Gratian and the Natural Law: Concordance and Discordance in the Natural Law, Part 1

GRATIAN IS ONE OF THOSE CHARACTERS whose biography is wholly out of whack with his contribution to history. The fact is that we know precious little of the monk Gratian, Gratianus Monachus, or Master Gratian, Gratianus Magister. With a little more than speculation, based largely on tradition and no real contemporary evidence, we suppose that he haled from the village of Carraria, near Orvieto, that he was a Camaldolese monk of the monastery of Sts. Felix and Nabor in Bologna, and that he was a teacher at the famous law school in that city. He died sometime around 1160 A.D. His most famous work, the Concordia discordantium canonum (Concordance of discordant canons), also know as the Decretum, was published around 1140 A.D. plus or minus some years either way. His tomb has not been found; it is not among those tombs of many eminent jurists buried in Bologna where it might have been expected. As Katherine Christensen states in the introduction to the translation of part of the Decretum (the "Treatise on Laws" or DD. 1-20) published by the Catholic University of America: "Gratian's real monument is, and always has been, his 'harmony of discordant canons,' the Decretum." (xi)

Portrait of Gratianus Monachus

Gratian has another honor. He has the distinction of being honored by Dante, who, in his Paradiso, places him in the Circle (Paradiso, Canto X), along with others who have contributed to the natural law and who we have discussed in this blog: St. Thomas Aquinas, St. Albert the Great, and St. Isidore of Seville.

Gratian and others in Dante's First Circle of Wisdom

Illustration by Giovanni de Paolo

Quell’ altro fiammeggiare esce del riso
di Grazïan, che l’uno e l’altro foro
aiutò sì che piace in paradiso.

That next effulgence issues from the smile
Of Gratian, who assisted both the courts
In such wise that it pleased in Paradise.

That smile of Gratian, which assisted the courts ecclesiastical and the courts civil so much so that it pleased Paradise and landed him among the Wise in Heaven, is his Decretum.

The Decretum was a private effort by a private man. Gratian had no official ecclesiastical sanction or charge or warrant when he poured over the numerous and splintered sources of law (Scripture, the Fathers, papal decrees, laws of synods, provincial councils and ecumenical councils, etc.) written or promulgated over the course of 11 centuries, many of the laws contradictory or seemingly so, and tried to make some sense out of them by harmonizing them, with greater or lesser success, in one convenient text for the good of his fellows. The Decretum was therefore, for canon law and canon lawyers, a gratia gratis data. But though a private effort, its effect on officialdom was massive:

From the time of its publication, and despite the fact that it was never officially recognized by the Church or enjoyed any juridical status greater than that of a private collection of canons, the Decretum Gratiani dominated the canon law of the Middle Ages and after . . .

Crowe, 73. Relying heavily on St. Isidore's Etymologies, which we explored in our last blog posting (see St. Isidore of Seville: A Natural Law Encyclopedist), Gratian's definition of natural law was to have significant influence upon the centuries that followed, and as a consequence, so were St. Isidore of Seville's definitions upon which Gratian so heavily borrowed.

Die Definition des jus naturale in den Etymologien des Isidor ist von Gratian übernommen und dadurch auch Gemeingut der Scholastik geworden.

M. Grabmann, "Das Naturrecht der Scholastik von Gratian bis Thomas from Aquin" in Mittlealterliches Gesitesleben, I, p. 69 (quoted in Crowe, 74, n. 7) (trans: The definition of ius naturale [natural law] in the Etymologies of Isidore was taken over by Gratian and through him also became common property of the Scholastics.)

Title Page from Gratian's Decretum

Gratian supplied not one, but two definitions of natural law. The first he expressly and verbatim obtained from St. Isidore's Etymologies. The second (which equates the natural law with the Law and the Gospel) appears to have been "Gratian's personal contribution to the subject." Scholars dispute its source. Some say Gratian relied generally upon the Augustinian tradition in fashioning it. Others (e.g., Rudolf Weigland) say it is a borrowing from Pope Urban II's (1088-99 A.D.) Epistolae et Privilegia n. 278 (151 PL 535) or at least the thought behind it. Others (e.g., Lottin) see its source in the teaching of the school of Anselm of Laon (see St. Anselm of Laon: Natural Law as Locus Spatiosus, a "Large Place" and St. Anselm of Laon: Glossing the Natural Law) and Hugh of St. Victor (see Hugh of St. Victor: Sacraments of the Natural Law). Crowe, 74, 79-81. Crowe explains this process:

What these theologians, the school of Anselm [of Laon] and Hugh of St. Victor, did was to take a commonplace of Patristic theology--the idea of the natural law as primitive law given to man and reiterated after the fall because of man's inability to obey or even to discovery it--and to add the New Law (represented by the phrase of Matthew 7:12) to the Old Law or the Decalogue. The Fathers normally gave the summary of the law of the New Testament from Matthew 22:39--the precept of loving God and loving one's neighbour, in which "is contained the Law and the prophets." The theologians [Anselm and Hugh] prefer the Golden Rule of Matthew 7:12 (together with its negative formulation in Tobit4:15). This appeal to different texts hardly constitutes an essential difference between the medieval theologians and the Fathers in the question of the natural law. In following the theologians Gratian touched on a long tradition.

Crowe, 81.

