In the ordinary gloss on a word in Gratian’s Decretum, D.10 c.1, one finds the phrase “Et sic utor pro me quo non utor contra me”—“And so I use for my sake what I do not use against myself.” Coming as it does in the context of Distinction 10, which is entirely about the relationship between imperial legislation and ecclesiastical law, the gloss seems to summarize the Church’s entirely pragmatic attitude toward civil law. Indeed, the pragmatism embodied by both D.10 c.1 and the gloss mentioned here seems almost modern, despite its great antiquity. Catholics today—especially Catholics considering primarily juridical questions, including the important question of the relationship between Church and state—may well find the Church’s historical pragmatism surprising.
The Church’s pragmatism ought to be considered carefully as Catholics develop their thought with an eye on life after liberalism. It is convenient—and emotionally satisfying, to a great extent—to adopt rigorous, inflexible attitudes toward this or that juridical structure as it currently exists. One may claim that the structure is hopelessly wicked and must be rejected altogether. Indeed, one may claim that the entire system is hopelessly wicked and must be rejected altogether. However, D.10 c.1 and the gloss mentioned here demonstrate that such attitudes are not consistent with the Church’s historical approach. The Church, beginning in the patristic age and continuing to the present day, has adopted an attitude that examines civil laws with a critical eye—but not a prejudiced one.
First things first: what is going on with canon 1 of Distinction 10? It begins by establishing categorically that imperial legislation may not be used in ecclesiastical litigation. The first reason offered for this is that imperial laws sometimes are contrary to evangelical or canonical laws. Next, quotations from St. Innocent and St. Gregory are offered to establish the principle that imperial laws are subordinate to the divine law. The canon concludes by noting that imperial laws are not to be rejected altogether, not least because the Church herself claims their protection against heretics and the wicked.
The Church, therefore, has long recognized that civil legislation—in the context of D.10 c.1, imperial legislation—may be contrary to the divine and natural law. The Church has also long recognized that its laws take precedence over civil legislation.
The canon notes that the Church invokes imperial legislation against heretics and tyrants (and other malefactors). It is on this point—on the word heretics specifically—that the ordinary gloss makes the statement “And so I use for my sake what I do not use against myself.” In this terse statement one finds the essence of the Roman pragmatism that animates the entirety of D.10 c.1—indeed, the whole of D.10. There is no contradiction between the principle that imperial legislation may be at variance with the eternal and natural law, the principle that the imperial legislation is subordinate to the ecclesiastical law, and the principle that the Church takes advantage of beneficial legislation when it can.
The ordinary gloss is the most influential of the explanations of the canonical corpus, especially Gratian’s Decretum. As in scripture or poetry, a gloss is simply an explanation of a word or phrase. In the context of the early canon law, these glosses began as notes made for lectures by masters, at first in between lines and later surrounding the text. However, over time the glosses became standardized and the great canonists of each generation added their own glosses to those who came before them. The ordinary gloss—so called because of its widespread use—was firmed up in the thirteenth century and became an important source for understanding the decretals of Gratian (and the subsequent compilations). Just as one might expect today of a treatise or hornbook, the ordinary gloss packs a lot of information about a canon and its place within the body of canon law into the margins. Consequently it is an invaluable source for understanding the reception and interpretation of the underlying canon law.
But the principle at work is much older than the ordinary gloss. Canon 1 is drawn from Pope Nicholas’s letter to the council of bishops at Convicinum, written around 863. As one might expect, this letter was known to canonists before Gratian. For example, Ivo of Chartres collected it in a couple of places—both in his Panormia (2.138, 140) and his Decretum (4.86). Anselm of Lucca also included it in his Collectio canonum (12.37). All of this is to say that Gratian did not emphasize Nicholas’s letter or the pragmatic principle it embodies on a whim: he was following a tradition. And Gratian followed the tradition throughout the development of the Decretum. Both the first recension (available in Anders Winroth’s edition in progress) and the second recension (in Friedberg’s edition) include D.10 c.1.
Furthermore, the pragmatic principle is emphasized throughout Distinction 10. Canons 2, 3, and 4 each nullify civil legislation that is in some manner contrary to the evangelical, prophetic, or apostolic law, or the law as handed down by the bishops of Rome. These statements are of even greater antiquity than Nicholas’s letter. Canon 2 collects a statement of Pope Symmachus to a Roman synod around 500. Canon 3 a statement of Pope Felix III in a letter of the 480s. On the other hand, Canon 7 quotes Augustine in support of the principle that, where the civil law is of aid to the Church, there is nothing wrong in seeking the benefit of those laws. It is noteworthy that Augustine cites the example of St. Paul in establishing this principle (cf. Acts 22:25-29). One finds, therefore, scriptural and patristic support for the pragmatism of D.10 c.1 and the gloss.
Augustine’s citation of Acts 22 is particularly relevant. Paul was on the verge of being flogged at the behest of a hostile crowd in Jerusalem. At the crucial moment, Paul announced his Roman citizenship and asked whether it was legal to flog a Roman citizen without a trial. Certainly one does not imagine that Paul, in taking advantage of this law, endorsed the Emperor Nero or other aspects of the Roman state. Nevertheless, in that moment, Roman law was useful to an apostle and was employed shrewdly.
It may well be that structures under liberalism are irremediably corrupt. In fact, everything under liberalism may well be irremediably corrupt for whatever reason. But these things are no more corrupt than the law of Justinian, noted in the ordinary gloss, that permitted divorce contrary to the evangelical law. Throughout D.10, the Church recognizes that civil laws may well be wicked. However, the Church also recognizes that civil laws may be useful to the Church. Rather than ultimately fruitless condemnations of entire states and juridical structures, however emotionally satisfying they may be, the role of lay Catholics, particularly lay Catholics with some actual knowledge of the civil law, ought to be assisting the pastors of the Church in determining what laws may be useful and in what way.
Pat Smith