Distinction VIII

GRATIAN. Part I. Natural law also differs from custom and positive law. For by natural law all things are common to all, which is believed to have been observed not only among those concerning whom it is read, “The multitude of believers had one heart and one soul,” etc., but is also found to have been handed down by philosophers from an earlier time. Hence in Plato that city is presented as most justly ordered in which no one knows his own private attachments. By the law of custom or positive law, however, this is mine and that belongs to another. Hence Augustine says upon John [Tractate VI on John 1, §25]:

By what law do you defend the estates of the Church, divine or human? We have divine law in the divine Scriptures, human law in the laws of kings. Whence does each person possess what he possesses? Is it not by human law? For by divine law, “The earth is the Lord’s and its fullness.” God made the poor and the rich from one clay, and one earth supports the poor and the rich. Therefore, by human law it is said: “This estate is mine, this house is mine, this servant is mine.” Human laws, moreover, are the laws of emperors. Why? Because God distributed those very human laws to the human race through the emperors and kings of the world.

Likewise. §1. Take away the laws of the emperor, and who dares to say: “This estate is mine, this servant is mine, this house is mine”? But if these things are held by men, the laws of kings made it so. Do you wish us to keep silent about the laws, so that you may rejoice? etc. Likewise. §2. Let the laws be read in which the emperors manifestly commanded that those who, apart from the communion of the Catholic Church, usurp for themselves the Christian name and are unwilling peacefully to worship the author of peace should dare to possess nothing in the name of a church. §3. But you say: “What have we to do with the emperor?” Yet, as I have already said, human law is at issue. The Apostle wished kings to be served, wished kings to be honored, and said: “Revere the king.” Do not say, “What have I to do with the king?” What, then, have you to do with a possession? Possessions are possessed through the laws of kings. You have said, “What have I to do with the king?” Do not call the possessions yours, because you have renounced those very human laws by which possessions are possessed.

Part II. GRATIAN. In dignity, however, natural law simply prevails over custom and positive law. For whatever things have either been received by customs or comprehended in writings, if they are opposed to natural law, are to be held vain and void. Hence Augustine says in Book II [Book III of the Confessions, c. 8]:

Disgraceful acts that are contrary to human customs are to be avoided according to the diversity of customs, so that the compact of a nation among itself, confirmed either by a city’s custom or by law, may not be violated by the lust of any citizen or foreigner. For every part that does not accord with its whole is shameful. §1. But when God commands something contrary to the custom or compact of any people, even if it was never done there, it is to be done; if it was omitted, it is to be restored; and if it was not established, it is to be established. §2. For if a king is permitted in the city over which he reigns to command something that neither anyone before him nor he himself had ever commanded, and obedience is not contrary to the society of his city—indeed, disobedience is contrary to that society, for it is a general compact of human society to obey its kings—how much more must God, ruler of all his creation, be served without hesitation in those things that he commands? For just as among the powers of human society a greater power is placed above a lesser for obedience, so God is placed above all.

Likewise Pope Nicholas to Hincmar, archbishop of Rheims. An evil custom, no less than a pernicious corruption, is to be avoided. Unless it is very quickly uprooted entirely, it is assumed by the impious as having the force of privileges, and transgressions and various presumptions, if not most swiftly suppressed, begin to be venerated as laws and perpetually observed in the manner of privileges.

Likewise Augustine, Book II On the One Baptism [Book III On Baptism, against the Donatists, c. 6]. “When truth has been made manifest, let custom yield to truth”: plainly, who would doubt that custom should yield to manifest truth? Likewise: “Let no one place custom before reason and truth, because reason and truth always exclude custom.”

Likewise Gregory VII to Wimund, bishop of Aversa. If perhaps you oppose custom, it must be observed that the Lord says: “I am the truth.” He did not say, “I am custom,” but “the truth.” §1. And certainly—to use the judgment of blessed Cyprian—every custom, however ancient, however widespread, is altogether to be placed after truth, and a usage that is contrary to truth is to be abolished.

Likewise Augustine, in the book On the Baptism of Infants [Book III On Baptism, against the Donatists, c. 5]. He who, having despised truth, presumes to follow custom is either envious and malignant toward the brothers to whom truth is revealed, or ungrateful toward God, by whose inspiration his Church is instructed. For the Lord says in the Gospel: “I am,” he says, “the truth”; he did not say, “I am custom.” Therefore, when truth has been made manifest, let custom yield to truth. Thus, when revelation of truth has been made, let custom yield to truth, because Peter also, who was circumcising, yielded to Paul preaching the truth. Therefore, since Christ is the truth, we ought to follow truth rather than custom, because reason and truth always exclude custom.

The same, in Book IV On Baptism [against the Donatists, c. 5]. “In vain,” he says, “do certain persons who are overcome by reason object custom to us, as though custom were greater than truth, or as though that which has been revealed as better by the Holy Spirit ought not to be followed in spiritual matters.” This is plainly true, because reason and truth are to be placed before custom. But if truth supports custom, nothing ought to be retained more firmly.

Likewise Cyprian [in the epistle to Pompeius against the epistle of Stephen]. A custom that had crept in among certain persons ought not to prevent truth from prevailing and conquering. For custom without truth is the antiquity of error; therefore, leaving error behind, let us follow truth, knowing that even in Esdras truth conquered, as it is written: “Truth is strong and grows strong forever, and lives and prevails for ages of ages.”

The same [in the epistle to Jubaianus, around the middle]. One who errs in simplicity can be pardoned, as blessed Paul the Apostle says concerning himself: “I who formerly was a blasphemer and persecutor and injurious; but I obtained mercy because I acted ignorantly.” But after inspiration and revelation have been given, he who perseveres in that in which he had erred no longer sins knowingly and prudently under the pardon of ignorance; for he relies upon a certain presumption and obstinacy when he is overcome by reason.

The same [Book II, epistle 3, to Caecilius]. If Christ alone is to be heard, we ought not to attend to what someone before us thought ought to be done, but to what Christ, who is before all, first did. For human custom ought not to be followed, but God’s truth, since God speaks through the prophet Isaiah and says: “In vain do they worship me, teaching the commandments and doctrines of men.”

GRATIAN. It is therefore clearly apparent that custom is placed after natural law.