| Book Review | Law and History Review, 25.2

Book Review

Anders Winroth, The Making of Gratian's Decretum, Cambridge: Cambridge University Press, 2000. Pp. xvi + 245. $90 (ISBN 0-521-63264-1).

In the short time since its publication, the basic thesis of this book has earned wide acceptance: A group of manuscripts long thought to contain an abridgement of Gratian's Concordance of Discordant Canons, a work usually dated to 1140, were, in fact, a first draft of that work, probably written, for the most part, somewhat earlier than 1140. There were thus two "recensions" of Gratian's work. The first is by a man whom the later canonists called Gratian, and about whom we know virtually nothing. The second is probably not by Gratian but by a group of scholars who were working with Gratian's text, perhaps as much as a decade later.

One can understand why specialists in the history of medieval canon law might find exciting a discovery that redated the work of Gratian, who has been called "the father of the science of canon law." But Winroth's discovery has significance beyond the esoteric field of medieval canon law. It has long been recognized that either in the late eleventh century or the beginning of the twelfth something of great significance for the history of western law and political thought happened at Bologna. A group of scholars, the traditional story goes, rediscovered Roman law and began to analyze it and teach it. About a generation later a different group began to apply the same techniques to canon law; Gratian was the first of this group. Winroth's discovery casts doubt on the traditional story, both because it suggests an earlier date for Gratian's work and because the first draft of Gratian shows, in Winroth's view, little evidence of Roman law. That, in turn, suggests that we must rethink the answer to the question that has long puzzled legal historians: why did Bologna happen when and where it did? Or, to put the question still more broadly, why did western law develop in the distinctive way that it did?

There is no "smoking gun" to support Winroth's thesis. None of the surviving manuscripts of either the first or the second recension dates from the years 1130 through 1150. The basic insight of the book, however, makes one feel stupid for not having seen it. Manuscripts from the late twelfth and early thirteenth centuries contain a long version of Gratian, and a few contain a shorter one. There is no necessary reason why the shorter version should be an abridgement of the longer; the longer version may be an expansion of the shorter.

The proof that it is is of two kinds. The first is somewhat technical. Approximately two-thirds of Gratian's work consists of quotations from the legislation of church councils (canons, in the strict sense), from the legal rulings of the popes (decretal letters), from writings of the fathers of the church, from works about penance (penitentials), and forgeries of all four types of sources. Gratian derived this material from collections of canons made before his time. Prior to Winroth students of Gratian had begun to calculate the minimum number of manuscripts that Gratian would have had to had in order to do what he did. Because of duplication in the sources, it turns out that he would have needed many fewer collections than the sum of collections in which his material is found. But there are a distressingly large number of "sports." Most of Gratian's book could have been compiled without his having access to a particular collection, but then there are a couple of canons that are found only in that collection. Positing a first recension considerably reduces the number of such "sports."

The second proof is more impressionistic. If approximately two-thirds of Gratian's work is quotations from canons, approximately one-third is arguments (dicta), in which Gratian attempted his concordance of discordant canons. Some of these arguments are very clever and crisp. But some, at least in the longer version, are diffuse. Canons quoted to prove one point seem more relevant to another. The argument frequently moves off into what seem to be side-tracks.

The two main chapters of Winroth's book (ch. 2–3) examine two cases, comparing the first recension to the second. In both cases the first recension restores a crisp and coherent argument to what, in the second recension, was diffuse to the point of incoherence. While it is possible that we are dealing with an abridger who was better at presenting Gratian's arguments than was Gratian himself, that seems unlikely, granted that by the mid-1140s Gratian's book was being used as a teaching book. A teacher does not want to present only Gratian's arguments, he wants to present what the law is and how it may be used to solve problems other than those that Gratian posed. Teachers and students will ask questions of the authoritative texts, questions that are not answered in Gratian because he was asking different questions. Hence, material will be added to answer those new questions. As a result the work will end up being better for teaching purposes, but less coherent in presenting a sustained argument about particular questions.

