Later Scholastic Philosophy of Law

Social Philosophy and Policy Foundation, Bowling Green, OH, USA


All translations are by the author unless otherwise indicated.

14.1 Introduction

In this chapter we are concerned with the movement known, in its initial phase, as the “School of Salamanca” after the university initially at its center, and subsequently more broadly as the “second scholastic” in recognition of its spread beyond the University of Salamanca to cover the entirety of Counter-Reformation Europe and the new universities of the Spanish dominions in the New World. Chronologically, it extends from the second decade of the sixteenth century to about the third quarter of the seventeenth.1 The term “second” refers to the perceived re-foundation of scholastic theology in the wake of the Reformation, a “renewal” based on the works of Thomas Aquinas (ca. 1226–1274) after the prevalence, in the later medieval period, of nominalist and Scotist approaches that followed the work of William of Ockham (1280–1347) and Johannes Duns Scotus (1274–1347), respectively. These traditional historiographical characterizations are not entirely apt, though. More recent scholarship shows how much continuity there was between pre- and post-Reformation scholasticism, and questions the trope of the “decadence” of late-medieval nominalism which dominates the literature on these thinkers from the first half of the twentieth century as well as the degree of their allegiance to the teachings of Aquinas. Nevertheless, there is no doubt that, in self-understanding and literary production, sixteenth- and seventeenth-century scholastic theologians differed from their predecessors, and that the adoption of Aquinas’s works—especially, the Summa Theologiae—as the central point of reference was a key aspect of this difference. This of itself pushed the question of law into the foreground, given Aquinas’s extensive treatment of law in the Prima Secundae of the Summa, but there are also contextual factors explaining both the turn to Aquinas and the interest in the subject of law.

The early sixteenth century was a ferment of new intellectual movements and ideas. For at least a century, humanism had been challenging scholastic practices of education and scholarship with its alternative pedagogy centered around mastery of the classical languages and literature, and the related studies of philology, rhetoric, and history. In the figure, especially, of Desiderius Erasmus (1466–1536), humanist scholarship began to have an impact on the traditionally scholastic study of theology. Erasmus used his philology to publish, in 1516, a new translation of the New Testament from the Greek, challenging the authority of the Vulgate version sanctioned by the Church. He also argued for a more interior understanding of spirituality, apparently reducing the importance of ecclesiastical rites and ceremonies. Other humanist scholars were involved in growing calls for Church reform and criticism of the contemporary papacy and its practices. These humanist developments were shortly followed by what would turn out to be a far more momentous challenge, namely, Martin Luther’s nailing of his ninety-five theses to the door of the Church of All Saints in Wittenberg in October 1517. Luther’s original criticisms, which can be seen as part of the call for Church reform, hardened into theological opposition and initiated the movement we now know as the Reformation. Two central, and related, aspects of Luther’s teaching were his appeal to “scripture alone” (sola scriptura) in understanding the Word of God, and his denial of the traditional authority of the Church, especially that of the Pope. The challenge to scholastic theologians from both humanism and Lutheranism was clear: to defend a certain kind of study of theology as well as a certain kind of understanding of the Church.

These intellectual developments were intimately connected with far-reaching, indeed, world-changing, political developments. In 1516 Charles, the Habsburg archduke of Burgundy and the Low Countries, acceded to the thrones of Aragon and Castile, and in 1519 was elected Holy Roman Emperor. He thus became the Emperor Charles V, ruler of a composite empire that stretched from the far east to the far west of Europe, and further west still to Spain’s nascent dominions in the New World. Salamanca, the principal theological university of Spain, grew enormously in influence and prestige as a result. The Spanish crown had a well established practice of consulting the theologians of Salamanca for authorization (and thus legitimation) of royal policy, and those theologians became involved in the intellectual politics of Charles V and the Counter-Reformation: his fight, as Emperor, against the opposition, both political and religious, of those German princes who had adopted the Lutheran faith; and his uneasy relations with the papacy at Rome, sacked by his troops in 1527, including his efforts to force the pope to call a new general council to settle doctrinal issues in the wake of the Reformation, efforts that were finally successful as the Council of Trent convened in 1545. Their eyes were turned west as well as east, however, toward America and the issues of conscience raised by the Spanish treatment of the native Amerindian populations. The legitimacy of political authority in general, the capacity to make law, authority within the church, the justification of war and conquest—all of these issues were on the agenda for the leading theologians of Spain, and explain the distinctive political cast of the School of Salamanca. Equally on the agenda was a strengthening of scholastic intellectual practice to secure the theology of Catholic universities against challenges that came, initially, from outside the universities, but increasingly from the new Lutheran and subsequently Calvinist universities, training their own academic theologians as part of their own intellectual and political strategies.

