The Medieval Review 09.10.02

Austin, Greta. Shaping Church Law Around the Year 1000: The Decretum of Burchard of Worms. Church, Faith and Culture in the Medieval West. Aldershot, Hampshire: Ashgate, 2009. Pp. 358. $124.95 978-0-7546-5091-1. .

Reviewed by:

Edward Peters
University of Pennsylvania
empeters@sas.upenn.edu

Since the work of Paul Fournier in the early twentieth century, the reputation of the Decretum Libri XX of Burchard, bishop of Worms (r. 1000-1025), rested quietly in the decent obscurity of being largely dismissed as a remote and primitive source of some earlier canon law later (and more scientifically) used by Ivo of Chartres and, via Ivo, by Master Gratian, in the age of a new jurisprudence. It was "the most important channel through which the canon law of the middle and second half of the ninth century and at least in part also of the tenth century passed into the broader history of canon law." [1] It also, in Book 19, contained the last penitential--how unscientific could it get? Judged by Fournier and others to have been neglected by the high-powered canonists of the Gregorian Reform, Burchard's collection was thought to have been increasingly and deservedly neglected and then been replaced by more up-to-date and jurisprudentially-minded collections like those of the later eleventh century and then by Ivo and Gratian. In spite of its survival in over eighty manuscripts and fragments (an important channel indeed for an early eleventh-century text), recently sorted out by Hoffmann and Pokorny, the work lacks a modern edition, and only quite recently has its older reputation begun to be revised. [2] Greta Austin's present study is a major contribution to the reevaluation of Burchard's work.

Historians of medieval canon law have also realized that the circumstances in which a particular work was produced have to be taken into consideration where possible. And one important circumstance of Burchard is that he was a bishop of an old middle-Rhineland see. He was originally educated at Koblenz and then at Mainz, where he became a protégé of Archbishop Willigis before he was made bishop of Worms by Otto III. As a bishop he was also friendly with Henry II and Conrad II--an imperial Ottonian-Salian Reichsbischof par excellence. He mentions his time-consuming imperial duties in his preface. [3] Bishops themselves have recently gotten a great deal more scholarly attention than they once did. Burchard lived and worked in what Timothy Reuter called "a Europe of the Bishops." [4] Austin's book is timely on both scores--she can and does capitalize on a great deal of recent research on pre-1050 canon law and on the current interest in the figure of the bishop.

As bishop and canonist Burchard came to the law with some degree of authority and urgency but also with a very full agenda of other things to do in Worms (including tearing down a troublesome and dangerous castle, rebuilding the city walls, and writing up the local laws for his familia ). Burchard was a remarkable builder-bishop and social force--his agenda at Worms is narrated in his vita , written by a close associate shortly after his death. [5] If his pious biographer is to be even half-believed, Burchard's considerable legal achievement is even more remarkable than it at first seems--when on earth did he find the time?

And it is with the legal achievement that Greta Austin is primarily concerned. Her purpose is twofold: to dig Burchard out from under the opprobrium and indifference of Fournier and his successors, and then to argue very explicitly and at length that one of Fournier's points, that Burchard lacked a systematic view of canon law, was wrong, and that Burchard in fact possessed an acute sense of jurisprudence and arranged his collection according to that sense.

Her first goal is not very difficult to accomplish. Fournier had observed that Burchard's Decretum was not widely copied or utilized during or after the papal reform movement of the late eleventh century, a view consistent with Fournier's famous article of 1917 arguing that the Gregorian reform constituted un tournant de l'histoire du droit , since its canonists were far more sophisticated than Burchard, who appealed only to simpler clerical readers. Fournier's views influenced the powerful wave of Gregorian Reform scholarship between Fournier and the present. But Austin readily cites substantial recent research, that of Linda Fowler-Magerl, Detlev Jasper, Peter Landau, Martin Brett, Bruce Brasington, and others that shows indisputably that Burchard's work continued to be copied and read well through the twelfth century, and, as Landau's article of 1998 demonstrated, that Gratian himself (or themselves) took material directly from it. [6] Nor was the work's wide appeal and circulation simply the consequence of its practical usefulness, "that it contained a wide range of canons [in fact, 1785], including various formulae for carrying out procedures, and that the canons were laid out clearly on the page" (1). For Fournier and some of his successors, apparently, neatness did not count.

But it is Austin's second goal that occupies most of the book and raises the most interesting questions for legal history. Was there a real jurisprudence in Burchard's work? Austin argues strongly in the affirmative, and it is here that her book makes its strongest and most original claims. Part One contains five chapters on "Background." The first chapter lays out her methodology, discussing the problems unique to early medieval canon law collections, especially the problem of apparently contradictory texts and the differences between material sources (the original source in its best text) and formal sources (the actual work where a compiler found his source--usually another collection). These problems are to be traced through her very close examination of four books of the Decretum , 6, 10, 11, and 12, "which concern issues pertaining to the laity as well as the clergy: homicide, magic and superstition, excommunication and theft, and oaths and perjury." The selection allows Austin to compare Burchard's collection closely to Regino of Prüm's Libri duo de synodalibus causis , of which the principles of Burchard's extensive use allow the reader to understand Burchard's purpose and method: "Which canons from Regino's collection had Burchard decided to include? Which did he omit? How did he reorder canons from Regino? Did Burchard tamper with canons?" (12). These questions guide the structure of the rest of the book.

