Canon Law

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CANON LAW

The basic elements of canon law were the Decretum (c. 1140) and the Decretales (1234). The Decretum (The concordance of discordant canons), compiled by a monk named Gratian, brought together materials related to the law and the administration of the church from a wide variety of sources in a dialectic fashion, in order to create a uniform body of law for the universal church. The Decretales (The Gregorian decretals) consisted of approximately two thousand decretal letters, judicial decisions, that various popes issued between the mid-twelfth and the early thirteenth century. Eventually several smaller collections were added as well: the Liber sextus (The sixth book of decretals; 1298); the Constitutiones Clementinae (The Clementine constitutions; 1317), and the Extravagantes a Johanne Papa XXII (Decretal letters of Pope John XXII; 1325). The last brief collection was the Extravagantes communes compiled at the end of the fifteenth century.

In addition to texts in the Corpus iuris canonici, canon law also contained commentaries based on glossing the texts. Initially brief marginal comments explaining unusual words and phrases and referring the reader to related materials elsewhere, the glosses grew longer and more detailed. By the mid-thirteenth century there existed a standard commentary, a Glossa ordinaria, on the Decretum and one on the Decretales. These provided a kind of basic textbook based on the writings of a number of early canonists. Subsequently, many canonists wrote longer commentaries, not simply defining obscure terms and citing related materials but writing at length on substantive issues raised in the texts. Some of these commentaries contained in effect brief legal treatises on points of law and even political theory. The most extensive of these commentaries was that of Johannes Andreae (c. 1270–1348).

The period 1140–1378 was the golden age of canon law, the period when the law was fully formed and produced its greatest thinkers. Scholars judge the post-1378 period in the history of canon law as sterile, an era when commentators repeated thoughts of their predecessors without adding significantly to the law. Part of the reason for this division was that after 1325, papal judgment letters, decretals, were replaced as the basis of the law by decisions of the other papal courts, especially that known as the Rota. Nevertheless, canonists continued to produce extensive commentaries on the Decretales, often running to several volumes, that have received little scholarly attention although there is evidence that they deserve more extensive analysis. John F. McGovern has argued that many early modern economic concepts that Max Weber and others associated with the Protestant Reformation had in fact existed in the works of fifteenth-century Italian canonists.

During the sixteenth and seventeenth centuries, the Protestant Reformation and the Catholic response to it had a significant effect on the development of canon law. The major effect of the Reformation was that canon law was no longer the recognized law of Christian Europe. Now only Catholic countries recognized canon law, and even in those countries agreements between Catholic rulers and the papacy granted wide powers to the rulers in return for supporting the papacy, agreements that restricted the jurisdiction of the law. Such agreements, concordats, effectively limited the role of the papacy and therefore of the canon law within Catholic kingdoms. The agreements often required the papacy to seek royal permission before circulating statements on ecclesiastical law and doctrine. The climax of this development came with the Peace of Westphalia (1648), which ended the religious wars in Germany. The pope was not invited to send a representative to the negotiations that led to the peace, and Pope Innocent X (1644–1655) condemned the treaty but to no avail. This marked the end of the role of the pope and of canon law in the international relations of Europe.

Within the Catholic community, there were important developments regarding canon law. In response to calls for codifying the canon law to bring all of the disparate materials of the law into a coherent body of law, Pope Pius V (1566–1572), taking advantage of Renaissance humanist scholarship, created a commission composed of cardinals and scholars with a mandate to examine the various manuscript copies of the materials of canon law, to correct errors, and to excise materials that had been added to the original texts. The result was the Corpus iuris canonici (Body of canon law), the official law of the Roman Catholic Church until 1918.

Another source of development in canon law in the sixteenth century was the Council of Trent (1545–1563), which generated a series of canons designed to respond to issues that the Protestant reformers had raised. Overall, the canons and decrees of Trent reinforced the institutional structure of the church, the sacramental system, and the power of the papacy, seeing the reform of the existing church structure as central and rejecting the Protestant argument that the entire ecclesiastical structure, including the canon law, had to be eliminated.

