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Category: Canon Law

The Great Schism 1378-1417: Beyond Canon Law

The Great Schism marked the end of the ‘classical’ canon law period that had begun c.1140 with Gratian’s Decretum.  No originality is claimed for what follows.  It is merely a narrative of the historical facts from a legal perspective, drawing on the commentaries cited at the end.

Avignon

The Holy See made a confident entry into the 14th century.  Pope Boniface VIII (Pope 1294-1303) ‘occasionally dressed up in imperial insignia, boasting that he was emperor no less than pope’ (Kelly).  He uncompromisingly asserted papal supremacy in his famous bull Unam Sanctam (1302): ‘The temporal sword is in the power of Peter … It is absolutely necessary for salvation that every human creature be subject to the Roman Pontiff’.  He proclaimed the first Holy Year of Indulgence in 1300.

However, the Holy See’s political position was always precarious, to an extent that is unthinkable today.  Imagine if the present Pope were taken prisoner by a hostile state, or forced to leave Rome because of public hostility.  Yet such events were occupational hazards for his mediaeval predecessors.  The ink was barely dry on Unam Sanctam when Pope Boniface was imprisoned by the King of France.  He was later rescued, but died a broken man.

The city of Rome was ‘wretchedly unsafe’ on account of faction-fighting between the leading Roman families (Renouard).  Boniface’s successor, Bl Benedict XI (Pope 1303-1304), therefore sought safety outside Rome, but he died after only a few months.  The cardinals then elected Clement V (Pope 1305-1314), a Frenchman who was very much   under the King of France’s influence.  After moving around Provence and Gascony he finally settled at Avignon in 1309.

Avignon was not actually in ‘France’ at this time, in the sense that it did not belong to the French crown, but to the King of Naples (who was formally, and confusingly, entitled ‘King of Sicily‘).  The King of Naples/Sicily was nominally a vassal of the Pope.  Avignon also had the advantages of political stability, a pleasant countryside and climate, and access to the sea.

There were 7 Avignon popes in all.  All were French.  The move to Avignon was intended to be temporary at first, and the French popes all professed a vague desire to return to Rome some day.  The tombs of the Apostles were still at Rome, of course.  A second Holy Year was celebrated in 1350.  However, as Rome became ever more dilapidated and politically unstable for lack of effective papal government, so the prospect of returning there from beautiful Avignon became less and less appealing.

Pope Benedict XII (Pope 1334-1342) began construction of the Palais Vieux at Avignon.  Before then, popes had resided in the local bishop’s palace or in a monastery.  A purpose-built papal palace naturally gave an air of permanence to the ‘Babylonian captivity’ at Avignon.  Benedict’s worldly successor, Clement VI (Pope 1342-1352), built the sumptuous Palais Neuf for himself.

Then Bl Urban VI (Pope 1362-1370) showed serious interest in a return to Rome.  He required bishops to reside in their dioceses, so had to set a personal example.  He also sought reunion with the Greek Church, and could not credibly do this from outside Rome.  In the face of strong opposition from cardinals and curia he entered Rome in 1367 and stayed for 3 years in the Vatican.  (The Lateran palace had become uninhabitable, and no pope lived there again.)  There he received both the Holy Roman Emperor and the Byzantine Emperor.  However, he returned to Avignon just before his death.

The last Avignon pope, Gregory XI (Pope 1370-1378), delayed a permanent return to Rome for many years, but ‘saw the hand of God in the arrival of St Catherine of Siena at Avignon to urge his return’.  Curial opposition had not diminished (‘If only the mountains would move and stop our journey!’ one official prayed), but in 1377 Pope Gregory at last arrived in Rome.

The Disputed Election

After 70 years of papal absence the Eternal City was in a grievous state.  The people of Rome also bitterly resented French control of the papacy.  Such was the anti-French hostility that Gregory XI found it necessary to leave Rome, only a short time after he had arrived there, for Agnani.  He died just a year after his return from Avignon.

The Romans were adamant that the next pope should be ‘a Roman pope, or at least an Italian’.  That was the popular slogan.  In this hostile atmosphere the French cardinals who were to elect Gregory’s successor had good reason to feel uncomfortable, even frightened.  The conclave itself was invaded by the mob.  The cardinals had to pretend that an elderly Roman cardinal had been elected Pope.  Placated, the mob withdrew.

However, the cardinals really did elect a new, and Italian, pope, Urban VI (Pope 1378-1389).  The day after the incursion of the mob, they returned to the conclave to confirm the election.  They also publicised the election to the world, and officiated at the new Pope’s coronation.  For several weeks they assisted him (or tried to) in his official duties.  Only then, several weeks after the election and coronation, did the Great Schism begin.

It began when the French cardinals started to withdraw to Agnani.  There they pronounced the election invalid for duress.  If the election was invalid, this meant that Urban VI was not really Pope, so the Holy See was still vacant.  On this basis, the cardinals purported to elect a new pope.

However, the cardinals’ claim of duress is not supported by the known facts.  Commentators have rejected it: ‘the existing evidence would seem to show decisively that the undoubted pressure of the Roman populace [to elect an Italian pope] was not such as to incapacitate a body of reasonably honest and courageous men’ (Obolensky, p.416).  The cardinals’ conduct towards Urban VI after his election was inconsistent with their claim that they had elected him against their will, under threat from the mob.  Their repudiation of the election came too late to be credible.

The real reason for the cardinals’ desertion of Pope Urban was his appalling treatment of them.  The Holy Father suffered from a ‘great lack of self-control’ (Ullmann, p.45).  His ungovernable rages ‘made his face red and his voice hoarse’.  The cardinals were understandably aggrieved when he ordered them to eat only one course at meals, and worse was to follow.  There is no certain explanation for Urban’s behaviour, but ‘his unexpected elevation seems to have upset the balance of his mind.  He became very unstable, and subjected [the cardinals] to violent abuse and uncontrollable tirades’ (Kelly).  The abuse was physical as well as verbal.  He had one cardinal tortured in his presence, reciting the Divine Office so as to drown the poor man’s screams.

However, the cardinals did not attempt to declare the Holy See vacant on account of the Pope’s insanity, or to claim the power to make such a declaration.  Their desertion of Urban on account of his behaviour may be understandable.  But there were no legal grounds for disputing Urban’s title.  Mad and intolerable he may have been, but he was the Pope.  The cardinals’ action in purporting to elect a new pope was therefore schismatic.

