Hierarchy of Laws
1. Divine Law
3. Positive Law (Ius positivum)
4. Custom
Köln, Erzbischöfliche Diözesan- und Dombibliothek 127, fol. 9r
Köln, Erzbischöfliche Diözesan- und Dombibliothek 127, fol. 9v
Link to the Manuscripts in the Cologne Cathedral Chapter Library
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Excerpts from Gratian's Tractatus de legibus
Gratian, De legibus, Distinctiones 1-20
The Human Race is ruled by two things: namely, natural law (ius naturale) and ancient usages of peoples (mos). Natural law is what is contained in the Law (lex) 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. Thus Christ said in the Gospel: "Whatever you want men to do to you, do so to them. This is the Law and the Prophets." [Matthew 7:12, cf. Luke 6:31].
Roman Law Source of Gratian's Opening Dictum
Definitions of law taken from Isidore of Seville, Eytmologies (c. 560-636 A.D.)
D.1
c.7: Gratian: "There is another type of
law as Isidore says in his Etymologies"
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.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.
The role of consent in the jurisprudence of legislation and government in the Ius commune
Three Principles of Legislation:
Quod principi placuit and Princeps legibus solutus est (Roman Law)
Quod omnes tangit ab omnibus approbari debet (What touches all must be approved by all) Canon Law
D.12 c.6: Long standing usages approved by the consent of those following them are like ordinances.
D.1 c.8: Civil law is what each people and each commonwealth establishes as its own law, for divine or human reasons.