Author: Jean-Paul Coujou
Part of: Suárez’s Theory of Law, Politics, Anthropology (coord. by Cintia Faraco)
Published: February, 28th, 2019
The latest version of this entry may be cited as follows: Coujou, Jean-Paul, “Francisco Suárez, Theory of Law”, Conimbricenses.org Encyclopedia, Mário Santiago de Carvalho, Simone Guidi (eds.), doi = “10.5281/zenodo.2579914”, URL = “http://www.conimbricenses.org/encyclopedia/suarez-francisco-theory-law/”, latest revision: February, 28th, 2019.
Table of Contents
In the monumental work of Suárez (1548-1617), the question of law is the object of a specific imposing treatise, composed of ten books, published about 1612 in Coimbra, On Laws and God the Legislator. It is the result of the redaction of courses taught at the University of Coimbra between 1601 and 1603. This work, in virtue of its form and content, appears to constitute a continuation among others of the theological-juridical interpretation of law developed by his predecessors, especially Thomas of Aquinas, Francisco de Vitória, Domingo de Soto, Fray Luís de Léon and Luis de Molina. Nonetheless, one must note that, with regard to the totality of Suárez’s writings, this interrogation about law does not start nor even end with De legibus, since his writings reveal it respectively—if one focuses on the most recognized texts of the Suárez corpus—De Bello (On War), extracted from the third treatise entitled De Fide, de Spe, de Charitate (written in 1584 and published posthumously in 1621) and Defensio Fidei, published in 1613 and authored on command from Philip III, in response to the well-known controversy between Pope Paul V and James bearing on the conditions and the legitimacy of a possible autonomy of royal power with respect to the spiritual power.
Beyond these bibliographical considerations, it is first of all appropriate to note that the historical context within which the Suárezian reflection on the nature, the causes, the effects, and the aim of law inserts itself is complex. As a matter of fact, the sixteenth century confronts its well-informed observer with a series of crises to with Suarez is compelled in particular to respond: 1) the decomposition of the unity of the old cosmos; 2) the crumbling of spiritual unity with the Reformation and the reaction it engenders in the Counter-reformation; 3) the deterioration of the show of political unity brought about by Machiavelli; and 4) the reformulation of ethical unity with the stream of the Renaissance and humanism with its emblematic representatives such as Erasmus and Luis Vivès. In this sense, De legibus carries out a systematic effort of juridical determination on the foundations of political society in order to respond to the problems of its time: 1) the institutional crisis of the Church and the Catholic reform brought about by the Council of Trent (1545-1563); 2) the theological renewal which had been spawned at the beginning of the sixteenth century, especially by Vitoria under the influence of the university of Paris; 3) the pursuit of a European peace depending on the friendship between England and Spain; 4) the distinction between the spiritual power and the temporal power tied to the criticism of theocracy. By this, the way is open towards the question of tyrannicide and the right to revolt; to the reformulation of the social contract and the genesis of international law; this supposes likewise the resumption of the heritage of Antonio Montesinos’ sermon of 1511 and the controversy of Valladolid in 1550 on the status of the American Indians condensed by the theses of Sepulveda and Bartolomé de las Casas, confronting the question of the recognition of a universal humanity and its juridical evolution.
However, it appears that the reflection in this context reaches the maturity of its formulation in De Legibus, on the basis of a synthesis of a triple heritage: 1) that of ontology or the science of real being, of its properties and causes, elaborated in the Metaphysical Disputations (1597), seeking an intelligibility as much in the sphere of knowledge as in action; 2) in anthropology, developing a theory of the intellect and the passions, formulated in the Tractatus de anima, and 3) in the philosophical and theological commentaries on the work Thomas of Aquinas, directed toward action and its ends, freedom of the will, the search for the good, and the foundations of moral values. In this respect, it is possible to consider that De Legibus constitutes a work contributing to the achievement of its author’s system by the methodical articulation that is placed within the domains of anthropology, theology, ontology and politics.