After the French cardinals defected, Pope Urban grew madder and quarrelled with everybody.  Nevertheless, despite lengthy enforced absences from Rome, Urban remained in office till his death.  His successor, Boniface IX (Pope 1389-1404), strengthened papal control of Rome.  The French-led schism never gained a foothold there.

The Avignon Anti-Popes

The schismatic cardinals elected the most distinguished of their number as ‘Clement VII’.  The new anti-pope was actually Swiss, not French, and so could appear to rise above the French-Italian animosity.  He was personally more impressive than ranting, red-faced Pope Urban, but he was an evil man who lacked Urban’s excuse of madness for his crimes.  (When papal legate he had barbarously ordered the massacre of the inhabitants of a rebellious town.)  Most of the Roman curia defected to him.  Unable to enter Rome, ‘Clement’ returned to Avignon.  There he established an efficient administration and a glittering court.

Europe reacted to the Schism on political and national lines.  The Emperor recognised the Roman papacy, as did England.  France and her allies, including Scotland, recognised Avignon, as did Spain.  The Queen of Naples also supported Avignon when she quarrelled with Urban.  However, Italian public opinion, always resentful of any French claim to the papacy, remained consistently hostile to Avignon, whatever the political upheavals in Rome and Italy.

The Schism

Fortunately the Schism was a relatively peaceful, civilised affair.  Unlike the Reformation it did not start any wars or create any martyrs.  Those on the losing side, or losing sides, were treated magnanimously.  St Vincent Ferrer’s long and close association with Avignon (he was the anti-pope’s confessor) did not prevent his fairly rapid canonisation, though he submitted to Rome shortly before his death.

The confusion and disruption caused by rival papacies can be exaggerated.  The religious practice of the Latin Church (Divine Office, sacraments, popular devotions) continued undisturbed.  As the Schism followed existing secular divisions and jurisdictions this meant in practice that the Church within a particular jurisdiction acknowledged the same pope as the local ruler acknowledged.  Thus lesser clergy and laypeople were not much affected by it.  Two great English writers of the period, Geoffrey Chaucer and Mother Julian of Norwich, apparently do not even mention the Schism.

However, religious orders suffered from the Schism.  Unlike the secular Church they were constituted on a supranational basis.  Authority within them was usually centralised in a single superior or general chapter.  The division of the papacy therefore forced the centralised religious orders to divide as well.

The intellectual and political elites of Europe (secular rulers, universities, bishops, even the cardinals and curias of Rome and Avignon themselves) were scandalised by the Schism.  Rival papacies were, of course, incompatible with the God-given unity of the Church.  The Schism also discredited the Holy See’s claim over the Greek Church, and the Christian cause against Islam.

From the outset, therefore, there was strong elite pressure on the rival popes to end the Schism.  Reconciliation was impossible while mad Pope Urban reigned.  His death, and the election of a more suitable successor, undermined the anti-pope’s cause.  French support for Avignon weakened, and was even withdrawn altogether for a time (1399-1403), though it was later restored.

In principle, even the rival popes accepted the imperative of reconciliation.  Candidates for both papacies made solemn promises that, if elected, they would abdicate if this would facilitate reconciliation.  However, the promises were not kept.  The second and last Avignon anti-pope, ‘Benedict XIII’, was notoriously obstinate and has been condemned as ‘the principal cause of prolonging the Schism’ (Renouard, p.76).  For their part, the Roman pontiffs, conscious of their legitimacy, were reluctant to make concessions to Avignon.

Conciliarism

There were 2 proposals for ending the Schism:

(1) the via cessionis, inducing one or both rival popes to abdicate and

(2) the via concilii, superseding the rivals by a General Council (Obolensky, p.417).

Intellectually, the Church was not completely unprepared for the crisis of 1378.  The authority of the General, or Ecumenical, Councils of the Church, and their relationship to the Holy See, were much discussed by mediaeval canonists.

Surprisingly, perhaps, the deposition of the Pope, his involuntary removal from office, was by no means a taboo subject in mediaeval canon law.  There had long been a consensus among canonists that the Pope could be deposed for heresy.  The problem was how.  Canon law was unable to supply a procedure for effecting deposition (Tierney, p.96).

In principle, therefore, the Pope might be deposed for heresy by a General Council, but only the Pope could lawfully convene the Council in the first place.  If someone other than the Pope were to take the initiative and summon a Council, the summons and the Council would be invalid, as would any acts of the Council.  This may suggest that a heretical pope would have to consent to his own deposition.  Then again, if the Pope was a heretic, perhaps he would already, ipso facto, have lost his papal authority and would therefore be unable to depose himself!

The Great Schism created the additional problem of two rival popes.  Only the rightful Pope could summon a Council.  Gratian had anticipated this problem.  His solution was that ‘he alone shall remain in the papal chair whom the consensus universitatis [i.e the whole of Christendom] had elected’ (Ullmann, p.197).  But this ran into the same procedural difficulty that prevented the deposition of a heretical pope.  How could the consensus universitatis be lawfully articulated, so as to make a lawful election?

The inability of both canon law and the rival popes to resolve the Great Schism encouraged more radical thinking about the papacy itself.  (The deeply unattractive personalities of the rivals may also have encouraged this.)  The Schism ‘[made] men think more seriously about the institution [of the Church] … slowly there formed … the conviction that unity must be fought for, whatever the existing law of the Church might say’ (Jacob, p.7).

The intellectual movement known as conciliarism had many different variations.  None went so far as to reject papal authority altogether, as happened at the Reformation.  However, all versions proposed some constitutional limitation of papal authority by a General Council, perhaps through the agency of the College of Cardinals, or secular rulers.  Conciliarism, like canon law, saw the Church as a corporation, or hierarchy of corporations.  Unlike canon law, it held that papal headship was, to a greater or lesser extent, subject to the consent of the whole Church, the fidelium congregatio, as represented in General Councils.

Dissatisfaction with the Pope and the papacy was not new, of course.  Nor was resentment of the papal claim of plenitudo potestatis over the Church.  Conciliarism was not created by the Great Schism.  It had ‘penetrated academic circles many years before 1378’ (Obolensky, p.418).  It had been proposed, in a radical form, by William of Ockham (c.1285-1347) and Marsilius of Padua (1275-1342).

