Author: Matthias Kaufmann and Danaë Simmermacher
Part of: Molina and Molinism Between Coimbra and Évora (coord. by João Rebalde and Paula Oliveira e Silva)
Published: September 20th, 2022
This article is based on the introduction to the two-volume edition (Latin/German) of De Iustitia et Iure:
Molina, Luís de, De iustitia et iure. Über Gerechtigkeit und Recht. Teil I und Teil II. Kaufmann, M., Simmermacher, D. (Ed.), transl. by Loose, A., Kaufmann, M., Simmermacher, D., Stuttgart-Bad Cannstatt: Frommann-Holzboog, 2019.
The latest version of this entry may be cited as follows: Kaufmann, Matthias and Simmermacher Danaë, “Luís de Molina, De Iustitita et Iure (1593–1609)”, Conimbricenses.org Encyclopedia, Mário Santiago de Carvalho, Simone Guidi (eds.), doi = “10.5281/zenodo.7098207”, URL = “http://www.conimbricenses.org/encyclopedia/luis-de-molina-de-iustitia-et-iure”, latest revision: September 20th, 2022.
Table of Contents
- 1 Introduction
- 2 Editions, Reception, and Impact of De Iustitia et Iure
- 3 Bibliography
Overview and central topics: Property – Domination – Power – Slavery
In De iustitia et iure, Luís de Molina comments on the doctrine of justice and law, topics elaborated in the Summa Theologiae by Thomas Aquinas (Aquinas, ST II-IIae, q. 57-79; ST I-IIae, q. 90-108), but which he pursues in even greater depth. In the preface, he already signals that he will not proceed along the same lines as Aquinas.
Molina’s De iustitia et iure was published in six extensive volumes, whereby the first volumes were edited by the author himself in his hometown of Cuenca, and the remaining ones by friars in Antwerp until 1609. The Geneva edition consists of only five volumes (Molina 1733). The division of the sections is found both in the Geneva edition and in the first complete edition published in Mainz as Editio Novissima (Molina 1659), and the work comprises no less than 3386 closely printed columns. In this article, De iustitia et iure is cited with reference to the treatise, the disputation and the section, if any, as follows: II 13.2.
In the first treatise, Molina discusses various conceptions of justice and law, the relationship of natural law to positive law, compares the subdivisions of law of the jurists and the theologians, deals with injustice and retribution, and discusses commutative and distributive justice.
The entire second treatise deals with commutative justice in regard to external goods and covers a variety of topics. One of the central concepts of this second treatise is that of dominium. The Latin word is most often translated as property, dominion, or power of disposal. In legal philosophy and legal theory, however, the term is often left untranslated as a terminus technicus. The diversity of meanings of dominium is reflected in some passages of the second treatise of Molina’s De iustitia et iure. In disputations 1-20, Molina discusses dominium in terms of property; however, he begins the exposition with a definition of ius in the context of his doctrine of property before treating dominium. According to this definition, ius is basically to be understood as a right, not as the law. He then analyzes how ius and dominium appear in various forms of ownership that are distinguished from property, such as use, possession, right of abode, usufruct, hereditary lease, fief, etc.
Against this background, he addresses various issues that were debated in Iberian humanism. These include the question, inherited from the poverty controversy nearly 300 years earlier, of whether the Franciscans have a dominium or a use of things alone (II 6), as well as the question of whether free will is a prerequisite for having dominium (II 18), whether beings who are outside of divine love are susceptible to dominium (II 19), or whether the division of things as property is permitted to men and by what law this is done (II 20). As with other authors of Iberian humanism, Molina’s discussion of the concept of dominium is determined by the need to use essentially medieval terminology to grasp a radically new political, legal, and economic structure. This includes the confrontation with hitherto unknown civilizations as well as the incipient development of the territorial state and a globalizing economy. His discussion of possession (possessio) as the “last completion and supplement of the perfect dominium” (ultima perfectio, complementumque perfecti dominii, II 12), which recalls Kant’s distinction between empirical and intelligible possession by differentiating between natural and civil possession, is both remarkable and anything but self-evident. Striking is also the limitation of the dominium both with respect to man’s rights over himself and over animate and inanimate nature, to which Aquinas attributed very extensive rights to man (Aquinas, ST I-IIae, q. 66, a. 1): Thus, Noah would have had the power to make a species of animal extinct but not the right (II 18) to do so. What is special about disputations 20-23 is the general justification of property and dominion, wherein the Middle Ages and modern period are intertwined, and elements of medieval Aristotelianism are combined with modern approaches reminiscent of Thomas Hobbes (Tellkamp 2014, Brett 2014).
