And a very novel kind of state, what was more. The pope’s writ was above all a legal one. His supremacy over the clergy; his regulation of the borders between church and court; his provision of justice to those who sought restitution from what, a century on from Canossa, was coming to be called the ‘secular arm’: all were dependent on armies of lawyers. It was clerks with pens, not knights with lances, who were the papacy’s shock-troops. ‘Who but God has written the law of nature in the hearts of men?’25 So Augustine had once asked. Here, in a conviction that reached ultimately back to Saint Paul, lay the surest basis for the papacy’s claim to a universal authority. The order defined by the Roman Church was one that consciously set itself against primordial customs rooted in the sump of paganism, or ephemeral codes drawn up on the whims of kings, or mildewed charters. Only one law could maintain for the entirety of Christendom the ties of justice and charity that bound together a properly Christian society: ‘the eternal law, that creates and rules the universe’.26 This was not an order that could be administered by priests alone.
Yet lawyers, back in the first flush of reformatio, had counted for little. Their entrance onto the great stage of Christendom – certainly compared to that of the warrior pilgrims who, inspired by Urban II, had marched on Jerusalem – was little celebrated in chronicle or song; but would prove, in the long run, incalculably more decisive. In 1088, the same year that Urban became pope, one of his most eminent supporters had helped to establish a new nerve-centre for the transfiguration of Christian society: a law school in the Italian city of Bologna. The Countess Matilda, heiress to a great swathe of lands in Tuscany, and a woman as indomitable as she was pious, had consistently stood in the eye of the Gregorian storm. It was she, in 1077, who had been Gregory’s host at Canossa; and it was she, in the decade that followed his death, who had inflicted such military damage on Henry IV that he had eventually withdrawn from Italy for good. Perhaps the most enduring contribution made by Matilda to the cause of reformatio, though, would prove to be her sponsorship of Irnerius, a Bolognese jurist. His commentaries on a vast corpus of Roman legal rulings, discovered only a few years previously mouldering in an ancient library, had made accessible to the Christian West what the Islamic world had long taken for granted: an entire system of law with ambitions to cover every aspect of human existence. That the texts studied by Irnerius were of human rather than divine origin did not prevent him from assuming that they possessed a timeless significance: that they were as applicable in the present as they had been back in the days of the Caesars. The enthusiasm for his researches, and for the great field of study that they opened up, proved immense. Enterprising young men began flocking to Bologna. Anxious to set themselves on a secure legal footing, those from Italy and those from north of the Alps formed themselves into twin guilds: universitates. Within decades, Bologna had become the prototype of something never seen before: a university town. Even though Irnerius himself was no enthusiast for reformatio, there could no doubting whose cause this most benefited. Certainly, it did not take long for the path from university to Curia to become a thoroughly well-trodden one.
Bologna, though, was not merely a finishing school for papal clerks. There were scholars in the city with broader horizons. Partisans of reformatio, perusing the rediscovered corpus of Roman law, could not help but note a glaring absence. For centuries, ever since the great assembly of bishops convened by Constantine at Nicaea, councils of the Church had been meeting and issuing canons. No one, however, had ever thought to collate them. Various efforts had been made to rectify this in the decades that followed the millennium; but only in the wake of Irnerius’ labours was it definitively achieved. The Decretum – ascribed by tradition to a single monk named Gratian, and completed around 1150 – was a labour of decades.27 Indisputably, the effort required was prodigious. Canon law did not consist merely of canons. There were papal rulings to be tracked down as well, and decrees passed by other bishops, and compilations of penances. Not merely scattered, these were often downright contradictory. The challenge faced by Gratian in making sense of them was freely acknowledged by the alternative title given to the Decretum: the Concordance of Discordant Canons.
How to iron out the inconsistencies? Gratian and his colleagues had two recourses. There was the guidance provided by scripture, of course, and by the Church Fathers – men such as Irenaeus, and Origen, and Augustine. Yet even these authorities did not provide Gratian with what Muslim lawyers had long taken for granted: a comprehensive body of written rulings supposedly deriving from God himself. No Christians had ever had such a resource. God, so they believed, wrote his rulings on the human heart. Paul’s authority on this score was definitive. ‘The entire law is summed up in a single command: “Love your neighbour as yourself.”’ Here, for Gratian, was the foundation-stone of justice. So important to him was the command that he opened the Decretum by citing it. Echoing the Stoics much as Paul had done, he opted to define it as natural law – and the key to fashioning a properly Christian legal system. All souls were equal in the eyes of God. Only if it were founded on this assumption could justice truly be done. Anything obstructing it had to go. ‘Enactments, whether ecclesiastical or secular, if they are proved to be contrary to natural law, must be totally excluded.’28
Much flowed from this formulation that earlier ages would have struggled to comprehend. Age-old presumptions were being decisively overturned: that custom was the ultimate authority; that the great were owed a different justice from the humble; that inequality was something natural, to be taken for granted. Clerks trained in Bologna were agents of revolution as well as of order. Legally constituted, university-trained, they constituted a new breed of professional. Gratian, by providing them with both a criterion and a sanction for weeding out objectionable customs, had transfigured the very understanding of law. No longer did it exist to uphold the differences in status that Roman jurists and Frankish kings alike had always taken for granted. Instead, its purpose was to provide equal justice to every individual, regardless of rank, or wealth, or lineage – for every individual was equally a child of God.
Gratian, by inscribing this conviction into the Decretum, had served to set the study of law upon a new and radical course. The task of a canon lawyer, like that of a gardener, was never done. The weeds were always sprouting, always menacing the flowers. Unlike the great corpus of Roman law, which scholars in Bologna regarded as complete, and therefore immutable, canon law was oriented to the future as well as to the past. Commentators on the Decretum worked on the assumption that it could always be improved. To cite an ancient authority might also require reflection on how best to provide it with legal sanction in the here and now. How, for instance, were the Christian people to square the rampant inequality between rich and poor with the insistence of numerous Church Fathers that ‘the use of all things should be common to all’?29 The problem was one that, for decades, demanded the attention of the most distinguished scholars in Bologna. By 1200, half a century after the completion of the Decretum, a solution had finally been arrived at – and it was one fertile with implications for the future. A starving pauper who stole from a rich man did so, according to a growing number of legal scholars, iure naturali – ‘in accordance with natural law’. As such, they argued, he could not be reckoned guilty of a crime. Instead, he was merely taking what was properly owed him. It was the wealthy miser, not the starving thief, who was the object of divine disapproval. Any bishop confronted by such a case, so canon lawyers concluded, had a duty to ensure that the wealthy pay their due of alms. Charity, no longer voluntary, was being rendered a legal obligation.