Canon law

Antiquity and Early Middle Ages   The classical period, 1100-1300   1300-1500    Study   Literature    Links

This page aims in the first place at everybody new to this subject (also in Dutch, French and Italian).

An updated version of my pages on medieval caon law is presented at www.rechtshistorie.nl

Canon law is another word for ecclesiastical law. The Greek word "kanon" means a guideline or rule. Canon law has a history of nearly two millennia. On this page the subject is the law of the Catholic Church, mainly during the Middle Ages. In this period canon law reaches great heights and gained considerable importance. Special pages concern text editions for medieval canon law and medieval legal procedure.

Antiquity and Early Middle Ages

The ecclesiastical law of Antiquity was formed on one side during church councils, and on the other hand in cooperation with the secular authorities, or even completely by these authorities. The Roman emperor Constantine acknowledged the Christian belief in 312 with the famous Edict of Milan on religious tolerance. In 325 he even presided over the Council of Nicea. During the fourth century Christianity won more followers. In 380 it became the Roman state religion. In this way Roman law could apply to the Church, too. Therefore the Digest and the Justinian Code from the sixth century are also important for canon law.

Councils and synods are often held under royal patronage during the Early Middle Ages. It is doubtful whether the councils had any great influence at all. There are no contemporary collections of the earliest conciliar decrees. Many decisions were repeated in the acts of later councils. The Carolingians did some efforts towards unification of church life, including canon law. Archbishop Hincmar of Rheims did order the fabrication of falsified canonical collections, which had a great influence on later developments. The most famous falsified collection is the Pseudo-Isidoriana. Scores of collections came into circulation, varying greatly in volume, range and quality. Church law became locally widely different and difficult to understand. Roman law did not function any more as the example to imitate. There were no law schools. Canon law did not develop along straight paths and (papal) master plans. Another source for canon law are the penitentials, the "libri paenitentiales". The "ordines iudicarii" inform us about the variety of early canonical legal procedure. The early developments are centuries later still visible. Medieval canon law did not develop along straight lines, nor did the Church.

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The classical period of canon law (circa 1100-circa 1300)

About 1050 more systematically organized legal collections arise which outdo older collections in the number of decrees collected. Using a small number of them, for instance the Decretum by Ivo of Chartres, the famous "Concordantia discordantium canonum", usually called "Decretum Gratiani", could be created relatively quickly between 1120 and 1140. The texts of the decrees are connected to each other with short remarks ("dicta"). In Bologna one started to teach canon law. Under the influence of the revived Roman law it got a new form and its authority grows. Bishops did ask the pope increasingly for verdicts on their cases. The cases themselves stem mostly from France and England. The pope sent other bishops or abbots as judges delegate to pronounce their verdict. Papal decisions had the form of decretals. Their number grew particularly fast under pope Alexander III. These decretals, too, were avidly sought after and put together into private collections, which in their turn caused the creation of five great "compilationes". The greatest of medieval councils was held under pope Innocent III, the Fourth Lateran Council of 1215. In 1234 pope Gregory IX ordered the Spanish Dominican Raymund of Peñafort to harmonise these compilations and to edit their content, into an official collection in five books, often called the "Liber Extra", available online with only the text or as a searchable database.  Boniface VIII ordered three canonists to compile the next papal decretal collection, the "Liber Sextus", published in 1298. Shortly afterwards followed the "Clementinae" (named after Clement VII) and the "Extravagantes Johannis XXII". The allegations of these law books are sometimes difficult to understand, because they were heavily abbreviated. The Fitzwilliam Museum, Cambridge, presents some examples of illuminated medieval law manuscripts. Elsewhere on this site there is more information on medieval manuscripts.

Like the lawyers who studied Roman law the canonists started to work. Those who studied and commented on the Decretum Gratiani were called decretists. Of them the best known are Stephan of Tournai, Rufinus, Laurentius Hispanus, Geoffrey of Trani and Huguccio of Pisa. Their colleagues who focused on the decretals got dubbed decretalists. Here the names of Bernard of Parma, Johannes Teutonicus, Innocent IV and Henricus de Segusio (Hostiensis, because he became cardinal of Ostia) deserve mentioning. Both decretists and decretalists wrote "summae", great syntheses, and "lecturae", line by line commentaries. For each collection a standard gloss (commentary in the margins) came into existence. This was done also for the acts of Lateran IV.

