Tag Archives: canon law

Late Roman History and Canon Law

Last week, I had blood taken. As the nurse extracted it, and I looked the other way, she made small talk, presumably to keep my mind off the grotesque and bizarre occurrence underway. She asked if I was on my way to work (it feels like a triumph when people no longer assume I’m a student), and I said sort of, that I’m an academic and can work anywhere with a book and my laptop, and that I was headed for a café afterwards.

She asked what my research was.

I said that I research Durham’s medieval manuscripts of canon law.

I think her response was something of a crestfallen, ‘Oh,’ — that sounds boring, being the subtext.

I said that it’s can actually be very interesting. For example, when you read late antique papal letters, interesting questions come up: What do you do if someone who had been captured by barbarians comes back to Roman territory and finds his wife has remarried? Leo the Great (pope, 440-461) says that the first marriage stands (Ep. 159).

The nurse seemed unconvinced and wished me a good cup of coffee. Probably the least interested/impressed person I’ve ever told about my job.*

Sometimes, when I tell people the story from Leo’s letters, they respond, ‘Well, of course, the man wins.’ In fact, the same case came up during the episcopate of Innocent I (pope, 401-417), only in Innocent’s case it was a woman returning from captivity. He also ruled in favour of the first marriage — precedent for Leo in 458.

Now, there are important and interesting things going on with the canons of marriage here, I can assure you, including their relationship to Roman law and the development of sacramental theology.

However, those are not what I’m thinking about when I try to prove to people that canon law is interesting. Rather, I’m thinking: Hey! Look, canon law tells us about normal people! ‘Normal’ people are often voiceless in our sources, aren’t they? And, if we imagine canon law as merely a body of regulations, then we see only the bishops and councils. But why does Nicetas of Aquileia write to Leo about these cases, anyway?

Here we meet ‘normal’ people — the people of the Roman Empire who are having to put the pieces back together after the barbarians have left town. In this case, men who were legally (or presumed) dead return to Romania and have to fight for their legal privileges. This displacement of persons by barbarians is not uncommon — in other cases, we learn of people carried off as children who do not know whether they were baptised before their abduction by barbrians (see Leo I, Ep. 167).

In the case of Aquileia, I imagine that the displaced men presumed dead were carried by Attila in 452. The people who were abducted as children, mentioned in Ep. 167, have returned to Narbonne around 458. Are they victims of the Battle of Narbonne, 436/7? That would account for their return home as adults. I am not certain.

But here, in these two little incidents, canon law texts are giving us the human face of the Later Roman Empire and the post-430 disruptions that were occurring in people’s lives in western Europe. This is what makes canon law interesting.

*Medievalists, including one fellow who researches scholasticism, often act as though they are in awe of anyone who dares touch canon law with a ten-foot pole, given its complexity.

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A little bit about my latest research

This past Friday, I gave a paper at Oxford about canon law manuscripts in 1190s Durham. Read about it here:

Robert Grosseteste and the Science of Canon Law

Gratian’s Decretum both fills and creates a need

Tree of consanguinity (13th-c, not a Durham ms; do not know which ms)

This week, I spent some time analysing three of Durham Cathedral Library’s canon law manuscripts, C.II.1, C.I.7, and C.III.1. All of these are from the late twelfth or very early thirteenth century. Sadly, none is yet digitised. They are all manuscripts of Magister Gratian’s so-called Decretum, a canon law collection put together around 1140 in Bologna (original title: Concordia discordantium canonum — Concord of discordant canons). They all include glosses — marginal commentaries keyed to individual words in the main text. C.II.1 and C.I.7 have the same base gloss.

The University of Bologna, where Magister Gratian taught, has a strong claim to being Europe’s first university (as we understand the term), and where the scholastic study of both Roman and canon law was born in the 1100s. With the rise of the university comes the need for textbooks. We all know this today — as an undergraduate, I used Wheelock’s LatinGreek: An Intensive CourseA History of the Roman People, all books designed specifically for teaching, for the classroom (the schola in medieval terms; thus scholasticus, thus ‘scholasticism’).

Gratian’s Decretum is that textbook for most of the rest of the Middle Ages, although as the body of papal legislation ramps up in the 1200s, it becomes necessary to supplement Gratian in the classroom with the new laws. Gratian offers the reader a systematic setting forth of church law. He begins with what many call the ‘Treatise on Laws’, a discussion of what natural and customary law are, what their domains are, what justice is, whether laws can be unjust, and what the sources of authority in law are amongst other concerns.

The Decretum as most people used it from the 1150s on, then systematically treats different sub-areas of canon law. Following the scholastic method, Gratian lays out for the reader different opinions from various authorities (councils, popes, church fathers) and seeks a way through them where they differ, finding the concordia of the book’s title. When the authorities themselves do not naturally create a resolution, Gratian will give his own.

