ALex naturalis and Ius naturale,@ The Jurist 68 (2008) 569-591; slightly revised version in (published here) Crossing Boundaries at Medieval Universities, ed. Spencer E. Young (Education and Society in the Middle Ages and Renaisance, 36. Leiden-Boston: Brill, 2011) 227-253
Lex naturalis and Ius naturale
Kenneth Pennington
After
the air attacks of September 11, 2001 the 
osed. Streets that remained open were provided with
retractable barriers. A security cordon around the White House was greatly
expanded. The public was
denied entrance
to the grand staircase on the West side of the Capitol buildings. Armed police were placed on every corner of
Capitol Hill twenty-four hours a day. To
secure perimeters metal bollards were placed around buildings and public spaces
at a cost of $10,000 each. They could not protect against air attacks or
suicide bombers ― only truck and car bombs ― but that fact did not
deter the frenzy of construction that still continues. Thousands of bollards were put in place. The
directors of every government agency stumbled over one another to arrange that their
spaces be surrounded by these symbols of fear.
The question that every director in Washington must have asked
themselves again and again was “How could their buildings be bereft of these
symbols that made a public statement of their
importance?” Even the coal burning steam plant on Capitol
Hill ― the worst source of pollution in
To
answer that question we have to go back to the Renaissance of law in the
twelfth century. Ius and lex were terms of
Roman law. The first jurist to examine lex and ius in detail was named Gratian who taught canon law in
Gratian recognized two major elements of
human law: ius and mos. He connected ius with natural law and lex
with the Old and New Testaments. Human lex did not enter into his discussion
― yet. To understand Gratian’s
awkward introduction one must remember that legislative institutions were just
beginning to appear in twelfth century society; custom regulated society not leges.
If Gratian had written his introduction a century later he very likely
might have written: “Humanum
genus duobus regitur, naturali uidelicet et positivo iure.”[3] But the canonists had not yet invented the
term “ius positivum.” To define “ius naturae” he relied on Matthew
7:12. Ius commands each person to render unto others what each person
would want others to render unto her ― the Golden Rule.
Gratian
patterned his thought and borrowed his terminology from texts that he found in
Justinian’s Digest. There he found a statement by the ancient
jurist Gaius who also defined the law that governed human society:
All peoples who
are ruled by lex and mos partly use their own ius and partly the ius that is common to all men. The ius that each nation has constituted for itself is called the ius civile; almost as if it were a ius proprium of that city. What,
however, the natural reason of men establish and is used by all men equally, is
called the ius gentium, almost as if
all human beings use that ius.[4]
Gaius began with lex but quickly switched his terminology to ius. Ius can be common to all men, but ius also governs each city.
This ius proprium is also
called ius civile. The ius
gentium that is common to all men is established by human reason. Gaius’ statement is followed by an excerpt
from Ulpian, which was the Roman version of the Golden Rule and gives another
meaning to ius:[5] “Justice is the constant and perpetual will
of giving everyone their ius.” Ulpian implicitly pointed out that ius also means right and that justice
can be defined by rendering everyone their proper rights. He continued by observing that there were
three precepts of ius, to live
honestly, not to injure other people, and to render everyone their ius.[6]
The
Roman jurist Paul discussed the equivocal meanings of ius immediately after Ulpian’s text:
The term ius can be used in several ways.
In one way ius means what is always
equitable and good, as ius naturale. In another way what is in the interest of
all or of many in a state (civitas),
such as the ius civile…Yet another
meaning of ius is to describe the
place in which ius is vindicated, the
name having been given by him who renders ius
on the place where he does it. We can know where that place is by
wherever the praetor decides to exercise his jurisdiction, preserving the
majesty of his authority and respecting the mos
of our ancestors. That place is correctly called ius.[7]
Paul’s definition is interesting and
important for two reasons. First, he
gave ius a meaning that connects it
with equity and equity’s handmaiden, justice.
