PenningtonWesternLegalCollections.pdf

RELIGIOUS MINORITIES IN CHRISTIAN, JEWISH AND MUSLIM LAW (5TH–15TH CENTURIES) Religion and Law in Medieval Christian and Muslim Societies 8 Series Editor John Tolan Editorial Board: Camilla Adang, Tel Aviv University Nora Berend, Cambridge University Nicolas De Lange, Cambridge University Maribel Fierro, Consejo Superior de Investigaciones Cientíicas Christian Müller, Institut de Recherches et d’Histoire des Textes, Centre National de la Recherche Scientiique Kenneth Pennington, Catholic University of America In the middle ages, from Baghdad to Barcelona, signiicant communities of religious minorities resided in the midst of polities ruled by Christians and Muslims: Jews and Christians throughout the Muslim world (but particularly from Iraq westward), lived as dhimmis, protected but subordinate minorities; while Jews (and to a lesser extent Muslims) were found in numerous places in Byzantine and Latin Europe. Legists ( Jewish, Christian and Muslim) forged laws meant to regulate interreligious interactions, while judges and scholars interpreted these laws. Religion and Law in Medieval Christian and Muslim Societies presents a series of studies on these phenomena. Our goal is to study the history of the legal status of religious minorities in Medieval societies in all their variety and complexity. Most of the publications in this series are the products of research of the European Research Council project RELMIN: he Legal Status of Religious Minorities in the EuroMediterranean World (5th-15th centuries) (www.relmin.eu). Au moyen âge, de Bagdad à Barcelone, des communautés importantes de minorités religieuses vécurent dans des Etats dirigés par des princes chrétiens ou musulmans: dans le monde musulman (surtout de l’Iraq vers l’ouest), juifs et chrétiens résidèrent comme dhimmis, minorités protégées et subordonnées; tandis que de nombreuses communautés juives (et parfois musulmanes) habitèrent dans des pays chrétiens. Des légistes (juifs, chrétiens et musulmans) édictèrent des lois pour réguler les relations interconfessionnelles, tandis que des juges et des hommes de lois s’eforcèrent à les interpréter. La collection Religion and Law in Medieval Christian and Muslim Societies présente une série d’études sur ces phénomènes. Une partie importante des publications de cette collection est issue des travaux efectués au sein du programme ERC RELMIN : Le Statut Légal des Minorités Religieuses dans l’Espace Euroméditerranéen (Ve-XVe siècles) (www.relmin.eu). © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. RELIGIOUS MINORITIES IN CHRISTIAN, JEWISH AND MUSLIM LAW (5TH–15TH CENTURIES) Edited by / sous la direction de: Nora Berend, Youna Hameau-Masset, Capucine Nemo-Pekelman and John Tolan F Cette publication est réalisée dans le cadre du projet de recherche RELMIN « Le statut légal des minorités religieuses dans l’espace Euro-méditerranéen (Ve XVe siècles) » La recherche qui a abouti à cette publication a été inancée par le Conseil européen de la recherche sous le septième programme cadre de l’Union Européenne (FP7/2007 2013) / ERC contrat no 249416. his publication is part of the research project RELMIN “he Legal Status of Religious Minorities in the Euro-Mediterranean World (5th 15th centuries)”. he research leading to this publication has received funding from the European Research Council under the European Union's Seventh Framework Progamme (FP7/2007 2013) /ERC grant agreement no 249416. © 2017, Brepols Publishers n.v., Turnhout, Belgium. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the publisher. D/2017/0095/145 ISBN 978-2-503-56571-2 e-ISBN 978-2-503-56709-9 DOI 10.1484/M.RELMIN-EB.5.109274 Printed on acid-free paper. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. TABLE OF CONTENTS List of Illustrations 9 Preface 11 John Tolan, Introduction 17 PART I. THE JURIDICAL FRAMEWORK FOR MULTICONFESSIONAL SOCIETES IN THE MIDDLE AGES 25 Talya Fishman, he Relative Authorities of Text and Tradition in Medieval Jewish Jurisprudence: Geonic Exceptionalism in its Islamic Context 27 Anver M. Emon, he Legal Regulation of Minorities in Pre-modern Islamic Law 47 Ken Pennington, Western Legal Collections in the Twelth and hirteenth Centuries 77 Jonathan Brown, Scripture, Legal Interpretation and Social Praxis in the Islamic Tradition: he Cases of Polygamy and Slavery 99 PART II. COMPARATIVE STUDIES 115 Section 1, rights of residence. Introduction by Capucine Nemo-Pekelman 119 Ahmed Oulddali, Les conditions de la résidence du ḏimmī : Entre règles absolues et relatives 127 Farid Bouchiba, Les ḏimmī-s et leurs lieux de culte en occident musulman : églises et synagogues en droit musulman (point de vue mālikite) 149 6 TABLE OF CONTENTS Géraldine Jenvrin, La ğizya dans la « loi divine » selon le commentaire coranique d’al-Qurṭubī (m. 671/1272) 173 Anna Matheson, Muslims, Jews, and the Question of Municipal Membership in Twelth- to Fiteenth-Century Portugal 191 Nadezda Koryakina, Jewish Citizens versus Jewish Foreigners: he Legal Status of a Minority within the Minority in Medieval Catalonia 219 Marisa Bueno Sánchez, Les murs de la foi: les frontières identitaires dans les quartiers musulmans et juifs de la Castille médiévale 233 Section 2, Distinguishing Minorities: Segregation, Violence, Protection. Introduction by Nora Berend 261 Paola Tartakof, Segregatory Legislation and Jewish Religious Inluence on Christians in the hirteenth Century 265 Jessie Sherwood, Legal Responses to Crusade Violence against Jews 277 Elisheva Baumgarten, Minority Dress Codes and the Law: A Jewish-Christian Comparison 289 Francois Soyer, Prohibiting Sexual Relations across Religious Boundaries in Fiteenth-Century Portugal: Severity and Pragmatism in Legal heory and Practice 301 Clara Maillard, Protection des chrétiens en terre d’Islam et discussion entre papes et souverains musulmans : le cas singulier des mercenaires du Maroc 317 Section 3, Tribunals and Trials. Introduction by Youna Hameau-Masset 335 Uriel Simonsohn, Muslim Involvement in Non-Muslim Political Afairs in the early Islamic Period 341 Martha Keil, Jewish Business Contracts from Late Medieval Austria as Crossroads of Law and Business Practice 353 © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. TABLE OF CONTENTS 7 Adam M. Bishop, he Treatment of Minorities in the Legal System of the Kingdom of Jerusalem 369 Aleida Paudice, he Women of the Trent Trial (1475-1478) 381 Delina Serrano, La yajuz li-hukm al-muslimin an yahkum baynahuma: Ibn Rushd al-Jadd (Cordoba, d. 1126 ce) and the Restriction on Dhimmis Shopping for Islamic Judicial Forums in al-Andalus 395 Judith Olszowy-Schlanger, Hebrew Documents and Justice: Forged Quitclaims from Medieval England 413 Index 439 © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. LIST OF ILLUSTRATIONS Martha Keil Fig.1(a): Sefer Mordechai, Lower Austria 1371/72, Budapest, SzéchényiNational Library, Cod. Hebr. 1, fol. 328r. 354 Fig. 1(b): Klosterneuburger Missale, 2. Hälte 14. Jahrhundert; Klosterneuburg Monastery Library, Cod. 74, fol. 10r. 355 Fig. 2: Ketubba, Krems 1391/92, Vienna, Austrian National Library, Cod. hebr. 218 356 Fig. 3: Picture of a Jewish seal in Sefer Mordechai (Fig. 1a, let margin) 360 Fig. 4: Hebrew signature of Plimel, 1442 365 Judith Olszowy-Schlanger Fig: 1: Westminster Abbey Muniment 6738, Dean and Chapter of Westminster, London 415 Fig: 2: Westminster Abbey Muniment 6739, Dean and Chapter of Westminster, London 416 © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. PREFACE his book is the result of the inal conference of the research program “RELMIN: he legal status of religious minorities in the Euro-Mediterranean world (5th-15th centuries)”, inanced through an Advanced Grant from the European Research Council (2010-2015). he conference, held in Nantes in October, 2014, brought together specialists of medieval history, law and religion, working on a broad geographical area (from Iraq to the British Iles), over ten centuries (ith to ifteenth) and working with sources in a number of languages (Hebrew, Greek, Arabic, Latin, and various European vernaculars). his book represents in many ways the culmination of the RELMIN project, which has produced a major database of legal texts concerning religious minorities in the middle ages (http://www.cn-telma.fr/relmin/index/), designed as a tool for teaching and research, and a series of books, “Religion and Law in Medieval Christian and Muslim Societies”, of which this volume is the latest installment.1 his book series has published the results of ive years of RELMIN conferences dealing with key aspects in the study of the legal status of medieval religious minorities. he irst volume, he Legal status of Dhimmīs in the Islamic West, published the results of a conference organized at the Centro Superior de Investigaciones Cientíicas (CSIC) in Madrid.2 he central question addressed is the legal status accorded to dhimmīs ( Jews and Christians) in the Muslim law in the medieval Muslim west (the Maghreb and Muslim Spain), based on a rich and complex corpus of legal sources, principally from the Mālikī legal tradition: including iqh, fatwās, ḥisba manuals. hese texts function as the building blocks of the legal framework in which jurists and rulers of Maghrebi and Peninsular societies worked. he very richness and complexity of these texts, as well as the variety of responses that they solicited, refute the textbook idea of a monolithic dhimmī system, supposedly based on the Pact of ‘Umar, applied throughout the Muslim world. In fact when one looks closely at the early legal texts or chronicles from both the Mashreq and the Maghreb, we ind a wide variety of local adaptations. Even for the jizya, oten presented as the linchpin of this system, there is no standard model. In the period of the Islamic conquest of Spain, iscal policy towards conquered Christians was quite varied and oten based on practical considerations and respect for local traditions. he jizya could at times be imposed 1 For a more detailed presentation of the project and its results, see John Tolan, “he Legal Status of Religious Minorities in the Euro-Mediterranean World (RELMIN)”, Medieval Worlds 1 (2015): 148-166. 2 Maribel Fierro and John Tolan, eds, he legal status of Dimmi-s in the Islamic west: (second, eighth-ninth, iteenth centuries) (2013). 