The second chapter is a close analysis of the Decretum beginning with a descriptive list of the contents of each book. Austin then discusses authorship (in this case more the assistants and scribes than dubious authorship on Burchard's part), the stages of composition of the work based on Hoffmann-Pokorny's identification of two mss., one in Frankfurt and the other at the Vatican, as having been made in the scriptorium of Worms before 1023 under Burchard's supervision and represent early stages of the work. It is important to point out the extent to which Austin relies on extensive manuscript research and comparison in the entire course of the book. In Burchard's case, without a modern critical edition, such a practice is essential, and Austin is very good at it. She then considers the existing manuscripts and the dissemination of the work. Although Burchard's episcopal authority stopped at the diocesan boundaries of Worms, the book, like Ivo's and Gratian's later, made its own way very nicely. It was remarkably user-friendly.

Chapter 3 considers the Decretum in the context of other pre-Gratian canon law collections, particularly the formal sources of Burchard: Regino and the Collectio Anselmo dedicata (late ninth-century Italy), but also less frequently the Collectio hibernensis and the penitentials of Hrabanus Maurus and Halitgar of Cambrai and the "Roman penitential." According to the conclusion of Chapter 3, none of Burchard's sources could be considered a treatise on the principles of law or of justice. Burchard had to do something to them to make his own collection more professional than any one of his sources. Chapter 4 finally addresses the biographical question: "Who was Burchard of Worms?" First, Burchard was an episcopus writing out of pastoral concern and duty, not only for his flock, but also for those who would become their teachers and pastors. Making sense of the vast ocean of canons was imperative if laity and clergy alike were to be guided in a trustworthy manner based on legitimate spiritual authority.

Austin traces Burchard's method of making sense, his jurisprudence, in Chapter 5, a study of the work's Preface and the canons on legal reasoning in Books 1 and 3. In the former, Burchard "creatively borrowed and reshaped" (75) some earlier prefaces, notably that of Halitgar, and addressed the "confused, inconsistent, and disordered" state of the canons, their lack of authority, and the consequences of these conditions ("the confusion of the books and the ignorance of priests") for the remedy of penance, (" ...quia canonum iura et iudicia poenitentium in nostra diocesi sic sunt confuse atque diversa et inculta... . Austin, I think rightly, makes a point about Burchard's use of the term canonum iura . So Burchard's concerns in the Preface are with education, legitimate authority, comprehensiveness, and usefulness. Because his is a teaching text he does not include conflicting canons, as had Regino, deferring as he says to the wisdom and judgment of his dedicatee, Hatto, bishop of Mainz. Since Burchard cannot provide a rule for every situation, he seeks to establish principles of interpretation, that is, a legal method following the principles of legal reasoning to settle issues not specifically addressed in the collection but accessible to principle. His discussion of the sources of law in Books 1 and 3 is consistent with the statements in the Preface. He enhances the authority of his texts by ostensibly reducing the number of his formal sources to a few that are unquestionably authoritative.

Part II contains five chapters on Burchard's editing priorities: the presentation of the canons, the authority of the canons, eliminating conflicts between canons, presenting a comprehensive vision of Church law, and the detailed study of the four books 6, 10, 11, and 12. Here, Austin's thorough familiarity with the manuscripts (the absence of plates from this volume is somewhat compensated for by references to the plates in Hoffmann-Pokorny) becomes even more helpful. In Chapter 6 Burchard's extraordinary concern for the mise-en-page is evident, a consequence of his insistence on the usefulness of his work. The numbered tables of contents, the rubrics, the hierarchy of scripts, and the disciplined hands of the mss. all suggest, as Austin says, the considerable achievement of Carolingian book production and its influence in the eleventh-century Rhineland.

In Chapter 7 Austin considers how Burchard's editorial principles compelled him to rearrange canons from Regino so as to better focus the legal ideas they illustrated. So did his reworking of the rubrics to assert the authority of many of his texts and his reluctance to consider secular law as having a significant bearing on canon law. Chapter 8 deals with Burchard's method of eliminating conflicts between canons, and Chapter 9 deals with Burchard's pronounced concern for the illustration of general principles, with a useful example on pp. 151-154. Austin suggests that the changes that Burchard made were consistently intended to underscore the authority of the canons and the comprehensive principles to which they pointed. Chapter 10 is Austin's detailed analysis of Books 6, 10, 11, and 12 in which the principles laid out in the preceding chapters are put to the test--they illustrate Burchard's argument that biblical principles conveyed via authoritative texts, logically ordered, sufficiently comprehensive, and usefully organized and presented constitute canon law.