Particularly important is the emphasis that he gave to the meaning of ius naturale. It could have its literal meaning, natural
right, but it also meant all actions that are equitable and good. Paul’s definition would have a rich Nachleben in the jurisprudence of the ius commune.[8] Second, he calls upon a very old tradition
in Roman law that defined ius as the
place where justice was rendered.[9]
Gratian
and the jurists had these texts of Roman law to draw upon for their ideas about
ius and lex, but Gratian exploited another source, Isidore of Seville’s Etymologies, for much of his thinking about the two terms. Isidore discussed law in book five of his
great encyclopedia, but his ideas about law did not enter into the Western
legal tradition until Gratian. In the
first version of his Decretum that
has been preserved in the manuscript tradition, Gratian did not analyze “law”
for his students. Later, probably in the
early 1130s, he drafted a Tractatus de legibus
that he placed at the beginning of his text.[10] In choosing to compile a treatise on laws
Gratian imitated the organization that he knew from Justinian’s Digest and radically changed the way in
which canonical collections had been previously arranged. His focus on the concepts of law as an
introduction to canon law was adopted by all subsequent canonical collections.[11]
There
is, however, a puzzle. Gratian could
have turned to Roman law as the main source of his treatise on
laws. He did not.
Instead he drew upon the great encyclopedic work of the last of the
Latin Church Fathers, Isidore of Seville.
As I have already mentioned, Gratian could not have found Isidore’s
texts in earlier canonical collections; he must have directly used the Etymologies.[12] For the theme of this paper and for the
development of Western jurisprudence, we are lucky that he did. Gratian placed Isidore’s most significant
text on ius naturale on the first
page of his Decretum.[13] Isidore’s definitions of ius naturale inspired jurists for centuries. But before Gratian turned to ius naturale he defined the most common
form of law in his own times, custom. He
incorporated a text of Isidore in which a contrast was drawn between ius, mos,
and lex:
Consuetudo is a sort of ius established
by mos and recognized as lex when lex is lacking. It does not matter whether it is confirmed by
writing or by reason, since reason also supports lex. Furthermore, if lex
is determined by reason, then lex
will be all that reason has already confirmed --- all, at least, that is
congruent with religion, consistent with discipline, and helpful for
salvation. Consuetudo is so
called because it is in common use.[14]
Custom was related to ius when grounded in mos
and could be recognized as lex when
there was no lex. Reason was the fundamental core principle of
custom and lex. Early glossators on Gratian’s Decretum were careful to point out that
custom did not have to be in writing, but lex
was lex because it was written. Gratian underlined the written character of lex by citing Isidore in the only place
in his Tractatus where he offered a
definition of lex: Lex
is a species of ius; lex is a written constitution. Fifty years later Huguccio, the greatest
canonist of the age, commented:
Lex
commands what is just and prohibits the contrary. Lex
is so named because it binds, or because it is read as writing, or because it
legitimately functions by rewarding those who observe it and punishes those who
transgress its rules.[15]
Huguccio defined lex as a prohibition imposed on human beings. It limits human behavior. He believed that lex came from “ligare ― to bind.” Consequently, lex remained true to its etymological origins. At the end of the twelfth century the Roman
jurist Azo expanded on the meaning of lex
in his Summa on Justinian’s Codex:
Lex is sometimes defined narrowly and sometimes broadly. An example of a narrow definition is when a
statute of the Roman people is called a lex. . . A lex is the common opinion of men who are
learned in the law. . . Lex
is broadly defined when it is used to describe all reasonable statutes. Whence lex
is a sacred command, ordering honesty and prohibiting the contrary. Consequently it is the rule that governs just
and unjust people.[16]
It is important to notice that the jurists
never attributed the rich penumbras[17]
of meanings to lex that they did to ius.
Lex was a plebian hod carrier
of the law; ius was a term rich in
resonances. Ius reminded the jurists constantly of the transcendental
significance of a legal system. It
existed not just to establish right and wrong and to punish the wicked. It was the source of justice, equity, and
rights.
The
jurists created a penumbra for lex
that was concentrated not only on what was reasonable but also on consent. Gratian was the first jurist in the European
tradition who connected lex and
consent. In a famous passage he declared
that leges are established when they
are promulgated, but that they are valid when they are approved by the mos of those who use the leges.[18] In contrast, from early on, the penumbras
of ius were justice, equity, and the common
good. An anonymous jurist in the early
twelfth century graphically illustrates this point. In a gloss to Justinian’s Codex he described the relationship
between ius and justice:
Justice and ius are in effect the same or ought to
be the same. Whatever justice wants, ius strives to follow. It happens that sometimes . . . ius is not in concord with justice. When this occurs justice or equity interprets
that, if ius openly departs from
equity, we may ignore the authority of ius
and follow equity.[19]
Equity and justice belong in the realm of ius; no jurist would have thought about lex in the same way. This fact is illustrated by the way in which
the jurists talked about the hierarchy of laws.