In the context of power, dominium is examined in disputations 21-31 of the second treatise. Here Molina distinguishes governmental or secular power from ecclesiastical power, discusses the various constitutional forms (monarchy, aristocracy, democracy, etc.) in the Aristotelian tradition, and analyzes which form of government is best suited to establishing justice between the governing and the governed. He also addresses the legitimacy of both royal and papal power, discussing how far the dominium of a secular ruler and that of the pope extends as well as the relationship between spiritual and state power. Within Molina’s lifetime, these questions were particularly relevant in the context of the European settlers’ treatment of the indigenous population of the American continent. The so-called discovery of the new continent raised entirely new questions: The American peoples were subject to a remote rule, i.e. a souvereign living on a different continent. The Spanish crown saw itself as a Christian (Catholic) kingdom and had to clarify what status was granted to the subjugated peoples who were to be converted to Christianity by the missionaries. The enslavement of indigenous people, to whom the revelation was known, could not be reconciled with Christian charity. On the other hand, it had to be clarified whether people from previously undiscovered areas in which the Christian religion was completely unknown were to be counted as part of the orbis christianus and thus subject to the power of the pope (Böckenförde 2006: 342). A work on justice and law thus also had to deal with these issues given the world-political events of the 16th century, especially since the theologians of Iberian humanism were in part confessors of the Spanish rulers and in this capacity were said to have a certain influence on contemporary politics. Here are just a few examples: the intervention of Charles V with Vitoria’s superiors in 1539, the influence of Las Casas on the formulation of the Nuevas Leyes of 1542, or the Pope’s commission to Suárez to write a treatise against King James I of England to counter his demand for an unconditional oath of allegiance from his Catholic subjects (Böckenförde 2006: 344).
Molina’s examination of slavery and the slave trade in disputations 32-40 of the second treatise, through which the previous elaborations of dominium come together in the context of property and power, deserves special attention. As part of his concern with the various objects that can become property, Molina first discusses whether one person could acquire the dominium of property over another (II 32). He discusses the titles by means of which slaves can be justly acquired (II 33) and displays impressive detail in his discussion of the Portuguese slave trade (II 34-36). That slaves have a special status as objects of property is especially evident in Disputation II 38, in which Molina discusses the extent of the right of masters over their slaves and the question of whether slaves themselves can have dominium over things. He explicitly emphasizes that slaves are entitled to rights qua homo (Simmermacher 2018, Simmermacher 2021). Moreover, Molina also deals with various ways of freeing oneself from slavery and the question of whether a slave of a condemned heretical master should be recognized as free in De iustitia et iure (II 39-40).
Molina’s work on the Portuguese slave trade was praised by Joseph Höffner as early as 1947, because he had discussed the problem “most extensively and thoroughly […]” (Höffner 1947: 272). Molina’s study is indeed special because it combines a justification in principle for slavery with an empirical examination of the practice exercised by the Portuguese and a highly critical evaluation of this practice. In particular, he condemns the private slave traders who do not care whether the slaves they buy and sell have been justly enslaved, whereas he accepts and defends enslavement of whole populations by public authorities as the result of a just war. One of the peculiarities of Molina’s historical influence is that the Consejo de las Indias – the most important committee of the Spanish crown for the regulation of American affairs – made reference to this text as a source legitimizing the slave trade (Costello 1974: 195.) On the other hand, Molina’s critical remarks have repeatedly been interpreted as an early statement in the direction of abolitionism (Kaufmann 2014). Perhaps his position can be best summarized by stating that while he justifies slavery and the slave trade theoretically, he is highly critical of their practice.
The content of De Iustitia et Iure
As already mentioned, Molina’s De iustitia et iure is an extensive work consisting of several thousand pages. This, combined with Molina’s constant attention to detail, makes a recounting summary hardly practicable and unattractive endeavor. In the following, therefore, the composition of the complete work and the more extensive parts will be presented and some selected topics discussed.
The work is composed of five treatises, of which the three middle ones deal with commutative justice in relation to different goods: The second treatise, whose 760 (!) disputations fill almost three volumes and well over half of the entire work, deals with external goods; the third addresses the goods of the body and of those associated with us; and the fourth with the goods of honor and reputation and spiritual goods. The first treatise, containing only 13 disputations, is devoted to justice in general and its underlying parts, and the fifth to the administration of justice and the enforcement of justice by the public powers.
Since the division of the treatises does not correspond to that of the volumes, the latter are again given their own names: The first volume, which contains 251 disputations of the second treatise in addition to the first, bears the title of the complete work, i.e. “On Justice and Law”; the second volume, with a further 354 disputations, deals with contracts – as will be shown, this includes all kinds of further considerations. The third volume, with the remaining disputations of the second treatise, turns to the majorates and the tribute in the first part and to the property offenses in the second part. In the Mainz Complete Edition, the latest (editio novissima) dating from 1659, the fourth and fifth volumes correspond respectively to the third and fourth treatises, thus discussing commutative justice with reference to the body and those close to us, and to honor, reputation, and spiritual goods, respectively; in the Geneva edition of 1733, these two are combined into one volume. In each case, the last volume contains the fifth treatise, that is, on jurisdiction and the enforcement of justice.