The turn to Aquinas’s Summa was a key element of both enterprises. Long the authoritative textbook within the schools of the Dominican Order, the Salamanca theologians institutionalized it as the basis for teaching theology in the universities; their lectures upon it equally institutionalized commentary on the Summa as an academic genre. At the same time, the systematic expositions of law and justice found in that work provided the basis for their response to the pressing political and ecclesiological questions in which they found themselves involved. The foundation of the Society of Jesus in 1545 brought a new Order onto the scene, one dedicated to the cultural politics of Counter-Reform, with education a central aspect of its mission. As the century wore on, Jesuits and Dominicans would come into conflict over the interpretation of Aquinas, particularly on the question of free will, and the Society of Jesus itself would disagree internally on how much interpretative freedom was to be allowed its members with respect to his teachings. Nevertheless, the Summa continued to be the fundamental reference point for Jesuit as well as Dominican theologians, and commentary upon it one of their central intellectual activities.

For our purposes, the most important sections of the Summa are QQ. 90– 108 of the Prima Secundae (the “treatise” on law) and QQ. 57–66 of the Secunda Secundae (the “treatise” on justice and right). Often, commentaries upon these sections were published as separate, free-standing works, under the titles De Legibus and De Iustitia et Iure, respectively, but they could equally form part of a commentary on the entire Summa. This, again, might explicitly be labelled as such, but could also, in the seventeenth century, be presented rather as a Cursus Theologicus, offering a course of instruction in theology organized around the Summa. As the variety of formats already suggests, “commentary” here should be understood in a broad sense. Aquinas’s work is divided into “questions,” but these turn out to be more in the way of broad headings (e.g., Prima Secundae, Q. 96, “On human law”). They then subdivide into a series of articles which actually take the form of questions (e.g., especially significant for us, Prima Secundae, Q. 96, a. 4, “Does human law impose a necessity in the court of conscience?”). Some later scholastic commentaries stay with Aquinas’s own questions and offer interpretative commentary upon them, although even here there is a marked tendency to open up the discussion beyond the terms in which it had originally been framed. This departure from the original questions is made explicit in those commentaries which formally introduce new questions of their own, and either alter the order of the questions or run several of them together to create a new subject heading. Increasingly in the Jesuit literature, these new treatments are termed “disputations,” full-blown, freestanding treatments of a subject that are prompted by Aquinas’s text, but are no longer restricted either to his terms or to his conclusions. Again, sometimes the original passages of the Summa are reproduced in full, but sometimes the author simply offers a summary before turning to his own exposition. Finally, some works are organized into books or tractates that have no prompt at all in the Summa, and are a function of the author’s independent understanding of the proper organization of the material. One might therefore ask whether “commentary,” even in a very broad sense, is still an apt term for these productions. I retain it because these texts almost entirely originate in lecturing activity on the Summa as the “set text” in theology, and continue to be conditioned by Aquinas’s questions even when they depart from him radically both in form and content.

Related to this principal academic genre are various others that are informed by it and inform it in their turn. The later middle ages had seen the development of a genre known as Summae Confessorum, “Summaries for confessors,” which are handbooks of practical moral theology designed to assist the confessor in judging in the court of conscience. They are heavily legalistic, involving constant reference especially to canon, but also to Roman, law. While the genre did not survive in its late-medieval form, in which topics are treated in alphabetical order, a vast literature on cases of conscience continued to flourish. While these are works of casuistry, geared to the particular, they are still indebted to the broader theology of law being developed in the context of commenting on the Summa; conversely, those commentaries are themselves pervaded by the same interleaving of theology and law that characterizes the literature on cases of conscience. That literature had since its late-medieval inception been deeply concerned with the morality of economic transactions, and this aspect again flourished in the period with which we are concerned, with a huge number of works, both in Latin and in the vernacular, that are in some form de contractibus (“concerning contracts”). In turn, this preoccupation also marks, especially, the commentaries De Iustitia et Iure, which are “academic” in the sense that they stem from curricular activity and consider questions of right at a theoretical level, but which are also deeply invested in questions of practical morality and conscience generated by the complex economic world around them. The moral authority of the confessor combined with the ubiquity of such dilemmas ensured that these works had a diffusion in society far beyond the confines of the university.

