clearly not an ecumenical or even a very
significant council from the modern perspective. In some of the cases, the
identification of the councils is questionable. Gratian’s point seems merely to
say that these canons have authority because they were issued by a pope in the
context of a synod over which he presided. The six instances are: D. 54
d.p.c.22, D.63 d.p.c.34,
D.98 c.1 (inscription),
C.2 q.4 d.p.c.1, C.2 q.7 c.58
(inscription), and C.16 q.7 c.12
(inscription). In the case of D. 54
d.p.c.22, the pope is Gregory I (590-604), under whose pontificate no
ecumenical councils took place. In D.98 c.1 (inscription), Gratian refers to a
synod of Silvester I (314-335).
was pope during the Council of Nicaea, but Gratian is not quoting a canon of
that council here. The text became known to canonists as a decree of Silvester
I in the Pseudo-Isidorian Decretals. Gratian
knew the canons of
One can gather a greater understanding of Gratian’s emphasis on the papal role in general synods from distinctions fifteen to eighteen in the prima pars. Gratian’s major terminological distinction lies between a ‘synodus generalis/ universalis/sacra’ and a ‘synodus particularis/episcopalis/ provincialis’, with ‘synodus’ and ‘concilium’ being used interchangeably throughout these four distinctions. Most of the time, an adjective does not accompany the noun, but the context makes clear of which type of gathering Gratian is speaking. These two types of councils may be distinguished both in terms of their function and in terms of the role of the pope in them. As D.18 makes clear with much support from early canons, episcopal synods/councils are to occur twice (or in the very least, once) a year, and all summoned bishops are to attend without excuse. Such councils are non-legislative; their purpose consists in enforcing the enactments of the church, whether that be the moral or the canon law as put forward in ecclesiastical authorities from Scripture to conciliar canons to papal decretals. Gratian’s opening dictum summarizes this point nicely:
Episcopal councils, therefore, as appears from the preceding, may not validly define or enact, but they may correct. Episcopal councils are needed for exhortation and correction, because, although they do not have the power to enact, they do have the authority to impose and declare what has been otherwise decreed and commanded to be generally or particularly observed.
Thus provincial synods have the character of courts at which cases within the province are dealt with under the judgment of the bishops gathered together, and they also serve as a channel through which ecclesiastical enactments become known to the church at large. The popes have no direct involvement. In clear contrast to these councils, general councils have the pope at their head and perform more of a legislative function. The opening dictum of D.17 plainly states, ‘Authority for convoking councils belongs to the apostolic see’. As a letter of Pope Julius I says (D.17 c.2), no council which has not been validated by the pope has or will be valid, and a gathering which occurs without or against the authority of the pope, as Pope Pelagius II says (D.17 c.5), is not even a council, but a mere ‘conventiculum’. That the true, general councils can legislate becomes clear from the discussion of the canons of these councils and the contrasting description of provincial synods. General councils produce canons, and this production represents a significant part of their duties and even raison d’être, otherwise Gratian would not deal in such detail with the issue of whether or not the sixth general council even composed canons. Thus, for Gratian, general councils/synods are summoned by the authority of the pope, normally are presided over by him (the exception being some councils in the early church which were nevertheless approved by the pope), and are about the business primarily of producing statutes for the church.
In short, all Gratian means by ‘synodus generalis’ in D.63 d.p.c.34 is a papal synod – a gathering summoned by and presided over by the pope (in this case, Innocent II) which can be expected to produce some sort of binding legislation for the church. How big the synod is, how many bishops are in attendance, and from where they come do not comprise chief concerns for Gratian, and the canons of a larger synod such as Lateran II would not impress Gratian as being any more authoritative than those of a small papal synod. The ecumenical councils of the early church hold a high and irreplaceable position in the estimation of Gratian and all medieval jurists, but, beyond them, as Schmale so succinctly states, ‘Päpstliches Konzil war päpstliches Konzil’ – equal in authority, regardless of size or location.
The Reiteration of Conciliar Canons
The chief reason for Weigand and Winroth’s insistence that this dictum in the earlier recension refers to Lateran II no doubt (although they do not explicitly state as much) lies in the fact that Gratian eventually added a canon from that council. Indeed, the canon (canon 28 of Lateran II) does fit the description provided by Gratian in his dictum. This fact does not, however, provide definitive proof, for popes frequently repeated canons from previous councils, whether their own or those of their predecessors.
The habit of repeating canons from one’s own earlier
councils was one practiced by some of Innocent II’s more immediate predecessors
and, more significantly, by Innocent himself. The reasons for such repetition
perhaps cannot be fully known, but I. S. Robinson speaks of Urban II’s practice
this way: ‘The re-promulgation of virtually the same decrees at each synod of
the pontificate tended to transform the synod into a papal instrument for
publicizing the reform program’. Whatever
the precise reasons, Innocent II also took up this practice in the 1130s, as
research by Robert Somerville has made clear. The major synods of Innocent
known to modern scholarship are the Councils of Clermont (1130), Liège (1131),
Reims (1131), Piacenza (1132), Pisa (1135), and Lateran II (1139). No
canons survive from
What the discussion thus far leaves as absolutely
certain as to the mention of a ‘synodus generalis Innocentii Papae Romae
habita’ in D.63 d.p.c.34 amounts to less than what is usually thought. Gratian
is referring to a papal synod. The pope is Innocent II. The place is
Since scholarship thus far has not unearthed a council held by Innocent II in Rome besides Lateran II, this hesitation about Gratian’s reference may perhaps seem like a foolish exercise of informed skepticism unless a plausible scenario can be put together from the historical record that posits an earlier time when Innocent very well could have held another synod in Rome. In fact, the timeline of Innocent II’s pontificate places him in Rome for a few months beginning on April 30, 1133, and chronicles and documents tell of a synod in June 1133, even if the word ‘synodus’ or ‘concilium’ never arises. This synod, whose existence rests on circumstantial but I think plentiful evidence, could be Gratian’s referent, and Gratian’s few words, I propose, comprise the lone testimony to a decree at that synod, just as the monks of Erfurt seem to give the lone testimony to a decree at Innocent’s Council of Liège in March 1131.
