IN ST. ISIDORE OF SEVILLE we move from the era of the Rome to the era of the Barbarians, and the so-called Dark Ages. In the social and political turmoil that followed, the preservation of culture and of knowledge became the emphasis of scholars. So these days are not the days of great speculation, but of great preservation. The European mind was on the defensive. The fervent of the Barbarian tribes, the challenge of the Moorish hoards who hacked their way up through Spain with the sword of Muhammad, the arbitrariness of petty princes and rogue Kings who carved up parts of Europe as if it were a checkerboard. Within the forces of disorder, however, monks and canons and the Pope at Rome worked sedulously, but quietly, at a "New Evangelization."
"It is in this context of the preservation of the past that we must place Isidore of Seville (ca. 570-636). . . . [O]n the particular topic of law . . . he provided the link between the second century Roman lawyers and the medieval civilians and canonists [of the 12th century] . . . ." Crowe, 68. He was "the main transmitter of the legal ideas of the [Roman] juriconsults to the Middle Ages." Crowe, 68. Montalembert, citing Cuvier, called St. Isidore the last scholar of the ancient world, "le dernier savant tu monde ancien." Les Moines d'Occident, II. 204 (Paris: Jacques Lecoffre, 1860). St. Isidore's efforts were sufficient justification for Dante, who included him with the wise in the fourth circle of heaven. See Paradiso, Canto X. Building upon the Roman encyclopedic tradition, best personified in Marcus Terentius Varro (116 BC – 27 BC), St. Isidore compiled what may in fact be the first Christian encyclopedia. It was to be a constant reference by the medievals that followed him. Crowe, 68 n. 62. In terms of his understanding of law, which was a topic of Book V of his encyclopedia entitled Etymologies, we find captured the distilled thought of Roman and Stoic jurists purified somewhat through the filter of the Christian Fathers. But that thought was distilled not without confusion.
In his handling of the law, St. Isidore distinguishes between divine law and human law. In the second section of Book V of his Etymologies, St. Isidore has this entry:
II. DIVINE LAWS AND HUMAN LAWS. 1. All laws are either divine or human. Divine laws are based on nature, human law on customs. For this reason, human laws may disagree, because different laws suit different peoples. 2. Fas is divine law; jurisprudence (ius) is human law. To cross through a stranger's property is allowed by divine law; it is not allowed by human law.Etym., V.ii.1. (For the meaning of fas see May All Our Laws Be Farious!)
II. DE LEGIBVS DIVINIS ET HVMANIS.  Omnes autem leges aut divinae sunt, aut humanae. Divinae natura, humanae moribus constant; ideoque haec discrepant, quoniam aliae aliis gentibus placent.  Fas lex divina est, ius lex humana. Transire per alienum fas est, ius non est.
St. Isidore's tie between the divine law and the natural law ([Leges] divinae natura . . . constant) was to be fateful, and in a negative way. As Crowe notes, there was precedent among the Fathers for such a linkage, and God is the author of both so they may be in a manner identified. But perhaps the tie in was too closely bound by St. Isidore, and the distinction between divine law and natural law not sufficiently stressed, because it was to influence the canonist Gratian many centuries later. It was Gratian that was then to identify the natural law with the Gospel and the Golden Rule adding further confusion into the mix. As Crowe states in his book on the development of the doctrine of the natural law:
The identification of the natural law with the divine law . . . . was to find dramatic expression in Gratian's Decretum and therefore in much of the canon law of the twelfth and following centuries. . . . Gratian's definition of natural law, as what is contained in the law and the Gospel, consecrated this misunderstanding . . . .Crowe, 70. That the distinction between divine law and the natural law should have been better maintained by St. Isidore is, using hindsight, inarguable. As Crowe states it, the divine law and natural law were bound together too tightly by St. Isidore and, if the definition was followed slavishly as his successors tended to do with their respect for the ancients, it led to definitional dead ends. Unless unwound, their tight combination led to the twin evils of voluntarism or pantheism. If the natural law was identified with the divine positive law, then it was as equally positive as the divine law (it could be abrogated just like the Mosaic law could be abrogated), and so could be changed or amended at will. This led to voluntarism in natural law, perhaps the most representative of which is William of Occam. The other route the legal intellect could take was to identify the divine law and natural law even more, so that the natural law (and nature) was virtually deified. Thus we see the extreme expression among the medievals of "nature, that is God," natura id est Deus, which have to be distinguished to be understood in an orthodox fashion. Crowe, 71.
Although, as a preservationist, St. Isidore was a sort of intellectual pack rat, he did exercise some discretion in the selection of his entries on law. "[H]e did make a choice in the question of the natural law, which interests us; and his choice, because of the disproportionate influence of his book as one of the great educators of the Middle ages, was an exceedingly important one." Crowe, 68-69. What was this choice?
St. Isidore accepted, but then radically re-interpreted, the Roman jurist Ulpian's threefold division of law as ius naturale, ius gentium, and ius civile. For Ulpian, the law flowed thus in three great streams: the natural law, the law of nations, and the civil law. This threefold division had been adopted by the Christian emperors of Rome, Theodosius and Justinian, who had adopted it, with only minimal revision, in their respective codes, the Theodosian Code of 438 A.D. and the the Digest and Institutes (the Corpus Juris Civilis) of 529-534 A.D. But St. Isidore did something in his reformulation of this tripartite scheme that has led to criticism by legal scholars ever since.
