chapter 7 The Decretum of Gratian: A Janus-Faced Collection

Stephan Dusil

1 Introduction

Gratian is considered to be a turning point in the history of canon law, as he marks the watershed between the learned law of the late Middle Ages and the other, ‘non-learned’, more intuitive use of canon law of the early and high Middle Ages. Gratian represents the shift between the collectors of normative texts and the erudite interpretation of these texts. Once, he was even named the ‘father of the science of canon law’.1 Therefore, it is not surprising that Gratian has been in the focus of historical research for a long time: whereas some scholars tried to unravel the mysteries of his life, locating him as a Camaldolese monk in Bologna or placing him as a bishop to Chiusi in central Italy,2 others focussed on his Concordantia discordantium canonum, briefly known as the Decretum Gratiani, in order to learn more about the theory of canon law in the middle of the twelfth century.3 The discovery of at least two versions of the Decretum Gratiani some twenty years ago gave a tremendous boost to the analysis of this piece of literature: researchers have now been able to scrutinize the making of this seminal œuvre and to study from up close how Gratian pieced texts, rubrics and commentaries together.4 At the same time,

1 Stephan Kuttner, “The Father of the Science of Canon Law,” The Jurist 1 (1941), 2–19. 2 John T. Noonan, “Gratian Slept Here: The Changing Identity of the Father of the Systematic Study of Canon Law,” Traditio 35 (1979), 145–72; Anders Winroth, “Where Gratian Slept: The Life and Death of the Father of Canon Law,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, kanonistische Abteilung 99 (2013), 105–28. 3 As an introduction to Gratian see Peter Landau, “Gratian and the Decretum Gratiani,” in The History of Medieval Canon Law in the Classical Period: From Gratian to the Decretals of Pope Gregory IX, ed. Wilfried Hartmann and Kenneth Pennington, History of Medieval Canon Law (Washington, D.C., 2008), pp. 22–54. 4 Anders Winroth, “The Two Recensions of Gratian’s Decretum,” Zeitschrift der Savigny- Stiftung für Rechtsgeschichte, kanonistische Abteilung 83 (1997), 22–31; idem, The Making of Gratian’s Decretum, Cambridge Studies in Medieval Life and Thought, Fourth Series 49 (Cambridge, 2000). An overview of the current state of scholarship is provided by Melodie Harris Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,” History Compass 11:12 (2013), 1111–25. The theory of the two versions was confirmed several times; see, for instance, Jean Werckmeister, “Les deux versions du ‘de matrimonio’ de Gratien,” Revue de droit canonique 48 (1998), 301–15; Rudolf Weigand, “Causa 25 des Dekrets

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004394384_009 128 Dusil the discovery of the two versions has raised new questions,5 and it especially sparked a debate on who the author of the Decretum was. Commonly, the authors are just named ‘Gratian 1’ and ‘Gratian 2’ to indicate that both worked with—more or less—subtle differences which led to the conclusion that Gratian 1 was a “pastor with a strong interest in law; Gratian 2 was a professional jurist.”6 The question, however, remains open as to whether ‘Gratian 2’ just adopted a different perspective as an older man or whether the first version was transformed into the second version by a different master. Secure ground in this question can possibly never be reached and it is not the aim of this paper to envisage such an audacious endeavour. Nonetheless, the question of how the authors of both versions worked will be tackled from another and seemingly new perspective, namely the perspective of ‘knowledge’. ‘Knowledge’ is a pivotal term that has been successfully used in humanities in the last decade. Knowledge was by some historians understood as the social

und die Arbeitsweise Gratians,” in Grundlagen des Rechts. Festschrift für Peter Landau, ed. Richard H. Helmholz et al., Rechts- und Staatswissenschaftliche Veröffentlichungen der Görres-Gesellschaft N. F. 91 (Paderborn, Munich, Vienna, and Zurich, 2000), pp. 277–90; Mary E. Sommar, “Gratian’s Causa VII and the Multiple Recension Theories,” Bulletin of Medieval Canon Law, n.s. 24 (2000), 78–96. 5 A consensus has not been reached about the question of a “Ur-Gratian” which might be transmitted in a single manuscript (St Gall, Stiftsbibliothek, 673). The stance of Carlos Larrainzar, “El borrador de la ‘Concordia’ de Graziano: Sankt Gallen, Stiftsbibliothek MS 673 (= Sg),” Ius Ecclesiae 11 (1999), 593–666 has been heavily discussed. Up to the present day, it remains under discussion whether this text represents the very first version of Gratian’s Decretum, an abbreviation of the second version mixed with elements of the first, or even the reportatio of a medieval lecture on canon law, but this question will not be in the focus of this paper. Larrainzar’s stance was rather supported, for instance, by Kenneth Pennington, “Gratian, Causa 19, and the Birth of Canonical Jurisprudence,” in Panta rei: studi dedicati a Manlio Bellomo, ed. Orazio Condorelli, 5 vols (Rome, 2004), 4:339–55; and it was critically assessed by Anders Winroth, “Recent Work on the Making of Gratian’s Decretum,” Bulletin of Medieval Canon Law, n.s. 26 (2004–06), 1–29, esp. pp. 11–21; John C. Wei, “A Reconsideration of St Gall, Stiftsbibliothek 673 (Sg) in Light of the Sources of Distinctions 5–7 of the De penitentia,” Bulletin of Medieval Canon Law, n.s. 27 (2007), 141–80; Titus Lenherr, “Die vier Fassungen von C. 3 q. 1 d.p.c. 6 im Decretum Gratiani. Zugleich ein Einblick in die neueste Diskussion um das Werden von Gratians Dekret,” Archiv für Katholisches Kirchenrecht 169 (2000), 353–81, p. 377 and also idem, “Ist die Handschrift 673 der St. Galler Stiftsbibliothek (Sg) der Entwurf zu Gratians Dekret? Versuch einer Antwort aus Beobachtungen an D. 31 und D. 32,” available at http://www.mgh-bibliothek.de/dokumente/a/a117039.pdf (last access 2018 July 13). 6 See Anders Winroth, “Marital Consent in Gratian’s Decretum,” in Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl, ed. Martin Brett and Kathleen G. Cushing, Church, Faith and Culture in the Medieval West (Aldershot, 2009), pp. 111–21, here at p. 121, and Winroth, Making of Gratian’s Decretum (see above, n. 4), pp. 175–92.