2. The Independence of the Canon Law

Such a bald statement of the path taken by the medieval church in the creation of its own law may raise the question of whether knowledge of the canon law sheds any light on the long history of Roman law.

Spiritual Principles

In the developed thought of the canon lawyers, the most fundamental reason for the canon law’s independence grew out of a perceived difference of purpose between the two laws. Both were part of God’s plan for the world, but according to the church’s jurists, the civil law’s principal goal was to provide order and security in society. It regulated men’s affairs to order to allow them to live together in tolerable harmony. Accepted principles of morality came into this, of course. History shows that human flourishing is impeded if the persons and property of human beings are not given at least a modicum of protection against depredation from without. The civil law aligned itself with the law of nature to enforce some basic rules of equity and to provide basic security to free men and women. But, at least in the opinion of the canonists, it did no more than that. It was an ‘earth bound’ system.

The canon law aimed at a higher - or at least a different - goal.

Admittedly, a firm jurisdictional divide between these two spheres of legal regulation, dependent upon a division of purpose, would have been difficult to fashion. Nor would it always have been desirable. Both of the ‘two swords’ were necessary. Both had been instituted by God. In the normal case, overlap existed between the two, and this was not necessarily a bad thing. In many parts of human life civil and canon law would each have a legitimate say. Adultery, for example, both upset civil society and endangered the souls of the adulterers. Roman law and the canon law alike contained many texts punishing the crime and regulating its con- sequences.⁵ Some of the subjects that modern assumptions would place on one side of the line or the other were regarded as common to both in earlier centuries - blasphemy, for example. Insulting God, the medieval jurists held, had disastrous consequences both for human society and for the individual blasphemer. It was not, then, a ‘victimless crime’.

Heresy was treated in like fashion. Contrary to the modern view allowing liberty in religious matters, the canonists thought that allowing individuals free choice in religion would invite disaster in society. It would mean the loss of souls to Satan and invite disorder among the people. The canonists thus did not regard the Roman law texts dealing with blas­phemy, or adultery and heresy, as ‘usurping’ the jurisdictional rights of the church, although they did insist that the canon law had an exclusive right to define each of these crimes. But they regarded most of the civil law’s texts on these subjects as proper ways of fulfilling the Roman law’s legitimate task of protecting civil society. Indeed, they took some comfort from the overlap. To them, it showed they were on the right track.

Amendments to the Law

Even where there was overlap, the difference in purpose remained, and legal consequences flowed from it. One of the most striking of these was that the canon law was considered as standing somewhere above the civil law in authority, precisely because its purpose was higher - at least, so the canonists thought. Despite the greater age and sophistication of the Roman law, they did not blush to draw this conclusion. It seemed logical. In its extreme form, it could lead to the position stated baldly by Pope Boniface VIII in Unam sanctam (1302): that on earth the church possessed both the spiritual and temporal swords. It had delegated the temporal sword to secular authorities, but that delegation was not irrevocable.

As noted, most of the ‘strong’ forms of this theory remained solely within the sphere of canonical theory - the canonical rule that the courts of the church could routinely intervene to correct a denial ofjustice in a secular court, for example. Europe’s kings did not accept that they were bound to follow every dictate of the church in the administration of justice, but neither did they refuse it categorically. A good example of what it meant comes from the law of prescription. All Western legal systems, the canon law among them, have held that lapse of time can extinguish a legal right to recover property or enforce a contract. The subject occupied several titles in both the Digest and the Code.⁷ The Decretals also contained a long title approving and adopting the same system.⁸ Some of the prescriptive periods adopted by the canon law were in fact taken over directly from the Roman law. However, there was a difference. The Fourth Lateran Council (1215), citing biblical authority (Rom. 14:23), enacted a constitution holding that ‘no prescription, whether canonical or civil, is valid without good faith’.⁹ The reason behind the constitution was avowedly spiritual. If a man possesses property that rightfully belongs to another, or if he withholds payment of a legitimate debt, knowing in each case that he is acting wrongfully, he will have intended to commit a sin, a sin for which he will ultimately have to account before God.

The Roman law, by contrast, had allowed any kind of prescription to ripen into title, at least in certain limited circumstances. Repose promoted peace in society. Stale claims should be allowed to die. Where many years had gone by, this approach made common sense. At some point, good order in society depends on drawing a curtain on antiquated claims. The church, however, did not see things that way. The canon law looked beyond the simple passage of years, and, as the glossa ordinaria put it, ‘the canons sought to correct the laws in this instance because of the peril to souls’.¹⁰ Whether this ‘correction’ would be accepted in Europe’s temporal courts remained an open question for centuries, but there is testimony from careful observers that some temporal courts did in fact adopt the canonical position.11

Additions to the Law

A second consequence of the differences in purpose between the canon and Roman laws made itself felt in the former’s greater attention to spiritual matters. Some of that attention was directed towards simple housekeeping matters - regulating the affairs of the clergy and establishing ways of protecting church property. But it went much further too. Correct belief and correct action in matters that affected a person’s salvation, the canonists thought, were the legitimate concern of the church’s law.