The study of laws should allow one, in the light of Suárez’s theory of understanding and of man: 1) to establish by what conditions civil authority is capable of governing people in a fair manner and in line with human nature, 2) to explain why political society presupposes a regulative principle of human multiplicity (the law), as well as, by necessity, a consideration of the inner contradictions of human social nature (passions and reason); 3) to present the law as both the production of a rational being, free and finite, and also as a means of fulfilling one’s humanity.
According to this perspective, the examination of human nature reveals that the mode of existence of human beings can be understood on the basis of three primordial spheres: that of the individual, that of being a member of a family, and that of being a participant in the political community. The latter requires an arrangement or a consensus for the ability to express a legitimate legislative power, even if it must recognize that historically power originally was from kingdoms and empires. Nonetheless, evoking the idea of a political community requires one to explain the reason why it could and have there a dissymmetry among humans with certain ones obligating others by means of laws. If man is born free as being uniquely bound to his Creator and if no one has the natural authority similar to His, how then could one comprehend and define a law that is not contrary to the natural order and that does not contradict the primordial nature of man?
The problematic structure of De Legibus allows us to extricate an argumentation in three phases: 1) man is a political animal and society is needed for the improvement of human life; 2) this society, however, could not be conserved without a political power that must be established in conformity with the norm of natural justice, founded on liberty and reason; 3) as a consequence, it is likewise necessary and natural that there be public authority; but how must the latter be conceived so that consent to the law may be legitimate and compatible with natural liberty and equality?
The Meaning and Reason of The Law
Suárez defines law as «a common, just and stable precept, sufficiently promulgated» (De Leg. I, XII, n.5). On the one hand, this definition constitutes a response to the Thomist determination (ST I-IIae, q. 90, a.1) of law, judged as overly extensive and, by implication, imprecise (De Leg. I, 1, n. 1). Indeed, the latter concerns not merely rational creatures but those that are not; hence, it corresponds in the same way to a cosmological and theological representation of reality, according to which all that exists is referred to a norm constituting the standard of its action. The imprecision that results from this, according to Suárez, leads Thomas Aquinas to integrate, in an illegitimate manner, natural laws into his definition of law such that counsels do not imply any obligation of action. Furthermore, the source of these difficulties is equally found in the heritage of Antiquity related to undifferentiated acceptances of the term ‘law’ which are understood by Suárez according to a metaphorical significance (De Leg. I, 1, n. 2) intended to express the regularity of things in the Cosmos. As a result, there are two misunderstandings, since: 1) Plato, for example, considers that there is indistinctly one law for art and for moral standards and, 2) usually, it envisions the natural inclinations proper to things or proper to human beings as laws, which consequently outlaws the understanding of the essence of law, since it is a tendency—in being a conditioner—that isn’t identifiable as a constraining rule; it can’t pretend to engender any type of morality and it denies the freedom of the will as the foundation of the moral act. It doesn’t exist as such as a law that is by and for a free being endowed with reason. Because man is a rational and free creature, he is consequently capable of being subject to the law whose finality consists in being oriented towards the good and moving away from evil (De Leg. I, III, n. 3); it is likewise necessary so that man lives in conformity with his nature.
Suárez consequently imposes a univocal definition of law. It can only be identified with the standard of the rectitude of the moral action of a certain rational creature (De Leg. I, 1, n. 6), who considers himself autonomous in relation to the Cosmos. The characteristic of law, which is confirmed by its etymology, consists in being tied to or obliged. And the rectitude it implies supposes freedom and, therefore, an obligation that has its own root, not in an immanent principle such as the general order of things, but precisely in a commandment exterior to will and inseparable from a constraining authority. In this respect, the effects of law in the human order can be reduced to four: to prescribe, to forbid, to authorize and to punish (De Leg. I, XV). These effects stem from the power of a superior (a moral person or the State) bearing on free and rational beings for whom obligation and not only constraint could have meaning.
