Canon Law: The First Modern Western Legal System

TO ASSERT THAT a system of canon law was created -- or, to put it another way, that the law of the church became systematized -- for the first time in the century and a half between 1050 and 1200 is not to deny that a legal order had existed in the church from its early beginnings.

Over the centuries the canons issued by synods and ecumenical councils, as well as by individual bishops, multiplied, and occasionally they were brought together in unofficial collections, which also contained rules laid down in Scripture and in the writings of the church fathers as

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well as individual decretal letters and decisions of patriarchs, popes, and bishops, together with rescripts and enactments of Roman emperors and other rulers concerning the church.

bequests, rights of possession, use, and disposition of church lands and buildings; (2) ecclesiastical authority for example, powers of appointment to church offices, procedures for settlement of

disputes among clergy, disciplinary sanctions; (3) relations between ecclesiastical and secular authorities for example, exemption of clergy from trial by secular courts in certain types of cases;

(4) crime __ for example, lists of penances to be imposed for various kinds of offenses, including homicides and perjury; and (5) marriage and family relationships_________________________________________________ for example, marriage

impediments, legitimacy of children, dissolution of the matrimonial bond.

These ecclesiastical laws, both in the West and in the East, were heavily influenced by Roman law. Various concepts and rules of classical and postclassical Roman law were carried over, especially in matters of property, inheritance, and contracts. In addition, the compilations of Justinian and his successors in the East contained a great many imperial regulations concerning liturgy and theology as well as ecclesiastical authority. 5_In the West also, ecclesiastical regulations were issued frequently by kings and emperors; indeed, the Frankish emperors claimed to inherit the mantle of Roman imperial authority over the church. Moreover, in the clan-dominated culture of western Europe the church was considered to be a bearer of Roman law, and the eighthcentury "code" of the Ripuarian Franks, the Lex Ribuaria, contained the provision: Ecclesia vivitjure Romano ("the church lives by Roman law").

In addition, the laws of the church during the first millennium of its history bore the strong influence of the Bible, especially the Old Testament. From the Bible the church derived the authority of the Ten Commandments and of many other moral principles formulated as divine commands. Beyond that, the Bible transmitted the pervasive belief in a universal order governed by the God who was both supreme legislator and supreme judge. As heir to the tradition of Israel, the church took

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seriously the numinous character of law, its pervasiveness in the divine order of creation. Moreover, many specific rules of conduct contained in the Old and New Testaments, as well as many Biblical examples and metaphors, were carried over into ecclesiastical canons.

Of course, the legal concepts and rules that prevailed in the church in the West from the fifth to the tenth centuries were influenced not only by Roman law and Biblical law but also, and especially, by the folklaw of the Germanic peoples, with its emphasis on honor, oaths, retribution, reconciliation, and group responsibility.

The existence, prior to the eleventh century, of a great many ecclesiastical laws, governing a wide variety of relationships both within the church and between the church and the secular authorities, has led many scholars to doubt the thesis of Rudolph Sohm, the great German legal historian, that the "old Catholic" church law, as he called it, was essentially sacramental, spiritual, and theological in nature, and that only after Gratian's treatise did canon law become truly "legal" in the modern sense. 6Sohm said that prior to the twelfth century the church was essentially a spiritual or sacramental community, not a legal community. Yet, as Stephan Kuttner has pointed out, the "interlacing of the 'spiritual' and the 'material,' corporative side of the Church is as old as the Church herself and...

Despite these qualifications, what is true and important in Sohm's thesis can perhaps be rescued. It is generally recognized that prior to the late eleventh century the material and corporative sides of the church were fused, to a much greater extent than they were later, with its spiritual and sacramental sides. Professor Kuttner would perhaps agree that the "basic dualism" of which he speaks, which became so prominent in the century after the reign of Pope Gregory VII, was not felt to be basic in the earlier period -- at least not to nearly the same degree. Distinctions between the sacred and the profane were much less pronounced. The jurisdictional element of the church's law was viewed as an integral part of the sacramental element, which embraced not only such liturgical events as baptism, marriage, and ordination but also an undefined variety of moral and spiritual acts and rites. This was connected with the high degree of heterogeneity and the intensely local character of the churches in pre-Gregorian Christendom.

More particularly, the "interlacing" (to use Kuttner's term) of ecclesiastical law with liturgy and theology was so strong that it apparently did not occur to anyone to separate out the legal aspects and to transform

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them into a system. Indeed, in the collections of ecclesiastical laws that were compiled prior to the late eleventh century, legal rules were wholly mixed up with rules (and nonrules) concerning worship and faith. The term "canon law" (jus canonicum) was not regularly used before the twelfth century, and the phrase jus ecclesiasticum was applied to that part of imperial or royal or feudal law that governed ecclesiastical relations.