The contrast was not absolute, of course. The Corpus iuris civilis was the product of a Christian empire and a Christian emperor. The first title in the Code announced its congruence with the Holy Trinity and the Catholic faith. Later titles, including many in the Novels, went into more detail. They dealt with the duties and privileges of the clergy. They did not omit to regulate some matters we regard as peculiarly religious in nature - the consecration of bishops and the ordination of the clergy, for example.¹² The late antique Roman emperors even defined how marriages might be dissolved by mutual consent of the parties,¹³ a ruling that would be regarded with distaste by canonists six centuries later.

During the early middle ages, the canons supplemented these impe­rial laws to an extent, but with the creation of the Corpus iuris canonici the church sought to extend its regulatory role. In consequence it came to contain many provisions not touched upon in the Corpus iuris civilis. An illustrative if obscure example is a title in the Decretals containing a papal letter of Innocent III. It dealt with the purification of women after childbirth, the question being how long they had to wait before entering a church. Mosaic law had contained what we could call a mandatory waiting period. Was that biblical injunction still in force? Or had the coming of Jesus impliedly abolished it? Pope Innocent III held the latter view. The old law no longer obtained. ‘If after giving birth a woman wishes to enter a church in order to give thanks to God’, the Pope held, ‘no sin is involved, and no one should deny her entry to the church’.¹⁴ Indeed, hers was a praiseworthy act. From it grew the English custom, not yet entirely forgotten, called ‘Churching of Women’.¹⁵ It is only a small example of the multitude of rules and principles established in the canon law that found no counterpart in the Roman law’s texts. Some of them were regarded as of the greatest moment - the correct baptismal formula, for example. It was necessary for salvation. Its statement as a legal require­ment, as with many others, followed from a perception that the canon law’s transcendent purpose required rules not found in the temporal law.

Criminal Sanctions

A third consequence of the canon law’s special nature is visible in the law of sanctions. How should men and women who violated the law be treated? In the criminal law, the church’s problem was particularly acute. The whole matter could not simply have been left to the temporal power, because the church claimed a special jurisdiction over some crimes and also an exclusive power to discipline the clergy. In these areas, the question had to be faced: Should criminals be left to God, or should they be punished on earth? The former was sure to occur and sure to be accurate. It could claim biblical support (e.g., Rom. 14:10-12), and it fitted well with the church’s avowedly spiritual nature. But was it enough? Without the latter, crimes might seem to observers on earth to have been left unpunished.¹⁶ Sin might be encouraged. Without sanctions that others could see and fear, criminals might set a pernicious example. The Bible itself produced examples where holy men acted as judges of the people (e.g., Exod. 18: i). Jesus had not altogether rejected their example.

In accepting the power to inflict punishment, however, the church purposefully diverged from the course found in the Roman law. The blood sanctions that accompanied the ius gladii in the civil law were refused. Afflictive corporal penalties, such as sentences that entailed com­pelling forced work in the mines, were forsworn. Even forcible deporta­tion and exile played no part in the Corpus iuris canonici. In their place stood excommunication. It was to be the most serious sanction at the disposal of the courts of the church. It separated the contumacious sinner from receipt of the sacraments and, in its strongest form, from the communion of Christian people. It amounted to what St. Paul had described as the ‘handing over to Satan’ of the stubborn wrongdoer (i Cor. 5:5).

At the same time, excommunication was meant to be medicinal in effect. It was designed to lead the wrongdoer back to the right paths. Although in the sphere of civil remedies, the canon law adopted many of the remedies found in the Roman sources - restitutio in integrum or missio in possessionem, for instance - the only penalty for disobedience to these remedial orders at the disposal of ecclesiastical courts was excommunica­tion. Even the remedy of an interdict, by which performance of the sacraments within a territory was withdrawn or limited, amounted to a form of excommunication. A long title in the fifth book of the Decretals set out the basic rules.¹⁷ The Liber sextus enlarged them.¹⁸

Had the medieval church been satisfied with this self-denying ordi­nance, the history of Western law, including the relationship between the Roman and canon laws, would have been quite different than it was. But the situation seemed less than ideal to many among the lawyers of the medieval church. Too many Christians, they thought, were reacting to sentences of excommunication with indifference or contempt. Stronger medicine was needed. A theory was at hand to meet the need: the theory that the secular power was the natural helper of the spiritual. The ‘two swords’ were to cooperate for the common good. This was thought to mean that if medicinal remedies failed, the church could call upon the temporal authorities to intervene with harsher penalties. The church could not act - but at the church’s direction, princes could. And although Europe’s kings and princes did not all fall into line behind the clerical mandates that grew from the theory, many did so in at least a limited measure. In England, it led to a system whereby any person who remained excommunicate for more than forty days could be ‘certified’ to the king’s chancery, which would order him imprisoned until he obeyed the mandates of the church.¹⁹ In most parts of Europe, the temporal powers readily embraced the system under which the church would surrender defendants convicted of heresy to the secular arm, so that they could be put to death by the temporal sword.²⁰ The canonists thus preserved the letter of its prohibition against using any but spiritual sanctions even while they ignored its spirit. In some sense, it represented a compromise with reality.

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