August 27, 2001

History of Canon Law

Ken Pennington

Canon Law 701

First Class


Homework: Read the Canons of Nicea – handout


August 29, 2001

Ken Pennington


Ken is looking for a dialectic exchange in this class; especially because of our wide variety of perspectives that each of us bring to this class.


Birth of a Legal System

There is no other legal system in which we can see its birth.  Which raises questions of where does it comes from, how do human beings think about law?  Today we have a very positivistic view of law.  These are extraordinary questions: it does not matter whether this is religious or civil law.  Religiously, Jesus when he walked on the earth, he reacted to the laws of the Jewish tradition as well as his followers. They tried to shape that law for future generations and their own working within the system of rules that they find themselves.


The Jurisprudence and Vocabulary of Law


Vocabulary of Law: normal vocabulary of law you will not find you will not find in early Christian Church sources.  The Roman were great builders and lawyers and they created an extraordinary sophisticated legal system during the time of Jesus’ birth, only to become more sophisticated. 


IUS (Iuris) –not found in early Roman periods of writing

=legal system of peoples  (equal to our word of “law”)                      ie civil law, Soviet law

=individual statute (Roman Law had two words Ius and Lex, but they did not distinquish clearly; they used these two words interchangably)



LEX (legis) (never used to connote the entire legal system)



Recht               -the notion of right and law have been lost of recent times


Ius: Legal system individual law, and ?


Rights are thought of in line with responsibility. The philosophical as well as legal definition of right is called the “subjective right.” An “objective right” is granted to you by the institution or society in which you are a part of.  Implications of this notion of these two conceptions:


Today our rights come from: Constitution, Legislature, et al.

Are there rights that cannot be taken away? In the light of “inalienable rights” we only have the rights that are granted by the state and any one of them may be taken away at any time.


Up until the 18th century it was an inalienable right to travel anywhere you wanted to go; and yet what we have done as a society, we have conceded this right.  However, we will be studying the time period in this class in which our rights were “inalienable.” 


We live in an age where the source of law (even how we think of it: ie Random’s definition).



Definition of Law:


The Random House Webster’s College Dictionary defines law as “the principles and regulations established by a government.” 


Black’s Law Dictionary: that which is laid down, ordained or established.  Law is a body of rules of action or conduct prescribed by controlling authority and having binding legal force. 

=Custom, written and unwritten. (common usages of the nation’s state of positive law by groups of people/nations).


 Is custom positive law?  Is it part of “ius positivum?”  It might be considered when it is used “X” number of times by society or when it becomes written.  The transition in Canon Law and all over Europe from the 4th-12th centuries is a transformation of Europe from a society (after the fall of the Roman Empire) of customary law and largely unwritten. 


In our legal system there is little room for custom in our legal system.  It has almost disappeared in our present day law.  This has only happened in a century in a half; that state has taken the law unto itself, it has become the source of all laws. 


Custom       mos/consuetudo (Roman Law terms: mos=manners or morals

       consuetudo=more formal/legal aspects)


How many times does something have to happen before it becomes custom?


Personal comment: Jesus did not live in a society in which “law” came from the government.  What about the Roman government; the census, paying taxes “give to Caesar what is Caesar’s”, etc.


Legislation: statutes, constitutions, plebiscites, laws, ordinances.


[Court decisions: stare decisis: to stand on things that have been decided]


Transcendental legal systems: Ius gentium, ius naturale (which also goes back to the ancient world; this mean “natural law” either one single part of the legal system or a “natural right” which canonically was used a subjective human right that inhered in each individual that no state can take away from them), religious law, moral and ethical norms (are not longer part of national or international law any longer). 


Positive law (ius positivum), John Austin (legal positivism), a canon lawyer who dubbed this term.  He defined how law should function in modern society.  Law of the state should come from state institutions.  Human legislative law should be the most important law that transcend all other laws. With the exception of Canada, there is not a legal system that has not adopted the principles of legal positivism.  That state exercises “Austinian sovereignty” is used to describe these legal institutions. (ie “thou shall not kill” is a transcendental law that has become a part of our legal system).


In our system of positive law we have squeezed out custom as well as transcendental norms (up until 1850 these were very important in every legal system inclusive of canon law). However, in Canon Law, these transcendental norms are still part of this legal system of the Church.  


The main question that should be circling your mind is: Where does law come from? We do not think in serious ways about where law originates from.  With Canon Law you are witnessing the birth of a legal system. 


September 10, 2001


Law in the Early Church

The early Christian Community is faced with the question of: what is custom? They realized that they have many customs, it was not uniform throughout the Mediterranean area.  Inchoate of every legal system is the inclusion of customs.  Councils are the first stages of such a legal system.  This rich tradition is a tradition that follows right up until the 21st century.  It represents a legislative body that should be empowered that should create law within a Christian community.  You also have very important Christian thinkers (as well as in the secular system of law) Saint Augustine, Tertulian, et. al. who had an influence on theology as well as law. 


Custom=from the people and NOT imposed from without; it is very local and comes from the community.  It is a fundamental notion that lasts until the end of the 18th century. When Thomas Jefferson was drafted the Constitution, this notì¥ÁM          

"F[1]€W€W›æÿÿÿÿÿÿlŒŒŒŒŒŒŒ ^H^H^H8–H\ì¥ÁM        
"F[1]€W€W›æÿÿÿÿÿÿlŒŒŒŒŒŒŒ ^H^H^H8–H\exity of a new community. 


2 Corinthians 3:6-7: Here there is a great tension at the birth of a new legal system. “All our ability comes from God, since it is he who enabled us to promulgate his new law to men.  It is spiritual, not a written law; the written inflicts death, whereas the spiritual law brings life…..” His new law to men…..”  This is the birth of Canon Law and the Christian legal tradition.  “It is spiritual not a written law.  The written law inflicts death and the spiritual law brings life.” 


What was being said was that the secular law (Roman Law) was not being thrown out!  And thus, they much of its terminology in the Canons of the Council of Nicea. (i.e. “custom” is used as a Roman lawyer would have used the same term). 


“The written law inflicts death whereas the spiritual law brings life.”  Saint Paul was talking about what our proverb states: “we follow the spirit of the law and NOT the letter of the law.”  This rigid application of the law brings about death. This paradox is a constant struggle between the rule of law and the adherence to that law. 


The early tradition or radical seed that was evident during this period of writing: “where the Lord’s spirit is there is freedom.”  Up until 300 A.D. there was not a written canonical tradition (there was not a written universal text that was accepted all over the Mediterranean). One interpretation is that law comes from God.  Our conscience is also another great source of tension in our legal system. “Freedom” libertas: can certainly find it defense in this text.  What is so wonderfully radical about the New Testament is just that:  extraordinary defense of conscience. 


There seems to be a reluctance to create a written law for the Christian communities (as well as in the actual life of Jesus Himself).


In this early Christian Community which was searching for the right “mos” or “consuetudo”  for a just, moral law; one in which the community where there is justice which respects the morals and the precept so the new religion they are attempting to live according to live. 


He is not saying “spirit” in the sense of having to be religious, but rather that law has to incorporate the spirit of God (morality, truth, liberty, etc.). Where that law is just and spiritual there is found liberty.  This text became the point of radical implications (especially later in the 12th century and following by canonist) that positive law cannot be imposed (even the Church) the man/woman who was just and filled with the Holy Spirit. There is a tradition (Augustine, Jerome) right at the birth of Canon Law… that the Law has to be filled with “spirit of the Lord” the spirit of justice, truth, righteousness. 


Why Councils? “from the very early Church Christian communities gathered together to discuss problems.  By mid-second century this practice had been institutionalized.  These meetings were called councils or synods.  There is not much information about synods before the fourth century” (webpage).


“Canon” means rule in Greek.  Has no meaning in Roman/Geek Law.  In Greek “canon” was a stick or ruler.  It was simply a very non-legal term that meant a measurement of (length, music, etc.) and NOT a rule in our sense of the term.  Canon often times gets translated as “regula” incorrectly. The Roman terminology is constitutions, decrees, rescripts, statutes, law, et. al. In the very beginning did not use such Roman legal terminology with regard to the rules that were being laid down.


After the Emperor Constantine began the process of tolerating then adopting Christianity, councils flourished.  The Council of Nicea is the first Ecumenical (Universal) council.  300-325 there is a transformation that occurs whereas Christianity becomes part of an elitist group.


Constantine and the Council of Nicea (325)

The first four ecumenical councils Nicea (325), Constantinople I (381) Ephesus (431) and Chalcedon (451) were given a special place in the tradition of the Church. Pope Gregory the Great(590-604) compared the first four Councils to the four Gospels.


It took a long time for early Christians to understand the importance of these early councils as the fundamental legislative bodies. 


Constantine changed the center of the Roman world to an eponymous city of Constantinople.  We call this empire “Byzantine” because this new city Byzantium in which he moved the center of Roman Imperial Rule to Christianity.  When Constantine called for a Church Council, when there were about 300 bishops at Nicea, almost all of which was Greek.  The Bishop of Rome did not attend nor did many Latin bishops.  This Council was presided over by Constantine in the Greek language and NOT IN LATIN.  It was not until 500 A.D. that there was a standard Latin translation of the Greek proceedings of the Council of Nicea. This affects the reception of the law:


Remember: Other legal systems are lost in the customary unwritten past that cannot be recovered. Unlike Canon Law which we can see from its inception.

The early canons of Nicea were particularly interested in resolving: the Arian controversy to start, liturgical norms, issue of clergy and bishops (who were told to stay within their own diocese, we are beginning to see very tentatively the emergence of “jurisdiction.”)  It was far from being complete.  In the early Church, categories of clergy were not distinct or hierarchically defined definitively.


N.B. This is not a comprehensive set of laws governing even a large number of legal issues in the Church. It covers very small and very specific issues within the Church that were considered very important and widespread and these canons were needed to regulate these issues.  It is far from a Universal law of the Church.  Probably is that Canon Law at this time was basically within the community as unwritten custom.  This was not new law, but they were writing down what were the customary practices of the time. 


“The letter of the synod in Nicea to the Egyptians” begs the question why a general letter was not sent out announcing these canons.  We can speculate that they did not think of themselves as laying down universal law.  By this letter sent to the Christians in Alexandria because of the dogmatic problems (i.e. Arian heresy).


If we look at these first legislative canons of the Council of Nicea (which is not like anything that appears later in history or the canonical tradition) and we were still dealing with the Church who is uncomfortable as a legal institution but rather comfortable with dealing with custom.


Didache (Doctrine of the Twelve Apostles) and other collections of moral precepts that circulated before ca. 300 A.D.


Like some early canonists, Ken believes that you should be able to travel unfettered by any king, state or statute.


What is ius gentium and ius naturale?

What is positive law?


The Catholic Church as well as Canon Law is the place of where the ius naturale for the individual is found in its laws, its theology and sociology. 


September 12, 2001

Day after the bombing of World Trades Center

& Pentagon



Pope Paul II preached against Islam

September 17, 2001


Different ideas of the Church: founded by Jesus Christ, founded on the rock of Peter and has been the Church ever since earliest times, this thing we call “ecclesia” unchanging and eternal institution. 


However, from a historian’s perspective, the Church has been an ever changing structure. The Church has been many different Churches.  The Church has changed dramatically especially structurally.  The primitive Church is different from that of Charlemagne that of 12-14th centuries, the Council of Trent.  Also, the office of bishop has changed dramatically from the early church to present day.  Thus, the Church has both evolved and changed. The major question is: should the Church change? This very idea could be a heretical idea (i.e. the Office of the Pope, the powers and the jurisdiction and the prerogatives of this office, the argument could be made that some of these powers should be given up? From former teaching, it was considered “heresy” to question such matters as the Pope’s jurisdiction).  There have been many changes in the history of the Church that have been evident; the papacy, the role of the bishop, et. al.


