At a Glance
By the twelfth century, the Catholic Church had a serious legal problem. As the Church sought to centralise its power throughout Europe, the papal curia was facing a growing demand to consolidate its canons. The Church had amassed a vast collection of disparate laws, rules, and declarations over the course of a thousand years, and it had become necessary to find a way to reconcile these contradictory sources.
Enter a scholar named Gratian. Around 1140 CE, he took up the enormous task of trying to harmonise these discordant canons by drawing inspiration from the works of the emperor Justinian and applying the scholastic method to Church law. Rather than simply compiling a list of canons, Gratian explored methods of reconciling conflicting sources by reasoning through legal questions:
- He used the scholastic method of sic et non (“yes and no”) to resolve contradictions by posing a question, then gathering quotes in favour of it (sic) and quotes against it (non).
- He then wrote comments known as the dicta Gratiani, which provided his analysis and arrived at a response which sought to harmonise the various sources.
This approach transformed canon law. Gratian helped establish the study of church law as its own academic discipline and his work became the foundation of medieval legal education. Over time, the Decretum became one of the most influential legal texts in European history, remaining a central part of Catholic canon law until the early 20th century.
Prior to the creation of the Decretum Gratiani (c. 1140 CE), the medieval world of Western Europe was mired in a profound crisis of legal authority. The Catholic Church, which was rapidly centralising power, found itself in a confusing legal landscape characterised by a “chaotic mass of contradictory regulations.”[1] This fragmented and deeply inconsistent legal heritage consisted of legal canons derived from papal decretals, Church councils (both universal and local), patristic writings (such as those of St Augustine and St Jerome), and secular laws from Germanic rulers, all issued in vastly different contexts over the course of a thousand years. This led to a “mounting deluge of legal actions”,[2] with litigants bypassing local courts to bring their cases directly to the papal curia, which demanded more unified body of law which could be applied across all of Christendom.[3]
The rediscovery of Justinian’s Digest around 1070 CE[4] modeled a system of municipal and commercial law which included a vocabulary of rights (ius) and power (potestas).[5] Religious canonists soon adapted the concepts and methodology of Roman law to suit the Church’s uses.[6] Gratian, however, was the first canonist to teach the subject in an academic setting,[7] and he embarked upon an enterprise of synthesis intended to harmonise the methodology of Roman law with the discordant canons of the Catholic Church (and indeed, the Decretum Gratiani is also known as the Concordia Discordantium Canonum, or “the harmony of discordant canons”).[8]Gratian is credited with elevating canon law to a distinct juridical science[9] and his Decretum is widely considered a foundational text in the study of canon law,[10] as it was the first treatise in the West to systematically coordinate and synthesise over a millenium of diverse texts.[11] Prior to his creation of the Decretum, canon law was not considered an independent discipline; it was instead a subfield of theology which applied religious principles to ecclesiastical cases.[12]
Working on the heels of the scholastic movement, Gratian pioneered the systematic application of scholastic techniques to canon law.[13] He did not merely list canons; he employed the scholastic method of sic et non (“yes and no”) to actively resolve canonical contradictions.[14] His most innovative tool was the dicta Gratiani, a means of analysis by which he included his own discursive commentaries interspersed between authorities to introduce, interpret, and reconcile contradictory statements.[15] There are nearly 1000 dicta in the Decretum Gratiani. Gratian presents them by posing a question, presenting contradictory authorities, and then using a dictum to synthesise a solution in an attempt to harmonise the statements.[16] A common way in which he sought to resolve conflicts was to argue that different authorities used the same word in different senses.[17] For example, when articulating marriage law, Gratian reconciled conflicting views on whether consent or sexual intercourse formed a marriage by distinguishing between “initiated marriage” (coniugum initiatum, consent only) and “perfected marriage” (coniugum perfectum, consent and sexual intercourse).[18]
Furthermore, Gratian grounded his work in the concept of Natural Law, which he defined as the unchangeable will of God found in the Bible.[19] By asserting that natural law trumps all human custom, Gratian provided a unified moral and legal hierarchy that could overrule inconsistent local laws and even papal decrees if they were found to be contrary to the teachings of Church Fathers.[20]
