Chapter 8 Settling Law: Francisco Suárez’s Theory of Custom for Contemporary Contexts

In: Francisco Suárez (1548–1617)

1 Introduction

In his analysis of the significance of the term “custom” in 42 U.S. Code §1983, the Civil Rights Act, legal scholar Charles Rutherglen describes custom as if it were a malevolent ghost haunting American jurisprudence. Section 1983 explicitly creates a cause of action for violations of federal rights “under color of any statute, ordinance, regulation, custom, or usage, of any State.”1 Statute, ordinance, and regulation are clearly understandable in modern legal terminology, despite the wording of the statute, modern case law relating to Section 1983 does not address uses or customs, focusing instead on laws made by legislative officials (statute, ordinance, and regulation).2 Why then, he asks, does the statute expressly refer to “custom” and “usage” in equivalent terms to statute or regulation?3

The answer, Rutherglen argues, is that when the statute was drafted, an understanding of custom as a freestanding source of law, capable of imposing obligation and even counteracting statutory law, was still present in the US legal system and, at certain times, played a “pervasive role.”4 In post-Civil War America, where custom was used to justify continued exploitation and domination of former slaves, the pervasive role was pernicious, and Section 1983 was intended to combat its authority.5

Although the influence of racist customs on legal interpretation in the South provided the instance for custom’s decline, Rutherglen argues that the erosion of custom’s authority as law can be traced back further to mid-nineteenth-century positivist philosophers of law.6 Most prominent among these early legal positivists was Jeremy Bentham (1748–1832), who argued, contra William Blackstone (1723–80) and the legal establishment of the day, that custom alone could not have legal authority. In his article “Custom Redeemed by Statute,” political philosopher Jeremy Waldron identifies Bentham’s four primary critiques of custom.7 First, Bentham questions its authority. Can custom, which arises from the actions of the people, not the will of the sovereign, actually be law? Second, how can we distinguish legally authoritative custom from the decisions of judges, who impose their own interpretation? Third, can customs, by definition the actions of the majority, become law without endangering the rights and freedoms of the minority? Finally, even if custom as law is valid in some societies, can custom function as law in the highly regulated modern world? As I will consider later, these questions, in various forms, have been taken up and adapted by Bentham’s positivist successors.

However, despite this rejection among legal positivists, the interest as to whether custom can function as law has revived in legal scholarship—most prominently in the context of international law.8 To provide just a few examples, in his challenge to H.L.A. Hart’s legal positivism, legal philosopher Lon Fuller (1902–78) also argued for at least some acknowledgment of the force of custom to change and shape civil law.9 Even Joseph Raz, one of the leading voices of contemporary legal positivism, has presented a brief claim that custom, although not issued by a legislative authority, can have legal authority in certain contexts, because it provides an exclusionary reason for acting.10 Philosopher Gerald Postema has also attempted to defend law as custom. However, his argument is that most traditional concepts of law as custom are deficient because they depend upon the “additive concept”—the belief of the people involved that the customs should be law—in order to discover when custom has become law.11 In supposed contrast, he argues that custom functioning as laws should be understood as “norms that arise from discursive normative practices embedded in rich contexts of social interaction.”12

In this chapter, I will argue that Francisco Suárez’s (1548–1617) theologically grounded theory of custom can make an important contribution to this revival of consideration of custom as law. His theory of law as custom, which is widely considered to be among the most thorough of the later Scholastic approaches, provides a response to Bentham’s critiques and also offers exactly the type of concept of custom that is worth retrieving for our contemporary context. Instead of being a tool of oppression in creating unjust laws, custom, for Suárez, has the potential to serve as a powerful tool of communal engagement to challenge and even reform unjust laws. To demonstrate the value of Suárez’s view, I first briefly consider some ways in which Bentham’s four critiques have been developed by some more contemporary legal scholars. Second, I provide a brief overview of the historical background that shaped Suárez’s understanding of custom. I will then consider how Suárez’s theory of custom as law satisfies modern appropriations of Bentham’s four critiques. I will end by briefly considering one example of how customary law can promote justice, not oppression, in the contemporary context.

2 Contemporary Developments of Bentham’s Critiques

Hart’s revised legal positivism unconditionally rejects the possibility that custom can ever have its own legal authority. Rather, it must be “recognized by a legal system”—in other words, by statutory law.13 Otherwise, it is simply “pre-legal […] one class of primary rules of obligation, which is sufficient for governing only ‘a small community closely knit by ties of kinship, common sentiment, and belief.’”14 Only the introduction of rules of recognition can create a legal system and make laws valid.15 Legal philosopher Neil MacCormick (1941–2009) also denies that custom can have the same validity as statutory laws. He acknowledges that customs and common usage contribute to legal systems, but only because they uphold the tradition that law “ought to be respected in carrying out its functions as these are constitutionally conferred.”16Custom can also provide guidance on how separation of powers should be respected and interpreted but cannot establish laws.17

Like Bentham, Hart also raises epistemological questions. Custom cannot become law on its own but must be made into statutory law according to the appropriate rule of recognition, establishing that the sovereign has granted it legal status.18 Legal philosopher Frederick Schauer, drawing on Norwood Russell Hanson (1924–67), raises a slightly different objection when considering the role of judges. Is it ever possible to be sure that customs that judges do recognize as law describe the authentic actions of the people, as opposed to being simply the articulation of the judge’s own norms? Schauer argues that judges are inevitably trapped by their interpreter’s bias.19

Third, the question of whether the customary law actually “works itself pure” through repetition remains one of the most important critiques of custom.20 Clearly, Bentham’s concerns that the custom of the majority can be used to trample on the rights of the minority were vindicated by the laws of the Jim Crow South. Legal theorist David Bederman (1961–2011) traces this same concern that custom may be used as simply “a method of social control by elites”21 through other historical contexts as well. He demonstrates that a history of common usage does not necessarily provide any guarantee that the actions of the community will provide laws better than those instituted by the legislator.