The interaction between Roman and canon law renewed in particular legal procedure. A kind of "romano-canonical" process was created. Of this the best known canonical feature is the "inquisitio", originally a kind of process in which a court starts the investigation (instead of the parties involved). The inquisitio became notorious by its abuse at trials of heretics, and from the 16th century on during witch trials. In his "Speculum iuris" Guillelmus Durandus (circa 1235-1296) created an encyclopaedia of legal procedure. The papal courts played a great role in canon law, especially the Rota Romana. Canon law influenced in particular the procedures for elections. It was on matrimonial law that medieval canon law put the most lasting marks.

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Canon law from 1300 to 1500

The lay lawyer Johannes Andreae (died 1348) was the most influential canonist of the fourteenth century. He wrote commentaries on many works. The romanist Baldus de Ubaldis (1327-1400), too, wrote a canon law commentary, on the first three books of the Liber Extra. One has called Nicolaus de Tudeschis (1386-1445) the last classical canonist. He was a professor at Siena, abbot of a Sicilian monastery and archbishop of Palermo (hence his nickname Panormitanus).

Canonists worked at the high courts, in the services of bishops and cathedral chapters, they teached at law faculties or made themselves a career in the Church. Some popes were canonists, notably Innocent IV. Francesco Zabarella became the archbishop of Florence and a cardinal (hence also known as Cardinalis). Guido de Baysio was the archdeacon of Bologna (Archidiaconus), and thus also head of the university. Well known theologians like Jean Gerson, Pierre d'Ailly and Nicolaus of Kues knew their way in canon law. From canonists, too, legal advice in the form of consilia has survived, for example from Oldradus de Ponte (see for instance his nrs. 35 and 92), Panormitanus and Zabarella.

Canon law did not just concern the Church. It pertained to both private and public life. Lawyers argued that canon law could apply because of a person's rank and standing ("ratione personae"), because of the matter involved ("ratione materiae") and when justice had not been done or sins had remained unremitted ("ratione peccati"). Thus canon law could be relevant for people engaged and married, students, travellers, crusaders, widows, merchants and money lenders.

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The study of medieval canon law

Already in the sixteenth century some scholars were interested in medieval canon law. The Spanish bishop Antonio Agustìn did pioneering work in this field. A number of old collections is named after their discoverers in the seventeenth and eighteenth centuries (Luc d'Achery and the Dacheriana). Baluze, Mansi and Muratori, too, deserve to be mentioned here. In the nineteenth century German scholars like Theiner, Hinschius, Schulte and Maassen took the lead. The twentieth century brings international cooperation, and great scholars like Fournier, Le Bras, Gaudemet, Fransen, Cheney, Duggan, Holtzmann, Heyer, Weigand and Stephan Kuttner (1906-1997) with his Institute of Medieval Canon Law, founded in 1955, since 1996 in Munich.

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Literature

First some introductions to medieval canon law:

  • John Gilchrist, ‘Canon law’, in: "Medieval latin. An introduction and bibliographical guide", F.A.C. Mantello and A.G. Rigg (eds.) (Washington, D.C., 1996) 241-253.
  • Gérard Giordanengo, 'Droit canonique', in: Jacques Berlioz et alii (ed.), "Identifier sources et citations" (Turnhout 1994; L'atelier du médiéviste, 1) 145-176.
  • Joseph Avril, 'Les décisions des conciles et synodes', in: Berlioz c.s., "Identifier sources et citations", 177-189.
  • James Brundage, "Medieval canon law. An introduction" (London-New York 1995) - shows canon law and its role in medieval society, with biographies of some canonists and an appendix on medieval references and citations
  • Eltjo Schrage and Harry Dondorp, "Utrumque Ius. Einführung in den Quellen und das Studium des gelehrten mittelalterlichen Rechts" (Berlin 1992) - first edition in Dutch (Amsterdam 1987).
  • Dorothy Owen, "The medieval canon law : teaching, literature and transmission" (Cambridge 1990) – focuses on England.
  • Walter Ullmann, "Law and politics in the Middle Ages" (London-Ithaca, NY, 1975) - a bit older, but still useful and free from any polemics.
  • Jean Gaudemet, "Le droit canonique" (Paris 1988) - a very brief outline.
  • Constant van de Wiel, "History of canon law" (Louvain 1991) - also brief, but touching contemporary canon law, too.
  • Richard Helmholz, "The spirit of classical canon law" (Atlanta, Ga., 1996) - excellent for further reading.
  • Peter Erdö, "Die Quellen des Kirchenrechts. Eine geschichtliche Einführung" (Frankfurt am Main 2002).