The first treatise distinguishes between the different meanings of justice and right, including natural law and various forms of positive law. Moreover, in the first treatise, Molina addresses the relationship between the just, the unjust, and free will, and then goes on to explain the distinction between commutative and distributive justice. Here he moves largely within the Thomistic tradition. However, he defers the iudicium treated in Quaestio 60 of Aquinas ST II-IIae to the fifth treatise, in accordance with his announcement that he would not always adhere to the order given by Thomas. The inquiries into personal injuries, those of our neighbors, injury by insult, humiliation, slander, etc., as found in some of the following questions in Aquinas (ST II-IIae, q. 64, 65, 72-76), are moved to treatises three and four. Those on property, theft, and robbery (ST II-IIae, q. 66); on judicial misconduct (ST II-IIae, q. 67); and on fraud and usury (ST II-IIae, q. 77, 78), on the other hand, are dealt with in the extensive second treatise, sometimes in extraordinary breadth.
This second treatise begins with the remarkable definition of right that is constitutive for most of the work: right is not understood, for instance, in terms of a legal regulation; instead, it is a capacity, a claim, the denial of which means a wrong against the bearer (II 1. On Molina and Vitoria on the ability to be rights holders, see Haar & Simmermacher, 2014). After the conceptual differentiations and fundamental reflections on property and dominion already outlined above, as well as the innovative and fundamental treatise on the slave trade, Molina deals with the ownership of animals and different ways of acquiring ownerless things. The subject of the limitation of claims (praescriptio) to abandoned objects plays a considerable role. Furthermore, it deals with penalties for corruption of judges and in the sale of offices.
After having dealt with different variants of property and contractual punishments in disputations 95-97 – for other forms of punishment, reference is made to the fifth treatise – a longer treatise on the law of war begins with disputation 98. The reference to the acquisition and loss of dominium in war, which is more suited to the context of justice than to that of caritas, where Aquinas (ST II-IIae, q. 40) and most other commentators treated martial law, is apparently meant to make the appearance of the topic of war seem less abrupt. Molina himself had addressed the question of law and justice in the context of war in a commentary on this quaestio. This commentary was prepared as part of a lecture in Evora in the academic year 1574-1575, which was edited by the Jesuit R.S. de Lamadrid in 1939 (Molina 1939) and published with a German translation in 2006 (Justenhoven & Stüben 2006). In the 1593 text, Molina divides the considerations relevant to the law of war into 26 disputations. Having justified the location of the subject matter within the broader structure of his work, these disputations contain the reasoning that justifies war, even a war of aggression (II 99), and the discussion of the criteria given by Thomas Aquinas, such as the binding of the right to war to a supreme state authority, to just reasons, and to a good intention (debita intentio, II 107), as well as to the prospect of success (II 102). For Molina, the examination of these criteria is only necessary in a war of aggression, since self-defense is always considered legitimate. For the justification of a war of aggression, in principle, the material wrong is sufficient; it is not necessarily connected with a sin or guilt of the one against whom a just war of this kind is waged. In such cases, any form of injury to the enemy is to be avoided beyond the procurement of what is unlawfully in his possession, even without his being able to know it. This situation was found when the children of Israel conquered the lands of the Canaanites promised to them by God (II 102.2 u. 6). Normally, however, considerable guilt is required to justify such an evil (II 102.7). In addition to the criteria according to which the justness of the reasons can be determined (II 103), he gives a whole list of special just reasons for war (II 104). Here, he occasionally displays the “detail-obsessed casuistry” (Brieskorn 2000a: 189) previously mentioned, even more drastic examples of which exist in other places than the treatise on the law of war.
It is interesting that Molina rejects Francisco de Vitoria’s (1483-1546) justification of the war against the ‘Indians’ in De Indis. For Vitoria, there is a right to use the natural harbors, rivers, etc. of foreign lands as long as one does not harm the natives, and also to seek trade with them. If the natives forcibly prevent this, then a reason for war and forcible occupation of the land is given. For Molina, on the other hand, the locals have only charitable obligations to the new arrivals and certainly the right to deny them access to their ports (II 105). In this respect, he is closer to Kant’s cosmopolitan right posited in Toward Perpetual Peace (AA VIII 357ff., engl. 328f.) than to Vitoria, with whom he again agrees that idolatry cannot be a reason for war (II 106). Nevertheless, war may be justified for the good of those against whom it is waged if it is carried out with the intention of liberating them from unbelief (II 107.6).
Another important point is the treatment of innocent people from the enemy camp. Killing them with the aim of killing the guilty – so-called “collateral damage” in contemporary terms – is permitted, for example, when Christian rowers are killed in the cannon fire directed against Turkish galleys (II 119.1 and 7). Likewise, there is no need to examine individual cases if one does not know for sure whether the individuals are guilty or innocent (II 119.6). However, it is not permissible to kill the innocent children of unbelievers, for example, to prevent them from later becoming enemies (II 119.4). On the other hand, it is perfectly justifiable to enslave innocent people, such as children, in the context of a just war. Since the dispute is between states, all members of the unjustly warring state are liable for its actions (II 120). In such cases, the guilt of the state renders the question of individual guilt irrelevant. Molina makes several references to the minors involved in the so-called Morisco revolt by the Arab inhabitants of Spain between 1568 and 1571. While they were later pardoned by Philip II, due to penal law considerations, this would not have been necessary according to Molina’s view. Because their fathers claimed to have founded a state of their own, the war of the Spaniards against them had to be considered just (II 33, II 35).
