Gratian and the Jews

Since Anders Winroth and Carlos Larrainzar discovered earlier versions of Gratian’s Decretum, legal historians have explored these manuscripts for evidence that they hoped would reveal how Gratian’s changes and additions to his text could provide insights into how his thought and ideas developed.¹ Although there is still a vigorous debate about exactly how the manuscript tradition reflects the evolution of his Decretum, we know far more about Gratian now than we did before. Not everyone agrees on what we know. I think that Gratian began teaching in the 1120s, that the Saint Gall manuscript 673 is the earliest witness to his teaching, and that the other manuscripts discovered by Winroth and Larrainzar provide evidence that a version of his Decretum circulated widely in the 1130s. The final version of his Decretum ca. 1140 was compiled by gradually adding canons to various parts of the text over an extended period of time.² That is an outline of what I think we know.

The value of the Saint Gall manuscript is particularly controverted.³ In my opinion no one has been able to prove conclusively that it is an abbreviation — or the contrary. The winnowing and sifting of the evidence proceeds apace. The status of Saint Gall is primarily important for understanding how Gratian began to teach canon law. My conviction that it represents how Gratian first began to teach canon law in the 1120’s cannot be proven conclusively now and probably never will be unless we find other manuscript evidence. Still, the format of the manuscript contains a powerful clue. It only contains the causae. They were Gratian’s remarkable contribution to twelfth-century education. He invented a system of teaching law that depended on introducing his students to hypothetical cases based on legal problems that could have easily been heard in the courts during the first half of the twelfth century. In addition Gratian employed the dialectical method-logy created by the masters in northern France to legal problems. I think the great success of the Decretum and its immediate and enthusiastic adoption by teachers from Italy to Spain and from Austria to northern France (to rely on the manuscripts that have survived), can be attributed to his case-law methodology that reflected legal problems that Gratian and his students would have encountered when they had visited episcopal tribunals and heard about various cases.⁴

When Winroth and Larrainzar established the existence of different recensions of Gratian’s Decretum in the manuscripts, scholars immediately realized that they might begin to see how Gratian’s thought evolved on various subjects. Unfortunately, to date they have uncovered very little evidence about the development of Gratian’s thought in any area of law. Winroth has attempted to demonstrate that Gratian changed his opinion about the primacy of spousal consent in marriage law and about the validity of the marriage of slaves.⁵ In both of these cases the evidence is not without ambiguity.

While preparing a talk on Gratian’s treatment of the Jews, I noticed that the canons Gratian included in his Decretum to establish norms for the legal status of the Jews were not in St. Gall or in the other pre-vulgate manuscripts. He treated the legal status of Jews only in his last, vulgate version of the Decretum.⁶ This fact raises the question why did Gratian become interested in the Jews ca. 1140, the date of Gratian’s final recension?⁷ I have yet to find a convincing explanation. There were notorious Jewish cases in the mid-twelfth century that might have attracted Gratian’s notice, but he provided no clues in the dicta around these canons which events may have captured his attention. These additional canons are not, however, an example of the evolution of Gratian’s thought; they are an example of Gratian’s beginning to have thoughts on an issue rather late in the game.

Gratian introduced his students to the legal status of Jews in four significant clusters of texts that are not in St. Gall nor in the pre-vulgate manuscripts. He added them to two...