Bentham’s final objection is that custom is insufficient to meet the needs for law in our modern, diverse, and complex legal systems.22 As discussed above, Hart does grant that custom may fill the gaps of a developing legal system and function as a “pre-legal” source of obligation. However, when it functions this way, it is static, uncertain, and too inefficient to adapt to our current fast-moving, bureaucratic, and highly regulated society.23 Bederman draws upon ethnographic research on customary law practices to elaborate on Hart’s concern about custom’s static nature. Often, by the time the custom has achieved sufficient common usage to serve as law, the cultural tide has moved past it, leaving behind only a pattern of behavior “hardened into formalism and ritual, empty of meaning and divorced from social context.”24 Schauer is also concerned about how custom can function as law in the context of diverse modern societies. While coherent and connected communities that can establish customs still exist, it seems likely that any claims that they have established a law according to custom will directly conflict with a custom advanced by another group.25 How, then, can custom ever become sufficiently established as law for a united community?

3 Custom in Medieval Jurisprudence

These same questions concerning the role of custom as law arose out of the political and theological conflicts of the medieval period. As national political authority declined across much of eleventh-century Europe, existing statutory law was no longer enforced, and new statutes were never enacted. Often, monarchs lacked not only the ability to enforce laws against local feudal warlords but even the capacity to have laws promulgated in writing.26 Feudal lords rose to fill the power gaps, making repeated demands for new services and money upon the helpless inhabitants of a region. These tyrannical demands “quickly turned into legal dues based on custom: the hated consuetudines—an old word with a new meaning, i.e. of seigniorial rights—which appear in the texts around ad 1000 and for whose reduction the peasants would fight with a good deal of success in the twelfth century.”27

Over the course of the eleventh and twelfth centuries, the development of true sovereign power seemed to offer the only hope for achieving peace and order.28 Seeking protection against tyranny and protesting the abuses of customs, the people called upon the king to promulgate and enforce statutory law invalidating bad and unjust customs enforced by the feudal aristocracy.29 This popular impetus placing more authority in the hands of the king was also supported by a shift in legal theory. The recovery of Justinian’s (c.482–565, r.527–65) Digest and the subsequent reclaiming of the tradition of Roman law resulted in a shift in emphasis on the legislative authority of the emperor as opposed to the power of local custom.30 In the eyes of many contemporary legal scholars, “customary procedure devoid of intellectual justification yielded to the reasoning that informed the Roman law of sale or the new canon law of marriage.”31

However, the substitution of legislation for customs was not uncritically accepted. Although the people called upon the king to abolish bad customs, there was also concern that kings might end up with too much power. Ordinary citizens were aware that kings did not hesitate to use legislative powers to their own advantage rather than simply to rein in rapacious nobles. In addition, in many places, the new consuetudines had not fully erased earlier communal practices. At times, ancient custom seemed the only power that could oppose the tyrannical demands of the “new” customs. In Anjou, for example,

imperial precepts of redress were long dead in this burgeoning new society, while regional custom, precocious though it was in Anjou, was slow to develop a jurisprudence of security […], but by resisting the arbitrary imposition of new customs and by holding to comital authority in defense of old immunities, monks and canons (and surely also lay people of whom we have no record) preserved a face of public order.32

The people were therefore not always willing to permit kings to erase all governing customs. In this skepticism and concern, they were often supported by church officials, who had their own reasons for skepticism about kings appropriating too much power.

These same tensions between local custom and legislative authority were occurring within the church, as local customs came into conflict with attempts to universally systematize canon law.33 In his Decretum, or Concord of Discordant Canons, Gratian (c.1100–c.1155) attempted to determine how to uphold the good of custom as law while jettisoning the bad. Gratian begins by defining two sources of human law: natural right and practices.34 Natural right, defined as “that which is contained in the Law and the Gospel,” clearly judges human practices.35 However, natural right as it exists alone “has no such direct juridical force. The basic principles of reason, truth and justice must be formulated—and therefore restricted in scope, made determinate—in order to serve as a base for adjudication.”36 This means that natural rights can only be applied through the human practices of promulgating written law and of establishing customs. As legal scholar Jean Porter writes:

The subordination of practices to natural right is thus qualified and balanced by the indeterminacy of natural right apart from the specifics of human practices, and custom and written law can be considered together as two alternative and (ideally) complementary ways of giving expression and force to natural right.37

On one hand, Gratian believes that the existence of one central authority, within both the church and the civil government, is necessary to promote unity, stability, and justice.38 On the other hand, he has both pragmatic and theological justification for upholding the importance of custom as well.39 Custom is important because it enables local communities to be governed in a way that acknowledges their particular contexts and practices, such as local church customs of piety and worship.40 When the law is deficient, custom may be written down and become civil law.41 However, if the law is not deficient, custom must yield to the written law.

The end result of this harmonization is that priority is eventually granted to the written law. Porter argues that this prioritization is not meant to diminish the fact that custom can be an authoritative expression of natural right. Rather, it is simply the recognition that “written law will normally represent a more perspicuous and clearly authoritative expression of natural right than does custom.”42 However, the statute does not always offer the final word. Rather, “when an ordinance is irrational or unjust, or in some other way at odds with natural right, the non-reception by the people offers one way of rejecting and correcting the putative ordinance in question.”43

Gratian’s paradigm, in which both statutory law and custom could exist in harmony, not competition, created the broad outlines under which custom was considered by his successors. Both custom and statutory law were acknowledged to be important, but the exact terms of the harmonization were subject to debate. The development of this debate is captured in Thomas Aquinas’s (1224/25–74) treatment of custom. Aquinas argues that custom can establish law but only in proportion to the power maintained by the community. If the community retains its full sovereignty, it can establish law through custom without permission. If the community does not retain full law-making power but rather delegates it, the ruler must tolerate the custom in order for it to become law.44 The types of repeated actions that become custom are restricted to those that “proceed from the inner judgment of reason.”45 If it is valid law, custom is also sufficient to establish law, interpret law, and even abolish law by indicating that the statutory law has lost its reasonableness.46

4 Suárez’s Theory of Law as Custom

In developing his theory of custom as law, Suárez clearly saw himself as the bearer and articulator of a long tradition that provided rich resources to answer the questions and challenges raised in his own time.47 However, unlike his medieval predecessors, Suárez’s early modern context meant that he had to engage with different challenges related to custom’s authority as law: both the increased statutory regimes of the nation-state and the theological challenges to fundamental understandings of custom as law by the Protestant Reformers.48 Throughout this section, I will argue that by drawing upon these resources and reflecting upon the challenges posed to custom as law, Suárez ends up responding to very similar challenges as those posed by contemporary philosophers of law.

