Monday, 24 September 2012

Canon Law and The Canonical System


Canon Law was sacerdotium as opposed to imperium or regnum. According to Pope Gregory VII it was derived from the sacred law of Heaven. The Church of Rome had a common and universal system of law, common to all lands and provinces owing spiritual allegiance to the Bishop of Rome. All of Western Europe, and Christendom were subject to one tribunal of last resort, the Roman Curia, to which appeals could be made. Popes acted as the primary source and lawgivers of the Canon Law. In Canon Law the unit of wrongdoing was the commission of a sin, for which the exaction of a penance had to be exacted from the wrongdoer. Canon Law sought repentance from sinners, for the salvation of their souls. A canon was originally a rule adopted by a council; these canons formed the foundation of canon law.
Appeals to the Roman Curia were encouraged, and could be undertaken at any time during the progress of a case through the ecclesiatical courts. In his role as head of the Catholic Church of Rome, the Pope was more than just a president of a system of appeal courts. The Pope's decision and advice on any matter of Canon Law could be sought at any time. A science and kind of case law evolved which was very different from English customary law. In the case of Canon Law it was the Pope's Dicta on cases which formed the law, and not the decisions "Specia Facta" of any given case. Fundamentally this was very different from the system of and way English customary law worked, which was itself evolving at this period.

Canon Law was largely a collection of the precedents made by the several Popes over the years, The precedents were documented in the form of Papal Decretals. Papal Decretals were known as the "jus novum" as opposed to the "jus antiquum" of the Old Law. The Old Law was the law of the Church Fathers, and interpretations of the Bible, and mixtures of Roman Law and the Theodosian Code.

In Spain during the 7th century a comprehensive compilation or collection of the Canon Laws and Papal Decretals had been drawn up, known as the Hispana or Isidoriana, attributed to Saint Isidore of Seville (560-636). From Spain the Hispana had made its way into France. It was here that it camee into the hands of forgers, in the area around Le Mans and Rheims, the heart of Frankland.

For the governance of Canon Law a system of Ecclesiastical Courts was set up, separate from any secular or royal system of justice. These had been introduced into England under William I.

One powerful factor in favour of the  Canon Law was that it was a relatively fully-documented legal system, supported by an academic authority [Gratian], and enforced by the most powerful spiritual authority in Western Christendom, namely the Papacy and the Roman Catholic Church. The greatest principles that both Roman and Canon Law had to teach was that all their matter was arranged systematically.

James J. Spigelman (2004). Becket & Henry: The Becket Lectures. James Spigelman. pp. 134–. ISBN 978-0-646-43477-3.
...
medieval canon law of the Church had a similar rule: an issue was subject to canon law, if canon law said it was. The Church proclaimed its constitutional authority to be superior.
...

Ages of Canon Law
Before Gratian = ius vetus
Canon Law from Gratian to the Council of Trent = ius novum


Summary of some of the essential points in

James A. Brundage (2014). Medieval Canon Law. Appendix I: The Romano-Canonical Citation System: Routledge. pp. 190–. ISBN 978-1-317-89534-3.

Gratian was a teacher of Canon Law at Bologna University. He flourished around the year 1140. His magnum opus was called the Decretum of Gratian [Decretum Gratiani] subtitled [Concordia discordantur canonum] or the Concord of Discordant Canons. It was a work containing all in all 3945 canons compiled from the works and records of the church councils, papal letters, penitentaries,  fathers of the church, , St. Augustine, and St. Jerome. 

It is divided into three parts

Pars I is divided into 101 distinctions [Distinctiones] containing overall 973 canons. Each distinction might comprise one of more closely related canons on a given topic.

Pars II comprises 36 Cases [Causae], each case describing a situation and having one or more Questions [Quaestiones] concerningit, and once or more Chapters [Capitula] or Canons per Question. All in all there are 2476 Capitula in Pars II. Gratian states the authority for each and gives commentary on each, and where two or more canons contradict each other he gives an opinion how to resolve the difference between them.

Pars III comprises 95 distinctions with a total of 596 Capitula. 

The Decretum Gratiani was a lawyer's book, for not only did it state what each the canons were but also provided a discussion how to interpret each decretum. Lawyers love this kind of work.

References

Lotte Kéry (1999). Canonical Collections of the Early Middle Ages (ca. 400-1140): A Bibliographical Guide to the Manuscripts and Literature. CUA Press. ISBN 978-0-8132-0918-0.

Anders Winroth (2000). The Making of Gratian's Decretum. Cambridge University Press. pp. 1–. ISBN 978-1-139-42585-8.
The History of English Law Before the Time of Edward I. The Lawbook Exchange, Ltd.. pp. 111–. ISBN 978-1-886363-22-9.
Chapter V, Roman and Canon Law

Frederic William Maitland (1898). Roman Canon Law in the Church of England: Six Essays. The Lawbook Exchange, Ltd. pp. 76–. ISBN 978-1-886363-57-1.

John Gillingham (2005). Proceedings of the Battle Conference 2004. Jorg Peltzer: The Angevin Kings and Canon Law: Boydell Press. pp. 169–. ISBN 978-1-84383-132-7.