Innocent II’s Council of Rome (June 1133)
Two possibilities actually emerge if one is looking
for a synod held by Innocent II in
Late in the summer of 1132, Lothar headed out on an
Italian expedition with the purpose of re-establishing Innocent II in the city
of Rome and, in return, receiving the imperial crown. Accompanying him was his
newly appointed chancellor for the Italian kingdom, Archbishop Norbert of
The historical evidence for such a council remains
circumstantial, that is to say, no source specifically mentions a ‘synodus’ or
‘concilium’ in connection with these events, but the sources do point to an
assembly of bishops and other ecclesiastical and lay figures, a consideration
of issues of ecclesiastical politics and practice, and a significant output
from the papal chancery. First, several sources, from documents such as letters
to chronicles, prove that Innocent had the personnel available in
Two extant privileges from four days later (Thursday,
June 8) clarify the role of the bishops. They were not merely spectators
watching an imperial coronation; they participated in discussions and decisions
about important matters in ecclesiastical-imperial relations and ecclesiastical
practice, at least as regards episcopal elections and consecrations. The one privilege
grants the Mathildine lands to Lothar III for his lifetime in the hopes of
cutting off the attempts of anti-king Conrad of Staufen to acquire these lands
and build up his power from them, and the other, referred to in the scholarship
as the Innocentianum or the Concordat of Rome, laid out a rather vague but
apparently politically acceptable compromise on the investiture issue.
Most of Innocent’s letters and privileges come from him and him alone and do
not mention any others in his presence at the time of composition. These two
privileges, however, both written on June 8, mention that the decision at hand
was made in the presence of, and even with the counsel of, a variety of
ecclesiastical and lay figures. First, the privilege regarding the lands of
Countess Matilda of
Moreover, these two privileges share in a rather
compressed period of activity coming from Innocent II’s chancery. For the
period May 27-June 8, Jaffé lists fourteen extant documents (JL 7621-7634),
seven or eight of which were produced on May 27 and three of which were
produced on June 8, including the two privileges (JL 7632 and 7633) for Lothar
III just discussed. Although Innocent had other times of atypically high
productivity, this evidence combined with the evidence of the assembling of
cardinals, archbishops, bishops, abbots, and lay nobility provides very strong
reasons for supposing that a synod actually did occur in
Additional support for this hypothesis comes from the
very recent research and book by Georg Gresser on synods and councils from Leo
IX to Calixtus II, that is, the years 1049 to 1123. In that book, he posits the
existence of synods that previous scholarship has not mentioned. In many of the
cases, just as with the proposed synod of
What Gresser’s research demands is a revision of the
modern conception of an early twelfth-century council. As Gratian’s usage of
the term ‘synodus generalis’ shows as well, the key point is the presence of
the pope. Canons would be issued, but so also would letters of negligible
interest to the church broadly speaking. Privileges (such as the ones granted
in June 1133) were very often made, but these, of course, would interest only
those whom they concerned. In short, any gathering of several bishops (and
there certainly were several in
Although the historical record points to a synod
presided over by Innocent II in
One other tie between Gratian’s work and the events of
May-June 1133 exists and gives testimony to an active and even influential
Gratian in the early 1130s, long before Lateran II. The heightened output from Innocent
II’s chancery began on May 27, eight days before Lothar’s coronation. On that
day, Innocent penned a letter
on the Aventine Hill in
himself or the more likely actual author of this letter, his chancellor, Haimeric,
thus knew a bit of Roman law. Haimeric identifies himself as the author of the
related letter written on the same day to Adalbero of Hamburg,
so, in the very least, Haimeric was present for the letter to Ascerus and very
well could have penned it himself. Regardless of Haimeric’s specific role in
the composition of the letter, what is noteworthy is that,
though Burgundian by birth, Haimeric had been and
perhaps still retained his status as a regular canon of S. Maria in Rheno in
At the beginning of his Tractatus de legibus (distinctiones 1-20 of the ‘prima pars’ of the Decretum, which first appears in the stage represented by Fd, Bc, P, and the main parts of Aa), Gratian defines the key principle of ius naturale as the Golden Rule, and his entire prologue is influenced by Dig. 1.1.9-10. First he states that ‘the human race is ruled by two things, namely ius naturale and long-standing custom (moribus)’, modifying but clearly echoing Gaius’ assertion that ‘all peoples (omnes populi) who are ruled (reguntur) by laws (legibus) and long-standing custom (moribus) use partly their own law and partly that law (iure) which is common to all men’. Gratian then defines ius naturale:
Natural law is what is contained in the Law and the Gospel, by which each person is commanded to do unto others what he wants done to him and is prohibited from inflicting on others what he does not want done to him. Whence Christ in the Gospel: ‘Whatever things you want people to do unto you, do also the same things to them. This is the Law and the Prophets’.