There are two points in particular in which one can see how Molina influenced the understanding of war, or at least the conception of war undergoes a substantial change during his lifetime: the simple fact that classifications such as the just loss of property, property punishment were now considered sufficient grounds for a just war shows that he entertained criteria other than threats to life and limb or honor violations, criteria that had long dominated the discussion (Brieskorn 2000a: 188). He also seriously considers the extent to which a just war can be waged by both sides. It is always possible that insurmountable error leads someone in the wrong to believe that they are in the right. Moreover, it is also possible that both sides are fighting an unjust war (Fernandes 2014: 250-251, Costello 1974: 116-117). The recognition that the justice of war is seen differently by the two sides seems to have taken root in the period (Scattola 2006: 50). Alberico Gentili (1552-1608), who taught at Oxford, defines war as the “just quarrel of public arms,” armorum publicorum iusta contentio (Gentili 1585: 10).
Molina’s work was considered, among other things, a pragmatic guide for confessors of political decision-makers, as he emphasizes several times. It was found to be quite useful, despite – or perhaps even due to – its sprawling casuistry. This love of casuistry is further based on the idea that law and justice do not result solely from the projection of abstract principles onto reality but are always determined by the concrete conditions of the individual cases (Alonso-Lasheras 2011: 193). The same likely holds true for the 128 disputations in the second half of the first volume of De iustitia et iure, most of which deal (again, in extraordinary detail) with questions of inheritance law – for example, for various forms of legitimate and illegitimate descendants (II 165-251) – and in part with those of paternal authority (II 227-242).
The second volume, entitled De contractibus, exceeds the first both in the number of pages and in the number of disputations by 50%. Following the Ulpian-oriented differentiation of pactum and contractus – depending on whether it is a mere agreement between two or more (pactum), or whether they have entered into an obligation (contractus) (II 252) – and their more specific forms, it treats a variety of topics. These include promises, gifts, loans, interest, just price, and sale, not to mention a separate theory of money. Institutions such as emphyteusis, pledge, or mandate play an important role, as does the social contract (contractus societatis), defined as an agreement for common profit or use (II 411.1), including marriage. And while a lengthy discussion of gambling is found here, the topic of insurance is not (yet) discussed in any real detail (II 507). There seem to have been cases, however, where insurance was treated as gambling, not unlike the stock market today (II 507.10).
Among the most noted parts are Molina’s reflections on loans (mutuum), interest (usura), and usury, as well as on just price and his theory of money. Molina deals with the issue of interest and usury – i.e. whether it is in principle immoral to accept interest on borrowed money, or whether there are cases in which this is permitted – in disputations 303-335 of the second volume. In principle, he leaves no doubt about his position: it is a sin, a vice, illicit, and against commutative justice to ask for more money back than one has lent – unless special aspects need to be considered (II 304). Such exceptions include when political authorities force merchants to lend their money and they suffer damage as a result (damnum emergens) due to the fact that they cannot use the money, effectively preventing them from using their “tool of the trade.” In general, when lending money, they can assess as a fee the profit they would otherwise have made with that money (lucrum cessans). Not being able to claim this fee as compensation for their loss could be considered a damage (II 314). Additionally, there is still the risk (for the lender) of losing their loan (periculum sortis). In this respect, a reasonable interest rate is not considered usury (II 304, II 311). It is precisely his conception of lucrum cessans and the detailed argumentation for this justification (II 315.11-12) that shows how in Molina’s work the conception of money has shifted with respect to the medieval view, in which money bears no fruit. On the other hand, he wants to adhere to the natural law, especially the Thomistic, rejection of usury (Alonso-Lasheras 2011: 126-147). Since an unjust price was considered a form of usury in the Middle Ages (Aquinas, ST II-IIae, q. 77, a. 1), Molina’s considerations on just prices follow quasi-naturally. To some extent, Molina participates in this shift in the notion of a price determined by the object and the needs of the buyer to a conception of the natural price determined by communis aestimatio, which, in the case of commonly traded goods, is determined via negotiations between buyers and sellers. This, however, is not eo ipso the just price; a variety of factors are involved such as quantity of goods and money. Molina does not provide for a precise determination of the just price; he assumes that it falls within a certain range.
He strongly criticizes both monopolies that make a fair price impossible (II 345) and price fixing by the state, for example, of grain during food shortages. He advocates supporting the poor but does not want to place the burden solely on grain merchants. In particular, such a fixed price would discourage importers from supplying grain, to the detriment of the community (II 365). Interestingly, Michel Foucault, drawing on a 1763 paper by the physiocrat Abeille, describes a similar argument as a typical liberal security dispositive for regulating the population in the 18th century (Foucault 2006: 60–78). For all his criticism of monopolies and of state dirigisme per se, Molina’s economic thought ultimately remains committed to moral principles of care and justice. Even though he emphasizes, for example, that an importer who does not reveal that a larger quantity of the commodity he distributes is about to arrive, thereby increasing his profit, is neither acting virtuously nor unlawfully, his conception of a market in which price is determined is clearly different from that of the liberals of the late 18th century and some neoliberals: “The market was first of all a physical place in which real people came together. These people possessed a moral conscience that was also part of the economic process” (Alonso-Lasheras 2011: 167). The market is thus not seen as a process subject to causal laws, in which homunculi (and not people) interact with the mental equipment of homines oeconomici, but is essentially morally determined. A just price requires the free informed consensus of all parties involved in the sale. Accordingly, they are conceived responsible “price makers” and not “price takers” (Chafuen 2003).
