De locis theologicis

It is truer, however, that the discipline of human law can be useful to a theologian in many ways. If canonical learning is necessary for him, and knowledge of civil laws is so closely joined and connected to it that the one can scarcely be separated from the other, then the theologian must claim civil law too, as connected with canon law. Lucius III attests that the statutes of sacred canons are supported by the constitutions of princes, and in turn support them (De novi operis nuntatione, I). Hence the Italian saying has become a common proverb: “The jurist without a chapter is worth little, but the canonist without law is worth nothing.” Further, pontifical laws generally use civil authority and reasoning. Knowledge of civil law will therefore not be foreign to a theologian, who ought to be familiar with pontifical law. Augustine also does not object if heretics take the laws of the earthly empire as their aid, for the Apostle did so. A theologian should be all the more approved if, against heretics, he invokes the authority of civil laws when he rightly discusses the arrangement of temporal affairs or morals as established or to be established in the commonwealth. Augustine himself often does this against the Donatists. For

I do not wish to cite a particular passage, since St. Augustine has already used this approach in many places. Further, a theologian must sometimes enter into a discussion of justice and law. He will be foolish indeed if he wishes to neglect what the most distinguished men have seriously said about law. Moreover, how often must a theologian distinguish right from wrong and equity from its opposite in covenants, stipulations, other contracts, ownership, prescription, wills, donations, witnesses, judges, and hundreds of other such matters? Very often indeed, if he is believed to have the duty of guarding souls from danger and providing for their salvation. For injustice is a mortal sin. It is no wonder, then, if I require some knowledge of law from someone who must hear the confessions of many and answer many questions about injustice. What could a theologian say about such matters that would treat restitution aptly and precisely? Could he be a sound judge of justice and equity even in the forum of conscience unless he borrowed much from jurists and civil prudence? Certainly not. For although a theologian, helped by the books of philosophers and St. Thomas, may distinguish justice from injustice, he will do so only in general; he will not do so in particular without some knowledge of law. These matters may seem more obscure when discussed at length without examples. They should be illustrated by examples, since they seem to have been argued more subtly than necessary. I will offer a few of many examples, for to give them all would be endless. First: suppose a penitent says he has scruples about certain goods that he possesses by long prescription, that he has received as a gift from another man’s wife, that he acquired under a will that was not solemnly executed, or that came to him intestate. Second: suppose a penitent says that he is involved in litigation over some matter and does not know whether he should yield the suit or may rightly pursue it. Third: suppose a firstborn son asks a theologian whether he commits mortal sin if he does not provide his sisters with just marriages, pay the debt his parent contracted, and care for and protect the entail. What of a donee: is he bound by debts? What of a landowner: may he exact certain customary gifts from his subjects and bind them to customary burdens, whether real or personal? We like the jurists’ terms in this place; we need not always speak with exact diction. Indeed, it is better not to be too concerned about names and sometimes to be accommodating and imprecise, as Plato already warned us in Thaeateto et in Politico. But that is by the way. Let us return to our subject. Why say more? Is it beyond a theologian’s powers to define specifically when injustice is committed in judgments, contracts, last wills, and sometimes even crimes, when countless cases arise that cannot be defined by natural law? If this is so, as it certainly is, it would be extremely arrogant to despise legal expertise in such questions. Legal expertise cannot be investigated more wisely or found more reliably than in the volumes of law, which are surpassed by no other volumes of philosophers either in eloquence or prudence. I mean the fifty books of the Pandects. For later laws have departed greatly from them in both respects.

If Cicero thought that the little book of the Twelve Tables surpassed the libraries of all philosophers in both authority and usefulness, what should we believe about those fifty books, which contain not only the laws of the Twelve Tables but also many other wise and sacred prescriptions concerning human agreements, law, and equity? It is a sacred volume, I say, and Justinian rightly called it a temple of justice. Since civil law is known to have arisen from the sacred philosophy of morals, a theologian will cultivate its streams as well as its source, lest his religious devotion to philosophy itself be inadequate. Whoever thinks civil law should be neglected by a theologian tears away a good part of moral philosophy, whose support he would seem foolish to deny to someone discussing morals. Because a theologian often uses the support of law in theological disputation, I have therefore added this knowledge of law to theology as a handmaid and attendant.