Place of publication: Cracow
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Medieval Canon Law: LiteratureF. Arnold, "Die Rechtslehre des Magister Gratianus", Studia Gratiana, 1 (1947) 451-82.
Mario Ascheri, "Analecta manoscritta consiliare (1285-1354)," Bulletin of Medieval Canon Law, 15 (1985) 61-94.
Idem, I consilia dei giuristi medievali (Sienna 1982).
Ingrid Baumgärtner, "Et faciendi plures libros nullus est finis. Der Sinn von Buchern oder der Bildungshorizont eines spätmittelalterlichen Juristen," Universität und Bildung. Festschrift für Laetitia Bohm zum 60. Geburtstag, ed. W. Muller, W. Smolka, H. Zedelmaier (Munich 1991) 55-70.
Idem, ed. Consilia im späten Mittelalter: Zum historischen Aussagewert einer Quellengattung (Studi/Schriften des Deutschen Studienzentrums in Venedig 13; Sigmaringen 1995).
Manlio Bellomo, The Common Legal Past of Europe 1000-1800 (Washington 1994).
Robert Benson, The Bishop-Elect (Princeton 1968).
Idem, "Plenitudo Potestatis: Evolution ... to Gratian", Studia Gratiana 14 (1967) 195-217.
Martin Bertram, "Angebliche Originale des Dekretalenapparats Innozenz' IV.," Proceedings of the VIth International Congress of Medieval Canon Law, Berkeley... (Monumenta Iuris Canonici, Series C subsidia 7; Vatican City 1976) 41-47.
Idem, "Handschriften der Summe Hostiensis mit der `Quaestio' am Ende," Bulletin of Medieval Canon Law, 16 (1986) 96-97.
Idem, "Handschriften und Drüke des Dekretalenkommentars (sog. Lectura) des Hostiensis," Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 75 (1989) 177-201.
Leonard Boyle, "The Compilatio quinta and the registers of Honorius III," Bulletin of Medieval Canon Law, 8 (1978) 9-19.
Idem, Pastoral care, clerical education, and canon law (Variorum 1981).
Robert Brentano, Two Churches: England and Italy in the Thirteenth Century (Princeton 1968).
Idem, "Localism and Longevity: The example of the Chapter of Rieti in the Thirteenth and Fourteenth Centuries", Law, church, and society: essays in honor of Stephan Kuttner (Philadelphia 1976) 293-310.
James Brundage, Medieval Canon Law and the Crusader, (Madison 1969).
Idem, The Crusades, Holy War, and Canon Law (Variorum [reprinted articles] 1991).
Idem, Sex, Law, and Marriage in the Middle Ages (Variorum [reprinted articles] 1990).
Idem, Medieval Canon Law (London/New York 1995).
Joseph Canning, The political thought of Baldus de Ubaldis (Cambridge 1987).
Peter Classen, "Das Decretum Gratiani würde nicht in Ferentino approbiert," Bulletin of Medieval Canon Law, 8 (1978) 38-40.
Vincenzo Colli, "Baldus de Ubaldis (1327-1400) as canonist,"Proceedings of the VIIIth International Congress of Medieval Canon Law, San Diego ... (Monumenta Iuris Canonici, Series C Subsidia 9; Vatican City 1992).
Charles Duggan, Twelfth-Century dcretal collections and their importance in English History (London 1963).
Idem, Canon law in medieval England (Variorum 1982).
Gerard Fransen, "Les diverses formes de la compilatio prima," Scrinium Lovanensis: Melanges historiques Etienne van Cauwenbergh (Univ. of Louvain, Recueil de travaux d'histoire et de philologie 24; Louvain 1961).
Idem, "La tradition manuscrite de la `Compilatio prima'," Proceedings of the First International Congress of Medieval Canon Law, Boston... (Monumenta Iuris Canonici, Series C Subsidia 1; Vatican City 1965) 55-62.
