Gratian and the Systematic Study of Canon Law
By 1140 or thereabouts—the precise date is unknown—a jurist named Gratian completed a textbook of canon law, which he entitled A Harmony of Conflicting Canons (Concordia discordantium canonum).
The title may seem odd, but its musical metaphor expressed accurately the work’s leading contribution to canonical scholarship. For Gratian’s book was more than just a compilation of conciliar canons, papal decretals, and citations from the Scriptures, the Church fathers, penitentials, Roman law, and other authorities. All of those things were there, to be sure, in the 3,823 chapters of the Concordia, but there was something else as well: in addition to assembling a vast array of authorities on canonical problems, Gratian added his own analyses and conclusions. His comments attempted to reconcile the differences among the legal rules enunciated by various authorities and to frame reasoned conclusions that resolved their inconsistencies. Gratian’s work, then, furnished both a collection of canons and a synthesis of canon law.Gratian’s Concordia revolutionized the study of canon law and gave it an intellectual coherence that it had previously lacked. Earlier collections had produced a cacophony of dissonant opinions, from which lawyers, judges, and pastors could pick whatever suited their purposes, so long as they were content to ignore the rest. Gratian’s book was something new and with its appearance we can, for the first time, begin to speak of canon law as a juristic science.[912]
About Gratian himself we know almost nothing. He probably lived and may have taught in Bologna. Very likely he was a monk, but the evidence for this is not conclusive. We can reasonably deduce from his book that he had some academic training in law, but where he studied and with whom is unknown. Probably he taught law—the Concordia has the earmarks of a work produced for the classroom.
Aside from the evidence of his book, Gratian remains a shadowy, insubstantial figure.[913] The date of the book’s completion is reasonably well established from internal evidence; it includes extracts from the canons of the Second Lateran Council and hence must have been finished after 1139. Since the book seems to have been used in the mid-1140s it was probably finished early in that decade.[914]The sources that Gratian tapped to create his Decretum (to use the short title by which his book is conventionally known) spanned a vast range of literature. Gratian must have had access to a considerable library when composing his work. He drew heavily from earlier canonistic collections in putting together the Decretum. He certainly relied on Ivo of Chartres and Anselm of Lucca, and apparently utilized collections of conciliar decrees and papal letters that have not thus far been identified and may no longer exist.[915] Whatever else he may have been, Gratian was certainly diligent and widely read.
The Decretum is oddly structured; its inconsistencies may well indicate that Gratian put the work together gradually over a long period of time. In its finished form, the Decretum seems to incorporate a number of shorter works stitched together to make the final product, which is in three parts.
Part I deals with the foundations and sources of canon law, its relationship to other types of law, the rights, powers, and obligations of the clergy, administration of Church property, and related matters. This portion of the Decretum is divided into units called Distinctions, of which there are 101; each Distinction is subdivided into chapters, and each chapter consists of a statement from some earlier authority dealing with the subject treated in that particular Distinction. A more or less logical scheme of development is apparent within most of the Distinctions.
Typically, Gratian presented a chapter or two explaining one interpretation of a particular theme and followed this with a second group of chapters advocating a different view or interpretation.
Quite often these groups of chapters are separated by a dictum consisting of a paragraph or two in which Gratian analyzed the argument of the preceding chapters and introduced the opposing views. He frequently inserted a concluding dictum toward the end of a Distinction, setting forth his own conclusions about the issue and the reasoning that supported them.Part II, the longest section of the work, is arranged on a different plan. This section consists of thirty-six Cases (Causae). Each begins with a statement of a problem, often in the form of a brief story. Thus, for example, the last Case in Part II begins:
A certain man lured someone’s daughter with gifts and invited her to a banquet without her father’s knowledge. After the meal the young man took advantage of the girl, who was a virgin. When her parents learned of this they presented the girl to the young man and, as is usual with persons getting married, the young man gave her a wedding gift and publicly took her as his wife.