4.1 Suárez’s Definition of Custom

Suárez distinguishes two types of customs: customs of fact and customs of law. Any repeated moral action (with moral implying free) performed frequently in the same way by the majority of the community creates a custom of fact—custom understood formally.49 This repetition of actions inevitably has an after-effect (relinquitur).50 In the individual, the after-effect is physical: the development of a personal habit (habitus).51 Under certain conditions, customs of fact (consuetudo) can also produce an effect relating to the communal moral order.52 These repeated actions by a community can generate what Suárez refers to as a moral “power” (facultas) or a moral “obligation, which we call law” (vinculum, quod jus appellamus).53 However, only the “common and public” actions of the entire community can give custom the force needed to become law.54 Therefore, according to Suárez, custom has the potential to be not simply pre-legal popular reflection or an indicator of what the law may be. Rather, under the right conditions, custom is law: “Custom is not settled law, but rather it settles law.”55

Although Suárez claims that popular custom developed by the people can become law, he is also well aware of the danger that unchecked development of custom can pose to the stability of the community. Not every custom of fact is capable of generating a law, just as not every declaration of a legislator creates a law. Just as there are pronouncements of a legislator that might appear to be law but are actually counsel, there are some types of communal actions that might appear to be customs of law, but in reality are customs of fact. These are customary actions that are not capable of producing the moral effect that creates law.56 This includes customs developed out of existing laws.57 In those cases, while the repeated actions of obedience strengthen the force of the law, they do not create the law, but rather the law creates the actions.58 Second, laws creating customs must be distinguished from private rights or privileges created by custom. While rights or privileges might be binding in specific situations for individuals, they cannot be considered law because they do not govern the whole community.59

In addition, just as the commands of the legislator must contain specific elements in order to become law, so must the custom. The elements that must be present in both instances are (1) fitness of subject matter, (2) appropriate power of lawgiver, and (3) will that the practice be law “sufficiently manifested externally.”60 These three elements correspond to three of the key objections raised to custom discussed above. Appropriate power poses the question of authority. Fitness of subject matter is related to questions of custom’s moral goodness. Will “sufficiently manifested externally” is related to the question of how we know that a custom is no longer a custom of fact but has become a custom of law. In the rest of this chapter, I will consider how Suárez considers each of these elements, plus the question of the relevance of custom in the modern world, in a way that addresses the critiques raised by legal positivists.

4.2 The Authority of Custom

Suárez addresses the question of the authority of custom in civil society by recognizing both the importance of the lawgiver and of the people for establishing any form of law, including custom.61 Suárez claims that God has given each perfect community the power to create law—either through statutes or custom. Almost every community, for its own more efficient government, delegates to a legislative authority various degrees of power to make statutory law. However, no matter how total the authority of the ruler may be, the “legal right” to establish law through custom can never be fully transferred away.62 Any community that possesses the capacity to receive law will also always possess the capacity to establish law through custom.63 Therefore, each community can introduce a legal custom exactly in relationship to its capacity to receive law—as long as it receives the tacit consent of the lawgiver.

The emphasis on the importance of the lawmaker’s tacit consent shows that, like Gratian, Suárez does not want to eradicate the legislative authority’s role. The turmoil of the eleventh century had shown that some central authority was needed to avoid chaos and corruption. However, where Gratian believes that legislative authority can eventually overrule custom, Suárez attempts to affirm the equally important roles of the legislator and the people. The proximate cause of the custom’s establishment as law is the people who create the custom by their acts. The primary cause is the sovereign power, exercised through tacit consent.64 Both powers are necessary for the custom to become law, and accepting one does not require denying the other. Suárez draws on Aquinas for support for this position. Aquinas writes that custom can be established either by a commonwealth in which the people have retained sovereign power or if the prince has given tacit consent to the custom.65 Suárez interprets this to mean that upholding the people’s authority to establish custom does not mean a rejection of legislative authority.

Suárez explains how these two powers are complementary when he considers how custom can abrogate law. Does saying that custom can abrogate law really mean that laws are not enacted unconditionally, but only with the proviso that the people have to accept them if they are to possess any force?66 Suárez rejects this claim: law cannot depend upon the acceptance of the people for its authority, since this would mean that law had no intrinsic power and maintained its authority subject to the people’s whim.67 Rather, the power to enact a custom that can abrogate an existing law results from the union of power between the lawgiver and the subjects. The people have the power to factually establish a custom, and the custom is completely formed into law when the prince has decided to “tolerate and give consent to the popular will.”68 Thus, rather than choosing one party or the other, Suárez claims that the power to abrogate law through custom results from a union between the people’s factual power to advance a different law, and the prince’s legal power to give implicit consent through toleration, leading to annulment.69 The people’s power does not depend on how much legislative power the people retained for themselves, since “this act of repudiating law by custom is not one of jurisdiction, or of public authority, but it is rather one that proceeds from those under a duty of obedience to the law.”70

Suárez supports this claim that the people have an intrinsic power to make law through custom by considering two factual examples. Within the church, laypeople who lack any legislative power are still able to establish customs of worship that bind with moral authority and even abrogate ecclesiastical ordinances.71 This is exactly what has happened, Suárez argues, in the acceptance of infant baptism and lay Communion under one kind accepted as a rule in many churches.72 Within a civil community, merchants functioning as a perfect community with respect to commerce may, with the prince’s consent, establish a custom that stands as a “statute of a quasi-municipal character.”73 This example is one that most modern theorists who are skeptical of custom as law would find hard to deny, considering that the Uniform Commercial Code developed out of customary mercantile law, and that custom continues to inform much of international law related to trade.