You must remember that the first political institution in Western Europe. The constitution of the Church has had great influence on civil governments (and vice versa).


Given the example of American Democracy, it is not the “end all and be all” of the notion of governing (women’s vote, African American’s rights, etc. who were not franchised) it is still evolving.


Are there are certain structures of the Church here on earth that are non-negotiable?

As we can see in the Canons of Nicea, we can see the working out of the hierarchical structure (i.e. bishops not being allowed to leave their diocese, deacons not upstaging the priest of bishop in seating (18), etc.).

The theology of priests and deacons being married to their church was not developed as of yet.  However, they were closely linked to the community.


The ecclesiology (constitutional structure) during the time of the Council of Nicea?  They were a series of communities, where the bonds are more horizontal than vertical. The Bishop of Rome has a special place of authority in the place of the Church, in matters of doctrine.….. it may be a type of secular parliament. Again, we see that secular governments copy from the early Church to model their mode of governing.  It is difficult to describe this early Church


If the kingdom of God is monarchical then why do we not model our own governing body in the same vein? 


The Office of the Roman Pontiff:


Papal Decretal of Pope Siricius (385) deals with specific problems and it is in answer to the Bishop of Tarragona (modern day Spain).  This is significant because a local bishop is looking toward the Papacy for direction with regard to certain questions.  This first papal decretal signifies that the horizontal bonds are beginning to become much more vertical.  Not only doctrinal primacy (which was established before 385; Rome was looked to the keeper of this primacy) but also matters of ecclesiastical discipline over the clergy and lay people as well.


What we have from the point on is the very gradual emergence of the pope’s jurisdictional authority (power and authority over other Churches outside of Rome). It is not until after 1150 do we have the full exercise (maturation) of papal jurisdictional power/prerogative and authority over the Church. It took a long time of those very strong horizontal bonds of the early Christian community.




Decretal: a response, a ruling issue on a point of doctrine or ecclesiastical matter, addressed to a particular bishop of to the entire Church.  The first 1,000 years of the Papacy, there were very few decretals issued to the entire Church. As the Papacy developed, decretals became either an interlocutory (appeal to higher level of court) or answering appeals from local churches from all over Christendom. 


N.B. (from the webpage) Decretal were collected into collections and placed on a equal footing with Conciliar canons ca. 500….


September 19, 2001


Up until the 11th century, Canon Law was not a separate entity from the Law of the Romans. Up until this point there was no jurisprudence, there was merely a collection of texts (some of which are completed forged) without any commentary on such.  Secular law and Canon Law were very much intermingled.


Justinian: ordered the codification of Roman law.  (Today common law is not completely codified unlike the European system called the “civil law”).  Civil law draws is impetus of codification from Roman Law.  This is very misleading because this only began around 532-534 which is the first attempt.  Because the Roman law system was more like the Common law system, there were not codes. 


It was not until Justinian do we find the first comprehensive (tries to cover every single aspect of the legal system; there is nothing that they left out in which they took the massive literature and compiled it into his code.  This was a historical sadness because these earlier laws were lost since Justinian’s code replaced all former laws) code that we have in world history.


Justinian’s codification:



Canon Law really becomes interesting when there is jurisprudence and this does not arrive until the 12th century with Gratian.


Paradoxical ramifications are that this is the first codification (which was in Latin).  This was amazing was that the language of the lawyer and of the times was Greek.  Justinian however, created this large codification in Latin.  The result of this was that almost immediately this work was not used by most people.  Nearly 500 years later it was discovered again and was taught in law schools in Italy.  This codification was the first law books in the 11th century.  Theology and philosophy was the “bag” for the Greeks. It was part of their culture and their church whereas for the Romans, their bag was most certainly the law.


After Justinian promulgated this codification, he continued to legislate and his novellae were issued in


Justianian’s Codex Book I:

there are no titles found in the digests as they are here.


Devoted to structure of the Church and regulation of doctrine: Canon Law

Title 1: The magnificent Trinity

Title 2: The Holy Church: property and privileges

Title 3: Bishops and cleric

Title 4: Episcopal court

Title 5: Heretics


Devoted to…..

Title 6: Sacrament of Baptism to be repeated or not

Title 7: Apostates

Title 8: No one be permitted the image of the Savior Christ in stone or marble either in sculptor or painting

Title 9: Jews and star worshippers

Title 10: No pagar or Jew could possess a circumcised a Christian servant

Title 11: Pagan sacrifices

Title 12: Those who flee to churches for refuge; import of sanctuary

Title 13: Those who are slaves and made free in the Church (deacons, priests or bishops): Emancipation


Devoted to the statutory/civil law

Title 14: Laws and constitutions of the prince and their edicts


We note here that the Church’s law is commingled with the civil law.  Society (both churchman and secular princes) is thought of as the secular ruler as the supreme ruler and it is within his power to legislate in matters concerning the state as well as the Church up until the 11th century. It is in this century that the liberty of the Church sees it own and sole role in Church legislation.  The early church did not fee that is was being oppressed by the civil authority, but it was considered the “proper order” of the relationship between the Church and the state.


The Digest of Justinian:

These titles are not found in the Digest of Justinian.  There is however, one exception to this, because the subject of marriage was still regulated by Roman Law.


This is 534 A.D., nearly two centuries after the empire has become Christian; the marriage law within the empire is very hard to find a Christian cored or any reflection of the Christian theological doctrine in these laws.  The real question is why not?


If a court convicts a man’s wife, the husband may repudiate (divorce) his wife and is able to marry again.  This is a great violation of today’s law but also a violation of Christian thought even of this time period. Here again, we realize that legal systems change very slowly.  Customs, morays change ever so slowly.


September 24, 2001


Marriage in Roman Law (an integral part of today’s Canon Law)


Lex Julia (Julian family of Julius Caesar: 1st century emperor; Augustus’ daughter: tried to legislate morality)


Initially you will notice is that adultery is in the category of civil law.  Secondly, you will learn that if a male commits adultery is it not a crime.


Slaves are incorporated into the law because household slaves are part of the household.  Slavery itself is part of the criminality.  The home was the social context for woman, yet again another violation of their rights.  If a woman was committing adultery, most times it was in her own household. Thus, slaves were very much aware of what was going on in this house (also it must be noted that at this time, slaves were allowed to own property and could not be tortured).  Thus, adultery (ONLY by woman) was considered to be a serious crime. Here we are taught that you cannot gather evidence by torturing anyone, it was not a means by which evidence is gathered.


…..more texts from the digest…..


Accusation of adultery must get “rid of her” (extract from Novel 17)


It is the only part of Justian’s law of marriage that seems to have any balance in it at all. 


It was not until the 12th century did you see the beginnings of equality between men and women, at least in view of their canonical matrimonial circumstance.


In the scheme of governing there are two models of legislation within the society:


Both of these models are endemic to human freedom and usually the downfall and failure of a society.


Canon Law in Carolingian Europe

Charlemagne: a Frank from the Germanic tribe that ran over the western provinces of…… France comes directly from these Frankish people. He became the sole ruler in the later 8th century over his people.  He was an extraordinary leader (who probably killed his brother to attain his throne) and also used Christianity to spread his realm. He was determined to overthrow the Saxon tribes in this area.  He semi-succeeded in Christianizing the Saxons at the cost of the merely complete loss of these people.


On Christmas Day of 800, the Pope crowned Charlemagne in Rome as the Roman Emperor (from 800-1806: someone held the title of “Emperor of the Romans”).  Also noteworthy are his military successes and his dominions in the Roman territories. From this point on, European rulers have conceived themselves as the successor of Rome (not only of pagan Rome but Christian Rome as well).


N.B.  Canon Law is not only produced by councils and synods but collecting the ruling of secular rulers (i.e. Justinian, Charlemagne, et. al).


e.g. of legislation in religious matters are called capitularies (it was like a canon; an order or a rule; dealt with secular matters as well as ecclesiastical matters as well).


Capitulary for Saxony 775-790

#8: concealment of the unbaptized: punished by death

#10: conspiracy with the pagans; joined in oppositions to the Christians; punishable by death.


Again, here we see how Charlemagne used Christianity as a vehicle to achieve his goal.  Although it was not part of Christian theological doctrine (coerced baptism) but Charlemagne was head of both the state and the Church. 


Charlemagne also believed that he was in charge of Canon Law (which included early decretals, early synods, et. al). Dionysiana a collection of Canon Law for Pope Hardian I (774). This particular collection of the norms of the Church becomes the most important collection of Canon Law over the next several centuries. 


September 26, 2001


Up until now, we have been dealing with a Church with no jurisprudence (commentary, exegesis)  up until the 12th century and then there is a explosion of works.  This tradition had an enormous influence on all European legal systems.   And you can trace the influence of this jurisprudence that is incorporated into the ius commune


Canon Law collection of the Carolingian collection: the paradigm of producing law is the same as the late production of law by the church (7-10th centuries).


End of 7th century to the beginning of the 12th century there is a huge hiatus: the calling of an Ecumenical Council (people from all over and today  we understand that the Pope calls this: both of these factors were not true in the first Ecumenical councils, first Nicaea was called by the emperor and most of the people were from the East). 


Because there was no Ecumenical Council’s called from the 8-12th century more local councils were held.  The fact that many many local council’s were held and the following conclusion can be made:


Ø      The Church is federated (not a centralized organization)

Ø      By this time Papal primacy is well established (chief repository/arbiter of Christian doctrine, liturgy and you can think of that same office as we see it today)

Ø      Canon Law and the means of canon law, Papal primacy had been established but the jurisdictional (governmental) side and the lack of Ecumenical Councils give credence to this statement.


From an ecclesiological point of view it had few choices: it could have become a church governed by synods and councils or it could have become a more monarchical, centralized model.  As it is reflected in the legal system, the establishment of the monarchical model began to increase, the couter-part of the Conciliar side also is growing. 


1054 the date of the Great Schism, the Papacy began to develop the jurisdictional and monarchical side of its office which can be seen in the canon law of the time. At this time the Greek Church removes itself from the papal authority and it is the same time the Papacy is beginning to develop its jurisdictional and monarchical side.


Papal Jurisdictional primary is found in the following (850 A.D.):


Preface of Pseudo-Isidore’s Decretals

Collection of canon law: in its outward appearance it resembled Dionysian; Conciliar canons as well as other papal letters (there were 60-80 letters that came from early popes). These papal letters came from a forgery.  And within these papal letters (from popes that we know very little about) of which there was none from Peter. 


We know that these letters were forged and put into the canonical jurisprudence and the essence of these letters was the primacy of papal and Episcopal power. At first they were considered to be genuine letters up until the 16th century with only minor doubts up until this point.  Protestantism used these forged letters to prove its argument that papal primacy was a creation of lies. And this controversy lasted 3 centuries. It was not until the 19th century that we had a split of Catholic and Protestantism thinkers: all Catholic scholars agreed that they were indeed forgeries. 


Furhmann, Orst Papal Letters and the Early Middle Ages


The Papacy did not have the legal documents to forcibly to put forth a doctrine of  papal authority in the church. 


Walter Olman, Canon law professor (medieval history) at Cambridge wrote prolifically what that the Church was inevitable to develop into the monarchical institute that it is today.  During his time of writing, both Catholic and Protestant thinkers accepted this theory, however, of late it is not so readily accepted. This theory was rejected by Brian Tierney (mentor or Ken Pennington).


Customary law is an oral tradition.  The difference between early non-canonical texts and the above-mentioned is that the former reflected an earlier oral tradition whereas there was no oral tradition of the 9th century on papal authority.


The only insight that we have into the minds of the writers of the Pseudo-Isidorian decretals: it was attributed to a 6th century Spanish cleric (Isidore of Seville: encyclopedistand and important figure during his time) it was a forgery in two sense: what it was inauthentic non-canonical letters as well as attributing it to Isidore (who later becomes Saint Isidore).


