Law and Reform: the Transmission of Burchard of Worms' Liber Decretorum

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chapter 2 Law and Reform: The Transmission of Burchard of Worms’ Liber decretorum

Kathleen G. Cushing

The Liber decretorum of Bishop Burchard of Worms (hereafter LD) was one of the most important canon law collections of the eleventh and early twelfth centuries until the compilations associated with Ivo of Chartres came into widespread use.1 Yet even given the popularity and transmission of the Panormia, it is clear that LD continued actively to be read and consulted after this, especially in Italy. For example, whilst Gratian made scant use of LD, a considerable proportion of the paleae—the additions or ‘chaff’ added to the Decretum Gratiani by masters at Bologna—was in fact derived from Italian manuscripts of Burchard.2 Moreover, manuscript evidence shows that LD continued to be copied (either in full or in abbreviations) throughout the twelfth and early thirteenth centuries and there are more than 35 references to LD manuscripts (for the most part no longer extant) in old library catalogues dating from the twelfth to the eighteenth centuries.3 No doubt, there were considerably more that have not survived. At the same time, scholars such as Weigand, Landau and Summerlin among others have drawn attention to the continuing use of pre-Gratian collections—or the ‘old law’—by the decretists in glosses and in decretal collections, thereby underlining the extent to which the ius novum did not mean the end of appeals to the older collections, including Burchard.4 Indeed there is likely a connection between Gratian’s neglect of

1 I am grateful to Professor Peter Landau for his comments on an earlier version. 2 Peter Landau, “Burchard de Worms et Gratien: A propos des sources immédiates de Gratien,” Revue de droit canonique 48 (1998), 233–45, where he argues that Burchard accounts for some ten canons and revised his earlier contention of no use as in his “Vorgratianische Kanonessammlungen bei Dekretisten und in frühen Dekretalensammlungen,” in Proceedings of the Eighth International Congress of Medieval Canon Law: San Diego, University of California at La Jolla, 21–27 August 1988, ed. Stanley Chodorow, MIC Subsidia 9 (Vatican City, 1992), pp. 93–116. 3 Lotte Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140): A Bibliographical Guide to the Manuscripts and Literature, History of Medieval Canon Law (Washington, D.C., 1999), pp. 145–47. 4 Landau, “Vorgratianische Kanonessammlungen bei Dekretisten” (see above, n. 1), pp. 93– 116; Rudolf Weigand, Die Glossen zum ‘Dekret’ Gratians. Studien zu den frühen Glossen und

Burchard and the attention it found after 1150, mostly among the decretists. For example, the noted canonist and decretalist, Bernard of Pavia (a man educated at Bologna under Bazianus, Gandulphus and perhaps even Huguccio himself), availed himself of Burchard’s LD when compiling his Breviarium extravagantium or Compilatio prima in the 1190s. Whilst the prevailing master narrative might imply that Bernard’s use of ‘Brocarda’ or Burchard could be deemed personal, idiosyncratic or indeed even ‘antiquarian’, Bernard of Pavia’s decretal collection, as Summerlin argues below, was the first to be widely used in the schools and the stability of the text (which existed in more than a handful of manuscripts) suggests that its users had no qualms about continuing to appeal to the old law.5 Whilst other examples are offered by Summerlin, it is a clear indication of the extent to which Burchard and other ‘old law’ continued to be read alongside, used to supplement and inform the ius novum and indeed the ius commune. Indeed, the ongoing copying of the Decretum Gratiani in the later twelfth and thirteenth centuries provides compelling evidence of this phenomenon, especially if we accept Gratian as the culmination of the old law and not necessarily the start of the new law, spurred on by the recovery of Justinian’s Digest.6 The problem remains, however, that the historical master narrative of the development of medieval canon law especially in the eleventh and twelfth centuries indelibly influenced by Paul Fournier has not been sufficiently adjusted to reflect the textual and historical realities. Paul Fournier devoted considerable scholarly attention to Burchard’s LD in extended critical articles on its sources, character and influence, all reprinted in his Mélanges de droit canonique and also summarized in the exceptionally influential (possibly too much so) Histoire des collections canoniques en Occident dépuis les Fausses Décrétales jusqu’au Décret de Gratien, co-authored with Gabriel Le Bras.7 Fournier recognized the pivotal role played by Burchard in compiling a practical, indeed user-friendly compendium for pastoral care, but found the collection theoretically unsophisticated and on the whole dismissed

Glossenkompositonen, 2 vols, Studia Gratiana 26–27 (Rome, 1991). See Danica Summerlin, “Using the ‘Old Law’” in the present volume. 5 Danica Summerlin, “Using the ‘Old Law’” in the present volume. 6 For a different perspective, see Kenneth Pennington, “The ‘Big Bang’: Roman Law in the Early Twelfth Century,” Rivista internazionale del diritto commune 18 (2007), 43–70. See also Bruce Clark Brasington, Order in the Court: Medieval Procedural Treatises in Translation, Medieval Law and its Practice 21 (Leiden, 2016), pp. 52–58. 7 Paul Fournier, Mélanges de droit canonique, 2 vols, ed. Theo Kölzer (Aalen, 1983); Paul Fournier, with the collaboration of Gabriel Le Bras, Histoire des collections canoniques en Occident dépuis les Fausses Décrétales jusqu’au Décret de Gratien, 2 vols (Paris, 1931–32). Le Bras’ principal contribution was up to the eleventh century.