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Catholic canon law
The Decretum Gratiani, also known as the Concordia discordantium canonum or Concordantia discordantium canonum or simply as the Decretum, is a collection of Canon law compiled and written in the 12th century as a legal textbook by the jurist known as Gratian. It forms the first part of the collection of six legal texts, which together became known as the Corpus Juris Canonici. It was used by canonists of the Roman Catholic Church until Pentecost (May 19) 1918, when a revised Code of Canon Law (Codex Iuris Canonici) promulgated by Pope Benedict XV on 27 May 1917 obtained legal force.
It was about 1150 that Gratian, teacher of theology at the monastery of Saints Nabor and Felix and sometimes believed to have been a Camaldolese monk, composed the work entitled by himself, Concordia discordantium canonum, but called by others Nova collectio, Decreta, Corpus juris canonici, also Decretum Gratiani, the latter being now the commonly accepted name. He did this to obviate the difficulties which beset the study of practical, external theology (theologia practica externa), i. e. the study of canon law. In spite of its great reputation and wide diffusion, the Decretum has never been recognized by the Church as an official collection.
It is 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 a tractatus ordinandorum, relative to ecclesiastical persons and function. The second part contains 36 causes (causæ), divided into questions (quæstiones), and treat of ecclesiastical administration and marriage; the third question of the 33rd causa treats of the Sacrament of Penance and is divided into 7 distinctions. The third part, entitled "De consecratione", treats of the sacraments and other sacred things and contains 5 distinctions. Each distinction or question contains dicta Gratiani, or maxims of Gratian, and canones. Gratian himself raises questions and brings forward difficulties, which he answers by quoting auctoritates, i. e. canons of councils, decretals of the popes, texts of the Scripture or of the Fathers. These are the canones; the entire remaining portion, even the summaries of the canons and the chronological indications, are called the maxims or dicta Gratiani. It is to be noted that many auctoritates have been inserted in the "Decretum" by authors of a later date. These are the Paleœ, so called from Paucapalea, the name of the principal commentator on the "Decretum". The Roman revisers of the 16th century (1566–82) corrected the text of the "Decree" and added many critical notes designated by the words Correctores Romani.
The Decretum is quoted by indicating the number of the canon and that of the distinction or of the cause and the question. To differentiate the distinctions of the first part from those of the third, question of the 33rd cause of the second part and those of the third part, the words de Pœn., i. e. de Pœnitentiâ, and de Cons., i. e. de Consecratione are added to the latter. For instance, "c. 1. d. XI" indicates the first part of the "Decree". distinction XI, canon 1; "c. 1., de Pœn., d. VI," refers to the second part, 33rd cause, question 3, distinction VI, canon 1; "c. 8, de Cons., d. II" refers to the third part, distinction II, canon 8; "c. 8, C. XII, q. 3" refers to the second part, cause XII, question 3, canon 8. Sometimes, especially in the case of well-known and much-quoted canons, the first words are also indicated, e. g., c. Si quis suadente diabolo, C. XVII, q. 4, i. e. the 29th canon of the second part, cause XVII, question 4. Occasionally the first words alone are quoted. In both cases, to find the canon it is necessary to consult the alphabetical tables (printed in all editions of Gratian) that contain the first words of every canon.
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 at the end of the 11th century, at Chiusi in Tuscany. He was said to have become a monk at Camaldoli and then he taught at the monastery of St. Felix in Bologna and devoted his life to studying canon law, but contemporary scholarship does not attach credibility to these traditions. Since the 11th century, Bologna had been the centre of the study of canon law, as well as of Roman law, after the Corpus Juris Civilis was rediscovered in western Europe. Gratian's work was an attempt, using early scholastic method, to solve seemingly contradictory canons from previous centuries. Gratian quoted a great number of authorities, including the Bible, papal and conciliar legislation, church fathers such as Augustine of Hippo, and secular law in his efforts to reconcile the canons. Gratian found a place in Dante's Paradise among the doctors of the Church:
|“||This next flamelet issues from Gratian’s smile, he who gave such help to the ecclesiastical and civil spheres as is acceptable in Paradise.||”|
The vulgate version of Gratian's collection was completed at some point after the Second Lateran Council, which it quotes. Research by Anders Winroth established 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 the Corpus Juris Canonici. The Decretum quickly became the standard textbook for students of canon law throughout Europe, but it never received any formal official recognition by the papacy. Only the Codex Juris Canonici of 1917 put it out of use.
As late as 1997, scholars commonly set the date of completion at 1140, but this accuracy in dating isn't possible after Anders Winroth's groundbreaking scholarship. Research by Anders Winroth shows that the Decretum existed in two published recensions. 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 the Corpus 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.
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 version (borrador) of the Decretum, but which other scholars have argued contains an abbreviation of the first recension expanded with texts taken from the second recension.
