Decretum Gratiani: Legally, A BFD
Or the Document Shaping Medieval Courts
The Middle Ages has a reputation of slicing with a sword and talking later, it was actually a pretty litigious era.
The ways we sort rules changed as circumstances changed, and a big mover and thinker in the shape of those rules is the ‘Decretum’ by Gratian.
The General Idea
The Decretum Gratiani goes by a couple names: The Concordia Discordantium Canonum or the Concordantia Discordantium Canonum. Both names indicate that it is a collection of canon laws that did not agree with each other.
This was the original intent. It was written in — well, there is some debate, but the first version seems to be from about 1139. By that time, various church dignitaries had been issuing all sorts of edicts for centuries, and they didn’t come from the same source. The edicts conflicted, and the Decretum was an attempt to make them agree.
Format
It is divided into many parts, about 101 divisions and 36 causes. The first 20 of the divisions are basics about canon law, and the rest of the divisions are about ecclesiastical offices, things like how to replace a living bishop. The causes are all about the actual laws. Notably, this is where you find a chart of how closely related you can be to someone to marry them and a definition of marriage.
The formatting of each cause or division vary. Some of them resemble a screenplay for a court scene. Others trot out biblical exegesis.
The author, an Italian lawyer named Gratian, seems to have used the canons from Anselm of Lucca, Isidore of Seville, and Ivo of Chartres collection of rules, a handful of law collections like the Lex Romana Visigothorum, and Plato. People are still digging up the canons that Gratian used.
A Living Work
The work references a meeting that happened in 1139, so the first version was finished a little afterward. There’s another version, called the second recension, that was used in a Sienese court case in 1150, and so had to be finished by then.
This second version is more polished and thorough, though at least one scholar thinks that it is more likely that the work was published in four stages and that the whole thing was in its final form between 1155 and 1165.
Recension is a fancy word for revision, so it would make sense that the work cited by a lawyer would be the revised, fixed-up version, the one where all the thoughts have finally congealed.
The second revision is an expansion: it adds papal primacy and a lot of quotes from the Corpus Juris Civilis.
A few scholars think that more than one person worked on it, and they certainly have many copies in places such as Switzerland where notes from someone has been liberally added. Glosses and commentaries have been added to it starting in 1192 and carrying on into the 17th century.
Results
So- why is this a big deal?
Since this was the most comprehensive collection of laws, it was the basis for many polities rules. Its lack of trials by ordeals, for instance, helped phase out the practice. Things like defining marriage as initiated by the consent of the two parties and only consummated later came to be standard assumptions in many countries because people cited the Decretum in their cases.
And the Decretum has had a long time to influence court cases. Despite never being formally recognized by the Roman Church, it was being used as late as 1917. It is still being used to examine legal history and apply cannon law.
It has been cited to win court cases, and it was what Martin Luther cited to complain about papal primacy. Its reach is long and many fingered.
Sources:
gratian.org — Texts concerning the new editions of Gratian’s Decretum, by Anders Winroth
(2) Recent work on the making of Gratian’s Decretum | Anders Winroth — Academia.edu
(2) Marital Consent in Gratian’s Decretum | Anders Winroth — Academia.edu