The combination of moral pretensions and the incorporation of changed factual economic circumstances also characterizes Molina’s theory of money, which earned him the reputation of having had the most comprehensive view and the clearest judgment of his time (Alonso-Lasheras 2011: 170). Three aspects in particular come into play here: the exchange of currency, the trade in bills of exchange (partly over long distances), and the creation of credit. When it comes to currency exchange, the first issues that come up are whether money changers are allowed to charge more in commission than is set by officials, whether non-authorized private changers are entitled to take money for their services, and how much they may take when there is no such regulation. Molina forcefully argues that this fee should approximate the state regulation, saying that this dictates itself ex natura rei, or natural law (II 399). The more pressing problem, however, was minimizing fraud in the exchange of the large number of gold and silver coins, etc. These were accepted as means of payment in order to master the extremely complex monetary system (Alonso-Lasheras 2011: 173-183). The state fixing of the exchange rates of the units of account for the various coins had only a limited effect. Other factors, such as the locally available quantity of certain coins, also influenced the rate, so that this exchange could take place on very different terms even within the then united kingdoms of Spain and Portugal. Molina offers an impressive description of the diverse types of money and their exchange rates in II 400. He is also well aware that, due to the place-specific value of money, the same money can buy different things in different places within the Spanish empire. He used this insight to develop an early theory of purchasing power as a constant criterion (II 406), which somewhat mitigated the suspicion that any kind of monetary exchange was usury, especially when bills of exchange were cashed over long distances:
This early version of the purchasing-power theory removed the taint of usury that accompanied almost any type of money exchange, because it gave a satisfactory explanation of the movements of capital. It was the most original and noteworthy achievement in economic theory of the Spanish Scholastics (Alonso-Lasheras 2011: 179).
Even if the corresponding vocabulary is, of course, not found in his work, Molina was obviously aware of the phenomenon of credit creation as a kind of money multiplication by quasi-money. He accepts the practice of bankers lending the money entrusted to them to merchants – whose trade they financed with it – and receiving it back multiplied (II 408), as long as usury is not practiced with it (Alonso-Lasheras 2011: 180-181).
The third volume concludes the discussion of the ownership of external goods. It then turns in the first part to the external ties of these goods – in enormous breadth to the majorate, i.e. the right of inheritance of the firstborn and its various limitations and peculiarities (De maioratibus bonorum externorumve vinculo, II 576-660) – and to the duties to pay (De tributis II 661-679). A second part deals with the problems connected with property crimes (II 680-760).
The topic of commutative justice in relation to our bodies and persons close to us was constitutive of the whole third treatise. Molina begins it, stating that man does not possess a dominium over his life and limbs in the same way as over external objects that belong to him and over which he possesses a ius destruendi (III 1 and 2). After all, God has placed life and limbs at man’s disposal so that he may enjoy their use; their destruction, e.g. in the form of killing on demand, is wrong, since God has reserved these rights to himself (III 1.3). However, man is the master of his works and his actions as long as they do not violate the commandments (III 1.4-6). Moreover, he is the guardian and administrator (custos et administrator) of his life and limbs This includes the right of people to refuse medical interventions such as amputations if they are of age and not living under the guardianship of a prelate (III 1.9-10). Neither the state nor its head, moreover, have dominium over their subjects; instead, they only have the right to govern them for their own good and that of the community (III 1.8).
This first disputation of the third treatise has been outlined in relative detail because it offers the essential principles that hold for most of the 105 disputations dealing with homicide and bodily harm – also variants of adultery (III 89-103) – in conjunction, of course, with traditional views, some of which are assumed to be consensual. Thus, the killing of a tyrant, including the distinction between despots and usurpers – the former may only be killed by general decree, the latter by any subject – is only incidentally justified (III 6.2); private individuals are not permitted to kill evildoers, though a few extreme exceptions exist, such as a betrayed husband killing his wife and the rival (III 7). The killing of innocent people – even if it is for the good of the entire republic – is not permitted in accordance with general conviction (III 10). Killing an attacker in self-defense, if necessary to preserve one’s own life, is certainly permitted (III 11), but not on mere suspicion (III 12). Male children up to the end of their tenth year of life and female children up to the end of their ninth year of life escape punishment (III 36), but not old people (III 37). Suicide and self-mutilation are forbidden and may be punished by confiscation of property (III 9, III 20). A more detailed discussion of the considerations, some of which are again quite complex, cannot be provided here.