Gratian gives a positive and a negative formulation of the Golden Rule and ius naturale; similarly Ulpian in Dig. 22.214.171.124 (a text immediately following the one from Gaius which influenced Gratian’s opening statement) gives a positive and negative formulation of the precepts of ius: ‘suum [ius] cuique tribuere’ (positive: giving to each person his right/what he deserves) and ‘alterum non laedere’ (negative: not harming another person). Gratian was definitely familiar with this alterum non laedere principle of Roman law. Given the overlap of basic ideas between Ulpian’s ‘do not harm another’ and Gratian’s biblical ‘do not do to others what you would not want done to you’ (and likewise for the positive sides of the equation) and Gratian’s indubitable familiarity with Dig. 126.96.36.199 and the influence of that section of the Digest on his opening dictum, one can affirm that, for Gratian, the Golden Rule stands as the Christian version of the essence of the Roman law concept of ius.
That Innocent and/or Haimeric in the letter to Ascerus sees the same connection as Gratian between the alterum non laedere principle and natural law (and thus the Golden Rule, which had for centuries in the Christian tradition been identified with natural law), is suggestive that the papal court was familiar with and influenced by Gratian’s work. What clinches the connection for the modern scholar, however, is the specific usage of ius naturale, not lex naturalis, in the letter. Gratian’s predecessors and contemporaries always used the term lex naturalis; Gratian was the first to exchange ius for lex. A disciple of Jerome wrote that lex naturalis prescribes that we do unto others what we desire from others. Haimo of Halberstadt (d. 853) said that lex naturalis had two principles and then proceeded to give both the positive and negative formulation of the Golden Rule. Gratian’s near-contemporary, Rupert of Deutz (d. 1130), also defined lex naturalis with the Golden Rule and added that this law was written on the heart. Hugh of St. Victor (d. 1141) in his De sacramentis christianae fidei also put forward the positive and negative formulations of the Golden Rule and identified them as the principles of lex naturalis. He emphasized the comprehensive nature of this law: lex naturalis prohibits what can never be done licitly and commands what can never be passed over licitly. Thus, many before and at the same time as Gratian identified natural law with the Golden Rule; Gratian’s innovation, then, which was clearly influenced by his understanding of the Roman law concept of ius in contradistinction from lex, consisted in his labeling the Golden Rule as the overarching principle of ius naturale, not lex naturalis. Since he was the first and only person in his time to do this, Innocent and/or Haimeric had to be familiar with his work. Gratian may not necessarily have fully composed his Tractatus de legibus yet in the form in which it appears in Fd, but he certainly had by May 1133 been teaching the content of that treatise and must also, then, have composed in some form, however advanced and developed, an initial version of what would become the first few distinctions of his Decretum. With such evidence, the idea that Gratian did not complete the earliest stages of his work until after 1139 and the Second Lateran Council and that he was referring to that Council in D.63 d.p.c.34 becomes increasingly implausible, for this letter to Ascerus is proof that Gratian is teaching and writing and even influencing the papal chancery in the early 1130s.
The most important conclusion here for understanding D.63 d.p.c.34 is that a ‘synodus generalis’ does not mean a general council in the modern sense. Gratian’s choice to use that term in no ways intimates that Lateran II was the council on his mind. In addition, the fact that Gratian ultimately incorporated a canon from Lateran II and thus interpreted the ‘synodus generalis’ of D.63 d.p.c.34 as that council does not prove that Gratian originally intended Innocent’s 1139 council. Just as Lateran II repeated canons from the Council of Pisa and from his earlier Council of Clermont, Lateran II could have repeated additional canons from earlier councils whose canons have not survived. Such a situation seems not just possible but also likely given the poor survival of the decrees from Innocent II’s councils (except for Lateran II). Based on Innocent’s travels, the two possibilities for a council in Rome early on in his reign to which Gratian might be referring are during Lent 1130 just a few weeks after his consecration and in June 1133 after Lothar III’s coronation. Given the historical evidence of a council and the known focus on episcopal elections in 1133, this latter possibility holds more credibility for being Gratian’s referent. In this case, Gratian’s few words about a decision made in a general synod under Innocent II would stand as the only surviving witness to a canon of the Council of Rome (1133). In addition, and very importantly, although one cannot prove absolutely that Gratian was aware of the proceedings of such a council and was referring to it, one can be absolutely sure based on the usage of ius naturale in Innocent’s letter to Ascerus of Lund that the papal chancery at that time was quite familiar with Gratian’s work and that its epistolary output was influenced by it.
If in D.63 d.p.c.34 Gratian was originally referring to a council in June 1133 and not Lateran II and to a canon promulgated at that earlier council and repeated as canon 28 of Lateran II, such a timeline creates significantly more space for the various stages in the production of Gratian’s Decretum and for the dissemination of its final form. Seven more years are added to Weigand and Winroth’s chronology. A plausible terminus post quem of June 1133 appears for the completion of the stage represented in Sg and also for a succeeding stage as represented in Fd, Bc, P, and the majority of Aa. Much of the work for the version represented in Sg probably was done in the late 1120s, especially since Melodie Harris Eichbauer’s research suggests that ‘causa prima’ was among the last to be composed. Also, May 1133 becomes the terminus ante quem for Gratian’s initial formulations of his Tractatus de legibus. Gratian was already teaching at least some of the content that would comprise this treatise and thus had already formulated some draft of these distinctions, if not fully composed them in the form preserved in Fd. Moreover, under this analysis, the generally accepted date for the final recension of ca. 1140 which accounts for the rushed input of the canons of Lateran II remains intact, producing a much more believable timeframe in the 1140s for the dissemination of, beginning scholarship on, and first practical uses of the Decretum. Whether or not Gratian is in fact referring in D.63 to a council in June 1133, scholars should at least not feel rigidly tied to the date of 1139 or 1140 for the completion of the early stages of Gratian’s work. So much evidence has pointed to an earlier completion, and that one supposed reference to Lateran II has led many to doubt that evidence. Now that supposed reference can be doubted and the other evidence can be embraced more assuredly.
