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Brigitte Schliewen
GRATIAN (mid-12th century)
The Bolognese jurist Gratian is famous as the author of
Concordia discordantium canonum, better-known as the
Decretum. This collection of church laws remained in
use in law schools and courts for the rest of the Middle
Ages and beyond, until 1917.
Very little is known about Gratian’s life. He was
perhaps the Gratian who in 1143 in Venice, together
with two other Bolognese jurists, advised a papal leg-
ate on a legal issue. Assertions that he was a monk or a
bishop rest on precarious evidence. From the form and
contents of the Decretum, it seems clear that he was a
teacher of canon law.
The Decretum fi rst circulated in a short version pre-
served in four manuscripts and a fragment (not edited,
but for lists of its contents see Winroth 2000). This fi rst
recension was fi nished in 1139 or somewhat later; the
second recension was completed by the early 1150s (see
Friedberg 1879). It has been argued that Gratian was the
author of only the fi rst recension and that a student of
his who had also studied Roman law was responsible
for the second recension; for convenience, the two
supposed authors are called, respectively, Gratian 1
and Gratian 2.
The fi rst recension contained approximately 1,900
excerpts of ecclesiastical law, or canons. The canons
were accompanied by brief comments (dicta) in which
Gratian interpreted the legal texts and attempted to
harmonize contradictions among them. The fi rst recen-
sion was included, practically complete, in the second
recension, which added further canons so that the total
amounted to some 3,800. Only a few new dicta were
composed for this recension. The second recension
became accepted as the defi nitive collection of earlier
legislation (the ius antiquum), and later canonists only
rarely went back to earlier sources.
The legal texts quoted in the Decretum derive from
many kinds of sources, including general and provincial
councils, papal decretals, the writings of the church
fathers, the Pseudo-Isidorian decretals, penitentials, and
secular law. In most cases, the authors of the Decretum
took these texts not from the original sources but from
earlier canonical collections.
Gratian 1 used a larger set of sources than his succes-
sor; these sources included, notably, Ivo of Chartres’s
Panormia, Anselm of Lucca’s collection, Gregory of
Saint Grisogono’s Polycarpus, Alger of Liège’s De
misericordia et iustitia, and Collectio tripartite. Gra-
tian 2 based much of his work on only three sources:
Tripartita, Collection in Three Books, and Justinian’s
Corpus iuris civilis.
The third part of the Decretum, De consecrathne, was
added, complete, in the second recension. The structure
of the work is otherwise similar in both recensions.
In the fi rst recension, the fi rst part was a long treatise
without any internal divisions; in the second recension it
was divided into 101 distinctiones. The second part was
divided into thirty-six causae, outlining thirty-six more
or less complicated legal cases. In each case, Gratian iso-
lated two to eleven questions and treated them separately
in questiones. The subjects treated include the nature
of law, the hierarchy of the church, clerical ordination,
legal procedure, the power and duties of bishops and
the clergy, ecclesiastical censure, monasticism, heresy,
marriage, and penance. The only major subject added in
the second recension was law concerning the remaining
sacraments (in De consecratione).
In collecting a mass of law, Gratians 1 and 2 fol-
lowed in the footsteps of earlier canonists. Gratian 1’s
innovation was to apply the dialectic methods of early
scholasticism to the body of law that he had collected.
Foremost among his methods of reconciling seemingly
contradictory statements is the distinction between dif-
ferent meanings of the same word. Elsewhere, he points
out that a specifi c law concerns a special case, place,
or time. The methods were probably inspired by Ivo of
Chartres’s Prologue and Alger of Liège’s De miseri-
cordia et iustitia. There is no evidence that Gratian 1’s
methods were infl uenced by Aristotle, Peter Abelard,
or Roman law.
Gratian 1 shows very little knowledge of Roman
law from Justinian’s codifi cations; instead he made use
of pre-Justinian Roman law transmitted, for example,
through Lex Romdna Visigothorum and the Pseudo-
Isidorian decretals. His reliance on so-called vulgar
Roman law meant that his concept of many legal issues
appeared disturbingly primitive to Gratian 2, who in
such cases supplemented the fi rst recension with skillful
compilations of excerpts from Corpus iuris civilis.
Also, in purely canonical matters the work of Gratian
2 is characterized by more sophisticated jurispruden-
tial thinking than the work of Gratian 1. For example,GRATIAN