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233 Kenneth Pennington 16   Roman Law at the Papal Curia in the Early Twelfth Century More than thirty years ago, Robert Somerville wrote an essay that dealt with one of the many puzzles facing scholars when they confront Gratian’s Decretum.1 He pointed out that although Gratian included many canons from the Second Lateran Council in the last version of his Decretum , he did not include canon nine, Prava autem consuetudo. He wondered why. The canon’s content was strange. Pope Innocent II had promulgated a prohibition forbidding monks and canons regular to study Roman law. The canon also barred them from representing litigants in lawsuits as patroni .2 It declared that those monks who used their glorious voices to participate in the clamor of the courtroom neglected their liturgical songs and prayer because of greed. Instead, they argued cases using a thicket of legal citations that resulted in confusing the just with the unjust and divine law with impiety. This conciliar admonishment was hardly a positive view of an advocate’s job, whether a monk, canon regular, or neither.3 There are two features of the canon that merit attention. First, Inno1 . Robert Somerville, ‘Pope Innocent II and the Study of Roman Law’ , Revue des Études islamiques 44 (1976) 105–14, reprinted in Papacy, Councils and Canon Law in the 11th–12th Centuries (Variorum Collected Studies 312; Aldershot 1990). 2. Decrees of the Ecumenical Councils, 1: Nicaea I–Lateran V, ed. Norman P. Tanner (2 volumes ; London-Washington, D.C. 1990) 198–99 at 198: ‘Prava autem consuetudo prout accepimus et detestabilis inolevit quoniam monachi et regulares canonici post susceptum habitum et professionem factam spreta beatorum magistrorum Benedicti et Augustini regula leges temporales et medicinam gratia lucri temporalis addiscunt. Avaritiae namque flammis accensi se patronos causarum faciunt. Et cum psalmodiae et hymnis vacare debeant gloriosae vocis confisi munimine allegationum suarum varietate iustum et iniustum fas nefasque confundunt’ . 3. Criticism of lawyers was a common theme in medieval writings; see James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago-London 2008) 125, 215–17. 234  Kenneth Pennington cent had issued it at least three times earlier in his pontificate, almost word for word. He had promulgated it at a council that he held at Clermont in 1130, at Reims in 1131, and at Pisa in 1135. In 1139 he included the canon in the legislation of the Second Lateran Council.4 Secondly, forbidding monks to study Roman law must have been an important ‘reform’ item on Innocent’s agenda. The Council underlined its displeasure with lawyermonks by citing a constitution of the Roman Emperor Justin from Justinian ’s Codex. The emperor had declared that it was absurd and shameful for clerics (not just monks) to want to become learned experts in the law courts.5 The wording of Justin’s statute incorporated into the conciliar canon was almost exactly the same as the wording in the Codex; the only difference between the text of the conciliar canon and that of the Codex was that Justin’s decree stipulated a penalty of 50 pounds of gold for violating the canon’s strictures. Innocent did not. The juxtaposition of a prohibition against studying Roman law snuggled up against an authoritative text of Roman law in a papal conciliar decree gave Somerville pause—as it should have. We are still struggling to understand the complex relationship between the rediscovery of Roman law, the emergence of ecclesiastical jurisprudence, and the papacy’s and the canonists’ attitudes towards the use and study of Roman law. Besides the explicit citation of Justin’s statute there is another tacit citation to Roman law in the canon. The source for the canon’s elegant rhetorical flourish that described the voices of monk-lawyers in the courtroom , gloriosae vocis confisi munimine, was either an anonymous homilist’s sermon on the Resurrection that Migne included, wrongly, among the sermons of Peter Damian or another constitution in Justinian’s Codex, issued by the emperors Leo and Anthemius. Undoubtedly, the homilist took his praise of lawyers from the Codex.6 Whoever drafted the text of the conciliar canon transformed these very positive views of a lawyer’s work in the 4. Somerville, ‘Pope Innocent II’ 106; the canon also appeared among the decrees of Reims 1131 and Pisa 1135. Atria Larson has noted that the early twelfth-century papacy issued identical or similar canons at councils fairly regularly; see her essay ‘Early Stages of Gratian...

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