Canon and Roman Law, Oh My!

In a (not so) recent post, I was complaining about remarking on the difficulties I’ve encountered deciphering the early modern printed editions of the canon law texts I’m working with. Today I thought I’d focus on what canon law is and why I’m hoping these texts will be worth the effort.

I’ll start by giving some general background on canon law and then dive into a more detailed discussion of an example from my own research.

Medieval Canon Law. Canon law was a system that developed from the early days of the Church out of those ecclesiastical writings which were generally considered authoritative, such as decisions of ecumenical church councils, the writings of Church Fathers (Augustine, Jerome, etc.), and papal decrees. An early collection of these was compiled in the sixth century, but it wasn’t really until the twelfth century that a resurgence in interest in law, particularly around Bologna in Italy, helped to inspire the collection of all these ‘canons’ into a more organized and codified format, most prominently in Gratian’s Decretum. The Decretum brought together nearly a millennium of various significant excerpts and attempted to organize them while resolving any discrepancies. Since the popes continued to issue new decretals, other collections continued to be compiled to supplement the Decretum, including the Liber Extra in 1234.

Due to the wide-ranging scope and authority of the medieval church, canon law covered all sorts of topics related to both the Church and its flock, from issues of marriage and legitimacy to the manner in which episcopal elections should be conducted. Because of the gradual manner in which they came about, however, canon law collections don’t read as one might expect: they aren’t sets of legislative statements, but rather a gathering together of these relevant excerpts.

The Riches of Canon Law. After the publication of the Decretum, Liber Extra, and other canon law collections, medieval canonists began to add to and provide commentaries on them, with supplementary texts ranging from brief marginal glosses to full stand-alone commentaries. The commentaries are often crammed full of citations to other sections of canon and Roman law (although admittedly the connections between them are not always as clear to the modern reader as they seem to have been to the medieval canonist).

Because canons derived from a particular context were used by canonists as precedent to frame and address similar issues more generally, these commentaries are therefore often a useful way of looking at the types of issues under debate in these intellectual circles and of finding evidence of the use and interpretation of specific canons and decretals.

My Own Research. In researching conceptions of counsel and consent in twelfth and thirteenth centuries, I have been focusing on a particular title (i.e. section) of the Liber Extra, under the heading ‘Concerning those things which may be done by a prelate without the consent of his chapter’ (X 3.10), which contains various decretals around the topic of how a prelate ought to make decisions and whether he needs the consent or counsel of his chapter (capitulum).

Of particular interest are the decretals Novit (X 3.10.4) and Quanto (X 3.10.5), originally letters sent by Pope Alexander III to the Patriach of Jerusalem, Amalric of Nesle in 1168 and 1170. The pope rules that Amalric should not appoint, depose, or manage any other business of the church without the counsel of his brothers in the chapter, and he chides him for neglecting the counsel of his brothers and seeking the counsel of outsiders.

When Hostiensis, one of the foremost canonists of the thirteenth century, discusses this title in his Summa Aurea, he takes the opportunity to make a distinction between counsel and consent and to discuss which cases require a prelate to seek the one from his chapter and which the other. He complains that other canonists have used the words ‘counsel’ and ‘consent’ interchangeably, but himself clarifies the distinction as follows: in cases where consent is required, the prelate cannot act without gaining that consent, but in cases where only counsel is required, the prelate must seek and consider the counsel, but is not obligated to follow it.

If, inquiring into it, you should oppose this and say, Why then should anyone seek counsel, since one is not bound to follow it, and therefore it seems frustration and derision? Response: It is granted that he is not bound to follow it, nevertheless it is possible that the counsel of the chapter might draw the prelate towards it: as in Digest, De arbit., Item si unus (final section)Digest, De exerc. action., law 1,  § Si plures sint, and De rit. nup., Nemo, § Deinde.

(Hostiensis, Summa Aurea, col. 801, 1612 ed.)

Of course, in reading Hostiensis’ own text, I have also come across the hundreds of citations he inserts into his discussion (something like 250 citations in about 3,000 words of text), which have led me all over the Decretum, Liber Extra, and Emperor Justinian’s Corpus Iuris Civilis of Roman law. Usually the connection is not exact, but somewhat tangentially related. The first reference to the Digest in the above quotation, for example, is of a passage dealing with arbitrators: if the decision is to be made by a majority amongst three arbitrators, two arbitrators in agreement still cannot make a decision in the absence of the third one, since the third by his presence might be able to influence the others’ opinion. In the same way, Hostiensis implies, the chapter may be able to influence the opinion of the prelate.

Out of all these snippets and connections and discussions, my hope is that a fuller picture will begin to emerge of the way these thinkers conceived of counsel—as a virtue, as a procedure, as a requirement, etc.—and how this conception may have influenced the ideas and practices of those around them.




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