The Treatise on Laws: (Decretum DD. 1-20)

The Treatise on Laws: (Decretum DD. 1-20)

by Gratian
The first twenty distinctions, translated here, comprise a treatise on law in general and contain a discussion of the nature of law, voluntary action, and the power of popes, bishops, and secular authorities. Accompanying the translation of the distinctions is a translation of the so-called ordinary gloss, a commentary on the distinctions that took its final form in


The first twenty distinctions, translated here, comprise a treatise on law in general and contain a discussion of the nature of law, voluntary action, and the power of popes, bishops, and secular authorities. Accompanying the translation of the distinctions is a translation of the so-called ordinary gloss, a commentary on the distinctions that took its final form in the thirteenth century and was usually found around the margin texts of the 'Decretum.'

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Studies in Medieval and Early Modern Canon Law
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The Treaties on Laws (Decretum DD. 1–20)

By Gratian

The Catholic University of America Press

Copyright © 1993 The Catholic University of America Press
All right reserved.

ISBN: 978-0-8132-0786-5


The text presented in English in this volume is the introductory section of a textbook on Church law from the Middle Ages. In the hundreds of years since it first came into circulation in the middle of the twelfth century, this textbook, formally entitled the Harmony of Discordant Canons, has helped to shape the thinking of lawyers and legal scholars, clergy including popes from Alexander III to John Paul II, and, however indirectly, lay people of all standings. For the canonist, it was long the starting point of study, a fundamental text to be mastered and made an integral part of one's mental furniture. Its contents had to be reckoned with by merchant and theologian, politician and pastor. The modern scholar cannot genuinely understand the high medieval Church without coming to terms with its nature and its influence.

As a central text of western Christian ecclesiastical law and lawmaking, the Decretum, as it was (and is) commonly called, was drawn upon by Aquinas, Dante, and Chaucer, publicly denounced and burnt by Luther (although appreciated and used by Melanchthon and Calvin), sniped at by John Donne even as its traces lingered in the legal traditions of his Anglican Church. In print by 1472, lovingly and rigorously reedited in the sixteenth century amid the tensions of the Reformation, the Decretum continued to guide the work of canonists from Rome to Maryland, Mexico City, Manila, and Macao for another three centuries, and retained a quiet influence within the evangelical tradition of church law as well. It was a major source for the codification of Roman Catholic canon law promulgated in 1917 by Pope Benedict XV and, through it, the 1983 revision of Pope John Paul II.

Usually referred to during the Middle Ages simply as the Decreta, more frequently as the Decretum, this text was not commissioned by any pope or bishop. Rather, it was originally the work of an individual scholar of genius and modified by later scholars who followed his lead, all seeking to make sense of the law of the Church and to teach it more effectively to others. The text of the Decretum presents an understanding of its subject from the first half of the twelfth century, drawing on the accumulated traditions of the Church from apostolic times. The commentary, the "Ordinary Gloss" (Glossa Ordinarid), which accompanies the main text, was written about three-quarters of a century later, and reflects both the growing legal sophistication and the ecclesiastical concerns of the intervening years. The excerpt translated here, Distinctions 1 through 20, constitutes a treatise on the nature of law and lays the foundation for the subsequent discussion of particular topics.

The medieval law student, lay jurist, or cleric would have approached the Decretum, if not with a conscious knowledge of its history, at least with a sense of its structure and its underlying preconceptions. Modern students must try to reconstruct that sense for themselves, as well as seek to understand the people and circumstances contributing to the shaping of the Decretum and its Gloss, and the significance of the text in the life of the medieval and early modern Church.

Gratian and His World

From its earliest days, the Decretum has been linked to the name of one Master Gratian, but of this individual, the father of the science of canon law, little can be said with certainty. Canonists' folklore, some of it recorded only centuries after Gratian's time, describes him as a (Camaldolese?) monk of the monastery of Saints Felix and Nabor in Bologna and a teacher in that city, medieval western Europe's greatest center for the study of law. Traditions of varying (and sometimes dubious) reliability called him a papal legate, a legal consultant, even a brother of the Parisian theologian Peter Lombard (he was not). Modern scholarship can confirm very little of this; contemporary records are almost entirely silent. (A scrap of evidence suggesting that Gratian ended his career as bishop of Chiusi remains a tantalizing riddle.) Even the assertion of Gratian's monastic status raises questions. By the first half of the twelfth century, teaching law would have been considered rather generally to be a peculiar and unsuitable occupation for a monk, yet to some scholars, the strong emphasis on and detail concerning monastic affairs in the Decretum powerfully suggest a reflection of its author's concerns. Moreover, the tradition is very old, appearing before 1170.