Modern scholarship now recognises that the Decretum Gratiani was not composed in a single, static edition, but instead evolved through at least two distinct recensions, known as Gratian 1 and Gratian 2.[21] The transition from the first recension (Gratian 1) to the second (Gratian 2) represents a significant shift from a didactic teaching tool to a comprehensive legal code.[22] While the first recension contains approximately 1860 canons, the second contains between 3800-3945 canons.[23] Scholars attribute this expansion to the effort of Gratian’s successors to address topics which were not addressed in the first recension, such as laws concerning baptism and confirmation.[24]
The intended use of the Decretum shifted between the first and second recension.[25] The first recension is more of a pastoral tool, intended to be used to train priests who needed to be familiar with Church laws and procedures.[26] The second recension is intended to train professional jurists and reflects a more clearly defined understanding of ecclesiology.[27]
The second recension also made structural revisions to the first version of the Decretum. Part I was explicitly divided into 101 distinctions, where originally only the theme of distinctions was present. Later editors added Part III (De Consecratione) to the work, which focuses on the sacraments (such as the Eucharist and the consecration of churches).[28] De Penitentia was also expanded, where the first recension is significantly shorter in length than the version found in later, standard editions.[29]
The two recensions differ in how they make use of Justinian’s Corupus Iuris Civilis.[30] In the first recension, Gratian did not include direct excerpts from Justinian; what he did include was drawn from barbarian legal codes or quoted second-hand through earlier canonical collections.[31] The second recension, however, includes over 40 excerpts from Justinian’s Digest and Codex.[32] Scholars have noted that the second recension is often more coherent, with tighter argumentation than the first recension.[33] The first recension has a more didactic focus, containing more of Gratian’s dicta than actual canons. While the second recension includes more canons, however, it suffers from “untidy seams” – subsidiary arguments which disrupt the original discussion or the main flow of reasoning.[34] It also introduces distinctions in terminology for a focus on precision, e.g. using “anathema” to describe a sentence of full social exclusion, and “excommunication” to refer to exclusion from the sacraments.[35] The second recension introduced new legal requirements and distinctions. For example, in marriage law, the first recension emphasises the consent of the bride and groom for the marriage to be considered lawful, but the second recension adds that a father’s consent is required for a marriage to be considered lawful.[36]
It is not readily apparent which recension Western University’s copy of the Decretum belong to. Initial analysis of the text on the manuscript reveals the inclusion of an excerpt from a letter attributed to Pope Analectus in Part II, C.2 q.4 c.2 which does not appear in Anders Winroth’s critical edition of the first recension.[37] In Winroth’s edition, Part II, C.2 q.4 c.2 reads, “Quot testibus episcopus, vel presbiter vel reliqui clerici sint convincendi.” This text is not present on our folios at all. However, this provides fertile ground for future research critically examining the text of our manuscript by comparing the same quaestio across surviving manuscripts of the Decretum, as well as delving deeper into Winroth’s extensive research concerning specific textual differences between the first and second recension.
The Decretum Gratiani displaced all its predecessors in both cathedral schools and religious courts, effectively dividing the history of Church law into two eras: canon law before Gratian and canon law after Gratian.[38] It became the de facto first part of the Corpus iuris canonici, remaining formally valid in the Catholic Church until 1917 CE.[39] Following Gratian, scholars known as “decretists” dedicated themselves to analysing and glossing his Decretum Gratiani. Two of the most significant decretists were Johannes Teutonicus (d.1245), a German prior and legal scholar who taught at the law school in Bologna, and Bartholomaeus Brixiensis (d. 1258 CE), a Bolognese jurist.[40] Teutonicus compiled the Glossa Ordinaria, which consolidated previous scholarship into a definitive set of annotations for the Decretum Gratiani around 1215-1217 CE.[41] It became the standard commentary accompanying the Decretum in manuscripts designed for academic study.[42] Following that, Brixiensis revised Teutonicus’ Glossa Ordinaria around 1241 CE with the goal of updating the commentary to include references to the Liber Extra, a major new collection of papal decretals promulgated by Pope Gregory IX in 1234 CE.[43] Brixiensis’ revised version of the Glossa Ordinaria is the version which appears in the majority of late medieval manuscripts containing the Decretum Gratiani. It was the version eventually printed alongside Gratian’s text.[44]
Work Cited
[1] Dario C. Ferreira and Sawicki, Sandra A., “Decretum Gratiani: Cornerstone of Canon Law” in The Quarterly Journal of the Library of Congress 34 (1977), 329.