Another dimension of the extra-curricular engagement of the academic literature is its relationship to “controversial” theology, that is, the teaching and literature generated by the demand to respond to “the heretics of our time.” Much of this literature concerns questions of grace and free will, but it is important that the “controversies” had a strong political dimension as well. On the question of law, the works of the entire movement are strongly marked by the rebuttal of the view of law that they attribute to Luther, that is, that no human law is binding in the court of conscience insofar as it is human law, by which they mean law that is neither natural nor divine. In the early stages, the critique of the Lutheran position centered on his repudiation of canon law, the human law of the church. However, this critique soon extended to include civil law, the law of the political commonwealth, and led some commentators on the Summa to insert a question on the necessity of human law purely directed against “the heretics.” Almost all of them, in any case, vastly expand Aquinas’s question on obligation in conscience. The implication that Lutheran teaching was antinomian as far as this world is concerned was highly opportunistic, despite some of Luther’s more vitriolic pronouncements against the laws of popes and emperors. At a deeper level, though, they were taking issue with the Lutheran conception not primarily of human law but of the human authority to legislate. Luther denied any law-making authority to the Church, a position that Catholic theologians regarded as entirely unacceptable and contrary to the divinely instituted position of the pope. By contrast, for Luther the secular magistrate had, indeed, the authority to make law, but the magistrate was conceived as the vice-regent of God, with the source of his authority divine. Thus, at least as far as Catholic theologians understood him, the obligation in conscience to obey his law reduced to the obligation to obey God’s law, and they regarded this as undermining both human political power and human law. While insisting as strongly as Luther on Paul’s dictum in the Epistle to the Romans that “the powers that be are ordained of God,” they sought to establish a human source of political authority that could ground the obligation in conscience to obey human law as human law.

Their way of thinking about law was thus embedded in a distinctive political philosophy and theology, one that was, precisely, highly “controversial” not merely in its ecclesiological dimension but in its secular dimension, too. As such, it reached out of the academy and into the political arena. Perhaps the most spectacular example is the early-seventeenth-century controversy around the Oath of Allegiance that James I of England demanded from his Catholic subjects following the Gunpowder Plot of 1605. Two prominent voices against the Oath were the Jesuits Robert Bellarmine (1542–1621) and Francisco Suárez (1548–1617), both academic theologians who nevertheless stepped out of their teaching roles to intervene in the inflamed polemics of the time. Bellarmine held the Chair of Controversies at the Jesuit Collegio Romano in Rome between 1576 and 1590, and wrote a multi-volume work on the entire range of controversies in the academic form of “disputations”: the Disputationes de Controversiis Fidei Adversus Huius Temporis Haereticos, including the tractate De Laicis (On the Laity), which presents the basis of his political philosophy. He also wrote, pseudonymously as was common in such polemics, the Responsio Matthaei Torti to the writings of the King. Suárez wrote both an academic treatise on the laws, De Legibus ac Deo Legislatore (1612), and a specific piece of controversial theology, Defensio Fidei (1613), against James in the same dispute, which drew on his academic political philosophy in a polemical context. It would be a misguided interpretation simply to reduce the academic works to the polemical; an intense engagement with Catholic intellectual traditions and writers is as much a feature of the works as the engagement with “the heretics,” and some authors prefer just to refer their readers to the existing controversial literature, saving their intellectual energies for the more theoretical points that interest them. Nevertheless, the political inflection of this conception of law represents another way in which it reaches beyond the academy, and was read by a broader reading public both Catholic and Protestant. Just to take one example, Englishman Sir Robert Filmer opened his political treatise Patriarcha with a denunciation of Bellarmine and Suárez, and indeed all the doctors of the schools, for their pernicious teachings on political authority.

Late-scholastic philosophy of law, then, was not an isolated theoretical subject, but part of a practical moral theology for the entirety of life within a Christian commonwealth, including the treacherous question of political obligation. Nevertheless, precisely because the issues were so contested, the movement generated an exceptionally rich meditation on the specific question of law, with basic areas of agreement varied by intense disagreement at critical points. We shall examine this vast literary production, and the theoretical issues and shifts within it, by concentrating on five major authors. The first two are Dominican, and belong to the first generation of the “School of Salamanca.” The second three are Jesuit, all writing around the turn of the seventeenth century. It is not that Dominican authors stopped writing about law, to be superseded entirely by Jesuits; nor that Dominican and Jesuit thought are discontinuous; quite the contrary, the initial Dominican writings were enormously influential for Jesuit authors. It is true, though, that the major classics of the seventeenth century were written by Jesuits and not by Dominicans, and also that we can see certain changes of emphasis and approach even given the continuity involved—enough, at any rate, to justify a broad division into two sections on grounds that are both chronological and substantive.

