Decretum Gratiani

TheDecretum Gratiani,also known as theConcordia discordantium canonumorConcordantia discordantium canonumor simply as theDecretum,is a collection ofcanon lawcompiled and written in the 12th century as a legal textbook by thejuristknown asGratian.It forms the first part of the collection of six legal texts, which together became known as theCorpus Juris Canonici.It was used as the main source of law bycanonistsof theRoman Catholic Churchuntil theDecretals,promulgated byPope Gregory IXin 1234, obtained legal force, after which it was the cornerstone of theCorpus Juris Canonici,in force until 1917.

Page from medievalmanuscriptof theDecretum Gratiani.

Overview

In the first half of the 12th centuryGratian,clusinus episcopus,probably a jurist of the ecclesiastical forum and a teacher,rubricatorat the monastery of Saints Nabor and Felix (according to the BologneseOdofredus Denariis[13th century]) and starting from the 18th century believed to have been aCamaldolesemonk,composed the work he calledConcordia discordantium canonum,and others titledNova collectio, Decreta, Corpus juris canonici,or the more commonly accepted name,Decretum Gratiani,a living text, characterized by multiple editorial stages. He did this to obviate the difficulties which beset the study and the forensic application of practical, external theology (theologia practica externa), i.e., the study and the forensic use of canon law. In spite of its great reputation and wide diffusion, theDecretumhas never been recognized by the Church as an official collection.

The so-calledvulgataor vulgate version (an advanced editorial stage) of theDecretumis divided into three parts (ministeria,negotia,sacramenta).

• The first part is divided into 101 distinctions (distinctiones), the first 20 of which form an introduction to the general principles of canon law (tractatus decretalium); the remainder constitutes atractatus ordinandorum,relative to ecclesiastical persons and function.
• The second part contains 36 causes (causæ), divided into questions (quæstiones), and treat of ecclesiastical administration, procedural issues and marriage.Quaestio3 ofCausa33 on penance (De penitentia) is treated separately and subdivided into 7 distinctions.
• The third partDe consecrationedeals with sacramental and liturgical law and contains 5 distinctions.

Each distinction or question containsdicta Gratiani,ormaximsof Gratian, andcanones.Gratian himself raises questions and brings forward difficulties, which he answers by quotingauctoritates,i. e. canons of councils, decretals of the popes, texts of the Scripture or of the Fathers. These are thecanones;the entire remaining portion, even the summaries of the canons and the chronological indications, are called the maxims ordicta Gratiani.

Manyauctoritateshave been inserted in theDecretumby authors of a later date. These are thePaleae,so called fromPaucapalea,the name of the principal commentator on theDecretum.The Roman revisers of the 16th century (1566–1582) corrected the text of the "Decree" and added many critical notes designated by the wordsCorrectores Romani.

Citing theDecretum

TheDecretumis cited by referring to the larger units of the distinction or the cause and question, and then the specific canon or dictum. For clarity, the distinctions ofCausa33,quaestio3 of the second part are referred to asDe penitentia(orDe pen.), while the distinctions of the third part are referred to asDe consecratione(orDe cons.). The Part is usually not included, as the citation form is different for each.

Citation styles for theDecretumhave changed over time and can generally be categorised under the modern, obsolescent, and obsolete forms.

Modern form

This form, common since the twentieth century, cites all units in Arabic numerals, from largest unit to smallest unit.

Distinctions are referenced by an uppercase "D.", Causes by an uppercase "C.", questions by a lowercase "q.", and canons by a lowercase "c.". Gratian'sdictaare referred to with a lowercase "d. a. c." (dictum ante canonem,for commentary preceding the canon) or "d. p. c." (dictum post canonem,for commentary following the canon).

Examples:

• [Part I] D. 23 c.7
• [Part II] C. 15 q. 2 c. 4
• [Part II] C. 23 q. 8 d. p. c. 25
• [Part II,De penitentia] D. 3 de pen. c. 24
• [Part III] D. 2 de cons. c. 82

Obsolescent form

Commonly used between the seventeenth and early twentieth centuries, this form generally begins with a reference to the smallest unit in Arabic numerals, followed by the Distinction or Cause in Roman numerals and (if required) the question in Arabic numerals, e.g. "c. 5, C.3 q.1".

Obsolete form

This is the form used by medieval and early modern writers, falling out of use after the eighteenth century. Major divisions (Distinctio, Causa, quaestio) were cited with (usually Roman) numerals. Since the numbering of theDecretum's capitula only became standard in the sixteenth century, canons were cited by their opening word(s). Two or more canons beginning with the same word/phrase might be distinguished with numbers, e.g.In Christo ii.