In a certain sense, Suárez seems to be making a similar argument to Hart. It would be possible to read his argument as claiming that the people’s authority is sufficient to establish a primary rule, but the legislative consent, given through a secondary rule, is actually necessary to make the rule into law. I believe that this reading would miss the full force and significance of Suárez’s view of custom. It is the practices of the people that provide the initial power to make law. The consent of the prince is also necessary, but only when the two powers are combined can custom become law. Thus, custom is able to serve as a constant reminder of where true power lies and functions as a check on the power of the executive, rather than the other way around. What Suárez instead offers is a more thoroughly grounded and developed version of Postema’s view of law as created by interaction, without sacrificing the insights from his own cultural context that legislative authority is important for maintaining a functioning and efficient legal system. It is the people and the prince interacting together who are able to give the custom the proper moral force to become a law.74

Suárez is anxious to establish custom as a source of law with equal authority to statutory law for the same reason that he seeks to make the people and the prince both equal sources of authority. Where Gratian ultimately subordinates custom to written law, Suárez makes them equal and capable of coexistence.75 Suárez makes this point in responding to the claim of jurists who argue that customs that have been written down by one who has authority to make laws cease to be custom (since they are no longer authorized by tacit consent of the people, but by express command of the lawgiver).76 It is true that custom is usually unwritten and introduced “by usage.”77 However, while custom is normally unwritten, this is not always the case. Customs that are sufficiently established in action and then later written down as laws may still retain their separate authority as customs.78 In this situation, the law’s authority stems from “two obligations [vincula] simultaneously—that is, of custom and of written law” in the same way that the same action might be mandated by two different statutes.79 The two sources of authority do not fuse but run along together, strengthening each other. Thus, the custom “retains its own force and the essential character of custom, unless it is abolished by a special written statute.”80

Suárez draws this argument from both jurists and the canon lawyers. A number of jurists make the essential claim that custom retains its own force and the essential character of custom unless it be abolished by a special written statute.81 In canon law, this claim is demonstrated by the fact that customs established by the apostles have been written down in canon law. These customs do not lose their apostolic authority simply because they have been recorded and promulgated in the laws of the church. Rather, the recording in canon law “adds new force to it; and, as the Gloss on that law observes, from being a particular custom it thus becomes a common law.”82

In making this argument, Suárez presents a more authoritative view of custom than even a modern advocate for law as custom, such as Fuller, might make. Fuller, like Gratian, believes that custom can only make laws where a vacuum exists. However, Suárez’s claim that custom continues to maintain its obliging power, even with the existence of a subsequent written law, makes him able to argue for a stronger view of custom than either Fuller or Gratian.

4.3 The Knowledge of Custom

Suárez approaches the question of how we can know that a custom has become law through the requirement of promulgation. Like any other “juridical entity,” custom requires public promulgation.83 However, this promulgation never depends, unlike in many other theories of custom, upon the actions of the judge. Suárez is clear that while a judge’s ruling ratifying the custom may “declare [declarat]” the custom, it is never required for “completing[consummat]” it.84If it were a requirement that the judge must decide on a custom for it to establish law, it would create a contradiction, since for the judge’s imprimatur to be necessary would be to indicate that custom is not sufficient to establish law on its own. By removing the necessary involvement of the judge, Suárez removes multiple complications, such as how the judge’s judgments can be trusted and the question of who actually establishes law, which is raised by Bentham, Hart, and Schauer.

In contrast, the standard of promulgation for custom requires the actions of two wills: the prince’s and the people’s. The people demonstrate their will by the community’s repeated enactment of the custom, thus satisfying the public requirement for promulgation.85 In the same way that the publication of written words is necessary for a statute’s promulgation, the repetition of the customary acts “may be called the unwritten words by which this kind of law is engraved upon the memory of men.”86

The challenge for determining the will of the people is how to differentiate between the desire to promulgate a custom of law and a repeated action that is simply a custom of fact. The “base form” is the same for both types of customs: the repetition of acts of “moral goodness and usefulness […] uninterrupted for a sufficient time.”87 The difference lies in the “intrinsic form”—the will of the people that the custom should become law, “which under another aspect is the efficient cause of the obligation created by the custom.”88 This intrinsic form is determined by considering whether or not the people externally manifest the belief that the custom is legally obligating.89

We can see an example of this internal form in the differentiation between many of the ritual customs of the worship of the church. Practices such as receiving ashes on Ash Wednesday or a palm on Palm Sunday are customs of fact, since it is obvious that there is no intention to make them a law for all the faithful.90 In contrast, the practice of infant baptism is understood not just as an important ritual practice but as morally obligating to the faithful. It is a custom departing from earlier practices, which does not contradict positive commands found in scripture, but does supplement it. At some point, this customary practice began to oblige as a law. In this description, we see that, for Suárez, it is only external actions that can indicate that a custom has become a law, not the investigation of internal attitudes alone. The way of detecting the will to establish a custom of law is not exact but should be left to the standard of the “judgment of a prudent man,” with the default assumption being in favor of a custom of fact rather than a custom of law.91 However, as legal theorist James Bernard Murphy points out, this standard actually provides its own objective criteria. Thus, to use Murphy’s terminology, determining the will of the people does not depend on subjective guesswork, but rather on the deployment of different types of “filters” that limit which customs are intended to become law.92 To paraphrase Murphy, in considering the people’s action, the first filter is that of the reactions and judgment of the people concerning the practice. The second filter is that of natural and divine law. The third is the judgement of the prudent man as to the common good.

Determining the will of the prince is in a certain sense simpler. First, it can be assumed that he agreed that a custom had become law if he actively passes a law approving the custom. Second, he is assumed to have given tacit consent simply by letting the custom continue once he has knowledge of its existence.93 When the custom is sufficiently general and public, the assumption is made that the prince must know of it and has therefore given his tacit consent by allowing the custom to continue.94 This does not mean that the prince necessarily agrees with or supports the law, but simply that he acknowledges that the costs of trying to outlaw the custom are too great.

