LAW AND RELIGION: LAW AND RELIGION IN MEDIEVAL EUROPE

The distinctive relationship between law and religion is one of the main features of the Western political tradition. The origins can be traced, in part, to a set of principles incorporated in the corpus of the Roman law and its later medieval developments. The legal status of religion and religious institutions in Roman public law was defined by a set of principles and rules regulating the use of sacred buildings and the status of priests and magistrates. By the time of the compilations of all the Roman laws under the emperor Justinian in sixth-century Byzantium, Christianity had given a new meaning to law and religious relations. Legal rules and religious norms developed in a symbiotic environment. Outside the Byzantine Empire, however, the Western part of Christendom was no longer ruled by Roman law. Rome had ceased to be the capital of an empire. The memory of its past imperial glory rested now on the claims of Peter's successors at the head of the Catholic Church. The people newly established inside the frontiers of the former empire followed their own law and customs. The revival of the concept of empire during the Carolingian Renaissance had little consequence for the existing systems of customary law. With the many obstacles faced by the church in the early Middle Ages, interest in Roman law declined.

In the eleventh century, the vast intellectual movement of the Gregorian Reform restored the church's discipline and its authority. The Gregorian Reform also generated a renewed interest for the texts of the church's legal tradition But in their search for the texts suitable to their purpose, the reformers, with perhaps the exception of Ivo of Chartres (c. 1040–1115), rarely bothered to harmonize the contradictions found in the texts then collected in their compilations. They chose instead simply to suppress the texts which did not support their own conclusions. While the reformers did provide the intellectual impulse for the reinterpretation of the spiritual foundations of the ecclesiastical institutions, sacramental law as understood by the reformers did not aim at the construction of a unified juridical order. They focused on the defense of the spiritual and pastoral nature of the church's mission and the function of its clergy. The legal revolution came later, once the long forgotten compilations of Justinian were rediscovered in the West.

The rediscovery of Justinian's compilations in northern Italy and the resulting exegesis of Roman legal texts brought about dramatic changes. Within a few decades, the renewal of jurisprudence gave rise to a novel legal culture (c. 1130). As the teaching of the first generations of jurists spread outside the limited circle of the schools, the new legal reason attracted a larger audience. By the turn of the twelfth century, princes and prelates, teachers and students, judges and lawyers, merchants and clergymen were readily using the new law. But to these men, law was more than a technical tool. An image of a prestigious past, it was also described as the ratio scripta and a mode of thinking encompassing the whole field of human affairs, both secular and sacred. The new law transformed feudal society and shaped forever the legal tradition of Western Europe. Viewed as the legacy of the former empire, the new law was clearly distinguished from religion at a time when the conflict between the popes and the heirs of the Holy Roman Empire divided medieval Europe. Yet the practices and belief of a deeply religious medieval society could not but influence the definition and the perception of the legal norms in both the private and the public spheres. In turn, legal reasoning would also contribute to shaping religious doctrine. This combination would be achieved by the new canonical jurisprudence within a few decades.

Around 1140, an Italian monk named Gratian produced his Concord of Discordant Canons, otherwise known as the Decretum or Decreta, establishing the science of canon law. In its first version, this compilation of church law attempted to reconcile various legal sources from the Holy Scriptures to conciliar canons, the writings of the church's fathers, as well as papal decretals. Gratian also added a treaty on penance and one on sacraments as if in his eyes these two sacramental elements could not be dissociated from an ecclesiastical model founded on the law. But Gratian's project became more than a mere collection of contradictory texts. Bringing together works and authorities excerpted from a pluralistic, complex religious tradition, Gratian rewrote the vibrant history of the Catholic Church through the recalling of an uninterrupted chain of authorities and sometimes dissonant voices. The suppression of discordances and the harmonization of the textual material paved the way toward a unified church leading a united Christian world.

Anders Winroth has recently shown with great care how little Roman law Gratian initially knew or considered to be worthy of the canonists' attention. But the general conception of a harmonious legal system as the foundation of a unified society clearly reminds one of Justinian's effort to find in the confirmation of an age-old Roman legal tradition the intellectual and cultural strength to revive a declining empire.

