Bulletin of Medieval Canon Law

The recent attempts to resist the clear meaning of 'new' as used by twelfth-century canonists to distinguish more recent materials from older legal sources which lay outside Gratian seem determined to ignore the obvious meaning of the terminology of 'old' and 'new' law as it was employed by collectors and commentators. Bernard of Pavia's very short introduction to his Breviarium extravagantium (1189-1191), later known as Compilatio prima, explains in simple terms its author's intention. It was, he wrote::¹

So that a richer supply of arguments and judgments may be provided, I, Bernard, provost of Pavia, for the honour of God and the Holy Roman Church and the benefit of students, have compiled extravagantia from old and new law (de vetero novoque iure) under titles.

He added further precision in the preface to the Summa that he later composed (before 1198) to elucidate his Breviarium::²

For the sake of scholastic utility, I, Bernard, who as provost of Pavia compiled decretals and extravagantia, now, as bishop of Faenza, although unworthy,:³ with Christ as guide, undertake to produce a little summary of the same small work. [End Page 299]

Furthermore, he explained the title, contents, and purpose of the original composition::⁴

The little book, consisting for the most part of decretals, received the title extravagantia. Its contents are decretals, and certain useful chapters (capitula) in the corpus of canons, the register of Gregory, and Burchard, which Gratian had left behind (reliquerat), saving for us fruit, both old and new.:⁵ The intention is to collect the aforementioned into one volume and to arrange them under appropriate titles, according to their judgments (sententias). The usefulness is evident, because through knowledge of this work we will be more prepared for advising, presenting arguments, and deciding (cases) [emphases mine].

There is nothing here that implied anything other than differentiation between the Gratian's book and 'the materials scattered outside it (extravagantia)', which Bernard listed, in order, as 'decretals' and some 'useful chapters' from specified pre-Gratian sources—a corpus canonum (probably Pseudo-Isidore, mid-ninth century); Gregory I's Register 590–604; and Burchard's Decretum.:⁶ This interpretation is confirmed by Tancred of [End Page 300] Bologna's Proemium to his own apparatus written between 1220 and 1225 for Petrus Beneventanus' Compilatio tertia (1210, based on Innocent III's registers, and promulgated by him). Tancred wrote::⁷

After the compilation of the decrees by Gratian, many decretal letters emanated from the Roman curia, which magister B., then provost (of Pavia), afterwards bishop of Pavia (recte Faenza), collected in appropriate titles for the use of students, inserting certain more ancient materials (antiquiora), and it is called Compilatio prima.

Contrary to Greta Austin's interpretation, shared by Danica Summerlin, this usage did not 'call to mind the Christian distinction between the New Testament and the Old Testament, and more generally the "new covenant" and the "old covenant",' nor did it '[imply] a hierarchy in which the new law takes precedence over the old law';:⁸ and Austin's reluctance to accept 'the evidence of the sources',:⁹ seems based on a singular misunderstanding of the context of use. The terms 'old', meaning the Decretum and what had preceded it, and 'new', meaning recent papal conciliar decrees and decretals, as employed by Bernard and his successors, were simply chronological denominators, not discriminatory labels. This usage is similar to the distinction [End Page 301] between the 'old logic' and the 'new' in twelfth-century Paris. There, when Aristotle's Topica, Analytica priora et posteriora and the De sophisticis elenchis entered the curriculum around mid-century, they were designated 'logica nova' to differentiate them from the 'logica vetus' (Aristotle's Categoriae and De interpretatione and the Isagoge of Porphry), which until then had formed the basis of study.:¹⁰ In fact, the adjective 'vetus' was rarely used for pre-Gratian material, or, indeed for the contents of Gratian. 'Old' did not mean obsolete and 'new' did not necessarily mean better. Both were subject to continuous examination and debate by canonists in the light of...