- Conciliarism and Church Law in the Fifteenth Century: Studies on Franciscus Zabarella and the Council of Constance by Thomas E. Morrissey
For more than thirty years Thomas Morrissey has been studying the life and works of the great canonist Franciscus Zabarella (1360–1417). The perceptive studies collected here touch on all aspects of Zabarella’s life, including his occasional diplomatic missions, but, as the title indicates, their main focus is on his role as a canonist at the Council of Constance. And that is what Zabarella is principally remembered for nowadays.
The council met in 1414 with the purpose of ending the Great Schism that had divided the Church since 1378. But, in March 1414, the council faced a crisis. Its pope, John XXIII, had fled from Constance, fearing that the council intended to take action against him. To the members of the council it seemed essential to [End Page 633] assert their own authority even against the pope. Accordingly, after a week of confused debates in which Zabarella participated, they formulated the crucial decree Haec sancta, which declared that everyone, even a pope, was bound to obey the council “in matters which pertained to faith, the ending of the schism, and general reform of the church” (I.164).
Almost at once disputes arose about the meaning and significance of these words and they have continued down to the present day. Morrissey discusses the modern disputes, but they are not his main concern. He aims, rather, to understand and explain what the decree meant to Zabarella in 1415.
This presents problems of its own. On March 30 Zabarella read out the text of Haec sancta to the assembled council. But when he came to the words about reform of the Church, he hesitated and then omitted them. At once cries of protest broke out, and soon the council dissolved in uproar. However, a week later the text of Haec sancta was presented to the council again. This time Zabarella declined to read it, but he attended the session at which it was promulgated, and he made no objection. And so, Morrissey asks, why did he first protest and then acquiesce?
Morrissey’s answer is that Zabarella’s attitude was determined primarily by the juridical culture that had shaped his mind. In the end he would not obstruct the process of reforming the Church, but he thought that the crucial text had been pushed through too hastily and that its language about reform was too vague. Zabarella wanted to achieve a “delicate balance” between pope and council, and, as a learned canonist, he wanted it to be defined in a decree that was enacted “properly and legally,” and was consonant with established constitutional principles. Also, as a practical realist, he thought that only such a decree could produce the best outcome for the Church.
This reviewer has emphasized Morrissey’s treatment of Haec sancta because it typifies his whole approach to Zabarella’s work. The characteristics that the author attributes to Zabarella here—profound learning and practical good sense—are stressed repeatedly in his discussions of other topics. They include the “unfortunate case” of John Hus, the case of Jean Petit and tyrannicide, and the case of Paulus Vladimiri and the rights of infidels—all very important for the future. In such cases Zabarella always argued for procedures that were “legally sound and defensible, practically viable, and therefore expedient” (X.733, n1.3).
Taken together, Morrissey’s studies provide an excellent account of Zabarella as both a man of thought and a man of action, a friend of humanists, and above all a consummate jurist. The author also nicely illustrates Zabarella’s practical realism by editing and translating a little handbook of advice that the great canonist wrote for the university teachers and students of his age. Most of it would apply just as well to their present-day counterparts. [End Page 634]