Examples (using the same references as above):

• xxiii dist. episcopus
• xv q. ii felix
• xxiii q. viii § hinc datur
• iii de pen[itentia] totam
• ii de cons. In Christo ii

Early commentators might also refer to the first few canons by number (e.g.cap. iijfor the third canon of a distinction), or to the last few canons ascap. antepenult.("capitulum antepenultimum",that is, third to last),cap. penult.(orpen.orpe.,second to last), andcap. fin.("capitulum finale") orcap. ult.(last).

Author

Gratian

Gratian (Medieval Latin:Gratianus) was acanon lawyerfromEtruria,probably operating in the former feudal state ofMatilda of Tuscany(mainly inTuscanyandEmilia region) as well as inReims(1131),Rome,Bologna,Venice(1143) andChiusi.He flourished in the second quarter of the twelfth century. He died on 10 August around the middle of the 12th century as bishop ofChiusiinTuscany.Little else is known about him.

He is sometimes incorrectly referred to as Franciscus Gratianus,Johannes Gratian,or Giovanni Graziano. For a long time he was believed to have been born around 1100, atFiculleinUmbria,based on a chronicle of illustrious men of the 14th century attributed to an exponent of the powerfulColonna family,who had possessions inFiculle.He was said to have become a monk atCamaldoliand then taught at themonasteryofSt. Felixin Bologna and devoted his life to studying theology and canon law,but contemporary scholars do not attach credibility to these traditions.

Since the 11th century, some cities of central-northern Italy such asArezzo,Pisa,Bolognahad been the centre of the study ofRoman law,after theCorpus Juris Civiliswas rediscovered in western Europe. In the second half of the 11th century and at the beginning of the 12th century Roman law was generally studied and applied only in the cities (seat of the diocese) in which there was an imperial Prefecture, where imperial and ecclesiastical jurists (and courts) coexisted (such asPisaandBologna), with mutual interference. However, from the first editorial stages of theDecretumit is clear that Gratian had little knowledge of Roman law and that he had a great sense of depth in the disputes dealt with in the ecclesiastical seats, especially in the appeal judgments dealt with in the Roman curia. Therefore, some scholars today exclude that he was trained in Justinian Roman law and that (at the beginning of his career) he worked mainly in certain cities (such asArezzo,PisaorBologna) where Roman law was known and applied for years, it being plausible that he came from an episcopal city in which all jurisdiction, both civil and ecclesiastical, was dealt with by the only court present: the ecclesiastical one. Perhaps also for this reason he feels the need to create a legal work to be applied only in ecclesial courts and only for cases relating to canon law, putting an end to the mixture between civil and ecclesiastical jurisdictions. It is no coincidence thatDante Alighieriwrites that he helped "one and the other forum", that is, he separated the canonical jurisdiction from the civil one.Gratian's work was an attempt, using earlyscholasticmethod, to reconcile seemingly contradictory canons from previous centuries. Gratian quoted a great number of authorities, including theBible,papal and conciliar legislation, church fathers such asAugustine of Hippo,and secular law in his efforts to reconcile the canons. Gratian found a place inDante'sParadiseamong the doctors of the Church:

This next flamelet issues from Gratian's smile, he who gave such help to theecclesiasticalandcivilspheres as is acceptable in Paradise.

He has long been acclaimed asPater Juris Canonici(Latin:"Father of Canon Law" ), a title he shares with his successorSt. Raymond of Penyafort.Gratian was the father and the first teacher of thescientia novawhich he himself coined: the new canon law orius novum.Many of his disciples have become highly renowned canonists.

Textual history

The vulgate version of Gratian's collection was completed at some point after theSecond Council of the Lateranof 1139, which it quotes. Research byAnders Winrothestablished that some manuscripts of an early version of Gratian's text, which differs considerably from the mainstream textual tradition, have survived. With later commentaries and supplements, the work was incorporated into theCorpus Juris Canonici.TheDecretumquickly became the standard textbook for students of canon law throughout Europe, but it never received any formal, official recognition by the papacy. Only theCodex Juris Canoniciof 1917put it out of use.

As late as 1997, scholars commonly set the date of completion at 1140, but this accuracy in dating is not possible afterAnders Winroth's groundbreaking scholarship.Winroth's research shows that theDecretumexisted in two publishedrecensions.The first dates to sometime after 1139, while the second dates to 1150 at the latest. There are several major differences between the two recensions:

• The first recension is a more coherent and analytical work.
• The second recension places a much greater emphasis on papal primacy and power.
• The second recension includes Roman law extracts taken directly from theCorpus Juris Civilis,whereas the first recension does not demonstrate substantial familiarity with Roman jurisprudence.

