Gratian
Gratian achieved a similar result, further affirming and heightening the new value of legality—that is, of the role assigned to the “law” in assuring order in society. That “law” was not to be conceived as detached or isolated from justice and divine precepts, yet it had to be distinct from them in its form and function in order to establish and broadcast its own autonomous value.
Gratian deserves our admiration for the audacity of his innovative positions identifying a canon law autonomous of theology. This was a burning problem, difficult to resolve in any clear-cut manner, and in fact Gratian treated it with great prudence and expressed a variety of reservations.18
Every human action and every human thought could lead the human soul to perdition or salvation; it could be a sign of virtue or vice, of heavenly destination or condemnation to hell. The repentant Christian was expected to tell his sins, in deed and in thought, to his
ι6. See Calasso, Medw Evo del diritto, 478-79.
17. Ennio Cortese, Liinormagiuvidica: Spunti teorici nel diritto comune classico, 2 vols. (Milan: Giuffre, 1962-64), 1:68; 2347ff.
18. See Calasso, Medio Evo del diritto, 394—96. or her confessor because God sees everything and judges everyone. But what of the earthly judge? How was he to judge thoughts not transmuted into deeds, accomplished or initiated? How were thoughts to be proven? And why should they be proven if unexpressed thoughts had harmed no one, damaged nothing, and did not disturb civil cohabitation, but had offended only an order that God had imprinted into the human conscience?
Gratian’s position had a revolutionary impact. It assigned to the jurist (and thus to human law) only the task of evaluating and judging acts, not hidden thoughts. This position had several important consequences.
It removed from the clergy, as clergy, the power to control the entire range of human activities in view of practical ends, because it was not the task of the clergy to restore a violated social order. The church was recognized to have and to retain control over actions, and even over thoughts, insofar as they concerned the dictates of Christian doctrine and related to the goal of the soul’s salvation. The earthly judge (who might on occasion wear ecclesiastical vestments) was entrusted with judgment of earthly acts relevant to the social context, as expressed in the new ordo of Roman and canon trial procedure of the last decades of the twelfth century.Although in Dante’s eyes Gratian had earned his place in paradise for having separated Tuno e Faltro foro,” the inner “forum” of conscience and the outer one of acts {Paradiso, X, 104-105), for many people of his time Gratian must have seemed a nettlesome personage who was working hard to take power and social functions away from the church hierarchy. Quite the opposite was true: following in the footsteps of a long line of reformers in the pre-Gregorian reforms, the Gregorian reforms, and the reforms of monastic culture instituted by the Camaldolese order, he was using the law to regenerate the church as a universal order.
7.