CIVIL LAW AND CANON LAW

Canon law was soon added to civil law as a subject of study at Bologna. It started with the disadvantage that, by contrast with the civil law, it lacked an authoritative body of texts, comparable to Justinian's corpus.

A dramatic change followed the publication by the monk Gratian, about 1140, of his Concordantia discordantium canonum, an authoritative col­lection, which sought to reconcile apparent contradictions. Unlike earlier compilers, Gratian provided explanations of the texts he had selected for inclusion in what came to be known as his Decretum. It super­seded earlier canonist collections and was quickly accepted as an appro­priate subject for glossatorial exegesis by canonists. Unlike the civil law, however, the texts of the canon law were continuously increasing with the promulgation of new papal decretals, which themselves had to be collected in new compilations.

The immediate reaction of orthodox civil lawyers to Gratian's achievement was negative. They continued to treat canon law as an inferior discipline to their own. In their view, Gratian was trying to do the impossible and was giving a spurious air of harmony to self-contra­dictory material. In their opinion, only the civil law provided all the techniques necessary for understanding any kind of law, including canon law. By the 1160s the civil lawyers had to recognise canon law as a parallel discipline to civil law, with parity of esteem, but they tended to keeptheir studies separate from canon law, even when the subject that they were discussing was covered by both systems, such as marriage or usury.

The civil law was a self-contained system, which had no need of sup­plementation from any other system. On the other hand, it was not applied exclusively in any court but only where the local law was lacking. Canon law, by contrast, was applied in the courts of the Church in all matters that appertained to ecclesiastical jurisdiction (the precise limits of the latter were much disputed and varied from country to country). For Gratian, canon law was a divine law, on a par with the law of the Gospel itself. It had to be admitted, however, that canon law did not have the answers to all legal questions, as the civil law claimed to do. The Decretum itself stated that in matters left undefined by the canons, the civil law should be followed (D.10 p.c.6). How this applied in practice was a matter of keen debate among the early canonists, known as decretists.

The question of filling gaps in the canon law from the civil law was tied up with two wider issues, that of the legislative power of the Pope, as having equal authority with that of the emperor, and that of the nature of the proceedings in ecclesiastical courts. Should they anticipate the judgment of God, by applying moral rules in the tradition of the Penitentials, or were they public proceedings which had to follow similar rules to those of other public courts? Some canonists, such as the Frenchman Stephen of Tournai, held that civil law applied wherever it was not contrary to canon law. Others were less deferential to the authority of the civil law. In this formative period of their law, however, all canonists paid close attention to the debates among their senior part­ners, the civil law glossators.

At the beginning of the thirteenth century the decretists made a con­scious effort to elucidate the precise legal effect of the canons by making comparisons with Roman law. This applied even in the sacramental parts of the canon law. For example, Laurentius Hispanus in his Glossa Palatina to the Decretum discusses the question whether a heretic can administer a valid baptism.

Between 1188 and 1226, five compilations of papal decretals appeared. Then, in 1234, Pope Gregory IX promulgated a large collec­tion of extracts from papal decretals, based partly on these older com­pilations. The work was edited by the Spanish Dominican Raymond of Penaforte, and was known as the Liber extra because it was outside (extra) Gratian's Decretum. It contains 1,971 chapters, arranged in five books. The order of treatment was cited by students according to the mne­monic verse ‘judex, judicium, clerus, connubia, crimen', that is, judges and their powers, legal proceedings, clerical matters, marriages and crime. The Decretals were intended to form, with the Decretum, the law of the universal church. In 1298 a further collection appeared, promul­gated by Boniface VIII and known as Liber sextus, since it supplemented the five books of the Liber extra.

The earlier compilations had concluded with a title containing general legal maxims, in imitation of the concluding title of Justinian's Digest. But where Justinian found 202 examples, Gregory's Liber extra only included eleven. The popularity of maxims and brocards increased in the thirteenth century and the Liber sextus concludes with a title of eighty-eight. Many were transferred from the corresponding title of the Digest (50.17), in some cases with the wording made more pithy. Some were abstracted from other parts of the Corpus iuris and, removed from their original context, acquired greatly extended meaning.

Thus a famous principle, much bandied about in political debate, is quod omnes tangit debet ab omnibus approbari (‘what touches all should be approved by all'), which is reg.29 in the Liber sextus.

Certain other additions were made to the texts of authoritative canon law and by the end of the fourteenth century the Church had what came to be known as the Corpus iuris canonici, a compilation on a scale worthy of standing next to the Corpus iuris civilis of Justinian.

The compendious expression utrumque ius, ‘both laws', was used as a qualification for those who had studied both systems. It also indicated a relationship between them that became increasingly close as time went on. By the thirteenth century the two systems were on an equal footing and the civil lawyers sought to keep them in distinct spheres. The civil law was concerned with the common good of man on earth and the canon law with keeping him from sin and ensuring the salvation of his immortal soul. Accursius (gl. conferensgeneriadAuth. Coll.iJo, quomodo oportet episcopos) states that the Pope should not meddle with temporal matters nor the emperor with spiritual matters.

As later civil lawyers pointed out with exasperation, however, by reason of its concern with sin the Church usurped to itself jurisdiction over everything. From the time of the Liber extra, canon law covered many matters which were treated in Justinian's law. It included a large part of criminal law, from adultery and perjury to forgery and homicide; it touched private law at many points where a party might be tempted to sin, such as loan, the taking of interest, sale and real and personal security for debt. Because marriage was a sacrament, it was regulated by canon law and, as a result, all questions of family status fell within its purview.

Already in the twelfth century, problems arose in connection with the computation of degrees of blood relationship. This was crucial in ascer­taining whether the parties to an apparent marriage were within the pro­hibited degrees of kinship. Civil law counted the degrees merely upwards from the parties to the common ancestor, whereas canon law counted them from one party up to the common ancestor and then down to the other party. As a result, many more cousins found that, under canon law, they were within the prohibited degrees, and so needed papal dispensations to marry, than would have been the case under civil law. The Fourth Lateran Council limited the prohibited degrees to four.

The glossators had tended to ignore such differences, but by the four­teenth century the two laws came to be dealt with together, even by civil­ian commentators. Many canonists were laymen and a qualification in both laws (in utroque iure) became quite common. The phrase ‘both laws' began to refer to two aspects of what in many respects was regarded as a single system, a ius commune for the whole of Europe.

6