In many ways, Suárez’s understanding of how culture becomes law is close to Postema’s description of the role of “discursive normative practices.”95 For the people to will that the custom become law is not so simple as their deciding that the custom should be law. Rather, it develops slowly and gradually out of a common consciousness, which, over time, begins to determine that a series of acts are for the common good, and, because of their goodness, are binding. The slow, gradual, and, in Postema’s words, “discursive” development of a custom into law is illustrated by Suárez’s explanation of how one custom as law can give birth to another custom as law. Often, over time, a new custom develops that departs from the original form of the law, not simply an auxiliary custom serving the primary custom. This custom is eventually “superadded” to the existing custom, and then becomes contrary to the existing law, since it introduces changes. For example, when the custom establishes that the jurisdiction of secular law is extended to clerics, it may do so in imitation of the existing law, but it does not do so out of observance of that law but rather is motivated by the realization that it advances the common good for certain laws to be applied to all citizens. Eventually, this new custom becomes its own customary law.96

4.4 The Morality of Custom

The question of whether or not customs can be morally evil is as crucial for Suárez and his contemporaries as it is in our own day. Suárez distinguishes two questions related to this category. Is a custom good or bad, and is it reasonable or unreasonable?97

The first question Suárez considers is that of morality. Customs that are simply repetitions of the natural or divine law are always customs of fact. These customs are of course morally beneficial, since they are useful for “adding strength (so to speak) as far as we are concerned, to the natural law, by keeping fresh its memory and by facilitating its observance on the part of the whole community,”98 but they do not establish new law. Customs that contradict the natural or divine law will by definition be evil, so therefore cannot generate the moral force to become customs of laws.

However, the natural law, according to Suárez, does not regulate every category of moral action. While there are some acts that are strictly prohibited by natural law and some that are rigorously enjoined, many acts are unregulated. Other types of actions might have natural law requirements as to “mode or precise character” if they do occur but are by no means mandated by the natural law as to absolute performance.99 This leaves a large swath of human life that is underdetermined by the natural law. If some customs developed for one particular context constitute “some usefulness essentially good, some law might be introduced through them as custom, or at least human law abrogated.”100 For example, the price of any specific good, unless it is exorbitant, has nothing intrinsically moral in its nature. However, in order to ensure something useful in the community—perhaps that a staple is within the reach of all purchasers—custom might set the price at a certain level.101

The same requirements for goodness that apply to statutory law are applied to determine whether the custom promotes “a usefulness essentially good.” These requirements are that the subject matter of the law established is “useful for the common welfare, not excessively onerous, or a deviation from the general mode of upright living.”102 The requirement of usefulness to the common welfare sets a limit that customs that can establish law are only those whose subject matter relates to the common good.103 So, for example, customs relating to aesthetics cannot become law, because they do not relate to the common good and are not moral. They produce “facility or skillful usage in actions of that kind, but impose no obligation of exercise as custom.”104

However, this does not mean that the custom needs to be absolutely good to establish law (i.e., good in object, intention of the agent, and the circumstances)—an almost impossible standard to meet for corporate action. Rather, “it is sufficient that it be concerned with an object good of its nature, that is, either with acts which are in their object good or with those which could be performed with moral rectitude or done from a just motive.”105 Even if a custom is not introduced in a good way, but began from evil actions, if its object has turned out to be good, then in this sense, it still has the nature of a good custom and may establish law.106 The only thing that can constitute an absolutely evil custom is a custom comprising acts so intrinsically evil by reason of their object “that they cannot be made good actions by any human power.”107

Suárez also considers some important circumstantial limits on the people’s ability to give consent. He rejects the claims of a number of jurists who uphold the authority of a custom that has been introduced through error regarding subject matter. In response, he argues that error precludes the introduction of custom into law because error makes it impossible for the people to actually consent to a custom becoming law, and for this reason, the law is not based upon right reason.108 This holds whether the error pertains to a falsely presumed legal obligation or erroneous consent as to facts of action. So, for example, if people limit their own rights because they misunderstand their rights under the law, this cannot mean that they establish a law to their own detriment, since they were only consenting through error.109 In the same way, custom cannot be established by acts done by compulsion or out of fear, which remove the element of intention necessary for establishing custom.110 As Murphy points out, this exclusion of customs enforced by fear or coercion removes all possibilities that customs of exploitation and domination can become law—the very types of customs that Rutherglen claims section 1983 intended to exclude from possessing legal authority.111

Suárez considers the requirement of reasonableness as one that is supplemental to the requirement of goodness. In this, he takes account of the cultural contingency and specificity that particularly distinguishes custom as law. A custom may be good but unreasonable for a certain culture at a certain time. The question in determining this is one of “fittingness.” An unfitting custom, while not evil, might create negative “moral effect,”112 “element of danger, or possibilities for harm if it should be introduced into common public observance; and this, despite the fact that it is neither evil in itself, nor forbidden by any positive law.”113 For example, although a custom of daily Mass attendance is unquestionably good, to perceive it as a law-creating custom would be clearly unreasonable, because it would create an obligation that would be imprudently burdensome if it were established by a positive law.114

However, Suárez must address two objections to this understanding that custom is capable of abrogating law. First, any valid law by definition is not unjust. Therefore, could a custom that opposed a just law be capable of having a good subject matter? After all, “in general, the revocation of a just law without cause is unreasonable.”115 Suárez answers that simply because a law is just does not mean it cannot be abrogated. Rather, the question becomes, which law is better? In order to abrogate an existing law, a custom can be justified simply by showing that some reasonable cause exists as to why it would be better than the existing law. As long as the custom, if it were law, meets the conditions of subject matter necessary for justice, then it has passed the subject matter requirement, even if the law it opposes is also just.116

Contrary to our intuition, perhaps, Suárez sees far less conflict around the requirements of the subject matter for custom abolishing a law than the requirements for the subject matter establishing a law. The standards for the subject matter establishing law are much stricter as far as utility and rectitude are concerned. As far as abrogation, however,

it is enough that the annulment of the obligation in question be not contrary to the public advantage, since, although some advantage is taken away, there is a corresponding compensation, either in the removal of an occasion of a greater evil, or in conciliating the minds of subjects to a milder government.117

However, although the standard is lower, there must be some reason to justify the repeal of a just law. It is not enough that the custom is not opposed to divine law or natural reason, but also that there is a good reason to desire to be without the law.118

Suárez must also consider whether human law’s prohibition of the actions constituting the custom make the subject matter of the custom intrinsically evil. He does agree that the initial action establishing the custom is evil, but it is not essentially evil, since “human power and will” can remedy the situation, either by making the custom into law or withdrawing the prohibition against the action.119 Custom can only be intrinsically evil, under this logic, if it is contrary to natural or divine law. A second question regarding subject matter is whether a custom can be reasonable if it abrogates a law that is itself reasonable. Suárez’s solution is that the abrogated law should be understood to be replaced by a custom “that may be reasonable under other aspects, which are also good and fitting.”120 Even the good and reasonable may be improved upon and adapted to better serve in a changing circumstance.

