Gratian and XhcDecretuwr. The BJse of Canon Common Law
If it was thanks to Irnerius5S efforts that Justinian’s legislative compilation was brought back as a vital force in juridical circles, it was thanks to the efforts of another person of mythical proportions, Gratian, that the norms of the church were first successfully presented (after a number of attempts) in a homogeneous corpus reflecting the author’s intention in a work that has become basic to European law.[61]
Gratian was probably a monk, and he may first have lived near Ravenna in the monastery of Classe.
He later lived in Bologna, where around 1140 he finished drafting a monumental compilation of laws (some four thousand items), known in its manuscript versions as Concordia discordantium canonum but called by long-standing tradition the Dccretum.This work was not an official compilation, and although it came to be recognized as the base for subsequent church legislation, it was never promulgated into “law.” We see here, as in other instances and on other levels (for example, with the redactions that put city customary measures into written form and gave them a sure base) that “legislative” phenomena at their origins and in an initial phase were defined by the initiative, the responsibility, and the authority of one private individual.
The Decretum has a complex structure that does not totally reflect its original organization. For some years at least—until the early 1150s—it lacked some parts that were added later (the titles De poenitentia and De consecratione) and it did not include some passages from the Justinian Digest and Code that were inserted later. Gratian also inserted into the Decretum brief annotations called dictay in which he discussed the discordant legal texts or Holy Scripture, or he cited the institutes and principles of Roman law in order to compare them with the law of the church.
At the same time, the Decretum was enhanced with notes called paleae^ a word of uncertain origin that may refer to the author of the glosses, a pupil of Gratian’s nicknamed Pocapaglia (Paucapalea), or ccLitde Straw.”Thus it probably was not Gratian’s original intention to treat either problems of a theological nature (which is why the tides De poenitentia and De consecratione were missing) or the materials and the principles of Roman law (which is why citations to the Digest and the Code were added later). It is also probable that, as years went by, other jurists, influenced by the Bolognese schools of Roman law and by demands specific to the church, somewhat modified the shape of the 1140 version of the work. Gratian died around 1150; we can date the modifications to the Decretum from between that date to about 1170.
The original and central core of the Decreturn was composed of materials that Gratian had selected either directly from scattered manuscripts or indirecdy, extrapolating them from previous collections that had, in their turn, been taken either directly from the sources or indirectly from other works. His ideal (and in part real) library certainly included writings of Anselm of Lucca (Collectio canonum) and Cardinal Gregory of San Chrisogono (Polycarpus) the Tripartita and the Panormia of Ivo of Chartres, the so-called Collection of the Three Books, and the Liber de misericordia et iustitia of Anselm of Liege (or Liittich). The Etymologiae of Isidore of Seville were known only in excerpta. Although Gratian certainly made use of the writings of the church Fathers (that is, of Latin and Greek patristics)—in fact they provide about a third of all the materials used—it is not clear whether or not he always read them in the full text. More probably he used anthologies such as the Collection of the Three Books that had selected and passed on significant fragments of such texts.
Around the middle of the twelfth century, Gratian’s Decretum was taken as a “certain” and reliable text, one that could be referred to not only for the internal and structural problems of the church but also for a rule of life offered to or imposed on the fideles Christi throughout Christendom.
Thus the work responded to the same need for “certitude” felt in the secular field, where it was satisfied by Irnerius’s rediscovery and restoration of the laws of Justinian. There was a difference, however: although the emperors of the Holy Roman Empire continued to make laws, these norms were only very rarely inserted into the Justinian framework. This happened only in a very few, exceptional instances—for example, the Constitutio ccHabita55 of Frederick I Barbarossa, a few laws on heresy OfFrederick II, and the entire text of the Consuetudines feudorum (Libri feudorum), a text that contained some imperial laws and that provided material for the tenth collutio of the Novels. Thus where civil law was concerned, the architecture and the contents of the compilations remained rigidly fixed, solid, and invariable. At the same time, “faith55 in the Roman laws was reinforced and relived with a sense of trust imbued with a strong sacrality. The decretals of the popes and the canons of the church councils were immediately applied to everyday experience, added to the older laws, or substituted for them. They thus continually raised a problem that Gratian had attempted to solve by applying to norms of differing significance, taken from a variety of places and times, the four basic criteria of ratio temporis, ratio loci, ratio significationis, and ratio dispensationis. Doubts continually arose as to whether or not a legal precedent already existed for a specific problem or a case in point and, if so, whether that earlier law should be understood as having been abrogated (following the logic of ratio temporis)', whether in some particular locality a rule might exist that contravened the general norm (ratio loci)', whether the antinomy in apparently contradictory norms might not be worked out logically (ratio significationis)', or whether clearly contradictory norms might not be treated as statements of a rule and an exception to that rule (ratio dispensationis).In short, interpretive techniques and methods were developed that could be employed (and that were conceivable) in all cases because they referred to a dependable, “certain55 normative text couched in “certain” words and not in others. As with the civilists, the juridical thought of the canonists excluded all intellectual requirements of a philological or historical nature; their sole concern was the need to consult a reliable and authoritative text.
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