Liberty and Law: The Idea of Permissive Natural Law, 1100-1800

10. Francisco Suarez

10 Francisco Suarez In turning from Protestant theological disputes to Spanish neoscholasticism we might seem to be entering a wholly different world of thought. Suarez and Hooker, for instance, were close contemporaries but in some ways they look like polar opposites, the one a Spanish Jesuit the other an English Protestant. However, they shared a common heritage of scholastic philosophy—though Suarez was the more massively learned of the two in that field—and there were some significant resemblances in their thought. Both writers presented theories of law evidently influenced by Aquinas and both departed in some ways from the teaching of the master. In his treatment of natural law one might say that Suarez was faithful—in his fashion. He often quoted Aquinas and took Thomistic texts as the starting point of an argument , but he carried the argument to conclusions that Aquinas had not envisaged. That is true of Hooker too, of course. In particular, the two thinkers both developed theories of permissive natural law that were not overtly present in the work of Aquinas; but they did so in different ways and for different reasons. Hooker’s doctrine is interesting and important but it was only ancillary to his main purpose of defending the disputed Anglican practices against Puritan criticisms. For Suarez the idea of permissive natural law was of major importance in his whole structure of juristic thought. 193 194  Natural Law and International Law Law, Reason, and Will A central problem that Suarez faced was to incorporate a doctrine of permissive law into a theory of legislation that treated all law as an expression of the will and command of a sovereign legislator, divine or human. Given the centrality of this issue concerning the source and nature of law in the work of Suarez, it is understandable that modern writings on his juridical thought have most commonly focused on philosophical problems relating to the elements of voluntarism and rationalism in his work, with frequent discussions of the convergences and differences between his views and those of Aquinas . We shall also need to consider this theme, but only briefly insofar as it helps to explain how Suarez’s doctrine influenced his treatment of natural law and its permissions. Suarez published his major work on jurisprudence, the Tractatus de legibus et legislatore Deo, in 1612. He inherited the work of generations of earlier Salamanca scholars who had written on similar themes, beginning with Vitoria, together with the writings of numerous medieval jurists and theologians whose work he knew and frequently cited.1 (Suarez studied Roman and canon law for several years before embarking on his life-long career as a theologian.) His own work provided a massive synthesis of this material and a sort of encyclopedic overview of earlier ideas along with his own distinctive contributions. We can best approach the teaching of the De legibus by considering a series of definitions of the key terms jus (right) and lex (law) that Suarez presented in the early chapters of his work and that were drawn into his later discussions. According to Suarez the word jus had three basic significations. In its first sense it meant “What is just” 1. For a recent introduction to Suarez’s thought with an extensive bibliography of modern work see J. Pereira, Suarez: Between Scholasticism and Modernity (Milwaukee: Marquette University Press, 2007). On Suarez’s political theory see H. Rommen, Die Staatstlehre des Franz Suarez (München-Gladbach: VolksvereinsVerlag , 1926); R. Wilenius, The Social and Political Theory of Francisco Suarez (Helsinki : Suomalaisen Kirjallisuuden Kirjapaino, 1963); J. H. Burns, ed., The Cambridge History of Political Thought, 1450–1700 (Cambridge: Cambridge University Press, 1991), 216–41, 292–97. Francisco Suarez  195 or “What is justly due to anyone”—the original definition of Aquinas .2 But jus could also mean what we should call a right, “a moral faculty that anyone has either regarding his own thing or something due to him; thus the owner of a thing is said to have a right (jus) in the thing and a workman is said to have a right to his wage.”3 And, finally, jus could mean the same as lex (law). “According to another etymology ... right (jus) seems properly to signify law.”4 In his subsequent definitions of lex Suarez did not dissent from the view of Aquinas that both intellect and will were involved in an act of legislation .5 But whereas...