Peter Abelard and the Natural Law: Dialogue Between a Philosopher, a Jew, and a Christian

ABELARD WROTE HIS DIALOGUE between a Philosopher, a Jew, and a Christian (also called the Collationes or Comparisons), around 1130 A.D., perhaps while Abbot at the Benedictine monastery of St. Gildas de Rhuys. All three of the characters, including the Philosopher, believe in one God, and they meet up with Abelard in a dream. Abelard is recruited to be more-or-less the judge of their debate. The Dialogue is actual broken up into two dialogues, one between the Philosopher and the Jew, and the second (unfinished) dialogue between the Philosopher and the Christian.

In the first dialogue the Jew and Philosopher expressly discuss the merits of the natural law relative the revealed Mosaic law. During the course of the dialogue, the Philosopher argues that the natural law, which discoverable by reason, is superior to the revealed Mosaic law. A similar dialogue takes place between the Philosopher and the Christian as to the merits between the natural law and the new law of the Gospel. In essence, therefore, the Collationes is a debate about the interaction between the lex naturalis, the lex vetus, and the lex nova, the natural law, the Mosaic law, and the law of the Gospel. For the Philosopher, the natural law is considered to be the science of morals, or ethics. The natural law is preeminent to the Mosaic law, both it terms of time, in dignity, in simplicity, and in mode of discovery. Indeed, it becomes clear that the natural law is the base upon which the Mosaic law and the Evangelical law build, as they contain all that is contained in the natural law, but add additional precepts to the natural law's content. The natural law is discoverable by reason, whereas the Mosaic law and law of the Gospel both, are communicated through revelation.

Peter Abelard

During the course of the Collationes, the Philosopher has this discussion with the Christian:

So far as justice is concerned, it is not just the bounds of natural justice but also those of positive justice that ought not to be crossed. One sort of law is called "natural," the other "positive." Natural law is what the reason naturally innate in all people urges should be put into effect, and therefore remains the same among all people: such as, to worship God, to love one's parents, to punish the wicked, and to do whatever is necessary in the sense that without them no other merits whatever will be sufficient.

To positive justice, however, belongs what is set up by humans so as to preserve usefulness and worth more safely and increase them. It rests either on custom alone or on written authority. An example of positive justice is provided by the sort of punishments given in retribution and the procedures of judges in examining accusations which have been made. Among some, there is trial by combat or hot irons are used, among others an oath that, when we have to live among whoever it may be, we hold the laws they have set up (as I mentioned) just as we hold the natural laws.

The laws which you called divine--the Old Testament and the New Testament--also pass down some commands which are, as it were, natural (you call them "moral commands"), such as to love God and your neighbor, not to commit adultery, not to steal, and some commands which belong, as it were, to positive justice. These commands apply to certain people at a certain time, like circumcision for the Jews and baptism for you and many other commands which you describe as "figural." Moreover, the Roman pontiffs and church councils issue new decrees every day or dispense various indulgences, according to which, you say, what used to be lawful becomes illicit and vice versa--as if God put it in their power to make things good or evil which were not previously be their decrees and indulgences, and their authority could pass judgment on the law of nature.

Oportet autem in his, quae ad iustitiam pertinent, non solum naturalis, verum etiam positivae iustitiae tramitem non excedi. Ius quippe aliud naturale, aliud positiuum dicitur. Naturale quidem ius est, quod opere complendum esse ipsa, quae omnibus naturaliter inest, ratio persuadet et idcirco apud omnes permanet, ut Deum colere,
parentes amare, peruersos punire, et quorumque observantia ita omnibus est necessaria, ut nulla umquam sine illis merita sufficiant.

Positivae autem iustitiae illud est, quod ab hominibus institutum ad utilitatem scilicet vel honestatem tutius muniendam vel amplificandam aut sola consuetudine aut scripti nititur auctoritate, utpote pene vindictarum vel in examinandis acusationibus sententiae iudiciorum, cum apud alios ritus sit duellorum vel igniti; ferri, apud alios autem omnis controversiae finis sit iuratum, et testibus omnis discussio committatur. Unde fit, ut, cum quibuscumque vivendum est nobis, eorum quoque instituta, quae diximus, sicut et naturalia iura teneamus.

Ipse quoque leges, quas divinas dicitis, vetus scilicet ac novum testamentum, quaedam naturalia tradunt praecepta, quae moralia vocatis, ut diligere Deum vel proximum, non adulterari, non furari, non homicidam fieri; quaedam vero quasi positive iustitiae sint, quae quibusdam ex tempore sunt accommodata, ut circumcisio Iudeis et baptismus vobis et pleraque alia, quorum figuralia vocatis praecepta. Romani quoque pontifices vel synodales conventus cotidie nova condunt decreta, vel dispensationes aliquas indulgent, quibus licita prius iam illicita vel e converso fieri autumatis, quasi in eorum potestate Deus posuerit, ut praeceptis suis uel permissionibus bona vel mala esse faciant, quae prius non erant, et legi nostrae possit eorum auctoritas praeiudicare.

Coll. 133-5; 145-7 (Marenbon, trans.)

A Medieval Disputatio between Four Persons

The passage is remarkable for its distinctions and clarity. First, it clearly distinguishes between natural law (or right) and positive law (or right). True, Abelard uses the terms iustitia naturalis and iustitia positiva, and not lex naturalis (or ius naturae or ius naturale) and lex positiva (or ius positivum). So the emphasis is less on law or right, than on righteousness, virtue, or living in accord with the good. This concept was likely borrowed and adapted from the commentary to Plato's Timaeus by the 4th century Christian Calcidius (who translated the first part of Plato's dialogue into Latin from Greek at the request of Bishop Hosius of Córdoba) where it was used as a term to distinguish between human justice broadly vis-à-vis the ordering of the cosmos generally. Marenbon (2007), 275. And while it may not be the first such use of the terms positive law and natural law (these terms are used by Thierry of Chartres and St. Bernard of Chartres in that sense), it certainly represents one of the first such uses of the term in the history of the philosophy of law, and it appears to have influenced later canonists who would use that distinction specifically to distinguish laws promulgated by humans from those strictly natural. Marenbon (2007), 275.

The other distinction that is made by Abelard, and one related to the first, is that between malum prohibitum and malum in se. Though he does not use these terms, it is clear that he recognizes that the positive law can make things once lawful, illicit, and make things once unlawful, licit. Abelard hints even at the possibility of abuse: that the human authority may pass positive law that is not consonant with the natural law, and has the temerity to pass beyond its bounds.

The distinction between positive law and natural law is extended even to God, who is recognized as having the authority to promulgate positive laws of his own--divine law--which may be confirmatory of the natural law, or may require acts in addition to those mandated by the natural law, such as those relating to circumcision for the Jew, and baptism for the Christian.