They talked about ius divinum,
ius naturale, and ius gentium. These were not leges; they were iura.
For
the later jurists Ulpian’s and Gratian’s definition of justice dominated their
thought. Justice was the will to respect
the ius of others. It was a platitude in the legal
tradition. The platitude led them to
consider other definitions that did not focus on ius. The most prevalent of
these was a definition of justice that focused on a social contract. The idea that justice must not only be
connected with ius/rights but also
with the common good can be traced back to
The philosophers
define justice as the habitus of the
mind to render to every person what is his as long as the common good is
preserved.[23]
Justinian defined this concept in his definition when he would say, “Justice is
the constant and perpetual will,”etc.
“His” can refer to the receiver as well as to the giver. If it refers to the receiver then <his
right> ought to be regulated by the preservation of the common good. Justice refers to the common good in all
matters.[24]
Gratian shaped his first dictum that introduced the Decretum from the theological and the legal traditions. He made a key connection between the two that has gone unnoticed.
The theological tradition had long connected
the Golden Rule with natural law. The
juridical tradition did not. One of the
first who connected the Golden Rule with natural law was Gaudentius of Brescia.[25] Prosper of Aquitaine linked the Golden Rule
to natural law in his commentary on the Psalms.[26] Haimo of Halberstadt († 853) declared in two
sermons and his biblical commentaries that natural law consisted of two
precepts: “Do onto others. . .”
and “What you do not want done to yourself, you should not do to others (cf.
Tobias 4:16). Whatever the law and the
prophets will ordain can be comprehended within these two precepts.”[27] Remigius of Auxerre († 980) rehearsed the
tradition in his commentary on Genesis.[28] In the late eleventh and early twelfth
century Rupert of Deutz († 1129-1130) declared that natural law is written in
the hearts of men and its expression was the Golden Rule.[29] Hugh of St. Victor († 1141), whose work Gratian
might have known, and Honorius Augustodunensis († 1156) repeated the
tradition. The Golden Rule was a precept
and command of natural law.[30]
When
Gratian proclaimed at the beginning of his Decretum
that natural law was based on the Lex
and the Gospels and that the Golden Rule was the Lex and the Prophets, he drew upon a long theological
tradition. He also incorporated the two
traditional theological definitions of the Golden Rule: “One should do to
others what one would have others do to you,” and “You should not do to others
what you should not want done to you.”
These two precepts, one positive and the other negative, were very
similar to Ulpian’s definition of ius
that I quoted earlier.[31] Gratian, however, combined the Roman law and
the theological traditions in a way that would be of fundamental importance for
the future. He joined traditions and named them not lex naturalis but ius naturale. His change of
vocabulary enabled later jurists to incorporate the rich penumbras of meaning
for ius, which as we have seen, were
completely lacking in the definitions of lex. Gratian added his Tractatus de legibus to a later stage of his Decretum. Recently scholars
have vigorously debated the chronology of Gratian’s work.[32] Some scholars have placed his teaching
activity in Bologna to the late 1130’s or the early 1140’s.[33] Others have argued for a much earlier date.[34] Whatever the date of Gratian’s Tractatus de legibus his linking of ius naturale to the Golden Rule must be
seen in the context of the acceptance of ius
into the language and thought of jurists outside the schools.
At
about the same time that Gratian was drafting his Tractatus de legibus the Roman jurisprudence of ius began to enter the language of papal
letters in the 1130s. This development is not surprising. The papal curia began to cite Roman law in
papal decretals during the 1120s.[35] The arengae of a letter from May 2, 1132
quotes either the text of the Institutes
or the Digest:
Quemadmodum iuris
praecepta seruantibus expedit alterum non laedere, ita etiam conuenit suum ius
unicuique tribuere.
In
1139 another letter of Innocent II contained a slight variation of the same
formula:
[36]
Quemadmodum iuris
precepta servantibus expedit, alterum non ledere, ita etiam eis imminent, ius
suum unicuique tribuere.
