The development of canon law

During the fifth century the weakness of imperial authority in the West led to the strengthening of the Church and its acquisition of greater political power. As the Roman system of administration everywhere disintegrated, the Church took over many of the functions of the civil government and, since there was nobody left in Rome who could wield greater power, the bishop of Rome rose to a position of supreme authority.

In the course of time the Roman Catholic Church evolved into a grand international organisation, united and disciplined, thoroughly centralised, with an elaborate administrative structure and a comprehensive system of law courts and officials. In its early formative period the institutionalised Church borrowed freely from the structure, general concepts and detailed rules of Roman law, and sought to formulate laws to regulate its constitution and to govern the conduct of its members as precisely and as carefully as did the Roman emperors. It was through the Church, therefore, that a great deal of Roman legal and political institutions were preserved and disseminated. But the growth of the Church and the continued use of Roman law were interconnected: the Church organisation was shaped by Roman law and, at the same time, the development of Roman law in the West was affected by the medium, i.e. the Church, through which it was transmitted. Out of the interaction between Roman law and Christian ideas there emerged the law of the Church, or canon law. Until the revival of Roman law in the eleventh and twelfth centuries, the Church law was the most important universalising factor in the diverse and localised legal systems of western Europe.

In the early Middle Ages, under the system of the personality of the laws, clerics were governed by Roman law, and Roman law compilations were produced for them, such as the Lex Romana canonice compta, published in Italy in the ninth century.

During the same period the Church continued to develop its own special law. The chief sources of Church law were the decretals of the Popes, the canons of the Church councils and various patristic writings concerned with matters of administrative policy and Church doctrine. From the fourth century a number of compilations of Church law appeared in the West, of which the most important were the Dionysiana™ and the Hispana, compiled in the early sixth and early seventh centuries respectively. Early in the ninth century an extended version of the Dionysiana, known as the Hadriana^ was declared by Charlemagne to be the chief code of Church law that applied throughout his empire. In the ninth century there appeared also a collection of both fictitious and genuine canons which became known as the False Decretals. The aim of this work was apparently to strengthen the claims of the Pope to temporal power.^{^[1372]}[1373][1374] Its legal importance lies in the fact that both the spurious and the genuine materials it contained were utilised by later canonists in their development of the canon law system. The earlier collections of Church law were composed, for the most part, of Apostolic and conciliar canons; in the later ones the Papal Decretals - the acts through which the Popes, as heads of the Church, exercised their legislative, administrative and judicial powers - made up the bulk of the material. Elements of Church law were incorporated into the various legal codes promulgated by Germanic kings in the West and into the legislation of the Carolingian and Holy Roman Empires. Moreover, during the early Middle Ages the Church claimed and acquired jurisdiction for its own courts (either exclusive or concurrent with that of secular authorities) over certain categories of persons and areas of the law. Within the jurisdiction of ecclesiastical courts fell, for example, matrimonial causes and disputes relating to hereditary succession.

Throughout the Middle Ages the limits of the jurisdiction which belonged to the Church tribunals was a matter of constant dispute between Church and secular authorities. Eventually the ecclesiastical courts were everywhere deprived of their civil jurisdiction but by then many of the rules and procedures which they had applied had been adopted by the secular civil courts themselves.

As we have seen, the eleventh and twelfth centuries witnessed the revival of legal studies in western Europe. During the same period canon law also became the object of systematic study. The task of the canonists was to gather together and bring into harmony the mass of canons contained in earlier canonical collections, eliminating contradictions and bringing the matter up to date where this was necessary.^{^[1375]} Their ultimate aim was to develop, expand and systematise canon law as an independent body of law and not merely as a set of rules for ecclesiastics. The work that succeeded in transforming canon law into a complete system was the Decretum or Concordia discordantium canonum, composed by Gratian, a Bolognese monk, about the middle of the twelfth century. The Decterum Gratiani, as this work became known, was both a code of and a treatise on canon law. ft presented in a systematic way and without inconsistencies and contradictions the rules governing priesthood, ecclesiastical jurisdiction, Church property, marriage and the sacraments and services of the Church. Gratian's method of arranging the materials was similar to that followed by the drafters of Justinian's Institutes. Although it was published as an unofficial private work, Gratian's Decretum soon came to be recognised as an authoritative statement of the canon law as it stood in Gratian's time. Like the codification of Justinian, it became the object of systematic study in the universities, and students could obtain their degree either in civil law or in canon law, or they might qualify as bachelors of both civil and canon law.

Moreover, Gratian's Decretum played an important part in the contest for supremacy between the empire and the papacy. Just as the supporters of the empire sought to buttress the doctrine of the supremacy of the state over the Church by utilising principles derived from Justinian's texts, so the supporters of the papacy relied on the Decretum and earlier patristic writings to defend the hegemony of the Church and to justify the papal claims to temporal power. In later years a number of compilations supplementary to Gratian's work were issued by the Popes themselves, such as the Extra, or the decretals of Gregory IX, published in 1234; the Liber Sextus, published by Boniface VIII in 1298; and the Clementinae, issued by Clement V in 1317. In 1501 a private collection of decretals not included in earlier compilations was published under the title Extravagantes. All the above works were republished in 1580 by Pope Gregory XIII as parts of an official collection comprising the entire body of canon law, the Corpus luris Canonici, which became the ecclesiastical equivalent of Justinian's Corpus luris Civilis. Like Roman law, canon law played an important part in the development of the civil law tradition. Its influence is particularly noticeable in the areas of the law of marriage, the law of succession and the law of obligations. Moreover, canon law has had a considerable influence in the fields of criminal law and the law of procedure.^{^[1376]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The development of canon law

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