By endowing law with the characteristic of being obligatory and expressing the possibility of constraint, Suárez assigns it a status of being a measure and rule of action in order to understand it, henceforth, as a precept. The characteristic of law is to become the norm of the act not because the latter expresses a goodness that precedes it, but, as a prescription, it establishes the moral value of the act. With the law, the goodness of the act results from the fact that it is commanded. Law obliges and constrains, because: 1) man is free and reasonable, 2) because the law is its reality and that which submits to it, which means that, insofar as it is a precept, it would not be an a posteriori expression of the preexistent goodness of an act or of an objective goodness. A major difficulty arises: one must limit the position of the thesis to positive law, in order to safeguard the foundation of the natural law as the possibility of discernment between good and evil, which is inscribed in human nature. With regard to the finite creature, it is appropriate to say that the human law regulates relations between rational beings prone to comprehend it and receive it as an act of decision whose elaboration has its source in the mind of the legislator. It corresponds to an act of the will intending justice and rectitude, implying the establishment by a superior of a norm which obliges. «We call law that which has the immediate authority of moving and obliging the subjects» (De Leg. I, IV, n. 2). Insofar as it is a common precept, law is imposed on a community or on a human multiplicity, in view of the common good by the prescription of that which is just.
From this, it is fitting to suppose that the law, from the fact of human nature, has to do with the intellect and the will (Ibid.). The enactment of law relies on a political decision: «law is a certain act of the sovereign that by itself and its own authority constitutes an obligation and binds the subject» (De Leg. I, V, n. 23). It conveys the moral imperative intended to produce a specific behavior regarding circumstances. It is precisely the intellect that renders it apt for such a disposition. Nevertheless, law as a feature of obligation is inseparably linked to the will. It is in the intellect in terms of power and in the will in terms of act. In this perspective, besides the traditional question of voluntarism—which expresses an oversight of ontology that renders the formulation possible—and in accordance with the Suárezian problematic of essence and existence (DM XXXI), we could say that the intellect, as an essence, is the specific determination by means of which the reality of the law’s existence in act is rendered possible. With respect to the will, as well as existence, it is that by which the law, formally and intrinsically, is exisitant in act. Subsequently, and it is this which recalls the status accorded to the precept, the will completes the process of representation suitable to the intellect by constituting the law in act, which enables the rediscovery of the juridical order of the ontological distinction between what is in act and what is possible. With the law, the significance of the will is turned from actuality towards effectivity. The will characterizes a reality in the law—that of being put into place. Just as essence in act becomes the equivalent of existence in the metaphysical order, the intellect in act becomes the equivalent of the will in the juridical order. The precept corresponds to the act designating the moment in which the intellect and the will become identified in reality.
This identification is embodied notably in the comprehension of the law as a just precept. It corresponds to the moment in which the will accords with an intellectual representation of justice consonant with reason, which is tantamount to saying that an unjust law isn’t a law and would be unable of holding any obligatory force. There are morally good and bad acts that should be the object of a prescription or a prohibition by the law for it to be just or unjust. As a result, for Suárez there follows the need to distinguish between the uprightness and morality of the acts prescribed by the law and the equity in the distribution of the responsibilities prescribed by the law. Therefore, there’s a need to distinguish the morality and the justice of the law. If we consider acts as morally good in themselves, they would remain independent from what establishes the law which confers their obligatory character. The positive law, however, confers on them an actuality and an obligatory character they were lacking. In this sense, an act that isn’t against the natural or divine law could be identified as an evil if it is against the positive law.
The tripartition of law
In light of these considerations, the ensemble of the causes of law examined in the human order is thereby in a position to be synthetized in the following manner: 1) the efficient cause of law lies in the power of jurisdiction of the moral person or sovereign capable of promulgating it; 2) the material cause is to be sought in the articulation between the intellect and the will, which have as their object what is considered as consonant with rectitude; 3) the formal cause encompasses the modalities of the presentation and the promulgation of the law. 4) The final cause is identified with the search for the common good, concretely defined by peace, justice, public order, security and liberty.
Examined in accordance with its mode of manifestation, the term, “law”—in order to be intelligible both in its origin and in its principle and finality—must be subdivided into three categories: the eternal law, the natural law and the human law.