Another topic dealt with in the third treatise is the relationship to one’s neighbors and questions about the right to punish, which is granted, for example, to parents to a very considerable extent vis-à-vis children and servants (III 2.18). At the same time, the relationship between spouses is described in a somewhat more egalitarian way than the notions discussed in Disputation II 22.4, which are not very favorable to women. According to Molina, the woman is subordinate to the man and obliged to obey him (on Molina about the family, see Haar 2019). She is not regarded a slave or maid, but rather as a (subordinate) partner (sociam) and the family mother. This implies a right to punish her, even to beat her (!) si ita opus sit. If she is well behaved, however, such assaults are deemed disgraceful for the man (III 2.20). Later in the text, the equality of man and woman is again emphasized, though adultery by the wife is still considered more serious than that of the husband (III 90, III 95).
The comparatively short fourth treatise, dealing with honor, good reputation, and spiritual goods (bona spiritualia), examines, after the obligatory clarification of terms (IV 1), whether man has dominium over his honor and good reputation. These goods are classified between the external goods and those of the body, but they are at the disposal of the individual, who may act shamefully if he abandons them but not unlawfully (IV 2). In addition to the relatively detailed reflections on the various ways in which defamations of honor and reputation can occur and how the corresponding sanctions and compensations are to be applied, this treatise nevertheless contains four disputations devoted to secrecy (secretum). Thus, it is unjust to make public the secret past sins of other persons without adequate justification, thereby damaging their reputation. It is also unjust, for instance, to disclose the location of a secret treasure (IV 3). Finally, there are the secrets that, for example, doctors, lawyers, or confessors have to keep, as well as the secrets that are important for the state (IV 4-6). Of the spiritual goods, some do not belong directly to moral happiness and eternal blessedness, such as the sciences, the arts, and power, while others certainly do, such as the virtues, grace, and good works. Whoever harms another in these things, for example, by causing him to sin, is required to make up for the harm by persuading him to repent and praying for him (IV 50 1-3).
The fifth treatise, which is again considerably longer and deals with laws and jurisdiction, begins with the distinction between a fraternal rebuke and a legal judgment (V 1), and it then goes on to define the different forms of secular and ecclesiastical jurisdiction. Of some historical interest is the differentiation between pure lordship (merum imperium), which is concerned with the affairs and welfare of all, and limited jurisdiction (iurisdictio presse sumpta), which is exercised by a specially paid judge (iudex mercenarius) in individual private law cases (V 5). In the case of manorial jurisdiction, a distinction is again made between a top level, which establishes the binding laws, and five others, which impose punishments of varying severity (V 6). In the disputations that follow, it becomes a complex and difficult to penetrate system of ecclesiastical and secular jurisdiction that are spread out with variants of ordinary judges, deputies, emissaries, delegates, alcaldens, etc. with different powers and assignments. The inquisitors, for example, are delegates of the pope, who is the ordinary judge in matters of faith (V 28). Some disputations deal with the office and activity of the arbitrator, distinguishing between an (arbitral) judge (arbiter iuris) in law and an arbitrator in agreements (arbiter compromißarius [sic!]) (V 31).
In disputation 46, which is more than thirty columns long and introduces the section of the fifth treatise entitled De legibus et constitutionibus, Molina begins with a systematic examination of the concept of law, which until then had been addressed rather in passing (orbiter). After the usual etymological considerations, he then turns to the question of what the law is (for a detailed treatment, see Kaufmann 2010, Simmermacher 2016). In doing so, the secular and instrumental character he ascribes to human laws is quite striking: Laws exist to bring about the natural (distinct from eternal happiness, but subordinate to it) moral happiness of every human being (porro leges ferre ad finem ultimum naturalem, hoc est, ad naturalem cuiusque hominis felicitatem moralem, V 46.7) under the conditions of human nature after the Fall, when people have come together in various states for reasons of preservation. It is incumbent upon the leaders of those states to promote, by means of laws, the virtuous behavior of the citizens in a comprehensive way that does not exclusively consider the cardinal virtues, and thus the general good of the state (V 46.8). The superior way to govern a state, however, compared to the prudence of individual state leaders, is to have recourse to laws (V 68.2). For laws to accomplish this, they must be prescribed and promulgated (V 69). In some states, moreover, the law has no binding force until it has been accepted by the people (V 46.9). Human law is a “civic act of political prudence” (patet, legem humanam esse civilem actum prudentiae politicae, V 46.11), to be distinguished from a mere prescription by its generality and independence of time (V 46.12).
The differentiation between the content and the ground of validity of the law takes an interesting turn in the context of natural law. Molina uses as a matter of course the division into lex aeterna, lex naturalis, lex humana, lex divina inherited from Thomas Aquinas’ lex treatise (Aquinas, ST II-Iae, q. 90–97), yet he deviates from Aquinas by insisting that the natural law is a divine law because it comes from God. After all, to be law in the full sense, it must be law from someone who enacts it and imposes it on angels and men. But this could only be God as the author of nature (V 46.14). Drawing upon a formulation found in Gregory of Rimini (1300–1358) and sometimes mistakenly taken for a triumphant achievement by Hugo Grotius (1583–1645), the argument, namely that the natural law still exist even if there were no God, is turned on its head by Molina. This reversal was done in such a way that while people could recognize the good by virtue of their natural light, these rational commandments, due to the lack of a commanding will, would not possess the force of law, and thus would not be law in the proper sense (“non haberent [. …] rationem legis proprie”; V 46.14).