The renewal of jurisprudence was part of an intellectual movement that had already affected the other fields of learning among which theological inquiry enjoyed primacy of place. At the crossroads of theology and law, it provided a model for the development of a new science of canon law which aimed at blending harmoniously the sacramental tradition with more practical Roman legal principles. In doing so, as Walter Ullmann has pointed out, religious doctrine has transformed into legally sanctioned rules of conduct that governed the acts and the beliefs of each member of the Christian community. Law acquired an essential function in the life of the church. It contributed to a new definition of its purpose and transformed its institutions for the coming centuries. From the start, Gratian's message was clear and confident. "Mankind is governed in two ways by natural law and by mores." For the twelfth-century canonist, long before Thomas Aquinas and the revival of Aristotelian philosophy, natural law was the expression of God's will. The world was ruled by divine law and human law.

Writing in the 1160s, the canonist Stephan of Tournai (1135–1203) had bemoaned the difficulty of bringing together theologians and jurists at the same intellectual banquet. Begging his reader to be patient, Stephan proceeded to serve "the promised feast to the diners":

In the same city here are two peoples under the same king, and with the two peoples two ways of life, and with two ways of life two dominions, and with two dominions a double order of jurisdiction emerges. The city is the Church; the king of the city is Christ; the two people are the two orders in the Church, of clerics and lay people. The two ways of life are the spiritual and the physical; the two dominions are the institutional Church and secular government; the double order of jurisdiction is divine and human law. Render to each its own and all will be in accord.

What made the history of the medieval church different from other religions was precisely the clear distinction between the two jurisdictions. To the medieval person, divine and human laws were the indispensable foundations of the Christian society. The authority of both laws transcended the separation of the society into two distinct spiritual and temporal partitions. By the turn of the following century, this doctrine was undermined by the renewed interest in Roman law. The misgivings of the first decretists such as Rufinus (d. 1192) were no longer heard and the "sirens of Roman law" were tempting the decretorum nauta. With few exceptions, the success of Roman law as the ratio scripta and the primary source of legal science did not, in fact, prompt the demise of canon law. On the contrary, the canonists' interest in Roman law gave it a new status. Hence canonical jurisprudence transformed the original character of Roman law while diluting its imperial essence mostly in response to the political claims made by Frederic Barbarossa and his successors. As heir to the past Roman emperors, Frederic maintained that his authority as lord of the world (dominus mundi) could not be challenged by any one. Praised as the living law (lex animata) by the Bolognese envoys to the Diet at Roncaglia (1158) after the defeat of the rebellious Italian cities, Frederic shared with his Roman predecessors the unique knowledge of the law and placed under his protection law students and teachers. The authority of Roman law was closely associated with the imperial power. The teaching of the new Roman Jurisprudence was the constant reminder of the emperor's legislative authority. Outside Northern Italy, the success of Roman law in the Parisian schools diverted the students from theological studies and might also have offended the French king who did not consider himself as the emperor's subject. One of the canonists' achievements consisted in dissociating Roman law from its imperial background. In 1219, Honorius III's famous interdiction of the teaching of Roman law in Paris did not deter the canonist's attention to the secular law.

This legal development came at a time when the teachings of the Catholic Church were contested by various popular movements that challenged the authority of its institutions and the legitimacy of its clergy. Heresies gained popular support while the spiritual enthusiasm once energized by the call for the defense of the Holy Land was losing its momentum. In 1204, the sack of Constantinople ended the Fourth Crusade well before it reached the Holy Land. At the same time, the claims of the emboldened secular powers, imperial as well as royal, reached new proportions. The continuous conflict between the Holy Roman Empire and the papacy fostered the opposition between the secular and the spiritual spheres of political power. It led progressively to a reinforcement of church hierarchy around the growing authority of the popes who adapted the Roman model of imperial power to the conduct of the papal office. The resulting tensions shifted the issue of religious belief and the practice of one's faith from the spiritual to the secular sphere of the public order.

In 1215, when Pope Innocent III convened the Fourth Lateran Council, these political tensions had become acute. The preachings of the medieval Catharists treated the ecclesiastical hierarchy and the church's institutions with contempt while more esoteric prophecies announced the coming of a new age of the Spirit. Beginning with the strong reaffirmation of the true Catholic faith and belief in the Holy Trinity, the assembly of church dignitaries outlined the steering principles for the governance of the universal church and the government of Christian society. Although there is reason to believe that Innocent III himself was not an accomplished jurist, the church prelates who gathered under his leadership attempted to rethink the dual mission of the medieval church comprised of pastoral duty to the faithful and the government of Christian society. The council had three goals: to strengthen the Catholic faith, to fight heresy, and to restore Catholic life. The result was a two-pronged attempt to discipline individual behavior and to restore order in the Christian society. Considered as the most important council of medieval Christendom, Lateran IV marks a turning point in the shaping of a juridical model that blended religious norms and legal rules. The canons of the councils outlined a new order in which private belief and public interest merged into one all encompassing definition of Catholic life. A century after the final outcome of the Gregorian reform, the restatement of the Catholic faith was backed by a legal apparatus in which religious norms had acquired a new significance. Faith and Christian doctrine were thus rethought in order to fit within the new paradigms. Once more, the canonists turned to the Roman law.