There is an intriguing variation of this Innocentian
arenga that Philip Caesar printed from a damaged, now lost manuscript. It is probably dated 1133. He presented the damaged text as follows:[37]
Quemadmodum - - - - - - - alterum non
laedere; ita nimirum - - - - - - - - - - - - - - -
Caesar provided a conjectural text for the
lacunae:
[38]
Quemadmodum iuris naturalis est alterum non laedere, ita nimirum nostri officii laesum adiuvare.
How did Caesar arrive at what he called his “conjectura?” He did not think that the space after “Quemadmodum” was large enough to accommodate “iuris praecepta seruantibus expedit,” so he conjectured that “iuris naturalis est” was the text he could not read. It is a puzzle why he did not emend the text to “iuris praecepta est” unless he had some indication that “praecepta iuris est” was impossible.[39] Not only did it fit the text perfectly, but, as we have seen, it would have imitated what was a usage in Innocent’s Curia. Caesar transcribed the words that he could see clearly but never stated that he could not see any letters in the lacunae. In fact he states the contrary:.[40]
At the
beginning <the lines> were extremely stained and rubbed, so that no one
would be able to read them clearly. Nevertheless, whatever I myself have added; those things which could be clearly read I
have faithfully written down; from which conjectures had to be made from or
about the remaining <letters? words?>.
Caesar must have seen enough letters or the shadowy shapes of letters to make the emendation “nimirum nostri officii laesum adiuvare” because it is a unique formulation for a papal arenga during Innocent II’s pontificate. Indeed, it cannot be found in any other extant twelfth-century papal letter. The only twelfth-century papal formulas containing the word “nimirum,” which Caesar could have read if he had done the research, were completely different from his conjectured text.[41] If my hypothesis has any merit that Caesar constructed “ita nimirum nostri officii laesum adiuvare” on the basis of some evidence of what he could see, it may mean that his reading of “iuris naturalis est” was also based on something more than a blind guess. However, unless the manuscript that Caesar transcribed is found, my conjecture that “iuris naturalis” was an informed reading can only be speculation. Accordingly, Anders Winroth is right to argue that, contrary to my earlier conclusions, the letter cannot be used to demonstrate a definite connection between Gratian’s formulation of “ius naturale” and the papal curia.[42] These letters are, nevertheless, further certain evidence that the teaching of Roman and canon law in Bologna must have already been in full swing by the late 1120s and early 1130s and that Roman law jurisprudence was beginning to shape the work and thought of the papal curial officials.
We
have seen that until the twelfth century the theologians always used the term lex naturalis. In the thirteenth century they gradually
began to incorporate Gratian’s and the jurists’ change from lex naturalis to ius naturale into their thought.
We can trace the slow penetration of the term ius naturale into theological thought in Thomas Aquinas’
works. In his early works, especially
his commentary on the Sentences of
Peter Lombard (ca. 1256), Aquinas discussed natural law in depth but never used
the term ius naturale, only lex naturalis.[43] When Aquinas discussed natural law in his Summa theologiae (ca. 1265-1272), he
vacillated in his terminology between ius
naturale and lex naturalis.[44] As far as I can see he used the two terms
interchangeably, and he never drew upon the rich jurisprudential discussions of
the meanings of “ius.” Other evidence
points to Thomas’ having turned to and his becoming familiar with the legal
tradition only in his later works. He
cited Gratian’s Decretum seven times
in his Commentary on the Sentences
and 81 times in his Summa theologiae. It is not that Thomas was unaware or
uninterested in law in his early writings.
He cited papal decretals 32 times in his Commentary on the Sentences. I suspect that Thomas’ own Tractatus de legibus forced him to
confront Gratian’s Tractatus as he
was writing about law in his Summa
theologiae.[45]
Much
of the debate about Aquinas’ thought on natural law has focused on his ideas
about rights and whether his theory of natural law was compatible with the idea
of subjective rights.[46] Brian Tierney has argued that Aquinas had no
theory of subjective natural rights, although Thomas did recognize that ius could mean right and that right
could be a human facultas.[47] Aquinas frequently used the term facultas to describe a person’s right
and power to act.[48] He only rarely substituted the term ius for facultas.[49] This fact is, I think, some support for
Tierney’s argument that Thomas did not normally think of ius as a right or power and did not have a theory of subjective
rights. As Tierney has written, for
Aquinas “ius was primarily a thing (rem), something existing in external
nature.”[50]
I
would like, however, to make a slightly different argument from the concerns of
Tierney, Finnis, and others. As I have
shown Thomas came to the concept of ius
naturale late, and he never fully grappled with the full implications of
how Gratian and his successors thought of natural law as a set of precepts as
well as a set of rules or laws. As far
as I can tell Aquinas did not know the theological tradition that Gratian drew
upon when he attributed the Golden Rule to natural law. He only seems to have cited the Golden Rule
in his later works, the Summa theologiae
and his Commentary on Matthew. In these
later works Thomas never called the Golden Rule a precept of natural law. Most importantly I think that Thomas’
discussion of natural law was dominated by his language. For him natural law was lex naturalis, not ius
naturale. I believe that his
language shaped his thought.