Molina distinguishes the way in which the eternal law exists in God himself (and expresses his perfection and infallibility) from the way in which it determines creation (V 46.16). Furthermore, its meaning for beings with free will needs to be distinguished from that of other creatures, in which its manifestations can only metaphorically be called laws (cf. also V 46.30). Likewise, the natural law is subject to various differentiations. On the one hand, it is directly aimed at the moral and speculative happiness of man, which is why the moral precepts are part of the natural law (V 55). At the same time, however, the natural law is also concerned with the aspect of natural happiness concerning the supernatural; this relates differently to each other in the state of innocence than it does after the Fall, and to be distinguished from all this are the law of grace and the positive divine law (V 46.21). These distinctions show how Molina links Thomistic, Franciscan, and other traditions and arranges them into a system that in the end is idiosyncratic yet in itself still quite coherent.
This is also true of his discussion of human law, which he claims, much like natural law in both the governmental and ecclesiastical versions, is derived from the eternal law – as long as it contains no injustices and is enacted by a legitimate authority. If this is not the case, then it does not deserve the term law (V 46.23). “Law” here can be understood in terms of a specific law, which has to be distinguished from law understood as a “collection of many laws directed toward one end” (“pro collectione multarum legum, quae ad unum finem ordinantur,” V 46.23).
Thus, Molina has assembled the elements of his definition of law: It is the command or regulation permanently issued and promulgated by the highest power in the state relevant to it, and it is intended to benefit not one or another, but all either directly, or those under a condition, or according to place, or time, and other circumstances alike, and adopted if necessary for its validity (V 46.30).
Human law contains large portions of natural law but adds some things that belong to the positive law of a particular state. Thus, acts that go against natural law may not be prohibited or prosecuted, for instance, when prostitution is permitted to avoid greater evils such as general fornication or adultery. A legal permission implies a legal incapacity on the part of the authorities and, if necessary, creates legal rights for those who act (V 46.26). A further barrier imposed on state organs arises from the fact that it is God’s task – not that of the secular state – to punish internal acts, especially since they do not harm the state as such (V 46.22).
When in later disputations natural law is again treated, the usual criteria such as universality and the immutability (V 49.4) are often found. Because of these, it is written in our hearts, distinguished from the supernatural as from the positive law (V 47.2). Molina then determines the general principles contained in all varieties of the law and present in us by virtue of a natural faculty of our intellect of possibility, which we recognize by means of natural evidence and without academic training (“sine alio dolore“, V 47.3). When all goes well, we find them present in us as the criticism of conscience of our wrongful actions (V 47.3). Human laws, on the other hand, bind the conscience only insofar as they are not unjust (V 73.1).
Normally, mere human law is derived from natural law. However, because of the generality of natural law instructions, e.g. that one should govern for the good of the community and punish evildoers, this derivation in some specific cases takes place in an arbitrary way. Whether one expels a robber, whips him, or puts him in the galleys is not part of natural law (V 68.1). The binding and obligatory character of human laws is tied to their promulgation. Depending on whether or not the legislator specifies a particular date when they go into effect, they are valid either from that date onward or from the time of publication (V 70.1, 5, 6). Although human laws, like all laws, are intended to promote virtues and prevent vices, they do not prohibit all vices or promote all virtues (V 72). A drastic example was already given above in the context of legal permission.
Although Molina still very much dedicated to the concept of law in its secular as well as religious facets in no less than 27 disputations, some of which are quite long, it remains significant that this investigation is found at the very end of the extensive work. In contrast, the concept of ius, defined similarly by Gottfried Achenwall (1719–1772), who later called it ius subiective sumtum (Achenwall 1767: §44), is found at the beginning of the second treatise and dominates most of it. One can only speculate as to whether the difference between this treatise and De legibus ac Deo legislatore – published just 20 years later, and only three years after the last treatise – is due to the fact that Francisco Suárez (1548–1617) had progressed the development of the modern territorial state, or to the fact that the economic aspect plays a much more important role in Molina’s work. Living in a time in which the importance of the nation state is diminishing (as a result of globalization), despite vehement efforts to restore it to its former strength, it is likely to become important for people to be able to refer to globally valid protective mechanisms. To this end, recourse to individual rights, including human rights, could prove quite helpful, thus making Molina’s approach very relevant.
Editions, Reception, and Impact of De Iustitia et Iure
A Spanish translation of the entire De Iustitia et Iure is available (Molina 1941-1943). The texts on martial law and law, justice, the doctrine of property, and slavery have been translated into Portuguese (Molina 2012). The first treatise and disputations 1-40 of the second treatise are available in a German translation edition that also includes the original Latin text of these passages (Molina 2019). Translations of passages treating significant themes in later sections of the work, such as on martial law or on the theory of money, are available in one form or another (Molina 1990, Molina 1981, Molina 2005).