No doubt Gratian and probably others around or under
him were working hard in the late 1120s and 1130s to collect and comment on
hundreds and hundreds of canons, and the terminus post quem of June 1133
proposed here for Gratian’s earlier recensions presses for a flurry of activity
Gratian, bishop of Chiusi, united the most useful
decrees from the decrees, canons, doctors, and Roman laws, which are sufficient
for determining all ecclesiastical cases. They are frequently made use of in
the Roman curia and in other ecclesiastical courts. Afterwards Master
Omnibonus, bishop of
John T. Noonan has noted that Robert got the information about Gratian’s work correct, Omnibonus’ work correct, and Omnibonus’ ecclesiastical position correct, but, on the basis of Robert’s placing of Gratian’s work about a decade too early from his perspective (working from the date of 1140 and before the discovery of the earlier recensions), Noonan rejected as at least very doubtful Robert’s assigning the bishopric of Chiusi to Gratian. But Robert seems to have his dating correct, so perhaps he correctly identifies Gratian’s final ecclesiastical position as well. Besides Robert of Torigny, another chronicler, Burchard of Ursberg, writes about the significant work of Gratian in the field of canon law and of Irnerius in the field of Roman law. These descriptions appear within Burchard’s discussion of Lothar III’s reign (1125-1137), and, remarkably enough, they fall directly after his account of nothing other than Lothar’s imperial coronation in June 1133. Though living a couple generations after Gratian, Burchard may have been far more accurate in his chronology than even he realized, or perhaps he knew something modern scholars have not. Innocent II’s letter to Bishop Ascerus of Lund proves that Gratian was active and flourishing, even influencing papal letters, at that time, and the reference in D.63 d.p.c.34 opens up the possibility that Gratian was privy to some proceedings surrounding Lothar’s coronation, a ‘generalis synodus Innocentii Papae Romae habita’.
The four manuscripts are: Admont, Stiftsbibliothek 23 and 43 = Aa;
 The evidence for this ‘hasty incorporation’ has basically two components: 1. the canons themselves appear at the end of sections, sometimes giving very clear and definitive answers to issues which Gratian had up to that point in the text treated as ambiguous, and 2. the rubric tradition in the earliest manuscripts for these canons is highly varied and takes some time to reach any standardized form, suggesting that the canons were added very quickly (without even enough time to create rubrics) before copies of the Decretum began to be produced. For the awkward placement of the canons, see G. Fransen, ‘La date du Décret de Gratien’, RE 51 (1956) 521-31. For a study of the rubrics for the canons of Lateran II, see T. Lenherr, ‘Die Summarien zu den Texten des 2. Laterankonzils von 1139 in Gratians Dekret’, AKKR 150 (1981): 528-51.
 The extended text reads (Fd fol. 12va), ‘Nunc autem sicut electio summi pontificis non a Cardinalibus tantum, immo etiam ab aliis religiosis clericis auctoritate Nicolai Papae est facienda, ita et episcoporum electio non a canonicis tantum, sed etiam ab aliis religiosis clericis, sicut in generali sinodo Innocentii Papae Romae habita constitutum est’. Winroth flatly states, ‘There can be no doubt that Gratian I’s reference concerns canon 28 of the council celebrated in 1139’. Winroth, Making of Gratian’s Decretum 137.
 The canon from Lateran II: ‘Since the decrees of the fathers prohibit churches to be left vacant for more than three months, we forbid under anathema the canons of the episcopal see to exclude religious men from the election following on the death of the bishop; but let a virtuous and suitable person be elected as bishop with their advice. Because if an election is held with these persons excluded, where this is done without their knowledge and consent, it is null and void’. (‘Obeuntibus sane episcopis, quoniam ultra tres menses vacare ecclesias prohibent patrum sanctiones, sub anathemate interdicimus, ne canonici de sede eposcopali ab electione episcoporum excludant religiosos viros, sed eorum consilio honesta et idonea persona in episcopum eligatur. Quod si exclusis eisdem religiosis electio fuerit celebrata, quod absque eorum assensu et convenientia factum fuerit, irritum habeatur et vacuum’.) Decrees of the Ecumenical Councils, ed. Norman P. Tanner (London and Washington DC 1990) 1.203. The canon as it appears in Friedberg’s edition is somewhat different, the greatest changes being an active ‘eligant’ replacing the passive ‘eligatur’ and some word differences in the last sentence: ‘Obeuntibus sane episcopis, quoniam ultra tres menses uacare ecclesiam sanctorum Patrum prohibent sanctiones, sub anathemate interdicimus, ne canonici de sede episcopali ab electione episcoporum excludant religiosos uiros, sed eorum consilio honestam et idoneam personam in episcopum eligant. Quod si exclusis religiosis electio facta fuerit, quod absque eorum consensu et conniuentia factum fuerit, irritum habeatur et uacuum’. (D.63 c.35; ed. E. Friedberg [Leipzig 1879] 247)
 R. Weigand, ‘Chancen und Probleme einer baldigen Kritischen Edition der ersten Redaktion des Dekrets Gratians’, BMCL 22 (1998) 66-67. Weigand’s treatment of the issue appeared prior to Winroth’s book but after Winroth’s announcement of his discovery of the earlier recension at the Eleventh International Congress of Medieval Canon Law in 1996.