In the end, what may be said with reasonable security about the author of the Decretum? Gratian was a scholar and probably a teacher at Bologna, possibly a monk, and honored in his own time as magister. His work on the Decretum was most likely done in the second quarter of the twelfth century; the most recent materials incorporated into the text are canons of the second Lateran council of 1139, and they are only imperfectly integrated, as if a last-minute addition. The traditional date for the appearance of the earliest form of the Decretum, c. 1140, remains as good as any. As for Gratian himself, by the 1160s other canonists refer to him as already deceased. Bologna is a city full of tombs of eminent jurists, but there is none for him, only the occasional commemorative tablet, including one erected through the filial piety of canon law historians in the mid-twentieth century. Gratian's real monument is, and has always been, his "harmony of discordant canons," the Decretum.

Monastic or not, as a twelfth-century European churchman, Gratian lived in a world of energy and ferment, both practical and theoretical. The bright confluence of religious, political, social, economic, intellectual, and cultural developments that the American medievalist Charles Homer Haskins christened the "renaissance of the twelfth century" included several currents crucial to the nature and reception of Gratian's work. In religious matters, there was a strong emphasis on renewal and reform. The pastoral realm saw the reassertion of spiritual priorities that followed the gradual settlement of the eleventh-century conflict over lay investiture (which had itself seen renewed attention to the sources and organization of Church law); there was fresh energy and intensity in new monastic communities like the Cistercians. These reformers shared a concern and desire to return to and be guided by the good mores of the past. All this was taking place at a time when political developments in many parts of Europe were calling for clearer, more nuanced thinking about the relationship between spiritual and secular authority, about where, practically and precisely, one had to draw the line between what belonged to Caesar and what to God.

Of great importance among these developments was a renewed stress on law as an attribute and instrument of kingship, especially in the light of the revival of the study of Roman law. Around the year 1100, a man named Irnerius began lecturing in Bologna on the volumes of Roman legal sources, which had been compiled in the sixth century A.D. by order of the emperor Justinian and became known as the Corpus Iuris Civilis. Although the arrangement of these sources was disorderly and the sources themselves sometimes contradictory, study of the Corpus Iuris Civilis restored to western Europe the full heritage of Roman law and introduced medieval Europeans to a legal system more profound and lucid than any they had previously known. A great law school grew up in Bologna, attracting students from throughout Europe. This development, in turn, was only one element in an intellectual milieu that encompassed the use of dialectical method and the rise of the universities, of which Bologna was among the earliest.

It is important to recognize the significance and place of law, particularly ecclesiastical law, in the world of medieval European society. Law was more than a set of limits, prescriptions and penalties. It defined communities, and individuals' membership and specific places within them. In fact, one's relationship to law could be a positive element of one's status; the nobleman was subject to more legal obligations than was the villein, the male than the female, the cleric than the lay person. Ecclesiastical law had an especially charged character, at once numinous and, to anyone accustomed to modern conceptions about the role of the Church (indeed religion in general) in society, remarkably hard-edged. While "integrating human jurisprudence into the divine order of salvation," using the tools of the law to foster the salvation of souls, canon law also served to define and regulate the Church as a distinct and fully constituted (though humanly weak and flawed) society. The Church was not separate from secular social structures but also very clearly not just a part of, much less subordinate to them. The Church maintained a complete legal structure of its own, asserting full disciplinary powers over the clergy and extensive ones over the laity as well. Some of the most basic concerns of everyday life, almost everything having to do with marriage and wills, for example, fell, by common consensus, within the jurisdiction of the Church.

The Decretum: Sources, Structure, and Method

It was the accumulated law of the Church which Gratian set out to collect, organize, and rationalize, in a form which would facilitate its study and reference to it, in accordance with the most advanced scholarly techniques of his day. The past provided the materials of Gratian's Decretum; the present provided his intellectual tools and motivations and a society for which the work filled a need.