It
would go far beyond the scope of this paper to prove conclusively (or to
disprove) the points that I have made in the previous paragraphs. All of Thomas’ use of lex naturalis and ius
naturale would have to be examined and compared in contextual and
chronological order. For purposes of the
argument in this paper let me here just give a couple of examples of Thomas’
discussion of ius naturale when he
defined the term in question 94.
Thomas
confronted natural law and Gratian’s definition of natural law directly in his Tractatus de legibus.[51] He began question 94 by discussing naturalis lex as a habitus. He had already connected habitus to lex naturalis
in his Commentary on the Sentences.[52] In doing so Thomas drew upon recent
theological thinking about natural law.
As we have seen, since
Gratian’s
definition of ius naturale that he
had taken from Isidore of Seville did not fit into Thomas’ scheme of
definitions. But it was such a
well-known text by the time Thomas wrote that he had to deal with it. He sidled up to Gratian belatedly when he
asked whether the lex naturae was the
same for all human beings in article 4 of question 94 and quoted Gratian’s
statement that ius naturale is what
is contained in the Old and New Testaments.
But since, he noted, these Judeo-Christian texts are not accepted by
everyone, lex naturalis is not common
to all people.[54]
He put forward several counterarguments, including the text of Isidore of
Seville that Gratian included at Distinction 1, canon 7.[55] Thomas resolved the contradiction that he had
posed by relying on Aristotle, not the jurists.
Those rules to which people are “naturally” inclined through reason
pertain to natural law.[56]
He was not comfortable or, perhaps it is more accurate to say, sympathetic with
Gratian’s approach to natural law. The
entire text of Isidore that Gratian included in his discussion of natural law
listed a series of precepts to illustrate his assertion that natural law was
based on the Golden Rule:
Natural law is
common to all nations. It has its origins in nature not in any
constitution. Examples of natural law are the union of men and women, the
procreation and raising of children, the common possessions of all persons, the
equal liberty of all persons, the acquisition of things that are
taken from the heavens, earth, or sea, the return of property or money
that has been deposited or entrusted. This also includes the right to
repel violence with force. These things and similar are never unjust but are
natural and equitable.[57]
Isidore/Gratian’s list of precepts was not
one of leges. The list is a set of human relationships
having their origins in nature (instinctu
naturae). All of these relationships
are encompassed by rights and duties.
Men and women have the right and the duty to mate. Men and women have the right and the duty to
raise children. Children have the right
to be raised, and the duty to honor their parents.[58] Isidore/Gratian turned to Roman law to
describe other precepts. People have the
right to claim ownership of res nullius
and the right of self defense.
As I have emphasized earlier, this text was
the most important one on natural law in Gratian’s Decretum. In it Isidore had
declared that ius naturale was common
to all nations. The canonists quickly
glossed “nations” as all persons who had been born, “nascentium.”[59] Ius
naturale was, they argued, not only common to all groups of people but that
ius was common to all human
beings. And if we remember Paul’s
definition of ius naturale, the jurists would have translated the
phrase into English ― if that were possible ― as “What is good and
equitable is a right of every person who has been born.”
Thomas,
however, did not read the text as the jurists did. For the jurists Isidore’s text was a list of
rights and duties. Consequently Thomas
stumbled when he confronted “the return of property or money that has been
deposited or entrusted” in Gratian/Isidore’s text. Modern readers have not always understood
that Thomas was reading Isidore in Gratian and not Isidore divorced from its
place in the Decretum. Thomas almost certainly understood that
returning a deposit was a common norm of natural law because it was in accord
with reason. This idea had a long
tradition. Thomas always emphasized that
reason was central to legitimizing the norms of natural law.