In the preface itself, it is noted that one must remember that there were several Latin translations of Greek text that were floating around in circulation. The text continues to attribute the text to Pope Clement, Anacletus, Evaristus and the rest of the pontiffs until Pope Silvester (Constantine giving to him the Papal states: another complete forgery of the 9th century where temporal power was granted to the Pope over all the west).


Great Reform of the Church (the true beginning of canonical jurisprudence) 

1050 Primacy of the Roman Church (it is exactly two centuries later that the Pseudo-Isidorian collections were accepted) Why?  No one knows!


The people wanted papal primacy and they realized that these texts provided the necessary documentation to support their claim of primacy after a long dismal history of the 9th and 10th centuries.






October 1, 2000


Reconvene 15th (same day the paper is due)


Normative texts up until this time in which there was no commentary on them, remembering that there was no analysis of them until the 12th century until Gratian brings them into a coherent collection.  From this period on we have a complex, rich and sophisticated compilation of Canon Law.


Many of the doctrines and ideas that you find in modern in Canon Law begin in the early 12th century or at least can be traced back to this period of time.



8-9th century provincial ecclesiastic synods: priests and clergy cannot bear arms: there were a number of different consuls who promulgated such “canons” and these “canons” were imbedded in canon law text.  Immediately in the 12th century when the jurist looked at this text, they immediately realized that it was problematic.  A priest who was in a dangerous place and when self-defense was a necessary option, if a priest did not have access to a “defensive weapon” then his wealth and dignity of the human person as well as the right of self-preservation (which was a jurisprudential norm as well as the worth of the human person) the commentary concluded that directly contradicted the normative texts that said “clergy cannot bear arms” but the jurisprudence developed a doctrine agreeing that it was a general norm but under these particular situations (as described above) in which self preservation was an
”absolute right” and therefore extend this right to priests as well.


The Church for the first time makes a claim that it is independent of secular power.  The paradigm of political power up until the 11th century all over the world was that the secular state controlled not only the state but the religious institutions as well.  This continues up until the 11th century.  During this time period the notion that the Christian Church was badly in need to reform (from head to bottom which had fallen to abysmal levels).


One specific example was the problem of married priests whose male children had at this time the right not only to inherit the patrimony of the father but his office and duties as well (which was a paid office during this time period).  Thus, this created a serious problem whereas the sons of priests were seen to automatically inherit this vocation whether you were prepared or geared for this position.  The first seeds of reform were found not among the clergy but among the lay princely classes.


Another problem, the lay princes classes used the Church as an institution to provide for their children as well.  Churches would be built on specific land and the landowner would claim patronage which included the right to give a particular church to that church.  It was the “lord’s” power or proprietary right to assign this priest to “his” church.


Investiture: the right of lay lords to appoint abbots, bishops and even the pope (as seen by the German emperor coming to Rome and appointing a new pope; just before 1050 this happened several times). Henry III was the emperor who was a pious Christian and saw these things going on and tried to reform the church from head to bottom.  What he reflected was an old order of the relationship between Church and state.   Eventually what happen is that Rome itself begins to reform itself and this reform can be easily seen in Canon Law. This systematic canonical collection was needed and coming soon.

The principals of reform:


Ø      Re-emphasis on papal primacy

Ø      General capaign against clerical simony

Ø      Opposition to clerical marriage

Ø      (another 25-30 years @1080 during the pontificate of Gregory VII) investiture of a cleric by a lay person is a very bad thing`


When you put all this together is becomes crystal clear is that you begin to get a consciousness within the reformers of the Church (which first began among the elite lay population and then into the Church itself) began to see the only way the Church could really be reformed in its head and members (anthropologically: head=Rome, members=rest of the church) meant that the Church needed its independence. 


For the first time in the history of the world we have the desire to make Church free from the lay powers in society.  Libertas eccelsia (freedom of the Church) which became the clarion call of this pope (Gregory VII) and many people during this time period. Much of our freedoms within society (even today) owes its foundation from this 11th century revolution within the Church. Which was picked up in the 12-15th century up until the modern world (as least in European societies that have the separation of church and state).


When you have society in secular society combined with ecclesiastical power of both (authority and power) you have a society which can be (as seen in history) intolerant and oppressive.  The perfect example today is the clerical dominated societies Iran, Afghanistan and other religious states in the Middle East. 


Further, again if you look at Germanic customary law, every single office (ecclesiastical or secular) which one could acquire through payment.  In the secular world that did not create problems, however it in the ecclesiastical world there was a doctrinal problem with this (called Simony after Simon Magnus) which became standard operating procedure in the 8-9th centuries.  A father would often provide his son an abbey or bishopric or priest by giving a financial transaction to procure.  Again there was another prohibition against this notion in the New Testament.


After about 1,000 years that Church was in serious trouble with married clergy; being uneducated (could not read or write because they were buying or inheriting their ecclesiastical offices) a married clergy and a clergy that was perceived as not fulfilling their role in the life of the Church.


Latin Church Schism (1054) and the Reform (1050-1080) Papal Electoral Decree (1059)


This reform movement emphasized the primacy of the pope in unprecedented ways.  And what this meant was that the popes began from the middle of the 11th century began to exercise jurisdictional authority (i.e. Leo IX: began to hold synods in France and Northern Italy and interrogated bishops as to how they received their offices; decrees against clerical marriage; first time he began to exercise real jurisdiction outside of Italy in a systematic way.  (Popes in the past occasionally tried to exercise their authority, however, this was the first time it was done in a systematic way). This had never happened before when the jurisprudence focused on the power of the pope.


1.)    Now you can understand why there was a great Schism in 1054, however in the entire context, the Greek Church was willing to acknowledge the primacy of the bishop of Rome (higher and more important) for the most part; but when it came down to Rome actually dictating to the Greeks as Rome began to do in the middle of the 11th century when papal primacy became more than more than a recognition than a spiritual primacy it was inevitable that the Schism would begin during the time of Papal primacy beginning to be a real issue within the entire church of Christendom.

2.)    Pope Nicholas II: explicitly stated that members of the Roman Church called Cardinal bishop (began in the murky early 11th century: that only they had the power and authority to elect the pope and that specifically the emperor or any other lay person had no authority in the selection of the Roman Pontiff: this too was inevitable as well in this historical context.)


What this also meant was that Canon Law begins to be a discipline which flourishes and takes on much greater importance in the structure and the life of the Church than it ever had before.  (cf. canonical collection of the 11th century: Buchard of Worms, Decretum: Collection of 74 Titles ca. 100)


Emphasis was placed on :


X       Papal primacy

X       Outlaw clerical marriage

X       Simony

X       And other reform issues mentioned above


Collection in 74 Titles:

The first chapters were forgeries taken from the Isidorian collections. One could easily make the conclusion that papal primacy was forged!  However, the flowering of papal primacy took place between 400-600.  The doctrines that you find within these 74 Titles and other Gregorian collections (even though forged) the doctrines were present and excerpted ideas and created forged documents pushing them back into the history of the Church.


Q. One might ask how did these later scholars (reformers of 11th century) have documentation of these earlier concepts and doctrine and if they had them in their possession why not use them as their basis?  Why did people like the Isidorian have not affect on the people?


A.  Because it was not an issue.  It was not important. But suddenly in the 11th century it became to be more of an important issue when the late 11th century the people needed a source for reform.  These scholars went back to the names with greater authority of an earlier pope.  Tracing the idea to papal primacy back to the second half of the first century 2nd century is a much more powerful argument that only tracing to the time of Pope Gregory.


Leviticus 17:8

If in your own community there is a case at issue which proves too complicated for you to decide, in a matter of bloodshed or of civil rights or of personal injury, you shall then go up to the place which the LORD, your God, chooses, to the levitical priests or to the judge who is in office at that time. They shall study the case and then hand down to you their decision. According to this decision that they give you in the place which the LORD chooses, you shall act, being careful to do exactly as they direct. You shall carry out the directions they give you and the verdict they pronounce for you, without turning aside to the right or to the left from the decision they hand down to you.



The appeal to religious authority (because God said it).  Why the Old Testament? 

The older the better?  Its Scripture which for these people we as powerful (as God’s Word and God’s plan).  The Old Testament as well as the New Testament are extraorindary important influences in which Canon Law develops.  This particular text place an important role in the notion of papal primacy. 


Again Melchideck (the first priest king, as well as Moses, Jesus, and the Pope) is used (Matthew, Luke, et. al.) used in canonistic jurisprudence about the papal office (jurisdictional rights and power of the office) and this is NOT one line of development.  It is not based on just one text or supposition. 


October 15, 2001


11th Century

Probably one of the most important century of the Western European experiences; in terms of reform (in the Church) which was terribly important.  Where and when did the Church pickup its characteristics that it possess today as an institution?  In large part it goes back to the 11th century (main the legal; rules and regulations that govern the Church). This can be looked at from a number of perspectives: the clergy: the canonical and structure of the Church (the way in which offices within the church were allotted; how bishops, abbots and priests were put into their positions and what this entailed.)


Anther effect was the papal centralization: this rubric of centralization, perhaps the most characteristics of the modern papacy, when did this constitutional begin?  The 11th century again.   Of course from this period to the 16th century this constitutional structure of the Roman Church developed fully into what we know as today.  By the end of 1600, there is very little that happens legally or historically that contributes to the structure of the Church as we have it today.


From the point of view of Canon Law; there were an enormous number of canonical collections compiled during the 2nd half of the 11th century and ends with Gratian’s Decretum (about the 1130’s).  There is enormous legal activity within the Church which is explained by papal centralization and all of these canonical collections begin for the first time, deal with the power and jurisdiction of the pope. No other legal documents up until this period dealt with this important issue.  This fact speaks directly to the legal structure of the Church (not only in Italy in Rome but all over the world as well). Bringing the church out of the Germanic (lay controlled) authority to an independent institution.



Gregory VII and the Gregorian Reform

The most important pope associated with this great movement of reform. Thus its eponymous title.  This pontificate was in the middle of the 11th century and certainly not all things were completed during his pontificate, however, much of this reform began during his reign.   He was a passionate, committed, dedicated pope and one of the few popes from 700-1600 who was made a saint (other popes of this period of times were noted for their bureaucratic skills, some of them were canon lawyers).


This juridication of the Church has created a tension between the canonists and the theologians with regard to this matter.  Why is there a tension between the law and theology? This is so because: the early Christian church is spiritual, communitarian church’s idea of the law is NOT our concept of what we think of as law.  They did not even eh want to think of it as law.  This tension between the spirit of the people and the “law” of the Church seem to be ad odds.  The tension of the strict interpretation of the law: justice, equity and how it should be applied to the Church. 


This tension also exists in secular society in secular law today.  Why are there so many lawyer jokes today?  Justice, fairness and democracy and the equal treatment of citizens are at the core of our political beliefs and the law often gets in the way of these beliefs. 


In high profile cases, we can see how the law does not seem to be just or equitable to all people or even look like justice at all.  Often times the legal system does not look just.  It is exactly this same tension of the rigidity and inflexibility of the law (with their principles; whether it be belief for the Church or political virtues which are typical of secular society).


If you look at the most delicate issues in society today, you can see this tension: abortion (we see that clash what one profoundly believes to be as a transcendental inflexible norm that should govern every human being and how the secular system works with that “reality.”)


It is interesting to note that for Northern European society (not the Eastern Churches) heretics were not burned or condemned until the 11th century.  There was a huge collection of theological and or canonical jurisprudence.  This the “dark ages” for learned education, there are no schools at this period of time (there are no canon lawyers at this time). 


ST’s comment:

The Christian faith was born in the womb of the Jewish faith… it had to grow into something new.. and necessarily had to be separated

Canon jurisprudence, likewise had to be born somewhere and was born in the secular womb and eventually had to be separated (316)


An additional tension is that the problem is that history unfortunately repeats itself…. Often times the new birth becomes as oppressive as the original birthplace. 