1) The eternal or divine law represents by its dignity and excellence «the source and origin of all the other laws» (De Leg. II, Proem). It is the universal norm in relation to which all beings must proceed, move and are moved. It is the model of the whole collection of laws and it embodies the principle by means of which, by contrast, the specificity of the human law as well as the temporal and historical law can be established. This division is inseparable from the ontological distinction elaborated in metaphysics between the infinite and the finite (DM XXVIII). The implication is that the eternal law is, by essence, perfect and immutable whereas human law is defined by its mutability and its imperfection. Therefore, the former is the law by essence, and any other kind of law is no more than a participation in the divine law.
Nevertheless, if the eternal law is the ratio of all the other laws, it cannot involve an identical practical application to that of human law in the political and historical sphere. If from all eternity it is immanent to the divine will, it couldn’t be asserted that it is promulgated from all eternity to creatures, because the existence of the latter had a beginning in time. The eternal law only actually manifests itself in the human world by the mediation of the natural law; for Suárez, the former corresponds to the essential law and the latter to the law by participation.
In so far as it exists in the mind of God, the eternal law constitutes a second act or derivative: it is fundamentally a free act of the divine will (De Leg. II, III, n. 6) establishing the order prior to its being observed. In fact, one proves that the eternal law doesn’t slip away to the general definition of law that identifies it as a free decree of the will of the superior obliging inferiors to carry out this or that action. Nevertheless, in contrast to human law, its promulgation to subjects doesn’t reflect its essential character; it is in itself and by itself accomplished by the sole fact of being given by the mind of God as legislator (De Leg. II, II, n. 11). Conversely, all the other laws only acquire actuality insofar as they are sufficiently promulgated. In effect, the obligation in the eternal law doesn’t require a public promulgation in order to be effective; it rests on the knowledge that the subject has of it. The eternal law represents an effective obligation, from the point at which the commandment of the divine will manifests itself to the individual with the clarity and evidence of an interior revelation. For the creature, it can only be known through participation, that is to say, through the mediation of just laws, historically established. For this reason, all human beings, because they are rational beings, have in themselves the knowledge of the eternal law by participation without having for all that a direct knowledge of it. The immanence of reason in man thus expresses the mediatory principle of the effects of the infinite on the finite.
2) The natural law in Suárez paradoxically does not have anything natural; it is immanent in the human intellect and it lays the foundation for the possibility of discerning between good and evil. It is one and the same for the whole of humanity, regardless of places or epochs (De Leg. II, VIII, n. 8). It lays the foundation for the affirmation in each and every rational being of the individual character of his humanity while participating in the universality of the human species. It is imperative for Suárez to bring the natural law into an ontological order conjointly adapted to the reason and essence of man in order to bring about the exteriorization of an immanent ethical norm to the finite being. The natural law expresses, therefore, the foundations of ethics free: a) from the subjugation to a cosmological order, and b) from a theologization of the Logos of the Stoics, identified with a divine rationality.
Suarez’s aim consists in showing that the natural law does not become a veritable law except by being autonomous in comparison to the essence of things (De Leg. I, III, n. 8), and it is only real by being immanent to the rational being. In this way one observes a modification of the same meaning of naturality that moves from the ontological structure of reality towards an ethical problematic of human nature (Ibid., n. 9). Natural law is what is legible in the invisibly written text that constitutes human nature. According to the biblical tradition, it possesses an actuality in the hearts of humans and their conscience establishes proof of it. Therefore, natural law does not require the positive law in order to be real. It bears witness in the immanence of the inward sense of what corresponds or does not to the command of right reason (De Leg. II, V, n. 10). It prohibits everything that is per se wrong and prescribes abstention from what represents an evil in itself. It consequently carries in it the whole collection of evident moral principles to which it is proper, according to natural reason, to obey.