There were 3 practical manifestations of conciliarism in the 15th century:

(1) the Council of Pisa (1409)

(2) the Council of Constance (1414-1417)

(3) the Council of Basle (1431-1449)

Pisa (1409)

Pope Gregory XII (Pope 1406-1415) broke his promise not to appoint new cardinals.  All but three of his original cardinals deserted him and made common cause with some disillusioned Avignon cardinals.  Together they called the Council of Pisa.

This Council was therefore the creature of a second schism in the Roman papacy.  The difference is that this time the cardinals summoned, or purported to summon, a General Council rather than elect an anti-pope.

The Council met, and purported to depose both Pope Gregory and the Avignon anti-pope.  It then elected a new ‘pope’ of its own.  This was the first Council anti-pope, as distinct from the Avignon anti-popes.  When he died soon afterwards the Council elected a second anti-pope, ‘John XXIII’.

Constance

This Council anti-pope was initially a great success, and even entered Rome, something the Avignon anti-popes had never achieved.  However, the tide of politics soon turned against him and he fled to Florence.  The Emperor then forced him to summon a second Council.

The Council of Constance was the most significant manifestation of conciliarism.  It was dominated by Cardinal Francis Zabarella (1360-1417), the most eminent canonist of the day and author of De Schismate, an exposition of conciliarist theory.  Zabarella might have become Pope himself but he died during the Council.

The Council issued two momentous decrees

(1)  Sacrosancta, in which the Council claimed the authority of Christ for itself, and claimed the obedience of all Christians, including the Pope.  However, the Holy See never recognised this decree.

(2) Frequens, which called for Councils to be held at regular intervals.

Constance brought the Great Schism to an end, but the process by which it did so must be clearly understood.  A glib summary has it that the Council was confronted by 3 rival popes.  Nobody could decide who the rightful pope was, so the Council got rid of all 3, and then made a fresh start by electing a new Pope.  This narrative is misleading, because it confuses law and politics.

The Council had been summoned by an anti-pope, and therefore could have no legitimacy.  The Holy See could not recognise it as truly ecumenical.  However, the ageing Pope Gregory XII had at last been converted to the cause of reconciliation.  He therefore resolved the legal difficulty by convening the Council afresh.

The Pope’s action in (re)convening the Council conferred legitimacy on it from that time on.  Hence it is now recognised as the 16th Council of the Church.  Having thus convened the Council, Gregory then abdicated.  He died shortly afterwards.

A unique conclave comprising cardinals and representatives of the Council then elected a new pope.  He took the name Martin V (Pope 1417-1431) because the conclave was celebrated on St. Martin’s Day.  Martin V’s pontificate began exactly 100 years before another Martin inaugurated the Reformation by nailing his 95 theses to the church door at Wittenberg.

As well as receiving Pope Gregory’s abdication, the Council deposed both the Avignon and the Council anti-popes.  The Council anti-pope submitted to Rome.  The Avignon anti-papacy lingered on obscurely for some years after 1417, but the Great Schism had effectively been healed.  Avignon itself acquired a lasting stigma from its unhappy associations, and was never again a papal residence.

Thus the Council of Constance solved a political problem.  Pope Gregory was the rightful Pope but he was incapable of healing the Schism, so he had to go.  The two anti-popes had no legal title, and no political value either, for they too were incapable of healing the Schism.  The Council ended the Schism by overcoming the old Pope’s intransigence, prevailing on him to abdicate, repudiating the two anti-popes and effecting the election of the new Pope.

This was undoubtedly a great political achievement, but it did not change any law.  There were not ‘three popes’ in 1414, or at any other time.  There was only ever one Pope.  Pope Gregory was not deposed.  The Council of Constance started along the via concilii, but it then changed direction and ended on the via cessionis.  It did not create a new source of authority.  Conciliarism as a religious doctrine did not prevail at Constance.  The Holy See survived without renouncing any of its jurisdiction.

A canonist explains that ‘Gregory XII’s fresh convocation and authorisation of the Council were a mere matter of form [but] this form was the price to which he attached his abdication, and it meant … that the [Council] should formally acknowledge him as the lawful Pope, and …. confess that its own authority dated only from that moment, and that all its previous acts … were devoid of all ecumenical character’.

He continues: ‘The [Council’s] recognition of Gregory XII’s legitimacy necessarily includes a similar recognition of [all the post-1378 Roman popes] and the rejection of the [anti-popes]’ (quoted by Pastor, p.201).

Basle (1431-1449)

Although the Holy See had not compromised its claims at Constance, conciliarism had become a powerful political force which could not be ignored.  ‘At this epoch, the idea of a General Council exercised a strange fascination on men’s minds.  It was looked upon as the cure for all the ills of the Church’ (Pastor, p.288).  Martin V therefore reluctantly convened the Council of Basle that had been prescribed by Frequens.

It was at Basle that conciliarism made its final bid for control of the mediaeval Church.  The Council published radical decrees abolishing the papal reservation of benefices (1433) and papal first fruits and annates (1435) (an early target of the English Reformation).

Martin V died shortly after convening the Council, and was succeeded by Eugene IV (Pope 1431-1447).  The new Pope’s position was weak.  He tried to dissolve the Council in 1433 but was forced to rescind the dissolution.  The political situation at Rome was so precarious that he fled to Florence and remained there for 10 years.

However, the Council was becoming discredited by its radicalism and crude political bias (pro-French, anti-Italian).  Pope Eugene gained ascendancy over it by his dialogue with Constantinople.  He held out the dazzling prospect of an end to the Greater Schism, that between the Greek and Latin Churches.  With Greek agreement, he ordered the Council to move from Basle to Ferrara (in 1437), then to Florence (in 1439).  Full of ecumenical enthusiasm for the reunion of Christendom, most of the Council Fathers obeyed the Pope’s command and left for Italy.

Of course, the Council of Ferrara-Florence proved a failure.  Reunion was agreed there, but it was never accepted by the Greek Church.  Constantinople fell to the Turks in 1453.  At the time, however, Ferrara-Florence seemed an outstanding ecumenical success.

The real success of Ferrara-Florence was that it averted a second major schism in the Latin Church.  The few Fathers who refused to leave Basle purported to depose Pope Eugene in 1439, and elected a third Council anti-pope, ‘Felix V’.

However, Eugene defeated this last schism by adroit diplomacy, ensuring support for the Holy See throughout Germany and Italy.  He was assisted Aenea Silvio Piccolimini, the celebrated memoirist and future Pope Pius II, who had originally supported ‘Felix’ and then defected to Rome.  ‘Felix’ himself submitted to Eugene’s successor, Nicholas V.

