6 The legal underpinnings. anders winroth

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1 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 89 [89 98] :44PM 6 The legal underpinnings The legal underpinnings of the Western church experienced a major transformation during the twelfth and thirteenth centuries. This was a period in which papal legislation found its stride, in the form of conciliar decrees and papal decisions. Papal jurisdiction was much expanded and produced a rich body of case law which became systematically collected. The law of the church, canon law, became a subject of study in the emerging universities of Europe, which produced an expanding and often innovative body of commentary and analysis. As a result, canon law moved towards greater complexity, sophistication and precision. The reasons for this development are to be found in general developments within European government and administration as well as in the history of the high medieval church. The movement to reform the church, which is usually thought to have begun with the German Emperor Henry III s intervention in the affairs of the papacy in 1046, propagated a vision of the church that was firmly rooted in law. The reformers also used law in impressing that vision on clergy and laity. These circumstances gave impulses to both the study of law and renewed vigour in ecclesiastical legislation. Great efforts to trawl libraries and archives for law and to collect it in useful formats characterised the first century after Among the discoveries were many canon and Roman law texts, including Justinian s Digest. Many authors compiled collections of church law along lines that furthered the goals of the papal reform movement. Notable is the collection (c. 1083) of Bishop Anselm of Lucca, who was a close associate of Pope Gregory VII ( ). His work with its insistence on the power and supremacy of the papacy bears out that pope s programme. Anselm was the first canonist to bring a systematic effort to collecting the law concerning just war, a topic of immediate relevance in a time of open war between the German emperor and the papacy, and on the cusp of the crusades. The collection (c. 1087) of Cardinal Deusdedit has a similar tendency, as does the Polycarpus (c. 1111) of Cardinal Gregory of St Grisogono. 89

2 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 90 [89 98] :44PM The French bishop Ivo of Chartres took a more moderate position in his collections (1090s): the Panormia was a very influential handbook and the Decretum, containing 3,760 chapters, was the largest repository of canon law up to this point. His works covered a greater thematic range than those of his predecessors. Like them, Ivo included only authoritative texts and no commentary in his own voice. He provided, however, a Prologue outlining a scholastic programme for reconciling conflicting authorities. Ivo encouraged users of his collections to distinguish between seemingly contradictory canons that might be of different authority, applicability or authenticity. His own opinions on specific legal issues may sometimes be gleaned from the large collection of letters that he left behind, many of which contain legal advice that other bishops had requested. While Ivo himself did not practise his proposed programme in his canonical collections, other canonists produced a few small monographs treating particular legal issues along such lines in the early twelfth century. Most remarkable is the Liber de misericordia et iustitia (before 1101) of Alger of Liège, discussing the problems of the church at the time, including simony and the validity of sacraments administered by unworthy clerics. In addition to the authoritative texts he quoted from legal sources, Alger included (in dicta ) his own arguments and conclusions along the lines that Ivo had put forward. Most of the canon law collections mentioned above included some excerpts of relevant Roman laws. Texts deriving from the Theodosian Code (438) had been known and used throughout the early Middle Ages. Much of the Code was included in the Lex Romana Visigothorum (506), which was used by the Pseudo-Isidorian forger in the ninth century. In the 530s, Emperor Justinian pulled together the products of centuries of Roman legislative and jurisprudential activity into a voluminous legal corpus, which until the twelfth century had only limited immediate influence on Western European legal history. This body of sophisticated law became the subject of systematic study at about the same time as canon law, in the early twelfth century. Canon law collections provide a window into the rediscovery of Justinian s compilations, because they incorporated snippets of Roman law as it became available. Deusdedit was the first to quote the Novellae (in the widespread medieval Latin translation and rearrangement known as the Authenticum). In the 1090s the anonymous Collectio Britannica and then Ivo quoted passages from the first part (Digestum vetus) of Justinian s Digest, which was apparently rediscovered piecemeal. Fragments from the last part (Digestum novum) followed in the Polycarpus. There is no evidence for use of the middle part (Infortiatum) until c