Crowe criticizes Gratian, suggesting that the confusion already engendered by St. Isidore was only further exacerbated by Gratian. According to Crowe, in the area of the natural law, Gratian created more disharmony, not less. St. Isidore had already injected a confusion between natural law and divine law, and Gratian's equating of the natural law with "what is in the Law and Gospel," quod in lege et evangelio continetur, was simply a further confusion of the two concepts. We shall address this issue at greater depth in our next blog posting. But here we shall end by quoting the definitions of the natural law in the Decretum Gratiani:

The human race is ruled by two things, namely, natural law and usages. Natural law is what is contained in the Law and Gospel. By it, each person is commanded to do to others what he wants done to himself and prohibited from inflicting on others what he does not want done to himself. So Christ said int he Gospel: 'Whatever you want men to do to you, do so to them. This indeed is the law and the Prophets."
Thus Isidore says in Etymologies, V, ii:

C.1. Divine ordinances are established by nature, human ordinances by usages.

§1. All ordinances are either divine or human. Divine ordinances are determined by nature, human ordinances by usages; and thus the latter vary since different things please different people.
§2. Morality is divine ordinance. Law is human ordinance.
§3. To pass through another's field is moral, but it is not legal.
From the text of this authority one can understand clearly how divine and human ordinances differ, since whatever is moral is included in the term "divine or natural ordinances," while by the term "human ordinances" we understand the usages drawn up in writing and passed on as law. Law is a general term containing many species.

Humanum genus duobus regitur, naturali videlicet iure et moribus. 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. Unde Christus in evangelio:
"Omnia quecunque vultis ut faciant vobis homines, et vos eadem facite illis. Haec est enim lex et prophetae." Hinc Ysidorus in V. libro Ethimologiarum [c. 2.] ait:

C. I. Divinae leges natura, humanae moribus constant.

§1. Omnes leges aut divinae sunt, aut humanae. Divinae natura, humanae moribus constant, ideoque he discrepant, quoniam aliae aliis gentibus placent.
§2. Fas lex divina est: ius lex humana.
§3. Transire per agrum alienum, fas est, ius non est.

Ex verbis huius auctoritatis evidenter datur intelligi, in quo differant inter se lex divina et humana, cum omne quod fas est, nomine divinae vel naturalis legis accipiatur, nomine vero legis humanae mores iure conscripti et traditi intelligantur.

D.1, P. 1, C. 1.

The natural law is also defined by Gratian in Canon 7 of Distinction I.

C. 6. What the species of law are.
§1. Law is either natural, civil, or that of nations.

C. 7. What natural law is.
§2. Natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment.
§3. For example: the union of men and women, the succession and rearing of children, the common possession of all things, the identical liberty of all, or the acquisition of things that are taken from the heavens, earth, or sea, as well as the return of a thing deposited or of money entrusted to one, and the repelling of violence by force. This, and anything similar, is never regarded as unjust but is held to be natural and equitable.

C. VI. Que sint species iuris.
[Isidor. eod. c. 4.]
Ius aut naturale est, aut ciuile, aut gentium.

C. VII. Quid sit ius naturale.
[Isidor. eod. c. 4.]
§1. Ius naturale est commune omnium nationum, eo quod ubique instinctu naturae, non constitutione aliqua habetur.
§2. Ut viri et feminae coniunctio, liberorum successio et educatio, communis omnium possessio et omnium una libertas, acquisitio eorum, quae celo, terra marique capiuntur; item depositae rei vel commendatae pecuniae restitutio, violentiae per vim repulsio. Nam hoc, aut si quid huic simile est, numquam iniustum, sed naturale equumque habetur.

D.I, P. 2, CC. 6-7.

Is the natural law what is contained in the Law and the Gospels? Is the natural law the Commandments and the Golden Rule (in its negative and positive formulations)? Or is that which is common to all nations because it exists everywhere through natural instinct, not because of any enactment? Or is it, in the harmonizing spirit of Gratian himself, both?

That will be our focus in our next blog posting.

(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).

St. Isidore of Seville: A Natural Law Encyclopedist

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."

Miniature of St. Isidore Writing his Etymologies

"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.

St. Isidore Among the Wise in Dante's Paradiso

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.

II. DE LEGIBVS DIVINIS ET HVMANIS. [1] Omnes autem leges aut divinae sunt, aut humanae. Divinae natura, humanae moribus constant; ideoque haec discrepant, quoniam aliae aliis gentibus placent. [2] Fas lex divina est, ius lex humana. Transire per alienum fas est, ius non est.

Etym., V.ii.1. (For the meaning of fas see May All Our Laws Be Farious!)

St. Isidore of Seville (San Ysidro de Sevilla)

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.

IV. QVID SIT IVS NATVRALE. [1] 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. [2] 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.

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.

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.

VI. QVID SIT IVS GENTIVM. [1] 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.

Etym., VI.vi.1. The third big division in St. Isidore's definition of the law is his definition of civil law.

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.

V. QVID SIT IVS CIVILE. [1] Ius civile est quod quisque populus vel civitas sibi proprium humana divinaque causa constituit.

Etym., V.v.1. This is the only definition that has escaped censure.

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.
Amen

(English translations of the Etymologies is taken from Stephen A. Barney, et al., trans., The Etymologies of Isidore of Seville (Cambridge 2007))

Statue of St. Isidore of Seville