CANON LAW

In the medieval period, the Roman Catholic Church courts had jurisdic­tion, independently of the secular authorities, over a variety of areas of law, such as marriage and wills.

The classical period of canon law begins with the Decretum Gratiani, an unofficial collection of canons made around 1140 by Gratian, a monk at Bologna. Although itself unofficial, this collection attracted study, with similar methods to those of the Glossators. As we have seen, the study of Roman law was being developed at Bologna and elsewhere at this time.

The importance of canon law for present purposes lies in its use of Roman law as a subsidiary source where this did not conflict with Church teachings. As an example, the Roman view that marriage was constituted by the parties’ consent was adopted (see Chapter 3).

Even when Roman rules were used, they were adapted to fit the Church’s requirements. For example, it will be remembered from Chapter 3 that the Roman position on marriage was that “agreement, not sleeping together, makes a marriage” (Ulpian, D.35.1.15). This, it has been suggested, is “somewhat misleading if interpreted to mean that everything depended on the intention of the parties” (P. du Plessis, Borkowski’s Textbook on Roman Law (5th edn), 5.2.3.2). Instead, the argument runs, consent to be married is what distinguishes marriage from other forms of cohabitation. It does not follow from this that cohabitation is not required. However, for the canonists this was used as the basis for a rule that everything did indeed depend on the intention of the parties, the sin of fornication thus being avoided where there had been consent to marriage without a marriage ceremony or co­habitation. For obvious reasons, marriage was an area in which canon law was particularly important, and it is from the principle outlined here that the Scots common law of marriage developed.

Roman influence extended beyond substantive law, for the procedure of the canon law courts was based on the Roman cognitio procedure (see Chapter 10). Through this medium, the Roman procedure influenced secular procedures. The Court of Session in Scotland is an example of a secular court the basis of whose procedures is so derived.

Canon law differed from Roman law in being directly applicable and in being capable of modification, through Church legislation. Nonetheless, it was said that neither Roman law nor canon law could be understood without the other. We have seen that the canon lawyers made extensive use of the Roman sources, but the process also worked the other way. It is not possible in practice to draw clear distinctions between different areas of law, and sometimes an issue of canon law would be relevant to an issue before the secular courts.