Distinction IV

GRATIAN. Part I. The reason for the establishment of laws is to restrain human audacity and to curb the capacity for doing harm, as Isidore attests in the same book [V, c. 20], saying:

Laws were made so that human audacity might be restrained by fear of them, innocence might be safe among the wicked, and the capacity for doing harm in the wicked themselves might be curbed through fear of punishment.

Part II. GRATIAN. Moreover, in the very establishment of laws, the quality of those to be established must especially be observed, so that they contain honorable character, justice, possibility, suitability, and the other qualities that Isidore enumerates in the same book [c. 21], saying:

A law shall be honorable, just, possible, according to nature, according to the custom of the country, suitable to place and time, necessary, useful, and also manifest, lest through obscurity it contain something unsuitable; written for no private advantage, but for the common utility of the citizens.

Part III. GRATIAN. These things must be considered in the very establishment of a law because, once laws have been established, it will not be free to judge concerning them, but it will be necessary to judge according to them. Hence Augustine says in the book On True Religion [c. 31]:

In the case of these temporal laws, although men judge concerning them when they establish them, nevertheless, once they have been established and confirmed, it will not be lawful for a judge to judge concerning them, but according to them.

GRATIAN. Laws are established when they are promulgated; they are confirmed when they are approved by the customs of those who use them. For just as some laws today have been abrogated by the contrary customs of those who use them, so the laws themselves are confirmed by the customs of those who use them. Hence that decree of Pope Telesphorus—by which he decreed that clerics generally fast from meat and delicacies from Quinquagesima—because it was not approved by the customs of those who use it, does not accuse those acting otherwise as guilty of transgression.

Telesphorus, Archbishop of the city of Rome, to all bishops [sole epistle]. We establish that for seven weeks before holy Easter all clerics called to the lot of the Lord shall fast from meat; for just as the life of clerics ought to be distinguished from the manner of life of laymen, so a distinction ought also to be made in fasting. Therefore, during these seven weeks, let all clerics fast from meat and delicacies, and let them strive to cleave by day and night to hymns, vigils, and prayers.

Likewise Ambrose, in the book of sermons. Lent has six weeks, to which the pontiff Telesphorus added a seventh week, and this period was called Quinquagesima.

GRATIAN. The same must be understood concerning that chapter which blessed Gregory [I] writes to Augustine, bishop of the English, saying:

Finally, priests and deacons and the others whom the dignity of ecclesiastical rank adorns shall undertake the resolve of fasting from Quinquagesima, so that they may both add something to the measure of the holy institution and surpass the observance of those who remain in the lay order in religion just as they do in station. §1. We are, however, uncertain what is to be said concerning that very Sunday, since all laymen and secular persons on that day seek foods of meat more carefully and more than usual on other days, and unless with a certain novel greed they gorge themselves until midnight, they do not otherwise think themselves to undertake the observance of this sacred season. This is certainly to be ascribed not to reason but to pleasure, indeed to a certain blindness of mind, from which they cannot be turned away from such a custom. Therefore, they are to be left to their own disposition with pardon, lest perhaps they become worse if they are prohibited from such a custom. For, as Solomon says: “He who presses hard draws blood.” And a little later. §2. It is fitting that on those days on which we abstain from the flesh of animals, we should also fast from everything that draws its origin from the seed-producing substance of flesh, namely milk, cheese, and eggs. And a little later. §3. Moreover, the eating of fish is left to a Christian in such a manner that it may provide him the solace of infirmity, not the kindling of luxury. Finally, he who abstains from meat is by no means to prepare more costly banquets of sea creatures. §4. We are also permitted to drink wine in such a manner that we altogether flee drunkenness; otherwise it remains that we should similarly do everything that pleases the body.

Part IV. GRATIAN. Although these things were established by laws, nevertheless, because they have not been approved by common usage, they do not accuse as guilty of transgression those who do not observe them. Otherwise, those not obeying these rules would be deprived of their own honor, since those who do not know how to obey the sacred canons are commanded to be entirely deprived of the office they have received—unless perhaps someone should say that these things were established not by decreeing but were written by exhorting. A decree creates necessity, whereas an exhortation arouses free will.