 Weigand, ‘Chancen und Probleme’ 66-67; Winroth, Making of Gratian’s Decretum 138-39.
Landau, ‘Gratian and the Decretum Gratiani’, The History of Medieval Canon Law in the Classical Period, 1140-1234:
From Gratian to the Decretals of Pope Gregory IX, ed. W. Hartmann and K.
Pennington (History of Medieval Canon Law 6;
Nardi made this discovery. See P. Nardi, ‘Fonti canoniche in una sentenza
 Landau, ‘Gratian’ 25; Weigand, ‘Chancen und Probleme’ 69. Landau does leave some room for doubt as to the definitiveness of Lateran II as Gratian’s referent, saying that the earlier recension ‘may contain a reference to the Second Lateran Council and consequently may have been completed ca. 1139’ (emphasis mine).
 See both Wei and Harris Eichbauer’s fairly extensive historiographical overviews of the debate in this present volume. Eichbauer quite convincingly proves, I think, that Sg cannot be an abbreviation since its usage of rubrics contradicts all known usages of rubrics by abbreviators. Although I am not concerned per se with the issue of the priority or not of the content of Sg in this essay, I will note that the supposed reference to Lateran II appears in Causa prima of that manuscript, a causa that is unique in Gratian manuscripts for compressing or being an original version of (depending on one’s perspective) the 101 distinctiones, or the entire pars prima of the Decretum. No proponent of the thesis that Sg is an abbreviation has yet put forward a logical reason for why an abbreviator would create such a causa. In fact, the very existence of this causa supports the idea that Sg is not an abbreviation but bears witness to a very early stage in the development of Gratian’s work.
 See n. 2, above. Landau asserts his agreement with Weigand on this point in ‘Gratian’ 27: ‘[texts from Lateran II] were the last texts that [Gratian] placed in the Decretum and consequently establish a terminus post quem for the end of his work’.
 In addition, to the modern mind, a synod is distinguishable from a council, with the latter designation carrying the connotation of a larger, more universal, and more significant gathering of ecclesiastical officials. In the age of the Gregorian Reform into Gratian’s days and beyond, as Horst Fuhrmann and others have pointed out, the two terms, ‘synodus’ and ‘concilium’, are synonymous, so Gratian’s usage of ‘synodus’ as opposed to ‘concilium’ is irrelevant. Furhrmann’s 1961 article remains the classic treatment on the history of terminology such as ‘synodus generalis’: ‘Ökumenisches Konzil und seine historische Grundlagen’, Geschichte in Wissenschaft und Unterricht 12 (1961): 672-95. Franz-Josef Schmale has attempted to make a distinction between ‘synodus’ and ‘concilium’, at least in the eleventh century, with the terms becoming synonymous only in the course of the twelfth. He believes that ‘synodus’ designated an assembly of bishops with a focus on judicatory activity while ‘concilium’ designated a generic assembly of bishops. See F.-J. Schmale, ‘Synodus—synodale concilium—concilium’, AHC 8 (1976) 91-93. Most subsequent scholarship has rejected this distinction. See G. Schmitz, ‘“Concilium perfectum”: Überlegungen zum Konzilsverständnis Hinkmars von Reims (845-882)’, ZRG Kan. Abt. 66 (1979) 31 n.13, and, most recently, G. Gresser, Die Synoden und Konzilien in der Zeit des Reformpapsttums in Deutschland und Italien von Leo IX. bis Calixt II., 1049-1123 (Paderborn- Munich-Vienna-Zurich 2006) 576.
Fuhrmann, ‘Ökumenisches Konzil’ 678. While
acknowledging that distinguishing between ‘general council’ and ‘ecumenical
council’ in the eleventh to twelfth centuries seems impossible because there
did not exist a nomenclature for ecumenical councils (except for the first
four) nor a list of general councils and because the terms were, in fact, used
quite indifferently in the sources, Gérard
Fransen has made an argument for still calling the four Lateran Councils
‘ecumenical’, particularly the Third (1179) and the Fourth (1215). See his ‘Papes,
conciles généraux et oecuméniques’, in Le
istituzioni ecclesiastiche della ‘societas christiana’ dei secoli XI-XII:
papato, cardina-lato, ed episcopato (
 For a list of all known terms used to describe
councils, see Gresser, Synoden und
Konzilien 573. Another work to consult on these issues is H. J. Sieben, Die Konzilsidee des lateinischen
Mittelalters, 847-1378 (
 Fuhrmann, ‘Ökumenisches Konzil’ 682.
 Fuhrmann, ‘Ökumenisches Konzil’ 682-83; Schmale, ‘Synodus’ 85.
