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Law, Natural Law, and the Foundation of Morality in Francisco De Vitoria and Francisco Suárez1

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Law, Natural Law, and the Foundation of Morality in Francisco De Vitoria and Francisco Suárez1 chapter 8 Law, Natural Law, and the Foundation of Morality in Francisco de Vitoria and Francisco Suárez1 Anselm S pindler In STh I–II, q. 90, Aquinas develops a general definition of law (lex). This definition itself is of great import to the discussion of law in the 'School of Salamanca', but the underlying methodological idea has been very influential as well. The idea is that the various types of law (i.e. eternal law, natural law, human law, and divine law) must be investigated on the basis of a general con- cept of law which somehow captures what the four types of law have in com- mon or what the term “law” means for all cases. It is somehow supposed to mean the same thing, and therefore the general concept of law draws a line between things that can be called a law and things that cannot.2 Francisco de Vitoria and Francisco Suárez share this methodical idea. However, they start from quite different understandings of the general concept of law, and this has profound effects on how this concept applies to the different types of law. In this paper, I want to investigate how Vitoriaʼs and Suárezʼs concepts of law differ and how this affects their views on natural law (lex naturalis), i.e. the laws of morality. I will argue that Suárez starts from a voluntaristic con- ception of law which leads him to what Schneewind has called the “older,” 1 This paper is based on my dissertation, Das natürliche Gesetz bei Francisco de Vitoria: Warum Autonomie der einzig mögliche Grund einer universellen Moral ist (Stuttgart-Bad Cannstatt: Frommann-Holzboog, 2015). 2 It has been argued that, for Aquinas, the four types of law do not relate to the general concept of law in the sense of species exemplifying the same genus, but rather as types of law that exemplify the general concept of law in the sense of an analogy (see e.g. Karl- Wilhelm Merks, Theologische Grundlegung der sittlichen Autonomie. Strukturmomente eines ›autonomen‹ Normenbegründungsverständnisses im lex-Traktat der Summa theologiae des Thomas von Aquin [Düsseldorf: Patmos, 1978], p. 110). This may be true, but it cannot mean that just anything that is in some respect similar to a law can be called a law (and Merks, of course, does not suggest that it does). So, even if the concept of analogy serves Aquinas as the concept by which he relates the various types of law to the general definition of law, the general definition of law still has the critical purpose of separating things that can be called a law from things that cannot. © koninklijke brill nv, leiden, ���6 | doi ��.��63/97890043��707_0�0 law, natural law, and the foundation of morality 173 medieval understanding of “morality as obedience,”3 according to which God is the legislator of the laws of morality. Vitoria, on the other hand, argues for a rationalistic conception of law which allows him to develop what Schneewind has called the “new,” modern understanding of “morality as self-governance” or autonomy.4 In order to do so, I will first compare Vitoriaʼs and Suárezʼs inter- pretation of Aquinasʼs definition of law (section 1). I will then reconstruct their theories of natural law (sections 2 and 3). Finally, I will explore Vitoriaʼs theory of natural law a little bit further to show why he believes a theory of the kind Suárez has in mind is inadequate to capture the universal scope of morality and in what sense his own theory can be said to be based on a concept of autonomy (section 4).5 1 Vitoria and Suárez on the Concept of Law In STh I–II, q. 90, Aquinas defines law as quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.6 Given this defi- nition of law, Vitoria and Suárez agree on three points: They agree that this definition of law expresses a general concept of law that captures what the four types of law (i.e. eternal law, natural law, human law, and divine law) have in common or what the term “law” means in every case. They also agree that Aquinasʼs definition of law does capture the essence of law quite accurately. This, in turn, implies that they agree that natural law is a law in the sense of this general definition of law. And yet, Vitoria and Suárez develop two quite different theories of natural law, which is partly due to the fact that they work with two quite different interpretations of Aquinasʼs definition of law. Their disagreement mainly turns on the question of what the term ordinatio rationis means.7 3 Jerome Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1998), p. 4. 4 Ibid. 5 While I believe that most commentators are correct in assuming that Suárez traces natural law back to divine legislation, I will attempt to show that Vitoria’s theory of natural law has so far been largely misinterpreted. Therefore, the discussion of Vitoriaʼs theory of natural law will take up more space than the discussion of Suárezʼs theory of natural law. 6 STh I–II, q. 90, a. 4.—All quotes from Aquinasʼs Summa theologiae are taken from http:// www.corpusthomisticum.org/iopera.html, last retrieved 7 April 2014. 7 There may well be considerable disagreement between Vitoria and Suárez with respect to other aspects of law, but I will focus on this one, because it is, in my view, the most important one with respect to their contrary views of natural law..
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