Legacy

The Council of Constance had a lasting intellectual and cultural influence.  While the Council met ‘Constance was for three years the metropolis of Europe’ (Obolensky, p.420).  It must have been a scintillating experience: ‘The world had never before beheld an assembly at once so numerous and intellectually so brilliant … the opportunities of intercourse between learned and cultivated men, afforded by these Councils, exercised an important influence on general civilization, and especially on the renaissance in literature’ (Pastor, p.256).  Constance ‘inaugurates a new epoch in the history of the search … for manuscripts … the impetus given to the interchange of thoughts … cannot be exaggerated.  The dawn of humanism, north of the Alps, dates from this period’.

This account suggests that, just as classical canon law ended when the Great Schism began, so the Renaissance began when the Schism ended.

Conciliarism addressed questions of authority and government in the Church that canon law had apparently failed to answer.  It may therefore have given birth to modern political science, the systematic study of political power.  It has been hailed admiringly as ‘part of the liberal tradition of Europe’ (Jacob, p.2).

Conciliarism again became fashionable at the Reformation: ‘[conciliarist] ideas, and those ideas alone, form the raison d’etre of the Church of England … federalism in the Church … preserving the unity of the whole while securing the independence of the parts’ (Figgis, p.236).  The 39 Articles give qualified approval to General Councils (Article 21), but warn that Councils are not infallible and can only be held with the permission of the secular authorities.  (The Council of Trent was meeting at the time.)  The English text of the 39 Articles uses the term congregation to describe the Church (Articles 19 and 23), though the Latin text only uses the term coetus once (Article 19) and otherwise sticks to ecclesia.

Yet the reformers did not succeed in making conciliarism work in practice.  There have never been any Protestant ‘ecumenical councils’ comparable to the pre-Reformation councils.  Nor was any ‘federal’ unity achieved.  Instead the Reformation resulted in the very evil that conciliarism had sought to prevent, the fragmentation of Latin Christendom by secular political jurisdiction (now euphemistically described as ‘dispersed authority’).

After initially close contact in the 16th century (when the 39 Articles were written) the Church of England distanced itself from European Protestantism.  The creation of the worldwide Anglican Communion in the 19th century was due to the expansion of the British Empire, nothing to do with mediaeval conciliarism.  Whatever the publicity they attract, modern supranational assemblies such as the Lambeth conferences and primates’ meetings are mere informal contacts with no legal authority.

Mediaeval conciliarism also gave birth to Gallicanism in the French (Catholic) Church.  Jean Gerson (1363-1429), the ‘Father of Gallicanism’, was another luminary at the Council of Constance.  Gallicanism perished in the French Revolution, but conciliarism was recalled nostalgically in the 19th and 20th centuries by those who regretted the ultramontane papalism of the Catholic Church at this time.  The papacy was again considered an obstacle to Christian unity.  Not, as in 1378-1417, because it was weak and divided, but because it was too strong and autocratic.

The second Vatican Council modified modern papalism with its doctrine of the collegiality of the Pope, successor of Peter, and the bishops, successors of the other Apostles.  Pope and bishops together constitute one Apostolic College.  (The Pope who summoned this Council, St John XXIII, took the same name and number as the second Council anti-pope, thereby proving the latter’s lack of legitimacy.)

However, any resemblance of modern episcopal collegiality to mediaeval conciliarism is superficial.  Vatican II made clear that ‘the college of bishops has no authority [without] its head, the Roman Pontiff … and without any lessening of his power of primacy over all … [which] he can always freely exercise’ (Lumen Gentium (1964), para 22).

The Code of Canon Law 1983 confirms that the Pope may abdicate, but he must do so ‘freely’, and the abdication does not have to be accepted by any other authority (canon 332.2).  He may not be deposed against his will.  The Holy See ‘is judged by no one’ (canon 1404).  It remains a canonical offence to attempt to impugn a papal decision before an ecumenical council or the College of Bishops (canon 1372).

 

Commentaries referred to

Figgis, J.N, Churches in the Modern State (London 1913)

Jacob, E.F, Essays in the Conciliar Epoch (2nd ed, Manchester 1953)

Kelly, J.N.D, The Oxford Dictionary of Popes (OUP 1986)

Knowles, D and Obolensky, D, The Christian Centuries (vol 2, Clarendon 1969)

Pastor, L, History of the Popes (ed F.I Antrobus 1906)

Renouard, Y, The Avignon Papacy (1954, transl D Bethell 1970)

Tierney, B, Foundations of Conciliar Theory (CUP 1955)

Ullmann, W, The Origins of the Great Schism (London 1948)

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Classical Canon Law

No originality is claimed for this paper.  It is based on a review of English-language commentaries, and is intended to provide clarification for those unfamiliar with the subject, including the author.  The commentaries referred to are listed at the end.

The years 1140 to 1375 are known as the ‘classical period’ of canon law, because it was during this time that canon law ‘attained its definitive shape and most enduring characteristics’ (Brundage, p.48).  Gratian’s Decretum inaugurated classical canon law.

The Decretum

Gratian was by no means the first canonist at Bologna.  The study of canon law at that university (the oldest in Europe) had started in the wake of the ‘investiture controversy’ between the papacy and the emperor, which had erupted in the century before the classical period started (Ullmann, p.164).  There were early attempts to create a canonical jurisprudence by Pope Urban II (Pope 1088-99) and Ivo of Chartres (d.1115) (1947 report, p.20).

Ivo of Chartres identified two kinds of law:

(1) law laid down by God in the Bible or in ‘natural law’ and

(2) law made by the Church in the course of history.

The purpose of both laws was the salvation of souls.  Ivo’s work, the Panormia, was the principal text book of canon law before Gratian’s Decretum (1947, p.23).

Another early canonist, Bernold of Constance (d.1100), made the discovery that ‘many of the divergences in [canonical] texts … were due to their historical context: they did not represent contradictions in the law so much as the application of the law in a changing historical scene’ (1947 report, p.21).  Bernold also discovered a ‘hierarchy of texts … a canon of a general [ecumenical] council was to be followed in preference to a canon of a local synod, and [papal legislation] in preference to the canon of a general council’.  These discoveries anticipated Gratian’s work.

Little is known of Gratian personally.  He may have been a monk, as the Decretum apparently shows a ‘strong emphasis on and detail concerning monastic affairs’ (Christensen, p.x).  The Decretum was probably written c.1140, and there is evidence that Gratian was already deceased by the 1160s.