Q. When did the Latin Church begin to enforce in a juridical way; persecution of heresy? 

A. The 11th century. 

Q. When did they develop an institution to enforced doctrinal hedgemy (sp.) via inquisition? 

A. Beginning of the 13th century. 


Why was there widespread of the 11th century that the Church had to be reformed?  No historian can explain this perception that the Christian had to undergo a radical reform at the beginning of the 11th century: in monastic circles, courts of kings, Roman Curia and within the Church itself. 


Is there a difference between canon law and secular law?  In its application and thought processes.  What is the spirit of law?  What should it be? Such aspects of justice, equity and the like are issues that are born of Christian thought process, “transcendental” norms (if you will).


The reform of Gregory is the clarion call “libertas ecclesia” which people such as Thomas Becket used during his lifetime.


1059 Pope Nicholas II: decretal of how a pope is elected; and how the emperor or not other lay people could interfere.  This notion of non-lay involvement emerges this notion of “election.”  Up until this time it is at best, vague.  This constitutional structure lasts until roughly the middle of the 14th century.  Election by an electoral body, becomes the constitutional mode for selecting an office weather in a monastery, the Church or the pope himself.


The election of the pope by a juridically defined body of electors is still the means in which a pope is elected.  Between 1150-1350 the constitutional structure allowed this same procedure for all other offices within the Church. This was ultimately supplanted by the pope himself and the electoral bodies went by the wayside.


At first blush, this system sounds very democratic, the notion of election. It begins in 1059 of Pope Nicholas II and extends for the next two centuries.  The legitimacy within the church offices are taken out of the hands of the lay society and put into the hands of the clergy (whether it be Cardinal-priests or Cardinal-bishops themselves).


The electoral body became narrower and narrower.  It originated with the parish priest and the canons of the palace.  Eventually the priests were left out (1200-1250) and it became only the canons of the Cathedral chapter.  What this meant, it what happens is that Gregory was inspired to fight with the focus and conception of the Church (libertas ecclesia): meant that the church should be completely free and unencumbered by any control by secular rulers/authorities.  This is a revolution, an extraordinary revolution.  Western Europe is the only society that went through this metamorphosis. 


Caesaro-papacism: the connection of the religious and the state were broken.


Theocracy: the highest, most powerful and authoritative person is the highest religious person in that society (like in some Islamic societies).


October 17, 2001

Review of Gregory VII: not particularly important for canon law; the people around him are the most important people concerning canonical jurisprudence.  These collections formed the foundation for Gratian and would become the standard collection that would be in place until 1917 (both as a jurisprudence as well as academic).


He developed the idea that the Church is an independent entity (what we have come to know as the separation of Church and State). This radical idea had never happened before in human society in any religion in any group of people whereas the Church (religion) should be separated from secular authority and the power of the State.  This is the most important development in European history.


If you want to trace back the notion of freedom, this idea originates from this period of time where the freedom from institutions is enunciated (Thomas Beckett died for this notion; martyred for institutional free, not individual freedom, but this libertas ecclesia; by the canonists of the 12th century). The Jurists and then the canonists applied this in the 12th century to the freedom for the individual. Normally one doe not think of this period as the age of freedom.  However, the threads of these ideas began within the Church and within canon law.  Thus, Gregory VII was important to this end.


John Gilchist noted late in his study of Gregory VII, had very little impact on canon law.  He struggled with this problem for the last 10-15 years of his life.  The paradox is this: papal decretal had been a part of canon law since the late 4th century, and in ever-increasing from this period on; it was very common by the time of the Pseudo-Isidorian decretals, the prominence of place was given to these decretals as to the Conciliar canons.  Before this period, these Conciliar canons had primacy of place.  One of the characteristics of these Gregorian collections was devoted to: papal power and papal authority.  Every single Gregorian collection from (1050-1120,30) the first title of his first book is dedicated to papal power.  The puzzling question is why these papal letters of Gregory (with an already established Chancery) is why they played such a small role in the development of canon law.

This fact shows that there is still an ambiguity between the papacy and its legal system.  Actually this shows that all legal systems are hesitant to use to contemporary sources of law.  They believed that “old law is good law.” Antiquity often lent itself to authenticity. The paradox is that today we have a mindset that when the pope today issues a decree, we automatically accept it as law.  This was not the mindset of the people during this time period.


This one extraordinary piece of evidence (we do not know who wrote it, there is a copy of Gregory’s register) in this copy, there is a small piece of parchment (1075) which was inserted into the register and on this small piece of parchment is an extraordinary set of maxims which articulates a program or outline of papal power which is unprecedented in the history of the Church.  For a long period of time, many historians felt that this piece of parchment was from Gregory himself. 


Cf websight on:


  1. That the Roman church was founded by God alone.
  2. That the Roman pontiff alone can with right be called universal.
  3. That he alone can depose or reinstate bishops.
  4. That in council, his legate, even if a lower grade, is above all bishops, and can pass sentence of deposition against them.
  5. That the pope can depose those absent.
  6. That among other things, we ought not to remain in the same house with those excommunicated by him.
  7. The for him alone it is lawful, according to the needs of the time, to make new laws, to assemble together new congregations, to make an abbey of a canonry; and on the other hand, to divide a rich bishopric and unite the poor ones.

8. and following…..




Even the pope, canonist argue, are subject to due process, which gave rise later in history to problems with such notions as #3, 5.


“For him alone it is lawful…” this is surprising among the (dictates papi) because it was the historical notion that only the Roman civil authorities promulgated the laws.  It is a sign of a developing consciousness, not just in the papacy, but among secular rulers as well: that rulers have the authority to make new law, to change the “good old law” and this essentially means that in the 12th century (abrogating and derogating) these old laws. The question remained whether a ruler could make a new law that abrogated former customs and customary usage. Gregory was the first to make the clear assertion that the pope had the authority to depose the secular prince.


16-17: legal historians have struggled with these notions: 17 taken literally, Gratian’s book is not legitimate because it did not have the papal approval.  This does not happen until the beginning of the 13th century.  There are many puzzling questions with reference to the above list, because it is not reflected in the reality of law during this period of time or the notion of what papal authority and jurisdiction was at this time.


The mystery of Gregory VII is finding these summations of papal power (1080) and this is so extra-ordinarily precocious to the notion of the papacy of this time.


#23. making of the canonically ordained as a “saint.”  Again, we have to ask ourselves… “What does this mean?”


#25. Alone can depose and reinstate bishops without assembling a synod. 

Synods and councils were courtrooms as well as places where legislation originated.  They had this early dual-function. 


The office of the papacy only gradually became an absolute monarchical authority today and this evolution we can trace in the canonical tradition. This is the notion of centralization of jurisdiction within the Church that is being developed during this time period.


Up until 25 years ago, most historians would have assumed that this parchment never circulated outside the Curial walls.  However, within the last 25 years, a copy of this was found in a French document (although not perfectly copied, but generally the same text) reverses the notion that it was indeed circulated more broadly then first assumed. 


They are precocious and reflect the vision of Gregory VII of the power and authority of the pope in the Church.  And if this is true, then his vision was precocious as well.  Because it was not for centuries that the pope had these powers and jurisdiction in reality.


October 22, 2001


90% of what we have from the Latin antique world is transmitted through the monastic scriptoria.  If they had not been scribbling away and building up their libraries and have part of their self-imposed mission to have an educational system but also to preserve culture.  And 90% of what we have in the Latin world comes from this scriptoria. 


In the 11th century we see changes to these scriptoria.  We can see during the 2nd half of the 11th century we see the beginning of canonical jurisprudence.  This is what some scholars called the “renaissance” of the 12th century in the rebirth of learning from this period.  There is a transition from a place primarily from a monastic institution to bishops suddenly took upon themselves the burden of education.  It becomes very common to establish Episcopal schools within the cathedral chapter. A “head scholar” would be put in charge of the Episcopal library and were in charge of young boy’s education. This was not particularly aimed toward the clergy (remember during this period become a member of the “clergy” did not necessarily mean becoming a priest; it was very common for someone to become a sub-deacon or porter for the rest of their lives; the shape of the Church was very different; the institutional structure of each bishopric [especially if it were wealthy; they would have 80-100 canons who would take care of the secular and spiritual needs of the Episcopacy]: the cathedral chapter and its bishop (as part of the chapter) these two entities rules over a diocese and were the object of a large amount of discussion among the canonists.  Our contemporary notion of a “corporation” comes from this initial structure.  This corporation was called a “universitas” by canonists.


Presently, there are very few bishoprics that still have the buildings that housed the corporation that governed the diocese.  There were Episcopal palace that was attached to the cathedral with another rather palatial building where the canons of the cathedral chapter would reside.  Most of these buildings have been torn down in the 16-19th century as the whole structure of the church has changed.  Historians have estimated that the Church owed 30% of all the land in Europe during the 13th century.  These were divided between monastic holdings and lands held by wealthy chapter cathedrals.  This means that both entities had a great deal of business.  They often owned mills, were important in the agricultureal industry, owed breweries.  They needed skilled people (both of these institutions) as monasticism began to decline in the 13th century (the heyday is in the early Middle Ages of the 13th century; from this point on, monks were [Dominicans and Franciscans were later introduced with a more different approach to monasticism].  They were need for both the agricultural and ecclesiastical “sides of the coin.”  There were real need for lawyers and became very common for bishops to support students to send them to the law schools in Europe to get a degree in law. 


Up until the 11th century there were no law schools in Europe, and the beginnings of legal education in Europe is phenomena which historians have held a difficult time explaining.  In the city of Bologna, during this period of time, they began to teach Roman Law. One might think that this was the most natural develop in the need for people to know about law, both civilly and ecclesiastically.  This sketch mentioned above was at its infancy.  The first written evidence (1075) Pepo began teaching Justian’s Digest at Bologna.  Why was the novella and the code not taught?  It was in Latin and if it were in Greek it would have been a no hope situation because most people did not speak Greek during this time.  It being in Latin in the 6th century was the reason for its failure, ironically from 1075 on it was the reason for its success.


Justinian’s Digest: collections of statutes of the emperors; fragments of the jurisprudence from the Roman period.  It has been known and been circulating in the West from the 6th century until the end of the 11th. A statute only gives you a narrow view of the full aspects of the law because it only deals with a narrow portion of the legal system. Jurists can be innovative with the law: this is jurisprudence. There is not a trace of using this text (in the West) from the 6th until the 11th century.  And now suddenly, Pepo begins teaching this in 1075.  It was recovered in three separate stages and revised into “old” and then a “new” digest and this all affected the way in which it was recovered.  There was one and only one complete text of the digest that was found in the 12th century (that we presently possess in the Library of Medici’s in Florence).  During this time it was sitting in the cathedral chapter in Pisa (we have no idea how it got here; historians have suggested that Pisa was a large sea bearing center and because of their centre of trading, they must have gotten this copy, which was a 6th century copy, on one of these seafaring raids and brought it back to Pisa.  Another theory was that this copy existed in southern Italy and someone brought it back to Pisa).  This is the only manuscript that we have which allowed the teaching of Roman Law to take off. 


cf Gratian and the Evolution of the Ius commune from the webpage


Bologna was the first University given this name (a law school and trade school; it was not an institution that tried to teach the liberal arts)  it was an institution dedicated to teaching students to become lawyers.


If this code had been a success there would have been many copies and because it was not, the lack of any copies is the surest sign that it was a compilation that just was not used during this period of time. 


There is a bi-frication where theology becomes the primary material of study in these Universities (Paris) where in the Southern universities teach solely law (Bologna). Because the language of these universities was Latin, this lingua Franca allowed a student to matriculate to any institution during this period of time.  This tradition which was established lasted for a long period of time (remember that it was only in the 1990’s that Rome stopped teaching the Code in Latin!)