These differences led Winroth to conclude that Roman law was not as far developed by 1140 as scholars had previously thought. He has also argued that the second recension was due not to the original author of the first recension (whom he calls Gratian 1), but rather another jurist versed in Roman law.However, Winroth's thesis of two Gratians remains controversial.

An illustration from a 13th-century manuscript of the work, illustrating the kinds of blood relatives and common ancestry which made marriage impossible and contracted marriages null. It has since then been changed so third cousins can now marry.

This field of inquiry is hampered by ignorance of the compiler's identity and the existence of manuscripts with abbreviated versions of the text or variant versions not represented by Winroth's two recensions. One of these is the manuscript St. Gall,Stiftsbibliothek,673 (=Sg),which some have argued contains the earliest known draft (Larrainzar'sborrador) of theDecretum,but which other scholars have argued contains an abbreviation of the first recension expanded with texts taken from the second recension.

Criticism

During the reformation, individuals such asMartin Lutherstrongly criticized the claims of papal primacy within theDecretum.One of Luther's chief concerns surroundedDistinctio40 (Chapter "Si papa") which reads:

If the pope fails, and neglects fraternal salvation, if he is found useless, and remiss in his works, and moreover silent from good, which offends him more, and nevertheless leads countless peoples with him as the first slave of hell, with himself to be scourged with many plagues for eternity. No mortal may presume to rebuke the sins of this man, because he himself is to judge all.

Additional concernsabout papal primacy in the context of 2 Thessalonians 2:4 were raised regarding Distinctio 96 chapter 7 which reads:

It is quite clearly shown that the pontiff cannot be bound by the secular power, which is evidently called a god by the pious prince Constantine, since it is clear that even God cannot be judged by men.

Sources

Gratian's sources were Roman law, theBible,the writings of (or attributed to) theChurch Fathers,papal decretals,the acts ofchurch councilsandsynods.In most cases, Gratian obtained the material not from a direct reading of the sources but rather through intermediate collections. Thanks to the research of modern scholars (in particular Charles Munier, Titus Lenherr, and Peter Landau) it is now known that Gratian made use of a relatively-small number of collections in the composition of most of theDecretum:

• Anselm (II) of Lucca's canonical collection, originally compiled around 1083 and existing in four main recensions: A, B, Bb, and C. Peter Landau suggests that Gratian probably employed a manuscript containing an expanded form of recension A which he calls recension A’;
• theCollectio tripartitaattributed toIvo of Chartres,usually thought to date to 1095;
• thePanormiaofIvo of Chartres,also usually dated to 1095, although several scholars have argued for a later date and some even question Ivo's authorship;
• Gregory of St. Grisogono'sPolycarpus,completed some time after 1111;
• theCollectio canonum trium librorum(Collection in Three Books), inspired by the doctrines ofPaschal IIand the reform of the Church, composed inItaly(probably inPistoia,Tuscany,by an anonymous Roman canonist) between 1111 and 1123or 1124;
• theLex Romana Visigothorum;
• secular texts such asPlato;
• theGlossa ordinariato the Bible.

Other sources are known to have been used in the composition of particular sections of theDecretum:

• Isidore of Seville'sEtymologiesfor DD. 1-9 (the so-calledTreatise on Laws);
• Alger of Liège'sLiber de misericordia et iustitiafor C. 1;
• theSententiae magistri A.for theDe penitentiaand some other sections.

Influence

Thirteenth century modest copy of the famous manuscriptDecretum Gratiani.Preserved in theGhent University Library.

Gratian himself named his workConcordia Discordantium Canonum– "Concord of Discordant Canons". The name is fitting: Gratian tried to harmonize apparently contradictory canons with each other, by discussing different interpretations and deciding on a solution, as a judge in a case. Thisdialecticalapproach allowed for other law professors to work with theDecretumand to develop their own solutions and commentaries. Theselegistsare known as thedecretists.

... theConcordance of Discordant CanonsorDecretumserved the function of giving the canonists a text like that of theCorpus Iuris Civilisfor the civilians or the bible for the theologians.

These commentaries were calledglosses.Editions printed in the 15th, 16th or 17th century frequently included the glosses along with the text. Collections of glosses were called "gloss apparatus" orLectura in Decretum(see alsoglossator). Systematic commentaries were calledSummae.Some of theseSummaewere soon in circulation as well and obtained the same level of fame as theDecretumitself. Early commentators includedPaucapaleaandMagister Rolandus.The most important commentators were probablyRufin of Bologna(died before 1192) andHuguccio(died 1210). Less well-known was the commentary ofSimon of Bisignano,which consisted of theGlosses on theDecretumand theSumma Simonis.

Peter Lombardborrowed and adapted from theDecretumwhen discussingpenancein hisSentences(c. 1150).

