Post-classical history

Conclusion: The Relevance of Medieval Canon Law

The history of canon law begins in the early Christian Church as a body of norms—rules regulating behavior—to guide its members and to help individual communities navigate questions confronting its faithful. These norms came from a variety of sources and would serve as the foundation for later canonical collections. The New Testament—especially the Gospels and the letters of the Apostle Paul—were of particular importance, setting for the earliest guidance on what it meant to be a Christian. Collections, such as the Didache and the Didascalia apostolorum, comprised of basic rules that governed conduct of Christian communities and liturgical services. The writings of bishops, most famously St. Augustine of Hippo, shaped the theological framework of Christian belief; established the practice of the faith; and delineated the relationship of the faith vis-à-vis heretics, Jews, and pagans. Synods and councils would serve as the venue for the adoption of policies and regulations to be followed by Christians everywhere. There, the regulations set forth by bishops for their particular locale would be normed for all the faithful. The writings of the bishop of Rome, as the successor of St. Peter, came to hold particular sway as the ecclesiastical hierarchy took shape with Christianity’s spread and growing influence. As the Church acquired property, converts, and prestige, its legal system grew and flourished under the patronage of Christian emperors from the reign of Constantine onward. Roman secular law, such as the Theodosian Code and Breviary of Alaric, interwove with Christian norms by legislating on subjects pertaining to the Church. Finally, regulations found in monastic rules, such as those of Pachomius and Basil, infiltrated ecclesiastical life and thought. The norms found in these sources would evolve over time into a body of law as new problems presented themselves and new opportunities appeared.

The body of norms of the early Christian Church point to a legal decentralization within the Church: norms emanated from various sources of authority and not from one singular authoritative source. Scripture, writings of the Church Fathers, decrees of councils and synods, papal decretals, penitential texts, monastic rules, and even secular legislation impacting the Church all held sway. With no one exclusive authority as solely responsible for the production and dissemination of law, legal collections did not have a standard characteristic. The compilation of collections was a private affair; that is, for individuals who had a need for a usable text. Forgeries drew both upon authentic and spurious sources to advocate for the agenda of the compiler. The Pseudo-Isidorian Decretals sought to bolster the authority of the episcopacy at the expense, to some extent, of the papacy. Church councils, called for and attended by secular rulers, and royal capitularies addressed matters affecting both church and state. Germanic kings, like their Roman predecessors, saw the Church’s hierarchy as a useful, indeed a nearly indispensable, adjunct to their own regimes. They found it politic to shower gifts and favors, property and privileges upon the Church. In return, the rulers expected support, both moral and political, from the Church’s leaders. The result was an intersection of ecclesiastical and secular law. Penitential handbooks treated crimes, such as homicide, that one might think would fall solely under the purview of the secular realm in addition to addressing sins and everyday transgressions. Canonical collections proliferated from all corners of Christendom. Created to suit the needs of the user, collections gathered canons from the church councils, such as the Canones Apostolorum, or papal decretals deemed important, such as the Collectio Quesnelliana, and organized them in a chronological order for easy reference. Systematic canonical collections, such as the Collectio Dioynsiana and the Collectio hispana systematica, drew material from Scripture, writings of the Church Fathers, conciliar decrees, papal decretals, Roman law, and secular law and arranged those sources around particular themes. Episcopal handbooks likewise drew together the wide swath of sources pertaining to ecclesiastical law, behavioral norms, and penance and were organized thematically. The collections of Abbot Regino of Prüm and of Burchard of Worms helped the bishop administer his diocese and the priest to care for his flock.

The Investiture Controversy saw law as a tool to spur reform of the Church and supporting a particular interpretation of the “right order”. Treatises such as the Libelli de lite, and collections such as those of Anselm of Lucca, Ivo of Chartres, or the Diversorum partum sententiae (“Collection in Seventy-Four Titles”) augmented secular authority, papal primacy, episcopal rights, or monastic rights; law was the puppet of its master. Collections drew on similar texts, but each used those text differently. Reformers looked upon canon law as an essential tool in their efforts to rescue the Church from what they regarded as the evils of lay control. Shrewd rulers had endeavored to ensure the loyalty of bishops and other ecclesiastical dignitaries by influencing, or, when possible, even dictating the selection of those who filled key offices within the Church. Clerical objections to such interference in churchly business by laymen, even royal or noble laymen, surfaced vigorously, however, and took the form of a powerful church reform movement whose members had secured control of the papacy by the mid-eleventh century. The results were renewed efforts to strengthen the Church’s legal system.