However, he must have asked himself, how could the Roman law contract of
deposit and commodatum be a general
norm of natural law? After all, there
were exceptions. Thomas did not understand
that Gratian expected Isidore’s text to be interpreted through the prism of his
opening statement on natural law.
Instead Thomas approached the text literally. Is it a norm of natural law that a gratuitous
contract of deposit or commodatum should always be fulfilled?[60] The obvious answer to his literal question is
no:
It is right and true that all things should be done according to reason. From this principle it follows as an almost inevitable conclusion that deposits must be returned. And indeed this is true in many cases. But it can happen that in a case it might be damaging and consequently would be irrational if a deposit was returned. For example if someone would use the deposit to wage war against his homeland. <Reason> can be deficient as one descends into particular cases. Consider if it were said that deposits must be returned with a stipulation or in another manner with particular conditions attached. In that case the many more reasons can arise that would make it not right to either return or keep the deposit.[61]
Thomas loses his grip on the legal rules governing the contract of deposit at the end. Cautiones or conditiones could not be attached to the deposit because the contracts of deposit and commodatum would then lose their unilateral and gratuitous nature. Nonetheless, it is clear, and that is the main point, Thomas thought of this section of Gratian/Isidore’s text more as a lex ― that is the rules of positive Roman law governing these contracts than as Gratian meant it to be: an example of the precept or the principle ius suum cuique tribuere. Of course, Thomas is correct that natural law must conform to what is reasonable. And, of course, Gratian and the jurists did not hold that the Roman law of deposit was founded on natural law. They understood, as Thomas himself argued in other parts of his Summa theologica, that even fundamental principles of natural law, like human liberty, were subject to exceptions.
Gratian certainly and Isidore possibly were thinking of deposit and commodatum as the manifestation of the foundational principle of ius naturale in this area of law: do unto others as other would do unto you. The depositor or lender had to depend on the depositary’s or borrower’s honor to return the property. The exceptions to the rule that deposits must be returned that Thomas sensibly proposed would not have posed difficulties for Gratian or Isidore. Both would have cheerfully endorsed Thomas’ exceptions to the rules governing deposit: If returning a deposit resulted in harm to others or to herself, then it should not be returned. Consequently, the Golden Rule had great moral and ethical force in gratuitous contracts and not in others that had consideration (do ut des) and conditions attached to them. That is why Gratian and Isidore chose these contracts for their illustration of a fundamental precept of natural law. Thomas did not see Gratian’s principle. He analyzed the contract of depositum and commodatum in positivistic terms. His first argument would have been persuasive to Gratian and the jurists: if the return of the property resulted in damage to the common good and was unreasonable, it should not be returned.
The jurists, however, understood Gratian’s point. If Thomas had read Huguccio’s gloss on Isidore’s text he might have seen gratuitous contracts in a different light. Huguccio made Gratian’s point exactly in his gloss to Isidore’s text at the end of the twelfth century:
“The return of
property or money that has been deposited or entrusted”: This by right (ius) or evangelical command, in which anyone is ordered to do unto
others what he wishes to be done to him, and anyone is prohibited from doing
unto others what she would not wish to be done to her. Reason and the judgment of reason approve
restitution of that which was deposited with me or was entrusted to me.[62]
Huguccio and the canonists saw that Gratian was using Isidore to give an illustration of a precept. He was not claiming that the Roman contracts of deposit and commodatum were in some sense an absolute principle of natural law. Rather, they were an illustration of a precept of natural law.
My main point here is that Thomas did not appreciate or perhaps know the distinction between lex and ius in medieval jurisprudence and the penumbras of meanings that encircled each term. If he had, I have no doubt that he would have adjusted his terminology and not used lex naturalis and ius naturale interchangeably. As we shall see the ambiguity of his terminology infiltrated theological and legal thought for centuries.[63] The consequences of this ambiguity would require a much more profound study than this essay.
When Thomas came back to Gratian at the end of article 4 of question 94, he returned to the question of whether all law contained in the Old and New Testament constituted natural law. The question that he posed in the beginning of the question is, to a certain extent, specious. No jurist or theologian ever claimed that all the precepts in the Judeo-Christian texts were tenets of natural law. Thomas conceded that he had constructed a straw man that did not reflect Gratian’s text accurately. He concluded:
It must be said to the original question that Gratian’s
comment ought not be understood that almost all law contained in the Old and
New Testament are laws of nature, since many things there are “above nature.”[64] But whatever constitutes natural law is fully
contained there. Consequently, Gratian
said immediately, as an example and as a clarification, “The ius of nature is what is contained in the
lex and the Gospel. By it, each
person is commanded to do to others what she wants done to herself.”[65]
Thomas’ summary of Gratian’s meaning is
correct. What he did not understand is
how Gratian’s conception of natural law as a precept that could be expressed by
the Golden Rule of the Judeo-Christian and Roman legal traditions was linked
with Isidore of Seville’s text in D.1 c.7.