John Gilchrist, "The medieval canon law of unfree persons", Melanges Fransen I, Studia Gratiana 19 (1966) 277-301.
Idem, The Church and economic activity in the Middle Ages (London 1969)
Idem, ed. Diversorum patrum sententie sive collectio in lxxiv. titulos digesta (Monumenta Iuris Canonici C-1; Vatical City 1973).
Idem, "The reception of Pope Gregory VII into the Canon law", Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 59 (1973) 35-82.
Franz Gillmann, "Lanfrancus oder Laurentius?" Archiv für katholisches Kirchenrecht 109 (1929) 598-669; 110 (1930) 000-000.
Dieter Girgensohn, "Francesco Zabarella aus Padua," Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 79 (1993) 232-77.
Steven Horwitz, "Magistri and magisterium: Saint Raymond of Penyafort and the Gregoriana,"Escritos del vedat 7 (1977) 209-38.
Idem, "Reshaping a decretal chapter: Tua nobis and the canonists," Law, church, and society: Essays in honor of Stephan Kuttner, ed. K. Pennington and R. Somerville (Philadelphia 1977) 207-21.
Benjamin Kedar, "Canon law and the burning of the Talmud," Bulletin of Medieval Canon Law, 9 (1979) 79-82.
P.J. Kessler, "Untersuchungen uber die Novellen-Gesetzgebung Papst Innocenz IV (I)-(III)," Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 31 (1942), 32 (1943), 33 (1944).
Stephan Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX (Studi e Testi 64; Vatican City 1935). Idem, Repertorium der Kanonistik, (Studi e Testi 71: Vatican City 1937).
Idem, "Die Konstitutionen des ersten allgemeines Konzils von Lyon," SDHI 6 (1940) 70-131.
Idem, "Bernardus Compostellanus Antiquus," Traditio, 1 (1943) 281.
Idem, "Johannes Teutonicus, das vierte Laterankonzil, und die Compilatio quarta," Miscellanea Giovanni Mercati (Studi e Testi 125; Vatican City 1946) 608-34.
Idem, "Conciliar law in the Making: The Lyonese constitutions (1274) of Gregory X ...," Miscellanea Pio Paschini (Rome 1949) II 39-81.
Idem, "Raymond of Penyafort as editor: The `decretales' and `constitutiones' of Gregory IX," Bulletin of Medieval Canon Law, 12 (1982) 65-80.
Idem, Medieval Councils, Decretals, and Collections of Canon Law (Variorum [reprinted articles with "retractiones"] 1980).
Idem, Gratian and the Schools of Law 1140-1234 (Variorum [reprinted articles with "retractiones"] 1983).
Idem, Studies in the History of Medieval Canon Law (Variorum [reprinted articles with "retractiones"] 1990).
Peter Landau, "Neue Forschungen zu vorgratianischen Kannonessammlungen und den Quellen des Gratianischen Dekrets," Ius Commune (1984) 1-29.
Idem, "Gratian (von Bologna)," Theologische Realenzyklopedie, 14 (1986) 124-130.
Idem, "Quellen und Bedeutung des gratianischen Dekrets," SDHI 52 (1986) 218-35.
Titus Lenherr, "Die Summarien zu den Texten des 2. Laterankonzils von 1139 in Gratians Dekret," Archiv für katholisches Kirchenrecht, 150 (1981) 528-51.
Idem, "Arbeiten mit Gratians Dekret," Archiv für katholisches Kirchenrecht, 151 (1982) 140-66.
Idem, "Fehlende `Paleae' als Zeichen eines uberlieferungsgeschichtlich jungeren Datums von Dekret-Handschriften," Archiv für katholisches Kirchenrecht, 151 (1982) 495-507.
James Muldoon, "The contribution of the medieval canon lawyers to the formation of international law," Traditio 28 (1972) 483-97.
Idem, "Missionaries and the marriage of infidels: the case of the mongol mission," The Jurist 35 (1975) 125-41.