In considering this requirement, Suárez is obviously drawing upon the rich heritage of reflection from the Scholastic approach to custom. He addresses concerns regarding the introduction of bad customs by being clear that custom cannot contradict the commands of the divine law or the natural law. However, beyond this definite limit, he presents a view of the good and reasonable custom that makes custom an appropriate and powerful tool to preserve and advance the common good of each specific and particular community. Because customs develop in between the natural law and the already existing civil law, they are uniquely able to address the needs that a particular community expresses. Rather than being tools of the elites, customs offer the potential to give the people voices against the power of the elites, who are often the ones imposing legislation from above. Customs, the products of the acts of the people and the interpretation of wise and prudent people, provide a counter-source of communal knowledge and understanding of the common good, which does not necessarily overrule the wisdom of the ruler, but always checks, balances, and corrects that will in working to achieve and promote the common good.

4.5 The Appropriateness of Custom for the Modern World

Unlike many of his Scholastic predecessors, Suárez’s exposure to the complexity of the early modern nation-state gives him the context to begin to consider this question as framed in contemporary discourse. A first contemporary claim regarding the practicability of custom in modernity is that the complexity of the nation-state makes it unlikely that the ruler will be aware of all customs, so cannot grant actual consent. Suárez considers this same question when considering how to approach a conflict between laws issued by the pope and local customs serving as laws. First, if the law is general, then it is assumed that it is not intended to abrogate a local custom, of which it is assumed the pope had no knowledge, unless the revocation of local customs is specifically noted.121 In fact, unless there is strong evidence to the contrary, the assumption is that the pope would not want to overrule the custom, since forcing people to change a custom “contrary to a general law […] is attended by difficulties beyond the ordinary.”122 Thus, we see that Suárez believes that the default presumption is always in favor of custom. The burden falls upon the ruler both to know the custom and specifically overrule it, even if that ruler has divinely granted universal jurisdiction.

Another argument is that rule by custom forecloses the diversity within human community and is inadequate to address the plurality of modern liberal democracy. While Suárez does not explicitly address this issue, his insistence on law’s dual sources of authority—the prince and the people—creates a strong system of checks and balances that also serves to protect minority interests. Suárez has not forgotten the lessons of earlier exploitation of custom by local warlords and is well aware that making the consent of the prince necessary provides a strong legislative check upon either the tyranny of the majority, or the exploitation of popular practice for corrupt ends. It also provides protection against the attempts by other sources of authority to exploit claims of custom for private exploitative ends.

On the other hand, the requirement that a community can establish and authorize a custom protects the rights of particular communities against the more universal power of the prince and against the tyranny of the majority, at least in a legislative democracy. The ability of each discrete group to create customary law is always a check on the power of a prince while preserving room for change and development at the communal level. It enables each community, even those within a larger nation, to develop forms of pursuing the common good unique to each specific community, without retreating into sectarianism.

By community, Suárez does not seem to mean only the type of perfect community necessary for forming a state. Rather, communities can be imperfect and only bound by some common interests or concerns, and yet still have the power to establish custom in relationship to those identities or concerns that bind the community together. So, we see that custom in the community of merchants enables them to do their job better and be more productive, but they do not have the ability to create customs that will govern other groups not engaged in commerce within their own civil community. However, even the prince must respect the customs of commerce that relate to their communal bond.

The critique of custom’s unsuitability for the modern world is often phrased as a fear that customs are incapable of adjusting to changing times and can end up being formulistic and controlling. Suárez, who also addresses this charge directly in his work, rejects this view. Rather than necessarily being oppressive and controlling, custom can itself be a break upon the overweening power and reach of statutory law. Custom’s inherent openness to change and flexibility is a key component of law’s ability to promote the common good. If a custom is no longer suited to the times or begins to introduce harm, “then there may be a positive duty not to observe the custom.”123 This change can often more easily be affected by smaller communities modifying their own custom to fit the time than revisions eventually made by the apparatus of a large and bureaucratic state.

It is exactly this view of custom as necessary in a regime with a proliferation of statutes from above that makes Suárez’s view of law a crucial theoretical tool for acts of popular resistance against unjust laws. To demonstrate this utilization of custom as resistance, I will close with a brief comparison of Suárezian custom with religious scholar Jeffrey Stout’s study on the work of community organizers. In his book Blessed Are the Organized (2010), Stout writes:

What kind of practice is it, then, to cultivate one’s power as a democratic citizen and use it well? It is a political practice because it attends to shared human arrangements in light of concerns and judgments that are not always in harmony. It is a social practice because the ends it pursues and the means it employs involve building up human relationships of certain kinds. It is an egalitarian practice in the sense that it is open to anybody who wishes to master it and in the sense that it aspires to create a society in which no one is in a position to dominate others.124

In this threefold definition of the practices by which citizens can actualize their power—political, social, and egalitarian—we can see the same qualities that distinguish Suárez’s theory of custom. For custom to become law, it requires the political wisdom of the community to attempt to balance the needs of a specific community, taking into account the different challenges and requirements. The development of custom is inherently social, because legal custom always advances the common good. It is inherently egalitarian because it depends upon the actions of the whole community, not just the ruler, for a custom to be developed.

