Roman Law Sources and Canonical Collections in the Early Middle Ages

Canonical 'preservation' of Roman Law

It is well known that, being a part of the Roman Empire, the Church lived under Roman law from its earliest organization, and that canon law was one of the most important means for the preservation of Roman law in the early medieval period.

But 'preservation' can be understood in two different ways: first, as a preservation of the spirit and the rules of Roman law through canon law; secondly, as a preservation of the original texts themselves. The first is a general problem of legal culture, the second a specific philological matter. But these different points of view are not completely independent of one other, but rather two faces of the same process.

In this paper, I shall attempt to analyze the Italian canon law collections up to the year 900 together with some almost contemporary ecclesiastical quotations of Roman law. Yet we must remember the caveat that what happened in the ninth and tenth centuries is only a stage, and not the final one, in the process just mentioned, which would be completed with the Gregorian Reform. At that time almost every part of Justinian's compilation, including some which have since disappeared, were rediscovered by canon lawyers (the only exception being the Tres Libri). The philological passion of the Gregorian supporters—even if not technically well-founded—was an important instrument that helped and sustained the formation of a legal order of the Church in the age of the so-called 'Papal Revolution'.¹

In fact, canon law was not an organized body of laws in the early Middle Ages, and it is also hard to see it as the unified legal order of the Church. There were several canonical traditions greatly influenced by local customs and often strongly devoted to them. Up to the Gregorian Reform these local or 'national' churches, with their canonical councils and canonical customs, were in a dialectical relationship with the Roman Church, which entailed a wide autonomy.²

It was the Roman Church, representing the 'Römische Zentrum', which tried to maintain the spirit of Roman law in this period, and sometimes imposed it on the 'Kirchliche Peripherie' (to use the terminology of a relatively recent congress held at the Deutsches Historisches Institut in Rom).³

In most of Europe during the early Middle Ages Roman law was still represented by the Theodosian tradition, mainly known through the Breviarium Alaricianum, but not so in Italy, where—leaving aside the difficult matter of surviving elements of Theodosian law⁴—Justinian's compilation was promulgated in 554 after the Gothic Wars. Thus the Pragmatica sanctio introduced the Corpus iuris civilis into Italy less than 15 years before the arrival of the Lombards (568). As he had died three years before, Justinian did not see how vain had been his great effort to reconquer Italy. His Corpus did not have enough time to become known and studied. Along with Radding and Ciaralli, we can say that 'the Justinianic codification simply fell from sight and from use, in Italy and everywhere else, between the end of the sixth century and the end of the eighth'.⁵

The Church saved the spirit of Roman law, even influencing through it some developments in Lombard law. But there is no evidence at all of a textual knowledge in ecclesiastical contexts until the Carolingian period, when many Roman law fragments reappeared in a few canonical collections.

Two questions are open. First, why did they reappear in the Carolingian period and not before? Secondly, what kind of knowledge did these canon lawyers have or, better, which kinds of texts did they know?

The cultural Renaissance which occurred with the birth of the Carolingian empire is obviously one good answer to the first question. But even more significant was the papal idea, or papal hope, that the Western Empire, reborn under Charles the Great, should in its second life still be Roman and, furthermore, holy. While general attention was fixed on Charles and his Frankish kingdom, and Frankish customs were obviously ready to break out into the...