The other peculiarity is that the constitutional pattern for the university in Southern Europe (Spain, Italy) this student run university lasted for over 5 centuries.  The model that CUA uses is after the Northern Universities. 


Who are the members of the Corporation?


§         Chapters and bishops (for the cathedral chapter: as a juridical entity)

§         The students [who had franchise] (in the Southern Universities)

§         Northern Europe it was the teachers who had the franchise


Canon Law:

Up until the 12th century this discipline was not taught anywhere.  All these collections (with very few exceptions; Dionysiana of the 5th century; for the most part, the production of Canon Law was in the hands of the bishops, synods and pope. But the putting together of what constituted Canon Law was in private hands.  They were not teachers or professors, they were simply people who were in interested in law and had a reason to put into written forms their interests.  They were clerics mainly because they were the only learned people of this time period.


1110-1075 is taught by Gratian in Bologna (1075 teaching of Roman Law); there is not evidence to support this other than a few manuscripts. We have no real evidence that Gratian taught law in Bologna.  For that point there is little evidence who Gratian was himself.  Was he a monk? A bishop?  Where he was before he went to Bologna is unsure.   He is a man without a past.  However, on the Roman Law side of the coin, there is written documentary evidence.


In the last 6 years, we have learned that the story is far more complicated: Gratian compiled the Decretum and the final version was put together (hand written manuscript) about ?  This is the first canonical collection (there were previous writers that found conflicting  texts within the canonical tradition) but the entire purpose of this time was to put text together (Conciliar canons, Augustine’s writing, local synods, ecumenical councils and the like were included in the collection of canon law) up until Gratian, no one had his main purpose of bringing of concord to the canonical tradition. This is the beginning of jurisprudence. This is reflected by the name his gives to his writing Concordium discorndantium canouum


There were many people who used this text used not only in Bologna but all over Europe (in France in the universities there); the manuscript tradition reflect this point.  There many many copies in England, North France, Poland, Hungary, Austria and Italy as well.  It was a text that was compiled in about 1140 (in an age without mass-media and communication ability of today) within 25-30 years it was used all over Europe as the primary text for the study of canon law.  There is a lot of information that it was indeed taught from 1150 on. 


Why did he begin teaching in Bologna?  There is a 13th century proverb that says that “you cannot be a good canonist unless you are a Romanist” you cannot be a good canon lawyer unless you know a lot about Roman Law. During the course of the 12th century, Roman Law because the basis of Canon Law (even in the 1983 Code of today). 


Gratian begins (it seems) to teach Canon Law at Bologna and very quickly who study here also studied Roman Law as well.  By the end of the12th century at the beginning of the 13th centuries, one would receive a doctor utriusque iuris (doctor of both laws).  In European schools you still receive these both degree. 





October 24, 2001


Gratian as the “Father of Canon Law” (1140-1150 it was compiled) began teaching this in  Bologna and how there is no answer as to why he started teaching this then and at this place.  He began to teach Canon Law which one must remember that Canon Law and Roman Law differ in one extra-ordinary way:  Roman Law is a dead legal system and Canon Law was a living legal system and remains one.   One of the paradoxically, perplexing platitude of studying this law during the 12th century, is that this revival of a dead law; it had no force anywhere in Europe.  Thus, there was no reason to go to Bologna and study Canon Law; it was a model and paradigm legal system during this time period, it was studying what law students today  do not, for it was merely a construct of law.  The body of law for canon lawyers sees the constant changing and adapting or original Gratian texts up to this very day. You have at the beginning of the 12th century in Bologna. 


Anders Winroth, The Making of Gratian’s Decretum (there were 4: one in Admont, Austria and the other one two were in Barcelona, Spain). Another manuscript was found in Saint Gaul in Switzerland which is called “Gratian I”; this is 2/3 the size of Gratian II or roughly ¼ of the final rendition of Gratian III (this establishes itself as the basic text that everyone all over Europe by 1160-1170, it swept the field enormously quickly). This changes how Canon Law might as an academic field beside Roman Law.
If you went to Law school anywhere in Europe (between 12th-16,17th centuries) you would have studied, no local customary law, but Roman Law and Canon Law. By studying these two legal systems you received a doctor utriusque iuris.  The Roman Law Digest (that survived by one small manuscript) was far more sophisticated than Lombard Law and its jurisprudence was more details (i.e. its notion of contract) so the reason for studying this very sophisticated legal system was to return to either their bishops as clergy or to the secular court systems as either judges or the like.  (Interestingly enough some clerics returned to the secular systems to obtain an office: the perfect example of this is Thomas Beckett). Why would a king want a cleric? Because they were learned and knew something.  Most people of that time were not as learned as learned as the clerics. This became a valuable commodity for that very reason.  One must remember that Roman Law gets transplanted into other legal systems via Canon Law.


The new legal systems mean possibly mean that Gratian began teaching much earlier than this period of time. He probably started teaching as early as 1110 (according to Ken) he produced:


Gratian I: 33 cases: in Saint Gaul manuscript)

Gratian II: 101 distinctions, 36 causes de penitentia

Gratian III: (The Vulgate) 101 distinctions, 36 causes, de penitentia de consecratione

The book used in class The Treatise on Laws contains the first 20 distinctions. 


Interestingly enough, Gratian does divide law from theology. Important distinctions in his works you can see this notion very clearly. 


Case Twenty-Seven (concerns marriage); Gratian creates a particular case of a husband and wife; and the question of marriage between two people who made vows; one must remember that “betrothal” is almost as important as the marriage vow is today can could only be broken under extra-ordinary circumstances. Then Gratian goes on to explain how those under vows can contract marriage.  What these causes do it to set up dialectical situations (one of the great thinkers of the 12th century was Peter Abelard, who taught in Paris and was most famous for “logic for dialectic” who liked to give two contrary texts and cite authorities on both sides of the question.  His book “Yes and No” did just this.


Gratian copies or adopts this methodology.  He sets up the case, asks questions then sets up authorities on both sides (it is what we would call case study methodology). The point is that Gratian took the earlier canonical collections (which contained Conciliar material and earlier papal letters) and distilled them and take authorities from them and use them in the second half of his Decretum to construct cases on both sides and then finally, he comes to a conclusion. The question of how we knew that Gratian taught at Bologna (1110-1113) is answered: the best evidence that one has at this point is that there is a work in progress and the first text was a teaching tool which asked the reader to think about the questions presented. One can only imagine that Gratan taught this book for a while and realized like most teachers, his students knew nothing about jurisprudence.  Thus, as he taught he began to bring other materials into the classroom until finally after “x” number of years, he produced a text that became the standard textbook for all European teaching institutions (up until 1917). There is no textbook that has had this longevity of life in the educational field as this canonical text.


In citing Gratian’s Decretum : distinction number then the chapter number (D.1 c.1).  The causae are listed (C.1 q.1 c.1) and the final is (De con. D.1 c.1). What is unusual about this is that unlike the causae which are good teaching tools, the distintionae are not good teaching tools, they are not primarily focused on a presentation of the materials.  Gratian still with his dictum (another great innovation the he made; there were some earlier canonist who put their comments into the texts) or the “sayings” of Gratian himself; (all in the words in italics are his own), these often resolve contradictions in the texts and where Gratian is summing up the ideas of the authorities that is cited in the texts.


One of the great questions that legal scholars have always struggled with: in law what comes first, practice or theory? And this is not an either/or!  Sometimes in history, practice does precede theory and in other cases it is the opposite when theory has great impact on practice.  According to Ken, both are very important because they ultimately influence how lawyers and jurists think about themselves in relationship to one another and how they think about the law itself. 


The reform movement is easily seen in Gratian’s work, however, it does not have primacy of place in his work (i.e. papal primacy) whereas Gratian put “what is law” right in the beginning. 


In the work The Treatise on Laws the translators have chosen to translate leges as “ordinance” and not law because he is trying to make the distinction (which we no longer have) between ordinance and law.  In viewing the original manuscript from the webpage and note that the margins are empty.  This absence of any marginal text (gloss) is indicative that the evolution of jurisprudence is not fast and simply emerges but take a long time to come into being. 


October 29, 2001


Gratian continued…..


Composed around 1217 (the gloss around Gratian Decretum) Huguccio, Johannes Teutonicus (Ordinary Gloss) professor at Bologna 1205-1210 and then left in 1218-1219 mysteriously returned to Oberstadt (Germany) and then died in 1245 without writing anything further. L (Ken did find a small consilium what was like a lawyers brief, written around 12437 and was found in the University of Pennsylvania Library). 


There were no title pages and no dates of publications (not until the 1500’s).  Decretals of Gregory the IX is marked by an “X” in Gratian’s gloss (extravagante=to travel outside).  The Ordinary Gloss (which was used in every law school from the beginning of the 13th century when Johannes first wrote and Bartholomaeus Brixiensis (marked as “B”:Bartholomew of Brescia) revises this text and it becomes the normative text for all canon law.  The genesis of these two texts is not completely clear.


In this early text, it shows you how “B” added comments to the original source and how subsequent “glosses” differed in their comments. “The human race is ruled by divine law…..”  This is the way in which every academic text for the next 6 centuries (in any written or manuscript books) were all produced with glosses to the texts.


J.T. was fully influenced by Roman Law unlike Justinian who was not. This can be easily seen by Johanne’s use of terminology and verbiage in his texts.  (i.e. rational law is the notion of law as it was understood by Roman Law). The first fourteen distinctions he spends talking about the notion of Law in general, where is ultimately comes from, rational human beings and in distinction fifteen is the first comments that are made about Canon Law.



October 31, 2001


It is only in 1210 (Innocent III) for the first time ever gave his imprimatur to a particular collection of his own decretals.  Even though he did this, it never was thought of to give credence to Gratian’s Decretum (remembering that he is not a church authority).  There were very few collections that were approved by the papacy and this goes to a fitiori which goes to all the canonical collections up until 1917.  There was never any control over what should go in those commentaries or how these commentaries were to be taught in the school. There was no magisterial authority that said the commentary was good or not.  Canon Law operates within an intellectual system which is not regulated by any central authority.  There is no mid-states accreditation, organization or association to approve universities. What is also unusual about this is that these commentaries by the jurists become sources of law. In the system that we are looking at (that lasted until the 19th century) is used as a source of law in the courts of that time.  And because of this, the commentaries of the jurist enable them to make new laws and change old ones. This jurisprudence (commentaries on these legal collections) become sources of law in themselves.


As long as until the 17-18th centuries, they are considered to be authorities and sources of law even for Protestant jurists as well.  Hugo Grotius (a protestant) “Father of international law” was a writer of the 1630-40’s (long after Luther and the Protestant Reformation).  He draws almost exclusively upon canonical jurisprudence and the larger jurisprudence of his time (which canon law had a major effect on).  In his own works he footnotes popes of his time and constantly quotes Christian sources in his works.


The origins of the whole idea of having relationship between people is that the canonist of the 13th century asked the question what is the relationship between the Christian world and the non-Christian world during this time period. 


  1. There is no establishment as to what goes into the margins of Gratian’s work.
  2. The jurisprudence in turn becomes to have the force of law themselves not only in the classroom but in the society as well.


This dialectic between the text and the commentary created law is the most things to learn from this class.  Memorizing texts is not of the most import, whereas what the effect of Gratian is upon the jurisprudence of this time period is the salient point.