The Decretum has 3800 texts, arranged in three sections:

(1) the nature of law and authority, including Church discipline and orders

(2) a discussion of 36 fictional cases (similar to ‘moots’)

(3) sacraments and worship (p.ix).

Gratian”s source material was enormous, ‘from the Decalogue to the enactments of contemporary Councils’, and included scriptural and patristic texts, papal documents and ‘rulings of a millennium’s worth of councils and synods’ (p.xii).  However, Gratian probably consulted only a relatively small number of existing collections for his material.  Early canonists made particular use of the writings of the great Latin fathers, Cyprian, Ambrose, Augustine and Gregory the Great (1947 report, p.22).

Helmholz gives an account of one of Gratian’s fictional cases (pp.39-40).  Is it lawful for a bishop to appoint his own successor by will?  There was some authority to support such an appointment.  The Pope had on one occasion permitted an Archbishop of Mainz to name his successor.  St. Peter, the first Bishop of Rome, had, according to tradition, nominated Clement to succeed him.

On the other hand, an early Council had ruled that a bishop was not at liberty to choose his successor.  The Bible records that Moses was given a special power to choose his successor, but he had picked someone from outside his own tribe.

From these authorities Gratian deduced the admirable principle that the appointment of a bishop should not be governed by familial connections but by merit.  He therefore concluded that it would be unlawful for a bishop to appoint his own successor by will.

Gratian’s method was to harmonize the law by identifying distinctions between apparently contradictory rules, distinctions which now seem obvious, but which were hardly understood in his day:

(1) one rule was later in time, and so superseded an earlier rule

(2) different rules might apply in different places

(3) a rule made by a superior authority overrode one made by an inferior authority

(4) one rule was of general application, while another was intended to apply only by way of an exception to the general rule (Reichel, p.105).

The full title of the Decretum is Concordantia Discordantium Canonum, or ‘The Harmony of Discordant Canons’.

The Decretum was thus a ‘comprehensive effort to standardize the canon law’ (Christensen, p.xvi).  It has been called ‘the most successful textbook ever written’ (Ullmann, p.165).  However, there is no extant ‘base manuscript’ of the work.  The edition now most commonly referred to was produced by a papal commission in 1582, some 440 years after the original work.  Other editions were produced in Germany in the 18th and 19th centuries (Christensen, p.xix).

The classical canonists helped create scholastic methodology (Brundage, p.154).  Gratian lived and wrote 100 years before St. Thomas Aquinas, who made extensive use of the Decretum in his own writings.

Decretals, Collections and the Corpus

Pope Alexander III (Pope 1159-81) had been Gratian’s pupil, and turned his theories into law (Ullmann, p.167).  Alexander III and Innocent III (Pope 1198-1216) were the outstanding ‘lawyer-popes’, though other popes of this era had a legal background too (1947 report, p.26).  The papacy became ‘the great prize of the legal profession’.

The papal law of this era mostly took the form of rescripts, usually described as decretals (Brundage, p.160).

Kemp cites a decretal which took the form of a letter from the Pope to a French archbishop, in which he criticizes the constitution of the archbishop’s cathedral (pp.19-20).  The cathedral constitution apparently ‘introduces an inequality between the old and the new canons’ i.e the cathedral clergy.  The Pope’s letter ‘lays down the principle that he who makes a law for another should be prepared to obey it himself’.  This example illustrates how classical canon law may have worked in practice.  It did not impose any radically new regime, but rather rationalized and corrected existing laws and customs.

Kemp concludes that, while some decretals have a legislative character, most (including the example discussed above) resemble judicial decisions, ‘leading cases’, which establish principles and precedents, rather than legislation in the modern sense (p.21).  All political authority at this time was understood in judicial terms.  The Pope was the supreme judge, rather than the supreme legislator (Helmholz, p.38).

As ever more decretals issued from the papal chancery, collections of decretals began to be made by individuals for their private and professional use (Reichel, p.111).

Worried that forged decretals were circulating, the popes commissioned official collections.  Pope Gregory IX (Pope 1227-41) commissioned St. Raymond of Penyafort (c.1185-1275), a Dominican friar, to compile a collection of his decretals (Reichel, p.113).  The total compilation came to five books, though they were collectively known as the Liber Extra (presumably because they were extra to the Decretum, which was considered the standard work of canon law).

In 1234 the Liber Extra was finally dispatched to the universities of Bologna and Paris, with Pope Gregory’s instruction ‘that all persons should make use of this compilation only, as well in judicial proceedings as in the schools [i.e universities]’.

In 1298, Pope Boniface VIII (Pope 1294-1303) dispatched a further collection of decretals, the sixth book or Liber Sext issued since Gregory IX’s collection (p.116).  Pope Clement V (1305-14) ordered the last official collection of decretals, known as the Clementines, in 1317 (Brundage, p.198).

Brundage writes that ‘By 1325 decretal letters had ceased to be the principal vehicles for legal innovation in the Western Church … the decisions of the papal courts, especially the Roman Rota, assumed an increasingly prominent role’ (p.56).

The Corpus Iuris Canonici was not compiled until the early 16th century, long after the classical period of canon law had come to an end (1947 report, p.26).  Thus the classical canonists would not have understood canon law in terms of a single Corpus.  That came much later.

Like the Decretum, the compilation of the Corpus was the work of a private individual, a Parisian publisher called Jean Chappuis.  The Corpus comprised six parts:

(1) Gratian’s Decretum (c.1140)

(2) The Decretals or Liber Extra of Gregory IX (1234)

(3) The Liber Sext of Boniface VIII (1298)

(4) The Clementines of Clement V (1317)

(5) The 20 bulls or Extravagantes of John XXII (Pope 1316-34) (1500)

(6) The Extravagantes Communes, miscellaneous papal decretals issued by popes from Boniface VIII to Sixtus IV (Pope 1471-84) (1500).

The Extravagantes were a small private collection of decretals compiled in 1325-7 by Zenzelinus de Cassanis (d.1354).  The Communes were compiled by Chappuis himself (Brundage, p.199).

Thus the Corpus was a combination of private enterprise and public authority.  Three parts of it, (1), (5) and (6) were private collections.  The other three parts (2) to (4), were official papal collections.