14.2 Dominican Scholastics: Francisco de Vitoria and Domingo de Soto

The beginnings of the School of Salamanca are traditionally associated with the figure of Francisco de Vitoria (1483–1548), a Dominican friar educated in Paris, who returned to Spain and took up the Prima Chair in theology at the University of Salamanca in 1526 and revolutionized teaching there by basing his lectures on Aquinas’s Summa. Arguably no less important for the subsequent fortunes of the movement, however, was Vitoria’s fellow Dominican and close colleague, Domingo de Soto (1495–1560), who likewise studied in Paris but taught philosophy at the University of Alcalá before taking up the Vespers Chair in theology at Salamanca in 1532, succeeding to the Prima Chair in 1552. Together they permanently changed the way in which moral theology was taught at Catholic universities and initiated the new intellectual style in which we are interested. This is not to say that they were the originators of all of its features. The complete commentary on the Summa by Dominican Tommaso de Vio (1469–1534), Cardinal Cajetan, published between 1515 and 1519, was a critically important resource for them, as was Dominican Silvestro da Prierio Mazzolini’s (1456–1527) Summa Summarum of 1518. They were also decisively influenced, on the crucial question of civil and ecclesiastical power, by the debate between Cajetan and Jacques Almain (d. 1515) of the Sorbonne generated by the disputed legitimacy of the council of Pisa in 1511.2 However, they shaped these resources into a distinctive philosophy conditioned by their distinctive understanding of theology.3 That understanding was developed in response to three competing intellectual trends. The first is what they saw as the degeneration of scholastic theology into logical and metaphysical subtleties at the expense of the word of God and to the detriment of its true role in society. They shared this critique of the late-medieval nominalist tradition with the humanists, especially Erasmus. In response to him, however, they were, secondly, concerned to argue that philology, which they reductively described as “grammar,” was not the answer. The key to restoring theology lay in a proper balance between scripture and reason, which, in the third place, served as the basis of their response to Lutheranism and sola scriptura. They did not entirely reject humanist learning, and they insisted on the centrality of revelation to theology and the concomitant necessity of a thorough reading of Scripture. However, the theologian, for them, must also be a reasoner, using the reason that is natural to him as a human being both to decide between competing interpretations of scripture and to draw from it conclusions for the conduct of human life, which itself must involve natural reason.

14.2.1 Natural Reason and Political Resonance

Vitoria and Soto connected this interpretation of the proper role of reason in theology with the Thomist formula “grace does not take away nature but perfects it.” Thus Vitoria writes, in his commentary on the first question of the Summa, that “since under the law of nature it would have been praiseworthy to terminate questions with natural reasons, it ought not now”—that is, under the law of grace—“to be a source of censure” (Comm. STh, Ia.1.a.8, in Pozo 1962, 113). Likewise, Soto, in the programmatic preface to De Natura et Gratia, addressed to the fathers of the Council of Trent, asserts that “man is a rational animal, who for that reason enjoys no force nor means for the investigation of truth, and its deduction from its causes, greater than discursive reasoning […] [F]aith does not (as they boast) oppose nature, but certainly perfects it” (fo. 3). That Thomist formula was used by Aquinas himself, and by Vitoria and Soto after him, to vindicate the space of natural reason and natural law in human life more generally. There is, then, a very tight link between this defense of the use of reason in theology and the characteristic focus of Vitoria, Soto, and the entire first generation of the School of Salamanca on moral theology: specifically, a broadly neo-Thomist moral theology based on natural practical reason and its principles, the natural law. We shall see below how this connection operates more concretely.

Meanwhile, the same stance allows them to vindicate the usefulness of scholastic theology, likewise against the taunts of both Erasmus and “the heretics.” “It is scholastics alone,” states Soto in the same place, “who discuss and treat of those things that pertain to laws, to virtue and vice, to human duties, contracts, and necessities—all of which are most necessary to be understood in the Christian commonwealth.” Scholastic theology is a kind of civil reasoning, an architectonic discourse that mediates between the different and more particular civil discourses through and in which the political life of the commonwealth is lived. As such, it must be able to speak the language of people outside the academy: Vitoria insisted that scholastic theologians must use plain speech and strive for the least complicated explanatory terms. This accounts for his objection to metaphysics in inappropriate places: “Cajetan goes all metaphysical here, I’ve no idea what he means,” he famously remarked at the opening to his commentary on the Secunda Secundae.4 Despite his opposition to littering theology with metaphysical technicalities, however, his vindication of the use of reason in theology is explicitly also a vindication of the use of philosophy. Thus he asserts clearly that it “is impious and heretical to say— as these new heretics do say—that it is the work of the devil to use natural reasons and those of philosophers in theology” (Comm STh, Ia.1.a.8, in Pozo 1962, 113). And in the preface to De Natura et Gratia quoted above, Soto continues by saying, “It is philosophy, in great part, which supplies the reasons for these” (fo. 3). However, it is not merely moral philosophy that interests them. As we shall see more fully below, natural necessitation is a crucial background condition both to the exercise of human reason and to the exercise of human freedom, and thus natural philosophy, the study of natural causality, plays a critical role in a moral theology premised on the operation of human reason.