Stout himself identifies the power and importance of custom in considering how leaders can be raised up within communities to challenge the power and dominion of elites. The true leader, he writes, is one who is grounded upon the power of the community that he or she speaks for, who realizes that the community does not need to assume a “posture of submission” toward politicians and lawmakers, but has its own authority and its own power.125 These leaders may be gifted and talented, but their strength comes from the authority of the community and their connection and ability to give voices to the practices that challenge the dominant forces. Quoting community organizer and writer Saul Alinsky (1909–72), he writes that “all communities are shaped by traditions of some sort, which Alinsky defined as the ‘collective habits, experiences, customs, controls, and values of the whole group.’ In democratic politics, Alinsky wrote, ‘the tradition is the terrain.’”126 It is only by accepting this power of custom that leaders and community organizers can speak for the group, and understand that the group “has the capacity to achieve significant change and the moral capacity to demand a hearing.”127

Four hundred years and the Atlantic Ocean separates Francisco Suárez from the community organizers in the Rio Grande Valley whom Stout interviews in his book. However, Suárez’s theory of custom provides the theoretical grounding for exactly the same lived experiences that these organizers described to Stout. Unlike the pernicious customs that Rutherglen describes section 1983 as being designed to restrict, understanding custom as Suárez articulates it—as a tool of communal empowerment and resistance—provides a way to advance the common good, not to limit it.

1

42 U.S.C. §1983 (2000).

2

George Rutherglen, “Custom and Usage as Action under Color of State Law: An Essay on the Forgotten Terms of Section 1983,” Virginia Law Review 89 (2003): 925–77, here 926.

3

Rutherglen, “Custom and Usage,” 929.

4

Rutherglen, “Custom and Usage,” 929.

5

Rutherglen, “Custom and Usage,” 928.

6

Rutherglen, “Custom and Usage,” 929–30.

7

Jeremy Waldron, “Custom Redeemed by Statute,” Current Legal Problems 51 (1998): 102–13.

8

See, e.g., David V. Snyder, “Language and Formalities in Commercial Contracts: A Defense of Custom and Conduct,” smu Law Review 54 (2001): 617–54; Michael Byers, Custom, Power, and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999); David Bederman, Custom as a Source of Law (Cambridge: Cambridge University Press, 2010).

9

Lon Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969), 234.

10

Joseph Raz, The Authority of Law: Essays on Law and Morality, 2nd ed. (New York: Oxford University Press, 2009), 29.

11

Gerald Postema, “Custom, Normative Practice, and the Law,” Duke Law Journal 62 (2012): 707–38, here 714–15. Postema actually identifies Francisco Suárez’s theory of custom as a paradigmatic example of this allegedly problematic view. Due to space constraints, I will not be able to address Postema’s other interesting critiques of Suárez in this essay.

12

Postema, “Custom, Normative Practice, and the Law,” 707.

13

H.L.A. [Herbert Lionel Adolphus] Hart, The Concept of Law, 3rd ed. (Oxford: Oxford University Press, 2012), 45.

14

Hart, Concept of Law, 92.

15

Hart, Concept of Law, 94.

16

Neil MacCormick, Institutions of Law: An Essay in Legal Theory (Oxford: Oxford University Press, 2008), 42.

17

MacCormick, Institutions of Law, 45. MacCormick does note that at least one culture has been documented (on the Micronesian island of Yap) where custom seems to provide an equally morally obliging legal force as the laws of the state. However, he is unsure whether this could be an accurate description of the state of jurisprudence in other cultures as well, although he acknowledges that this question could be open to study (see 60–70).

18

Hart, Concept of Law, 44–45.

19

Frederick Schauer, “Pitfalls in the Interpretation of Customary Law,” in The Nature of Customary Law, ed. Amanda Perreau-Saussine and James B. Murphy (Cambridge: Cambridge University Press, 2007), 13–34, here 22.

20

Schauer, “Pitfalls in the Interpretation of Customary Law,” 31.

21

Bederman, Custom as a Source of Law, 4.

22

David Bederman astutely points out how easy it is for value judgments and moral freighting to inevitably creep in when asking these questions and attempting to distinguish between societies that are “primitive” and “modern.” Let alone, he points out, the problematic practice of referring to customary law in earlier treatises as the “law of savages.” Bederman, Custom as a Source of Law, 3.

23

Hart, Concept of Law, 93.

24

Bederman, Custom as a Source of Law, 5.

25

Schauer, “Pitfalls in the Interpretation of Customary Law,” 30–31.

26

R.C. [Raoul Charles] van Caenegem, “Government, Law, and Society,” in The Cambridge History of Medieval Political Thought c.350–c.1450, ed. J.H. [James Henderson] Burns (Cambridge: Cambridge University Press, 1988), 174–211, here 183.

27

Van Caenegem, “Government, Law, and Society,” 182–83.

28

Van Caenegem, “Government, Law, and Society,” 187–88.

29

Van Caenegem, “Government, Law, and Society,” 187–88.

30

Kenneth Pennington, “Law, Legislative Authority, and Theories of Government, 1150–1300,” in Burns, Cambridge History of Medieval Political Thought, 424–53, here 425.

31

Thomas Bisson, The Crisis of the Twelfth Century: Power, Lordship, and the Origins of European Government (Princeton: Princeton University Press, 2015), 459.

32

Bisson, Crisis of the Twelfth Century, 136–37.

33

Bederman, Custom as a Source of Law, 23.

34

Jean Porter, “Custom, Ordinance, and Natural Right in Gratian’s Decretum,” in Perreau-Saussine and Murphy, Nature of Customary Law, 79–100, here 84.

35

Porter, “Custom, Ordinance, and Natural Right,” 80.

36

Porter, “Custom, Ordinance, and Natural Right,” 91.

37

Porter, “Custom, Ordinance, and Natural Right,” 91.

38

Porter, “Custom, Ordinance, and Natural Right,” 94.

39

See, e.g., D12, in which Gratian defends a variety of local customs under the heading of promoting and upholding justice. Gratian, The Treatise on Laws (Decretum DD 1–20), trans. Augustine Thompson (Washington, DC: Catholic University of America Press, 1993), 42.

40

Porter, “Custom, Ordinance, and Natural Right,” 95.

41

Gratian, Decretum, 5–6.

42

Porter, “Custom, Ordinance, and Natural Right,” 96.

43

Porter, “Custom, Ordinance, and Natural Right,” 97.

44

Thomas Aquinas, Summa theologiae, trans. Fathers of the English Dominican Province (New York: Benziger Bros., 1947), iii, 97, a. 3, ad 3.

45

Aquinas, Summa theologiaeiii, 97, a. 3.

46

Aquinas, Summa theologiaeiii, 97, a. 3.