Canon law did not exist in a vacuum but rather engaged with the climate in which it operated. It operated alongside social and political developments. The church of the Carolingian empire was one in which the secular and the sacred were deeply engaged. Charlemagne issued capitularies that directly impacted the Church, and bishops were key players in the maintenance of his empire. The church of the Reform era sought to disentangle the two entities. Legal thought was central to this endeavor. Dictatus papae on behalf of Pope Gregory VII, letters of Emperor Henry IV, and the Libelli de lite demonstrate that canon law was found in more than collections. It was found in all sorts of writing where legal texts and precedents could be used to support one’s position.

Yet canon law also operated in a climate of what could be considered an “intellectual pluralism”: a climate in which the disciplinary boundaries were porous and possessing a competency in different areas of knowledge was valued. From the earliest days of the Church, knowledge of its norms was necessary for clerics of all ranks to carry out their priestly functions. As bishops and abbots undertook judicial functions, they needed a working knowledge of the law even if they were not legal specialists. In a sense, one could think that prelates might need the medieval equivalent of a Master’s in Church Administration, comprising of canon law, business administration, theology, and sociology. Even with the rise of the universities and greater degree specialization, the walls between disciplines remained somewhat porous. Theologians possessed a working knowledge of law even if it was not their primary area of inquiry as evident by the incorporation of legal concepts woven into their works. Could it be that just as today’s graduate students might take a class outside of but related to their area of specialization, medieval students may have taken a law class or sat in on the lectures of law faculty while pursuing their theology degree? After all, in a letter to the archdeacon of Oxford, Walter Map, extolling the virtues of theology above all other sciences, the canonist, archdeacon of Brecon, and royal clerk Gerard of Wales (d. 1223) likened the academic disciplines to an edifice: liberal arts were the foundation and theology was the roof. Extending Gerard’s analogy to a logical conclusion, law served as the walls that built upon the foundation and supported the roof.1 Like theologians, secular administrators needed some level of intellectual versatility. As seen with the coutumier of Philippe de Beaumanoir, ecclesiastical and secular jurisdictions overlapped. We also see both in his coutumier and in secular legal collections from across Europe that the principles and norms of the Romano-canonical tradition infiltrated and influenced legal thought beyond the ecclesiastical courts. Intellectual pluralism enabled compilers to negotiate the material available and tailor it to the social and political needs of their environment. When judges and pleaders in customary law courts or (especially in Italy) municipal courts could discover no method in their local law for resolving a dispute, they often turned to Romano-canonical practices as a substitute for custom or statute.

1 G. Cambrensis, Symbolum Electorum, Epist. 24 in Opera, Vol. 1, ed. J. S. Brewer (London: Longman, Green, Longman, and Roberts, 1861), 271–287. See also J. Baldwin, Masters, Princes and Merchants: The Social Views of Peter the Chanter and His Circle, 2 vols (Princeton, 1970), 1:83.

The “Renaissance of the Twelfth Century” had proved instrumental for legal thought.2 Scholastic thought had led to new methods of analysis and interpretation. The revival of Justinian’s Corpus iuris civilis ushered in a renewed interest in the teaching and use of Roman law. The treatises and commentaries of the Romanists—lawyers, such as the “Four Doctors”, specializing in civil Roman law—intersected with the treatises and commentaries of canonists. The emergence of similar ideas among civil lawyers and canonists reflected, at least in part, the long-standing intellectual interdependence of civil and canon law. That interdependence reached far back into the early history of the Christian church and the notion that “[t]he church lives by Roman law” (ecclesia vivit lege Romana) was a familiar aphorism. The revival of Roman law that flourished during the twelfth century reinforced the canonists’ inclination to mine Roman law for ideas and practices that they could apply to canonical problems. In consequence, as we have seen, some formal training in Roman law was essential for every canonist, while for practical reasons men trained in civil law usually needed to learn some canon law. Paradoxically during the thirteenth century, when law teachers within the universities commonly separated themselves into two distinct faculties of civil and canon law, the interdependence between them became increasingly marked.

