Francisco Suárez - Theory of Law
Creators: name: Coujou, Jean-Paul
Publisher: name: Zenodo
Year: 2019

description: In the monumental work of Suárez (1548-1617), the question of law is the object of a specific imposing treatise, composed of ten books, published about 1612 in Coimbra, <em>On Laws and God the Legislator</em>. It is the result of the redaction of courses taught at the University of Coimbra between 1601 and 1603. This work, in virtue of its form and content, appears to constitute a continuation among others of the theological-juridical interpretation of law developed by his predecessors, especially Thomas of Aquinas, Francisco de Vitória, Domingo de Soto, Fray Luís de Léon and Luis de Molina. Nonetheless, one must note that, with regard to the totality of Suárez’s writings, this interrogation about law does not start nor even end with <em>De legibus</em>, since his writings reveal it respectively—if one focuses on the most recognized texts of the Suárez corpus—<em>De Bello </em>(On War), extracted from the third treatise entitled <em>De Fide, de Spe, de Charitate</em> (written in 1584 and published posthumously in 1621) and <em>Defensio Fidei, </em>published in 1613 and authored on command from Philip III, in response to the well-known controversy between Pope Paul V and James bearing on the conditions and the legitimacy of a possible autonomy of royal power with respect to the spiritual power.

Beyond these bibliographical considerations, it is first of all appropriate to note that the historical context within which the Suárezian reflection on the nature, the causes, the effects, and the aim of law inserts itself is complex. As a matter of fact, the sixteenth century confronts its well-informed observer with a series of crises to with Suarez is compelled in particular to respond: 1º) the decomposition of the unity of the old cosmos; 2º) the crumbling of spiritual unity with the Reformation and the reaction it engenders in the Counter-reformation; 3º) the deterioration of the show of political unity brought about by Machiavelli; and 4) the reformulation of ethical unity with the stream of the Renaissance and humanism with its emblematic representatives such as Erasmus  and Luis Vivès. In this sense, <em>De legibus</em> carries out a systematic effort of juridical determination on the foundations of political society in order to respond to the problems of its time: 1º) the institutional crisis of the Church and the Catholic reform brought about by the Council of Trent (1545-1563); 2º) the theological renewal which had been spawned at the beginning of the sixteenth century, especially by Vitoria under the influence of the university of Paris; 3º) the pursuit of a European peace depending on the friendship between England and Spain; 4º) the distinction between the spiritual power and the temporal power tied to the criticism of theocracy. By this, the way is open towards the question of tyrannicide and the right to revolt; to the reformulation of the social contract and the genesis of international law; this supposes likewise the resumption   of the heritage of Antonio Montesinos’ sermon of 1511 and the controversy of Valladolid in 1550 on the status of the American Indians condensed by the theses of Sepulveda and Bartolomé de las Casas, confronting the question of the recognition of a universal humanity and its juridical evolution.

However, it appears that the reflection in this context reaches the maturity of its formulation in <em>De Legibus</em>, on the basis of a synthesis of a triple heritage: 1) that of ontology or the science of real being, of its properties and  causes, elaborated in the <em>Metaphysical Disputations</em> (1597), seeking an intelligibility as much in the sphere of knowledge as in action; 2) in anthropology, developing a theory of the intellect and the passions, formulated in the <em>Tractatus de anima,</em> and 3) in the philosophical and theological commentaries on the work Thomas of Aquinas, directed toward action and its ends, freedom of the will, the search for the good, and the foundations of moral values. In this respect, it is possible to consider that <em>De Legibus</em> constitutes a work contributing to the achievement of its author’s system by the methodical articulation that is placed within the domains of anthropology, theology, ontology and politics.

The study of laws should allow one, in the light of Suárez’s theory of understanding and of man: 1) to establish by what conditions civil authority is capable of governing people in a fair manner and in line with human nature, 2) to explain why political society presupposes a regulative principle of human multiplicity (the law), as well as, by necessity, a consideration of the inner contradictions of human social nature (passions and reason); 3) to present the law as both the production of a rational being, free and finite, and also as a means of fulfilling one’s humanity.

According to this perspective, the examination of human nature reveals that the   mode of existence of human beings can be understood on the basis of three primordial spheres: that of the individual, that of being a member of a family, and that of being a participant in the political community. The latter requires an arrangement or a consensus for the ability to express a legitimate legislative power, even if it must recognize that historically power originally was from kingdoms and empires. Nonetheless, evoking the idea of a political community requires one to explain the reason why it could and have there a dissymmetry among humans with certain ones obligating others by means of laws. If man is born free as being uniquely bound to his Creator and if no one has the natural authority similar to His, how then could one comprehend and define a law that is not contrary to the natural order and that does not contradict the primordial nature of man?

The problematic structure of <em>De Legibus</em> allows us to extricate an argumentation in three phases: 1) man is a political animal and society is needed for the improvement of human life; 2) this society, however, could not be conserved without a political power that must be established in conformity with the norm of natural justice, founded on liberty and reason; 3) as a consequence, it is likewise necessary and natural that there be public authority; but how must the latter be conceived so that consent to the law may be legitimate and compatible with natural liberty and equality?