For the study of medieval canon law one cannot miss the following books:

  • Stephan Kuttner, "Repertorium der Kanonistik (1140-1234). Prodromus Corporis Glossarum", part I (Città del Vaticano 1937; reprints 1973, 1981).
  • Gabriel Le Bras, Charles Lefebvre and Jacqueline Rambaud, "L'âge classique 1140-1378. Sources et théories du droit" (Paris 1965; Histoire du droit et des institutions de l'Eglise en Occident, VII).
  • Jean Gaudemet, "Les sources du droit canonique, VIIIe-XXe siècles. Repères canoniques, sources occidentales" (Paris 1993).
  • Jean Gaudemet, "Église et cité. Histoire du droit canonique" (Paris 1998).
  • Lotte Kéry, "Canonical collections of the Early Middle Ages (ca. 400–1140) : a bibliographical guide to the manuscripts and literature" (Washington, D.C., 1999) - "History of Medieval Canon Law", Wilfried Hartmann and Kenneth Pennington (eds.).
  • Detlev Jasper and Horst Fuhrmann, "Papal letters in the early Middle Ages" (Washington, D.C., 2001; History of Medieval Canon Law, 2).
  • The history of medieval canon law in the classical period, 1140-1234. From Gratian to the decretals of pope Gregory IX, Kenneth Pennington and Wilfried Hartmann (eds.) (Washington, D.C., 2008; History of Canon Law) - at last an uptodate very accessible introduction to medieval canon law during one of its most important periods
  • Linda Fowler-Magerl, "Ordo judiciorum vel ordo judiciarius. Begriff und Literaturgattung" (Frankfurt am Main 1984).
  • Ludger Körntgen, "Studien zu den Quellen der frühmittelalterlichen Bußbücher" (Sigmaringen 1993).
  • Anders Winroth, "The making of Gratian's Decretum" (Cambridge, etc., 2000).

Important are the following parts of the Typologie des sources du moyen âge occidental, edited at Louvain-la-Neuve:

  • Gérard Fransen, "Les décrétales et les collections des décrétales" (Turnhout 1972; Typologie, 2) - supplement, 1985.
  • Gérard Fransen, "Les collections canoniques" (Turnhout 1973; Typologie, 10) - supplement, 1985.
  • Odile Pontal, "Les statuts synodaux" (Turnhout 1975; Typologie, 11).
  • Cyrille Vogel, "Les "libri paenitentiales" (Turnhout 1978; Typologie, 27) -  supplement by A.J. Frantzen, 1985.
  • Peter Brommer, "'Capitula episcoporum'. Die bischöfliche Kapitularien des 9. und 10. Jahrhunderts" (Turnhout 1985; Typologie, 43).
  • B.C. Bazàn, J.W. Wippel, G. Fransen and D. Jacquart, "Les questions disputées et les questions quodlibetiques dans les facultés de Théologie, de Droit et de Médecine (Turnhout 1985; Typologie, 44-45).
  • Linda Fowler-Magerl, "Ordines iudiciarii and libelli de ordine iudiciorum (from the middle of the twelfth to the end of the fifteenth century)" (Turnhout 1994; Typologie, 63).

Some scientific journals on medieval canon law:

  • Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung - since 1910
  • Bulletin of Medieval Canon Law - first in Traditio, independently since 1971
  • Archiv für Katholisches Kirchenrecht
  • Revue de Droit Canonique
  • Revista Español de Derecho Canónico
  • Rivista Internazionale de Diritto Comune - since 1990; with a bibliography of current publications

Stéphane Boiron and Franck Roumy have written a fine overview of recent publications on canon law (in French).

Antiquity and Early Middle Ages   The classical period, 1100-1300   1300-1500    Study   Literature    Links

Links

On Internet two sites offer a kind of database for manuscripts on canon law:

Antiquity and Early Middle Ages   The classical period, 1100-1300   1300-1500    Study   Literature    Links


 ov - October 7, 2010 - thanks to Jörg Müller, Munich -