2 For more on the intellectual developments, see R. Benson and G. Constable, eds., Renaissance and Renewal in the Twelfth Century (Toronto, 1991).

Within this climate, the schools emerged as powerful engines for reshaping the ecclesiastical establishment to meet the demands of a society that decade by decade became more complex and demanding. Gratian as the “Father [of the Science] of Canon Law” sought to create a teaching tool that reconciled legal discrepancies and taught students how to deconstruct a problem, analyze its components, and arrive at a conclusion that fit within the parameters of the law. Though still considered a private collection, Gratian’s Decretum had provided the reformed church with a comprehensive textbook of canon law. Its complexity and influence can be seen in the number of manuscripts still extant and in the subsequent literary works compiled by the Decretists to clarify, elaborate, and even contradict Gratian’s understanding of the law. Decretal collections and commentary of the Decretalists sought to keep legal thought up to date. Canonists integrated Roman legal principles into their commentaries on the Decretum and the decretal collections to further clarify the law and push legal thinking forward.

The implicit theory that justified such borrowings from the learned laws maintained that Roman law comprised, in some sense, a universal law of venerable antiquity, and that the principles of “canonical equity” were likewise applicable everywhere in Christian society. The two learned laws, in this view of things, comprised “everyone’s general law” (lex omnium generalis) that judges could legitimately fall back upon to supply lacunae in the particular laws of any region in Christendom. The belief that Romano-canonical law constituted a universally applicable ius commune proved particularly helpful in dealing with conflict-of-law problems that arose when the courts had to adjudicate disputes between parties from different cities or regions. It enabled the judge in such a situation to resolve the problem by calling upon an impartial rule, rather than choosing between the laws that the parties relied upon. The ius commune thus emerged in the late Middle Ages and the Early Modern era as a “peacemaker’s law”, which allowed courts to settle issues definitively and finally, while at the same time maintaining a degree of flexibility to choose the solution that seemed most appropriate and least likely to promote further discord.3

3 See generally M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. L. G. Cochrane (Washington, DC, 1995); J. Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change (Princeton, 1990), 7–9 provides a helpful overview of the role of the ius commune in late medieval and early modern Germany.

By the end of the twelfth century, alumni of the canon law schools had begun to occupy most of the chief seats of power within the Church. As Bruce Brasington has aptly noted, this was a legally minded world, a world in which canonists engaged and shaped. Armed with a detailed command of the intricacies of substantive law and procedure, trained canon lawyers became indispensable experts upon whom authorities at every level of the hierarchy necessarily relied. Some canonists became popes themselves—Gregory IX, Innocent IV, Boniface VIII, and John XXII are formidable examples—while other canonists secured control not only of the day-to-day operations of the papal judicial system, but also of its diplomatic, financial, and administrative offices. Canonists with increasing frequency became cardinals, archbishops, bishops, abbots, or archdeacons in every corner of the Western church. By the mid-thirteenth century, canonists dominated a church that was becoming increasingly legalistic with every passing generation.

Medieval canon law was a good deal more than simply a set of religious regulations with which pious persons might choose to comply. The Church’s claim of jurisdiction over the regulation of clerical and lay behavior had afforded it a wide latitude to correct the errant. The ecclesiastical court system, much like today’s court system, began at the local diocesan—archdeacon and dean—level and afforded opportunities to appeal to the next higher court—be it episcopal or archiepiscopal—or directly to the pope himself. The Roman Rota stood as the highest court in Western Christendom. In the course of the fourteenth century, its decisions became the source of new law. The Apostolic Penitentiary paralleled the Roman Rota. While not a judicial court, it was the court of one’s conscience, providing absolution for one’s soul and dispensations from ecclesiastical regulations. Because of the influence that ecclesiastical courts held over society, it should come as no surprise that canon law had a tremendous impact on the shaping of procedural norms. Canonists thought deeply about the balance between assuring that crimes were punished and safeguarding the principles of due process espoused by the ordo iuris. Judicial processes—such as accusatio, denuncatio, per notorium, and per inquisitio—and the elements earmarking the progression of a trial sought to find the proverbial porridge that was just right. The work of canonical and civil jurists in these areas continue to be felt today as we grapple with their concerns about how to balance the scales of equity and justice.