Gratian's sources were Roman law, the Bible, the writings of (or attributed to) the Church Fathers, papal decretals, the acts of church councils and synods. In most cases, Gratian did not obtain this material 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 - we now know that Gratian made use of a relatively small number of collections in the composition of most of the Decretum, these being:
- 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’;
- the Collectio tripartita attributed to Ivo of Chartres, usually thought to date to 1095;
- the Panormia of Ivo 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's Polycarpus, completed some time after 1111;
- the Collection in Three Books, composed some time between 1111 and 1139, though dated by some to around 1123;
- the Glossa ordinaria to the Bible.
Other sources are known to have been used in the composition of particular sections of the Decretum:
- Isidore of Seville's Etymologies for DD. 1-9 (the so-called Treatise on Laws);
- Alger of Liège's Liber de misericordia et iustitia for C. 1;
- the Sententiae magistri A. for the De penitentia and some other sections.
Gratian himself named his work Concordia Discordantium Canonum - "Concord of Discordancies of Canons." The name is fitting: Gratian tried to harmonize apparently contradictory canons with each other, by discussing different interpretations and deciding on a solution. This dialectical approach allowed for other law professors to work with the Decretum and to develop their own solutions and commentaries. These legalists are known as the decretists.
These commentaries were called glosses. Editions printed in the 15th, 16th or 17th centuries frequently included the glosses along with the text. Collections of glosses were called "gloss apparatus" or Lectura in Decretum (see also glossator). Systematic commentaries were called Summae. Some of these Summae were soon in circulation as well and obtained the same level of fame as the Decretum itself. Early commentators included Paucapalea and Magister Rolandus. The most important commentators were probably Rufin of Bologna (died before 1192) and Huguccio (died 1210). Less well-known was the commentary of Simon of Bisignano, which consisted of the Glosses on the Decretum and the Summa Simonis.
Importance to Western law
The Decretum served as a model for 12th century jurists in the formation of Western law based on rational rules and evidence to replace barbaric laws which often involved trial by ordeal or battle.
The Decretum was called "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 that law as a single body, in which all parts are viewed as interacting to form a whole. Decretum made a direct contribution to the development of Western law in areas that it dealt with such as marriage, property and inheritance. Specific concepts included consent for marriage and wrongful intent in determining whether a certain act constituted a crime.
- Ap. Const. Providentissima Mater Ecclesia (by Pope Benedict XV, 27 May 1917)
- Van Hove, Alphonse. "Johannes Gratian" in the Catholic Encyclopedia, Vol. 6. Robert Appleton Co. (New York), 1909. Accessed 19 Sept. 2014.
- " Baynes, T.S.; Smith, W.R., eds. (1880). "Franciscus Gratianus". Encyclopædia Britannica. XI (9th ed.). New York: Charles Scribner's Sons. p. 60.
- * Noonan, John T. (1979). "Gratian Slept Here: The Changing Identity of the Father of the Systematic Study of Canon Law". Traditio. 35: 145–172.
- University of Texas at Austin, accessed June-25-2013
- Dante, Paradiso Canto X, accessed 25 June 2013
- Winroth (Cambridge 2004), 138
- Crompton (2006):174
- Hartmann & Pennington, History of Medieval Canon Law in the Classical Period, pg. 7.
- Winroth, (Cambridge, 2004), 3
- Winroth, (Cambridge, 2004), 146-74
- See most recently Atria Larson, Master of Penance: Gratian and the Development of Penitential Thought and Law, ca. 1120-1215, Washington, DC: Catholic University Press, 2013, arguing for even greater complexity in the addition and adaptation of the text of the Decretum.
- Carlos Larrainzar, ‘El borrador de la “Concordia” de Graciano: Sankt Gallen, Stiftsbibliothek MS 673 (=Sg)’, Ius Ecclesiae: Rivista internazionale di diritto canonico 11 (1999): 593-666
- Titus Lenherr, "Ist die Handschrift 673 der St. Galler Stiftsbibliothek (Sg) der Entwurf zu Gratians Dekret?: Versuch einer Antwort aus Beobachtungen an D.31 und D.32" (unpublished paper) Archived 2012-04-02 at the Wayback Machine.; Anders Winroth, “Recent Work on the Making of Gratian’s Decretum,” Bulletin of Medieval Canon Law, n.s. 26 (2004-2006): 1-29; John Wei, “A Reconsideration of St. Gall, Stiftsbibliothek 673 (Sg) in light of the Sources of Distinctions 5-7 of the De penitentia,” Bulletin of Medieval Canon Law, n.s. 27 (2007): 141-80.
- Donahue, Jr., A Crisis of Law?, pg. 16.
- See Appendix B in Larson, Master of Penance.
- Woods, Thomas E. (2005). How the Catholic Church Built Western Civilization. Washington, DC: Regency Publishing. ISBN 0-89526-038-7.
- 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 Centuries in The Jurist 65 (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).
- Landau, Peter. "Gratians Arbeitsplan." In Iuri 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 Commune 11 (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 Press 2014.
- Larson, Atria A. Gratian's Tractatus de penitentia: A New Latin Edition with English Translation Washington 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." Traditio 35 (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 Law 26 (2008).
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