The Great “Codifications” of the Church: The Liber
Extru of Gregory IX, the Liber Sextus of Boniface VIII, the Clementinue of Clement V, and the Formation of the Corpus iuris cunonici
The church in the fourteenth century worked actively to create a universal corpus of laws and to give a physiognomy to its “common law.”
In 1234 another great event occurred.
Gregory IX (d. 1241), speaking in the name of the Universal Church of Rome, promulgated a ponderous collection of laws taken mainly from XhcQuinque compila- tiones untiquue (1188-ca. 1226), supplemented by Gregory’s own decisions and decretals. The material was presented in 1239 “chapters” or articles and was divided into five books, following the design of the Breviurium of Bernard of Pavia, a structure that was to remain the model for the church’s later legislative efforts. The drafting of this work was supervised by a great Catalan jurist, Raymond of Pennafort, a Dominican and the pontifical penitentiary, later canonized. The compilation was published under the title Decretales but it was also called the Liber Extra because the measures it contained were outside of (extra) Gratian’s Decretum [65]It is usually said that the LiberExtra resembles a code. Indeed, in it and by means of it two important principles were affirmed: first, the principle of exclusivity,[66] by which all norms or portions of norms not included in its corpus (or in Gratian’s Decretum) were no longer automatically considered authentic (hence their application was not indisputably obligatory). The second principle was connected to the first: it was the notion of textuality, by which the decretals that had indeed found their way into the LiberExtra had special validity within the text in which they had been inserted and in the form and in the words chosen and used by Raymond of Pennafort. Undoubtedly, the legislative work of Gregory IX displays one of the most significant tendencies observable in legal circles and in twelfth- and thirteenthcentury schools of law since the age of Irnerius—a tendency of both practitioners and theorists to seek the sure haven of a “certain text,” assumed as a point of reference in juridical debate.
Whether or not that tendency was an original creation that came to be reflected in the consciousness and the thought of the age, and whether or not it manifested a new idea of a “code” as an organic and comprehensive, “complete” and “definitive” collection of laws is another problem. I doubt that this could have occurred, even in an age that admittedly often placed a high value on the authoritarian and sacral aspects of the universal powers of the pope and the emperor but that was nonetheless fully aware of the variety, fluidity, and composite nature of the laws, central and peripheral, of the church and of the local normative systems of cities, counties, duchies, principalities, and kingdoms. Furthermore, as is known, not only did new papal decretals continue to be produced and promulgated, circulated, and collected in a variety of ways in private compilations (at times they piled up in anonymous anthologies with no guarantee of authenticity), but also old canons and ancient decretals were reused, in whole or part, in a variety of ways.Although there was indeed in the LiberExtm the idea of a unified and homogenous corpus that suggested completion and definitiveness, that idea had hermeneutic validity and force and was not realized in the dynamics or the gradations of the normative sources except in ways incompatible with the modern idea of a “code.” As a “code,” the LiberExtm would have to have done away with the local normative systems or at least have been given precedence over them in application; instead, outside the Papal States, the contents of its norms had validity and were utilized only as subsidiary law when there were no appropriate local and particular dispositions adequate to the solution of a specific judicial problem. They might not even have the force of subsidiary law if it was legitimate, in a particular case, for a judge to decide the case according to the place, the persons, his conscience, or his judgment of the equity involved.
Nonetheless, the popes continued to pursue the idea of a body of laws for all of the Christian world; of a corpus that would have unity and provide unity to the measures compiled; a corpus that would be sufficiently authoritative to constitute a necessary and fundamental part of the experience of the jurist—theoretical or practical—and to be an essential reference for legal practice or for administrative and commercial transactions. Several decades later (in 1298), Boniface VIII followed the example of Gregory IX by promulgating a new and extensive collection of norms that came to be known as the Liber Sextus (to indicate that it was an addition to the five books of the Decretales of Gregory IX). It too was divided into five books, following the tradition of iudex, indicium, clerus, connubia, and crimen inaugurated by Bernard of Pavia a century earlier.[67]
At the same time as the legal activities of the church were being extended and intensified and were gaining in specificity in both their exercise and their results, new projects for “codification” continued to arise. In Avignon, to which the papal see had been transferred (in permanent residence from 1305), Clement V launched a new official collection of the laws of the church. At his death in 1314 his successor, John XXII, completed and promulgated the work, but it took its name from the pope who had begun it, XhcDecretales Clementinae or simply the Clementinae.[68] The Clementinae included the constitutions of the Council of Vienne and the decretals of Clement V from 1305 to the year of his death.
At the start of the fourteenth century, then, there were great legal works that the church either appropriated (Gratian’s Decretum) or promulgated (the LiberExtra, the Liber Sextus, and the Clementinae) in order to provide certain, homogenous, authoritative, and authentic texts for the community of the faithful in Christ, in particular for those who exercised jurisprudence in the wide variety of concrete local situations in the Christian world.
These bodies of laws, which historiography calls “codes” but which only partially expressed a codistic view of the law, were known everywhere and everywhere taken as the basis oflegality. But they had not yet been brought together into one body of law.It was only later that people began to speak of a Corpus iuris canonici. In 1500 a French jurist, Jean Chappuis, put order into the various compilations, completing them with two additional texts and creating the grandiose edifice (whose basic elements already existed) that came to be known and was utilized for centuries as the Corpus iuris canonici. It contained the Decretum of Gratian (ca. 1140), the Liber Extra or Decretales of Gregory IX (1234), the Liber Sextus of Boniface VIII (1298), and the Clementina# of Clement V (1314 and following). Jean Chappuis also included some of the laws of John XXII that had been endowed with an apparatus of glosses, distributing them under various titles (headings) and publishing them as Extravagantes Jo- hannis XXII[69] Chappuis did the same for some papal decretals—in particular, the laws of Sixtus IV (1471-84)—that had proven sufficiently important to be included in private collections of canon law, and he published this collection of seventy-four laws under the title Extravagantes communes[70] In 1582, Pope Gregory XIII had all of these collections printed after a commission had carefully examined their contents. This edition of the Corpus iuris canonici became the official Roman text that was never again altered until the present century.
Once formed, the Corpus iuris canonici had an extraordinary stability. It was in fact to remain in force in the church until 1917, when the Holy See itself was won over by the idea and belief that only in a modern “code” (the Codex iuris canonici) could the principles of order and authority be realized, universally imposed, and assured absolute precedence over all local bodies of law. The rapidity with which the Code of 1917 was replaced by a new code in 1983 shows how precarious and illusory it was for the church to place its trust in a single code conceived as a complete text.
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