When one looks at the rest of Gratian we are going to see that it is a collection of many authors (Augustine, Ambrose) like early canonical collections (Church councils, Church fathers and works such as Augustine and Ambrose).  Why is Gratian using Isidore of Seville (who is not a pope or religious man) in his text?  Up until 12th century, in canon law it is very pronounced that there is no jurisprudence, no written text and they did not like to think of religious norms as being law.  It was the norms of the Christian community, the “customs” the “canons” (was not a legal term in its earliest usage). Therefore, when Gratian tried to talk about Law, he could not find any papal decrees because there were none to be obtained. So when Gratian decided to have to focus on what law was (remember when we look at Justinian’s Digest was “what is law?”) Gratian is emulating this and posing the basic question: what is law” and he had no source (he could have gone to Roman Law) he did not use those first chapters of Justinian’s Digest because: the source of law is divine (which he calls “natural law”) and will have a very very long run in the jurisprudence of Europe until the 19th century.  Authority for Gratian comes from God (natural law) and usages (customs from the people).  What a different world from ours.  We think that law comes from the governmental institutions (not coming from peoples). Today in the international level we are struggling with the problem that law cannot be restricted to institutions. That they cannot be the source of all law.  This is why there has a revival of the natural law (that we call under different names), there has to be sources of natural law.  Natural law has often been called “transcendental norms” because it originates from the Christian mindset. This coupled with the problem that our present institutions remind us of the separation of Church and State.


The big question is: where did Isidore get his ideas? Clearly some of them come from Roman Law, however, when he speak of “divine or human” (from Chapter 1) is not found in Roman Law. Chapter 6 of Gratian is common to all nations.  Roman jurists would have said that the law of “peoples” (ius gentium) is common to all nations.  Gratian seems to mix up the two notions.  The he goes on to speak of the “identical liberty of all” “repelling of violence by force” (that he could not get out of Roman Law) and to this day we cannot know where he got that notion from. 


Modern Canon Law comes from the roots of these first distinctions of Gratian, not found the institutions but in the law of the people; that is how Gratian sees all law. 


Going back to Distinction One (page 4§3): this is something else that Isidore did not get out of Roman Law.  “Pass through someone’s field is moral but not legal.”  This means: he is making some sort of distinction between two constructs of law (morality and legality). What the canonist believed is: first of all, even law that comes from people is transcendent to divine law.  Divine Law transcends human law (if there is some reason, need or necessity that a person can eat grapes).  He is drawing a distinction between the two that is “equitable.”  Remember from the beginning of the semester that “equity” originates in Canon Law. Stealing when in need is not even a sin and certainly not an infringement against the law.  (cf. bottom of page 6) “according to this law of nature….”  The whole basis of this law is expanded to all cases for those who are in need. This was not made by Gratian, there is no way in the world by looking at Gratian or even Isidore would have included that “natural law dictates the common possession of all things.” Natural dictated that “all things are held in common.”  How did they get to the idea that stealing in times of necessity is not a crime?  What was the first question they asked?  Is it ok to own property? Yes.  There seems to be a contradiction, since human society respects personal property, but natural law dictates that “all things are held in common.” So how does one reconcile these two things?  What they did (page 4 “passing through a field”) human law respects property law and thus it is legal, but it is not necessarily equitable (defined as reason and necessity).  Necessity becomes a fundamental principle in Canon Law. Neceistas non habet (necessity has no law). What that meant is that all human law, in times of necessity are null. The rights that human beings have that are given to them by positive human law can be nullified in times of necessity. And the next step they took in their thinking, is that if property rights are nullified to what law do we return?  Natural law, when people shared all things in common.  They developed a jurisprudence that “in times of necessity” that human does not govern human rights but divine or natural law. And according to this law, “the common possession of all things” is a basic principle of law.  This remains a common principle of not only Canon Law but in the ius commune until the 18th century (when the property rights began to trump the rights of Natural Law).


Rights that were very much a part of legal systems 200-300 years ago are no longer rights of today. Should they be?  When studying the history of law you become conscious about this point.  (in the 17th century it was a right to travel from place to place; it was considered to be “an absolute right” within the ius commune in the 18th century this was taken away from the people).



November 5, 2001


What happens after Gratian is the flood of papal decretals.  When you ask yourself, when did the papacy come into canon law?  It is the 2nd half of the 12th century in which the first sign of the papacy (originating from the Sirician 5th century documents) is exercising jurisdiction throughout Christendom.  This is dramatically reflected in the law by instead of (only partially seen in Gratian because the sources are not fully revealed) “good old law” and not true papal decretals (they are not contemporary Church Councils (back to early Church) and also old papal decretals and this changes dramatically after 1160.  Gratian gets established and the text gets established as the norm for canon law and then the papacy begins to produce a “flood” of court decisions (as precedent) and the main job of canonists after Gratian was not to go back to the early Church of the 11th but to make some sort of coherent sense our of papal legislation.  This has institutional ramifications in the Curia=“papal court in Rome” who begins to hear cases throughout the world (not only of wealthy litigants, although it allowed for such expedience, but also for poor peasants).  It extends not only geographically but also to the very bottom of Medieval Society. 


This change is also a sign of canonical jurisprudence and canon law comes of age.  Canon Law especially because to be seen as an actual legal system as we know it today.


Gratian’s treatment of natural law: (page 6 from text)

Isidore and seconded by Gratian as well as the entire canonical tradition, “natural law” becomes a fundamental pillar of Canon Law.  This is because Gratian treats it in the treatise on laws right at the very beginning. It was present in other traditions (in the Roman tradition: a concept that was not infued with divine Scripture or theology) it was a ius gentium (when people govern themselves in similar ways and hold similar things to be wrong and the need to correct those wrongs and protects rights). The canonical tradition differs in that “natural law” plays an essential role in jurisprudence.  “The human race is ruled by two things ‘natural law’ and ‘custom.’”  This is what makes canon law so distinctive for the next 6-7 centuries. Because it is used to protect the rights of the poor (in times of necessity) to the right of self-defense, the rights of children (in a variety of difference instances) to the right for human beings to be equal.  This was a fundamental basis of this canonical tradition and canon law.  Paradoxically, “the identical liberty of all” in Latin that text reads omium una libertas (one liberty of all people).  It is the one part of this particular text from Isidore of Seville which does not have a rich history in canonical tradition.  Every law student read these ideas and used this particular text (at the beginning of the Decretum) as the cornerstone of the fundamental principle for law and canonical jurisprudence.  The paradox is that this notion NEVER took off.  Implications of this would have been: it flies in the face of the class system (the same idea of the Pauline equality within Christianity). We do not know where this originates even though it was inspired by the Pauline writings.  It is (could be, because it never became) this is how a society shapes a legal system and prevents the full implication of what they are reading. It is a profound argument against slavery.  In this case, jurists after the 12th century, slavery is an institution which has been inaugurated by men and because it was founded on the ius gentium it could be considered legitimate.  They did make exception for when a slave was free (manumitting) it was not actually just a legal action which gave a slave his/her freedom but it was a detection of the fundamental liberty that existed in this slave.  This also flies in the face of women’s right to do anything. 


Natural law is seen by Gratian in the legal world that finds its basis here.  Developments in canonistic jurisprudence are used to support an entire range of things, especially of human rights conception that is an essential  of jurisprudence.


Custom: Isidore says “usage is long continued custom…..”  he uses the word in the definition to explain what a custom is.  One must remember the struggle that was experienced in trying to figure out what custom was and what human law, because what Gratian says that law is either “natural” that we know as divine or it is mos (custom).  What is peculiar about this is that Gratian is operating in a world in which divine law in which custom comes from the people.  Primarily in the early Middle Ages is was not written as well.  So how does one get a handle on this?  Peculiar to Gratian, up until when Johannes writes, custom is pushed aside in favor of papal decretals and the monarchs of Europe has begun to create statutory law in spite of the fact that in Distinction II (page 8) “…consisting of ordinances, plebiscites, senate resolutions, imperial enactments…” and they did not exist for Gratian because there were no Monarchs during the time of Gratian issuing statutory law.  There is not connection in the real world but there was a connection with custom.  Back to page 5 “custom of sort of law… recognized as ordinance when ordinances are lacking.” He is creating a hierarchy of laws.  What is clear is that this exists: natural law trumps human law.  There is no question in Gratian’s mind that this exists.  The problem is whether or not custom trumps promulgated law or not.  For Gratian this was not a question of great question because there was not promulgated law.  For Johannes it was an issue because there was beginning to be a body of law that did indeed contain promulgation of laws.


Remembering that all translation are considered interpretations: the text of Isidore of Seville differs from our text editor in that: the “written law” is used from the Isidorian text whereas the text translator used “usages.”  The former continues that “what is received for law, when written law fails” “recognized as ordinance when ordinance is lacking.”  The 12th century jurist (our class text) recognized that law existed but it was not written.  This is a world of law which is extraordinary differ from our world as well as from Johannes T.’s world (which recognized custom as a source of law; and “written law” was promulgated law, in the same fashion as we do today). The owner of the manuscript saw a distinction in the law between the custom as being written and that of not being written. 


Ordinance=promulgated law (as noted in the beginning of the class text, that ordinance will be translated as “ordinance” to distinguish it from custom.” 


“It does not matter whether law consists of writing or reason, because reason informs (provides the basis of, recommends) the law” (from the unknown jurist) vs. the text says “since reason also supports ordinances.”  Legem is not lex but custom.  The way the 12th century jurist understands this is that what is established by writing and is recognized as law when writing is lacking, it does not matter whether it is written or not because reason is the basis for custom. 


This points out two things: 1.) the 12th century and Gratian are still living in a customary sense of law and 2.) if natural law is a fundamental cornerstone of canonistic jurisprudence and all of that which is entailed in using divine and natural law, REASON (ratio) becomes an extraordinary part of canonistic jurisprudence as well.  It becomes a part of the fundamental reason why law has to conform to reason.  When it does not, it not considered just law. 


There are two things that are derived from natural law and reason: 

Natural law: equity becomes a fundamental principle that is infused in canonistic jurisprudence

Custom: has to be looked upon as being reasonable (unlike the requirement law) because only if it is reasonable will people follow it.  By the time of Johannes T. for the first time law (promulgated law) is defined (not necessarily containing reason but founded on the will of the legislator). This is the first time it appears in European jurisprudence [13th century jurists stated is that “law was based on the will of the prince”] and that has been part of European jurisprudence up until the present day.  “Positive law” first gets defined at the end the 12th century (promulgated, ordinance) and then secondly, the next time that positive promulgate law does not have to contain reason, but solely based in the will of the Prince of the Legislator.  And so within 75 years of Gratian you have the completely different way of thinking about how law is conceived of.  Law did not make sense without ratio for Gratia, it originated from the people, for the people and it had a hierarchy (as noted above). However, by the end of the 12th century this world has been completely transformed by a law that is still hierarchical but it has its own definition that is distinct from custom.  (Remember that the 12th jurist thought of law as “ius scripto” and “mos” is simply used when there is no law).  Promulgated law (ordinance, lex) was again the will of the legislator and they go so far as to say that there not have to be reason (this is modern law).


The hierarchy still exists, but for Johannes T.:


Divine Law …> natural law……> positive law…..> trumps custom


(its implication is that custom begins to die or it has to be incorporated into the positive law AND people being the source of law disappears and REASON fails to be an important element of the law. Where is the “ratio?” is not a question that was asked because of this transition.  Natural law gets squeezed out of this equation as well for exactly the same reasons.


This principle of reason (especially if you are a Thomist) is a fundamental basis of law.  The vocabulary and the mindset that we bring to law is not what is reasonable about this law?  But, it is a way of approaching law that is different and a mindset that would be unthinkable to Gratian and Thomas. 


If our vocabulary could be the same as equity, justice, natural law and reason, if they were the key points then maybe it would be a framework for dealing with laws that are more sophisticated. 


An additional gloss that was added to (when ordinances are lacking) “when any negotiation or business, when law fails, from similar things to similar things analogous or reason, or justice should be followed.” This it he earliest finding where precedent should be followed in legal cases.




November 7, 2001


From Gratian until 1917 there was no Code of Canon Law.  There were, however, many texts available that were used, but there was no one codified text as we have it today.  The main thing is that this short except from the beginning of Gratian permits us to see how the canonists developed jurisprudence as well as how they dealt with canonical problems.


