Gratian and the Natural Law: Concordance and Discordance in the Natural Law, Part 2

WHAT DID GRATIAN HAVE IN MIND when he appeared to have equated the natural law with the Law and the Gospel, identifying in particular the natural law with the Golden Rule in both its negative and positive formulations? Ius naturae est, quod in lege et evangelio continetur, quo quisque iubetur alii facere, quod sibi vult fieri, et prohibetur alii inferre, quod sibi nolit fieri. And, if so, how is that consistent with his alternative definition for the natural law, one clearly secular, that natural law is what is common to all nations, that which arises everywhere as a result of nature's instinct, commune omnium nationum, eo quod ubique instinctu naturae?

As Crowe sees it, there are three options in coming to terms with these two discrepant definitions of natural law. Either Gratian confused the natural law with the positive law and revealed law and so identified them (as Martin Grabmann argued), or he kept the two fully distinct (despite the seeming identity), or he was striving, perhaps not altogether felicitously, to harmonize both notions. "The third possibility is the one that seems more likely." Crowe, 82.

What Gratian appears to be saying is that there is overlap between the Law and the Gospel (which contain some, but not all the natural law) and the natural law strictly speaking (some, but not all of which, is revealed in the Law and the Gospel). The intendment of Gratian is perhaps best depicted through a Venn diagram:

Gratian's Overlapping Definition

That this is what Gratian intended appears almost compelled by his comments in Distinction 6, canon 3. There Gratian says: "Natural law is contained in the Law and the Gospel, but it can be shown that not everything contained in the Law and the Gospel pertains to the natural law." Gratian there distinguishes between the moral precepts such as the prohibition against murder, and the cultish or sacificial (symbolic or mistica) precepts of the Mosaic Law. "Moral commandments pertain to the natural law and so they seem unchangeable. Nevertheless, the symbolic precepts conjoined with the natural law, insofar as they deal with observances, may be seen to be different from natural law . . . ."

In lege et evangelio naturale ius continetur; non tamen quecunque in lege et evangelio inveniuntur, naturali iuri coherere probantur. Sunt enim in lege quedam moralia, ut: non occides et cetera, quedam mistica, utpote sacrifitiorum precepta, et alia his similia. Moralia mandata ad naturale ius spectant atque ideo nullam mutabilitatem recepisse monstrantur. Mistica vero, quantum ad superficiem, a naturali iure probantur aliena, quantam ad moralem intelligentiam, inveniuntur sibi annexa; ac per hoc, etsi secundum superficiem videantur esse mutata, tamen secundum moralem intelligentium mutabilitatem nescire probantur.

It would appear, then, that when Gratian used the word "contained" (continetur) in his definition of the natural law he appears to be using it in a non-exclusive or non-identifying sense. For Gratian there is natural law outside the revealed, divine law, and there is revealed, divine law that is distinct from the natural law. Further clarification is provided by Gratian in his Distinctione 9, canon 11:

Since, therefore, nothing is ordered by natural law unless God wishes it, and nothing is forbidden [by natural law] unless God forbids it, and since everything in the canonical Scriptures is divine ordinance, divine ordinance is consonant with nature. Clearly, then, whatever is contrary to the divine will or canonical Scriptures is also contrary to the natural law. Whence, if it is shown that something is subordinate to the divine will, canonical Scriptures, or divine ordinances, then it is subordinate to natural law too. So, both ecclesiastical and secular enactments are to be rejected entirely if they are contrary to natural law.

Cum ergo naturalis iure nihil aliud precipiatur, quam quod Deus vult fieri, nihilque vetetur, quam quod Deus prohibet fieri; denique cum in canonica scriptura nihil aliud, quam in divinis legibus inveniatur, divine vero leges natura consistant: patet, quod quecumque divinae voluntati, seu canonicae scripturae contraria probantur, eadem et naturali iuri inveniuntur aduersa. Unde quecumque divinae voluntati, seu canonice scripture, seu divinis legibus postponenda censentur, eisdem naturale ius preferri oportet. Constitutiones ergo vel ecclesiasticae vel seculares, si naturali iuri contrariae probantur, penitus sunt excludendae.

So Crowe concludes from all this:

The matter seems obvious and the point would hardly be worth making were it not that Gratian's definition was so often, in his immediate successors, during the Middle Ages at large and even in some contemporary scholars, interpreted as identifying the natural law and the divine law of the scriptures. . . .

[Gratian's] own view, despite his unhappy way of expressing it, was the relatively innocuous one that the Scriptures contain the natural law, without exhausting its provisions while, on the other hand, not all that the Scriptures contain can be said to be natural law.

Crowe, 82, 85. This appears to be not only the judgment of Crowe, but of Dario Composta, of Rudolf Weigand, and of Brian Tierney:

Dunque la Rivelazione non è il contenuto, ma sol il contento del Diritto Naturale. (Accordingly, Revelation is not the content, but only the container of the Natural Law) [Composta].

Nach Gratian besteht aber keine volle, sonder nur eine teilweise inhaltliche Gleichheit zwischen Naturrecht un Hl. Schrift. (According to Gratian, there not a full, but only a partial substantial identity between Natural Law and the Holy Writ.) [Weigand]

Natural law and divine law were not, then, really identical in Gratian's thought; rather, the two categories overlapped. [Tierney]

(sources quoted in Crowe, 83 n. 30).

Whatever confusion Gratian inadvertently engendered (and if the Jesuit Suarez is to be believed, it was not Gratian but his Glossators who ought to be blamed for suggesting any identity between natural law and divine law), this was dissipated by the 16th and 17th centuries by which time his definitions lost their influence.

Portrait of Gratianus Monachus

(English translations of Gratian's Decretum from Augustine Thompson, O.P., trans., Gratian: The Treatise on Laws (Washington, D.C.: Catholic University of America, 1993).