Yet equity could be said to have its limits and canonical courts had their less benign side. The Church imposed regulations to prevent Jews from holding a position of authority or influence over Christians. Such regulations eventually would be applied to Muslims as well. As the Church’s judicial apparatus became more intricate it also became more imposing. The papal inquisition against heresy sought to ferret out religious dissent. Canonists and inquisitors struggled… sometimes unsuccessfully… to balance the objectives against the established procedural norms of due process. Judges and other court officials were often accused of venality and while those charges may have exaggerated the frequency and scope of corruption, there can be little doubt that many complaints had merit. Canonical judges were empowered to inquire into the most intimate and personal corners of people’s lives and in consequence acquired a reputation for intrusiveness and censoriousness. This odious reputation was enhanced by the development of inquisitorial procedures for detecting and punishing “occult” crimes. Inquisitorial procedure stripped the accused of most of the safeguards that earlier church authorities had devised to protect defendants against convictions on inadequate evidence. The rationale for this change of policy asserted that the older procedural safeguards resulted in ineffective administration of the judicial system. The conventional rules, according to partisans of the new criminal procedure, too often allowed the guilty to escape unpunished and thereby undermined the general welfare of Christian society. In effect, they argued that the end—punishing criminals—justified the means, that is, disregarding defendants’ rights. This is an argument that is still heard, for these issues are always with us. Inquisitorial procedure allowed church courts to pursue rumors and complaints, not only concerning the actions and behavior of the faithful, but about their beliefs, thoughts, and opinions as well. Indeed, church courts often penalized persons convicted of harboring unorthodox ideas far more harshly than those whose actions deviated from the canonical norms.

F. W. Maitland once declared that “[t]he medieval church was a state,” and he added it would be difficult, indeed impossible, to formulate a definition of a state that would not equally well fit the church in the high Middle Ages.4 Canonical jurisdiction and the various civil jurisdictions frequently overlapped one another. The medieval church had shared power with civil governments: in every region canon law operated in tandem with other juridical systems. Canon law offered litigants in many civil controversies an alternative forum in which to air their disputes and seek relief from wrongs. For persons accused of crimes, the canonical courts offered a system of justice that demanded more rigorous proof than secular jurisdictions frequently did before pronouncing guilt; and even (perhaps especially) for the convicted, canonical tribunals provided a potential haven from the physical punishment used in royal and customary law courts. These jurisdictional distinctions were not lost on the people. They knew, at least at some level, the canonical legal norms and manipulated them to suit their purpose. Those forced to abjure heresy shaped their own professions of faith. Couples turned to the Apostolic Penitentiary for dispensations to have their marriages validated despite some impediment. Women used the church courts to enforce a marriage contract or to reclaim their dowry.

4 F. W. Maitland, Roman Canon Law in the Church of England (London, 1898), 100, pursues the argument still further:

The medieval church was a state. Convenience may forbid us to call it a state very often, but we ought to do so from time to time, for we could frame no acceptable definition of a state which would not comprehend the church. What has it not that a state should have? It has laws, lawgivers, law courts, lawyers. It uses physical force to compel men to obey its laws. It keeps prisons. In the thirteenth century, though with squeamish phrases, it pronounces sentence of death. It is no voluntary society. If people are not born into it, they are baptized into it when they cannot help themselves. If they attempt to leave it they are guilty of the crimen laesae maiestatis, and are likely to be burnt. It is supported by involuntary contributions, by tithe and tax. That men believe it to have a supernatural origin does not alter the case. Kings have reigned by divine right, and republics have been founded in the name of God-given liberty.

Yet canon law was so much more than the relationship between church and state or the relationship between secular and sacred jurisdictions. Canon law intimately touched lives of people, whether ecclesiastical or lay, weaving itself into the very fabric of medieval life and thought. Canonists helped to formulate our understanding of what constitutes a corporate body and the head’s duties to its members. Their interpretation of the law and its application played a pivotal role in the argument that the government must abide by the same rules as the people. Canonists shaped how we think about just price, usury, and work and holidays. They influenced our understanding of private property and inheritance. Canon law was at the forefront of policies that paved the way for social safety-nets. Whether medieval or modern, understanding a society means understandings its laws, the foundations upon which they are built, and how they influence and are influenced by the world in which they engage.

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