History of Canon Law
Professor WERCKMEISTER from Strasbourg
1. Subdivisions of Canon Law
A. History of the sources:
the sources are the norms, generally written norms, but also customs and jurisprudence. Current source is code of 1983, but also Motu Propriu, Norms, diocesan sources, etc. In the east CCEO would be first source.
i. Material sources Who was able to give the laws: councils chapters, and pastors. In the past, canons could also be issued by the state, emperors, called "religious law", "nomo canonique" or "ecclesiastical law".
a. Canon is a word for conciliar laws. Now we say constitution or decree from councils. First canons 4th century after Pax Constantinum 313 (e.g. council of arles 314, nicea 325).
b. Papal Decretals, bulls, prescripts, etc. Legal work of popes began at the end of the 4th century, whereas the conciliar legislation began at the beginning of the 4th century. Earlier, emperors had written decretals, but they became powerless after the barbarian invasions, so the popes took secular powers. It is important know authorship. Titles helps in this, local, universal, papal, conciliar, bishops.
c. False decretal - The historical studies that uncovered the falsity, but by that time, they were already accepted. E.g. Constantine was supposed to have given Italy to the pope for papal state, but later historians discovered this was impossible. They were instead created by Pepin the short. In the middle ages, it was difficult to introduce anything new, so to introduce something new, you just attributed it to someone old - pseudonymous authors. They were accepted by the church, apocryphal, especially 9th century (850), new laws were needed, but the pope didn't have power to impose, so people wrote false text and planted them in antiquity. Example In gratian's decree, there were different realities of slaves and serfs, though it was the same word in latin. In Roman law - where slaves had no legal personality. But in the middle ages the serfs had juridic personality, but not all rights, e.g. bound to territory. A main issue was the right to marry. Gratian wanted to say serfs could get married. 1. no law allowing slaves to get married in roman law or in the canonical collections. 2. Gratian invented causa 29 questa 2 capitula 1. He attributes a more recent text to pope Julius in the early 4th century (but popes at that time weren't writing decretals then, church also had no marriage law, pope had no power). Probably actually from Burchard of Worm. Gratian wrote above this text Licet servis matrimonia contribere. False text (which merely said if you marry a slave you have to stay married), falsely attributed, and falsely summarized. It was in fact a new legislation. Gratian was a liberal. Gratian was actually from two authors. Gratian 1 wrote this one. Gratian 2 said that serfs could marry, but only with the permission of the master. This was then accepted. Read the text as a point of debate, lots of new legislation indicates social turmoil.
d. Patristic texts. Not legislators primarily, but sometimes bishops, and attended councils. Gregory the Great 450, fought Atila. Augustine died 430. Ambrose and Jerome late 300s. Gregory the Great died 604. How to oppose the laws of the church. Use bible to argue against, e.g. slavery. You couldn't directly use the bible in these arguments. The first canonical collection directly quoting the bible was an Irish collection: Hibernensis early 700s. Far from Rome, didn't like pope, organized by monasteries, rather than dioceses, so more democratic. It often cites 'a roman synod' rather than attributing to the pope. In the middle ages, the Fathers of the Church were primary exegetes, canonists didn't quote bible directly, but fathers were considered a 'safe' way to quote the bible, first used by Irish, especially old testament. 40% of gratian is patristic.
e. Civil Law for the Church when the state became officially christian 385 (non-christians persecuted). Western empire disappeared in 476, Eastern Empire lasted to 1453. Mainly in the East, the Emperor organized the church, gathered councils, organized marriage. Civil power strong in East, weak in West. Roman law: justinian law, 6th century, after the fall of the western empire, written in constantinople. Empire divided west and east by the end of the 4th Century. One pope in rome in the west, one emperor, in competition through the middle ages. In the east, the emperor is in constantinople, but you have several patriarchs: alex, ant, jer, constan, even outside the empire. So the most powerful in the east is the emperor. In the west, one pope, many kings. So eastern church is more decentralized and democratic. Also civil law is more important for the east. Imperial Capitularia.