Idem, Popes, lawyers and infidels: the Church and the non-Christian world 1250-1550 (Philadelphia 1979).
Wolfgang Müller, Hugguccio: The Life, Works, and Thought of a Twelfth- Century Jurist (Washington, D.C. 1995).
John Noonan, "Was Gratian approved at Ferentino?" Bulletin of Medieval Canon Law, 6 (1976) 15-27.
Idem, "Gratian Slept Here: The Changing Identity of the Father of the Systematic Study of Canon Law," Traditio 35 (1979) 145-72.
Idem, "The True Paucapalea?," Proceedings of the Vth International Congress of Medieval Canon Law, Salamanca... (Monumenta Iuris Canonici, Series C Subsidia 6; Vatican City 1980) 257-86.
Peter Pazzaglini and Catharine Hawks, Consilia: A Bibliography of Holdings in the Library of Congress and certain other Collections in the United States (Washington D.C 1990).
Kenneth Pennington, "The French Recension of Compilatio tertia," Bulletin of Medieval Canon Law, 5 (1975) 53-71.
Idem, Pope and Bishops (Philadelphia 1986).
Idem, "A `Quaestio' of Henricus de Segusio and the textual tradition of his `Summa super decretalibus'," Bulletin of Medieval Canon Law, 16 (1986) 91-97.
Idem, "An earlier recension of Hostienis's Lectura on the Decretals," Bulletin of Medieval Canon Law, 17 (1987) 77-90.
Idem, "The Consilia of Baldus de Ubaldis," Tijdschrift voor Rechtsgeschiedenis - Revue Histoire du Droit, 56 (1988) 85-92.
Idem, The Prince and the Law (Berkeley/Los Angeles 1994).
Idem, Popes, Canonists, and Texts, 1150-1550 (Variorum [reprinted articles with "Further Thoughts"] 1993).
Alfons Stickler, "Concerning the Political Theories of the Medieval Canonists" Traditio 7 (1949-51) 450-63.
Idem, "Alanus Anglicus als Verteidiger des monarchischen Papsttums", Salesianum 21 (1959) 346-406.
Idem, "Il decretista Laurentius Hispanus," Studia Gratiana 9 (1966) 461-549.
Jacqueline Tarrant, "The Clementine decrees on the Beguines: conciliar and papal versions," AHP 12 (1974) 300-08.
Idem, "The manuscripts of the Constitutiones Clementinae, part I: Admont to Munchen," Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 70 (1984) 67-133; part II: Napoli to Zwettl," Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 71 (1985) 76-146.
Brian Tierney, Foundations of the Conciliar Theory (Cambridge 1955).
Idem, "The Continuity of Papal Political Theory in the Thirteenth Century", Mediaeval Studies 27 (1965) 227-45.
Idem, "Medieval Canon Law and Western Constitutionalism," Catholic Historical Review, 52 (1966) 1-17.
Idem, Church Law and Constitutional Thought (Variorum 1979).
Elisabeth Vodola, Excommunication in the Middle Ages (Berkeley/Los Angeles 1986).
Rudolf Weigand, Die Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Accursius und von Gratian bis Johannes Teutonicus (Münchener Theologische Studien III,Kanonistische Abteilung, 26; Munich 1967).
Idem, "Paucapalea und die frühe Kanonistik," Archiv für katholisches Kirchenrecht, 150 (1981) 137-57.
Idem, "Burchardauszüge in Dekrethandschriften und ihre Verwendung bei Rufin und als Paleae im Dekret Gratians," Archiv für katholisches Kirchenrecht, 158 (1989) 429-451.
Idem, "Frühe Kanonisten und ihre Karriere in der Kirche," Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 76 (1990) 135-36, 152-55.
Norman Zacour, Jews and Saracens in the Consilia of Oldradus de Ponte (Pontifical Institute Studies and Texts 100: Toronto 1990).