12 JOHN TOLAN on individuals but also on groups; sometimes it was levied on lands (blurring the classic distinction between jizya and kharāj). he jizya was not systematically levied either in seventh-century Egypt or in ninth-century Sicily. he same wide variance in practice could be shown in other purported stipulations of the dhimmī system. he sixth to eleventh centuries are a crucial formative period for Jewish communities in Byzantium and Latin Europe: this is also a period for which sources are scarce and about which historians have oten had to speculate on the basis of scant evidence. Just as there had been no volume on the status of dhimmīs in the Islamic west, there seemed a need for a fresh synthesis on the legal status of Jews in this key period. For these reasons, RELMIN organized a conference on Jews in Early Christian Law Byzantium and the Latin West, 6th-11th centuries.3 he legal sources studied in this volume provide a relative wealth of textual material concerning Jews (in Hebrew, Greek and Latin), and for certain areas and periods are the principal sources. While this makes them particularly valuable, it also makes their interpretation diicult, given the lack of corroborative sources. When the council of Vannes in 465 prohibits Christian clerics from sharing meals with Jews, for example, does this mean that there were Jews in Brittany and that clerics had been eating with them? Or does this prohibition relect debates among the bishops present, motivated by theological concerns rather than practical issues? he lack of context (and notably of any evidence of Jewish presence in Brittany before 1209), makes the latter answer more probable, but still uncertain. Some scholars have depicted this period as one of relative tolerance towards Jews and Judaism; others have stressed measures of exclusion taken at key intervals by ecclesiastical authors, church councils and monarchs. Yet perhaps more than revealing general tendencies towards “tolerance” or “intolerance”, these studies bring to light the ways in which law in medieval societies serves a variety of purposes: from providing a theologically-based rationale for social acceptance, to attempting to regulate and restrict inter-religious contact, to using anti-Jewish rhetoric to assert the authority or legitimacy of one party of the Christian elite over and against another. he cities and towns of Europe and the Mediterranean World constituted a crucial space to study interreligious relations in the Middle Ages: both because it was above all in cities that members of diferent faiths lived cheek by jowl and had to work out how to compromise between the requirements of their religious law and the realities of day-to-day interaction, and because the sources which we have at our disposal give a large place to the cities, and in particular to the urban elites of the diferent religious communities. For these reasons, with the generous support of the Fondation des Treilles, we organized a conference on 3 John Tolan, Capucine Nemo-Pekelman, Nicolas De Lange & Laurence Foschia, eds, Jews in early Christian law: Byzantium and the Latin West, 6th-11th centuries, (2014). © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. PREFACE 13 Religious cohabitation in European towns (10th-15th centuries).4 Medieval towns were a theater of contact between members of diferent religious communities, Muslim, Christian and Jewish, who rubbed shoulders in the ports and on the streets, who haggled in the markets, signed contracts, and shared wells, courtyards, dining tables, bath houses, and sometimes beds. hese interactions caused legal problems from the point of view of the Jewish, Christian and Muslim judicial scholars of the middle ages, not to mention for the rulers of these towns. We dealt principally, though not exclusively, with legal sources: imperial and royal laws, urban charters and statutes, canon law, legal commentaries, learned legal opinions (in the form of fatwās or responsa). he presupposition was that these sources, underused by social and urban historians, could yield precious evidence of day to day contact between members of diferent religious communities living in the same city. he subjects ranged from the twelth century to the iteenth and from Portugal to Hungary, Crete and the Mamluk sultanate. he cities of this broad region faced similar problems and challenges, and their legal scholars (in general members of the religious elite) worked under similar constraints and with similar methods and textual sources. Hence it is possible to draw at least tentative conclusions on several key issues. First of all, legal texts can provide indications of the range and types of interreligious contact, and of the tensions or legal problems such contact could cause. Secondly, and somewhat paradoxically, such contact is attested principally in the texts of laws that attempt to limit or control it. In the absence of corroborating evidence, we may wonder to what extent such laws were efective in limiting and controlling contact, and indeed to what extent they relect real social concerns of an urban elite, rather than abstract intellectual exercises by a clerical clique. Various European polities expelled their Jewish or Muslim subjects between the twelth and seventeenth centuries. he expulsions were recorded and commemorated by Jews and Muslims in exile, for whom the experience of expulsion and exile became a touchstone for the construction of community identities in their new homes. With a group of scholars from Budapest and Heidelberg working on the dynamics of diasporas we organized a conference at the Central European University in Budapest in June 2013 on Expulsion and Diaspora Formation: Religious and Ethnic Identities in Flux rom Antiquity to the Seventeenth Century.5 We explored the relations between expulsion, diaspora, and exile between Late Antiquity and the seventeenth century. he essays range from Hellenistic Egypt to seventeenth-century Hungary and involve expulsion and 4 Stéphane Boissellier & John Tolan, eds, La cohabitation religieuse dans les villes Européennes, Xe-XVe siècles = Religious cohabitation in European towns (10th-15th centuries), (2014). 5 John Tolan, ed., Expulsion and diaspora formation: religious and ethnic identities in lux rom antiquity to the seventeenth century, Religion and Law in Medieval Christian and Muslim Societies (2015). 14 JOHN TOLAN migration of Jews, Muslims and Protestants. he common goal of these essays is to shed light on a certain number of issues: irst, to try to understand the dynamics of expulsion, in particular its social and political causes; second, to examine how expelled communities integrate (or not) into their new host societies; and inally, to understand how the experiences of expulsion and exile are made into founding myths that establish (or attempt to establish) group identities. A conference organized at the University of Le Mans took the broad comparative approach further: Religious minorities, integration and the State rom the Middle Ages to the twentieth century.6 Judaism, Christianity and Islam have been present in Europe for over a thousand years. he three monotheisms difer of course in their respective demographic importance, and in their relationship with political power: Christianity was adapted by a majority of the inhabitants of Europe by the early middle ages and became (with signiicant variations in diferent times and places) a dominant religion, over and against other, minority religions. he emergence of European states and divisions within Christianity (from the Middle Ages to the sixteenth century) oten placed religious minorities in a precarious position. We see this in the ight against medieval heresies, the wars of religion, the expulsion of Jews from many European states (and the expulsion of Muslims from Sicily and Iberia), the exile of the Huguenots, and the “Jewish question” in the nineteenth and twentieth centuries. Since the late twentieth century, contemporary debates on the place of Islam in Europe and on the expression of religious identity in the public space has provoked a revived interest in the long history of religious cohabitation and interaction in Europe. We examine the ways in which states have treated religious minorities: policies involving repression, management, integration, tolerance, secularism, indiference – and various ways in which minorities have welcomed the demands of the majority. he relationship is not one-sided: on the contrary, government policies lead to resistance, negotiations (in the legal, political, or cultural spheres) or compromise. 2013 would have marked the hundredth birthday of Bernhard Blumenkranz. Born in Vienna, Blumenkranz led the Anschluß and settled in Switzerland and (ater the war) France, where he initiated a series of groundbreaking studies on the history of medieval Jewish-Christian relations. he anniversary was the occasion for us to relect on the legacy of Blumenkranz, his lasting impact on work in the ield and the directions the ield has moved since his death in 1989. In collaboration with the Institute for Jewish history in Austria and the University of Vienna we organized a conference at the Austrian Academy of the Sciences, bringing 6 John Tolan, Ivan Jablonka, Nikolas Jaspert & Jean-Philippe Schreiber, eds, Religious minorities, integration and the State (2016). © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. PREFACE 15 together prominent scholars in the ield from France, Austria, other European countries, North America and Israel: the proceedings have been published as volume 7 of our series.7 he volume brings together 16 essays representing new research in ields in which Blumenkranz was a pioneer: the relationship between the Medieval Church and Jewish communities, the question of proselytization and conversion of Jews, the cartography of Jewish communities, and the representation of Jews in Christian art. he essays provide both an assessment of Blumenkranz’s intellectual legacy and a snapshot of the evolution of the ield over the last sixty years. hroughout the RELMIN project, we have faced the problem of the functions of law: to what extent did laws concerning religious minorities relect real social practice and to what extent were they relections of abstract religious and legal principles? We addressed these issues more explicitly in a conference organized at the Casa Arabe in Córdoba in April 2014 entitled Law and Religious minorities in Medieval Societies: between theory and praxis.8 Muslim law developed a clear legal cadre for dhimmīs and Roman Canon law decreed a carefully deined status’ for Jewish and Muslim communities in Europe. Yet the theoretical hierarchies between faithful and inidel were constantly brought into question in the daily interactions between men and women of diferent faiths in streets, markets, bath-houses, law courts, and elsewhere. he 21 essays in this volume explore these tensions and attempts to resolve them. hese contributions show how law was used to try to erect boundaries between communities in order to regulate or restrict interaction between faithful and non-faithful – and at the same time how these boundaries were repeatedly transgressed and negotiated. hese essays probe the possibilities and the limits of the use of legal sources for the social historian. I would like to thank all of those who made possible the RELMIN project and in particular the inal conference and this inal volume. We have received ive years of generous funding from the European Research Council; our thanks to the council and its staf, in particular Cécile Menétrey-Monchau, who served as RELMIN’s scientiic oicer. Special thanks also to the University of Nantes, the Maison des Sciences de l’Homme Ange Guépin, and the Région Pays de la Loire, who ofered inancial support and technical assistance throughout the ive years and in particular for the inal conference. I furthermore thank all those who reread, evaluated and corrected the articles of this volume Mohamed H. Benkheira, Javier Castaño, Claude Denjean, 7 Philippe Buc, Martha Keil & John Tolan, eds, Jews and Christians in Medieval Europe: the historiographical legacy of Bernhard Blumenkranz, (2016). 8 Ana Echevarria, Juan Pedro Monferrer Sala & John Tolan, eds, Law and Religious Minorities in Medieval Societies Between heory and Praxis: De La Teoria Legal a La Practica En El Derecho De Las Minoria Religiosas En La Edad Media, (2016). 