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INTRODUCTION

Born in 1548 to a prominent noble family of Granada, Francisco Suárez was one of the most important thinkers of the second scholastic, that revival of Catholic school theology that centered on the study of Thomas Aquinas, and, following the early sixteenth-century example of Cajetan and Vitoria, replaced the long-established medieval practice of commentary on the Sentences of Peter Lombard with commentary on Aquinas’s Summa theologiae. Suárez entered the recently founded Society of Jesus in 1564, and after undistinguished academic beginnings progressed in the study of theology and philosophy to gain a chair in philosophy at Segovia in 1571. He held a chair in theology at the Roman College, the Jesuits’ college in Rome, from 1580 to 1585, but then had to return to Spain for reasons of health. There followed an unhappy period at Alcalá marked by tensions with supporters of the previous occupant of his post there, Gabriel Vásquez, who was both a more popular university teacher than Suárez and one of Suárez’s main intellectual rivals in the Jesuit order. These tensions were not lessened by Vásquez’s return from Rome in 1591. After teaching for more than three years at the Jesuit college at Salamanca, in 1597 Suárez moved to a chair in theology at Coimbra, where he spent the remainder of his career. He died in 1617.

Besides composing one of the last intellectually formidable exercises in Aristotelian metaphysics, the Disputationes metaphysicae (1597), Suárez also wrote one of the major works of scholastic moral and legal theory, De legibus ac deo legislatore (1612), based on his course on law at Coimbra. This work, given in selections here, also served as the basis for his political thought, outlined in that treatise and developed in two further works, excerpts from which are also presented here: his treatise on the errors of Anglicanism and in particular on the errors of King James I in

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relation to papal spiritual and temporal authority, Defensio fidei catholicae et apostolicae adversus anglicanae sectae errores (1613); and his treatise on the supernatural virtues, in part material taught by him in Rome but much expanded by him subsequently and posthumously published in 1621. The excerpts from the last treatise were taken from Suárez’s accounts of faith and love, De fide and De caritate. Together these selections, originally published in the Carnegie series The Classics of International Law and now republished as a Liberty Fund edition, will give a general view of Suárez’s political thought and of its basis in his moral theory.

Suárez was a natural law thinker, a tradition that stretched from the Stoicism of pagan antiquity, and which continued through medieval and early modern Catholic scholasticism to remain the basis of the Catholic moral theory of the present day; but the tradition also included Protestant thinkers of the seventeenth and eighteenth centuries such as Hugo Grotius, Samuel Pufendorf, Gottfried Wilhelm Leibniz, and Christian Wolff. Central is the idea that morality comes to us in the shape of a universal law governing the actions of all humans by virtue of their shared rational nature, hence forming a natural law. The specific systems of positive (posited) law embodied in the customs or statutes of human communities have a moral authority—that of obligation—that is derived from the moral obligations imposed by universal natural law. We have then an account of political authority, in the form of the authority of state or civil law morally to oblige us, developed out of a general theory of moral obligation. The interest of this tradition in law, therefore, goes far beyond the humanly constructed systems of positive law, of humanly made custom and statute, that are the concern of modern jurisprudence. Law is first and foremost a moral standard before it is ever to be found in humanly created regulation. Human systems of positive law are of concern to the theory of law proper insofar as they serve a central function: that of defending, through human coercive authority, existing moral obligations and of adding to those existing moral directives new ones, general adherence to which will further the good of the community. As Catholic natural lawyers were all agreed, following St. Augustine, statutes or customs which fail to do this, which because of their injustice leave us under no moral obligation to conform to them, while they may be termed ‘laws’ and are presented as laws by

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human 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 extensive though indirect papal authority over temporal rulers was regarded by Suárez as de fide, a matter of dogmatic and infallible teaching, a view shared within the Roman Curia, but not by Catholics everywhere. For Suárez’s views were denied not only in Protestant lands, but also in Catholic states such as France and Venice.

Conflict had already occurred between Pope Paul V and the Republic of Venice in 1605 over a claimed immunity of Catholic clergy from the coercive power of the state, a conflict that led to a sentence of papal interdict on Venice. Further controversy over papal authority was caused by James I’s imposition in 1606 of an oath on English Catholics affirming that the attribution of any authority to the pope to depose temporal sovereigns was not only false but a heresy:

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I, _______, do truly and sincerely acknowledge etc., … that the Pope, neither of himself nor by any authority of the church or See of Rome or by any other means with any other hath any power or authority to depose the King … and I do further swear that I do from my heart abhor, detest and abjure, as impious and heretical, this damnable doctrine and position, that princes which be excommunicated or deprived by the Pope may be deposed or murdered by their subjects or any other whatsoever.2

As intended, this oath served to divide the English Catholic community, being taken by George Blackwell, the archpriest in charge of its administration, and most of the prominent laity, but refused by the majority of the secular clergy and by the English Benedictines and Jesuits. Following on a series of works by Bellarmine, Suárez’s Defensio fidei was an exercise in controversial apologetics in reply to this oath that was commissioned by the Roman Curia through Decio Caraffa, the papal nuncio to Madrid. With papal approval the book gave a systematic account of state authority, of the subordination of temporal ends to spiritual, and of the Pope’s consequent indirect temporal authority over Christians. Given Suárez’s reputation, the significance of the work was not lost on James I’s government. Copies of each of the six books of the Defensio were supplied to London by Sir John Digby, James I’s ambassador to Madrid, as they were printed. The complete work was burned by the hangman at St. Paul’s Cross, subversive as it was of James I’s pretensions to derive his authority to rule immediately from God and to exercise that authority quite immune from any papal interference.