Importance in Western law

Because of its influence as a source of canon law, theDecretumserved as an influence for 12th-century jurists in the development of Western legal systems and their rules of evidence, which in canon law (including in the Decretum) did not include trial by ordeal and by battle.

The same author, Woods, called theDecretum"the first comprehensive and systematic legal treatise in the history of the West, and perhaps in the history of mankind – if by 'comprehensive' is meant the attempt to embrace virtually the entire law of a given polity, and if by 'systematic' is meant the express effort to codify that law as a single body, in which all parts are viewed as interacting to form a whole." TheDecretummade a direct contribution to the development of Western law in areas that it dealt with such as marriage, property and inheritance. Specific concepts preferred included consent for marriage, and wrongful intent in determining whether a certain act constituted a crime.TheCorpus Juris CivilisandDigestawere 'comprehensive' and preceded it, and so did the 'systematic'Institutesbut covered only 'private law'.

References

Bibliography

• Brundage, James.Law, Sex, and Christian Society in Medieval Europe.University of Chicago Press, 1990.
• Brundage, James.The Medieval Origins of the Legal Profession.University of Chicago Press, 2008.
• Donahue, Charles, Jr.A Crisis of Law? Reflections on the Church and the Law Over the CenturiesinThe Jurist65 (2005) I-30.
• Hartmann, Wilfried, and Kenneth Pennington, edited.The History of Medieval Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX(Washington, D.C.: The Catholic University of America Press, 2008).
• Kuttner, Stephan.Research on Gratian: Acta and Agenda,inProceedings of the Seventh International Congress of Medieval Canon Law, Cambridge, 23–27 July 1984,Linehan, Peter edited (Monumenta Iuris Canonici. Series C: Subsidia), Vatican City 1988, 3-26.
• Landau, Peter. "Gratians Arbeitsplan." InIuri canonico promovendo: Festschrift für Heribert Schmitz zum 65. Geburtstag.Regensburg: F. Pustet, 1994. pp. 691–707.
• Landau, Peter. "Neue Forschungen zu vorgratianischen Kanonessammlungen und den Quellen des gratianischen Dekrets."Ius Commune11 (1984): 1-29. Reprinted in idem.Kanones und Dekretalen.pp. 177*-205*
• Landau, Peter. "Quellen und Bedeutung des gratianischen Dekrets," Studia et Documenta Historiae et Juris 52 (1986): 218–235. Reprinted in idem.Kanones und Dekretalen.pp. 207*-224*.
• Larsen, Atria A.Master of Penance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century,Washington D.C.:The Catholic University of America Press2014.
• Larson, Atria A.Gratian'sTractatus de penitentia:A New Latin Edition with English TranslationWashington D.C.:The Catholic University of America Press,2016.
• Lenherr, Titus.Die Exkommunikations- und Depositionsgewalt der Häretiker bei Gratian und den Dekretisten bis zur Glossa ordinaria des Johannes Teutonicus.St. Ottilien: EOS Verlag, 1987.
• Munier, Charles.Les sources patristiques du droit de l’église du VIIIe au XIIIe siècle.Mulhouse 1957.
• Noonan, John T. "Gratian slept here: the changing identity of the father of the systematic study of canon law."Traditio35 (1979), 145–172.
• Wei, John C.Gratian the Theologian.Washington D.C.:The Catholic University of America Press,2016.
• Werckmeister, Jean.Le mariage. Décret de Gratien (causes 27 à 36).Paris: Cerf, 2011.
• Winroth, Anders.The Making of Gratian's Decretum.New York: Cambridge University Press, 2004.
• Winroth, Anders. "Recent Work on the Making of Gratian's Decretum,"Bulletin of Medieval Canon Law26 (2008).

External links

• Media related toDecretum Gratianiat Wikimedia Commons
• Quaglioni, Diego (2002)."GRAZIANO".Dizionario Biografico degli Italiani,Volume 59: Graziano–Grossi Gondi(in Italian). Rome:Istituto dell'Enciclopedia Italiana.ISBN978-8-81200032-6.
• Full Latin textfrom theBayerische StaatsbibliothekDecretum magistri Gratiani. Editio Lipsiensis secunda, post Aemilii Ludovici Richteri curas, ad librorum manu scriptorum et editionis Romanae fidem recognovit et adnotatione critica instruxit Aemilius Friedberg.Leipzig, B. Tauchnitz, 1879. (Corpus iuris canonici; 1)
• Critical edition in progressArchived2014-01-31 at theWayback Machine,currently only of parts of the shorter first recension of the Decretum, edited byAnders Winroth
• Otto Vervaart's introduction to Canon Law
• Domus Gratiani
• The Stephan Kuttner Institute of Medieval Canon Law in Munich