16 JOHN TOLAN Vincent Déroche, Ana Echevarria, Alejandro García-Sanjún, Rita Costa Gomes, António Castro Henriques, Christian Müller, Adeline Rucquoi, Pierre Savy, Delina Serrano, Claire Soussen, and Dominique Valérian. Our thanks as well to Brepols and its staf, particularly Christophe Lebbe. And thanks to Nora Berend, Capucine Nemo Pekelman and Youna Hameau-Masset for their collaboration in editing this volume. Last but not least, warmest thanks to the RELMIN team of post-docs and PhD students, who have made the last ive years a rewarding and stimulating adventure. Special thanks to project manager Nicolas Stefanni for his energy and eiciency. John Tolan © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES Ken Pennington Catholic University of America Law became an academic discipline in the Latin West during late eleventh and early twelth centuries. he foundations of this “Renaissance of Law” was Justinian’s codiication of Roman law in the sixth century.1 he recovery of Justinian’s legislation was, however, a slow and challenging task. he only part that seems to have survived intact in the West was his Institutes. he other sections, the Digest, the Codex, and Justinian’s later legislation, the Novellae, seem to have circulated in pieces or as older abbreviations. While Justinian’s codiication was being reassembled in Italy, Trans-Alpine scholars fashioned new abbreviations and some translations of Roman law texts. Like the Italians they had awaken to the importance of Roman jurisprudence for contemporary legal problems that could not be resolved adequately with Germanic customary law. heir books began to circulate in the early twelth century North of the Alps. he glosses in the margins of these works indicated they were used to teach. hey remained sources of Roman legal concepts and principles North of the Alps during the twelth century, but their inluence and signiicance waned as law schools were established in in Southern Europe. No major center of legal studies emerged where they were used. Abbreviations were not enough. Ater Gratian inished the last, massive recension of his Concordia discordantium canonum c. 1140 Northern canonists continued the tradition of abbreviating legal texts and produced a large number of shorten versions of Gratian’s text. he irst task that confronted the irst teachers of law in Italy at the end of the eleventh century was the reconstruction of the complete texts and the translations of those sections that were in Greek. he result was a medieval construct of Justinian’s codiication that resembled but difered from the original.2 he medieval Digest and Codex, just as their forerunners in Justinian’s codiication, were 1 Pennington, “Corpus iuris civilis”, Dictionary of the Middle Ages (1983) vol. 3, 608610. 2 Charles M. Radding and Antonio Ciaralli, he Corpus iuris civilis in the Middle Ages: Manuscripts and Transmission rom the Sixth Century to the Juristic Revival (2007); on the stages in which the Digest was recovered, see Wolfgang P. Müller, “he recovery of Justinian’s Digest in the Middle Ages”. Bulletin of Medieval Canon Law 20 (1990) 129. On the manuscript tradition of the Institutes, see Francesca Macini, Sulle tracce delle istituzioni di Giustiniano nell’alto medioevo: I manoscritti dal VI al XII secolo (2008). Religious Minorities in Christian, Jewish and Muslim Law (5th–15th centuries), ed. by Nora Berend, Youna Hameau-Masset, Capucine Nemo-Pekelman & John Tolan (RELMIN, 8) pp. 77–98 © BREPOLS PUBLISHERS DOI 10.1484/M.RELMIN-EB.5.111593 78 KEN PENNINGTON divided into books, the books then subdivided into titles and each title contained subchapters of excerpts of the Roman jurisconsults (Digest) or laws (Codex). he medieval Corpus iuris civilis was known as the Littera Bononensis. Since the Digest was not recovered in one piece, the early teachers of law, called glossators because they “glossed” their texts, divided the Digest into three sections: Digestum vetus, corresponding to Book one, title one, law one to Book 24, title two (in modern citation Dig. 1.1.1 to Dig. 24.2), Infortiatum, Dig. 24.3 to 38.17, Digestum novum, Dig. 39.1 to 50.17. he Codex was separated into two parts, books 1 through 9 and books 10 to 12. he other important diference between the medieval and classical text was that the Novellae were ordered very diferently from Justinian’s arrangement. he various titles were placed in nine “collationes” and the entire work was called the Authenticum. he abbreviated texts of Justinian’s legislation that were added to the margins of the Codex were called “authenticae”. Perhaps the jurists’ most important work in the dawn of western jurisprudence was to integrate texts of Justinian’s later legislation into the margins of the Codex.3 he inal medieval version of Justinian’s codiication was not inished until c. 1120, but the jurists continued to add additional legal texts until the iteenth century. From the late eleventh century the books of Justinian’s codiication became the libri legales that were taught in the schools and used in the courts of continental Europe.4 Several points should be emphasized. he beginnings of western jurisprudence were based on the authority of ancient and Byzantine Roman legal texts. Justinian’s codiication was a “Christianized” Roman law which enhanced its authority. Its Christian heritage was an important factor in its acceptance. he irst known teachers of law, Pepo and Irnerius, began to teach the texts in Bologna without any mandate from secular or ecclesiastical rulers. he response of students was swit and remarkable. Bologna very quickly became the center of European legal studies. he literature that these texts inspired, more than the texts themselves, was crucial for establishing law as a foundation stone of medieval society.5 here is scant manuscript evidence for Pepo’s teaching,6 but hundreds of glosses and the Radding and Ciaralli’s book should be read with caution. heir descriptions of the manuscript traditions is good; their conclusions less so, especially their chapter on the Codex. 3 Pennington, “he Beginning of Roman Law Jurisprudence and Teaching in the Twelth Century: he Authenticae”, Rivista internazionale di diritto comune 22 (2012) 3553. 4 On the Libri legales and their role in the law schools, see the chapter of Michael H. Holich and Jasonne M. Grabher, “he Establishment of Normative Legal Texts: he Beginnings of the Ius commune”, he History of Canon Law in the Classical Period, 11401234: From Gratian to the Decretals of Pope Gregory IX, edd. Wilfried Hartmann and Kenneth Pennington (2008) 121. 5 Hermann Lange, Römisches Recht im Mittelalter, 1: Die Glossatoren (1997) and Lange and Maximiliane Kriechbaum, Römisches Recht im Mittelalter, 2: Die Kommentatoren (2007) are the best introductions to the literature produced by the medieval civilians (i.e. teachers of Roman law). 6 Luca Loschiavo, “Secundum Peponem dicitur … G. vero dicit: In margine ad una nota etimologica da Pepo ad Ugolino”, Rivista internazione di diritto comune 233249. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 79 marginal authenticae are attributed to Irnerius in early Roman law manuscripts. In the mid-twelth century, the “four doctors” of Roman law at Bologna, Bulgarus, Martinus, Jacobus and Ugo, glossed and commented on the libri legales, advised emperors, and trained the next generation of jurists. hree of the most important were Johannes Bassianus, Placentinus and Azo.7 he capstone of this irst stage of medieval jurisprudence stimulated by the libri legales was the Ordinary Gloss of Accursius from Florence that he wrote to the entire body of Roman law and inished in the middle of the thirteenth century.8 No other jurist accomplished that mammoth task before or ater. he close connection between Roman and canon law, the Ius commune, was already irmly established by the time Accursius entered the law school at Bologna. Two very important early thirteenth-century canonists, Vincentius Hispanus and Sinibaldus Flieschi (Pope Innocent IV) studied with Accursius. In the 1120s and 1130s canon law also became an academic discipline. he evolution of canon law was more diicult than Roman law because there were no authoritative texts that could be used in the classroom. Although collections of canon law texts had been compiled from the sixth century on, and a great wave of canonistic activity began at the beginning of the eleventh century with the Decretum of Bishop Burchard of Worms (between 1008 and 1012), none of these private collections was suited for teaching. Further, since they were private, the canonical collections did not have the imprimatur of Justinian’s codiication. Burchard had compiled a very large, comprehensive collection of texts and arranged them in twenty books. He seemed to recognize that the Church needed a universal body of law. His massive collection also can be seen as the legal beginnings of the reform movement within the Church.9 here was no immediate successor to Burchard’s vision. Most of the canonical collections compiled between 10001100 were much more limited in scope. heir main focus was not comprehensive coverage but ecclesiastical reform. Certain areas in Central and Northern Italy, Southern and Central France, Normandy, the Rhineland and England emerged as important centers of canonistic activity but no one region, including Rome, dominated the compilation of texts. 7 For information about these jurists and many others, now consult Dizionario biograico dei giuristi italiani (XII-XX secolo), edd. Italo Birocchi, Ennio Cortese, Antonello Mattone, Marco Nicola Miletti (2013); strangely Placentinus is missing from the Dizionario. 8 Lange, Römisches Recht 335351; see also, Horst Heinrich Jakobs, Magna Glossa: Textstufen der legistischen glossa ordinaria (2006). 9 On the Libri legales and their role in the law schools, see the chapter of Michael H. Holich and Jasonne M. Grabher, “he Establishment of Normative Legal Texts: he Beginnings of the Ius commune”, he History of Canon Law in the Classical Period, 11401234: From Gratian to the Decretals of Pope Gregory IX, edd. Wilfried Hartmann and Kenneth Pennington (2008)20012021. Greta Austin, Shaping Church Law around the Year 1000: he Decretum of Burchard of Worms (2009). 80 KEN PENNINGTON Burchard’s Decretum circulated widely. It was still being cited by canonists in the early thirteenth century. At the end of the eleventh century, Bishop Ivo of Chartres imitated Burchard by compiling another comprehensive canonical collection. Ivo’s Decretum, however, did not enjoy the same wide reception as Burchard’s. An abbreviation of Ivo’s Decretum, most likely not compiled by Ivo, the Panormia, did have a much wider circulation but was far from a comprehensive collection of canonical texts.10 Whether comprehensive or not, the eleventh-century collections shared a number of common traits. hey were all systematic collections, arranged topically. Churchmen no long found the older, chronologically arranged collections useful. he reformers recognized that to achieve their goals they needed compilations of law that provided texts to support their opinions and that emphasized the central role of the pope in the governance of the church. Although historians have debated whether certain collections relect a papal or an episcopal agenda for church government or whether some collections were vehicles for and products of the reform movement, these questions are diicult to answer. he canonists collected a wide variety of texts from older collections. Most of the collections dealt with many aspects of ecclesiastical life. Some of them were obviously concerned with certain issues: papal authority, monastic discipline, clerical marriage, simony, and others. Most collections, however, relect their authors’ search for general norms to govern ecclesiastical institutions and to enforce clerical discipline. Historians’ attempts to describe a collection as having a single purpose mislead readers with oversimpliications of complex