ILLUMINATING THE LAW:


Legal Manuscripts at the Fitzwilliam Museum, Cambridge

    
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The medieval legal learning was largely devoted to the close study of the authoritative texts featured in this exhibition, and it was the recovery of one such text, the Digest, in Pisa around 1070 that had largely stimulated the subsequent growth of jurisprudence, or the systematic study of canon and civil law.

Civil Law

The Digest formed part of the Corpus Iuris Civilis, the body of civil law that had been compiled in the sixth century under Justinian, ruler of the Eastern Roman Empire. Until its rediscovery, only part of the Corpus Iuris was known in the West: the Institutes, a textbook of ancient Roman law that Justinian had approved for the use of law students in 533, and an abbreviated version of the Code, the law of the Eastern Empire originally promulgated by Justinian in 529 and revised in 534. The Digest was a kind of juristic scrapbook, which brought together fragments of the writings of ancient Roman jurists and was promulgated by Justinian in 533. Medieval copies were divided into three parts, known as the Digestum vetus, the Infortiatum, and Digestum novum. The full Corpus Iuris Civilis was available within a century of the Digest’s reappearance. The Tres Libri, the last three books of the Code, were known by the mid-twelfth century. The Novels (new laws) of Justinian, issued between 535 and 545 and collected under Tiberius II (578--82) were known only in an abridged form in the early twelfth century, but a fuller version, known as the Authenticum, was then discovered. The Tres Libri and Authenticum usually circulated together in the Volumen Parvum, a medieval concoction that also came to include the feudal law code and legislation of the German Emperor Frederick II (1231) modeled on that of the Roman Empire. 

By the late twelfth century, many layers of glosses had built up around legal texts. Azo (d. 1220/9) began the work of synthesizing those on the Corpus Iuris Civilis, and this was completed by his pupil, Accursius. Azo was famous for his Summa on the Code and that on the Institutes, but it was the work of Accursius, compiled between 1220 and 1240, that was accepted as the standard exposition or glossa ordinaria on all parts of the Corpus Iuris Civilis for centuries, superseding all previous glosses.

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Canon Law

Twelfth-century civilians prided themselves on possessing a complete and authoritative body of law, while the Church had no definitive collection of its legal authorities. In an attempt to free the Church from lay control and to eliminate vices among the clergy, such as buying of ecclesiastical offices (simony), keeping concubines (nicholaism), and priests bequeathing churches to their sons, the circle of the reform papacy produced several canon law collections after 1070. No single compilation, however, drove the others out of use until the appearance of Gratian’s Decretum. Little is known about Gratian himself except that he compiled the Decretum, but it is widely supposed that he was a teacher of canon law at Bologna. His text was indeed a text-book designed for teaching, not a law code. What made it attractive for use in the classroom was its dialectical method, a popular tool of early-twelfth century scholars which consisted of assembling the authorities for and against a particular proposition. The Paris theologian, Peter Abelard, had applied this approach to contradictory passages in the Bible in his work Sic et Non (Yes and No). Gratian likewise adduced conflicting authorities on a specific point of law and sought to reconcile them in comments called dicta. Commonly known as Gratian’s Decretum, his work was originally entitled Concordantia discordantium canonum, a concordance of discordant canons. It is now widely accepted that his text appeared in two recensions, or versions. The first one, completed no earlier than 1139, was apparently considered inadequate within a few years, for a treatise on consecration (De consecratione) was appended to it and numerous authorities were interpolated, including many from civil law. It has been claimed that Gratian had little to do with this augmentation of his work, for it confusingly broke up the structure and argument of the original. None the less, it was this second recension, virtually twice the length of the first and completed no later than 1158, that was accepted as the standard text-book of canon law studies. 

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The Decretum exposed the gaps in the existing law and stimulated the demand for new papal rulings on specific points of canon law or appeals for judgement on particular cases. These rulings circulated in the form of papal letters and were called decretals. The first significant collection was compiled by Bernard of Pavia (d. 1213) between 1188 and 1192, and created the model for all succeeding decretal collections with its organization of the material into five thematic divisions: 1) the powers of ecclesiastical judges; 2) procedure in the church courts; 3) the freedoms and duties of clergy; 4) marriage; and 5) canonical crime and punishment. Bernard’s compilation along with four more collections - known as the Quinque compilationes antiquae (the Five Old Compilations) - were incorporated into canon law curricula, supplementing and updating Gratian’s Decretum. 

The Quinque compilationes antiquae and all other collections were superseded in 1234 by the Liber Extra, so called since it was extra to the Decretum. Pope Gregory IX (1227—41) had charged his chaplain, the Catalan canonist Raymond de Peñafort, with its compilation, hence it is also known as Gregory IX’s Decretales, somewhat misleadingly. Yet, it did not remain the exclusive decretal collection for long. The legislation of subsequent popes, notably Innocent IV (1243—54) and Gregory X (1271—76), was incorporated in the Liber Sextus (‘sixth book’), so called since it supplemented the five books of the Gregorian collection, though it too was divided into five books. Pope Boniface VIII (1294—1303) had charged three canonists with its compilation in 1296 and promulgated it in 1298. More new law was later published in the Clementinae, a collection of legislation of Pope Clement V (1305—14) promulgated in 1317 by Pope John XXII (1314—34), and the Extrauagantes of John XXII (1325). Thereafter, decretals ceased to be the main vehicle for legal change, and the rulings of the papal courts assumed greater prominence.

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Canon law texts had acquired commentaries since the late twelfth century. The most concise were the interlinear glosses placed between main text lines. More commonly the gloss was written beside its corresponding text in the margin (marginal gloss). A continuous set of glosses arranged for use in conjunction with specific passages of the text was called an apparatus. The glossa ordinaria on the Decretum, compiled by Johannes Teutonicus c.1215 and revised by Bartholomew of Brescia c.1245, accompanied most copies of the Decretum thereafter. A new wave of canonists commenting on papal decretals, and known as decretalists, followed the appearance of the Liber Extra, including the glossa ordinaria of Bernard of Parma (d. 1266). Many canonists were incredibly prolific. The famous Bolognese canonist, Johannes Andreae (d. 1348) wrote not only glosses to the Liber Sextus and Clementinae, but also extensive commentaries on the Liber Extra and Liber Sextus (without the text), each of which he called Nouella after his daughter. Rival commentaries often competed for attention. Andreae’s gloss to the Liber Sextus was ordinaria at Bologna, but that of the French cardinal, Johannes Monachus (d. 1313), was ordinaria at Paris. Copies of the Liber Sextus were often accompanied by both glosses, and sometimes also by that of Guido de Baysio (d. 1313), Archdeacon of the University Bologna.

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