As noted above, Vitoria’s and Soto’s linking of the stature of scholastic theology to its role outside the schools reflected not only the intellectual controversies of the early sixteenth century, but also a native Spanish political tradition of legitimating royal policy through theological sanction (see Pagden 1982, chap. 1). Beginning with Ferdinand and Isabella, los reyes católicos (“the Catholic monarchs”), and continuing into the reigns of Charles V and Philip II, the crown called upon its leading theologians to debate and confirm the theological acceptability of its activities. The most famous moment was perhaps the celebrated Junta of Valladolid of 1550–1551, called to discuss the legitimacy of conquest of the Indies, in which Soto participated. Both Soto and Vitoria saw it as entirely their role to comment theologically on current Spanish affairs, anything from the justice of the alcabala (the Spanish sales tax) to poor law reform to the actions of the conquistadores: “theologically” meaning, as we have seen, by appeal to plain-spoken reason as well as to scriptural authority. This gave their writings a critical edge not always pleasing to their superiors, either religious or civil. “By what right,” demanded Soto in his early lecture on dominium (“dominion”) of 1532, “do we retain the overseas empire that has just been discovered? For my part, I really don’t know.”5

In this complex political, intellectual, and cultural context it becomes clear, then, why the understanding of law is so central to their theological enterprise and why they thought that as theologians they were the most competent to handle the subject. While canon and civil lawyers work from the letter of human law, the theologian alone can relate human law ultimately back to God, whether this be directly or “through nature” (a key locution, as we shall see). Moreover, as Vitoria argues in his lecture On the American Indians (1539), the determination of that question “does not belong to lawyers, or at least not only to them, because since those barbarians, as I shall go on to argue, are not subject to human justice [ius], their affairs cannot be examined through human laws, but divine laws, in which lawyers are not sufficiently expert […]” (De Ind., in Pagden and Lawrance 1992, 238).6 Here we see the critical symbiosis between their renewal of moral theology and the circumstances of the Indies: the conquest shored up the authority of these theologians even while it made distinct demands on their legal philosophy. However, neither Vitoria nor Soto ever intended their appeal beyond human law to undermine it; quite to the contrary, in their eyes it is only theology that can adequately support the authority of human law by showing that it obliges in conscience. In his defense of scholastic theology against its denigration at the hands of Luther, Soto gives this as a key example: “from Romans 13, ‘let every soul be subject to the higher powers’ […] [scholastic] doctors infer: therefore princes can oblige in the court of conscience. That conclusion […] is purely theological: and therefore that science [sc. theology] is not superfluous, as they [the heretics] shamelessly say, but is necessary for life according to the divine precepts and rules” (Comm. STh. Ia.1.a.1, in Pozo 1962, 150).

14.2.2 Reason, Will, and Obligation

With some sense of the general place of law in their thinking, we can now turn to the more specific elements of their account. For Vitoria and Soto, as for Aquinas, God and his law are the anchor of the entire legal system; consistently with their theological approach, this must be a conception of divine law that allows for the cooperation of natural human reason. However, the two theologians handle this key relationship in rather different ways. Commenting on Aquinas’s definition of law as a rule and measure of human action, both agree with him that it must therefore be aliquid rationis, that is, something that belongs to reason, rather than an act of will (Aquinas, STh. Ia.2.a.e, 90.a.1).7 In Aquinas’s text, a law is characterized as a rule because it is something that obliges; reason is the rule because it belongs to reason to order things toward an end (ordinare ad finem). In their commentary on this passage, both Soto and Vitoria underline, far more strongly than Aquinas, the aspect of obligation. As Soto says, “it is a property of law both that it is a rule, and that it is a precept that obliges.” Obligation is the function of an act of imperium (“command”), which, as Aquinas himself had said earlier in the Prima Secundae (17.a.1), is an act of reason. Thus, while saying nothing that cannot be found, in some way, in Aquinas, the two Salamancan professors effectively reground his intellectualism primarily in the capacity to oblige, and it is on this basis that they combat the voluntarist thesis that law is an act of will. As Vitoria writes, “if the pope should pass a law: It is my will, that Christians fast, that act is not a law, because it does not oblige, however much he wills, unless he commands.” A key example for both of them, going back to twelfth-century theologian Peter Lombard (1095–1160), is the story of Abraham and Isaac (Sentences I, dist. 45, caps. 5–7). God’s will was not, in fact, for Isaac to be sacrificed; however, that will had nothing to do with Abraham’s obligation, as a result of God’s command, to sacrifice Isaac. God’s will in the sense of voluntas beneplaciti (“his will for what happens in the world”) shall be done, but it does not oblige and it is not law.