Summary: Material sources or creative sources of canon law were mainly conciliar canons, pontifical decretals, imperial laws, patristic texts, false texts and other texts (penitentials, etc). Conciliar canons from around 300, the pontifical decretals begin around 400 (the context was the decline of the roman empire - western emperor weakened, and the pope took the place of the emperor beginning with Sirice. (Pope encouraged Spanish to follow Roman practice of celibacy) , canonical collections begin around 500.
ii. Formal sources or conservative sources. Collections, the ways in which laws are known. Some of these are official, others are non-official. Now we have official publication.
Dionysiana 525 was the first official collection. In 495, Pope Gerasius asked Eastern monk to gather and translate to Latin the Greek councils from the 4th century on, decretals usually latin, councils in greek. Two books 1. councils, 2. decretals, in chronological.
Gratian's Decree 1140 private collection. This was promulgated after trent in the 1580 by the pope. Then it became official. The content is official, because official texts are being quoted. The influence of the Collector is choosing the texts and sometimes summaries. The summaries are in red. When you read the manuscript it is there are no divisions. The periods are written Autem in Jerome's Vulgate. Red summaries are another way to make a division. The eye is then attracted to the red - so the editor has influence.
Corpus Juris Canonici Last collection, thousands of texts, two volumes, 300-1500. Then trent, vatican I. 1917 abrogates. In the east, they still study the sources as law, not as history.
Collections are conservative sources, but also creative sources because of choices, summaries, organization - and the pseudo texts. Book 16 of the theodosian code in 438 was a book of ecclesiastical law. A collection of laws from 313 to 438. Also decretals of Gregory IX 1234 are not only his decretals but those from Gratian to Gregory. Constant van de Ville - History of Canon Law. also stickler.
B. History of Canonical Institutions:
e.g. history of marriage, papacy, parishes, congregations, inquisition. Not the focus of this presentation. Much more complicated, celibacy, engagement (is marriage a process or an instantaneous consent, e.g. africa, mary and joseph, rata sed non consumata), etc. Best to study an institution, in a particular source. Navarra commentary is exegetical, but not historical, this is a weakness. Study of institutions is easiest to start with the present and trace it back.
C. History of Canonical Science
1. Study of the Practice of CL. Different from the practice of canon law. Study of the history of ideas of canon law. Canonist as a word came in in the 14th Century. First canonists appeared in the 11th century - Gratian being the Father of Canon Law since he gathered and commented on the law. But the first Canonist is Ivo of Chartre - bishop 1095, the time of the first crusade. He gathered three collections of which Panormia was the most important. He wrote a 50 page prologue to it in which he explains the spirit of canon law. Canon law is just a theory of what should be done, but you don't have to do it. He distinguishes mobile (laws you can change) and immobile law (laws you can't change). He finds almost none that you cannot change. E.g. even the decalogue - we changed shabbat into sunday. So even divine law can be changed. The highest norm is the salvation of neighbors - like in the end of 1983 code. This was at odds with medieval idea that older is better. E.g. at his time, the bible said you cannot swear an oath, but oaths were a basis of society. Church in the power of the keys has the power to change laws. E.g. forbidden to ordain the son of priests, but Ivo says these are good men, and the church names them. E.g. pornocracy of 9th century. Also note Ivo was a bishop and Gratian was a professor. After this time, the canonists were called decretists. After Gregory IV 1234, they were called decretalists. He says CL is not made to be effective, it is theory, but you don't have to follow, you have to follow the law of God, CL isn't necessary for salvation, but to keep the peace, it's best to follow it. Divine law is rare, and hard to know what it is. Jesus said no oath, but pope said to be a bishop you have to swear loyalty. He says if there is a better solution than CL, use that solution, if it gives a bad solution, don't follow it. A pope had said slavery is divine law. In the bible, Abraham even discusses divine law with God. He isn't quite this clear, but love and do what you will. Good of church and neighbor. Law is made for man, not man for the law.
