Hierarchy of Laws

Divine Law

Natural Law - Ius gentium

Positive Law (Ius positivum)

Custom

Gratian's Decretum (ca. 1160-1170 A.D.)

Köln, Erzbischöfliche Diözesan- und Dombibliothek 127, fol. 9r

 

Köln, Erzbischöfliche Diözesan- und Dombibliothek 127, fol. 9v

Köln, Erzbischöfliche Diözesan- und Dombibliothek 127, 10r

Köln, Erzbischöfliche Diözesan- und Dombibliothek 127, 10v

Gratian, De legibus, Distinctiones 1-20

Dictum before chapter 1, Distinctio 1:  The Human Race is ruled by two things:  namely, natural law and usages (mos).  Natural law is what is contained in the law and the Gospel.  By it, each person is commanded to do to others what he wants done to himself and is prohibited from inflicting on others what he does not want done to himself.

D.1 c.5:  Custom (Consuetudo) is a sort of law established by usages and recognized as ordinance when ordinance is lacking (gloss to "is lacking")
D.12 c.6:  Long standing usages approved by the consent of those following them are like ordinances.
D.1 c.6:  Law is either natural, civil, or that of nations.
D.1 c.7:  Natural law is common to all nations because it exists everywhere through natural instinct not because of any enactment.
D.1 c.8:  Civil law is what each people and each commonwealth establishes as its own law, for divine or human reasons.
D.1 c.9:  The law of nations (Ius gentium) deals with the occupation of habitations, with building, fortification, war, captivity, servitude .  .  .
D.2:  Definitions of Roman legislation
D.3:  Definitions of canon law
D.4 dictum after c.3:   Ordinances are instituted when they are promulgated;  they are confirmed when they have been approved by the usage of those who observe them.

Gratian's Decretum with the Ordinary Gloss of Bartholomaeus Brixiensis (ca. 1250 A.D.)

 

Bologna, Collegio di Spagna, 281, fol. 1r

Bologna, Collegio di Spagna, 281, fol. 1v

 D.5 dictum before c.1:  Now, let us return to the difference between natural law and other laws.  Natural law receives first place among all others because of it s age and dignity.  For it began with the appearance of rational creatures and does not change over time, but remains immutable.
D.6 dictum after c.3 (p.22):   Customary law began after natural law when people began to gather as one and live together.
D.8 dictum before c.1:   Natural law differs from custom and enactment.  By natural law all things are common to all people .  .  . So Plato lays out the order for a very just commonwealth where no one considers anything his own.
D.8 dictum after c.1:  Now natural law similarly prevails by dignity over custom and enactments.
Gloss to D.1 c.1: "is moral":  that is, it is equitable when there is a reason and the passing through does not disturb another .  .  . Again, by divine law it is permissible to eat grapes in another's field but not to take them away. (p.4)
D.9 dictum after c.11:  Since therefore nothing is ordered by natural law unless God wishes it, and nothing is forbidden unless God forbids it, and since everything in the canonical scriptures is divine ordinance, divine ordinance is indeed consonant with nature.
D10:  Ecclesiastical law is superior to secular law
D.11-D.12:  Ordinances abrogate or derogate custom