agendas. It should also not be overlooked that all these eleventh century collections were private. he papacy did not yet take any interest in shaping canonical jurisprudence. Before the twelth century, canon law existed as a body of norms embedded in the sources. he collections of canon law included conciliar canons, papal decretals, the writings of the church fathers, and to a more limited extent, Roman and secular law. hese collections did not contain any jurisprudence because they existed in a world without jurists. here were no jurists to interpret the texts, to place a text into the context of other norms of canon law, and to point out conlicts in the texts written at various times in diferent places. he evidence for this generalization lies in the margins of the manuscripts of the pre-Gratian collections: they are almost completely empty and lack interpretive glosses. he teaching of canon law began in the early twelth century. With the teaching of canon law came jurisprudence. Although the evidence is not conclusive, 10 Christof Rolker, Canon Law and the Letters of Ivo of Chartres (2010). © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 81 Gratian of Bologna was probably the irst person to begin teaching canon law. He chose the city of Bologna to establish his studio, most likely because the city had already become an important center for teaching Roman law. Until recently the only secure fact that we knew about Gratian was that he compiled a collection of canons entitled the Concordia discordantium canonum, later called the Decretum. We also knew that Gratian’s Decretum very quickly became the most important canonical collection of the twelth century. It later became the foundation stone of the entire canonical tradition and the irst book of the Corpus iuris canonici. It was not replaced as a handbook of canon law until the Codex iuris canonici of 1917 was promulgated. Since the ground breaking discovery of Anders Winroth we have learned much more about Gratian. Winroth discovered four manuscripts of Gratian’s collection that predated the vulgate text of the Decretum. Since then another manuscript of an early recension of Gratian has been discovered in the monastic library of St. Gall, Switzerland. Although all ive manuscripts must be studied in detail before we fully understand their signiicance, some conclusions can already be made. he irst recension of Gratian’s work was much shorter than the last recension. he diferences between the recensions mean that Gratian must have been teaching at Bologna for a signiicant amount of time before he produced his irst recension and that there was a signiicant period of time between the early and later recensions. Some evidence points to Gratian’s having begun his teaching in the early twelth century; other evidence points to the 1130s. In any case, Gratian’s last recension of his work was inished in the late 1130s or early 1140s and immediately replaced all earlier collections of canon law in the classroom.11 Gratian became the “Father of Canon Law” because the inal version of his collection was encyclopedic and because he provided the schools with a superb tool for teaching. His last “edition” of his Decretum was a comprehensive survey of the entire tradition of canon law. He drew upon the canonical sources that had become standard in the canonical tradition and assembled a rich array of texts, about 4000 in all. His sources will never be known with certainty. He drew upon a collection very similar to the Collectio canonum trium librorum and other central Italian collections. He also took much from Alger of Liège’s De misericordia et iustitia in Causa one.12 Alger’s work did not circulate in Italy, and Gratian’s knowledge and use of Alger’s work may be evidence that Gratian studied at Laon 11 For bibliographical information about Gratian and his Decretum, see Pennington, “he Biography of Gratian: he Father of Canon Law”, University of Villanova Law Review 59 (2014) 679706 and “La biograia di Graziano, il Padre del diritto canonico”, Rivista internazionale di diritto comune 25 (2014) 2560, an augmented version of the English essay. 12 Robert Kretzschmar, Alger von Lüttichs Traktat “De misericordia et iustitia”: Ein kanonistischer Konkordanzversuch zus der Zeit des Investiturstreits: Untersuchungen und Edition. (1985). 82 KEN PENNINGTON or some other Northern school.13 Gratian’s sources were variegated. He included genuine and forged papal decretals, local and ecumenical conciliar canons, a rich collection of writings of the writings of the church fathers – more than any other earlier canonical collection, 1200 chapters in all – Roman law, and many citations taken from the Old and New Testaments. Gratian introduced jurisprudence into canonical thought. His irst innovation was to insert his voice into his collection to mingle with those of the Fathers of Nicaea, St. Augustine, and the popes of the irst millennium. He did this with dicta in which he discussed the texts in his collection. Alger of Liège’s tract may have provided Gratian with a model for presenting texts and commentary together. Gratian, however, systematically pointed to conlicts within the texts and proposed solutions. His use of the dialectical “distinction” was an emerging methodology in the early twelth-century schools. His dicta and causae made the Decretum ideal for teaching, and it became the basic text of canon law used in the law schools of Europe for the next ive centuries. In addition to the novelty of his dicta, Gratian created a collection of canon law that was organized diferently than any earlier collection. At the core of his collection he constructed 36 cases (causae). In each case he formulated a problem with a series of questions. He then would answer each question by providing the texts of canons that pertained to it. When the text of the canon did not answer the question without interpretation or when two canons seemed in conlict, Gratian provided a solution in his dicta. Gratian’s hypothetical cases were efective teaching tools that were ideally suited to the classroom.14 Perhaps the most important parts of his work for the beginnings of European jurisprudence were the irst twenty distinctions of the 101 distinctions (distinctiones) of the irst section. In these twenty distinctiones he treated the nature of law in all its complexity. Justinian’s codiication of Roman law that was being taught in Bologna at the time Gratian was working on his Decretum deined the diferent types of law but did not create a hierarchy of laws and did not discuss the relationship between the diferent types of law. Gratian did that in his irst twenty distinctions. hese twenty distinctions stimulated later canonists to relect upon law and its sources. Gratian began his Decretum with the sentence: “he human race is ruled by two things, namely, natural law and usages” (Human genus 13 Atria A. Larson and John Wei have explored the possible connections between Gratian and the northern schools, see e.g. Larson, “he Inluence of the School of Laon on Gratian: he Usage of the Glossa ordinaria and Anselmian Sententie in De penitentia (Decretum C.33 q.3)”, Mediaeval Studies 72 (2010): 197244 and Wei, Gratian the heologian (2016) 6061, 8994, 152156. 14 Christoph H. F. Meyer, Die Distinktionstechnik in der Kanonistik des 12. Jahrhunderts: Ein Beitrag zur wissenschatsgeschichte des Hochmittelalters (2000). Cf. the theory of John Noël Dillon, “Case Statements (themata) and the Composition of Gratian’s Cases”, Zeitschrit der Savigny-Stitung für Rechtsgeschichte, Kanonistische Abteilung 92 (2006) 306339. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 83 duobus regitur naturali videlicet iure et moribus). he canonists grappled with the concept of natural law and with its place in jurisprudence for centuries. heir struggle resulted in an extraordinary rich jurisprudence on natural law and relections on its relationship to canon and secular law. A very distinguished historian has written: Gratian’s Decretum was “essentially a theological and political document, preparing the way – and intended to prepare the way – for the practical asserting of the supreme authority of the papacy as lawgiver of Christendom”.15 his sentence might possibly describe the purpose of Anselm of Lucca (and other canonists of the reform period) but not Gratian’s plan for his work. If Gratian’s goal for the Decretum were to be limited to one idea (a dubious idea) it would be that he wanted to describe the relationship of law to all human beings. Gratian’s purpose is clearly revealed in the irst distinctions in which he analyzed the different types of law. Gratian’s other purpose, I would argue his primary purpose, was to create a book for the teaching of canon law. Although it was not a well-organized text, Gratian’s Decretum quickly became the standard textbook of medieval canon law in the Italian and Transmontane schools. Its laws were minor. he revisions of his work sometimes introduced confusion and ambiguity, but the canonists were only sometimes dismayed by his conclusions, comments or organization. In the age following Gratian when the study of canon law became a discipline in the schools in Italy, Southern France, and Spain, the jurists began to fashion the irst tools to construct a legal system that met the needs of twelth-century society. Gratian’s Decretum surveyed the entire terrain of canon law, but his book was only an introduction to the law of the past. Although it provided a starting point for providing solutions, it did not answer many contemporary problems directly. he three most pressing areas in which the jurists used the new jurisprudence to transform or to deine institutions were procedure, marriage law, penance, and the structure of ecclesiastical government.16 In the irst half century ater Gratian, the jurists concentrated on these problems, and their teachings and writings vividly relect these concerns. he earliest changes may have been the addition of chapters to Gratian. hey were inserted into the text itself or added to the margins. Although the canonists of the twelth century called them paleae, they did not know from whence the term came. Huguccio conjectured that the word meant “chaf ” added to the good grain; other authors thought that the term was derived from the name of Paucapalea, one of the irst commentators on the Decretum. He, they surmised, had been responsible for the paleae added to Gratian’s text. Later canonical collections, especially Compilatio prima, also added canons that had been omitted by 15 Richard Southern, Scholastic Humanism and the Uniication of Europe (Oxford: Blackwell, 1995) 305. 16 Atria Larson, Master of Penance: Gratian and the Development of Penitential hought and Law in the Twelth Century (2013) is an excellent example how Gratian’s text forged a jurisprudence. 