Tierney points out that ‘The Decretum was radically different in structure from the later parts of the Corpus Iuris Canonici.  They [the papal collections] were codes of authoritative law.  The Decretum was a running argument … [with] the judicious citation of texts on both sides of all questions discussed’ (pp.24-5).  In other words, the collections of decretals comprised legislation and judicial decision, whereas the Decretum was an academic commentary.

At the end of the 16th century a lawyer from Lyons, Peter Matthew, made a collection of decretals which was intended to form the ‘seventh book’ of the Corpus (Reichel, p.121).  However, the book was not a success and was placed on the Index in 1623, on account of its ‘many inaccuracies’ (p.121).  A papal commission also worked on an intended seventh book of the Corpus, but this too was suppressed (pp.121-2).

Academic Commentary

Referring to the mediaeval decretals Brundage observes that ‘This spurt of new [papal] lawmaking was stimulated, at least in part, by the success of Gratian’s work, for the teachers who expounded his Decretum discovered in the process numerous problems for which existing canon law either furnished unsatisfactory solutions or none at all’ (p.53).

However, the profusion of new papal legislation rendered the Decretum out of date as the old laws that had been the subject of the Gratian’s ‘distinctions’ were superseded (1947 report, p.26).  The Decretum was mostly based on theological material, but in the era of the decretals, canon law finally emerged as a separate academic discipline from theology (p.30).

Around the authorised papal collections that came to form the Corpus, there grew up ‘a mass of commentaries and explanations at the hands of a body of expounders and teachers’, in other words, academic lawyers (Reichel, p.125).  Academic commentary usually took the form of a gloss, a comment endorsed on the margin of a legislative instrument.

There were two categories of academic commentator, decretists and decretalists.  Some commentators were both decretists and decretalists (Tierney, p.87).  However, while the decretists wrote commentaries on Gratian’s work, the Decretum, the decretalists arranged, and commented upon, the papal laws (i.e decretals) that appeared after the Decretum was written (Reichel, p.28).

Ullmann suggests that there was an ‘intimate connection’ between the schools of canon law (especially Bologna) which studied the laws, and the papacy which decided and made the laws (p.163).  There was a circular relationship between the papacy and academe.  The commentators’ interpretation of canon law precipitated new papal legislation to resolve anomalies and fill lacunae.  This new legislation became in its turn the subject of further academic comment, thus prompting further legislation, and so on.

Reichel writes that the canonists’ method of interpreting papal legislation by the scholastic method, and the acceptance of this method in courts throughout western Christendom, ‘made the canonists’ exposition of the law supreme and the school of canonists the lawmakers of the Church’ (pp.134-5).

Henry of Segusio (d.1271, the Cardinal-Bishop of Ostia and therefore known as Hostiensis) was the author of a commentary known as the Summa or Summa Aurea (‘the golden summa’) (Brundage, p.214).  This was an introduction to the decretals of Pope Innocent IV (Pope 1243-54), ‘in which the severer views of that pope were somewhat toned down’ (Reichel, pp.130-1).

Johannes Andreae (c1270-1348), a professor at Bologna (and victim of the Black Death) was another decretalist.  He wrote a treatise called the Novella.  He was assisted in his academic work by his daughter.  She read his lectures to the students, though ‘for fear of distracting attention by her great beauty lectured from behind a curtain’ (Reichel, p.132).  This indicates that the teaching of canon law was a profession open to married laymen as well as priests and religious.

Eminent canonists received gushing soubriquets, presumably bestowed by admiring pupils (Reichel, pp.130, 132, 134).  Hostiensis was ‘the light of the law’ and ‘sovereign of both laws’ (iuris utriusque monarcha).  Johannes Andreae was ‘the fountain and trumpet of the law’ (iuris canonici fons et tuba).  Another canonist, Bartolus of Sassoferrato (b.1313) was acclaimed ‘the light and star of a lawyer’ (iuris consulti), master of truth, lamp of right and guide of the blind’.  Nicholas of Tudeschi (1386-1453, Bishop of Palermo and known as Panormitanus) was also ‘the light of the law’ (lucerna iuris).

The difference between canon law and English common law was that the latter developed by case law, decided by judges in courts, whereas canon law was based on legislative texts with superadded academic commentary.  The ius commune was dominated by law professors rather than judges (Helmholz, pp.30, 23).

However, the contrast should not be pressed too far.  As Kemp points out, much papal ‘legislation’ actually resembled case law, while English common law was taught after a fashion, but in the inns of court rather than at university.  It may be that the essential difference between English common law and canon law was that the former was a much smaller scale activity than the latter.  The distinction between studying and deciding English law was therefore less clearcut.  The courts of Westminster Hall would have been a small jurisdiction then by comparison with the ecclesiastical courts of all Europe.

Canon Law and Roman Law

The development of canonical jurisprudence was undoubtedly influenced by the study of Roman or ‘civil’ law.  The study of Roman law had revived at Bologna in the century before Gratian wrote.  However, Gratian and other early canonists worked primarily from theological material, not Roman law texts.  The study of Roman law was initially a somewhat controversial activity.  The devout were suspicious of Roman law on account of its pagan origins (Winroth, p.184). 

Helmholz explains that canon law was ‘separate and distinct from both theology and Roman law, though it overlapped with both in its coverage and sources’ (p.5).  Canonists ‘made constant use of Roman law, but they did not feel themselves bound by its rules’.  There was apparently a common saying in mediaeval times that ‘Ecclesia vivit lege Romana‘ (p.89).

Gratian adopted from Roman law the tripartite division of laws into those concerning things, persons and actions (Reichel, pp.106-7).  The Decretum also contains about 200 texts (out of 3800) drawn from Roman law (Christensen, p.xiv).

Rodes describes canon law as ‘Christian theology structured by Roman law’ (p.46).  He writes that ‘the theological principle of the primacy of the Pope was given its juridical form … through analogy of the place of the Emperor in the Roman law’ (p.47n).  Helmholz confirms this (p.20).

Kuttner suggests that it was only through the medium of canon law that Roman law came to be the law of much of Europe, instead of being merely a subject of academic study (Role, pp.353-4).  The most visible use of Roman law by canon law was to regulate the procedure of the ecclesiastical courts (Kemp, p.19).

However, biblical theology and Roman law did not always blend smoothly.  For example, the Roman and Jewish ideas of marriage were not easy to reconcile.  The result of this difficulty was that ‘mediaeval canon law vacillated … between consent [Roman law] and marital intercourse [Jewish-biblical] as the effective consummation of the marriage’ (Rodes, p.47n).  It is arguable that this uncertainty about the true nature of marriage is still apparent in the modern Western attitude towards homosexual ‘marriage’, which can be justified on the basis of mutual consent, but which cannot have any basis in marital intercourse, which is particular to heterosexual relations.

