Human positive law (with respect to all the considerations relevant to the theme of the eternal law and the natural temporal law) is unable to be reduced to the mere expression of the principles of the natural law. Though it receives its reason for existing by its conformity to the latter,16 it nevertheless assumes a specific extension because of its historic application.17 Regarding the tempo-ral law—insofar as it is distinct from the eternal law of God18—Suárez makes a distinction between the natural and the positive. The natural moral law, Suárez explains, is itself temporal because it is created conjointly with man, as something distinct from the eternal law of God, which is specifically the law of an uncreated being. The positive law, in turn, is subdivided into divine or canonical law (possessing a supernatural character and belonging to the sphere of grace) and human law. Book III of De legibus takes as its point of departure the study of the positive human law, while referring to book IV for an examination of the divine or canonical temporal law. In fact, just as nature supposes grace, human law will need to be considered as anterior to the divine law, according to the order of its generation.19 Thus, if grace accommodates itself to nature, in order to govern the human community the nature of man as such requires “communication and equitable relations of inferiors with supe-riors both reciprocally and between the members themselves, only in the domain of external acts.”20 In this sense, there should be a reaffirmation of Thomas Aquinas’s proposition,21 which claims that obedience to human beings should be reduced to the sphere of bodily behaviour, i.e., corresponding
22 Suárez, De leg., 3.11.6 (ed. Vivès, vol. 5, p. 213).
23 Ibid., 3.11.6 (ed. Vivès, vol. 5, p. 213).
24 Des lois (op. cit.), I, 3, n. 21, p. 129.
25 De leg., 3.11.6 (ed. Vivès, vol. 5, p. 213).
to the order of human and sensible subjects. In the same way, one confirms that the canonical tradition, as Suárez recalls,22 habitually establishes an anal-ogy between civil law and the body, and between canon law, the body, and the spirit. The finality of civil law consists in morality and the search for a utility inscribed in the temporal realm, which corresponds to living together (namely, the social peace and justice of the State), whereas canon law aims fundamen-tally at the salvation of the soul and the abstention from sins.23 Thus, civil law
“is going to direct the political government to the city, the protection of tempo-ral rights, and the maintenance of the State in peace and justice. These bodily or temporal goods constitute, accordingly, the object of civil laws.”24
For these reasons, and to respond to the need for clarity and the satisfaction of a methodological imperative of expository convenience, it seems fitting to have the study of human law as a starting point, even though canon law actu-ally represents a more eminent subject. This eminence can be rationactu-ally explained in the following manner: as soon as the spiritual good of this life is identifiable with a disposition intrinsically ordered toward supernatural hap-piness, the political power, which by itself does not orient men toward such a happiness, can no longer pretend to direct toward this end; a power’s raison d’être appears inseparable from the final end that it pursues, and the manner by which it prepares us to reach it. It thus appears that civil power, not being directed to the supreme happiness of the future life, cannot lay claim to exist for the spiritual happiness of the earthly life. One must conclude—and this has repercussions for the methodological order—that the immediate finality and subject matter of a power appears proportionally articulated; these do not possess a sense of reference to the final end of all power that constitutes the intelligibility and reason of being. And, as a consequence, the categoriza-tion of human law into civil law and canon law is there to confirm that
“the civil power does not have as its final end the supernatural happiness of the future life, nor that of the present life.”25 In conformity to these distinc-tions, in order to produce the specificity and intelligibility of the positive human law, it is primarily required, from a methodological point of view, to determine its origin, its form, and its content, as well as the limits and condi-tions of its promulgation. Secondly, one must explain the nature, necessity, the formal requirements, and the type of obligation that it is bound to include among these subjects.
26 Ibid., 3.1.2 (ed. Vivès, vol. 5, p. 176).
27 Ibid., 3.1.2 (ed. Vivès, vol. 5, p. 176).
28 Machiavelli, Discours sur la première décade de Tite Live in Œuvres (Paris, 1952), I, XII, pp. 414–417. See p. 415: “In this way, therefore, it is the duty of princes and heads of a republic to maintain in its foundations the religion that is professed; for there is nothing easier for keeping his people religious, and, as a consequence, good and one. Also all that tends to favor religion should be welcome, although one would recognize the falsity; and one is bound to this the more one has wisdom and knowledge of human nature.”