2. Methodology - students often ask how to study history of canon law. There are many methods. You can use general history, history of the church, history of theology, paleography, philosophy, scripture, etc. E.g. Marriage in Gratian's decree was packed with biblical references. If you aren't aware of this, then it is difficult to know what is being said, what inferences and allusions are being made. Most importantly you need general western history. E.g. the Gregorian reform 1234, a reform of the church, but also a revolution in western europe - renaissance. E.g. Gratian has a section on war - but he was talking about the crusades. Another important point would be general history of law. 12th century was a time of rediscovery of Roman Law. Three points of view for methodology:
a. Traditional: there is no history - it is all the same. An old canon is not history, it is law. This is the official position of the orthodox churches. This was the Catholic position till the code of 1917. Anglicans also use pre-reformation Gratian law as current source. Luther excommunicated 1520 - He burned the bull of excommunication and the existing canon law. Thus the Lutherans discuss whether Luther wanted to destroy canon law in general, or just his own excommunication. Both positions are in the current Lutheran church. Hitler was head of the church in Germany so since World War II the Lutherans want to have a canonical tradition. Rudolph Sohm +1917 'canon law and the church are incompatible'. The true church is invisible - they are Christian who God says are Christian. In that true, invisible church laws don't matter. In a posthumous work Sohm said that last true canon law was that of Gratian because he quoted the bible. After Gratian, only quotes were from other canonical texts.
b. Post 1917 in the Catholic Church: The old collections, especially Gratian and Gregory, were official till then. In 1917 one the most conservative popes decided to completely change the system of canon law - he and his successor abrogated the corpus with the codex. The past was dead. Through the code of 1917, a history was created. Isidore of Seville 630 antiquior et potior auctoritas is to be followed. Thus no change of laws. Isidore's wrote dictionaries that ransmitted the roman culture into the coming culture. Bede the Venerable also along this vein. But Canon 6 abrogated the past law. a new conception.
c. Scientific point of view: The historians are interested in the history of canon law. This is a new position since 1950. Whereas before only clerics were interested, now most interest in the field is by historians. New manuscripts are being found. The field is not already crowded by other scholars. Tametsi is the legislation of the Catholic Church which was in force until Easter 1908 concerning clandestine marriage. It was named, as is used, for the first word of the document that contained it, Chapter 1, Session 24 of the Council of Trent, 1653. It also declared that the bond of marriage was contracted by the will of the spouses, and that parental consent was not necessary to make a valid marriage.
A. Beginnings and Pax Constantinum till 313 - persecution made communication and unity difficult. Local churches in Rome, Corinth, etc. There was an organization, but it may be too early to speak of canon law. E.g. 1 Corinthians 6 - why go to the civil judges? The Didache c100 on Fasting, Bishops, Deacons, Sabbath. Shepherd of Hermas - clear prohibition of remarriage. Apostolic Constitutions 341 is the last book of the early local law - a collection. These are close to the jewish legal ideas: public trials, two witnesses, more witnesses for bishops.
B. Jus Antiquum 313-1140 Edict of Milan. Jews (8%) had been protected by Romans but the Jews said that Christians weren't Jews so they weren't protected. Now there was the possibility for communications among the churches. Now you cna have councils: councils of Arles 314, Nicea 325, (Elvira 303 in Spain). The same church across countries and peoples. Now canon law can begin in earnest. Nicea is still effective in the orthodox church.