The body of material Gratian inherited ran from the Decalogue to the enactments of contemporary councils and included Scripture, the writings of the fathers, papal letters and decretals both genuine and spurious, and rulings of a millennium's worth of councils and synods large and small, all over the Christian world. Nonetheless, the modern reader must not imagine Gratian as a twelfth-century version of a jurist with a decent research library at his disposal, with (more or less) complete texts in scholarly editions of patristic writings, papal letters, sets of conciliar canons, etc., as well as a mass of learned commentary on the interpretation of Scripture and on earlier periods of Church history, to help him see his materials in context. Scholars can only speculate on the precise contents of Gratian's bookshelves, but every student of medieval thought must take into account that an author's knowledge of any given text might well come, not from having the whole work in front of him, but from a florilegium, an anthology. (One exception is Scripture, which at any point the author might be citing from memory and with less-than-perfect accuracy.)

Canon law material particularly presents difficulties of this nature, for much of it circulated in the form of collections. Some of these derived from earlier collections (more than one, in some instances), some combined genuine texts with new concoctions given venerable attributions. All of them were made in specific circumstances to meet specific needs, by people who felt perfectly free to edit as they did so, and more often than not, probably could not have checked their sources if they had wanted to.

Canonical collection building and adaptation in the earlier Middle Ages seems to have flourished in situations both of growth and consolidation and of uncertainty and conflict. The most hopeful days of Charlemagne's efforts to shape a Christian empire had seen intense interest in canonical sources and the formation of the collection called the Dacheriana, which blended texts sent from Rome (the Collectio Dionysio-Hadriana) with Frankish canonists' resources, while tense, bitter episcopal quarrels under later Carolingians in the mid-ninth century provoked a flurry of treatises and collections, including the legendary Pseudo-Isidorian Decretals. Legislation emanating from Rome mingled with local statutes and customs in messy eclecticism and evident inconsistency, with the occasional scholar or tidy-minded bishop trying to make a coherent synthesis. The Investiture Controversy set adherents of both sides to poring over the inherited tradition in search of justification of their own positions, ammunition against those of their opponents, and, at last, common ground upon which an honorable peace might be made. Initial attempts by the victorious papalists to prune the tradition back to old, Roman-derived material were soon wisely abandoned in recognition that the passage of time had seen changes in the Church's structures and needs which newer, local enactments effectively addressed. Diversity remained, but so did a dissatisfaction at its disorder.

Precisely what of all this inherited material Gratian himself was actually using has been the subject of considerable, if not entirely conclusive, study. In general, the scholarly consensus seems to be that Gratian worked from a fairly small body of sources, relatively recent collections that one would reasonably expect to be available to a canonist working in north-central Italy in the 1120s to the 1140s: Anselm of Lucca, the Panormia of Ivo of Chartres, the Tripartita, the Polycarpus, the Collection in Three Books, Alger of Liège's Liber de Misericordia et Iustitia, plus some form of Isidore of Seville's Etymologies. (The dating of some of these collections reinforces the conviction that Gratian was working in the second quarter of the twelfth century.) Whether he used Pseudo-Isidore directly or through an intermediary remains an open question. One can easily imagine how very recent material might have found its way into his hands; medieval bishops commonly brought home copies of canons they had agreed to at councils and synods, sometimes under specific orders from the presiding metropolitan or pope to have them copied and distributed (cf. D. 12 c. 17 in the text).

Gratian's materials were thus in no sense exceptional. The genius of the Decretum lay in how he selected, organized, and analyzed them. Certain tendencies of selection have been noted by specialists: Gratian used a good deal of Pseudo-Isidorian material, especially for procedural matters, and his authentic papal letters are mostly early (Leo I, Gelasius I, Gregory the Great, Nicholas I), with comparatively little from the Gregorian Reform tradition. (He does, however, cite almost all of the patristic authorities and texts that the Gregorian reformers used.) He parts company from earlier collections in his extensive use of western patristic texts, particularly from Augustine of Hippo; such material makes up about a third of the Decretum. Among the councils, canons from Iberian, Italian, and Frankish regional gatherings appear alongside those of the great ecumenical councils of the imperial Church.


Excerpted from The Treaties on Laws (Decretum DD. 1–20) by Gratian Copyright © 1993 by The Catholic University of America Press. Excerpted by permission of The Catholic University of America Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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