When one considers the notion of the positive law, it comes by means of a process of abstraction, implicated in its distance from the divine law and the human law. Positive human law is divisible into the law of the people (‘iuris communis’) and the law that consists of an element of a proper law (‘iuris proprii’), which concerns a specified community.26 The critical examination of the law of nations having been accomplished, it is fitting to analyze human law in its particularity, which corresponds appropriately to the human positive law, and manifests the specific law of a community or State. The division of human law into civil and canonical should not lead one to forget that the latter, if it can claim to be universally common with the same recognition as the Church, nevertheless corresponds, historically and socially, to the Church of Christ; however, it could still be shared by the assembly of peoples, who are not all part of the Church.27 Accordingly, it becomes possible and legitimate to distinguish two conditions in the civil law: one that is characterized by its sim-plicity, such that it has existed among the pagans and is found among the infi-dels, and the other in harmony with the faith, and manifested in the practice among the faithful of the Church.
The deepened study of canon law will allow Suárez to specify the action of religion in the constitution of a community. Religion, he maintains, is effective in unifying the conscience of citizens. In that way it likewise seems that the relations of the governors to the governed—who, in the logic of obedience, constitute the rule of every political community—only become effective on the basis of a common religion. This latter point, as the principle of unification and affirmation of the people, could only lead to identifying a pure political invention intended to preserve the prince or the republic from corruption, as in the view of Machiavelli.28 For Suárez, the Catholic faith, by the same stan-dard as justice, represents a legitimate foundation of communitarian unifica-tion. In this sense, because it refers to the supernatural order just as the concept of the mystical body is applied to the political body to indicate the unity of all the community’s members, the critical examination of canon law should con-firm the presence of a unity only valid in the spiritual realm. In the same way,
29 Suárez, De leg., 4.11.6 (ed. Vivès, vol. 5, pp. 370–371).
30 Ibid., 4.prol. (ed. Vivès, vol. 5, p. 326).
31 Ibid., 4.1.2 (ed. Vivès, vol. 5, pp. 326–327).
32 df 6.6.10 (ed. Vivès, vol. 24, p. 688).
33 De leg., 3.1.1 (ed. Vivès, vol. 5, p. 176): “The question is the following: whether, by speaking only of the nature of things, men can rule other men and oblige them through their own laws.”
34 df 3.1.8 (ed. Vivès, vol. 24, pp. 205–206): “In the same way, once the State is formed, the submission of individuals to the sovereign ruler or public power is natural insofar as it
the republic will be described as a mystical body, because, as a political body, it should express a unity equivalent to the perfection of its being.
The comprehension of the process of communitarian unification requires, in effect, the comparative study of the subject of civil law and of canonical law, which allows at once canonists and jurists to draw out one central difference:
“the subject matter of civil laws is temporal, that of canonical law is spiritual.”29 This, moreover, implies that a spiritual power should correspond to spiritual matters and a civil power to temporal matters. It seems fitting then to conclude that when one considers the origin and particularity of power established by the civil law, they appear to be of the natural order. Obviously, that does not mean that they would flow immediately from nature, but they are issues of a power connatural to man. As far as canonical law is concerned, it is attributed to men by the intermediary of a supernatural power; the justification and the understanding of this law are to be found in the nature of the power from which it emanates.30 It is clearly evident from this differentiation that the power possesses a double function: to direct human beings toward a natural or a supernatural end.31 For the first, the political power proves sufficient, while for the second, the end exceeds human capacity, given that only God is actually able to direct man toward a supernatural end. In this sense, so long as it is not in contradiction with faith and religion, civil obedience among Christians remains essential, even if the requirement has its foundation in the natural law.32
When one considers the civil law and the temporality in which it is inscribed, it is appropriate to consider the nature of human beings and their legislative power. One must determine the possibility that there exists in men a faculty for promulgating laws that oblige other men who are originally their equal and who possess an equivalent freedom.33 It is a matter of precisely explaining and justifying the reason why even when “man has been created free, he is still not without the capacity and disposition to be subject to another man for a just and reasonable cause.”34 For at the origin of this problem, there is the
conforms to natural right reason and is necessary for the appropriate conservation of human nature.”