|313||Edict of Milan|
|380||Catholic Religion official religion of Roman Empire, other religions banned|
|395||definitive separation of west and east (Constantinople and Rome) - east had 1 emporer and several patriarchs, west had one pope and several kings|
|476||Last Roman Emperor Deposed - Romulus Augustus - western empire disappears. The East maintains christian culture.|
|496||Clovis - King of Franks is baptized Catholic|
|632||Death of Mohammed|
|718||Spain completely Muslim|
|732||Europeans turn back the Muslims at the Battle of Tours|
|840||Death of Charlemagne - and division of carolignian empire which still sews seeds of hostility|
|1054||Schism, but it's effect more important in 1204 when constantinople was destroyed in the crusades|
|1059||Pope Nicola II said pope would be elected by cardinals - beginning of Gregorian Reform|
|1095||first crusade and gregorian reform|
|1200||St. Thomas of Aquin, St. Louis XIV|
|1337-1453||Hundred Years War|
|1400s||Printing press, Muslims and Jews expelled from Spain|
|1453||Eastern Empire falls|
|1517||Luther published his Theses - excommunicated 1520|
Gregorian Reform was accomplished by strong centralization. Began 1059. Pope Gregory 1075 wrote the dictatus papae - all have to bow to the pope, even the emporer. Pope is the sun, the emporer is the moon merely reflecting the light of the sun. Innocent III died 1216 ending the gregorian reform.
church independent from the empire; bishops not chosen by king or emporer but elected by the people (Concordat of Worms 1022) Started election only by people, then by priests, then cathedral chapter (requiring major pars and senior pars - majority and best part) - if the chapter couldn't agree, the pope intervened. Gregorian reform ends with Innocent III in 1216.
Struggle against Simony
Reform of Clergy - 1139 Second Lateran marriage was an impediment to ordination. At this point few clergy were celibate.
Creative sources: canons, decretals, 800 century collection has 500 decretals, penitentials, imperial texts
Dionysiana 525 first big collection - first part had all the important councils, then the papal decretals. Basis of all other collections which were Dionysiana plus.
Hispana or Isidoriana in Spain 630.
Hibernensis in Ireland.
Hadriana is a mix of Hispana and Dionysiana - collected 774 for Charlemagne who made it the official collection for his empire.
False decretals came in 850, beginning with the Hispana and adding false decretals and concilars, especially those stressing the primacy of the pope - probably coming from disputes between the king of france and the bishops - king wanted to down play the power of the bishops.
In 1010 Burchard of Worm wrote a better collection not chronologically but categorically. He also introduced a lot of false texts.
Ivo of Chartre was a friend of Urban 2, and introduced the gregorian reform in france. 1. Collectio Tripartita 2. Ivo, Decretum 3. Panormia - it was paperback version shorter. These were quite expensive. Prologue of the Panormia is very important. Then comes Gratian Decree in 1140. This ends the period of the Ius Antiquum.
C. Jus Novum 1140-1563 Gratian through Reformation. Reformation schism between the north and south. Now on only papal decretals. No more conciliar canons, no more patristic texts, no more imperial texts. Denzinger (19th Century) all is written under the pope. Decretals of Gregory 9 - promulgated in 1234 - compiled by Raymond of Penafort. Liber Sextus promulgated by Boniface VIII in 1298. Clementines 1317 was the last official collection - till the code of 1917. There were some Extravagantes with the decisions of the popes in between. 1506 is the last decretal. Corpus Juris Canonici became the official book of law after trent in 1580. The aim of the code was only to codify, and excise it from its historical context. It was very complex and difficult to know the law. It was the age of codification in Europe.
D. Jus Novissimum 1953-1917
E. Code The 1917 code was also a political book to assert authority. 1983 code is a mistake - code is no longer in vogue - only a few canons have changed. This is not possible in a living entity. The 1983 code should have been fundamentally different - it has cosmetic changes, but not in its depth. In Germany published an updated decree of Gratian in the 19th Century. The goal of a corpus is that it grows over time. You will find differences, contradictions and discussions. The goal of a code is to make it shorter. But why also in the east - they have never had a code.
