Harvard Law School Library

Bracton Online -- English

Previous   Volume 2, Page 26  Next    

Go to Volume:      Page:    

[001] in which men may seek pardon for their sins. There must also be priests, from whom
[002] we may receive penance for our sins, who may pray on our behalf and obtain for
[003] us the aid of God and His providence. The public interest also requires that there
[004] be magistrates appointed in the state, for through such persons, men pre-eminent
[005] in the doing of justice, the law is given effect. For it is of little value that law
[006] exists in the state if there are none to administer it.15

What private law is.

[008] 16Private law is that which pertains primarily to the welfare of individuals and
[009] secondarily to the res publica. Hence we say that it is in the public interest that no
[010] one misuse his own. And so conversely, that which is primarily public looks secondarily
[011] to the welfare of individuals. Private law has a threefold division: it is
[012] deduced partly from the rules of natural law, partly from those of the jus gentium
[013] and partly from those of the civil law.17 18We have spoken above of public law and
[014] private law. Now we must explain 19what natural law is, what the jus gentium is,
[015] and what civil law (which may sometimes be called custom) is. For whom and
[016] when, by custom or by a constitutio of the prince, the law may be curtailed is
[017] discussed hereafter.20

What natural law is.

[019] 21Natural law is defined in many ways. It may first be said to denote a certain
[020] instinctive impulse arising out of animate nature by which individual living things
[021] are led to act in certain ways. Hence it is thus defined: Natural law is that which
[022] nature, that is, God himself, taught all living things. The word ‘quod’ is then in
[023] the accusative case and the word ‘natura’ in the nominative. On the other hand,
[024] it may be said that the word ‘quod’ is in the nominative case, so that the definition
[025] will be this: Natural law is that taught all living things by nature, that is, by
[026] natural instinct. The word ‘natura’ will then be in the ablative case.22 This is what
[027] is meant when we say that our first instinctive impulses are not under our control,
[028] but our second impulses are. That is why, if a matter proceeds only as far as simple
[029] sensual pleasure, not beyond, only a venial sin is committed. But if it proceeds
[030] farther, to the contriving of something, as where one puts into practice what he
[031] has shamefully thought, it will then be called a third impulse and a mortal sin is
[032] committed.23 And note that for the reason that justice is will, taking into account
[033] rational beings only, natural law is impulse, regard being had to


15. D. infra 166, 305; Lewis in Speculum, xxxix, 262 n.

16. Br. and Azo, 29,30, 32

16-17. Azo, Summa Inst. 1.1, no. 12

18. Br. and Azo, 32, 33

19-20. Azo, Summa Inst. 1.1, no. 12

21. Br. and Azo, 32-5, 39

21-25. Azo, Summa Inst. 1.2, nos. 1-2

22. Cortese, i, 53-4, 56-9; Tierney in Jour. of the Hist. of Ideas, xxiv, 307-22

23. ‘contrahitur,’ as Azo. For the last three sentences: O. Lottin, Psychologie et morale au xii et xiii siˆcles, ii, 1, 493-589; A. M. Landgraf, Dogmengeschichte der fr’hscholastik, iv, 2, 36-47

Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College