3 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 91 [89 98] :44PM The legal underpinnings This collecting activity provides the background for the beginnings of the academic study of law. The first half of the twelfth century was a period when the centres of study that would develop into universities first took shape. The premier site for legal study was Bologna, where a group of teachers were active by the 1130s, at the latest. In Roman law, the Four doctors (Quattuor doctores), including Bulgarus (died c. 1166) and Martinus Gosia (died c. 1160), mastered and taught Justinian s works. The Bolognese teachers included Gratian, who soon after 1139 finished the first recension of his textbook in canon law, the Concordia discordantium canonum ( The concord of discordant canons ), also simply known as the Decretum. Almost nothing is known about Gratian, except that he was the author of at least one recension of his book. He probably appeared in 1143 as an expert in a court case in Venice, but it remains unclear whether he was a bishop or a monk, as is variably claimed by different later sources. The first recension of the Decretum contained some 1,860 chapters. After a long introductory treatise on clerical ordination and life ( the first part ), these canons are organised into thirty-six thematic causae ( cases ), each divided into from two to eleven questions. The De penitentia a long treatise on penance interrupts the thirty-third causa. As did his predecessors, Gratian included material from many kinds of sources, including legislation of general and provincial councils, papal decretals, the writings of the church fathers, the Pseudo-Isidorian decretals, penitentials and secular law. Within each section, the canons are put into the framework of Gratian s discussion (dicta Gratiani), in which he resolves contradictions among them, using the methods of early scholasticism similar to those that Ivo of Chartres had outlined. His book was used both as a teaching tool (a reasoned text book of valid law) and as a repository of ecclesiastical legislation from the first millennium. It fell short in the second respect, resulting already in the 1140s in the production of a second recension of double size, containing some 3,800 canons. A notable addition is the entire third part of the Decretum, a treatise on some sacraments (especially baptism and the eucharist) known as the De consecratione. Otherwise, the additions are spread over practically all sections of the text. The first part became divided into 100 (later 101) distinctions. Among the additions are some 200 excerpts from Justinian s Roman law corpus, while the first recension simply contains excerpts that had already been included in earlier canonical collections, such as Ivo s works and the Polycarpus. The second recension became accepted as the definitive collection of earlier legislation (the ius antiquum), and later canonists only rarely went back to previous sources. The differences in outlook and methods between 91

4 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 92 [89 98] :44PM the recensions are great, and many scholars believe that they had different authors. The Decretum was fundamental for the teaching of canon law and for ecclesiastical courts during the rest of the Middle Ages and beyond, despite its being the product of private enterprise and never officially promulgated by any church authority. It was included in the Corpus iuris canonici, which was valid law in the Catholic Church until The first generations of teachers using the Decretum as a textbook (the decretists ) noted their interpretations, cross-references and commentaries as glosses in the margins of manuscripts of the text. Many decretists composed sets of glosses extending over the entire Decretum, always drawing on previous scholars. Many such compositions are preserved, either in the margins of Decretum manuscripts or as separate works. In the 1140sor 1150s, Paucapalea composed the earliest such commentary that is extant. Among later canonists producing influential commentaries on the Decretum are Rufinus (c. 1164), Stephen of Tournai (c ), Johannes Faventinus (c. 1171), and most importantly, the acute and original thinker Huguccio (after 1188). Johannes Teutonicus summarised this tradition in the definitive collection of glosses on the Decretum, its Glossa ordinaria, in c Bartholomew of Brescia revised the Glossa in c to take account of the Liber extra (see below). In addition to interpreting Gratian s Decretum, teachers of canon law began to collect new legislation. They were particularly interested in papal letters with useful legal content. The volume of such letters grew exponentially throughout the High Middle Ages. While an average of less than fifty letters of any sort are preserved from each year of the papacy of Gregory VII ( ), the corresponding figure for Innocent III ( ) is 303 and for John XXII ( ) 3,646. Many of these letters delegated the pope s judicial authority in individual disputes and criminal cases to local churchmen, who were charged with finding out whether the facts in the case corresponded to what the pope had been told. If so, the delegated judges were to adjudicate in accordance with the pope s precise instructions. Such letters are called decretals and make up a kind of papal case law. Popes had issued decretals for centuries, but Pope Alexander III ( ) led the way in making them a major tool of papal government. More than 700 decretals are preserved from his papacy. The decretalists began to collect excerpts of decretals soon after the completion of Gratian s Decretum. The instructions from the popes might be applied to other cases. The decretals, thus, retained their value as authoritative determinations of valid law after the conclusion of the specific cases they addressed. At first, canonists copied such letters on flyleaves of their 92