The great difference between canon law and Roman law was that the latter was, if not a ‘dead’ law, then ‘a closed body of texts’ (p.6).  The whole of Roman law had been written in the later Roman Empire.  Canon law, by contrast, was still being made by Popes and councils.  Canon law therefore had a dynamic character, while Roman law was static.

There were separate canon law and Roman law faculties in mediaeval universities, a clear indication that canon law was regarded as a separate discipline (Helmholz, p.6).  Nevertheless, the canon law on most subjects was influenced by Roman law (p.18).  Notwithstanding the separate faculties, the two laws converged into a ius commune (p.20).

References to the ius commune appear from the late 13th century onwards (Brundage, p.60).  This mediaeval convergence explains why most modern law degrees are still known formally as laws degrees (plural) denoted by abbreviations such as LL.B and LL.D.

Thus the notion of a ius commune comprising both canon law and Roman law, predated the compilation of the Corpus Iuris Canonici by a long time.  This Corpus was itself a conscious imitation of the Emperor Justinian’s Corpus Iuris Civilis of Roman law.

Evaluation

Kuttner describes the achievement of the mediaeval canonists as ‘a consistent, rationalized ecclesiastical jurisprudence’, developed by a ‘slow process of organizing thought interlocking with customs and practices that differed [widely] from each other’ (Methodological Problems, p.541).  The canonists created a science of canon law by ‘dealing in first principles, and giving logic and cohesion to the actual law in force’ (1947 report, p.20).

Canonists saw their subject as ‘a universally applicable norm of right living in a Christian society’ (Ullmann, p.179).  Thus mediaeval canon law was much more than a merely ‘Church’ law regulating ecclesiastical institutions and persons.

On the contrary, Helmholz writes that canon law ‘was not confined to ecclesiastical subjects straitly defined … It reached subjects as diverse as theft, wills and succession to property, and the sale of goods’ (p.1).  The purpose of canon law was ‘to regulate the whole life of the Church’ (p.4).  This meant that laypeople and secular rulers were subjects of canon law, not merely clergy and Church courts.  Mediaeval canon law was a ‘pan-European system of law’ (p.5).

The authors of the 1947 report, who were seeking to persuade an apathetic Church of England to adopt a programme of law reform, were full of admiration for the mediaeval lawyer-popes: ‘Churchmen gladly accepted their law from these mitred lawyers … because their court was the best place in Europe at that time to go for good law’ (p.5).

Kuttner argues that the canonists’ doctrine of ‘just war’ forms the basis of modern international law.  The canon law of corporations or ‘corporate representation’ laid the foundations of constitutional law.  The doctrine of equity in English law originated in mediaeval canon law.  The doctrines of mens rea and ‘medicinal’ punishment have greatly influenced modern criminal law (Role, p.352).  According to Brundage, the canonists’ approach to criminal law ‘lies at the root of most modern theories of criminal justice’ (p.171).

Gratian’s Decretum provided a theory of sovereignty, with the Pope as ‘direct sovereign lawgiver of the Church’ (1947 report, p.25).  The decretalists, commentators on papal laws, were more avowedly papalist than the decretists (Tierney, p.88).  Classical canon law was also the ius pontificium.

However, the papalism of the classical canonists may have been exaggerated by historians, because in the controversies that followed the Great Schism of 1378, conciliarists as well as papalists ‘drew their weapons from the canonists’ armoury’ (Tierney, p.13).  The deposition of a reigning pope was by no means a taboo subject in mediaeval academe.  Gratian himself had apparently asserted that the Pope could be deposed for heresy or schism (p.8).

The canonists had a robust attitude to outdated law, holding, in contrast to Roman lawyers, that laws ceased to have effect when the reason that had prompted their promulgation had ceased to exist (Lacey, p.173).

A possible shortcoming of canon law was that neither canonists nor Roman lawyers observed any doctrine of judicial precedent similar to that of modern English law (Brundage, p.159).  This could give rise to uncertainty and inconsistency.

Mediaeval canon law may have had a didactic, hortative character not found in modern law and therefore not easy to understand now.  It was a form of preaching rather than regulation, ‘the basis for the imposition of a moral ideal through the exercise of pastoral solicitude’ (Rodes, p.65).  The purpose of canonical sanctions was the sinner’s repentance and salvation, not his punishment, nor the compensation of his victims (if any) nor the deterrence of others from similar offences (p.93).

Classical canon law is most often criticised for its supposedly excessive legalism.  One 19th century writer asserted that ‘The worst corruption of the middle age lay in the transformation of the sacerdotal hierarchy into a hierarchy of lawyers’ (quoted by Reichel, p.126).

Kuttner observes that classical canon law has been depicted as a corrupting, even pagan, influence on the Church.  The use of concepts and techniques borrowed from Roman law was alleged to have debased the ‘sacramental’ character of earlier canon law into a ‘juristic and corporational epoch’ (Reflections, p.202).

Kuttner rejects this view, pointing out that even the early Church dealt with its proprietary and material affairs just as much as the late mediaeval Church (p.205).  He observes that ‘The interlacing of the ‘spiritual’ and the ‘material’, corporate side of the Church is as old as the Church herself … It is grounded in the dual nature of the Church as a spiritual communion and as a corporate society at the same time … The dual aspect ultimately flows from the mystery of the Incarnation and returns … on all levels of ecclesiastical life’ (Role, p.356).

However, Kuttner concedes that the effects of classical canon law were not all beneficent.  Canon law did, indeed, become infected by a petty bureaucratic legalism, with the result that ‘the law would become an end in itself’ (Reflections, p.208).  The practice of granting dispensations was abused as a device for flouting and evading just laws.  The papacy acquired unedifying ‘imperial’ pretensions.

The canon law’s treatment of marriage has also been criticised.  Lacey and Mortimer roundly assert that ‘mediaeval canon law failed miserably as guardian of the holy estate’ (p.138).  The complexity of the law concerning the various impediments to marriage, and dispensations from those impediments, made an immense number of marriages precarious, and led to a ‘general weakening of the sense of sanctity and indissolubility of the marriage bond’ (pp.138-9).