Part II contains two chapters dealing with implications of the foregoing study. The first addresses the dicey question of Burchard's reasons for altering a substantial number of texts, including their attribution. Austin considers the problem in the context of recent forgery-scholarship and concludes, I think quite rightly, that "Burchard used textual tampering in the service of jurisprudence--in order to make his collection more useful in the diocese, in the parish, and in the synod" (221). The last chapter deals with the interesting relation between theology and canon law around the year 1000, turning back to Burchard's education and his grounding in scripture, exegesis, and the analysis of the written word. His problem, as was any canonist's, was that of getting an adequate understanding of truth and Christian obligation from the realms of high scripture and creed down to the irritating universe of contingencies in human behavior and those whose duty it was to tend properly to these. Burchard's work was "'practical theology." "To apply the Bible to the realm of justice was to practice what we today would call canon law" (227). Austin makes a very impressive case for her thesis, and her book, based on a half-dozen earlier articles, the give and take of hardball scholarly conferences, and the advice and criticism of generous colleagues (in a scholarly specialty in which they seem to abound) is a major work of serious scholarship on early medieval canon law--a subject that touches a far larger range of human life in the past than it might at first seem.

Austin includes fifteen extremely useful tables in her text and another seven in an Appendix. The latter set of tables indicates clearly the differences between the Decretum text and those of Regino's Libri duo and the two contemporary collections from Freising, two versions of the Collectio duodecimo partium .

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Notes:

1. Wilfried Hartmann, Kirche und Kirchenrecht um 900. Die Bedeutung der spätkarolingischen Zeit für Tradition und Innovation im kirchlichen Recht Monumenta Germaniae Historica Schriften, Bd. 58 (Hannover, 2008), p. 305. Hartmann has more respect for Burchard than this remark might indicate, since he makes it only in light of the future of the canon law of the earlier period with which his book otherwise deals. See next note.

2. Hartmut Hoffmann and Rudolf Pokorny, Das Dekret des Bischofs Burchard von Worms. Textstufen--Frühe Verbreitung--Vorlagen , Monumenta Germaniae Historica, Hilfsmittel 12 (Munich, 1991). As Austin points out (p. 20, n. 31), the editio princeps of Cologne, 1548 (reprinted and edited by Gérard Fransen and Theo Kölzer, Aalen, 1992), is closest to the earliest manuscripts, several of which are illustrated in the generous plates of Hoffmann-Pokorny. The Paris edition of 1550 by Jean Foucher is more available because it was reprinted in MPL vol. 140. Aside from Austin's extensive discussion, the revival has also been considered by Wilfried Hartmann, "Burchards Dekret: Stand der Forschung und offene Fragen," in Bischof Burchard von Worms 1000-1025 , ed. Wilfried Hartmann, Quellen und Abhandlungen zur mittelalterlichen Kirchengeschichte 100 (Mainz, 2000), 161-166.

3. Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500-1245 , Commentary and translations by Robert Somerville and Bruce C. Brasington (New Haven and London, 1998), 99-104. Austin summarizes the life on pp. 53-74.

4. Timothy Reuter, "Ein Europa der Bischöfe. Das Zeitalter Burchards von Worms," in Bischof Burchard von Worms, 1000-1025 , pp. 1-28. Austin herself expands considerably on the phrase in her essay, "Bishops and Religious Law, 900-1050," in The Bishop Reformed: Studies of Episcopal Power and Culture in the Central Middle Ages , eds. John S. Ott and Anna Trumbore Jones (Aldershot UK and Burlington VT, 2007), 40-57. To this should now be added Steffen Patzold, Episcopus. Wissen über Bischöfe im Frankenreich des späten 8. bis frühen 10. Jahrhunderts , Mittelalter-Forschungen, ed. Bernd Schneidmüller and Stefan Weinfurter, Bd. 25 (Sigmaringen, 2008), which dates Reuter's claim considerably earlier.

5. Vita Burdchardi , ed. Heinrich Boos, Urkundenbuch der Stadt Worms: Monumenta wormatensia. Annalen und Chroniken , Quellen zur Geschichte der Stadt Worms, 3 (Berlin, 1893, 97-126). On the work, Stephanie Haarländer, "Die Vita Burchardi im Rahmen der Bischofsviten seiner Zeit," in Bischof Burchard von Worms, 1000-1025 , 129-160.

6. Austin's notes and bibliography are comprehensive and list most of the scholarship noted above, including Peter Landau, "Burchard de Worms et Gratien: À propos des sources immédiates de Gratien," in Le Décret de Gratien revisité: Hommage à Rudolf Weigand , Revue de Droit Canonique , 48/2 (1998), 233-245.