Thomas
may not have understood Gratian, but his commentary on natural law in his Summa theologiae became a touchstone for
all later discussions in theology and law.
In part this was because the later canonists did not write commentaries
on Gratian’s Decretum and his Tractatus de legibus. Consequently, the jurists frequently turned
to Thomas and the theological tradition.
The only commentary on Gratian that circulated widely in the later
Middle Ages was Guido de Baysio’s Rosarium
that he finished around 1300. Guido was, as far as we know, the first canonist
to use Thomas commentary on natural law.
[66]
Nicholaus
de Tudeschis (Panormitanus) wrote one
of the only detailed commentaries on the first few chapters of Gratian’s Tractatus de legibus in the late Middle
Ages. He dealt with Thomas and Gratian
in his discussion of natural law.[67] Although his extensive commentary seems not
to have circulated widely and was not generally known, it is a good example how
important Thomas’ discussion of natural law had become by the middle of the
fifteenth century.
At
the beginning of his commentary Panormitanus quoted Thomas’ definition of
natural law that had become lapidary:
“natural law (lex naturalis)
is nothing other than the impression of divine illumination on us. Consequently, lex naturalis is every rational creature’s participation in the lex eternal.”[68] He expanded upon Thomas’ definition using his
language and terminology. In spite of
the legal tradition that eschewed the term lex
naturalis, Panormitanus repeatedly adopted Thomas’ terminology.[69] Thomas had stated that the first principle of
law and therefore of natural law was the necessity to do good and avoid
evil. Guido de Baysio had incorporated
Thomas’ text into his definition at the end of the thirteenth century but
obscured Thomas’ influence by attributing the text to Laurentius Hispanus (†
1248). Panormitanus corrected him and
changed Thomas’ text in a small but significant way. It was the first principle of the law (lex) of nature to do good and avoid
evil.[70] When Panormitanus reached Gratian’s central
text on natural law at D.1 c.7, his terminology began to become unstable. As we have seen when he wrote about natural
law drawing upon Thomas’ Summa theologiae,
he adopted Thomas’ lex naturalis consistently. When he began to discuss Isidore’s text,
however, he began to vacillate in his terminology:
Note that there
is only one lex naturalis for all
people, and therefore all people have one natural instinct. . . .
Note that lex naturalis is stamped
naturally on the hearts of people.
. . Note the nine examples of ius naturale that are placed here in the
text. Do not think that <ius>
naturale is restricted to these examples or that lex naturalis can be defined through them. Many other examples might be given.[71]
As he analyzed Isidore’s list of examples of
natural law, he reverted completely to the language of the jurists:
Among other examples note that the coupling of men and women is a norm of ius naturale, as the gloss notes, in so far as he says that, if this text is understood as the coupling of bodies then it ought to be understood as being a norm of ius naturale deriving from sensuality. If, however, it is understood as a coupling of souls, then the norm is just as ius naturale derived from reason.[72]
Panormitanus used Thomas’ terminology, mixed
in with the jurists’ ius naturale,
and did not seem to object to or perhaps even to have noticed his unstable
terminology for describing natural law.