Winroth's second proof ought to be replicable with other material, just as a scientific experiment gains validity when it can be replicated in other laboratories. I became convinced of the validity of Winroth's argument when I replicated his experiment with a group of texts that he had not discussed, Causa 27 quaestio 2. Although the second recension of this question is not as incoherent as some, the first is much tighter and crisper. Perhaps even more telling is the fact that when we omit the canons that were added in the second recension, the position of Gratian's dicta makes more sense. Time and again what was only vaguely related to what came before ends up by being directly related to what was immediately before.

Granted, then, that there are two recensions of Gratian's text, what are the implications of this fact? In one instance, I think I might go further than Winroth does, at least as a thought-experiment. In another, I am not sure I want to go as far as Winroth seems to go, at least in some places.

Where I might go further is on the question of the date of the first recension. The problem is the inclusion in the first recension of a reference to canon 28 of the Second Lateran Council of 1139. Were it not for that canon, there is nothing in the first recension that requires a date later than 1119. This fact certainly raises the possibility that the first recension was substantially complete in the 1120s and that the canon of the Second Lateran Council was added by way of a marginal gloss, either by Gratian or another, sometime before, or in, the archetype of the four surviving manuscripts of the first recension. This possibility is enhanced by the fact that there is no other material in the work from the years 1119 to 1139, years that saw two general councils of the church and a number of possibly relevant papal decretals and by the fact that the reference to the canon of the Second Lateran Council has all the hallmarks of an afterthought. (Winroth [136–39] offers counter-arguments, all well taken, but I must confess that I remain unconvinced.)

Where Winroth may have gone a bit too far is in the area of Roman law. With one exception, the first recension contains no citations of Roman law from texts in the Corpus Juris Civilis itself. Starting from that undeniable fact, Winroth attempts to reconstruct the history of Roman legal studies in a way that basically excludes the supposed founder of the civil-law school at Bologna, Irnerius. Serious Roman legal studies began, in Winroth's view, with Bulgarus, the oldest of the so-called "four doctors," and were not firmly established until the 1140s or, at the earliest, the 1130s.

The historicity of the thirteenth-century accounts of Irnerius may surely be questioned. They have all the hallmarks of the stories that students have been telling about their teachers and their teachers' teachers from the time of the Talmud to the present day. I have doubts, however, about what conclusions we should draw from the almost total absence of direct citations to the Corpus Juris. Indirect citations do appear. For example, in the same Causa 27, quaestio 2 (dictum after c.10), Gratian refers without citation to Digest 23.2.6. There does not seem to be any other place from which the reference could have come. Causa 29, quaestio 1, a discussion in dictum in the first recension of whether error vitiates marital consent, seems to be derived from Digest texts, this time on the Roman law of sale: Gratian's example of the sale of bronze for gold is found in the basic Digest text on the topic, and his use of Marcellus and Paulus as names for the seller and buyer is derived from the same text and the one immediately following (Digest 18.1.9, 10.). The analogy is sophisticated; the texts on error of person do not appear in the context of sales law, but in general discussions of error found elsewhere in the Digest. (Winroth, in a not-yet-published paper, argues that bronze for gold was a common-place; perhaps it was, but Marcellus and Paulus were not.)

If we put two qualifications together, we get a first recension of Gratian that is earlier than Winroth dates it, say the 1120s. This would give us a Gratian roughly contemporary with Irnerius. Gratian left a remarkable book, not much influenced by the primary texts of Roman law, but aware of at least some of them. Irnerius, or whoever, left a complete text of the Corpus Iuris Civilis and some glosses. The bridge from these men to the substantial legal study that cannot be firmly dated before the 1140s is thin. What this reconstruction suggests, however, is that the dramatic revival of jurisprudence in the west, which followed shortly after the 1140s, hung in the balance for ten or fifteen years. The question is why the effort simply did not collapse.

Charles Donahue, Jr.

Harvard Law School

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