At this point, however, Vitoria shows himself more sympathetic than Soto to some sort of modified voluntarist thesis. There is another way in which we talk of God’s will, his voluntas signi (“the will that he signifies to mankind in his requirements and prohibitions”). This is not “properly” his will, but it is still his will in some sense, and Vitoria brings in another quaestio of the Prima Secundae (19.a.9) in which Aquinas argues that, for the human will to be good, it must conform to the divine will as its measure. “And,” Vitoria goes on, “if it is a measure, then it is a rule. And if a rule, then a law. Ergo, […] It does not therefore seem inappropriate to concede, that the divine will is law and also the divine reason.” These passages, dating from 1533–1534, are consistent with his earlier lecture On Civil Power (1528), in which Vitoria handles the differences between divine and human law, holding that “in the case of divine law, for it to be just and in consequence obligatory, the will of the legislator is enough, since will stands in place of reason,” and that “the entire goodness of the human will […] results from conformity with the divine will and law […] which is the rule of all human actions” (in Pagden and Lawrance 1992, 34; Horst et al. 1995–1997, vol. 1, 146).8 They are also consistent with his lecture On That to Which Man Is Obliged, When First He Comes to the Use of Reason (1535), in which Vitoria insists that there is no sin where there is no obligation, and no obligation where there is no law, and no law where there is no superior; moral evil is necessarily a contravention of divine law, and moral goodness depends on divine authority, because God can make even something per se morally evil, like killing the innocent, not so (see Vitoria in Horst et al. 1995–1997, vol. 2, 158–60). One of his references here is again Q. 19 of the Prima Secundae, this time a. 4, in which Aquinas argues that the goodness of the human will depends on eternal law. Significantly, however, Vitoria substitutes the term lex divina (“divine law”) for Aquinas’s lex aeterna (“eternal law”). There is thus no difference in his terminology here between what was for Aquinas God’s overarching directive rationale for all his creation, that is, eternal law, and divine positive law, the law of revelation. The reasoning behind this, but at the same time his uneasiness with the Thomist conception of eternal law, becomes clear in Vitoria’s very brief commentary on Prima Secundae, Q. 93, a. 3: “There is a doubt over how divine positive law derives from eternal law. Cajetan’s understanding here seems to be that by eternal law we should understand only natural law. But as far as I can grasp it, by eternal law St. Thomas means absolutely every divine law” (Vitoria, De Lege, in Stüben 2010, 32; Pagden and Lawrance 1992, 168). The contrast with Soto will become clear below.

Meanwhile, though, Vitoria is very careful to distinguish his position from that of the moderni, or nominales, by which he means the late-medieval nominalist school arising from the work of William of Ockham, and which he associates with the position that God is under no necessity whatsoever in his commandments.9 Questioning and responding to Aquinas’s assertion that all human law is derived from natural law, Vitoria argues in De Lege (95.a.2) that, even though we need seek no other rationale for divine law than the divine will, nevertheless divine law too depends on natural law, because “God disposes all things sweetly” (Wisdom 8,1) (see Vitoria, De Lege, in Stüben 2010, 44; Pagden and Lawrance 1992, 173).10 God’s law is an order, not a pure play of will. Again, defending the role of reason in theology in his commentary on the first question of the Summa, Vitoria insists that there must be some things that are necessary even while we concede that God’s potentia absoluta (“absolute power”) is unlimited and totally free. For to stress the free operation of God to the extent that everything becomes contingent is to deny any place for human reason, which must operate with at least some necessary propositions. Divine law, creating a universal rule, brings with it necessity, for example, that a man must be baptized in order to be saved; it is divine providence, steering all things to their appointed ends, which is the domain of God’s free will.11