Panormitanus’
mixing of juristic and theological terminology was not typical of the
jurists― although theologians, as far as I can see, adopted Thomas’ lex naturalis by the early modern
period.[73] For example Francisco Suárez († 1617) used lex naturalis almost exclusively when
writing about natural law in his comprehensive treatise on law ― except
when he turned to juristic thought.[74] But Aquinas formed the bedrock of his
discussion. Yet Suárez was far from a
positivist. In the debate about who was
and who was not an advocate of natural subjective rights most scholars have
agreed that Suárez had a clear doctrine of rights.[75]
Manuel
González Téllez († 1649) wrote one of the last extended canonistic discussions
of natural law that was framed by the medieval jurisprudential tradition in the
preface to his commentary on the Decretals of Gregory IX.[76] Like Panormitanus, Téllez used and cited
Thomas Aquinas extensively.[77] Only once, however, when discussing Thomas
and natural law, did he slip into Thomas’ terminology.[78] What is particularly striking is that Téllez
wrote about natural law primarily in terms of praecepta (precepts or maxims) not in terms of leges. The most fundamental
of these norms, wrote Téllez, was that human beings should and can distinguish between
good and evil.[79] For the remainder of these norms he turned to
the jurisprudential tradition. Human
beings should live honestly and should not injure their neighbors.[80] Lastly, to give each person his ius in
contracts, restitutions, and payments of debts, whose rendering may be assigned
to reason and natural equity.[81] All of these norms, Téllez concluded by
turning back to Gratian’s dictum at the beginning of the Decretum, can be found in the divine wisdom of Christ’s admonition
found in Matthew, chapter 7, “Do unto others as you would others do unto you.”[82]
I
should emphasize at this point that this essay could be an outline of what
would be a splendid book on the legal and theological evolution of thought on
natural law in the Western tradition.
The later medieval and early modern jurists and theologians that I have
not examined in this essay ― which are many ― might provide
surprising twists, turns, and corrections to the generalizations that I have
put forward in this essay.
The
book would be well worth writing. The
issues are still very much with us today.
We very much have to agree upon conceptions and definitions of “What is
good and equitable” to which all human beings and nations can pledge their
allegiance. When Pope Benedict XVI addressed
the participants of the International Congress on Natural
Moral Law in Rome on February 12, 2007 he talked about natural law:
The capacity to
see the laws of material being makes us incapable of seeing the ethical message
contained in being, a message that tradition calls lex naturalis,
natural moral law. . . From it flow the other more
particular principles that regulate ethical justice on the rights and duties of
everyone. So does the principle of respect for human life from its
conception to its natural end, because this good of life is not man's property
but the free gift of God. Besides this is the duty to seek the truth as
the necessary presupposition of every authentic personal maturation. Another
fundamental application of the subject is freedom. Human
freedom is always a freedom shared with others. It is clear that the harmony of
freedom can be found only in what is common to all: the truth of the human
being, the fundamental message of being itself, exactly the lex
naturalis. And how can we not mention, on the one hand, the demand of justice
that manifests itself in giving unicuique suum and, on the other, the
expectation of solidarity that nourishes in everyone, especially if they
are poor, the hope of the help of the more fortunate?[83]
Unwittingly Benedict separated and confused
the two traditions that we have been examining.
His terminology obfuscates issues that should be clear and precise. What are “particular principles”: laws, rights, or principles? The jurists made no distinction between ius naturale and justice and equity,
and, as we have seen, an important aspect of justice was preserving the common
good. More significantly when Benedict
thought about what constituted an example of lex naturalis, which he calls a principle, he proposed a universal lex:
the respect for and preservation of human life from conception to its
natural end. Thomas Aquinas might have
found fault with this principle or lex
in the same way that he objected to gratuitous contracts being called general
principles of natural law. Do not human
reason and human ideas of justice find ways to end lives between conception and
death, he might ask? The death penalty
and the killing fields of war are two examples that he would certainly have
cited. As Thomas pointed out, how can
something be called a principle of natural law if there are generally held
exceptions to it?[84]
What
Benedict overlooks is his Church’s own jurisprudence. It is what every jurist, even the pagan Roman
jurists, had understood for centuries: ius embodies justice and ius naturale in its purest form contains
equity, justice, and reason in its DNA.
It did not contain a set of leges.
I
would argue that the shift in terminology and thought that we have followed has
impoverished natural law thought. Modern
jurists’, theologians’, and the Holy Father’s understanding of ius naturale has changed
dramatically. Where medieval and early
modern jurists thought of ius naturale as
a set of precepts, rights, and duties encapsulated in ius, modern thinkers have embraced positivistic sets of rules,
prohibitions, and norms, shaped and fashioned according to each of their belief
systems, that are and always have been the defining feature of lex.
Human beings may never agree on universal rules of a lex naturalis, but they might agree on
universal precepts of a ius naturale.
Finally, to answer the
question that I posed at the beginning of this essay: why were the bollards surrounding the Supreme
Court provided with the word “Lex?” The answer is undoubtedly “ignorantia iuris.”