84 KEN PENNINGTON Gratian from earlier collections. Almost all of the earliest manuscripts contained glosses that referred to canons in Burchard’s Decretum and to the relevant parts of Lombard law. Gratian did not use Burchard, and these glosses suggest canons that he might have considered. he citations to Lombard law underline the importance of Germanic customary law in Northern Italy. Many reasons compelled the papacy to take notice of the law school at Bologna. he Church had become much more juridical during the course of the twelth century. St. Bernard’s famous lament in his letter to Pope Eugenius III (1153) that the papal palace is illed with those who speak of the law of Justinian conirms what we can also detect in papal decretal letters. he new jurisprudence inluenced the arengae and the doctrine of decretals. Canonists undoubtedly drated these letters in the curia. he rush to bring legal disputes to Rome became headlong in the second half of the twelth century. Litigants pressed the capacity of the curia to handle their numbers. Popes delegated many cases to judges-delegate, but the curia was still overburdened. Although papal decretal letters surpassed the Decretum as the basic texts for the study and practice of canon law by the beginning of the thirteenth century, Gratian’s Concordia reigned without signiicant rivals in the schools and the courts from c. 1140 to 1190. Perhaps the most signiicant aspect of canon law’s entry into the law schools of Europe was it relationship with Roman law. Gratian incorporated much Roman procedural law into his Decretum. His successors employed the jurisprudence of Roman law to shape and explain canonical institutions. By the second half of the twelth century, no jurist could be ignorant of either canonical or Roman jurisprudence. Contemporary jurists called this jurisprudence the Ius commune. It was not a set of laws but a construct of principles, concepts and norms that reigned in Europe until the seventeenth century.17 he second half of the twelth century witnessed a transformation of canon law from a discipline based on the explication of Gratian’s Decretum to a legal system based on papal decretals. his sea change in the sources of law demanded a change in the books used to study, teach, and interpret canon law.18 Bernard of Pavia, also known as Bernardus Balbi or Bernardus Papiensis, inaugurated the age of the decretalists, those jurists who concentrated on papal decretals in their teaching and writing. He had glossed Gratian’s Decretum during the 1170s, beginning his career at Bologna in the age of the Decretists. Like his teacher, Huguccio, 17 For an extended discussion of the Ius commune, see Manlio Bellomo, L’Europa del diritto comune (1989); also Pennington, “Learned Law, Droit Savant, Gelehrtes Recht: he Tyranny of a Concept”, Rivista internazionale di diritto comune 5 (1994) 197209 and Syracuse Journal of International Law and Commerce 20 (1994) 205215. 18 he best guide to what follows are the essays in he History of Canon Law in the Classical Period, 11401234: From Gratian to the Decretals of Pope Gregory IX (2008) and the individual biographies in Dizionario biograico dei giuristi italiani (XIIXX secolo). © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 85 Bernard followed a “cursus honorum” that became a common pattern for jurists in the thirteenth century. He studied and taught at Bologna, became provost of Pavia in 1187, bishop of Faenza in 1191, where he succeeded Johannes Faventinus to that episcopal seat, and then, in 1198 he became bishop of Pavia. As a canonist Bernard’s importance was that he gave form and organizational principles to the study and teaching of papal decretals that remained standard in the schools for the rest of the Middle Ages and into the early modern period. He compiled a collection of decretals and other texts that Gratian had excluded and called it a Breviarium extravagantium. Every later collection of papal decretals adopted Bernard’s organizational pattern. Ater the compilation of Compilationes secunda and tertia ater c. 1210, Bernard’s Breviarium was cited as Compilatio prima by the canonists. Bernard’s Breviarium was a breakthrough for canonistic scholarship. Papal decretals had begun to occupy an ever more important position in canon law since the 1160s, but the canonists had not yet devised a way to deal with them. Small, unsystematic collections were irst compiled and oten attached as appendices to Gratian’s Decretum. Gradually larger collections were made, but since they were usually not arranged systematically, they were diicult to use, consult, and impossible to teach. Bernard compiled his Breviarium between 1189 and 1190, while he was provost of Pavia. he new collection took the school at Bologna by storm. Although, like Gratian’s Decretum, it was a private collection, the canonists immediately used it in their classes and wrote glosses on it. Bernard’s Brevariuum served as an introduction and as a blueprint for a new system of canon law. In his prologue to the collection, Bernard wrote that “he had compiled ‘decretales extravagantes’ from both new law and old law and organized them under titles”. Bernard was modest. He revolutionized the study of the “ius novum”. Some earlier collections had been arranged according to titles, but none as systematically as Bernard’s. Roman law once again provided the canonists with a model. he titles of Bernard’s collection in books one and two follow the organization of Justinian’s codiication. With the structure of his collection Bernard underlined the interdependence of Roman and canon law in the late twelth century and reminded students of canon law that Roman law was essential for their studies. Bernard did not imitate Digest by dividing his collection into a large number of books. He divided his compilation into ive books, each with a general subject. Later canonists used the mnemonic verse “Iudex, Iudicium, clerus, connubia, crimen (Judge, Court, Clergy, Marriage, and Crime)” to remember the contents of each book. Bernard’s division into ive books was used by almost every later collection. Bernard collected more than recent papal legislation. When he wrote that he had compiled a collection of “extravagantes” he meant all materials that circulated independently of Gratian. He included many canons from ancient councils and 86 KEN PENNINGTON synods, a large number of letters of Pope Gregory I, and many letters of pre-Gratian popes. he bulk of his collection, however, consisted of the decretals of Pope Alexander III (11591181). Alexander’s legislation had exercised an decisive inluence on canon law, and the canonists had recognized his importance. Bernard included three texts of Pope Gregory VIII (1187) and three of Pope Clement III (11871191). hese decretals, together with the fact that Bernard called himself the provost of Pavia – he held that post until 1191 when he became bishop of Faenza – establish the dates between which Bernard must have put the inishing touches on his collection. he jurists immediately began to teach Bernard’s Breviarium at Bologna and produced a number of commentaries on it. In Northern Europe they also tinkered with his text by adding decretals to it. heir innovations were not new. Canonists had added material to established private collections for centuries. he PseudoIsidorian Decretals, Burchard of Worm’s and Ivo of Chartres’s collections, he Collection in 74 Titles, and Gratian’s Decretum had all undergone minor changes in their texts introduced by anonymous jurists. hese collections were “collectiones vivantes”, and their texts relected their use. In Bologna by the end of the twelth century, perhaps because the jurists’ commentaries on the collections froze them in the form in which they were received, this practice of cheerfully altering canonical texts diminished but did not completely disappear. In Northern Europe, the practice continued until well into the thirteenth century. In 12091210 Pope Innocent III (11981216) authenticated Petrus Beneventanus’ collection of his own decretals. his action marked the irst time that a pope had endorsed a private canonical collection.19 he canonists quickly adopted the text in the schools and called it Compilatio tertia. he papal imprimatur helped to assure its success. A short time later, Johannes Galensis ( John of Wales) compiled Compilatio secunda, and, although unaided by papal approval, his collection became a “received text” in the law schools. heir success was probably due as much to their timing as to their editorial skills. he schools and the courts needed certainty. Papal decretals were now providing that certainty. Decretals also provided another key element in canon law. hey contained decisions that the papal curia had rendered on cases appealed to Rome. hey were, in other words, case law rather than statements of law or legal principles. hese appellant decisions provided canonists with a rich lode of problems and situations on which to develop a sophisticated jurisprudence.20 Canon law remained a “case law system” until 1917. Pope Innocent III was the irst pope to issue a legal collection of his own legislation when he promulgated the canons of the Fourth Lateran Council 19 Pennington, “he Making of a Decretal Collection: he Genesis of Compilatio tertia”, Proceedings of the Fith International Congress of Medieval Canon Law, Salamanca 1976 (1980) 6792. 20 e.g. the rich commentaries on Honorius III’s Etsi membra, Pennington, A Representation in Medieval Canon Law”, he Jurist 64 (2004) 361-383. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 87 (November 1215) as a separate collection. hey were immediately glossed and taught in the schools. A short later, Johannes Teutonicus compiled a new collection of Innocent’s decretals into which he incorporated the Fourth Lateran conciliar canons. Innocent refused to authenticate the collection, but, undaunted, Johannes provided his collection with an apparatus. In spite of the pope’s disapproval, ater the pope’s death ( July 1216) Compilatio quarta was accepted by the schools.21 his was a signiicant sign that canon law was not yet under the control of Rome. his would change during the course of the thirteenth century. Ater 1217 the Studio in Bologna was dominated by one igure, Tancred of Lombardy, oten referred to as Tancred of Bologna. Pope Honorius III selected him to compile a collection of his decretals sometime before 1226. By this time Tancred’s stature was so great, and his rivals so few, that it is diicult to imagine whom Honorius might have chosen other than the archdeacon. Honorius chose Tancred and by doing so he also set a precedent. Canonical collections would no longer be the products of initiatives of private jurists; with only a few exceptions popes began to order collections of their decretals. With Compilatio quinta the papacy took control of its law. For the next century decretal collections were “oficial” compilations, ordered by the papacy, and sent to the law schools. he age of the “private” decretal collection had momentarily passed. he last major igure in the period before 1234 was the Catalan Dominican, Raymond of Penyafort. He had studied at Bologna and then taught law between 1218 and 1221. Ater his return to Barcelona, he entered the Dominican order in 1222. Pope Gregory IX summoned him to Rome in 1230 and asked him to compile a new compilation of canon law that would replace all the earlier collections of decretals with one volume. We do not know if he worked alone or with other jurists in the curia. In his bull, Rex paciicus, with which Gregory promulgated the new collection in 1234, he called Raymond’s work a Compilatio, but the canonists quickly adopted the name Decretales Gregorii noni. Along with Gratian’s Decretum, it became the most important collection of papal decretals in the schools and in the courts of Europe. It was also known as the Liber extra (he book outside Gratian’s Decretum). Like the medieval civilians, the canonists who taught and interpreted Gratian’s Decretum and the collections of decretals created an enormous body of literature. At irst, in imitation of the Roman law jurists they wrote glosses on their texts but soon graduated to composing summae, more expansive commentaries, on them. hey wrote glosses on all the diferent books of canon law and eventually were recognized as the standard, ordinary glosses in the schools 21 Pennington, “he Fourth Lateran Council, its Legislation, and the Development of Legal Procedure”, Texts and Contexts in Legal History: Essays in Honor of Charles Donahue, ed. John Witte, Jr., Sara McDougall, Anna di Robilant (2016). 