5 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 93 [89 98] :44PM The legal underpinnings manuscripts of the Decretum or other law books. In the 1170s, separate collections began to circulate, especially in England. The collectors usually cropped away words in the letters that had no legal value, such as the names of the litigants or of disputed property. At first such collections were without logical order, but they soon became systematic. A path-breaking collection was the Breviarium extravagantium canonum (1188) of the Bolognese law teacher Bernard of Parma, which joined Gratian s Decretum as a fundamental textbook of canon law in the Bologna law curriculum. Bernard included 912 excerpts from decretals. He designed an organisation modelled on the sources of Roman law, dividing his work into five thematic books (focusing on judges, judgments, clergy, marriage and crimes, respectively, according to an old Latin mnemonic). Each book was divided into titles addressing individual subtopics. Later decretal collections use the same organisation. The formal authority of such compilations resided in the fact that each individual decretal had been issued by a pope, while law professors selected and arranged the texts. This meant that the papacy controlled imperfectly which recent laws were being taught in the law schools. Furthermore, forged decretals were introduced into some collections. In 1210, Pope Innocent III ( ) attempted to remedy this. He reviewed a collection of decretals from the first twelve years of his papacy that the canonist Peter of Benevento had completed. The pope sent it to Bologna with a brief preface instructing the law teachers there to use it in courts and classrooms. Bolognese law professors collected the decretals of the popes immediately before Innocent, as well as his legislation after 1210 in two further compilations, which were not officially approved. In 1226, the canonist Tancred, at the instigation of Pope Honorius III ( ), brought together the decretals of this pope in yet another collection. These five works are collectively known as the Quinque compilationes antiquae ( The five old compilations ). In addition to papal decretals, they included legislative decisions of church councils, especially the Third (1179) and Fourth (1215) Lateran Councils, as well as a few imperial constitutions. Pope Gregory IX ( ) commissioned the canonist Raymond of Peñafort (d. 1275) to bring together the five compilations and Gregory s own legislation into a single collection, removing superfluous material and adding new laws as needed. The resulting book, known as Decretales Gregorii IX ( The decretals of Gregory IX ) or Liber extra, was promulgated in 1234 as the definitive collection of canon law since Gratian. It contains 1,871 excerpts, as compared to a total of 2,143 in the five Compilationes. Later papal legislation appears in other similar collections, including the Liber sextus (1298) of Pope Boniface VIII ( ). 93

6 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 94 [89 98] :44PM Law professors at Bologna and elsewhere lectured on the various collections of decretals, producing commentaries and summas. The former follow and comment on the authoritative text line by line, while the latter summarize topics in the same sequence as the text book, but the organisation within each topic is determined by the author. Pope Innocent IV ( ; Sinibaldo dei Fieschi) and Cardinal Henry de Segusio (known as Hostiensis, since he was the cardinal bishop of Ostia; d. 1271) compiled the most important commentaries on the Liber extra. Hostiensis also wrote a major summa (later known as the Summa aurea, the Golden summa ) on the Liber extra, following the model of the Summa of Goffredus de Trano (d. 1245). Bernard of Parma summarised the commentary traditionontheliber extra in the Glossa ordinaria before his death in In addition to glosses, commentaries and summas on the different law books, jurists began to produce monographs during the last decades of the twelfth century, breaking free from the organisation but not the contents of the authoritative law books. The earliest such works were treatments of legal procedure, not surprisingly since the sources of Roman law contain no section devoted exclusively to such law, and its treatment in Gratian s Decretum leaves much to be desired. Medieval legal procedure relied heavily on both Roman and canon law and is therefore known as romano-canonical procedure. An important summa on procedure is the Ordo iudiciarius (c. 1215) of Tancred, which was followed by the massive Speculum iudiciale (completed c. 1271; revised c. 1287) of William Durand (d. 1296). Other summas treated specific areas of church law, such as the election of bishops, marriage and penance. Among the most familiar are the summas on penance (c. 1225) and on marriage law (c. 1235) by Raymond of Peñafort. Bernard of Pavia also produced a summa on marriage law as well as a treatise on canonical election. The doctrines of canon law developed greatly during the period. Not only did new laws take form, but all law acquired greater precision and complexity. This was a part of the general tendency in the High Middle Ages towards greater administrative sophistication that is often summarised under the label from memory to written record. With respect to the laws of the church, the move towards complexity was also a product of the encounter with Justinian s Roman law. Its sophistication influenced canon law greatly, lending it structure and intellectual precision. Roman law is conspicuous in the various works of commentary and analysis in canon law, as is evident simply from the large number of references to Justinian s compilations in the writings of medieval canonists. The result was the development in the law schools of a new legal system, the so-called 94