 This point became particularly strong and unquestioned, particularly in canonical sources, from the Gregorian Reform on. As Robert Somerville states, ‘What exactly defined a synod of that type [‘general’] is not a simple matter, but whatever can be discerned as the characteristics of such assemblies, from the time of Leo IX into the twelfth century one factor is clear: a general council required papal approbation’. (R. Somerville with S. Kuttner, Pope Urban II, the Collectio Britannica, and the Council of Melfi (1089) [Oxford 1996] 181) As Fuhrmann explains, the tradition on this point runs deep. Isidore of Seville and several before him and many after him, such as Burchard of Worms, focus on the role of the pope: ‘each general synod had to be either called or ratified by the pope in order to be valid’ (‘Jede Generalsynode mußte vom Papst entweder berufen oder ratifiziert werden, um gültig zu sein’). (‘Ökumenisches Konzil’ 684) This is the view that predominates during the Gregorian reform and which, in Gratian’s work, finds a firm place in canon law. The jurists of the twelfth and thirteenth century after Gratian deepened this doctrine with a sharp distinction: only a general council could establish statutes for the church and could depose a bishop; a provincial council could not do these two things. (‘Ökumenisches Konzil’ 686)
Schmale, ‘Systematisches zu den Konzilien’ 37. Schmale
here notes as well the councils designated officially, that is, by the popes
themselves, as ‘concilia generalia’: Reims (1119), Lateran I (1123), Reims
(1131), Pisa (1135), Lateran II (1139), Reims (1148), and Lateran III (1179);
that designation is not used for Toulouse (1119), Clermont (1130), and Tours
(1163). He also explains that the presence of Italian bishops at transmontane
general councils was rare, but, at the councils in
 Rupert of Deutz, Chronicon S. Laurentii Leodiensis, MGH SS 8.276: ‘Acceptis episcopus mandatis, diem statuit synodi generalis, ut ubicumque sit ille [Wolbodo] veniat, audiendus canonice, si quid iustae querelae habuerit’.
 ‘Acta sunt haec Tulli in synodo generali, in majori Ecclesia S. protomartyris Stephani, anno ab Incarnatione Domini 1111, ordinationis vero nostrae indictione IV, epacta IX, concurrente VI, imperante Henrico IV, regnante Domino nostro Jesu Christo feliciter. Amen.’ (PL 166.850D-851A)
 The first canon is Pan. 4.14 (PL 161.1185B-C) and Decr. 5.153 (PL 161.375A-B). The rubric Ivo provides reads, ‘Quod auctoritas generalium conciliorum congregandorum apostolicae sedi privata potestate conmissa sit’. The second canon is Decr. 4.239 (PL 161.315D-316A). Ivo’s rubric reads, ‘Quod particularis synodus ad generalem synodum iudicandam congregari non possit. Pelagius Valeriano patricio inter caetera’. A hierarchy is being set up in good Augustinian fashion in which the lower cannot judge the higher. The ‘synodus generalis’ thus has supreme status, and here what seems to be in mind, given the context, are the ecumenical councils of the early Church.
 ‘Quid autem serui ecclesiarum (quo nomine etiam monasterii seruos significari intelligimus) ad sacrae religionis propositum debeant assumi, auctoritate beati Gregorii probatur, qui generali sinodo residens dixit’ (Friedberg 214).
 ‘Nunc autem sicut electio summi pontificis non a Cardinalibus tantum, immo etiam ab aliis religiosis clericis auctoritate Nicolai Papae est facienda, ita et episcoporum electio non a canonicis tantum, sed etiam ab aliis religiosis clericis, sicut in generali sinodo Innocentii Papae Romae habita constitutum est’ (Friedberg 247).
 ‘Unde Siluester papa presidens in generali sinodo dixit’ (Friedberg 349).
 ‘Porro Siluester papa in generali sinodo residens dixit econtra’ (Friedberg 466).
 ‘Idem [Gregorius] generali Sinodo presidens dixit’ (Friedberg 502).
 ‘Item Gregorius VII. in generali Sinodo residens dixit’ (Friedberg 804).
 Friedberg’s note on the source of the canon reads, ‘Haec desumpta sunt ex decerptionibus ex decretis S. Siluestri P. ap. Pseudoisidorum ap. Hinschius p. 451’. As far as earlier canonical collections, the canon appeared in Anselm of Lucca’s collection (7.23) and Polycarpus (2.31.4) and nine other collections, including the Collection in 74 Titles. Ten of the eleven refer to a general synod. Many also label the canon as cap. 9.
 Gratian actually uses different terminology when referring to the early ecumenical councils. He calls them ‘concilia generalia’ (D.15 c.1 [twice: rubric and canon] and D.17 d.a.c.1), while the canons he uses refers to them predominantly as ‘synodi universales’ (D.16 cc.6, 7 [twice], 9 [twice], D.17 c.4, D.63 c.2 [twice], D.100 c.4, C.1 q.7 c.4, C.4 q.1 c.2, C.12 q.2 c.13 [four times], C.21 q.2 c.3, C.23 q.5 c.43).
 The quotation from Isidore’s Etymologies in D.15 c.1 §3 shows that, in Gratian’s mind, the terms ‘synodus’ and ‘concilium’, while having different origins, merely highlight two different qualities of one and the same entity, the former emphasizing the convening of many as one, and the latter emphasizing the common purpose shared by all in attendance.
 DD.15-17 focus on general councils and D.18 on provincial ones.
 D.18 cc.2-4 specify the twice-yearly episcopal meetings. The first of the canons draws from Leo I’s letter to Anastasius, bishop of Thessalina, the second from the Council of Nicaea (canon 5, which specifies Lent and the autumn as the appropriate times for the councils), and the third from the Council of Antioch (canon 20). Canons 5-7 then discuss the necessity of attending these councils on the part of the bishops.
 D.18 d.a.c.1: ‘Episcoporum igitur concilia, ut ex premissis apparet, sunt inualida ad diffiniendum et constituendum, non autem ad corrigendum. Sunt enim necessaria episcoporum concilia ad exortationem et correctionem, que etsi non habent uim constituendi, habent tamen auctoritatem imponendi et indicendi, quod alias statutum est et generaliter seu specialiter obseruari preceptum’. English translations for texts from DD.15-18 come from Gratian, The Treatise on Laws (Decretum DD. 1-20), trans. A. Thompson, with the Ordinary Gloss, trans. J. Gordley (Studies in Medieval and Early Modern Canon Law 2; Washington DC 1993).