The result is a massive compendium of canon law covering most of what one needs to know in the mid-1100s. It is much larger than, say, the Decretum of Burchard of Worms from the early 1000s (having held manuscripts of both, I can attest to this fact). Nevertheless, Gratian’s Decretum fills the need for a canon law textbook, a need keenly felt, given how quickly it was dispersed and how full its dominance really was. Take note that canon law is the one subject taught at all medieval universities and that some of the cathedral schools, such as that of Lincoln, closed because they did not offer canon law. A textbook such as this had a wide audience and great potential.

It fills a need.

I think also, however, that it creates a need. With a text suited to the methods of the twelfth-century classroom becoming widely available, more people would be able to become more deeply acquainted with the broad range of church legislation that Gratian had compiled. It became the set body of esoteric knowledge needed to become a professional in canon law. With everyone teaching it and learning from it, anyone who wanted to make a case in an ecclesiastical court or through a written plea/appeal or simply who wanted to get a job done in compliance with church law, would have to have either someone versed in canon law at hand or be that person him’erself (usually him, this being the Middle Ages, but not always).

Thus, by its very popularity, Gratian’s Decretum created the need for Gratian’s Decretum. We don’t have four copies in Durham for no reason. No matter how good Ivo’s Decretum or Burchard’s or the Panormia attributed to Ivo was, without the particulars of law as set out in Gratian’s Decretum, one would be at a disadvantage in the brave, new world of burgeoning canon law and the growth of the western church as a legislative institution.

So everyone got a copy.

Law and Theology in the Middle Ages by G. R. Evans

Law and Theology in the Middle AgesLaw and Theology in the Middle Ages by G.R. Evans
My rating: 4 of 5 stars

This book is a readable introduction of a topic that deserves more interest — the relationship between law and theology. After setting the stage by discussing the various definitions needed to address the very questions of ‘law’ and ‘theology’, Evans gives an account that is largely focussed on law in the High Middle Ages, bringing into play certain theological concepts as needed.

An example of the difficulties of definition lies in the fact that the English word law translates both ius and lex, and the Latin iustitia can mean either righteousness or justice. These are important points if we are to attempt to make an entry into how medieval people thought about and practised law. Several other definitions are assessed throughout, with recourse to the Digest of Justinian, Isidore of Seville’s Etymologies, and then the high medieval canonists, decretists, and jurists — Gratian, Anselm of Laon, the Summa ‘Elegantius’. Theologians who give spiritual flesh to the legal thought herein are usually Augustine of Hippo, Anselm of Canterbury, Bernard of Clairvaux, but only one Peter Lombard.

Much of the middle of the book is taken up with a straightforward discussion of legal operation in the Middle Ages. This was very clear and pitched at an introductory level but with constant reference to the primary sources. It is clear that Evans, writing from the perspective of theology and intellectual history, was interested in helping others from her own background gain a grasp of medieval law and its relevance to theology. As a result, we have a very good description of medieval legal process that is tied into the great medieval worldview through the introduction and conclusion.

The only difficulties I had with the book were the references to contemporary English law and procedure. What little I know of modern law is either Canadian (like me) or American (because of TV and movies).

This is a book that opens up what should be a fruitful field of study. Greta Austin has already taken up Evans’ summons in the final chapter of Shaping Church Law Around the Year 1000: The Decretum of Burchard of Worms. No doubt others have and will. I find myself wanting to work backwards from Evans’ starting points — that is, to look at Late Antique canon law and pastoral theology up to Isidore of Seville!

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Prefaces to Canon Law Books in Latin Christianity

Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500-1245Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500-1245 by Robert Somerville
My rating: 5 of 5 stars

This volume provides an introduction to its overall theme, then selected prefaces to canon law books, divided chronologically. Each chapter provides an introduction to the era covered as well as to the prefaces translated before providing translations. Each translation includes bibliographical detail for you to check the Latin for yourself.

The first chapter treats Late Antiquity and the Early Middle Ages, taking us to around the year 700. The second covers the period from the Carolingians to around 1000. The next chapter is the Era of Reform, 1050-1140, followed by ‘Gratian and the Decretists’, and closing with ‘Papal Decretals and Their Collectors: 1190-1245’.

I read this volume primarily to gain insight into why canon law books were compiled in the Middle Ages. This question finds its variously-phrased answers, but the canonists also discuss how they compiled these books, and what the problems facing them were. The question of why tends to get a combination of ‘everything is confused and the books are hard to use’ and ‘to produce a useful, organised compendium of everything you need to know.’ As canon law grows throughout the Middle Ages, the sources themselves become like a forest; the canonists produce their books to help guide the reader. The utility is mostly for bishops hearing cases or priests hearing confessions, but there is also an idea that an educated layman could learn how live righteously expressed in some of these prefaces (rarely, however).

Different prefaces also discuss the concept of law as well as of procedure. Sometimes they consider what the authorities in canon law were, and whether there is a hierarchy of authorities. Later ones probe the relationship between secular and divine law.

This book is extraordinarily useful and has bibliographical notes throughout. Although a general history of canon law is not its intention, and not its result, it is certainly helpful in this regard, at least in terms of the development of canon law collections as well as of medieval juristic/canonistic thought.

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