Suárez’s strong view of papal authority both over the church as a whole and indirectly over Christian rulers was always going to be unpalatable to French Gallicans, who denied any papal temporal authority and viewed the exercise of the pope’s spiritual authority as subject to the consent of the church. But there was a further matter that, after the assassination of two successive French kings, guaranteed the Defensio fidei a hostile reception in France. James’s oath raised the issue of tyrannicide; and so, with typical thoroughness, Suárez addressed this issue in the Defensio too, defending the legitimacy of tyrannicide under certain conditions.

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The Council of Constance had issued a decree in 1415 condemning as heretical the following proposition:

Any tyrant can and ought to be killed, licitly and meritoriously, by any of his vassals or subjects, even by means of plots and blandishments or flattery, notwithstanding any oath taken, or treaty made with the tyrant, and without waiting for a sentence or a command from any judge.3

This condemnation was seen as binding on subsequent Catholic discussion of the permissibility of killing tyrants. But few Jesuits besides Juan Azor understood this decree to be a blanket condemnation of tyrannicide. Suárez insisted on a distinction between two sorts of tyrant that had been made by Aquinas.4 There are tyranni a regimine, or lawful tyrants, that is, princes with a legal title to rule, but who abuse their authority; and tyranni a titulo, or unlawful or usurping tyrants without even the right to rule. The latter may include previously lawful tyrants who have lost their title to rule through lawful deposition. In Suárez’s view, the difference between lawful and unlawful tyrants is that an unlawful tyrant is using violence on the state by his very retention of royal power, so that the state is by that very fact involved in defensive war against him. In contrast, a lawful tyrant has just title, but is abusive in his method of rule, which aims at his private advantage against the public good. In the latter case, it need not follow that the abuses amount to an actual attack on his community, though if an attack is being made then, again, the community is involved in a defensive war against its own prince. The Council of Constance was understood by Suárez to ban the indiscriminate killing of lawful tyrants, but to leave open the possibility of killing a usurping tyrant as part of a defensive war against him by the community. Even a lawful tyrant might similarly be killed if engaged in an outright attack on his own community.

The conditions set by Suárez for permissible tyrannicide were very circumscribed; but his discussion came only three years after the assassination

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of Henri IV, and the apparently sympathetic treatment of the earlier murder of Henri III by his fellow Jesuit Mariana in De rege et regis institutione (1599) was also fresh in mind. In even discussing the topic the Defensio fidei contradicted earlier assurances given by the papal nuncio to France that it would not address the question of tyrannicide. As a result, Suárez’s work was initially condemned, with the writings of other Jesuits, by the Paris Parlement, though the French crown was brought to retract the condemnation of Suárez along with an earlier parliamentary condemnation of Bellarmine.

Suárez writes of individuals as possessing an original and natural liberty. But the distance between his thought and any subsequent contractarianism, let alone any form of liberalism, is considerable. The consent of the community may be a condition of political subordination. But this consent is, as we have noted, an alienation and, except under limited conditions, cannot be retracted. It involves no transfer of rights or powers from individuals to their rulers, but only from the community as a whole. Moreover, the community’s consent comes to no more than a shared custom of obedience under conditions that leave this custom to further the common good. And even this shared custom is not, as it would be for Hume, the ultimate source of political authority, but merely a condition under which God, the true ultimate source, grants that authority. It should also be noted that the metaphysical freedom of the individual’s will guarantees no special freedom in questions of religion. As De fide makes clear, coercion of belief may be perfectly legitimate. The limits on such coercion are almost wholly jurisdictional and do not arise directly from the moral status of the individual. The state has jurisdiction in its own right only in relation to the ends of natural law, which is why the state cannot coerce specifically Christian belief. But the state can perfectly well coerce religious belief and practice otherwise. The state can and should force individuals out of idolatrous or polytheistic religion and into the practice of the rational monotheism that natural law requires. The church, by contrast, does have jurisdiction in relation to spiritual and supernatural ends, though this spiritual jurisdiction is limited to the baptized. But within this jurisdictional boundary coercion is again fully permitted. With the assistance of Christian rulers, the church can certainly use force and

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sanction on the previously baptized, in particular on heretics and apostates, to impose properly Catholic belief and practice.

We have seen that Suárez’s belief in a necessary dependence of all law on legislative origin and authority was controversial at the time, although the doctrine came to be increasingly widely shared among Catholic moralists thereafter.5 Much of the success of Suárez’s views lay in his considerable synthetic ability. His writings were informed by what seemed to many of his contemporaries an exemplary mastery not only of metaphysics and moral theology and psychology, but also, more than usual for his order, of canon and civil law and commentary thereon. This synthetic ability enabled Suárez to absorb and integrate much in the positions of opponents into his own work. In particular, those of his Catholic opponents who saw the natural law as unlegislated took its origin to lie not in the decrees of God, but in our own rational nature, and to be knowable simply through consideration of that nature. But Suárez too claimed to safeguard the link between natural law and rational human nature. Though in his view natural law was the product of divine legislation, Suárez sought to agree with his opponents that the natural law is not simply posited by authority but has a content determined by that rational nature which it governs and that the law can be known and obeyed just on the basis of understanding that nature. The reconciliation of rationalism regarding the content of the natural law with a voluntarist theory of its origin in the divine will was the central distinctive feature of Suárez’s De legibus.

Thomas Pink