3) Human law takes its legitimacy from its conformity with the natural law; meanwhile, it acquires a larger extension on account of its historically and politically application (De Leg. III, XII, n. 12). It has as its regulative norm the intrinsic rectitude of acts, which natural law enunciates, while having as its constitutive principle the communal good (Ibid., n. 9) as the best warrant of the achievement of the particular good. It represents the only method to normalize relations between humans (Ibid., XI, n. 6), constraining the individuals originally prone to seek only their particular interest, rather than orienting themselves towards the common good (Ibid., n. 7). Therefore, through legal justice, human or civil law confers to the common good a trans-individual value which, by its universality, exceeds the mere addition of individual goods. In this regard, it confers a political actuality to the moral power it expresses. Hence, politics, with respect to legislative practice in history, cannot aspire to anything other than the humanity of man understood as reason and liberty. In its ethical dimension, the natural law reveals to man what he should or shouldn’t do in order to be genuinely human or worthy of the use he makes of his reason and liberty. Human law then has the duty, by the mediation of legal justice, to establish the adequacy of morals and politics with respect to their finality. It establishes that political ends cannot be exterior to morals without endangering the historical realization of the unity of the human race.
Law and the juridical development of humanity
This tripartition of law couldn’t gloss over a recurrent difficulty. In De Legibus, Suárez insists on the fact that originally custom (as proto-law) and the law itself are no less confronted by their limits when it comes to responding to the problem of inter-state relations. In effect, it is impossible to provide the management of the type of relations to which the ensemble of nations should conform, in order to allow their coexistence and ensure their continuity. It seems that the limited prerogatives of custom and law aren’t capable of ensuring the historical unity of the human race (De Leg. II, XIX, n. 19). The power of civil laws has never been historically «one and the same for the universal totality of humankind» (De Leg. III, II, n. 6). In its foundation and institution, the human community is to be understood from the principle of its separation into multiple States. The fact of this historical and political division justifies the establishment of a jus commune, the law of nations, through which mutual aid and the preservation of peace and justice become actual by the mediation of a common consent about common rights (peace treaties, truces, ambassadorial immunity, right to fortification, …) Such a right «has been instituted by custom and tradition more than by legal disposition» (Ibid). But, its critical examination brings forth three difficulties in Suárez: 1) that of its origin in the system of law which confronts the problem of the articulation between nature and convention, between the universality of the natural right and the historical particularity of the positive right, 2) that of its foundation which requires establishing its connection with and differentiation from the natural law, and 3) that of its finality opening the way for the constitution of an ethical and juridical development of humanity which respects diversity within it.
Suárez, with his commitment to re-establish the law of nations, keeps the division between natural and positive law. One will notice in this regard that the laws of the law of nations are not purely natural; and according to the division we invoked, they can only be positive and human. Contrary to the natural law coming forth from natural evidence, the law of nations flows from «probable conclusions» and the «common appraisal of humans» (De Leg. II, XIX, n. 4); the fact that it has its roots in custom confirms its mutability (De Leg. II, XX, n. 6), and it is precisely in this that it differentiates itself from the natural law. Therefore, in the same way as it manifests historical development, there was no need for the preservation and progress of the human race that humanity would compose a single political community (De Leg. III, II, n. 5). The Roman Empire itself never exercised a total sovereignty on the people over which it had a power (De Leg. III, VII, n. 4). The law of nations historically confirms in this respect that in humanity there never was a sovereign political body. The fact of such an absence does not exclude the constitution of a relative universality (distinct from the absolute universality of natural law), corresponding to a communitarian unity in the future in search of the establishment of reciprocal obligations.
At the end of these remarks, in an effort to avoid perpetuating confusions held in the tradition, it is indeed advisable in the Suárezian perspective to avoid a reduction of the law of nations to the natural law. According to the approach of Thomas of Aquinas, it seems that the natural law and the law of nations represent inseparable laws that constitute humanity in man. The first considers man from the point of view of his animality, that is to say, from his generic nature, but equally from the point of view of his belonging to the whole and which direct in him the tendencies that exceed the species to which he belongs. The second refer to the specific distinction of man, for example, his properly historical and political nature. The attentive examination of the natural law leads Suárez to refuse laying down what is common to humans and animals (De Leg. II, XVII, n. 5) and attributing, as a consequence, the sensitive nature as its foundation (Ibid., n. 6). For, if the natural law is indeed in compliance with the conservation of the sensitive nature, it remains on the mode of rationality. The internal affirmative precepts of the natural law ground their obligatory character on a rational evidence and according to a necessary deduction from the first principles, those of human nature.