88 KEN PENNINGTON and the courts. From the middle of the thirteenth century, the canonists began to write massive commentaries on the standard decretal collections. Two jurists are particularly important illustrations of this development in the thirteenth century: Pope Innocent IV and Hostiensis. Pope Innocent IV wrote a detailed and sophisticated commentary on the Decretals of Gregory IX c. 1245. Every jurist from his immediate contemporaries to Hugo Grotius in the seventeenth century cited his commentary. He probably began writing it long before he became pope and continued revising it up to the time of his death. He also wrote a commentary on his constitutions of the First Council of Lyon and on the additional decretals that were added to the constitutions in 1246 and 1253. he work was widely distributed in manuscripts and printed in a number of editions between 1477 and 1570. Innocent emphasized papal authority and power in his commentary. His great predecessor, Pope Innocent III, had established the foundations of papal authority within the church and over secular afairs. Innocent IV expanded and reined Innocent III’s legislation in signiicant ways. He claimed that the pope could choose between two imperial candidates, could depose the emperor (a power he exercised at the First Council of Lyon), and could exercise imperial jurisdiction when the imperial throne was vacant. Although he granted non-Christian princes the right to hold legitimate political power, he tempered that right by asserting that they must permit Christian missionaries to preach in their realms. In his commentary on the bull of deposition that he had promulgated at the First Council of Lyon (Ad apostolicae dignitatis apicem, Liber sextus 2.14.2), Innocent made remarkable claims for papal authority. he pope did not need the council to validate the deposition of the emperor, because only the pope, not the council, has fullness of power. Innocent asserted that Christ had the power and authority to depose or condemn emperors by natural right (ius naturale). He concluded that the pope had the same authority since he held the oice of the vicar of Christ. It would be absurd, he argued, if ater the death of St. Peter human beings were let without the governance of one person (“regimen unius personae”). Few popes in the Middle Ages made a more powerful argument for the legitimacy and justness of papal monarchy. Few popes, if any, were more learned in canon law.22 Hostiensis (Henricus de Segusio) (c. 12001271) was a contemporary of Innocent IV. hese two jurists dominated the second half of the thirteenth century. Hostiensis wrote a massive commentary on the Decretals of Gregory IX and on the Decretals of Innocent IV. He also wrote a Summa on the Decretals of Gregory IX. He worked on his commentary over his entire life and inished 22 See Alberto Melloni, Innocenzo IV: La concezione e l’esperienzadella cristianità come regimen unius personae (1990). © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 89 its inal redaction just before his death. His work circulated widely and became a touchstone for all later canonists.23 Although the canonists continued to write commentaries on the libri legales during the fourteenth and iteenth centuries, another literary genre emerged and became important: consilia. he jurists wrote consilia to advise litigants and judges in court cases. We have consilia that date back to the late twelth and early thirteenth centuries, but they become genre of great signiicance in the irst half of the fourteenth century. he purpose of the consilia was practical: to advise litigants and judges on speciic legal issues raised by a particular case. Consilia quickly became a major source of jurisprudence in the Ius commune. he fourteenth and iteen centuries have been called the “Age of Consilia”. he jurists wrote thousands of consilia, and some jurists earned considerable fees by writing them. Baldus de Ubaldis (†1400) wrote several thousand consilia and reputedly earned a substantial portion of his income from them.24 Codiication and Books of Canon Law in the hirteenth Century If he had seen the canon law curriculum at the Law School at Bologna c. 1300, Gratian would have been pleased and surprised. He would have been pleased that his book still occupied a central place in the study of canon law. Every student of law studied the Decretum. He would have been surprised that Dante Aligheri placed him in Paradiso. Not many poets have bestowed honors on jurists. He would not have anticipated the complete triumph of the papal decretal. Gratian understood canon law as being based on many diferent kinds of authoritative texts. By the end of the thirteenth century, however, the canonists were transixed by the papal decretal. Since the early thirteenth century when Pope Honorius III commissioned Tancred of Bologna to compile a collection of his decretals, popes had followed his lead. Pope Boniface VIII (12941303) – who was not a jurist admired by Dante – established a committee of canonists to compile a collection of his own decretals, Pope Innocent IV’s decretals, conciliar canons from Lyon I and II, and other papal decretals that had circulated in other private thirteenth-century collections. his collection of canon law was called the Liber Sextus. Although it was divided into ive books and organized like every collection since Bernardus of Pavia’s Breviarium, it derived its name from being the sixth book added to the ive books of Gregory IX’s Decretals. Boniface promulgated the new collection on 3 March, 1298 and sent it to 23 Pennington, “Enrico da Susa (cardinale Ostiense)”, Dizionario biograico dei giuristi italiani (secc. XIIXX), edd. Italo Birocchi, Ennio Cortese, Antonello Mattone, Marco Nicola Miletti, Dizionario dei giuristi italiani (XIIXX secolo) (2 vols. 2013) 1.795798. 24 Pennington, “Baldus de Ubaldis”, Rivista internazionale di diritto comune 8 (1997) 3561. 90 KEN PENNINGTON all the major schools of canon law. Just as Gregory IX wanted his collection to be a comprehensive and exclusive collection of canonical norms from Gratian to 1234, Boniface’s collection was to be the sole witness of papal decretal legislation from 1234 to 1298. he canonists continued to cite decretals that had not been included in the collections but only rarely. he papacy had put its irm stamp on canon law. During the fourteenth century, two more papal collections appeared. Pope Clement V (13051314) ordered a collection of his decretals be compiled that also included the canons of the Council of Vienne (13111312). He died before the collection could be properly promulgated. His successor, Pope John XXII (13161334), a distinguished jurist himself, had the collection revised and issued the new collection on 25 October 1317. In the canonical literature this collection was named the Constitutiones Clementinae. he Clementinae was the last oicial collection promulgated by the medieval papacy. here were two more private collections that were accepted by the schools: the Extravagantes Johannis XXII and the Extravagantes communes. he Extravagantes Johannis XXII contained twenty decretals issued by Pope John XXII during his pontiicate. he Extravagantes communes evolved later. he collection contained seventy canons from an array of late medieval popes. he schools accepted these collections, and the canonists wrote extensive commentaries on them. hese facts raise a question about Western canon law that is very diicult to answer. Why did the popes stop promulgating decretal collections ater 1317 and not consider a new papal collection of decretals until the end of the sixteenth century? It seemed as if the papacy had taken control of its legal system between 1226 and 1317. It promulgated its law oicially, following the model established long before by the Emperor Justinian. Although the decretal collections were not comprehensive statements of law like Justinian’s, they provided the law schools with fundamental tools for teaching law. During the thirteenth and early fourteenth centuries one might conclude that the popes perceived their legal role and their authority within the Church much as modern governments do when they exercise control of their legal systems within their territorial states. Like modern governments the popes promulgated, shaped, authenticated, and controlled their legal systems. his model ends ater 1317. here were no papal collections of canon law until Pope Gregory XIII promulgated a uniied Corpus iuris canonici in 1580. Much later Pope Benedict XIV (17401758) issued a volume of his decretals and Pope Pius X (19031914) published ive volumes of his acts in the early twentieth century. Although a deinitive answer cannot be given, several observations can be made. First the question relects our conception of how legal systems should be structured and not theirs. No medieval or early modern jurist considered any institution (state) to be the sole producer and repository of law. Second, a new type of collection of papal judicial decisions arose in the fourteenth © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 91 century, the Decisiones Romanae Rotae. It reported the cases of the papal Court of Audience that was known as the Rota. his court began to carry the main case load of the papal curia at the end of the thirteenth century. Scholars have attributed the collection to one of two Englishmen, homas Falstaf and William Bateman. Falstaf was an auditor for the Rota in the middle of the fourteenth century. He also worked in the papal court at Avignon. In either case it may not be by chance that an English jurist conceived of collecting the cases of a single court. he English Year Books that contained the reports of the English Royal courts may have provided a model for the work. During the thirteenth and fourteenth centuries popes participated less and less in the daily work of the papal court. Whereas early papal decretals contained decisions in which the pope sometimes, if not always, heard the cases, by the fourteenth century papal letters were no longer the primary vehicles for reporting the judicial activity of the papal curia. It was during this time that the judicial oice of the curia became known as the Roman Rota. Papal auditors (auditores) commonly heard the cases that were appealed to Rome. When Pope John XXII (13141334) promulgated the decretal Ratio iuris (1332) in which he granted auditors ordinary power to hear cases, the pope conirmed a practice that had been in place for more than a century. During the fourteenth century the “Decisiones” or “Conclusiones” of the Rota were gathered together and manuscripts of them circulated widely. hese decisions of the Rota became another source of authority within canon law. By the iteenth century the Sanctae Romanae Rotae Decisiones were published each year. his practice continues until the present day. A consequence of this institutional development was that collections of papal decretals became far less relevant for canon law. he decretal collections of the thirteenth and early fourteenth century remained the cornerstones of canonical jurisprudence. hey were the libri legales that were used in the classrooms and the courtrooms of Europe. In the second half of the sixteenth century, the papacy decided to revise these standard texts of canon law. In 1566 Pope Pius V convened a committee to examine the complicated textual basis of the libri legales, especially the texts in Gratian’s Decretum. hese scholars were called the Correctores Romani. he committee was guided in part by one of the most brilliant scholars of the age, the Spaniard, Antonio Agustín. Pope Gregory XIII promulgated a new Corpus iuris canonici based on the careful scholarship of the Correctores Romani 1580. It was printed for the irst time in Rome during 1582. Antonio Agustín’s work De emendatione Gratiani is a window into the work of the Correctores. Pope Gregory XIII’s revised and authenticated version of the standard texts of canon law remained in force until the Codex iuris canonici was promulgated in 1917. 