It gives you a sense how canonists as the beginning of this profession, for the first time, how they deal with legal problems.  Custom is interesting because  Gratian creates his Decretum in which his concept of law (as we know it today) does not exist.  One of his primary problems is to explain “what is law” and where does it come from?  Consuetudo and mos  for these early canonists are really lex (for them law was custom).  How do you know when a custom is a custom or when a law is a law are the two questions that are raised.  This is illustrated by Johannes T. (page 4-5). 


“What custom would you consider long, or how many repetitions would you say introduce a custom?  What is done twice?...”


For an early gloss writer custom was law.  However, for Johannes T. came at the end of these commentators and the question was not so easily answered.  The question of what is a prescription?  In the Roman meaning, is when the “right of way” is not closed off (at least once a year) it becomes a prescription or right (after 30 years). Is that “custom?” To Johannes says it is not, it differs from custom but it still is a right.  This leaves him with yet another question: how do you know when something is a custom or a prescription?


He further introduces that the “dumb herd following a principle” but an intentionality has to be part of the custom (a very sophisticated thought of the time).  You not only need repetition but also intentionality.  The point is that very soon, these questions become a mute point.  The place of custom within canon law as well as secular law (especially on the continent) is replaced.


(Page 13)

This sums up Gratian’s thought better than any other text:


“Ordinances are instituted when they are promulgated; they are confirmed when they have been approved by the usage of those who observe them.”


If this idea was brought into the 21st century it would be considered as law not only when it is promulgated but when it is observed by the people for whom it is promulgated. (Prohibition is the perfect example of this as well as Margaret Thatcher’s “pole tax” when it had to be repealed because it was not enforceable). This was very much Gratian’s mindset.  It is a conception of law which has disappeared but worth reflecting on (since law should come from the people) is there really a vehicle in which the people’s will is reflected?  Unlike the democratic mythology of government whereas government is for the people and by the people, this is not the fact! 


Distinctions 1-14 deal with secular law and then Gratian again returns to custom in Distinction 12. 


In the Cologne manuscript another example is found: (page 44): from Justinian which was a textbook and introduction to the entire legal system.  This was not something peculiar to the problem of custom in medieval law but in ancient Roman Law as well.


C. 6 “Long standing usages approved by the consent of those following them are like ordinances.”


“Unless a law to the contrary” is not in the translation but are founding the text shown in class.  This may be yet another example of explanatory words which get into the text itself.  It is this particular phrase being “contrary to law” does not represent the mindset of Gratian or even what he taught.  This was an idea of later canonists thought. 


This addition to the original text (which was exceptionally typical of how these texts were dealt with) was accepted by the common people because it was an idea that was generally accepted.  The interpolation of Gratian’s text was a clarification and not a abuse of it.


What this represents is the mindset of what jurists of a later period of time thought (which they did not think of as a betrayal [even of the popes from their time]).  Of course, this could never happen today, it would have been unthinkable.  They thought of law as not being centered in one place (as we do) the result of this, is that interpolation of words or phrases does not look so irresponsible or betrayal as it does to us today.


Distinction 12: about custom (page 47): comes back to canon 1; where he mixes canon law with the conception of custom. 


“This should be understood of custom that has been confirmed either by its use of the universal Church or by long passage of time.  On the other hand, if different customs are introduced according to changing times, opinions or places, it is better to abrogate them then observe them after the circumstances have changed.”


Here he is making two points: 1.) the universal Church may approve custom but there may be other customs that are observed by local “places” (this still exists even today) and 2.) when times changes these customs should be abrogated or changed. This is a notion of how law has to adapt to the times in which it is implemented. 


What jurists [from Gratian and Johannes] (the same notions of people from Gratian to Thomas Jefferson) in these first 20 distinctions is to create a hierarchy of law:


§         Natural Law    

§         Ecclesiastical Law (Canon Law)

§         Natural Law

§         Positive Law

§         Custom


We still have this hierarchy of laws in Canon Law but in reality this does not exist in secular law.  Divine Law is hardly an arguing point in the courts of America.  This concept of hierarchical law is typical of this time period (and up until the 19th century during the time of John Austin) when positive law becomes the source of law.  “Legal positivism” (named after Austin) clearly rejects this notion of hierarchical law.  [Ken thinks this is a bad idea, he believes that there needs to be a higher sense of legal ideas must be returned to.]


Unless the people have recourse to something other than positive law (this could lead to more disasters like the Holocaust). Most our Western law has an differing opinion and mindset of what the sources of law ought to be. 


Distinctions 13 & 14: remembering that Gratian is a very sophisticated thinker, these distinctions remain the locust from where this problem is discussed: what happens when you have two conflicting norms and you have to choose between them. Dispensation is not allowed from natural law for Gratian (you can abrogate, deviate or dispense from) unless one is compelled to choose between two of them.  And this is the perennial problem not only in secular law but also a compelling problem when one is dealing with religious law, because the problem is so much more complex (because you are not dealing with morality, “thought crimes”).


When one is forced to violate one principle of natural law, once is forced to choose, this is the only time that there can be dispensation from natural law.  In other cases this does not exist (example of Pope Gregory the Great, pp. 50-51).


Distinctions 15-20: we finally arrive at Canon Law.

The basis for Canon Law (p. 50) where the Councils are enumerated.

(pp. 56-57) works of the Fathers [Gratians (and the later canonists) used the works of the Father constantly as a source of law.]


Distinction 16: further distinction in Canon Law in the Church; (c. 4 is from “Pseudo Isidore’s” canonical collection: “the canons and the councils are said to be of the Apostles…..” the only point tht he makes that is accepted historically, is that the sources of Saint Clement and not from those particular popes.  What Pseudo-Isidore said is that the Conciliar canons of the Church are from the earlier popes (a transfer of later develops placed earlier).  


Distinction 18: local councils

Distinction 19-20: papal decretals

(Chapter 3 page 79) Gratian using a letter of Pope Nicholas (authentic) to argue that papal decretals are a very important source of law and canon law; however in the 3rd chapter he uses Charlemagne to argue the same issue. This is another example of how people of this time thought about law and how it was not a closed idea as we think of it, but it included other than ecclesiastical sources for justification.  They did not make the same separation between the secular and the spiritual.


November 12, 2001

Library Seminar


Papal jurisdictional power after 1150 A.D.; time of spread of Gratian texts

1.)    cases (legal) were appealed to Rome (1150-1200) which became the last court of appeal

2.)    private jurists (i.e. Gratian) began to collect these decretals


1150-1180 marked the time of adding of appendices to the Decretum. 


There was a centralization of papal power as most works were overlooked by Pope Alexaner III
(1159-1181).  This was not ordered but happened by practice and not by demand. 


Justice was probably the issue as it was no found equally in local courts (remember they were not trained because its infancy and lack of jurisprudence). Better justice was usually found in wealthy episcopacies and in Rome. Around 1190 there were attempts to stop the onslaught of papal curial requests.


1198 Innocent completely reorganized the papal chancery and provided the judicial platform  that the papacy could handle the constant flow of cases and litigants that were being sent to Rome.


1190 private canonists organized and systematized a collection of papal decretals into books and subdivided into subject areas (what we would call a book, during this time period was called codex for canonists). This remained the formal texts until the 1917 Code of Canon Law.  It was divided up into several “books:”

                        Book I             Legislation and Offices (Iudex)

                        Book II            Judgments (Iudicium)

                        Book III           Clerics (Clerus)

                        Book IV           Marriage (Connubium)

                        Book V            Criminal    (lay and clerical) (Crimen)


From 1190 on, these five (5) major collections of papal decretals known as “Complicio prima secunda” (compilations 1,2,3…“ancient compilations).  These represented the teaching material taught in law schools from 1190-1234 as well as in the classroom and the courtrooms as well.


Problems: Because there were five collections dating from Gratian to the 1230’s (which are a lot) although organized in the same way by 1220-1230’s they became unmanageable because some decretals contradicted each other (unlike Gratian who tried to make his work congruent). This is contemporary case law and not statutes.  Canon law is not as it is today (codified law) but cases heard in Rome and they decretals were final judgments of such cases.  Canon Law teachers were teaching case law (unlike Gratian that taught questions).


N.B.  Episcopal authority was important because but conveyed through councils and not decretals.  Cardinals served as judges who regularly heard cases and they had “family” of assistants to assist in rendering judgments – all made in the name of the pope – the decision always went out in the name of the papacy.


Honorious III (1225) was the first pope to issue an official collection of his decretals that were to be used in courtrooms and schools.


1234 Gregory IX ordered canonists Raymond d’Penafort, O.P. to take five (5) collections and make a coherent code of papal law (between Gratian and 1234) which were called “Liber extra” which became the first Code of Canon Law (again differing from our present code). Raymond shortened the decretals but could still read the case law.  This was the first major step to bring concord to this massive material (like Gratian brought to 1,000 years) Gregory brought concord to about 75 years of decretals.


Innocent IV (educated in Bologna from Genoa) wrote what was the First General Commentary on the decretals of Gregory IX.  Because of the length of the commentary the text was no longer part of the text and was omitted.  He also wrote his own collection of decretals and General Council of Lyons in France (1235) put together at the end of the 13th century by Boniface VIII called “Liber sextas.”


N.B. Gratians and Johannes H. is still taught as standard commentary, it was decretal law that was changed during this period of history.


“Corpus canonis iuricae” is called these official texts.  The decretals themselves were exactly that from Gregory IX and not statutory law but were cases (with some exceptions) for the most part up until the 14th century.


Clement V:  Extravagantes Johannes XXII finally before 1500 is called “Extravagantes communion” used in canon law court which was put together by an unknown jurist which became part of the standard text of the Corpus Canonica.


What we think law is?

a.)    Gratian – private jurists

b.)    Intemediate

c.)    Officially promulgated by Gregory IX (1234)

d.)    Boniface VIII Liber sextas

e.)    Clement V – 1320’s posthumously promulgated

f.)      Extravagantes Johannes XXII – also official collection of canon law (should be taught in schools and courtrooms)

g.)    Came the “curve” the last decretal collection which becomes the part of the official Corpus Canonica are the “communios” which are not official texts (like Gratian).


Finally, this was resolved (only conflict/contradiction for us) in 1570’s under Gregory XIII – who collected jurists and… go through complete works an issued standard texts of canon law in 1582 called ….?  This texts supersedes everything before.  Here the papacy fully realized its role (in the modern term) by issuing a “standard edition” of the Corpus Canonica to be used in the courtroom as well as the classroom.


1582 – Gratian officially becomes part of the “Corpus Iuris Canonica” (in the modern sense).


Simultaneously, what happens was that great jurists wrote sophisticated commentaries.  These commentaries were important because they created sophisticated jurisprudence.  Extraordinary doctrine was created.  These jurists created “living law” which was very different from Italian, French and German law during this time period.  Others had law but never produced jurisprudence (or very little) because the secular legal system was not taught in the classroom.  They were teachers as well as lawyers.  The point here is that Canon Law is a “living law” produced by sophisticated jurisprudence because it is law taught at the University as well as in the classrooms based on non-juridical existence.  This created a symbiosis between courts and the classroom.


N.B.  The reason why the legal decretals (like Innocent IV, et. al) became sources of law in secular law as well (legislation, papal decretals, conciliar canons, and most importantly the great commentaries by jurists) was because of this extraordinary different legal system whereby law was written as dialectic; winnowing and sifting, year after year, century after century, constantly changing and reacting to tradition which stretches over the centuries.




November 19, 2001

continued cases from former class …


Today’s letter of Innocent III of judicial cases (that have come from all over of Christendom: from England, Spain and other parts of the country) in which it is a very different world.  There was not the same juridical activity as it was found from 1159 on. 


Corradus case: in this period of canon law, age was not an absolute age but depended upon the maturity of the couple (outward signs of puberty).