It seems nonetheless that: 1) the principles of the law of nations in spite of their specific universality do not regain such an intrinsic necessity; 2) the law of nations doesn’t possess an intrinsically moral value and cannot take as reference necessarily inferred conclusions from moral principles. The precepts that implicate the latter are constitutive of the natural law (De Leg. II, VII, n. 7). Indeed: «everything we can deduce from natural principles by evident reasoning is also written in human heart» (De Leg. II, XVII, n. 8). The universality which elevates the natural law is immanent in human nature completely by inferring reference to a transcendental origin. It is, therefore, absolute. On the contrary, the origin of the law of nations is not necessarily tied to a theory of the being of humans since its dominant feature relies on the fact that men have historically instituted its precepts in the quasi-totality of the human community. This universality, when we take into consideration the socio-historical development of peoples, is relative, because it is not based on a reading of human nature, but on the free will and consent of men. These last two elements, characteristic of its conventional dimension, are capable of validity for the whole of humanity, without having, for all that, an identical justification and foundation. If the content of a precept of the natural law corresponds to what is good or evil per se, that of the law of nations concerns that which is judged as such on the basis of a common consent. We could conclude that: 1) the universality of the natural law is absolute because it is defined by its unicity and its immutability; it transcends the political and historical reality because it is given as constitutive of the humanity of man; 2) the universality of the law of nations is relative due to the fact of a) the artificial character of its existence, and b) its origin based on the consensus of the greatest number at a given historical moment.
The «quasi political and moral unity » (De Leg. II, XIX, n. 9) proper to the law of nations, constitutes, in effect, a necessarily relative unity in virtue of the historical development of humanity because it remains partly subject to the sovereignty of each State. Nevertheless, the law of nations historically reinforces the ontological principle of human sociability and the anthropological principle of inter-humanity. Its theoretical articulation hinges on the concept of universitas inherited from Middle Age, the sign of an ontology of totality, of totus orbis comprising humanity as a synthesis of all peoples constituted into States. The passage from the national multitude in historical development to an organized association within the bounds of respect for the sovereignty of States remains possible and worthwhile. Because of this, there is historically strengthened the actuality of a human universality founded on the recognition of a common nature among all individuals that constitutes them as human beings. The Suárezian comprehension of the law of nations extracts from the historical practice the effects of this understanding of being human, at the crossroads of a heritage of the stoical anthropology and Christian thought, which structures a universal community of the human race, expressing a specific entity: that of being-in-common. It seeks the promotion of the representation of humanity that only becomes legitimate if it is theorized in the universal. This induces the successful completion of the process of substitution from the universitas to the cosmos of antiquity in order to promote, by reference to the divine order, a political dimension suitable to the whole and a globalizing conception of the human. From the law of nations there emerges the fact that humanity is no longer part of a whole; rather it is henceforth on the way to being identifiable with a totality in the process of developing that which for itself is its proper law.
The law of nations confirms, on the one hand, the relative dimension of the legitimacy of the State’s power and, on the other hand, it disengages the latter from a historical isolation by introducing it into a community of law resting on the unity of the human race. Its function is precisely intelligible based on an international political order and it likewise differentiates itself on this point from the civil law. The function of the civil law implicates a proper act of the human will consisting of that which «humans integrate into a political body according to a social bond, in order to assist each other in view of a political purpose» (De Leg. III, II, n. 4). Nonetheless, such «unity per se» (Ibid) isn’t historically accomplished; it requires the mediation of the law of nations. The theoretical framework is thereby traced in order to recall that human nature is historically embodied in a multiplicity of States (Ibid., n. 6) and that its intelligibility is inseparable from its embodiment in the historical evolution. In accord with the preceding anthropo-theological deductions, it then becomes necessary to invoke a law which, by the character of its relative universality, is distinct from the total collection of other laws. Hence, it is the expression of freedom and reason in history and not the product of a logical deduction from human nature; in this it does not remain less historically beneficial to the affirmation of this same nature.