Though he maintained the tripartite division, he tampered with their boundaries and their substance adding confusion to the mix. For example, while he adopted the term "natural law," he abandoned Ulpian's definition of the natural law. Ulpian, it may be remembered, defined natural law as what “nature teaches all animals,” quod natura omnia animalia docuit. (Ulpian's definition was again and issue between St. Albert the Great and the Decretists: See St. Albert the Great: Against Ulpian and the Decretists.) In lieu of Ulpian's definition of the natural law, as one men shared with animals, St. Isidore replaced it with a Ciceronian, Ulpian, Gaian, even Aristotelian mixture (Crowe, 69) more redolent of the Roman notion of the ius gentium than of the Ulpian ius naturale. Thus, St. Isidore replaced the Ulpian definition of "natural law" with the following:
IV. WHAT NATURAL LAW IS. 1. Law is either natural, or civil, or of nations. Natural law (ius naturale) is common to all nations, and, because it exists everywhere by the instinct of nature, it is not kept by any regulation. Such is the union of a man and woman, the children's inheritance and education, the common possession of everything, a single freedom for all, and the right to acquire whatever is taken from the sky, the earth, and the sea. 2. Also the return of something which was entrusted and of the money which was deposited, and the repulsion of violence by force. Now this, or whatever is similar to it, is never unjust, but is held to be natural and fair.Etym. V, iv.1-2. In St. Isidore's definition of the natural law, nowhere is to be found Ulpian's phrase “nature teaches all animals,” quod natura omnia animalia docuit. It was as if St. Isidore suppressed it, though perhaps his "by the instinct of nature," quod ubique instictu naturae is a nod to it. Crowe, 70. Later, in the rise of the jurists or Decretists, the traditional Ulpian definition was to come in through the back door, and would be referred to as the "jurist's definition" or the "definition of the law." Crowe, 69-70.
IV. QVID SIT IVS NATVRALE.  Ius autem naturale [est], aut civile, aut gentium. Ius naturale [est] commune omnium nationum, et quod ubique instinctu naturae, non constitutione aliqua habetur; ut viri et feminae coniunctio, liberorum successio et educatio, communis omnium possessio, et omnium una libertas, adquisitio eorum quae caelo, terra marique capiuntur.  Item depositae rei vel commendatae pecuniae restitutio, violentiae per vim repulsio. Nam hoc, aut si quid huic simile est, numquam iniustum [est], sed naturale aequumque habetur.
Isidore's definition of the law of nations, or ius gentium, also departed from the traditional definition found, say, in the Institutes of Justinian. He replaced the traditional Roman notion of ius gentium (which was similar to our notion of the natural law) with something entirely more positive, indeed with what appears to be a relatively tolerable definition for international law.
WHAT THE LAW OF NATIONS IS. 1. The law of nations concerns the occupation of territory, building, fortifications, wars, captivities, enslavements, the right of return, treaties of peace, truces, the pledge not to molest embassies, the prohibition of marriages between different races. And it is called the 'law of nations' because nearly all nations (gentes) use it.Etym., VI.vi.1. The third big division in St. Isidore's definition of the law is his definition of civil law.
VI. QVID SIT IVS GENTIVM.  Ius gentium est sedium occupatio, aedificatio, munitio, bella, captivitates, servitutes, postliminia, foedera pacis, indutiae, legatorum non violandorum religio, conubia inter alienigenas prohibita. Et inde ius gentium, quia eo iure omnes fere gentes utuntur.
V. WHAT CIVIL LAW IS. Civil law is that which each individual population or city has established particular to itself, for human or divine reasons.Etym., V.v.1. This is the only definition that has escaped censure.
V. QVID SIT IVS CIVILE.  Ius civile est quod quisque populus vel civitas sibi proprium humana divinaque causa constituit.
In assessing the influence of St. Isidore's division of law into divine and natural, and his confusing division of law into three parts--ius naturale, ius gentium, and ius civile--we ought not to be too harsh in our judgments, as judgment by hindsight tends to be. There are several things we ought to consider. Could not the blame be placed equally on those who came after him who followed him slavishly? We are perhaps taught the lesson that what is old, is not by that fact alone, true, nor, by that fact alone, false. (Equally, we may learn the lesson that what is modern, is not by that fact alone, true, nor, by that fact alone, false.) We might also learn how important definitions are, as we reflect on Aristotle's statement that little mistakes that are made in the beginning of the intellectual journey can lead to big mistakes in the end. How many such "little" mistakes is our modern culture based on?
But all judgment aside, we ought to be grateful. We ought to be thankful enough that men of St. Isidore's ilk existed: men who devoted their lives to the preservation of knowledge where they found it; men devoted to keeping the spark of the Gospel aglow so that it could set ablaze in the Europe of the middle ages; men devoted to the difficult and thankless job of sowing seed, just so others could reap.
Let us recall also, before we are too harsh with our saint, that St. Isidore is the (unofficial) patron saint of the Internet, and we may beg his intercession as we use this modern medium of communication in the following prayer:
Almighty and eternal God, who created us in Thy image and bade us to seek after all that is good, true and beautiful, especially in the divine person of Thy only-begotten Son, our Lord Jesus Christ, grant we beseech Thee that, through the intercession of Saint Isidore, bishop and doctor, during our journeys through the internet we will direct our hands and eyes only to that which is pleasing to Thee and treat with charity and patience all those souls whom we encounter. Through Christ our Lord.
(English translations of the Etymologies is taken from Stephen A. Barney, et al., trans., The Etymologies of Isidore of Seville (Cambridge 2007))