The Decretists and the Teaching of Law
With the appearance of Gratian’s Decretum, canon law began to assert its independence from theology and civil law. During the second half of the twelfth century it assumed a prominent place in the curricula of the new universities that were just taking shape.
Students of canon law at Bologna were using Gratian’s Decretum as their basic textbook soon after its completion. By the 1160s, it was similarly employed in the schools of Paris; before the end of the twelfth century teachers at Oxford and in the Bhineland were expounding the Decretum to rapidly increasing numbers of students.The early history of the law faculty at Bologna remains dim; some type of university organization, in which the study of canon law played a major role, had begun to emerge there by the 1160s.[1040] Paucapalea seems to have been one of the earliest canon-law teachers in the Bolognese law faculty, and before 1148 he had written a short commentary on Gratian’s work.[1041] Paucapaleas Summa was no doubt a byproduct of his teaching. Other canon-law teachers at Bologna soon followed his example and produced further expositions of Gratian s text. Among them were the shadowy Rolandus (fl. ca. 1150),3 the better-documented Rufinus, (active in the late 1150s),4 Joannes Faventinus (fl. ca. 1171),5 Simon of Bisignano (fl. ca. 1177 ~ 1179),6 and Huguccio (fl. ca. 1188).7
At about the same time that Rufiiius was finishing his Summa, the teaching of canon law was commencing at Paris." There, too, Gratian’s Decretum was the
3Die Summa Magistri Rolandi nachmals Papstes Alexander III., ed. Friedrich Thaner (Innsbruck: Wagner, 1874). Rolandus was also the author of a theological treatise, Die SentenzenRolands nachmals Papstes Alexander III., ed. F. A. M. Gietl (Freiburg i/Br.: Herder, 1891).
See also Kuttner, Repertorium, pp. 127-29; Schulte, QL 1:114-18; Marcel Pacaut, “Roland Bandinelli (Alexandre III),” in DDC 7:702-26. The conventional identification of the Bolognese Master Rolandus with Rolandus Bandinelli, who became Pope Alexander III, has been seriously challenged by John T. Noonan, Jr., “Who Was Rolandus?” in Law, Church, and Society: Essays in Honor of Stephan Kuttner, ed. Kenneth J. Pennington and Robert Somerville (Philadelphia: University OfPennsylvania Press, 1977), pp. 21-48. Rudolph Weigand, “Magister Rolandus ιιnd Papst Alexander III.,” Archivfilr katholisches Kirchenrecht 149 (1980) 3-44, supports Noonan’s argument with further evidence.4Rufinus, Summadecretorum, ed. Heinrich SingerfPaderborn: FerdinandSchoningh, 1902; repr. AaIen: Scientia, 1963); Schulte, QL 1:121-30; Kuttner, Repertorium, pp. 131-32; Robert L. Benson, “Rufin,” in DDC 7:779—84.
5The Summa of Joannes Favcntinus remains unpublished; see Schulte, QL 1:137-40; Kuttner, Repertorium, pp. 143-46; Alfons M. Stickler, “Jean de Faenza,” in DDC 6:99-102; M. B. Hackett, “An UnnoticedJohannes Faventinus Fragment,” Traditio 14 (195[1042]) 5θ5-508.
6Simons Summa has also never been published; see Schulte, QL 1:140-42; Kuttner, Repertorium, pp. 148-49; and “An Interim Checklist of Manuscripts,” Traditio 11 (1955) 441; A. Lambert, “Bisignano, Simon de,” in DDC 2:900-901; Walther Holtzmann, “Zu den Dekretalen bei Simon von Bisignano, ” Traditio 18 (1962) 450—59; Josef Juncker, “Die Summa dcs Simon von Bisignano und seine Glossen,” ZRG, KA 15 (1926) 326-500.
7Huguccios Summa, although highly original and immensely influential, has never been published in full, although excerpts from it have appeared in numerous books and articles; sec esp. J. Roman, “Summa d’Huguccio sur Ic Decret de Gratien d’apres Ie manuscrit 3891 de la Bibliotheque Nationale, CausaXXVII, Questio II,” RHDF, 2d ser., 27 (1903) 745-805; Schulte, QL 1:156-70; Kuttner, Repertorium, pp.
155-60, supplemented by “An Interim Checklist of Manuscripts,” Traditio 11 (1955) 441-44, 12 (1956) 563, 13 (1957) 4θ9> anthis one known from its opening words as Inperatorie maiestati.[1045] Sicard of Cremona, another Paris teacher, produced a Summa around 1180, and at roughly the same time, Peter of Blois was writing his Distinctiones decretorum.[1046] During the 1180s, further anonymous can- onistic treatises emerged from the Paris school, including Tractaturus magister, Et est sciendum, and Omnis qui iuste iudicat.[1047]While French canonists were creating a law faculty at Paris, systematic study and teaching of canon law also began in England and Normandy. The early products of the Anglo-Norman school, like those of the French school, were often unsigned. One of the earliest Anglo-Norman canonistic works, the Summa De multiplici iuris diuisione, written during the 1160s,[1048] was followed in the next decade by the Summa of Odo of Doura.[1049] Anglo-Norman canonists who were actively teaching and writing in the 1180s included Gerard Pucelle (d. 1184),[1050] a∏d Master Honorius (fl. 1184/85 ~ 1205), author of the Summa decretalium questionum.[1051] By the 1190s, canon-law teaching was evidently flourishing at Oxford, in the hands of John of Tynmouth, Simon of Southwell, Nicholas de ΓAigle, and their associates.[1052]
The Rhineland produced yet another school of canon law as early as the 1160s. The Distinctiones Monacenses (so-called because they are preserved in a Munich manuscript) were composed in this region between 1165 and 1169.[1053] The best-known treatise of the Rhineland canonists, the Summa “Elegantius in iure diuino' (also known as the Summa Coloniensis), is thus far the only work of that school to have appeared in print.[1054]
The four twelfth-century decretist schools—Bolognese, Parisian, Anglo- Norman, and Rhenish—testify that the study of canon law flourished vigorously in the half century between 1140 and 1190 (see Table 7.1 in the Appendix).
Evidently Church administration during this period required, numerous trained canonists.While the four schools differed from one another in style of exposition, in emphasis, and to some degree in interpretative preferences, they shared a common body of law and a common dialectical approach to legal analysis, both of which stemmed directly from Gratian. Teachers and writers on canon law in this period, moreover, not only expounded Gratian’s views of the law, but also did not hesitate to add their own ideas. The decretists proposed to their students explanations and theories about the law and structure of the Church that departed markedly from those that Gratian had adopted. The decretists also attempted to take account of new law that had appeared since the time of Gratian and to apply both the old law, as they found it in Gratian’s work, and the post-Gratian law to contemporary problems.[1055]
The four canonistic schools approached many legal problems (including those involving sex, marriage, and family law) somewhat differently. The schools of Paris and Bologna, for example, adopted radically different approaches to the definition of what constituted valid marriage, as we shall see, while the Rhineland canonists took yet another position. Differences such as these were not simply theoretical, but had serious concrete consequences for property, inheritance, and other material rights. These varying approaches to the definition of valid marriage, moreover, might well lead different judges to reach conflicting conclusions as to the juridical nature of a particular couple’s relationship: one might find them married, while another might hold that they were living in concubinage, and a third could decide that they were simply a prostitute and her client. Again, the consequences for the parties and their families could be quite serious.