In the fourth century, Emperor Theodosius's edict establishing the Catholic faith as the religion of the empire ordered all the people subjected to his imperium to embrace the religion of Peter and belief in the Holy Trinity. This famous edict was later inserted at the beginning of Justinian's codex in the opening title on the Holy Trinity and the Catholic faith. It is not surprising therefore that it found pride of place in the teachings of the medieval legal scholars. For the jurists who painstakingly interpreted Roman law, Theodosius's edict was the perfect illustration of the imperial power. Faith was defined both as belief in the Holy Trinity and as obedience to the emperor's order. The subject who dared reject this religion was guilty of a double offense in the eyes of God and in the eyes of the emperor. Punishment was handed down swiftly by divine will and imperial justice. Religion was the law, as later pointed out by Accursius, one of the most famous medieval jurists; it was the expression of the emperor's pleasure. Reading the early glosses and comments to this famous text, the canonists did not fail to notice the striking parallel between the imperial edict and the first canon of the council. By the time of Lateran IV (1215), however, the pope had replaced the emperor as defender of the faith and ecclesiastical justice combined the legitimacy of the spiritual jurisdiction with the authority of legal procedure. The earlier distinction between sin and crime, which had long defined the economy of salvation, was also reinterpreted.

The changes envisioned by Innocent III (d. 1216) rested firmly upon the view that the unity of the church both as a mystical body and a hierarchical institution was the expression of a universal order. For the canon lawyers pastoral function and jurisdictional power coincided in the divine order of salvation. Within a few years, however, the delicate balance between the care of the soul and the reason of state faced an increasing challenge. The initial quest for harmony was gradually replaced with a different quest for unity that rested on a faith sanctioned by canon law.

By the time of the promulgation of the Decretals by Pope Gregory IV in 1234, the development of jurisprudence in both canon and civil law had brought into question many legal doctrines. The first half of the thirteenth century marked a period of renewed legal dynamism in which the identity and authority of canon law was defined by a new generation of jurists and ecclesiastics who readily adopted a more emancipated attitude toward Roman law. This intellectual movement was also shaped by the intense political debate that contributed to the redefinition of the papal power. The first compilations of Decretals fostered an interest for the new law and confirmed the pope's function as guardian of church doctrine and source of its law. The analysis and exegesis of legal texts reached a new dimension while theological inquiries extended the predicament of salvation to the broader conception of the medieval political order and the common good of human society. A new generation of canonists known as the decretalists gave more importance to the harmonious relationship between law and theology. Henry of Suza, known as Hostiensis, later cardinal-bishop of Ostia, taught in his lectures that "Theology was the science of the angels, while Roman law was the science of the animals and Canon law the science of the human beings." The three conditions of the living creatures corresponded with the trilogy of theological, Roman, and canonical knowledge as well as the three conditions of the soul—synderesis, sense, and reason—that corresponded to the three forms of life.

By the end of the thirteenth century, however, Hostiensis's beliefs were challenged by the practical needs of a rising administration and the strengthening of the papal government. Faced with political challenges and theological disputes, the church increasingly relied upon the legal doctrines developed in the previous century to maintain and expand its authority. In doing so, the rigid interpretation of the legal rules widened the gap between the pastoral and sacramental commitments and the governmental institutions.

During the last centuries of the Middle Ages, the conflict between civil and ecclesiastical jurisdiction was often reduced to what Stephan Kuttner described in his book Reflections on Gospel and Law in the History of the Church as the "petty reality of legalism" (Kuttner, 1976, 199–209). For a time, the spirit of the first canonists continued through a conception of canon law and ecclesiastical justice which was grounded in the biblical precedents and the sacred canons. But the growing bureaucratic and administrative process of the church's institutions transformed the canonical norms into a set of technical rules and regulations increasingly detached from the daunting goals of an economy of salvation. Canon law seemed no longer able nor interested to foster the spiritual and the temporal dimensions of human life. This failure expressed the decline of the intellectual movement which had shaped the distinctive features of ecclesiastical law. This decline explains to some extent the inability of the church's institutions to respond to the expectations of Christian society until the Reformation.

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Laurent Mayali (2005)