7 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 95 [89 98] :44PM The legal underpinnings ius commune, or European common law, which was based on canon and Roman law but which went beyond each of them. The ius commune informed practically all European legislation and judicial activity throughout the Middle Ages and beyond. The thematic scope of canon law was in the main laid down with the second recension of Gratian s Decretum, which took its cue from the wide range of matters that Ivo treated in the Panormia. In addition to internal church matters (papal authority, ecclesiastical hierarchy and property, monastic life, heresy) and the administration of the sacraments (including marriage), the Decretum addresses subjects that a modern reader might think of as secular, such as some economic matters and the law of war. Central to canon law were rules for handling church affairs. The authority of the pope grew during the Middle Ages so that the constitution of the church certainly by the papacy of Innocent III may be characterised as a sovereign papal monarchy. Secular rulers from emperors to aristocratic Roman families had long had an often decisive say in the appointment of a new pope, but this changed. A Roman council in 1059 laid down a new procedure for electing the pope: the cardinals, in the first place the cardinal bishops, elected him. The role of secular persons was restricted to agreeing to their choice. The Third Lateran Council (1179) revised the rules to specify that a two-thirds majority among cardinals of all ranks is required for election. This rule still applies. Pope Gregory VII demanded wide-reaching powers through a short text inserted into his chancery register, the so-called Dictatus pape, which is a summary of the legal rights he claimed for the papacy. Anselm of Lucca collected legal texts supporting at least some of the claims, which were then accepted or modified by Gratian and the jurists following him. Among these was the rule that the pope may be judged by no one, while he may judge everyone, clergy as well as laity (including emperors and kings). This claim had often been put forth since the fifth century, without preventing kings and emperors from in fact sitting in judgment over popes. Gregory VII s and his successors insistence led to the full acceptance of this principle, making the pope a sovereign ruler. It also led to the creation of the large apparatus of papal jurisdiction, including a Roman curial bureaucracy, papal legates and delegated judges. The pope s jurisdiction over everyone, secular and religious alike, was an aspect of his fullness of power (plenitudo potestatis). This concept contrasts the full authority of the pope with the lower share in caring (pars sollicitudinis) that he delegated to other churchmen. Pope Leo I (440 61) used the terms in this sense. The second recension of Gratian s Decretum quotes him. At the 95

8 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 96 [89 98] :44PM same time, about 1150, Bernard of Clairvaux developed and popularised the idea in his De consideratione. The popes, especially Innocent III, appropriated it to justify their claims on supremacy within the church and over secular society. Canonists adopted and refined the concept further in their lectures and publications. They argued that the pope was above human law. He was able to make exceptions from the ordinary course of canon law for the benefit of individual persons and institutions or collectives (such as monastic orders or the clergy in its entirety). Many such privileges are preserved, for instance allowing laymen to listen to mass also during interdicts (when all church services were otherwise suspended within a region), or allowing men born out of wedlock to become priests. Some commentators, but not all, went further and asserted that the pope, as the vicar of Christ, could dispense even from divine law. He was, for example, able to free monasteries and even laymen from paying tithes, which God was thought to have instituted. Hostiensis was the strongest proponent for papal power among the canonists. He claimed that the pope could even square circles, although he must always use his power properly, expediently and for the common good. With the papacy s legally founded claims to power came the religious responsibility of organising the life of the clergy in accordance with Christian ideals, as they were understood in the reforming circles. The papacy sought to impose these ideals on a sometimes remonstrating society. The reformers sought to separate clearly the clergy from the rest of society. Hence ecclesiastical legislation from the period abounds in rules emphasising the separateness of the clergy. Clerics should be tonsured, not wear elaborate clothing, not participate in typically lay activities, such as war, chess or hunting. They must not be judged in secular courts but only in ecclesiastical courts (privilegium fori). They must not buy their offices from laymen ( simony ), and they must not be married. The ideals behind these prohibitions were nothing new but, from the middle of the eleventh century, there was a new sense of urgency. The papacy sought to implement them through legislation, but this was not a quick process. For instance, even as late a canonist as Gratian hesitated about exactly how the prohibition against clerical marriage was to be interpreted. If a cleric married, the strength of the bond of marriage was such, he argued, that the marriage could not be dissolved. Rather, he had to leave his clerical office. Stephen of Tournai disagreed, stating that such a union was not a marriage. His standpoint set the tone for the rest of the Middle Ages and beyond. On their side, the popes did not strictly enforce the strictures against clerical marriage either. Alexander III still issued dispensations allowing clerics to 96