92 KEN PENNINGTON he Books of Feudal Law In the middle of the twelth century the jurists began to collect texts and gather them together that treated the rights and obligations of lords and vassals who were bound by feudal contracts. By the thirteenth century, these books were used to teach in the law schools.25 he law regulating the relationships of lords and vassals in the period before about ad 1000 was primarily based upon unwritten customary usages. he sources from the period 8001000 contain terms like lord (dominus), vassal (vassalus), ief (beneicium or feudum) that later jurists would carefully analyze and deine. Historians have learned that when they ind these words in early medieval sources, they cannot simply assume that the words describe the lord and vassal relationship that is found in later feudal law, in which a lord bestowed a ief upon a vassal in return for military service and the vassal swore homage and fealty to the lord. In the period from 800 to 1150, the word that described a ief (sometimes, but not always, a piece of land) was generally beneicium. Although the word feudum, from which the English word feudal is derived, is found in early sources, it replaced beneicium as the standard word to describe a ief only during the twelth and thirteenth centuries. At the same time the law governing the bestowal of iefs, the rights of lords and vassals, and the complicated property rights of iefs emerge from unwritten, ill-deined, customary chaos in which rules and principles were luid. For political relationships the feudal contract had several advantages over a contract in Roman law. he feudal contract could be inherited and broken for political reasons. When a feudal contract passed from one generation to another, the bonds that the contract cemented were renewed in public ceremonies that reminded each party of its obligations and duties. Law can exist without jurisprudence, but law without jurisprudence is uncertain. Unless there are jurists to interpret the law, the rights of persons cannot be secure. Before about 1100 Europe was a land without jurists and without jurisprudence. In the irst half of the twelth century the study of law in schools began in north central Italy, especially in the city of Bologna. A professional class of jurists began to teach, practice, and participate in the exercise of power in the courts of the nobility and the governmental institutions of the Italian towns. hey used Justinian’s codiication of the sixth-century Corpus iuris civilis (Collection of civil law) as the 25 Peter Weimar, “Die Handschriten des ‘Liber feudorum’ und seiner Glossen”. Rivista internazionale di diritto comune 1 (1990): 3198. Gérard Giordanengo, Le droit féodal dans les pays de droit écrit: L’exemple de la Provence et du Dauphiné, XIIe-début XIVe siècle (Rome: École Française, 1988). Also his essays “Epistula Philiberti”. Féodalités et droits savants dans le Midi médiéval (1992) and “Consilia feudalia”. Legal Consulting in the Civil Law Tradition, edited by Mario Ascheri, Ingrid Baumgärtner, and Julius Kirshner (1999). Giordanengo has done the best work on French feudal law. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 93 text upon which they commented and with which they taught. Gratian produced a book of canon law upon which the jurists based the study of ecclesiastical (canon) law. hese books became the standard libri legales (law books) for the study of law, the ius commune, in the schools and for the practice of law in the courts. here were no books for feudal law. Because secular and ecclesiastical institutions were involved in legal relationships that were feudal, there was a need for written law and a jurisprudence that would provide an interpretive tool to understand it. Monasteries had feudal ties with persons and institutions. Bishops had feudal relationships with men and towns. Towns had feudal contracts with other towns and persons. he nobility had traditional feudal contracts with vassals but also with towns. Feudalism had become much more than a contract that regulated and deined a relationship between a lord and a vassal. Lawyers who studied the new ius commune at Bologna and other schools quickly realized that texts were needed. Mid-twelth-century jurists began to organize the study of feudal law around a diverse set of texts. he most unusual was the central role that a letter of Fulbert, the bishop of Chartres in the early eleventh century, played in the development of feudal law. William V, the count of Poitou and duke of Aquitaine, had asked Fulbert for advice about the obligations and duties that a vassal owed to a lord. William had troubled relationships with his vassals. In his reply (c. 1020) Fulbert wrote a short treatise on feudal relationships that circulated fairly widely. Its future as a fundamental legal text was assured when Bishop Ivo of Chartres (10911115/1116) placed it in his canonical collections. Around 1120 Gratian placed it in his Decretum where it became a locus classicus for canonistic discussions of the feudal contract and the relationship of lord and vassal. Fulbert told William that when a vassal took an oath to his lord, six things were understood to be contained in it whether explicitly expressed or not: to keep his lord safe, to protect him from harm, to safeguard his secrets, to preserve the lord’s justice, to prevent damage to his possessions, and not to prevent the lord from carrying out his duties. Fulbert alleged that he got this list from written authorities, but his exact source, if there was one, has never been discovered. For the next four centuries jurists cited Fulbert’s list of obligations and duties as being central to the feudal oath of fealty. he canonists’ discussion of this text illustrates why feudal law became so important in the later Middle Ages. hey applied Fulbert’s principles to the relationship between popes and bishops, between the emperor and the pope, and between bishops and the clerics under them. he greatest canonist of the twelth century, Huguccio of Pisa, noted that these principles applied to the oath that the emperor and bishops made to the pope and that clerics sometimes made to their bishops. Huguccio and later canonists concluded that if a cleric gave legal assistance to litigants in a law case against the church or bishop to whom he 94 KEN PENNINGTON had sworn an oath, he could be deprived of his beneice just as a vassal could be deprived of his ief for the same ofense. Principles of feudal law were extended into relationships that had little to do with the traditional bond between a lord and vassal. Canonistic commentaries also seem to have shaped the ethical and moral standards that a vassal had to maintain. Although they certainly drew upon unwritten customary practices, the canonists laid down the rules in their commentaries on Fulbert’s letter that forbade vassals from violating the sanctity of their lords’ women (wives, daughters, and other members of the household) and from injuring their lords’ interests in court by testifying against them.26 he basic books of feudal law were formed in the second half of the twelth century. In the middle of that century Obertus de Orto, a judge in Milan, sent his son Anselm to study law in Bologna. When Anselm reported to his father that no one in Bologna was teaching feudal law, Obertus wrote two letters to his son (that may be rhetorical conceits) in which he described the law of iefs in the courts of Milan. hose letters became the core of a set of texts for the study of feudal law. Obertus put his letters together with other writings on feudal law, especially from Lombard law, to create the irst of three “recensions” of the Libri feudorum (in the manuscripts the book was also named Liber feudorum, Liber usus feudorum, Consuetudines feudorum, and Constitutiones feudorum). he manuscripts of the irst two recensions reveal that there was no standard text. Some of them included eleventh- and twelth-century imperial statutes of the emperors Conrad II, Lothair II, and Frederick I. Manuscripts of the second recension oten contained the letter of Fulbert of Chartres and additional imperial statutes. Typical of legal works in the second half of the twelth century, the jurists and scribes added texts of various types (extravagantes) to this recension. here are almost no two manuscripts that contain exactly the same text. he text’s entry into the schools must have been slow because the jurists did not immediately comment on it. he irst jurist to write a commentary on the Libri was Pillius de Medicina, a jurist of Roman law. He wrote his commentary on the second recension around 1200, probably while he was a judge in Modena. He did not comment on all parts of the Libri, leaving the interpretation of Fulbert’s letter to the canonists. his illustrates an important point about feudal law in the twelth century: its jurisprudence was not the product of one area of law but of the ius commune. he inal or vulgate recension of the Libri feudorum added constitutions of the Emperor Frederick II, the letter of Fulbert, and other texts that had circulated in the twelth-century manuscripts. Accursius, the most important jurist of Roman law in the thirteenth century, wrote a commentary based on Pilius’ 26 Pennington, “Feudal Oath of Fidelity and Homage”, Law as Profession and Practice in Medieval Europe: Essays in Honor of James A. Brundage, edited by Kenneth Pennington and Melodie Harris Eichbauer (2011) 93115. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 95 in the 1220s. It may have gone through several recensions, not all by Accursius. Accursius also wrote the Glossa ordinaria on the rest of Roman law at about the same time. His authority and the importance of feudal law combined to give Libri feudorum along with Accursius’ Glossa ordinaria a permanent place in the Ius commune. From the 1230s on, the Libri was included in the standard manuscripts of Roman law that the stationers at the law schools produced for jurists, students, and practitioners. hey placed it immediately ater the medieval Authenticum (legislation of Justinian). In the fourteenth century Johannes Andreae questioned whether the Libri feudorum had been legitimately included in the libri legales since no public oicial had mandated its inclusion in the body of law. Johannes presented both sides of the question, but most jurists decided that it was a legitimate text because it had been accepted by custom and the schools. Canon law continued to contribute to the jurisprudence of feudal law ater the twelth century but did not produce any legislation as central as Fulbert’s letter. Pope Innocent III (11981216) touched upon feudal matters in many of his letters, two of which entered the oicial collections of canon law under the title De feudis. One of these letters shaped feudal law in an important area: the right of a lord to bestow a ief when he had taken an oath not to bestow the ief on someone else. Feudal law in the later Middle Ages found its jurisprudential roots in Roman law, canon law, and in secular legal systems. his cross-fertilization accounts for the vigor of feudal law until the end of the sixteenth century. he irst penetration of feudal law into secular law can be found at the beginning of the thirteenth century. When the commune of Milan published its statutes in 1216, the titles that dealt with feudal law were taken primarily from the Libri feudorum. he statutes contain an oath that a vassal took to his lord: “I swear that I will be henceforward a faithful man and vassal to my lord. I will not lay open to another to [my lord’s] injury what he has entrusted to me in the name of fealty”. When the emperor Frederick II promulgated a law code for the Kingdom of Sicily in 1231, the Constitutions of Meli, he carefully regulated the succession of iefs and the rules governing the nobility in bestowing iefs. he jurists commented on Frederick’s legislation and incorporated it into the jurisprudence of the ius commune. Ater the early thirteenth century many secular legal codes dealt with feudal customs in their jurisdictions. hey acknowledge a wide range of different practices. In Spain the Siete partidas and in France the Établissements de Saint Louis dealt extensively with the customary law of lords and vassals. Feudal relationships generated legal problems and court cases in the later Middle Ages. he earliest reports of court cases involving feudal disputes and using feudal law date to the late twelth century, and their numbers proliferate during the thirteenth and fourteenth centuries. As the number of these cases increased, jurists were called upon to write consilia (legal briefs) to solve them. he 96 KEN PENNINGTON jurist who best illustrates this development is Baldus (Baldo degli Ubaldi). He had taught for many years in the republican city of Perugia when, in 1390, Gian Galeazzo Visconti called him to the University of Pavia. Baldus became Gian Galeazzo’s court lawyer and devoted much of his time struggling with Visconti’s legal problems and those of his vassals. Gian Galeazzo was attempting to assert feudal rights over his vassals, and to support his lord, Baldus became enmeshed in the intricacies of feudal law. He inished a commentary on the Libri feudorum in 1393. It became the most important exposition of feudal law in the late Middle Ages. Baldus also wrote a number of long consilia in which he tried to give legal justiication to the state based on feudal privileges, rights, and obligations that Gian Galeazzo wanted to create. Baldus found it diicult to justify Gian Galeazzo’s claims when they violated deeply embedded norms of feudal law and the Ius commune. he result was a series of torturous and convoluted consilia whose composition betrays Baldus’s ambivalence about his task. Feudal law remained an important part of European jurisprudence until the seventeenth century. Jurists regularly treated feudal problems in their consilia. hey also continued to write commentaries on the Libri feudorum. he last two great commentators on feudal law were Johannes Antonius de Sancto Georgio and Mattheus de Alictis in the sixteenth century, who wrote extensive and widely circulated commentaries on the Libri. Books of the Ius proprium: Collections of Local Law he Ius commune was the jurisprudence of the schools and the courts. It served as a set of norms for all of Western Europe. he customary law of kingdoms and local communities remained valid law under the umbrella of the Ius commune. Its norms could and did trump those of the Ius commune, but the jurisprudence of the Ius commune more oten provided the interpretive framework for fashioning and interpreting local laws, using the terminology of the medieval jurists, the iura propria. he irst European monarch to issue a code of laws for his kingdom, King Roger II of Sicily († 1154), is a good illustration of the process through which Roman law shaped local customary law.27 Rogers’s jurists produced a body of legislation that scholars have dubbed the Assizes of Ariano but which are called “constitutiones” in Roger’s codiication. His legislation was important for several reasons: no other secular European prince promulgated such a sophisticated body of laws in the irst half of the twelth century; no other ruler ordered his legislation compiled into a systematically organized collection; his legislation reveals a close connection to 27 For what follows see Pennington, Ahe Birth of the Ius commune: King Roger II=s Legislation,@ Rivista internazionale del diritto comune 17 (2006) 140 and “he Constitutiones of King Roger II of Sicily in Vat. lat. 8782”, Rivista internazionale di diritto comune 21 (2010) 3554. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER. WESTERN LEGAL COLLECTIONS IN THE TWELFTH AND THIRTEENTH CENTURIES 97 the teaching and study of Roman law in Northern Italy; his constitutions may be the earliest example that we have of the nascent Ius commune’s inluence on secular law; and, inally the Emperor Frederick II’s commission of jurists incorporated more than half of his legislation into the Constitutions of Frederick II in 1231 (also called he Liber Augustalis or he Constitutions of Meli in the older literature) that remained the law of the land in Southern Italy until the early nineteenth century.28 Most importantly, embedded in Frederick’s Constitutions, Roger’s constitutions lived on. His legislation and Frederick’s were glossed and taught in the schools. If one wished to join Charles Homer Haskins in signaling the importance of the Normans in European history, one could do far worse than choosing Norman legislative activity in Sicily as a milestone in European legal history.29 Roger’s Constitutions have been described as “not being an organic whole” and as having “imperfections”.30 his conclusion asks not only the wrong question but also gives an anachronistic answer. Roger’s was not comprehensive like Justinian’s codiication, but no twelth-century jurist would have thought to compile such a code. When Frederick II promulgated his Constitutions a century later, it too was far from comprehensive. Secular codiications would remain disjointed segments of mosaics that only partially pictured the legal systems for which they were designed. Comprehensive codes belong to the modern world and the jurisprudence of Austinian sovereignty. Modern civil law codes do attempt to cover all parts of the legal system, but law in the Middle Ages could be found in many cupboards, not just in the legislative authority of the state. In a society in which customary law still played such an enormous role, in which large areas of the law were in the hands of ecclesiastical courts, and in which whole areas of the law such as procedure and law merchant were not thought of as being within the purview of the legislator, no jurist would ever have attempted to compile a code that incorporated every jot and tittle of the law of the land.31 28 he appearance of Wolfgang Stürner’s magniicent edition of the Constitutions has made work on Norman legislation much easier. In his introduction he has dealt with many of the contentious problems surrounding Roger’s and William II’s laws; on the question of the title of Frederick’s Constitutions see Stürner, Die Konstitutionen Friedrichs II. für das Königreich Sizilien (1996) 78. 29 Norman legislation in England during the twelth century was not nearly as sophisticated as that of their cousins in the South. Patrick Wormald has written: “<In the eleventh and twelth centuries> he Italian materials would alone argue the existence of a vigorous legal profession. Leges Henrici and its ilk are conirmation that there was none in England”, he Making of English Law: King Alred to the Twelth Century, 1: Legislation and its Limits (1999) 470, and more generally, 465483. See Leges Henrici primi, ed. and trans. L. J. Downer (1972) 31; see also the remarks of Mario Caravale, “Giustizia e legislazione nelle assise di Ariano”, Alle origini del costituzionalismo Europeo: Le assise di Ariano, 11401990 (1996) 320 at 1820, who emphasizes the point that both Norman kings emphasize their unitary authority over their kingdoms and their administration of justice. 30 See Hubert Houben, Roger II of Sicily: A Ruler between East and West (2002) 142143. 31 See the general remarks of Armin Wolf on legislation and codiication in “Die Gesetzgebung der entstehenden Territorialstaaten”, Handbuch der Quellen und Literatur der neueren europäischen 98 KEN PENNINGTON Although they were not taught in the schools, many other kingdoms, principalities, and cities gathered together their legislation and customary laws in the high Middle Ages. he most precocious were the city states of Italy. Genoa, Piacenza, and Pisa promulgated statutes in the irst half of the twelth century. here is manuscript evidence that jurists glossed them and participated in their composition. In the thirteenth century cities in northern Europe followed.32 Perhaps the most important and sophisticated royal legislation was the Siete partidas, promulgated by Alfonso X of Castile († 1284) for his Kingdom of Castile. Like the Constitutions of Frederick II it had a life span that stretch into the nineteenth century.33 Conclusion What distinguishes western European law, the Ius commune, and its jurisprudence from other legal systems is its institutional foundations in the law schools. Its authority was not derived from a great legislator, although it contained legislation from a large number of rulers, and its jurisdiction was not enforced by a powerful, universal monarch. he schools had one language, one set of books, one tradition, and one literature. Whether students studied in Bologna, Montpellier, Oxford, or Salamanca, one set of books, one set of interpretive glosses on those books, provided them with a common jurisprudence. his did not mean that Terence’s maxim “quot homines, tot sententiae” no longer was valid in law. What it did mean is that the jurists understood each other’s arguments and the sources and reasoning of contrary opinions perfectly. It may not have brought concord in the schools and the courtrooms, but it did bring a common ground. Privatrechtsgeschichte: 1. Mittelalter (11001500): Die gelehrten Rechte und Die Gesetzgebung (1973) 517565, especially 552555; also consult the still classic study of European codiication, Sten Gagnér, Studien zur Ideengeschichte der Gesetzgebung (Acta Universitatis Upsaliensis, Studia Iuridica Upsaliensia 1; Stockholm-Uppsala-Göteborg 1960) 288366. 32 Wolf, “Gesetzgebung” 566586. he Pisan statutes are the most thoroughly studied: Claudia Storti Storchi, Intorno ai Costituti pisani della legge e dell’uso (secolo XII): Europa Mediterranea, Quaderni 11. Napoli: Liguori, 1998). Paola Vignoli, I costituti dell legge d dell’uso di Pisa (sec. XII): Edizione critica integrale del testo tràdito del “Codice Yale” (ms Beinecke Library 415): Studio introduttivo e test, con appendici (Fonti per la Storia dell’Italia Medievale, Antiquitates 23. Roma: Istituto Storico Italiano per il Medio Evo, 2003). 33 Las Siete Partidas del sabio rey don Alonso el nono (3 vols Salamanca 1555), an edition containing a gloss that pays much attention to the Ius commune; see also Las Siete Partidas, translated by Samuel Parsons Scott and edited by Robert I. Burns (2001) with a helpful introduction. © BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. IT MAY NOT BE DISTRIBUTED WITHOUT PERMISSION OF THE PUBLISHER.