The systematization of the laws of the church in the late eleventh and the twelfth centuries was closely related to the Papal Revolution in all its aspects. As early as 1050, at the very start of the reform movement, a collection of canons and other texts, the Collection of 74 Titles, was published, which went back to decretals of early popes and Roman councils to give a legal basis for papal supremacy over the church and for ecclesiastical independence from secular authority. This was followed by other similar collections -- of Anselm of Lucca, Cardinal Deusdedit, and other leading reformers. In the period after the death of Pope Gregory VII and before Gratian many new collections appeared. In the 1090s the works of Ivo of Chartres represented the first effort to portray the whole law of the church in a coherent form -- a Pannormia ("all law") as he called it. This great burst of legal scholarship testifies not only to the emergence of a cohesive group of canon lawyers but also to the importance attached to canon law by the leaders of the Papal Revolution. This development was closely connected with the proclamation by the papacy of its right to legislate. Gregory VII asserted for the first time the power of the pope to "create new laws in accordance with the needs of the times." 8_The new laws, called decretals, issued by him and his successors were not viewed simply as incremental additions to the preexisting canons but as something new. Thus a revolutionary periodization was introduced into the history of ecclesiastical law, and it became possible to summarize the laws on the basis of that periodization. This summarizing movement culminated in 1140 in the great treatise of Gratian, which was immediately recognized as both a definitive summary of what was called the jus antiquum and an integration of it with what was called the jus novum.

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rooted in the past but growing into the future. Contrary to what is sometimes supposed, this concept of legal evolution was not an invention of Edmund Burke, Friedrich von Savigny, and the "historical school" of the eighteenth and nineteenth centuries; 10 _it was a basic presupposition of

Western jurists___ and nonjurists____ from the late eleventh and the twelfth centuries on, first in the

ecclesiastical sphere and then in the secular.

These interrelated elements -- (1) the perioclization into old law and new law, (2) the summarization and integration of the two as a unified structure, and (3) the conception of the whole body of law as moving forward in time, in an ongoing process -- are defining features of the Western legal tradition. Gratian's book, which was viewed as part of the ongoing process of the law itself, received almost immediate recognition as an authoritative statement of the canon law. Besides taking a place alongside the Roman law texts as a principal object of study in the European law schools, it was cited as authoritative by popes, church councils, and ecclesiastical courts. Being relatively loosely organized and open-textured, it was designed to be glossed and summarized; and glosses, commentaries, treatises, and monographs on it soon appeared in abundance.

On the foundation provided by Gratian's work it was possible to build an edifice not only of scholarly glosses and summaries but also of judicial decisions and legislation. Pope Alexander III ( 1159-1181), himself a famous jurist (under the name Rolandus Bandinelli) and a former pupil of Gratian, issued seven hundred decretals which have been preserved, in addition to others which have not been preserved. Many of these were, in effect, holdings in decided cases, that is, rules of law which were the necessary implication of the decisions. Pope Alexander III summoned the Third Lateran Council in 1179, and Pope Innocent III, an equally distinguished jurist, summoned the Fourth Lateran Council in 1215; from these councils there emerged hundreds of new laws. (The councils were held in the Lateran Palace in Rome, which was also used as the cathedral church.) In the last decade of the twelfth and the first decades of the thirteenth century five major systematic compilations of decretals were prepared. Finally, in 1234 under Pope Gregory IX there appeared a comprehensive collection of decretals, containing about two thousand sections, which summarized and systematized the work of almost a century; together with Gratian's Decretum, the Decretals of Gregory IX remained the basic corpus of the canon law of the Roman Catholic Church until the adoption of the Code of Canon Law of 1918. ¹¹ These compilations were glossed, commented upon, and summarized by legal scholars; indeed, the popes officially issued the compilations directly to the universities. In these aspects, too -- the close relationship between legal scholarship and legal practice, and the dialectical character of legal scholarship manifested in the glossing and summariz- -203

ing of authoritative texts_____ the new developing system of canon law exerted a formative influence

on Western concepts of the nature of a legal system.

The systematization of canon law was not, however, merely an intellectual matter. The tensions between the old and the new, the whole and the parts, or theory and practice could not have been harmonized by books and lectures alone, although legal science played an extremely important role in the harmonizing process. Nor could theology alone, or theology and jurisprudence together, have maintained the integrity of the legal system. It was necessary also that harmonizing elements be built into the positive law itself.