9 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 97 [89 98] :44PM The legal underpinnings remain married, but this became increasingly unusual. By the thirteenth century, many clerics still lived in unions with women, and there were overt protests against a law that some thought too strict. The prohibitions, however, succeeded in establishing such relationships as concubinates and marking children born of them as illegitimate. Measures enforcing clerical celibacy became more effective only in the sixteenth century. The prohibitions against simony were more successful. Legislation against this abuse was issued repeatedly at councils between 1159 and the First Lateran Council of Many influential churchmen wrote treatises against simony, including the canonist Deusdedit (Libellus contra invasores et simoniacos, finished before 1095). Later in the twelfth century, and for the rest of the Middle Ages, councils and pope more seldom promulgated such legislation, suggesting that simony had become less of a problem. The procedure for electing bishops was laid down with more rigour, to exclude lay influence. Such rules soon became obsolete, as the papacy took direct control of the appointment of bishops, particularly during the course of the thirteenth century. The rules for canonical elections are still important, because they shaped the practice of secular elections taking form during the later Middle Ages. Beyond regulating its own affairs, the church claimed and often achieved jurisdiction over several aspects of lay life. The theoretical justification for this was that the church is responsible for preventing sin, so any human action that might lead to sin was subject to canon law. Marriages fell under canon law and ecclesiastical jurisdiction in most of Western Europe. This was not a foreordained outcome, since secular law had a long tradition of marriage law. At the beginning of the period, there were two competing definitions of how a marriage came about. The coital theory, with roots in Germanic law, considered marriage to start with sexual intercourse between the parties. The consensual theory was based on Roman law and entailed that marriage begins with both parties consenting to marry. Gratian reconciled these theories by arguing that marriage comes about through a two-step process: first consent, then coitus. French theologians argued at the same time for a theory of the formation of marriage more based on consent. The Parisian theologian Peter Lombard (d. 1160) asserted that if the consent was couched in the present, this in itself made a marriage, while if it was formulated in the future tense, subsequent intercourse was required to make a marriage. This inspired canonists active in Paris to adopt a similar stance already in the 1160s. In his decretals, Alexander III followed the French position, rather than Gratian. His stance would be definitive. 97

10 C:/ITOOLS/WMS/CUP/197803/WORKINGFOLDER/ C06.3D 98 [89 98] :44PM The church also regulated some economic matters as opportunities for sin, most famously in prohibiting usury, which it defined as any return in addition to the principal of a loan. Starting in the late twelfth century, canonists worked out exceptions to this general rule to meet the needs of the rapidly expanding European commercial economy. The papal reform movement culminated with the Fourth Lateran Council (1215), at which Pope Innocent III presided over bishops from all of Europe. Ambitious legislation put in place many of the basic building blocks of medieval Christian life. The council defined, for example, the contents of faith (in opposition to various heretical movements, including the Cathars). It also promulgated legislation stipulating that all Christians at least once a year must take communion after confessing their sins to their parish priest. He is bound by secrecy about the confessions he receives. The council prohibited clerics from participating at ordeals, where they had used to bless the implements such as hot iron or boiling water used to find out the truth. This method of proof was less arbitrary than modern persons may think. It was, however, being replaced by the rules of the romanocanonical procedure in which testimony and confession determined the guilt or innocence of the defendant. The normal, accusatorial, procedure always required an accuser who was a private person bringing charges in front of a judge. During the twelfth century, a new procedure called inquisition came into use, first in prosecuting clerics, at least from the papacy of Alexander III. In the inquisitorial process, no accuser had to come forth but the judge took it on himself to investigate rumoured crimes. Innocent III laid down rules for this procedure at the Fourth Lateran Council. Gregory IX brought the inquisitorial process to bear on the prosecution of heretics in appointing special judges, inquisitors, for the purpose of seeking out and punishing heretics. Innocent III had declared that heresy was equivalent to treason against the emperor, so inquisitors were able to use against heretics the Roman procedural rules for prosecuting treason. This entailed several exceptions from the usual procedural rules, including the option to use torture. The period c c represents the apex of medieval ecclesiastical law. This was a defining moment in the church history of Western Europe, when the legal foundations were laid for much that is considered characteristic of the medieval and modern church. The institutions of the church were shaped through papal legislation and the jurisprudence of the law schools, and especially from the interaction between them. 98