35 De leg., 3.1.1 (ed. Vivès, vol. 5, p. 176).
36 Saint Augustine, La cité de Dieu, trans. L. Moreau, revised by J.-C. Eslin, Editions du Seuil, 3 volumes (Paris, 1994), vol. 3, Livre XIX, 15, p. 126: “The primary cause of slavery is there-fore the sin which makes man hold man in bondage and his whole destiny.” Saint Augustine, cited in the Deuxième Épître de Pierre, 2, 19: “Man, is fact, is a slave of the one who has conquered him.”
37 Saint Augustine, La cité de Dieu (op. cit.), volume 3, Livre XIX, 15, p. 126.
38 Suárez, df 3.2.11 (ed. Vivès, vol. 24, p. 209). Suárez invokes St. Augustine, for whom it is “a general law among all men that each people must obey its king” (les Confessions, trans.
Arnauld d’Andilly, ed. O. Barenne [Paris, 1993], III, 8, p. 105); the foundation of the author-ity of kings resides in an agreement of human society, which reaffirms precisely that it does not spring forth immediately from a divine institution, since every human contract is not actualized except by the will of men.
39 df 3.1.9 (ed. Vivès, vol. 24, p. 209).
declaration that man is naturally free, and in fact only subject to his Creator.
Consequently, “the sovereignty (principatus) of one man over another runs counter to the order of nature and implies tyranny.”35 Moreover, this point is confirmed for Suárez by reference to the Fathers of the Church, who proposed that man had been created naturally free, and only received directly from God the power to exert his mastery over irrational creatures; this leads to the con-clusion that the right of certain men to subjugate other men has its origin in sin,36 or in the conflict between men. For example, according to the analysis of St. Augustine, “in the natural order in which God first created man, no one is a slave of man or of sin.”37
Now if, on the one hand, the human community is immediately ruled by God by means of the natural law, on the other hand, it does not remain less free according to the right which is its own. It is enough, nevertheless, to under-stand that possessing such a freedom is not incompatible with an autonomous power for the community to govern itself and to exercise an authority over its members, all by having permanently in mind that one must exclude the subju-gation of the community to another man, since that is not conceivable except by the standard of the principles of the natural law. For “God does not immedi-ately grant to any man such a power until, through the intermediary of human institution or election, it is transferred to another.”38
Man is born free by virtue of the sole natural right qualified to grant it, and not simply by a precept.39 This juridical specification proves to be a determin-ing factor, for the prescription of the natural law does not mean that all man-kind remains permanently free; it amounts to saying that there is no prohibition
40 Ibid., 3.1.9 (ed. Vivès, vol. 24, p. 209).
41 Ibid., 3.1.9 (ed. Vivès, vol. 24, p. 209).
42 Ibid., 3.2.10 (ed. Vivès, vol. 24, p. 209), where one reads: “In the final analysis it follows from this thesis that no king or monarch receives (according to ordinary law) political power directly from God but through the mediation of human will and institution.” This thesis does not have Bellarmine as its author, as Suárez justly relates; it is already present in:
Cajetan, De auctoritate Papae et Concilii, tract. 2, c. 10, ad 5, confirm. 2; Alphonsus de Castro, De lege poenali, (Parisiis, 1578) I, c. 1 fol. 487–488; Jean Neys (Driedo A Turnhout), De libertate christiana (Lovanii, 1540), I, c. 2, pars 3, p. 98; Vitoria, Leçon sur le pouvoir poli-tique (op. cit.), n. 8, pp. 49–53; Soto, De iustitia et iure, Salamanca, intro. V. Carro and Spanish trans. M. González Ordóňez (Madrid, reprint 1967–1968), 5 volumes, volume II, Lib. IV, art. 1, pp. 300–303; and Luis de Molina, De iustitia (Maguntia, 1602) vol. I, tract. II, disp. 21, p. 109.