 The final canon of the distinction, c.17, makes clear the declarative obligations of the bishops, i.e. their duty to ‘inform his churches of what has been established in councils’ (‘Singuli uero episcoporum suis ecclesiis notificare studeant, que in conciliis statuuntur’), as the rubric says.
 When I say ‘legislative’, I of course do not intend to impose on the early church or on Gratian’s view the modern, governmental function in an anachronistic way. I merely intend to distinguish the functions of general and provincial councils in Gratian’s mind. General councils enact; they produce canons which protect, not change or create, the faith of the church. Provincial councils make sure such enactments and canons are implemented and punish those who do not abide by these rules. D.16 clearly lays out lists of general councils and when the major ones (i.e. the ecumenical councils of the early church) were held.
 D.17 d.a.c1 (Friedberg 50): ‘Auctoritas uero congregandorum conciliorum penes apostolicam sedem est’.
 D.17 c.2 (Friedberg 51): ‘…canonibus precipientibus, sine eius auctoritate concilia fieri non debere. Nec ullum ratum est, aut erit unquam concilium, quod fultum fuerit auctoritate eius’. D.17 c.5 (Friedberg 52): ‘Quapropter, ut iam dictum est, recte non concilium, sed uestrum conuenticulum uel conciliabulum cassatur, et quicquid in eo actum est, irritum habetur et uacuum’.
D.16 cc.5-7 (Friedberg 42-44). The rubric for the c.5 reads, ‘The Sixth Synod
is confirmed by the authority of
 Schmale, ‘Systematisches zu den Konzilien’ 38.
 The Papacy, 1973-1198: Continuity and
 R. Somerville, ‘The Council of
Somerville, ‘Council of
Ibid., 104. In the one case (
 Ibid., 109.
 On the times of the year at which popes of the reform era held synods, see Gresser, Synoden und Konzilien 494-95. On the politics surrounding the elections of Innocent II and Anacletus II, see M. Stroll, The Jewish Pope: Politics and Ideology in the Papal Schism of 1130 (Brill’s Studies in Intellectual History 8; Leiden and New York 1987) and E. Mühlbacher, Die streitige Papstwahl des Jahres 1130 (Aalen 1966).
 Gresser has a very useful table of all the synods from 1049 to 1123 at the end of his book; see Synoden und Konzilien 587-90.
 Robinson, Papacy 448.
 R. L. Benson, The
Bishop-Elect: A Study in Medieval Ecclesiastical Office (
The large retinue accompanying both Lothar and Innocent, which included many
ecclesiastical figures of substantial rank, would have negated the need for
invitations or summons to a council and would explain why such documents do not
exist. It is also possible that Innocent II did not intend to hold a council per
se while at
 MGH Constitutiones 1.167. Emphasis mine.
 Innocentii II Papae Vita triplex, Bernardus Guido, Prima vita auctore Bernardo Guidone (PL 179.28B-C).
‘Ingredientem itaque in manu valida Lotarium papa Innocentius cum cardinalibus et episcopis et universo clero
suo sollempniter excepit, eumque imperatorem cum omnium qui aderant exultatione
solempniter consecravit. Coronatus autem imperator ad honorem imperii et ad
firmamentum foederis, quod cum papa pepigerat, investituras episcopatuum,
libertatem videlicet ecclesiarum sibi a domno papa concedi minus consulte
postulavit. Ad cuius petitionem cum inclinatus domni papae videretur assensus,
 Benson, Bishop-Elect 257-62 and Robinson, Papacy 448-49.
 MGH Constitutiones 1.169-70; JL 7633.
 MGH Constitutiones 1.168; JL 7632.
 Gresser, Synoden und Konzilien 335-36.
 Ibid. 338. The relevant document is JL 5879.
 Ibid. 340-41.
 Ibid. 345-46.
 Ibid. 575: ‘Für die Auswahl der zu behandelnden Synoden in dieser Darstellung war die Definition vorgegeben, daß es sich um Versammlungen von Bischöfen (Plural!) handeln mußte, die in irgendeiner Form zu kirchlichen Fragen Stellung nehmen, ganz gleich, ob dies in schrift-licher Form einen Niederschlag in den Quellen gefunden hat oder nicht’.
 Ibid. 572.
 Ibid. 468.
 Sg p. 23a: ‘Nunc uidendum a quibus sunt eligendi et consecrandi’.
 D.63 c.7 (Friedberg 237): (rubric) ‘Irrita sit electio episcopi aut presbiteri a principibus facta. (inscription) Item ex secunda actione VI. sinodi CCCL. Episcoporum, [c. 3.] Omnis electio episcopi, uel presbiteri, aut diaconi a principibus facta irrita maneat secundum regulam, que dicit: “Si quis episcopus, secularibus potestatibus usus, ecclesias per ipsas obtinuerit, deponatur, et segregetur omnesque, qui illi communicant”.’ The canon appears the same in Sg, although the rubric and inscription are both in red ink and their order is switched (Sg 23a-b).
Many thanks to
 ‘Quemadmodum juris naturalis est alterum non laedere, ita nimirum nostri officii laesum adjuvare’. (PL179.182B) The letter is JL 7625.
 ‘Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere’.
 The letter (no. 137) ends with the note that it was written ‘per manum Almerici S. R. E. diac. card. et cancellarii’. (PL 179.181A)
 Robinson, Papacy 48, 215.
 D.1 pr.: ‘Humanum genus duobus regitur, naturali uidelicet iure et moribus’.
 Dig. 1.1.9.