From the perspective of Christian daily life, the most important of the canons of Trent was Tametsi (1563) dealing with marriage law. This decree restated the Catholic position that marriage was a sacrament and subject to ecclesiastical regulation, in opposition to the Protestant view that marriage was fundamentally a civil matter. Tametsi required parental consent, witnesses, formal recording of the marriage, and a blessing by a priest. This ended the older practice of secret marriage entered into by two persons without witnesses, a situation that caused a great deal of confusion for the ecclesiastical courts. Finally, Tametsi forbade secular rulers from interfering in any way with the freedom of their subjects to marry as they wished, thus stressing the right of the individual to enter a marriage without compulsion, a right protected by the requirement that the marriage ceremony be celebrated publicly and in the presence of witnesses.

Martin Luther (1483–1546) famously illustrated the Protestant opinion about canon law when he publicly burned volumes of the law along with other materials that he saw as corrupting the Christian faith by stressing the letter rather than the spirit of Christianity. Protestants rejected the Catholic sacramental system and the entire clerical structure headed by the pope so that it was possible to reject canon law as well. Even those Protestant countries that did retain some elements of canon law rejected any papal role in its functioning.

It was not only the Protestant Reformation that affected the role of canon law in European society in the early modern era. As modern states began to emerge, secular governments also began to take responsibility for marriage and family law, for cases involving wills and probate, and other matters that had previously been within the jurisdiction of the church and canon law. The canon law connected with these activities became the basis of secular law in these areas even in Protestant countries. As a result, one of the most important areas of scholarly research in modern times has concerned the appropriation of canon law by secular lawyers and political theorists in the early modern world. This scholarship has focused attention on three aspects of the development of canon law in the early modern era: the conciliar movement, canon law in the expansion of Europe overseas, and marriage law. In each of these areas, the work of the canonists contributed to the shaping of modern political and legal concepts.

The conciliar movement, a fifteenth-century movement to reform the institutional structure of the Catholic Church, played an important role in subsequent discussion of representative government, because the canonists had wrestled with problems associated with the governance of large communities, the relation of the ruler, that is, the pope, to a representative institution, the council, and the nature of representation within a political community, issues that in the seventeenth century lay at the heart of political debate throughout Europe. Careful analysis of early modern political and legal texts has uncovered not only concepts developed by the canon lawyers but the language of the canonists as well.

A related concept that developed from the debates of the canon lawyers was the notion of the ruler as sovereign and then the application of that concept to the emerging nation-state, making the state answerable to no outside authority. This had emerged in the canonistic tradition as the canonists discussed the powers of the pope and the emperor. The canonists had rejected imperial claims to jurisdiction over all other Christian rulers, arguing instead that Christian kings possessed within their own kingdoms the power identified with the imperial office. Subsequent writers, such as Jean Bodin (1529–1596), whose Six Books of the Republic is usually identified as the initial modern work on the concept of sovereignty, drew heavily on the canonistic tradition in his work.

Finally, in spite of Luther's burning of volumes of the canon law, Protestant churches also employed at least some elements of the canon law tradition. The Church of England was perhaps the most notable example of continued use of the canon law and church courts in a variety of matters, but as recent scholarship has indicated, Lutherans also used elements of canon law. Elements of the medieval canon law can also be found in the major works of John Calvin, whose Institutes and Ecclesiastical Ordinances reflect a highly legal conception of church structure, a conception rooted in the writings of the thirteenth-century canonists.

See also Calvin, John ; Catholicism ; Church of England ; Luther, Martin ; Papacy and Papal States ; Reformation, Protestant ; Trent, Council of .

BIBLIOGRAPHY

Primary Source

Canons and Decrees of the Council of Trent. Original text with English translation by H. J. Schroeder. St. Louis and London, 1941.

Secondary Sources

Bernhard, Jean, Charles Lefebvre, and Francis Rapp. L'époque de la réforme et du concile de Trente. Vol. 14 of Histoire du droit et des instituions de l'église en Occident. Paris, 1989.

Brundage, James. Medieval Canon Law. London and New York, 1995.

Helmholz, R. H. Roman Canon Law in Reformation England. Cambridge, U.K., and New York, 1990.

McGovern, John F. "The Rise of New Economic Attitudes in Canon and Civil Law, A.D. 1200–1550." The Jurist 32 (1972): 39–50.

Ourliac, Paul, and Henri Gilles. La période post-classique (1378–1500). Vol. 13 of Histoire du droit et des institutions de l'église en Occident. Paris, 1971.