Selections from Three Works. Francisco Suárez

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СКАЧАТЬ authorities, do not constitute law of the kind with which Suárez and other natural lawyers were concerned. For they do not carry the force of moral obligation, which genuine law must do: an unjust law is not a true law (nam lex mihi esse non videtur, quae iusta non fuerit).1

      How similar was the moral theory of Suárez and his Catholic contemporaries to those of subsequent Protestant natural law theorists? We can best compare Suárez with Pufendorf, who more than Grotius was to develop a serious theory of obligation and its moral psychology, and who shared with Suárez a similar conception of moral obligation’s nature. In both thinkers natural law is imposed by a divine will and command communicated to us through our natural capacity for reason. Moreover, for both thinkers the moral obligation attaching to actions that comes with natural law, though imposed by divine commands, is not taken simply to be the property of being divinely commanded. Rather, moral obligatoriness is taken to be a distinctive mode of justificatory support or force, a vis directiva, as Suárez terms it, which divine commands generate. The force of obligation, communicated through what Suárez terms praecepta, or preceptive commands, parallels and operates alongside the force of advice that is communicated through consilia, or counsels. Where the force of consilia recommends, or leaves what they support advisable or a good idea, the force of praecepta binds and leaves what they support obligatory. Both forces or modes of support are the voice of our reason, and both directly address the will, our capacity for choice and decision, which is viewed as a capacity for free action. The natural law binds and obliges us freely to choose or decide on action that is morally good and against action that is morally bad.

      This conception of moral obligation as a justificatory force binding a free will is very distinctive and is clearly absent from Locke’s treatment of duty or obligation in An Essay Concerning Human Understanding. There Locke may appeal to natural law, but this law comes to no more than a series of punishment- or sanction-backed commands applying to the various actions we might decide on or will. There is no distinctive vis directiva of obligatoriness generated by those commands that applies to and binds the will itself.

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      Despite this shared theory of obligation, Suárez and Pufendorf differ fundamentally in the remaining moral theory to which this theory of obligation is attached. We come to know of the content of the natural moral law, Suárez thinks, on the basis of a pre-legal grasp of what actions are morally good or bad. This grasp of a pre-legal morality of virtue, Suárez thinks, is possessed both by Christians and by rational pagans such as Aristotle, on whose theory of virtue Suárez, like other schoolmen, generally relies. Knowing what is morally good and bad, and knowing too through reason that God exists and that in freely creating us with a rational nature he wills an obligation on us to act morally, we can form rational conclusions as to both the existence of the natural law and the nature of its content. Whereas for Pufendorf, there is no pre-legal theory of virtue and vice, of moral good and bad, available to us. The notion of action that is morally good or bad simply is the notion of action that, under natural law, is permitted or prohibited. Aristotle is accorded no special authority, and moral theory has to be constructed from a general theory of advantage or disadvantage that is pre-moral and that applies to human and animal alike. This theory of pre-moral or natural good and bad has advisory force for us as rational beings and is then used by Pufendorf to generate the theory of moral law that is to bind our exercise, as rational beings, of our free will. We use reason to conclude from what is naturally good and advisable to what is obligatory, on the basis of God’s will that we should do what is naturally or pre-morally good or advantageous.

      Suárez’s theory of moral obligation as a vis directiva governing free choices of the will is linked, then, to a traditionally Aristotelian-scholastic theory of virtue and of the moral good (honestum) and bad (turpe). In this he is like other Catholic thinkers of the second scholastic. Where he differs from many early modern Catholic thinkers is in his understanding of all law as legislated and as the exercise of some power of jurisdiction. For his fellow Jesuit Gabriel Vásquez or a Franciscan thinker such as John Punch, moral obligation was indeed a vis directiva. But it no more needed a legislator than did the recommendatory force of consilia. Just as some actions could be sensible or a good idea without some act of divine advice making them so, so too some actions could be obligatory and others prohibited

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      or wrong without some act of divine command making them so. A major part of the theory of moral obligation that is developed in De legibus is, then, a defense of the idea that all obligation, including that of the natural law, depends for its generation on the legislative command of a superior. Suárez is accordingly committed to embedding all law and obligation within a general theory of legislation and legislative authority that extends to an ultimate and supreme legislative authority—that of God himself. The universe involves a cosmic legislative hierarchy in which its creator is also the ultimate creator of every law. Any man-made authority or law with the power to bind us owes its obligatory force to divine authority and to its legislation.

      Suárez’s political thought concerns both the nature of political authority in its own right and its relation to the mission and authority of the Catholic church. In this respect it goes beyond the strict concerns of the natural law on which the temporal authority of the state is based. For besides the natural law that directs us to a lower or imperfect natural happiness as conceived by rational pagan and Christian alike, there is also a supernatural or divine law, given through revelation in the Old and New Testaments, that directs us to a higher and perfect supernatural happiness that we can know of only through divinely granted faith, and attain only with the help of divinely granted grace. The divine law of the New Testament does not abrogate but goes beyond the natural law, and the authority of the church is based on that divine law. It is within this generally accepted framework that Suárez and his fellow Jesuits developed a theory of the state and its relation to the church.

      Like fellow Jesuits such as Robert, Cardinal Bellarmine, and Luis de Molina, Suárez teaches that the temporal authority of the state is based independently of that of the church and is not directly subordinate to or derived from church authority. Political authority is originally given by God, not to any individual or individuals—individuals are naturally free, lacking any original authority or dominion one over another—but to human communities considered as societates perfectae, united by consent and capable as a unity of directing their affairs without external help. This authority could then be transferred by a community’s consent to individual rulers or princes, as it mostly had been. This transfer was viewed

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      as a form of alienation. That is, the authority could not be recovered by the community unless the conditions attaching to its original transfer had been broken, as would definitely happen if the ruler embarked on a form of tyranny that amounted to a war on his own community, which Suárez terms a war on his own state.

      Jesuit writers were then agreed that the church had no direct temporal authority over earthly rulers. Since Christ’s kingdom was not of this world, the pope was no princeps mundi, exercising earthly sovereignty over the whole world. This consensus within the order was contrary to the views of a number of previous canonists, and even of some popes including, most recently, Pope Sixtus V, who had died in 1590 when just about to proscribe Bellarmine’s denial of direct papal temporal authority by placing his works on the index of prohibited books. Nevertheless the church and its earthly head the pope still had a spiritual authority over all baptized Christians, rulers and princes included. And, like his Jesuit brothers, Suárez taught that since spiritual ends were higher than temporal ones, with this authority came an indirect temporal authority to be exercised over, and for the spiritual benefit of, Christians. So the pope had the authority if necessary to absolve Christian subjects from their allegiance to spiritually abusive rulers and to punish rulers who themselves were Christian, such as heretical rulers, with sanctions ranging from the imposition of spiritual penalties, such as interdict and excommunication, to outright deposition should spiritual ends require this. Belief in at least this СКАЧАТЬ