Having set the scene by outlining this hypothetical situation, Gratian then formulated a series of questions about the legal consequences of the events described in the story. In Case thirty-six, for example, he framed two questions:
Question I: Did the man ravish the young woman?
Question II: Secondly, can a rapist marry his victim if her father gives his consent?[916]
Gratian then discussed each question in turn, citing authorities to support different views of the case. He also supplied dicta in which he analyzed the issues and presented his own conclusions about the way in which they should be resolved—he gave three authorities on the problem raised in Question I of Chapter thirty-six, for example, and explained his own views in three dicta. For Question II he adduced a dozen authorities and discussed the differences between them in four dicta.
Part II of Gratian’s Decretum smells of the classroom. Its structure strongly supports the belief that Gratian taught law somewhere, very likely at Bologna.
It covers a wide range of topics—judicial procedure, evidence, the powers of bishops, tithes, usury, the law of war, heresy, and more. Cases twenty-seven through thirty-six are sometimes referred to as the Treatise on Marriage (Tractatus de matrimonio), since those ten Cases deal primarily with problems involving marriage and sexuality. It comes as a shock when reading through the Treatise on Marriage to discover that Gratian—or perhaps an early editor— inserted into the middle of Case thirty-three (which deals with marital impotence) a brief minitreatise on penance, the Tractatus de poenitentia. Stranger still, the Treatise on Penance is subdivided into four Distinctions, on the same pattern as the Distinctions in Part I. Students of Gratians book have tried for eight hundred years to make sense of this peculiar arrangement.Finally, Part III is subtitled Treatise on Consecration (Tractatus de consecratione) and deals with liturgical matters, the ecclesiastical calendar, and sacramental law. This section resembles Part I in that it is divided into Distinctions—only five of them this time—but, unlike both Parts I and II, includes no dicta. This absence of dicta suggests that Part III may have been an afterthought, tacked on to the body of the Decretum after the bulk of the work had been finished.®
Attempts to reconstruct the history of Gratians work are greatly complicated by the fact that the Decretum continued to grow after Gratian had finished it. At various points in its formation, other hands revised the original. An early editor inserted about ιoo chapters into the Decretum at some point in the early 1140s; these insertions are labeled paleae in the early manuscripts of the work. It is probable, but not certain, that other revisers made further alterations in the text.7
The Decretum soon became a standard canon-law textbook. It was studied as an authoritative exposition of the law in the schools of Bologna soon after Gratian finished it.
The Decretum was an enormous success, and it became by medieval standards a best-seller all over Europe. Indeed it remained a best-seller for centuries, for it continued to be used as a basic textbook in canon law faculties until relatively recent times.8 Despite its great success, however, Gratian’s book6For more detailed analyses of the structure of the Decretum see Stickler, Hist, iuris canonici, pp. 205-207; Van Hove, Prolegomena, pp. 340-42; and LAC, pp. 75-99. On Part HI in particular see John H. Van Engen, “Observations on ?De consecratione’,” in Berkeley Proceedings, ρρ. 309-20.
7Jacqueline Rambaud, “Les paleae dans Ie Decret de Gratien, ” in Proceedings of the Second International Congress of Medieval Canon Law, Boston College, 12-16 August 1963, ed. Stephan Kuttner and J. Joseph Ryan, MIC, Subsidia, vol. 1 (Vatican City: S. Congregatio de Seminariis et Studiorum Universitatibus, 1965; hereafter Boston Proceedings), pp. 23-44, and LAC, pp. 100-129; T. Lenherr, “Fehlende ?Paleae’ als Zeichen eines Uberlieferungeschichtlichjungeren Datums von Dekret-Handschriften," AKKR 151 (1982) 495-507.