H.Zapp, "Gratian," Lexikon des Mittelalters, 4 (1989) 1658.
Compiled by Brendan McManus
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In 1983 Pope John Paul II promulgated the revised Code of Canon Law by means of the apostolic constitution, Sacrae disciplinae leges. In that document he refuted both of these theories. He pointed out that Christ Himself said He had come to fulfill and not destroy the law, that even the charismatic community needs the order which law brings, and that Saint Paul was an outspoken exponent of Church discipline. In short, the community of love, peace and charity is not replaced but rather is facilitated by order. Indeed, as Saint Thomas reminds us, the peace so widely sought after nowadays is the "tranquility of order."
If law is necessary even for the People of God (the Church), what is it? Again, Saint Thomas is illuminating. He tells us that law is "a regulation in accordance with reason promulgated by the head of the community for the sake of the common good." A law, then, is first of all a command. It is not mere advice. It springs from a person with legislative authority.
By the universal law of the Church legislative authority is enjoyed by the supreme authority in the Church, by the diocesan bishop and by particular (i.e., provincial and plenary) councils. Episcopal conferences are pastoral (c. 447), not legislative bodies. They do possess certain limited legislative authority but it exists only in certain specified cases as set forth by law (c. 455). Put somewhat differently, episcopal conferences are legislators of limited jurisdiction. To legislate validly they must affirmatively show the source of their authority to legislate. And, in any case, the legislation of an inferior legislator (such as an episcopal conference or diocesan bishop) may not contravene the legislation of a superior legislator, such as the Holy See.CANON LAW AND ITS INTERPRETATION Duane L.C.M. Galles
As we shall see in treating of the gradual development of the material of canon law (see below, IV), though a legislative power has always existed in the Church , and though it has always been exercised, a long period had necessarily to elapse before the laws were reduced to a harmonious systematic body, serving as a basis for methodical study and giving rise to general theories. In the first place, the legislative authority makes laws only when circumstances require them and in accordance with a definite plan. For centuries, nothing more was done than to collect successively the canons of councils, ancient and recent, the letters of popes , and episcopal statutes ; guidance was sought for in these, when analogous cases occurred, but no one thought of extracting general principles from them or of systematizing all the laws then in force. In the eleventh century certain collections group under the same headings the canons that treat of the same matters; however, it is only in the middle of the twelfth century that we meet in the "Decretum" of Gratian the first really scientific treatise on canon law. The School of Bologna had just revived the study of Roman law ; Gratian sought to inaugurate a similar study of canon law. But, while compilations of texts and official collections were available for Roman law , or "Corpus juris civilis", Gratian had no such assistance. He therefore adopted the plan of inserting the texts in the body of his general treatise; from the disordered mass of canons collected from the earliest days, he selected not only the law actually in force (eliminating the regulations which had fallen into desuetude, or which were revoked , or not of general application) but also the principles; he elaborated a system of law which, however incomplete, was nevertheless methodical. The science of canon law, i.e. the methodical and coordinated knowledge of ecclesiastical law, was at length established.
Gratian's "Decretum" was a wonderful work; welcomed, taught and glossed by the decretists at Bologna and later in the other schools and universities , it was for a long time the textbook of canon law. However his plan was defective and confusing, and, after the day of the glosses and the strictly literal commentaries, it was abandoned in favour of the method adopted by Bernard of Pavia in his "Breviarium" and by St. Raymund of Pennafort in the official collection of the "Decretals" of Gregory IX , promulgated in 1234 (see CORPUS JURIS CANONICI). These collections, which did not include the texts used by Gratian, grouped the materials into five books, each divided into "titles", and under each title the decretals or fragments of decretals were grouped in chronological order. The five books, the subject matter of which is recalled by the well-known verse: "judex, judicium, clerus, connubia, crimen" (i.e. judge, judgment, clergy , marriages , crime), did not display a very logical plan; not to speak of certain titles that were more or less out of place. They treated successively of the depositaries of authority, procedure, the clergy and the things pertaining to them, marriage, crimes and penalties. In spite of its defects, the system had at least the merit of being official; not only was it adopted in the latter collections, but it served as the basis for almost all canonical works up to the sixteenth century, and even to our day, especially in the universities , each of which had a faculty of canon law.