A parallel distinction comes in Vitoria’s commentary on Prima Secundae, Q. 100, a. 8, the celebrated question of whether God can exercise dispensation in the precepts of the Decalogue (the Ten Commandments), and if so, whether only in the “second table” (containing man’s duties toward man, e.g., “Thou shalt not steal”), or even in the “first table” as well (containing man’s duties toward God, e.g., “Thou shalt have no other gods before me”). Vitoria, like Aquinas, took the Decalogue to be a matter of natural law, so the question becomes one of whether God can exercise dispensation in the precepts of natural law. God certainly seemed to have done so on various occasions in the narrative of the Old Testament: Abraham and Isaac; the destruction of Sodom (surely there were many innocents among the dead); Samson destroying the temple (and so destroying himself). Here Vitoria, saving Aquinas’s position that all the precepts of the Decalogue are indispensable even for God, argues that God’s omnipotence involves two things: first, that he is master (dominus) of everything; second, that he is a legislator. Thus, in allowing innocents to be killed, there was no dispensation, because he did not use his authority as a legislator; rather, he transferred his divine dominium over the life and death of every mortal to a human being (or human beings), who then did not act against the law (see Vitoria, De Lege, in Stüben 2010, 112–4).12 However, Vitoria also allows that Scotus’s opinion—that God can dispense in the second but not the first table of the Decalogue—is probabilis (“approvable”), even if Aquinas’s is more so.13 Despite the clear drive to save a space for human reason in the face of divine omnipotence, then, Vitoria’s negotiation between the Thomist heritage and other, late-medieval currents of thought on this issue remains tense.

By contrast, Soto fully embraces Aquinas’s understanding of eternal law as God’s practical reason (ratio agibilium), governing and directing the whole of his creation. It is clearly distinct (and Soto emphasizes this twice) from divine positive law, which governs only mankind in its aspect as ordered toward a supernatural as well as a natural end. It is also distinct from natural and human law. However, elaborating here upon Aquinas’s view, Soto explains that it is not simply the case that there are four distinct laws, each differing in species; rather, there is a difference between eternal law and the other three, “because it is their fount and origin: not passed but passing (non lata, sed ferens), not imprinted but imprinting, not the participation of any other but the light of which the others are participations” (De Iust. et Iure I.3.a.1, and a.2, fo. 22–3). Thus, we cannot think of eternal law as simply one more standard of action (just higher than all the rest) to which we can refer our conduct. Indeed, because it is not a law that has been passed, we cannot know its content except through those other laws. In itself, it is incomprehensible to human beings (ibid., fo. 22, col. 1; fo. 23, col. 2).14 It further differs from any legislated law in that not only free action—that is, action proceeding from reason and will— is subject to it, but also the whole realm of necessitation, from animal action to planetary motion and even to necessary truths, like three plus four equals seven. All proceed from God’s reason and are governed by it. At this point, however, Soto’s insistence that a law is not simply a “rule and measure” but an “obligatory precept,” appears to come under strain; it is not clear how obligation functions with any other than free agents, nor is it clear how a precept, which requires speech (as Soto argues in his opening question, as part of his demonstration that law is a matter of reason not will), can be given to things that cannot comprehend, let alone to a mathematical truth. As we shall see below, opponents used these arguments and more to attack eternal law as the weak point of the Thomist system.

Meanwhile, Soto in the course of this quaestio also poses the question of whether God’s own will is subject to eternal law, since God’s will is rational and eternal law is reason. He answers, entirely as Aquinas had done, that in itself, God’s will is not subject to, but rather identical to, eternal law; it is not rational, but rather reason itself (Aquinas, ST, 93.a.4, ad 1). However, in relation to God’s creatures, it is indeed rational, and therefore (though neither Aquinas nor Soto spells this out in so many words) subject to eternal law. Soto thus touches on the controversy with the nominalists of whether the freedom of God’s will can be limited in any way, and whether God, of his absolute power, can override his own law. Soto too, like Vitoria, directly tackles the issue in commenting on Q. 100, a. 8 (Soto, De Iust. et Iure II.3.8, fo. 114–20). Here we find him, as already suggested, more strongly intellectualist than Vitoria, not only against Ockham (on whom they both agree), but also against Scotus. In Soto’s eyes, for God to dispense in the second table of the Decalogue is equally as self-contradictory as for him to dispense in the first. His first argument is to show that the commandments of the second table involve duties to God just as much as those of the first. His second is to counter another argument of Scotus, to the effect that “if the precepts of the second table were not dispensable, it would follow that God necessarily willed something outside himself.” Soto responds that God can will things outside himself in two ways. In one way, he can will their very existence; this is entirely non-necessitated, since he can will them out of existence at any point. In another, he can will the connections between them; here “philosophers must admit that God wills some things necessarily,” for example, that three plus four equals seven. Thus, “thou shalt not kill,” or steal, or commit adultery, are necessary objects of divine will; God cannot command the contrary, nor permit them to happen justly (ibid., fo. 117, col. 1; fo. 118, col. 2). To explain the various remarkable happenings of the Old Testament, Soto appeals to the same distinction as Vitoria, between God as legislator and God as dominus, as the indisputable solution to the problem. However, his own qualifications show that this is not quite such a good solution: Soto insists that even when God was exercising his dominium, he did not use his “absolute power” as such, but acted as a just judge and so as to “dispose all things sweetly”—the same quotation to which Vitoria had appealed.