[2] James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (University of Chicago press, 2008), 126.
[3] Melodie H. Eichbauer, “Decretal Collections and the Decretalists.” In Medieval Canon Law, 2nd ed. (Routledge, 2023), 83.
[4] Brundage, Medieval Origins, 77; see also Rory Cox, “Gratian (Circa 12th Century).” In Just War Thinkers (Routledge, 2018), 37.
[5] Cox, “Gratian (Circa 12th Century)”, 36.
[6] Brundage, Medieval Origins, 98.
[7] Anders Winroth, “Gratian and His Book: How a Medieval Teacher Changed European Law and Religion.” In The Oxford Journal of Law and Religion 10 (1), 2.
[8] Winroth, “Gratian and His Book” (2021), 3; see also Cox, “Gratian (Circa 12th Century),” 35.
[9] Stephan Kuttner, “Father of the Science of Canon Law” in The Jurist no. 1 (1941), 2.
[10] Cox, “Gratian (Circa 12th Century),” 34; see also Winroth, “Gratian and His Book,” 2.
[11][11] Ferreira and Sawicki, “Decretum Gratiani: Cornerstone of Canon Law,” 328.
[12] Ibid, 328.
[13] Winroth, “Gratian and his Book,” 7; see also Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,” 118.
[14] Cox, “Gratian (Circa 12th Century),” 35.
[15] Ibid, 17; see also Brundage, Medieval Origins, 98.
[16] Anders Winroth, “Gratian.” In Christianity and Family Law: An Introduction, ed. John Witte Jr and Gary S. Hauk (Cambridge University Press, 2017), 134; Brundage, Medieval Origins, 98.
[17] Winroth, “Gratian and His Book”, 8; Anders Winroth, “Canon Law in a Time of Renewal, 1130-1234” in The History of Medieval Canon Law, Part I (Cambridge University Press, 2022), 97.
[18] Winroth, “Gratian,”140; see also Winroth, “Gratian and His Book,” 8.
[19] Ibid, 11.
[20] Ferreira and Sawicki, “Decretum Gratiani: Cornerstone of Canon Law,” 336.
[21] Eichbauer, “Decretal Collections and the Decretalists,” 112; Winroth, “Canon Law in a Time of Renewal,” 97-98.
[22] Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,”112-113.
[23] Anders Winroth, The Making of Gratian’s Decretum. Cambridge University Press, 2004, 122-124.
[24] Winroth, “Gratian and His Book,” 14; Winroth, The Making of Gratian’s Decretum, 130-131.
[25] Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,” 118; Winroth, The Making of Gratian’s Decretum, 144.
[26] Eichbauer, “Gratian’s Decretum and the Changing Historiographical Lanscape,” 118.
[27] Ibid.
[28] Winroth, The Making of Gratian’s Decretum, 144.
[29] Ibid.
[30] Winroth, “Canon Law in a Time of Renewal,” 97.
[31] Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,” 112.
[32] Anders Winroth, “Gratian and His Book(s),” in Gratian the Theologian by John C. Wei (Catholic University of America Press, 2016), 23.
[33] Winroth, The Making of Gratian’s Decretum,123, 145; Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,” 112.
[34] Winroth, The Making of Gratian’s Decretum, 126.
[35] Ibid.
[36] Winroth, “Gratian and His Book,” 8.
[37] “Concordia Discordantium Canonum,” effective April 2026, https://gratian.org/Decretum/Decretum20Gratiani201.pdf
[38] Brundage, Medieval Origins, 125; Ferreira and Sawicki, “Decretum Gratiani: Cornerstone of Canon Law,” 334.
[39] Winroth, “Canon Law in a Time of Renewal,” 96.
[40] Ferreira and Sawicki, “Decretum Gratiani: Cornerstone of Canon Law,” 334.
[41] Brundage, Medieval Origins,119; Winroth, “Canon Law in a Time of Renewal,” 102.
[42] d’Avray, D. L. “Gloss II (Johannes Teutonicus and Bartholomaeus Brixiensis) on Gratian and the Liber Extra.” App. In Papal Jurisprudence, 385–1234: Social Origins and Medieval Reception of Canon Law (Cambridge University Press), 273.
[43] Ibid, 274.
[44] Ibid; Winroth, “Canon Law in a Time of Renewal,” 102-103.