However, the method of studying and teaching gradually developed: if the early decretalists made use of the elementary plan of the gloss and literal commentary, their successors in composing their treatises were more independent of the text; they commented on the titles, not on the chapters or the words; often they followed the titles or chapters only nominally and artificially. In the sixteenth century they tried to apply, not to the official collections, but in their lectures on canon law the method and division of the "Institutes" of Justinian : persons , things, actions or procedure, crimes, and penalties (Institutes, I, ii, 12). This plan, popularized by the "Institutiones juris canonici" of Lancellotti (1563), has been followed since by most of the canonist authors of "Institutiones" or manuals, though there has been considerable divergence in the subdivisions; most of the more extensive works, however, preserved the order of the "Decretals". This was also followed in the 1917 code. In later times many textbooks, especially in Germany , began to adopt original plans. In the sixteenth century too, the study of canon law was developed and improved like that of other sciences , by the critical spirit of the age: doubtful texts were rejected and the raison d'être and tendency or intention of later laws traced back to the customs of former days. Canon law was more studied and better understood; writings multiplied, some of an historical nature , others practical, according to the inclination of the authors. In the universities and seminaries , it became a special study, though as might be expected, not always held in equal esteem. It may be noted too that the study of civil law is now frequently separated from that of canon law, a result of the changes that have come over society . On the other hand, in too many seminaries the teaching of ecclesiastical law is not sufficiently distinguished from that of moral theology . The publication of the new general code of canon law will certainly bring about a more normal state of affairs.
The first object of the science of canon law is to fix the laws that are in force. This is not difficult when one has exact and recent texts, drawn up as abstract laws e.g. most of the texts since the Council of Trent , and as will be the case for all canon law when the new code is published. But it was not so in the Middle Ages ; it was the canonists who, to a large extent, formulated the law by extracting it from the accumulated mass of texts or by generalizing from the individual decisions in the early collections of decretals . When the law in force is known it must be explained, and this second object of the science of canon law is still unchanged. It consists in showing the true sense, the reason , the extension and application of each law and each institution. This necessitates a careful and exact application of the triple method of exposition, historical, philosophical , and practical: the first explains the law in accordance with its source and the evolution of customs; the second explains its principles; the last shows how it is to be applied at present. This practical application is the object of jurisprudence , which collects, coordinates and utilizes, for more or less analogous cases, the decisions of the competent tribunal. From this we may learn the position of canon law in the hierarchy of sciences . It is a judicial science , differing from the science of Roman law and of civil law inasmuch as it treats of the laws of an other society ; but as this society is of the spiritual order and in a certain sense supernatural , canon law belongs also to the sacred sciences . In this category it comes after theology , which studies and explains in accordance with revelation , the truths to be believed ; it is supported by theology , but in its turn it formulates the practical rules toward which theology tends, and so it has been called "theologia practica", "theologia rectrix". In as far as it is practical the science of canon law is closely related to moral theology ; however, it differs from the latter which is not directly concerned with the acts prescribed or forbidden by the external law , but only with the rectitude of human acts in the light of the last end of man , whereas, canon law treats of the external laws relating to the good order of society rather than the workings of the individual conscience . Juridical, historical, and above all theological sciences are most useful for the comprehensive study of canon law.
canon law sciense in catholic.org
.....translated from the Italian
- Codex canonum ecclesiarum orientalium (1990), original text in Latin
- "Code of canons of Oriental Churchs" (1990), English translation
- Codex Iuris Canonici (1917), original text in Latin
- Codex Iuris Canonici (1917) in French translation