The original specific function of the law of nations is the mutual aid between nations, the preservation of peace and justice within inter-human relations by the mediation of a common consent of common laws. Its emergence isn’t explicable from the positive decrees but from the general effect of juridical norms temporally introduced by custom and the continuous practice of nations as actual members of the community of nations as the totalization in development. The law of nations is, therefore, a stakeholder in the objective exteriorization of human nature in time. Following this perspective, it confirms that humanity merges with its own history just as the existence of an individual merges with the duration of his life. And it makes necessary an inquiry into the status of freedom within the temporal condition in which it will confront the theory of the State, taking into account that the historical situation of peoples likewise determines the possibilities of political action.
This relation to history allows us to fine-tune the difference between natural law and the law of nations. The object of the first is not capable of being assimilated into humanity understood historically as a unity divided into States, but rather to humanity ontologically conceived as a unity made up of the assembly of men; every man individually considered does not remain any less by himself the manifestation of his natural law. If now we refer to the object of law of nations, it is capable of being assimilated to the nations as members of humanity, its function being regulated within the historical development of inter-State relations; it asserts itself in the same way in its public dimension, by seeking the warranty of peace and justice within the inter-communitarian space.
Historically, it seems that the precepts of the law of nations acquire a more general character than those of the civil law, precisely because «the interest of whole of humanity and conformity to the first and universal principles of nature» are taken into account. Nevertheless, the need for such conformity should not overlook the mutability of law of nations, because «it depends on the consent of humans» (Ibid., n. 6). Its prohibitions and positive precepts are affected in the same way; from whence it has been granted that its rules couldn’t be derived from natural principles «by means of necessary and evident deductions» (Ibid.), and that the foundation of its obligation does not flow from pure reason, but rather entails reference to a human obligation based on custom. This historical mutability only requires an actual authority as a condition of possibility. The historical understanding underpinning this thesis, by recognizing the unity of the individual and the social milieu, affirms the particularly of nations and the relativity of wills; hence, it is brings about a synthesis of the person and humanity within the unfolding of their temporal existence. With the law of nations, man appears to himself as a historical being and a social being affirming his particularity while trying to account for it in thought. He discovers that he is part of a collectivity sharing in a common history, which is equally common to several collectivities. And he confirms in the same way the possibility of man defining and situating himself in relation to his own kind as he gradually differentiates himself historically.
It is thus possible, relative to this observation, to distinguish a double historical manifestation of the law of nations: the first (the international law) whose universal character results from the acknowledgment of a common law by multiple nations; and the other (customary law) that is genuinely universal due to its conformity to the universality of habits and customs. This achievement, therefore, is purely human.
The question of law in De Legibus of Suárez culminates with the formulation of an international law among States or a public law of nations, confirming, therefore, that the law of individuals or the private law of peoples cannot by themselves solve the problem of coexistence among men. It belongs to the raison d’être of the law’s existence to put in place the conditions for the establishment of a regulative principle of political and historical relations between nations. As a consequence, the law is necessarily open to a cosmopolitan horizon, the Communitas totus Orbis identified with the universal community of peoples. It defines, in terms of the process of its development, the space for the positive international law that rests on a double pedestal: the natural law for the ethical legitimacy of its principles and the law of nations for the possibility of its historical realization. In this sense, the law of nations is to international positive law what the natural law is to civil law. From this perspective, elaborated within the spirit of the second scholasticism, it has logically restored to the law in the interstate order a capacity to contribute to the actualization of the juridical future of humanity.
Translated into English by Daniel Marques
Thanks to Prof. Robert Fastiggi for a comprehensive linguistic revision
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