Molina’s economic theory has received the most attention and recognition, as outlined in the brief presentation of his work (Grice-Hutchinson 1952, Weber 1959). Molina’s views on usury, just price, money, and the right to trade have been the subject of intense study (Alonso-Lasheras 2011, Schüssler 2014, Teixeira 2021). The question is not uncontroversial whether it should be called “solid economic liberal,” as the radical libertarian Murray Rothbard does (Rothbard 2006: 113), or whether traditional ties to notions of economic virtue, the concept of a just price, and polemics against usury contradict such a classification. A differentiated account of the various aspects is offered by Diego Alonso-Lasheras (Alonso-Lasheras 2011: chap. 4–5). Schüssler’s broad assessment that liberal aspects can be found in later scholasticism in general and in Molina in particular would probably find a consensus today (Schüssler 2014: 283, Chafuen 2003). Molina is thus a Janus-headed theorist: someone who grew up in a medieval, strongly Thomistic context, yet was already involved in the baroque disputes; someone who in the economic field definitely adheres to traditional moral principles, but often includes “exceptions” referencing the realities of trade and the (money) market, such as the consideration of possible loss of profit and risk capital. Furthermore, the just price of a commodity is not determined by theologians, but primarily by the communis aestimatio of market participants. Wilhelm Weber’s assessment of Molina’s work as the “culmination and conclusion of scholastic economic thought on the eve of liberalism” thus has a great deal going for it (Schüssler 2014: 284–285). However, not only does a conclusion take place, but precisely because Molina, especially in light of De iustitia et iure and the thematic emphasis on economic theory, was the first Jesuit to write an enormously influential work in quite some time, a “blockbuster” (Schüssler 2014), a groundbreaking work that shaped the discussions in the centuries that followed. This is all the more remarkable given that he was neither the most important author in this field not the only original thinker, perhaps not even the most original.
Political theory and jurisprudence
“In the field of political science Molina’s legacy is relatively unknown,” wrote Frank Costello in his standard work published in 1974 (Costello 1974: 15). It should be noted in the field of legal theory as well as political theory that Molina’s work received relatively little attention for a quite a long time. The one exception was his discussion of slavery, insofar as the Consejo de Indias, fully Real y Supremo Consejo de Indias, the supreme colonial authority of the Spanish crown, justified the keeping of black slaves when responding to a request from King Carlos II in August 1685, citing Molina among others (Fernández Durán 2011: 30–31). Costello was surprised that of all the disputations, disputation 36, which was actually concerned with the plights of conscience of private slave owners, was referenced (Costello 1974: 195); however, this fits the overall rather apologetic style of the text. Josef Höffner’s appreciation for Molina’s precise handling of the slavery issue, stating that he “discussed this question most extensively and thoroughly […]” (Höffner 1947: 272, Brieskorn 2000b), has already been mentioned. Molina’s impact on 19th-century abolitionism, however, was likely rather minor or, at best, indirect. The Peruvian Jesuit Diego de Avendaño (1594–1698), who was both critical of slavery and influenced by Molina, is mentioned now and again in this context (Muñoz García 2007, Muñoz García 2009). However, he did not call for the abolition of slavery and is, for his part, counted among the proponents by the Consejo de Indias in the aforementioned document.
“Molina, whose account […] was the model for Jesuits” (Höpfl 2004: 193), seems to have exerted via his political philosophy enormous influence within his order for a substantial period of time. A differentiated analysis of this history of influence (Höpfl 2004: chap. 9–14) and its reception, for example, in the authors of Protestant northern Europe such as Hugo Grotius (1583–1645), Thomas Hobbes (1588–1679), and Samuel von Pufendorf (1632–1694), exceeds the scope of this article. While Pufendorf, for example, adopts Molina’s definition of freedom to a large extent (without explicitly naming him) in the very first book of his Natural Law (Pufendorf 1674: Lib. I Cap. IV §2), the more pronounced interest in Molina’s political thought and legal thought in more recent years is a relatively new phenomenon. Until Costello’s study appeared, Kleinhappl’s work was the only major treatment (Kleinhappl 1935) published in the 20th century. In recent years, however, a number of more comprehensive publications have been published (Alonso-Lasheras 2011, Brett 2014, MacGregor 2015, Simmermacher 2018).
Some parallels between Molina and Kant seem worth mentioning, such as the differentiation between different types of property: natural and civil in Molina (II 12), sensible and intelligible in Kant (Kant, MM, Doctrine of Right §1, AA 6 245, engl. 401); moreover, Molina’s characterization of marriage as a contractual surrender of the body (III 1. 5) is quite like the “vital mutual possession of their sexual properties” referred to by Kant (Kant, MM, §24, 277 Akademie Ausgabe, engl. 426f.). Even the rejection of Vitoria’s arguments justifying the war against the ‘Indians’ (II 105, Perpetual Peace AA 357ff., engl. 328ff.) shows striking similarities. For an answer to the question of whether they are indirectly due to Kant’s familiarity with the views of the Spanish Jesuit, the possible Königsberg connections, among others, needs to be examined in more detail. All we can say at the moment is that the connection via the philosophers Abraham Calov and Franz A. Aepinus, who were active in Königsberg, seems to be fairly certain (Tommasi 2009, Sgarbi 2010, Ertl 2014: 406).
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