Gratian's Tractatus de legibus and Torino, Biblioteca Nazionale Universitaria D.V.19

Abstract

Gratian's Tractatus de legibus and Torino, Biblioteca Nazionale Universitaria D.V.19 Ken Pennington Gratian introduced his students to basic concepts of law in his Tractatus de legibus. He defined ius naturale, ius gentium, Roman civil law and its terminology, custom and ecclesiastical legal norms. Ius naturale, which he took from Roman law, was particularly important. Except for Isidore of Seville, early medieval theologians had always used the term Lex naturalis, which did not have the same penumbra of meanings as Ius naturale.1 Gratian place Ius naturale firmly into the canonical tradtion. One might argue that Gratian's Tractatus de legibus was his most important contribution to medieval jurisprudence. It was not, it seems, a part of the earliest versions of the Decretum.2 The first versions of the Decretum contained very little Roman law. This was a significant departure from other late eleventh and early twelfth-century canonical collections that had contained significant numbers of Roman law texts. There are small pieces of evidence that Gratian knew and used Roman law in the earliest recensions of his text.3 Over time, Gratian gradually [End Page 199] expanded the Decretum by adding several thousand texts in stages and among these additions were excerpts from Roman law.4 The texts that he added to his expanded recensions seem to have circulated as appendices.5 In his final, vulgate recension Gratian inserted over one-hundred texts taken from all parts of Justinian codification and from Justinian's later legislation, the Novellae. However, Gratian's most important Roman law excerpts were not from Justinian but from Irnerius' translations and adaptions of texts from Justinian's Novellae that were inserted into the margins of the Institutes and the Codex.6 Irnerius had carefully crafted these texts to adapt the legislation in the Codex to twelfth-century society. Gratian saw that they were also very important for his project and inserted thirty 'authenticae' into his Decretum. Although there is no debate today that Gratian used Roman law and that the glossators of the Decretum had frequent recourse to Justinian's legacy, there are differing opinions on when, how and to what degree Gratian and the early canonists bowed to the authority of Roman law.7 Very little work has been done on the influence of canon law on Roman law in the early twelfth century. To put the question slightly differently, when did the current begin to flow in the opposite direction, when did jurists who were not canonists begin to use and cite canonical texts in their work? Two manuscripts of working jurists that contain primarily Roman law texts in Torino, [End Page 200] Biblioteca Nazionale Universitaria D.V.19 and also to a lesser extent, Paris, Bibliothèque Natioanle de France lat. 4709, give us intriguing evidence that provide some answers to that question. Two other early twelfth century manuscripts, Florence, Biblioteca Laurenziana Plut. 29.39 and Biblioteca Apostolica Vaticana Reg. lat. 435 also provide proof of canonical jurisprudence's usefulness to these jurists who were primarily interested in Roman law.8 The Torino manuscript is especially important for gaining some insight into the interest in canon law that these jurists had in the early twelfth century. More than one hundred years ago Fitting described the manuscript as a 'highly interesting and rich' manuscript.9 He called attention to the texts of canon law in the manuscript, but the manuscript remained of greater interest to scholars of Roman law than to historians of canon law because it contained more Roman law than canonical texts.10 Historians of canon law did not pay much attention to it.11 In 1895 Emil Seckel analyzed the canonical texts in the manuscript and demonstrated were taken from the canonical collection, Panormia, Gratian's [End Page 201] Decretum, or from related sources.12 It is signifcant that the Panormia as well as Gratian were important sources. Use of the Panormia is evidence that the manuscript was assembled before Gratian's Decretum dominated the scene. Scholars have not been unanimous in dating or localizing the manuscript. The individual pieces of the manscript were not written in one scriptorium, but the scripts are all fairly similar and date...