Extract
[...] - GILISEN, Historical Introduction to Law, Brussels p. 146. - KUTTNER, "The father of the science of canon law" The Jurist (1941), p. 2-19. [...]
[...] This text remarkably takes account of the power relationship established between Roman law and canon law. It first describes the existence of a secular law, proper to regulate the elements of commercial laws. Honorius III describes these laws as "following sufficiently" the traces of equity and justice", authorizing them a circumstantial place in the kingdom of France. This concession appears to be linked to the economic growth of the period, which opened up new needs and edited new rules, particularly written contracts, which were tolerated by the Church because they provided for economic activity. [...]
[...] Note that this division will lastingly mark the Western socio-cultural heritage. He makes reference here, not only to the rediscovery of Roman law in a customary France but above all to the threat of the spread of the teaching of civil law in the great cities and especially Paris, modeled on the model of private institutions opened in Bologna for the study of law, after the rediscovery of Digeste Roman. This mistrust of the growing power of cities, whose extent the Pope ensures to diminish with a prudent "some provinces" is palpable here and refers to an upheaval of medieval values and foundations for which decision-making centers tend to organize, for multiple reasons, outside the Church. [...]
[...] Thus, in a medieval society that divides into two zones of influence, customary in the North and Roman law in the South, the Church, cornered in the 13th century by the expansion of Roman law with the rediscovery of Compilations of Justinian, tolerated and gradually taught until the heart of Parisian universities, strives to combat the laics and their grip on the kingdom, offers to combat and restore order. The text that we give us to study here is an excerpt from the decretal Bull Super speculam, published on November by Pope Honorius III. For ten years, he endeavored to support the reform of the Church initiated and encourage the learning of theology in the dioceses. [...]
[...] In fact, since Gratian's decree in 1140, Concord of Discordant Canons bringing together the entire ancient law and aiming to resolve the contradictions born from the reconciliation of different sources taken out of their context, whether they are decretals, Roman or Frankish laws, by proposing means to analyze and harmonize them, we witness a more rational confrontation, passing through the hierarchization of sources and their comparison. By the sic et non and the pro et contra, One can distinguish but also distinguish similar texts of contributions, in a more analytical way. The monk establishes rules aiming for greater organization and rigor in the exploitation of canonical sources. Gratian thus imposes, by dialectic and methodology, a more critical approach while intercalating a personal doctrinal contribution, which is also a major breakthrough. [...]