The End of Classical Canon Law

The 1947 report notes that ‘The reign of [Pope] Clement V [Pope 1305-14] brings to an end the age of papal codes’ (p.36).  Thereafter the legislative activism of the papacy abated.  Later papal legislation ‘consisted chiefly of rules governing the procedure of [papal] bureaucracy’.  The academic canonists for their part ‘were content to admire the finished structure and to comment on it and explain it’.

Nicholas of Tudeschi was ‘the last of the great canonists in whose method sound matter had not as yet been displaced by inept formality’ (Reichel, pp.133-4).

The classical period of canon law ended just as the Great Schism of rival papacies began in 1378.

Protestants never liked classical canon law because of its associations with the papacy and because of the supposed corruptions discussed by Kuttner.  Martin Luther pitched a copy of the Liber Extra into the fire to symbolize his rejection of papal authority (Lacey, p.182).  After his break with Rome, King Henry VIII forbade the teaching of canon law at Oxford and Cambridge.

During the Counter-Reformation Pope Pius IV (Pope 1559-65) even forbade comments and glosses on the decrees of the Council of Trent (Reichel, p.121), which can hardly have encouraged the study of canon law.  Kuttner writes graphically of post-mediaeval canon law that ‘it had become like a tropical forest in which living and dead growths are hopelessly intertwined’ (Methodological Problems, p.540).  It lost its intellectual dynamism as ‘The free interplay of judicial and academic spheres became replaced by the [Roman] bureaucratic process’ (Reflections, p.208).

List of Works Cited

Brundage, J.A, Mediaeval Canon Law (Longman, 1995)

The Canon Law of the Church of England (Report of Archbishops’ Commission, SPCK, London, 1947, ‘the 1947 report’)

Christensen, Katherine, Introduction to Gratian, The Treatise on Laws translated by A. Thompson and J. Gordley (CUA Press, 1993)

Helmholz, R. H, The Spirit of the Classical Canon Law (University of Georgia Press, 1996)

Kemp, E.W, An Introduction to the Canon Law of the Church of England (Hodder and Stoughton, London, 1957)

Kuttner, Stephan, ‘Methodological Problems concerning the history of Canon Law’, Speculum (1953)

– ‘Reflections on Gospel and Law in the history of the Church’ (1976)*

-‘ The Role of Secular Law and Institutions in the History of Canon Law’ (1953)*

* published in Studies in the History of Mediaeval Canon Law (Ashgate, 1990)

Lacey, T.A and Mortimer, R.C, Marriage in Church and State (1912-47)

Reichel, Oswald J, The Canon Law of Church Institutions, volume 1 (SPCK, London, 1922)

Rodes, Robert E,  ‘The Canon Law as a Legal Obligation’, Natural Law Forum (1964, p.45)

Tierney, B, Foundations of the Conciliar Theory (CUP 1955)

Ullmann, W, Law and Politics in the Middle Ages (CUP 1976)

Winroth, Anders, ‘Roman Law in Gratian and the Panormia’, in Brassington, B.C and Cushing, K.G (eds), Bishops, Texts and the Use of Canon Law around 1100 (Ashgate, 2008).

The End of Canon Law in England

The ‘papal’ character of mediaeval canon law in England was the subject of the famous ‘Stubbs-Maitland’ controversy at the end of the 19th century. 

Bishop Stubbs, reckoned the greatest historian of his day, argued that there was a distinctively English canon law in mediaeval times, notwithstanding the nominal allegiance to Rome.  This thesis is set forth in the Bishop’s contribution to the report of a royal commission on the ecclesiastical courts published in 1883.  It is apparently supported by the case of Kemp v Wickes (1809) 161 English Reports 1320, in which the ecclesiastical court drew a distinction between ‘the ancient general canon law’ and ‘the particular constitutions made in this country to regulate the English Church’ (p.1324). 

However, in his book Roman Canon Law in the Church of England, published in 1898, F.W Maitland denied that mediaeval canon law in England possessed any national character.  He apparently satirised Stubbs’ thesis as maintaining that the Church of England was Protestant before the Reformation and Catholic after it!  By contrast, Maitland asserted that the mediaeval Church was governed by papal law, the law derived from papal courts and councils, which was faithfully applied by the English Church courts.

Maitland’s view prevailed (apparently even Stubbs admitted that he had been wrong), though it has been modified by subsequent commentators such as E.W Kemp and R.H Helmholz, who emphasise the flexibility of mediaeval law and its tolerance of local custom.

The break with Rome was also the break with canon law.  At the Reformation, King Henry VIII ordered that Oxford and Cambridge Universities should cease to teach canon law.  Only civil (Roman) law was to be taught in future.

The ecclesiastical courts and the legal community at Doctors’ Commons survived the Reformation, but the inhabitants of Doctors’ Commons were described as ‘civilians’, because they were doctors of civil law only.  They could not be ‘canonists’, since it was no longer possible to take a degree in canon law.

Maitland lamented the prohibition of canon law.  He described it as ‘the great breach of continuity … No step that Henry took was more momentous.  He cut the very life thread of the old learning’: op.cit, p.92.  That, of course, was the intention.  The prohibition of the study of canon law supports Maitland’s thesis.  The obvious reason for Henry’s suppression of canon law was its papalist character. 

Civil law, by contrast, being the law of the Roman emperors, was much more congenial to the King.  Maitland observed that ‘Henry encouraged and endowed the study of the civil law, and the unhallowed civilian usurped the place of the canonist on the bench [of the ecclesiastical court]’ (p.93).

The House of Lords was emphatic in R v Millis (1844) 8 English Reports 641 that ‘The canon law of Europe does not, and never did, as a body of laws, form part of the law of England’ (p.898, emphasis supplied).

However, despite the historical evidence and legal authority to the contrary, it continues to be widely believed, even by lawyers, that the Church of England is governed by ‘canon law’.  Maitland’s victory over Stubbs may have been somewhat hollow.

The 1947 report The Canon Law of the Church of England is admirable as a historical account of canon law.  Its treatment of English law, by contrast, is rather confused.  The very title of the report betrays the confusion.  The authors of the report failed to appreciate that English law and canon law are two different things, just as English law and Roman law are two different things (or English law and French law).  The Church of England is governed by English law, not by canon law.  To speak of ‘English canon law’ is like speaking of ‘English Roman law’.

Yet the confusion persists into the 21st century.  The year 2013 saw publication of the fourth edition of E Garth Moore’s Introduction to English Canon Law.