8RashdaIl, Universities 1:130-32. The popularity of the Decretum is attested by the hundreds of surviving manuscripts of the work, many of them with elaborate glosses and commentaries. The indispensable guide to the MS tradition is Stephan Kuttner, Repertorium der Kanonistik (1140-1234): Prodromus corporis glossarum, Studi e testi, vol. 71 (Vatican City: Biblioteca Apostolica Vaticana, 1937), supplemented by lists of additional MSS in most volumes of BMCL. On the early printed editions of the work see particularly Erich Will, “Decreti Gratiani incunabula: Beschreibendes Gesamtverzeich- nis der Weigendrucke des Gratianischen Dekrets,” Studia Gratiana 6 (1959) 1-280, and was apparently never adopted formally and explicitly by Rome, although papal judges and the papal chancery certainly used it as a standard legal reference within a few years of its appearance.[917] [918]
The book’s popularity resulted primarily from Gratians use of dialectical analysis to clarify Canonistie regulations and to construct systematic legal doctrines from his raw materials.
His conclusions did not always gain universal acceptance and his reasoning was sometimes muddled, as contemporaries were quick to point out, but the Decretum provided guidelines for interpreting the canons that were available nowhere else. Even at his most inept moments, Gratian provided twelfth-century canonists with points of departure for alternative and sometimes more successful interpretations of the canonical texts. At his best Gratian masterfully imposed a logical order on an unruly mass of material; he made legal sense out of his assorted texts in a way that none of his predecessors had managed to do.[919]With the appearance of Gratian’s Decretum, Church law may be said to have come of age as an independent intellectual discipline. Up to this time ψere had been no clear line of demarcation between theology and canon law. Hitherto those who had studied and taught theology had treated the canons as moral prescriptions and dealt with them as a kind of applied theology that furnished guidance to confessors, Church administrators, and other authorities in dealing with practical situations. Gratian’s work for the first time established canon law as a discipline separate from theology, with its own subject matter and, to a degree, its own methodology as well.[920] In addition, Gratian’s work successfully separated canon law from Roman law and established Church law as an independent juristic science. Canonists depended on Roman civil law for many of their basic ideas, conceptual categories, and intellectual tools, but Gratian’s Decretum laid secure foundations for canon law’s independence. Canonists continued to model their teaching and doctrines on patterns that originated in civil law and to draw upon civilians as a source; Gratian, however, gave canonists a colorable claim to separate identity as practitioners of an autonomous legal discipline that also had significant theological content, which even the Roman law of the Christian emperors never clearly claimed.[921]
Among the numerous problems Gratian explored was a welter of issues centering on marriage and sexuality. What was desperately needed and what Gratian labored to provide was a satisfactory theory to account for the formation of marriage—what made this couple married and that couple not married? Was it consent? If so, whose consent? The couples or their family’s? Was marriage a sacrament? If so, what did its sacramental character imply for questions of divorce and remarriage? Was sexual intercourse essential to marriage or not? What limits, if any, did the law place on the role of sex in marriage? Was concubinage still tolerable for the laity? Or for the clergy? How did concubinage differ from marriage? How did it differ from fornication, adultery, or prostitution? What rights did a concubine have? Did a concubine’s children have a right to share in their father’s estate? Was marriage by ravishment a real marriage? How about marriage following seduction? Was a secret marriage a real marriage?
The list of questions is long, and the problems that they address are serious, not only for individuals who were involved in these various situations, but also for the Church and for society at large. The answers that Gratian furnished were critical in the process of reshaping both law and practice during and beyond the twelfth century.
Gratian’s treatment of these topics reflected the dynamic social developments of his period. In the late twelfth and early thirteenth centuries, marriage and the family were going through profound changes in Western Europe. Some theologians and spiritual writers were beginning to deal with marriage in terms of the couple’s relationship, rather than the relationship between them and their families, and Gratian tried to take account of this changing emphasis.[922] There was debate, too, about the nature of the marital union and about the role that love ought to play in the couple’s emotional and legal bonding.[923] The connection between marital love and marital sex was another issue that Gratian confronted, together with the distinction between marital and nonmarital love as expressed through sexual intercourse.[924]