In both authors, then, despite their differences, there is a close link between their vindication of the stability of God’s law, which involves some degree of divine necessitation, and their conception of theology as allowing a space for human reason and for philosophy. We now turn to look at the intersection between human reason and divine government which is constituted by natural law.

14.2.3 Reason and Natural Law

Aquinas famously defined natural law as the participation of eternal law in a rational creature (ST, 92, a.2). It is that through which man involves himself in his own direction by sharing rationally in God’s direction of him. Since Vitoria, as we have seen, appealed to a more general conception of “divine” rather than “eternal” law, it is not surprising that, in his commentary on Q. 94 of the Prima Secundae, the language of participation is absent. Nevertheless, he shares the basic thesis that God communicates his law both through nature and through revelation, and his main concern here is to vindicate the former mode, that is, to establish the natural knowability of the precepts of natural law independent of revelation (De Lege 94.a.2). In Vitoria’s handling, Aquinas’s link between the natural inclinations of mankind and the precepts of natural law is central to this enterprise. Aquinas had suggested that everything to which man naturally inclines, must be naturally good, and therefore man, commanded by the very nature of practical reason to pursue the good, understands what goods he must pursue from his own inclinations (ST, 94.a.2). Vitoria concurs, but not before allowing that, according to some, the derivation of precepts from inclinations is invalid. His answer is to ask in what other way man can naturally know what he is to do. He rejects any notion that natural law is innate in us in the sense of born with us (De Lege 94.a.1).15 It is something that we work out as we come to the use of reason, that is, as we become fully moral agents: the two are inextricably intertwined. Thus, children and those who never achieve the use of reason cannot direct themselves according to natural law. The case is very different for the American Indians, though, who must, in Vitoria’s understanding, have moral agency even without revelation.16 And thus he defends Aquinas’s sequence of reasoning, adding that, if we cannot be confident of our inclinations, we cannot be confident of God, since those inclinations were implanted in us by God. As in Aquinas, then, practical reason, that which lifts human beings into moral agency and moral responsibility, operates within a framework of natural necessitation, the kind of necessitation to which all creation is subject. Crucially, however, and as for Aristotle, this is not purely material necessitation, but what is demanded by the ends that all things have and toward which their natural inclinations incline. Vitoria gives an extended account of the teleological universe of Aristotelian natural philosophy in his lecture On Civil Power (in Pagden and Lawrance 1992, 4–10).17

The world of Aristotelian natural science receives equal emphasis in Soto’s account of natural law, which keeps up a kind of second-level dialogue with natural philosophers, whom the theologian must satisfy but whose procedures he himself sometimes adopts. Thus, in the first article, “the student of philosophy” objects to the idea of innate species, which would be contrary to the Aristotelian principle that all species are acquired through experience; Soto responds that the precepts of the law of nature are not innate in that way (De Iust. et Iure I.4.a.1, fo. 29–30). In establishing that we can nevertheless have natural knowledge of them, Aquinas’s appeal to the inclinations is as important to Soto as to Vitoria, but in a different way. For Vitoria, as we have seen, the trustworthiness of our natural inclinations guarantees our natural ability to know God’s law; in effect, by vindicating the validity of Aquinas’s reasoning from inclination to law, he is vindicating the validity of every man’s. For Soto, however, the gap between natural precept and natural inclination narrows to a vanishing point. Just as we instinctively tend toward certain ends, so we instinctively know that we should tend toward them: natural law is promulgated “by instinct” (ibid., I.1.a.4, fo. 16, col. 1).18 The crucial point here is the immediacy of our grasp of the fundamental precepts of natural law. They are not innate, but they are nevertheless known immediately to practical reason, without any further discursive process of thought. This makes the list of precepts of natural law very short and basic: Soto explicitly gives as examples only two: “Do not to another what you would not have done to yourself” and “Life is to be lived together tranquilly and peacefully.” He describes these precepts as semina, seeds implanted in the nature of our reason that enable us to carry out the further reasoning that is necessary for achieving our ends.19 They do not bear fruit without further cultivation by human reason. This is so to the extent that Soto hesitates over whether to include the Decalogue in natural law, something almost universally taken for granted at the time (and assumed by Vitoria, as we have seen), or whether to make it instead part of the ius gentium

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