43 De leg., 3.1.2 (ed. Vivès, vol. 5, p. 176).
44 df 6.6.11 (ed. Vivès, vol. 24, p. 689).
for a man to be brought under subjugation (without which the transfer of power would become inconceivable). One must understand that in the logic of political alienation, such a renunciation cannot be accomplished without the consent of the man or without a legitimate reason invoked by a just power.40 In this sense, the complete political community (which is therefore self- sufficient according to the Aristotelian conception) is actually said to be free according to the natural law, without being subjugated to an individual or legal demand external to it; it possesses the source of that democratic political power immanently within it as a whole,41 so long as it does not set up a transfer of power. However, as has been previously analyzed, this same community can, through its own will, renounce its power or right to another power or right, and that for the benefit of a determined person or assembly it is able to lay claim to the legitimate exercise of power.42 It thus becomes possible to understand the ends and limits of political power for Suárez, all the while granting that the political authority—implying a temporal power of governing men—possesses a just foundation appropriate to human nature.43
The civil obedience owed to sovereigns by the mediation of the civil law, even if it has its own foundation in the natural law, can be said to be in force according to the law of nations, given that in actuality it is not derived directly from the natural law, for it is necessary to suppose from the start “the union of men in a political body and in an autonomous community.”44 Consequently, the proposition that this comes from the natural law presupposes the exis-tence of a contract among human beings. From this, one understands why the obligation of civil obedience—as much in its form as in its content—is not identical for each group of men subject to a government. The degree of
45 df 6.6.11 (ed. Vivès, vol. 24, p. 689): “…It likewise follows that the bond of such fidelity and obedience does not oblige in certain instances and it can even be annulled in certain cir-cumstances with the conditions explicitly established in the original agreement between the king and the kingdom or intrinsically implied by him as a result of the requirement of the natural law itself.”
46 Ibid., 6.4.18 (ed. Vivès, vol. 24, p. 681).
47 Ibid., 6.4.15 (ed. Vivès, vol. 24, p. 680).
obligation proper to the civil law exists in each nation in relation to the historic and conventional institution of the realm, and in relation to the contract estab-lished between the governed and the governing in each. Written laws (and it is precisely this that constitutes their force), or previously customs, may introduce a constancy of rules in the face of the historical development, which provides a cure for the fallibility of human memory.
In a manner analogous to Vitoria, Suárez determines the function of the law:
to guarantee the freedom of all in such a way that the transfer of power does not allow for the quantitative productions of force or a situation of anarchy.
The civil law should be the expression of the republic, and in obeying it, citizens should conform themselves to the principles of the natural law, and consequently, obey the one who moves in the direction towards the fulfillment of their human nature. The subject of the law, because he is aware of his finitude and his condition as sinner, freely accepts the need for the universal formula given by the natural law. The following, however, is no less true:
This obedience does not require obedience to the king who orders things illicit or contrary to the salvation of the soul. And the perversity of the king could be so greatly opposed to the community’s common good or the contracts and agreements established by the kingdom that the community of people, by means of a common decision, could annul the contracts and agreements established by the kingdom as well as the obedience and civil fidelity owed to them.45
Thus, in these circumstances, the political community has the legitimate power to dismiss the king, and the representatives of the community act legiti-mately in constraining the sovereign or justly executing him, because their action is accomplished in terms of a public, rather than private authority.46 Consequently, obedience to the civil law cannot be unconditional. If a legiti-mate king rules in a tyrannical manner and the community has no other way to ensure its own conservation than by removing the king, this final recourse is legitimate.47 And precisely at this moment the political community acts as a
48 Thomas Aquinas, Opuscula theologica et philosophica tam certa quam dubia, Opusculum XVI, lib. I, cap. 6 (éditions Vivès, vol. 27, pp. 343–344): “Videtur autem magis contra tyrannorum saevitam non privata praesumptione aliquorum, sed auctoritate piublica procedendum. Primo quidem si ad ius multitudinis alicuius pertineat sibi providere de
48 Thomas Aquinas, Opuscula theologica et philosophica tam certa quam dubia, Opusculum XVI, lib. I, cap. 6 (éditions Vivès, vol. 27, pp. 343–344): “Videtur autem magis contra tyrannorum saevitam non privata praesumptione aliquorum, sed auctoritate piublica procedendum. Primo quidem si ad ius multitudinis alicuius pertineat sibi providere de