The Canon Law - R.S. Mylne (1912)  

http://en.wikipedia.org/wiki/Canon_law

http://www.1911encyclopedia.org/Canon_law

http://en.wikipedia.org/wiki/Ecclesiastical_court

Boudinhon, Auguste. "Canon Law." The Catholic Encyclopedia. Vol. 9. New York: Robert Appleton Company,1910.  <http://www.newadvent.org/cathen/09056a.htm>.


R. H. Helmholz (2004). The Oxford History of the Laws of England: Volume I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s. Oxford University Press.ISBN 978-0-19-825897-1.

R. H. Helmholz (2010). The Spirit of Classical Canon Law. University of Georgia Press. ISBN 978-0-8203-3463-9. 

Medieval Canon Law Virtual Library


ANGLO-NORMAN CANONISTS OF THE TWELFTH CENTURY: An Introductory Study
STEPHAN KUTTNER and ELEANOR RATHBONE
Traditio , Vol. 7, (1949-1951) , pp. 279-358
Published by: Fordham University
Article Stable URL: http://www.jstor.org/stable/27830211


Thomas N. Bisson (1 January 2011). Cultures of Power: Lordship, Status, and Process in Twelfth-Century Europe. University of Pennsylvania Press. pp. 172–. ISBN 0-8122-0076-4.

Charles Duggan; Anne Duggan (1970). Papers in Medieval Church History.



Works of Ivo, bishop of Chartres

The Decretum of seventeen books
The Collectio tripartita attributed to Ivo of Chartres, dated ca 1095
The Panormia of Ivo of Chartres, also usually dated to 1095. 

Ivo was more moderate than Gratian tending towards Misericordia [Merciful/Equitable] rather than a strict interpretation of the words of the law.



"Forged" Canon Law

During the 9th century the Hispana was enlarged with a further some 60 papal decretals purporting to have originated from the very earliest Bishops of Rome, successors of Saint Peter. These were the "forgeries". The compiler called himself Isidorus Mercator, impersonating the true Isidore of Seville.

These False Decretals were elaborations of the phrases from the Bible, fathers of the church, mixed with the wording and text from genuine canons and genuine papal decretals. The aim of the False Decretals, was to promote a few great principles, including the grandeur and superhuman origin of eccelsiatical power, and the sancrosanctity of the persons and property of bishops, and the supremacy of the Bishop of Rome. They were all especially directed against the secular power, to enhance the central authority and power of the church.

Because of this the Isidorian Forgeries at this time were accepted at Rome as genuine. The Popes, in general, profited by documents which taught that ever since the Apostolic Age the Bishops of Rome had always been the central authority declaring and making law for and on behalf the universal church.

References

Pseudo- Isidorus (1863). Decretales pseudo-Isidorianae, et Capitula Angilramni. B. Tauchnitz.


Henry Charles Lea (1869). "The False Decretals"Studies in church history: The rise of the temporal power.--Benefit of clergy.--Excommunication. H. C. Lea. 


Saltet, L. (1909). False Decretals. In The Catholic Encyclopedia. New York: Robert Appleton Company. 
http://www.newadvent.org/cathen/05773a.htm

Detlev Jasper; Horst Fuhrmann (2001). Papal Letters in the Early Middle Ages. False Decretals - Pseudo-Isidorian Decretals: CUA Press. pp. 95–. ISBN 978-0-8132-0919-7.

Canon Law - Wikipedia

Projekt Pseudoisidor



Gratian

In the early Church, the first canons were decreed by bishops united in "Ecumenical" councils (the Emperor summoning all of the known world's bishops to attend with at least the acknowledgement of the Bishop of Rome) or "local" councils (bishops of a region or territory). Over time, these canons were supplemented with decretals of the Bishops of Rome, which were responses to doubts or problems according to the maxim, "Roma locuta est, causa finita est" ("Rome has spoken, case is closed").

Later, they were gathered together into collections, both unofficial and official. The first truly systematic collection was assembled by the Camaldolese monk Gratian in the 11th century, commonly known as the Decretum Gratiani ("Gratian's Decree").

Gratian (1140) Concordance of Discordant Canons or Decretum Gratiani

His collection of Canon Law comprised many Causae, which were hypothetical cases, each of which was broken down in particular questions or Quaestia of relevant Canon Law. These in turn were answered by Gratian's assembly of authorative and sometimes conflicting excerpts from older and and then-contemporary legal pronouncements, together with Gratian's own commentary on these.




References

http://en.wikipedia.org/wiki/Decretal
http://en.wikipedia.org/wiki/Decretum_Gratiani

Louis Ellies Du Pin; William Wotton (1698). A new history of ecclesiastical writersGratian's Collection of Canons: Printed for Abel Swalle and Tim. Childe. pp. 204–

Wilfried Hartmann; Kenneth Pennington (January 2008). "Peter Ladau: Gratian and the Decretum Gratiani"The History of Medieval Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX. CUA Press. pp. 22–. ISBN 978-0-8132-1491-7.

Van Hove, Alphonse. "Papal Decretals." The Catholic Encyclopedia. Vol. 4. New York: Robert Appleton Company, 1908. <http://www.newadvent.org/cathen/04670b.htm>

R. H. Helmholz (2010). The Spirit of Classical Canon Law. University of Georgia Press. ISBN 978-0-8203-3463-9.


















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