First they are betrothed and not the canonical age.  According to canon law it was absolutely crucial to have parent consent (that went back to pagan antiquity) in order for a marriage to occur.  “The counsel of friends” could possibly be the guardians of the young man  and could be the reason for taking him into the house of the man. 


What are the motivations?  If the young man had property, then the father of the girl, after taking the young man, would have control over that property. 


What are the legal issues concerning the oath?  Duress:  nullifies a normally valid contract.  This young boy is betroth and swore an oath (because it was at the advice of “friends” who could have been “regions” or guardians or even friends). These “friends” could have been the “vassals” of the father.  The bottom line is that we do not know the exact particulars of this case.  The particular facts that are not essential to the case have been telescoped in order to present the situation.


The contract was confirmed by both parties and confirmed by “oathtakers” friends of the boy and of the father as well. There are two words that describe the legal status of this situation and they are “oath” “iuramentum” and a vow “votum”(much more solemn contractual obligation).  Even in this period of time, an oath, although not as serious as a vow, however, it did carry with it serious ramifications.  How could this be if it was not written down?  An oath could be actionable and that the a person’s honor (in a more traditional society such as this) who has swore an oath to the deity, this honor is more enforceable than written piece of paper.  Brundage remarked that “a man’s word is worth more than the skin of a dead animal.”  


Fideiussorum” is the assuredity given by the “oath of others.”  In contractual law, this “fideiussorum” would be liable also.


Continuing with the case…. What is the canonical legal issue?  Not only did they know the law, but also the people who had knowledge… but the real issue is “affinity.”  Affinity which was created by sex with the sister! (Super veniat affinity) invalidated a marriage.  The ruling in canon law, if it occurred the marriage it invalidated it, if it occurred after the marriage, then it was a crime and no more sex could behad, they were technically “divorced” (which made that you were technically separated).


After they are married, he continues with sex with the sister, which is the added crime of adultery (“wallowing in his filth”). If it is not recognized as a marriage then it is fornication.


Underlying this entire story is duress (“betrothed with the counsel friends” and then “without the counsel of friends”).  Remember that if these “friends” were vassals, their obligation was to render him counsel and support him militarily.  This could be the reason for their retracted of support. 

The judgment by the papal court: in the first instance he pleaded innocence and he would not confess.  This would have been impossible to prove because it was his word against no one and there were not witnesses that would testify.  (Remember that in the other letters, their concern was about being notorious, scandal and the right of the woman; remember the judgment of others there was a conjugal right and duty) this is not present here because? He may marry again, at least there is not specific objection to such, only that he stay “away from both of the women in the future.”


It seems to be that there is no marriage and that the women knew what was going on.  Who brought it to court?  Of course, like most criminals “he finally got religion.”  Of course his motives could be impugned as well.


It could be that he was a very wealthy man (as seen in bring this case to the highest court) and that he probably wanted to remarry, thus the inclusion of his repentance and desire to change. 


The only issue that has not be dealt with is that Alberhart was given to him: the sentence could have been aimed at the father (because now his girls were now “damaged goods”). This is a letter from Rome telling the Archbishop Aberlhard could be aimed at the man (which already made up his mind about the women) but this last sentence seems to be aimed at both the “counsel of friends” as well as the father of the women.


Gratian’s law was the law of the early church and was not case law (although there are similarities to Justinian’s codex: statutory law) there were excerpts from councils, et. al. and had much more of statutory law. It was with decretal legislation that canon law begins to flourish.  Case law is the “life blood” of the legal system (even of today). The entire doctrine of civil law in Europe (French, German) all legal decision are made in accord with statutory law (there was no use of precedent in these systems). One of the problems with this kind of basis for a legal system, it does not provide the rich texture of real cases provide with their ambiguity that these cases provide.  When you simply have a provision, the coldness and staleness of the law itself does not give warrant to the actually lived out experience in the lives of people.


Every case that comes before a court is just slightly different and is very hard to create a statutory codification that is going to cover each and every case. The German and the Italian systems are trying tin reintegrate case law into their systems.  It is a very rich way and subtle and nuanced way of dealing with the law.



November 26, 2001


Procedure: canonical jurisprudence’s greatest gift to modern civilization and its norms.  How these norms evolved in canonical jurisprudence will be the topic of today’s topic. 


I.                    Procedural norms reflects the soul of that society in very significant ways is the main premise.

II.                 Where does procedure come from? When was it established?  Jury trial established?  When were the norms for procedure happen?  (everything else has an origin, thus for procedure started: did not have a formal beginning with a particular person or event).


Procedure is the growth of community usages; which is true of every society that we know of.  There is not legal society that can find an actual beginning that can be pointed out. 


Therefore, procedure really does begin with the customary usages of the community and reflects society’s ideas and how its member should be treated is a very strong argument. 


The state, in the past 150 years, has injected into society’s rules about procedures and in some ways changed some fundamental notions about procedure in its own self interests (which have some very interesting ramifications).


Definition of terms:

Rules of procedure developed by canonists and those who studies Roman Law (Romanists) was called the ordo iudiciarius (the judicial order; the way in which procedure should be followed).


In ancient Roman Law there was no part of Justinian’s digest or the code or the institutes in which the rules of Roman procedures were laid out.  They were laid out in parts; title about evidence, witnesses, the sentence (various aspects), appeals but there were no titles in the Digest that concerned itself with the rules of procedure.  So when there was the revival of Roman Law in the late 12th century, there was a great “trying to figure out” what these procedures were. 


We find our nearly immediately, on the part of the canonists what these rules were.  This is so, because: because it was systematic and rational means of procedure.  The technical term was “modes of proof” that lent itself to the canonical circles.  There was not a commonly accepted mode of proof up until the 12th century. Another reason would be: there would be a sense of dignity of the person (which comes out of the Christian tradition that is essential to its message and role). The canonists were dealing with actual practice, it was a living law. (N.B. Roman Law is a dead legal system and Canon Law was a living legal system and remains one: taken from October 24th class).


The rules of procedure in canon law courts, there were no ordo iudiciarius; and they pulled modes of proofs from many different areas (e.g. Germanic law in the Ordeal: mode of proof that depended upon justice that does not come from human beings but justice that comes from God). The Ordeal was the characteristic mode of proof for every single society; there is no society that did not go through a customary mode of proof which we generally call in English the “Ordeal.” 


It became so universal because it’s procedure that people considered fair and just and also the purpose of this mode of proof is to deal with strife within society (feuds between family and kin; whether criminal or civil matters). The objective is to get two parties to stop feuding with one another.  In simple societies, they are very often characterized by such feuding which have lasted for generation (i.e. West Virginia). Even in our society, this settling of disputes is not foreign to our culture. 


The way in which the Ordeal became Christianized was that it came to the priest for settling.  Soon after, the priest was no longer allowed to play an integral role in this process.  It was the purpose of the priest to makes God’s Will manifest.


The “hot iron” incident: fire outside church in which certain iron bars would be placed (depending upon the size according to the issue) the bar would be heated during the Mass (which was a ritual purification) after which the defendant would come out and he would be ordered to carry this hot bar a certain distance.  .  The belief system was that God made the decision and not a human being or a jury, but God Himself and who could argue with Him.




Of course there were many theological problems with this demanding of God’s justice by challenging Him to come and judge a particular case.  That is why in 1215 the Lateran IV Council outlawed the Ordeal. 


Juries (dated back to the 8th and 9th centuries) part of Frankish law exported to England; were also used during this period of time.  It was a continental transplant from the Normans.  Again, we are dealing with unwritten procedure for anything mentioned above with the exception of the liturgical Ordeal.

The trials and cases themselves for the most part are unwritten and un-described and explained.


So what we have, to sum up, in Europe before the revival of Law (from late 11th century) a system of procedure that was not primarily the Ordeal but with the teaching of Canon Law to develop a new mode of proof and make this mode of proof a standard for canonical books.  Thus, we have a larger number of tracts dealing with the ordo iudiuciarius.  So this was very important in the shaping of canon law and its procedure (Romano Canonical Procedure: up until the early 20th century) is the geneaology of the development of this mode of proof that is used in ecclesiastical courts as the only mode by the second half of the12th century (read the article from the web on Ordo Iudciarius about its development and how it becomes the standard mode of proof in canonical courts in the 12th century). In this article you will note that the papacy supports this mode of proofs (Alexander III [1159-1180]: who was significant in decretal legislation and laying down the general norm that was the OI which represented what we called “due process.”


The canonists had a major problem with this: there were one mode of proofs in the secular courts and you have another mode of proof in the ecclesiastical courts: contextually, one can only imagine the problems if the Federal Courts allowed jury trials but they were not allowed in State Courts.  This same problem could be likened to the same issue that the canonists had with the duo-procedural methods. 


So the canonists had a problem of justifying the ordo iudiciarus.  In the middle of the 12th century: Paucapalea and Stephen of Torne used Genesis 9:14: Why would the canonists use this?  When God first entered He asked “where are you?”  If God is omniscient did He not know where Adam was?  What was key for Stephen and Paucapalea was the even God had to conform to the ordo iudiciaius in a trial.  It was justification for this new mode of proof and systematic procedure.  When Adam explained that he ate because…. Which was an “exception” and more than that, it was accusing God of entrapment, because He set him up. An exception to the accusation; “yes I did eat from the tree of life”, however, there is a exonerating fact that the court has to consider that you gave me the person who tempted me and you bear responsibility for giving me the woman.  The canonists first made arguments that were accepted by subsequent canonist that the first ordo iudiciarius had to be respected by God Himself, and because of this truth, who is justified by not respecting this. 


There are  couple of other legal issues that the canonists had to deal with the next century and a half (1150-1170) it was accepted that OI was an ancient tradition that could supplant the custom of the people; however, when the Romanist read the Digest (the first part which deal with the origins of law and procedure that the Romans called actio which is based on civil law.)  The implication of this is: a mode of proof is taken from positive law.  Today would be say that is was not based on any divine judgment or constitutional rights but simply a part of positive law and its legal implication is that: you can change it or you can dispense from it, you can get rid of it and use some other means of proof.  There is no reason why this norm has to be employed.  The canonists (a real interesting way in which canon law is influenced by the Old and New Testaments and the norms of Christianity of how these come together in an extraordinary way). The canonist made the argument that “no, the OI had its origina in the Garden and had its origin in “natural law” (which has lost so much of its import in today’s culture). OI was not part of civil law but part of natural law and thus, NO ONE absolutely no one could take the due process of the norms of the OI away from any defendant.  And by the time of the late 13th century, a French canonist who was a Roman Catholic Cardinal: Johannes Monachus (“John the Monk”) wrote a long commentary on the OI and decided that the summons to court was determined by natural law and not even the pope could not issue a sentence without the person being presence in the court.  The judgment, the sentence and (Genesis 3:12) prove that both was necessary.  And Johannes refered back to Stephen, et. al. and Guillelmus Durantis wrote the most comprehensive treatise (4 volumes) on the OI during the modern period that was used as the standard procedural handbook until the 19th century and he concluded that if God was held summoned to Adam and even if the Devil were summoned into court then he was entitled to the right of due process and that of the OI.  What  is remarkable is that the Cardinal needed a maxim and aphorism that meant this right to have a lawyer and present evidence, to have your sentence or judgment rendered in a public court and he came up with the maxim “the one who is presumed innocent unless they may be proved guilty.”


Form the view of American Law and Americans: this maxim represented a bundle of rights for the defendant (which is not the case in American history of law: just meant some simple safeguards that must take place in a trial), but secondly, this is the first time that this maxim appears in history in any legal system. And of course this maxim has a long history in canon law.  What it represented is that the right of the defendant to have due process is absolute and NO ONE can take that right away.  This of course flies in the face of the notion that canon law never had the sensitivity of the rights of the people in mind!