4. Gratian's Decree is still the book of law for some western churches, for example Anglicans and Calvinists. De iure naturae et constitutionis = of unwritten and written law. 101 Distinctiones is a class session - Gratian was a professor. In the second part is 36 causae - seminar discussion questions. It was a blockbuster. Italics is Gratian, Roman is Auctoritates. Gratian was more a theologian than a lawyer.
Gratian's Decree - Date: 1140. Actually date is not certain, but probably finished 1123 then just added canons of second lateran in 1939. Further editions till 1170, adding old canons, not new canons. Additional canons called 'palea' (meaning chaff).
Author: traditionally believed to be a camaldalese monk, but most certainly a professor in Bologna. This was around the time of the rediscovery of Justinian's code. Gratian slept here by Noonan - everything we believe we know about gratian is probably false. Calmaldolese Monk in 18th century wrote the history of the order, alleging Gratian to be a member of the order. Anders Winroth - Columbia Univ. says two Gratians. The decree is complicated and contradictory. But if you separate the two, it is clear and integral. The additions are those of an author who disagreed. People thought that shorter Gratian was a later abbreviation, but Winroth demonstrated that it was actually an earlier shorter version. First gratian probably a theologian and was progressive, the second gratian was a lawyer familiar with Roman Law and was more traditional and harsh. All Anti Jewish canons were added by the second Gratian. This is not yet published but Werkmeister has a handwritten list.
1) 101 Distinctions or teachings. (a) 1-20 on jurisprudence mainly from isidore of seville (b) 21-101 on ordination, e.g. sobriety, election of bishops, age of ordination, etc.,
2) 36 Causae are cases. On simony, on torture and trial by ordeal, war, just war: if against christians you have to be fair, against muslims, you can do anything. 27-36 On marriage - contains story of marriage in the west. E.g. what makes the marriage? In roman law it was consent of all interested parties, e.g. parents, masters - this still exists in Africa today. In Barbarian civilization copula carnalis was the marriage. Gratian mixes these. Marriage begins with consent and is perfected with consumation. Gratian didn't consider it a sacrament. that would come 10 years later. Marriage is an image of the incarnation - enfleshing - then marriage bed was blessed. But now, we say it is a sacrament in the church, but isn't indissoluble until the consumation.
3) De consecratione - an additional part about some sacraments and sacramentals.
4) De poenitentia - question 3 of Causae 33. Christ was 33 years and 3 months when he died, so the poenitentia was placed there.
Bibliography Best sources are on the internet - up to date and available, both in text and manuscript form. History of canon law - usually good, because only scholars are interested. Pennington Gregorious (2008) Sites about women priests, papacy, inquisition, etc. Not as scientific, often militant but there can also be good information. Books: Brundage, Firm, Franzen, Van Hoff, Van De Ville. Wikipedia english - most articles are quite good, particularly the more specific topics: Panormia.
Summary Gratian arranges sources by topic with discussion. However, you have to read the whole topic to find the conclusion, or summary, etc. Also, sometimes these ideas were accepted and sometimes not. So it is safest only to use the canons. Gratian finds solution to contradictions through several methods - e.g. antior et potior auctoritas. E.g. 1399 contradicts 221 nulla poena contra legis. You can ignore the contradiction - Some say it is best to find a harmony. Gratian was the first to use a critical method - the same words can have different meanings in different texts, or from different sources, places or ages, or texts are normative and others are precatory: acribia (strict) others economia (merciful), rule and its dispensation - God makes the distinction - if God is strict, none are saved - Christ is the dispensation of the justice of God. He also distinguishes false canons. So Gratian had a method to harmonize the canons.
Send a little study - 5-10 pages 2000 (characters per page) with bibliography on a topic on history of canon law - e.g. canon in gratian and study and translate and explain. What is the puStudy canon in its historical background - e.g. from Nicea and present it in that context - why did nicea make this canon. Study something translated - e.g. Charity in Ivo of Chatre - or choose something later.