 ‘Ius naturae est, quod in lege et euangelio continetur, quo quisque iubetur alii facere, quod sibi uult fieri, et prohibetur alii inferre, quod sibi nolit fieri. Unde Christus in euangelio: “Omnia quecunque uultis ut faciant uobis homines, et uos eadem facite illis. Haec est enim lex et prophetae”.’ (D.1 pr.)
 See, for example, C.22 q.5 d.p.c.1, (in Sg and Fd), which deals with trickery in oaths, whether on the part of the oath-taker or the recipient of the oath. He writes, ‘Sed sicut aliud est callida arte uerborum iurare, aliud simpliciter intentionem suam iurando enunciare, sic aliud est simplici intentione iuramentum factum recipere, et aliud in recipiendo calliditate uti, quia, sicut quisquam apud Deum non ualet aliquem ledere, sic nec preter eius intentionem ualet quis alicui subuenire’. That Gratian is familiar with the basic Roman law principle that nothing can be decreed or allowed which would harm another is shown in C.25 q.1 d.p.c.16 (in Fd), in which he quotes a law of Theodosius and Valentinian in the context of a discussion of the right of the Roman church to bestow privileges. Note his incorporation of the concepts of equity and justice, which, as a Christian, he would associate with God: ‘§. 4. Valet ergo, ut ex premissis colligitur, sancta Romana ecclesia quoslibet suis priuilegiis munire, et extra generalia decreta quedam speciali beneficio indulgere, considerata tamen rationis equitate, ut que mater iusticiae est in nullo ab ea dissentire inueniatur, ut priuilegia uidelicet, que ob religionis, uel necessitatis, uel exhibiti obsequii gratiam conceduntur, neminem releuando ita diuitem faciant, ut, multorum detrimenta non circumspiciendo, in paupertatis miseriam nonnullos deiciant; illud Apostoli ad memoriam reuocantes, quod ad Chorinthios scribens ait: “Non enim uolumus, ut aliis sit remissio, uobis autem tribulatio.” Cui sacra lex principum concordans ait: “Rescripta contra ius elicita ab omnibus iudicibus precipimus refutari, nisi forte aliquid est, quod non ledat alium et prosit petenti, uel crimen supplicantibus indulgeat”.’ The mention of equity is important, for it was associated in the minds of Roman jurists with natural law. The Roman jurist Paul says, ‘The term “ius” can be used in several ways. In one way “ius” means what is always equitable and good, as “Ius naturale” (Ius pluribus modis dicitur: uno modo, cum id quod semper aequum ac bonum est ius dicitur, ut est ius naturale).’ This text comprises Dig. 1.1.11 and immediately follows Ulpian’s three-fold description of the principles of ius.
 PL 22.239-240: ‘Lex naturalis hoc praecipit: ut quod ab aliis desideramus, hoc aliis faciamus’.
 PL 118.536: ‘“Quaecumque vultis ut faciunt vobis homines, et vos eadem facite illis’. Ista est lex naturalis, quae in duobus consistit praeceptis, et in his duabus sententiis tota lex pendet et prophetae. Et hoc est unum quod tibi dicitur: “Quaecumque vultis ut faciunt vobis hominess” et aliud est quod alibi dicitur “Quod tibi non vis fieri, alii ne feceris”.’
Rupert of Deutz,
 Hugh of St. Victor, De sacramentis 1.7; PL 176.347: ‘Sola illa igitur quae sic se habent ut nunquam licite fieri possint, lex naturalis prohibuit; illa vero quae nunquam licite possunt praetermitti, sola praecepit, media omnia ad utrumlibet relinquens. De prohibendis unum praeceptum in corde hominis scripsit. Quod tibi non vis fieri. alii non feceris (Tob. IV). De praecipiendis similiter, unum: Quaecunque vultis ut vobis faciant homines, et vos similiter facite illis (Matth. VII); ut videlicet homo ex sui consideratione disceret qualem se erga proximum exhibere deberet’.
 According to her divisions, ‘causa prima’ is one of the ‘causae’ in the fifth of six clusters which Gratian composed in the course of his teaching. Her theory is that Gratian’s work developed in a series of clusters (groups of several ‘causae’) as is made evident from the usage of rubrics in the various ‘causae’ in Sg. The order of the ‘causae’ in Sg do not testify to the order of composition (she believes Gratian later re-arranged his work), but the apparently random use of rubrics in them does. See her essay in the present volume. The tables at the end of the essay are particularly useful.
 Chronica Roberti de Torigneio, ed. Richard Howlett, RS 82 4.118: ‘Gratianus, episcopus Clusinus, coadunavit decreta valde utilia ex decretis, canonibus, doctoribus, legibus Romanis, sufficientia ad omnes ecclesiasticas causas decidendas, quae frequentantur in curia Romana et in aliis curiis ecclesiasticis. Haec postmodum abbreviavit magister Omnebonum, episcopus Veronensis, qui fuerat ejus discipulus’.
 J. T. Noonan, Jr., ‘Gratian Slept Here: The Changing Identity of the Father of the Systematic Study of Canon Law’, Traditio 35 (1979) 153-54.
 The description of Gratian’s work reads as follows: ‘At that time, Master Gratian compiled in one book canons and decrees which had been dispersed in various books, and, joining to them the authorities of the holy fathers according to fitting opinions, he very sensibly divided up his work.’ (‘Huius temporibus magister Gratianus canones et decreta, que variis libris erant dispersa, in unum opus compilavit adiungensque eis interdum auctoritates sanctorum patrum secundum convenientes sententias opus suum satis rationabiliter distinxit’.) (Burchardi Praepositi Urspergensis Chronicon, MGH SS rer. Germ. 16.15.33-37)