47

See, e.g., Dominique Bauer, “Custom in Francisco Suárez’ De lege non scripta: Between Factuality and the Legal Realm,” Anuario de derecho canónico 4 (April 2015): 35–70, here 35. “Suárez’s approach to the subject, the originality of which cannot be denied, in many respects also takes further aspects of legal doctrine and theory that appear with his predecessors and that underline the longevity and continuity of the tradition that led up to De legibus.” See also Brian Tierney, “Vitoria and Suárez on Ius gentium, Natural Law, and Custom,” in Perreau-Saussine and Murphy, Nature of Customary Law, 101–24, here 115–17.

48

See, e.g., David Steinmetz, “Luther and Calvin on Church and Tradition,” Michigan German Studies 10, no. 1 (April 1984): 98–111, here 108.

49

This type of repeated action may be designated by consuetudo, mos, or usus. Francisco Suárez, De legibus, in Opera omnia, ed. Charles Berton (Paris: Apud Ludovicum Vivès, 1856–78), 6:7.1.4. In this chapter, I primarily use the translations provided in Selections from Three Works of Francisco Suárez, S.J.: De legibus, ac Deo legislatore, 1612, Defensio fidei catholicae, et apostolicae adversus anglicanae sectae errores, 1613, De triplici virtute theologica, fide, spe, et charitate, 1621, ed. Thomas Pink, trans. Gwladys L. Williams, Ammi Brown, and John Waldron (Indianapolis: Liberty Fund, 2013 [1944]). However, I have also consulted the Vivès edition. When portions of the Latin text are included, the translation is my own.

50

Suárez, De legibus, 6:7.1.4.

51

Suárez, De legibus, 6:7.1.4.

52

Suárez, De legibus, 6:7.1.4.

53

Suárez, De legibus, 6:7.1.4. Here, Suárez distinguishes mos and consuetudo, with mos referring to the after-effect of habit and consuetudo referring to the effect that creates a law.

54

Suárez, De legibus, 6:7.1.8.

55

Suárez, De legibus, 6:7.1.9. “Non est jus dispositum sed disponens.”

56

Here, Suárez shares legal philosopher H.L.A. Hart’s (1907–92) insight that there can be communal activities that do not carry the normative force of law, but are still significant to the community’s functioning. See Hart, Concept of Law, 91–93.

57

For example, although Luke refers to the “custom of the law” regarding the circumcision of Christ, this should not be understood as a custom that produces a law, but rather a custom that grows out of the original law that God gave to Moses. Suárez, De legibus, 7.1.5.

58

Suárez, De legibus, 7.1.9.

59

Suárez, De legibus, 7.1.8.

60

Suárez, De legibus, 7.15.3.

61

For further discussion of scriptural authority for the binding nature of custom within the church, see Suárez, De legibus, 7.4.10.

62

Suárez, De legibus, 7.3.10, 7.1.9.

63

Suárez, De legibus, 7.9.10.

64

Suárez, De legibus, 7.9.2. To define tacit consent, Suárez again draws upon Aquinas (iii, 97, art. 3), defining it as the sovereign permitting the custom to continue if it “be morally evident that the toleration is not merely permissive, but an active or approving one; whether it is such will be easily seen from the circumstances and from usage, especially either when the approval is reasonable, or when, by a permission alone, the safety and well-being of the subjects is inadequately provided for.” De legibus, 7.13.12.

65

Suárez, De legibus, 7.9.7. See Aquinas, Summaiii, 97, art. 2, ad. 2.

66

Suárez, De legibus, 7.9.7.

67

Suárez, De legibus, 7.9.7.

68

Suárez, De legibus, 7.9.7.

69

Suárez, De legibus, 7.9.7.

70

Suárez, De legibus, 7.18.4.

71

Suárez, De legibus, 7.18.4. “Abrogantem legem ecclesiasticam.”

72

Suárez, De legibus, 7.9.12.

73

Suárez, De legibus, 7.9.11, 7.9.8. Suárez also considers the objection to the claim that a community of women can make laws for their community, because, according to some, women lack law-making responsibility. Suárez quickly dismisses this objection on the grounds that it is based on the erroneous assumption that women lack law-making ability, which he has already dismissed.

74

Suárez, De legibus, 7.18.3.

75

Legal scholar James Bernard Murphy discusses this claim further: “Suárez sometimes emphasizes the priority of the consent of the people and sometimes the priority of the consent of the prince. Sometimes he defines the essence of custom in terms of the consent of the people. […] But at a deeper level, in every regime the consent of the people seems to be logically prior, in the sense that unless the people first practice a custom, thereby signaling their consent, there is nothing for the prince to consent to. The consent of the people sets the stage for the toleration or suppression of a custom by the prince. The consent of the prince has no bearing unless and until the consent of the people is manifest. The logical priority of the consent of the people makes customary law seem uniquely democratic: even in a polity in which the people have irrevocably alienated their lawmaking powers to a prince, customary law must still originate among the people”; James Bernard Murphy, The Philosophy of Customary Law (Oxford: Oxford University Press, 2014), 48.

76

Suárez, De legibus, 7.2.4. One modern-day example of this is the British constitution. Although much of the constitution has been codified into statutes by Parliament, there is a strong sense in British jurisprudence that the constitution’s authority still rests on its customary status.

77

Suárez, De legibus, 7.2.2.

78

Suárez, De legibus, 7.2.4.

79

Suárez, De legibus, 7.2.4.

80

Suárez, De legibus, 7.2.4.

81

Suárez, De legibus, 7.2.4.

82

Suárez, De legibus, 7.2.4.

83

Suárez, De legibus, 7.10.1.

84

Suárez, De legibus, 7.11.4.

85

Suárez, De legibus, 7.16.1.

86

Suárez, De legibus, 7.9.1.

87

Suárez, De legibus, 7.9.1.

88

Suárez, De legibus, 7.9.1.

89

Postema, “Custom, Normative Practice, and the Law,” 714.

90

Suárez, De legibus, 7.15.6.

91

Suárez, De legibus, 7.15.13. Obviously, the standard of the judgment of a prudent person is somewhat contextually specific, but Suárez does provide several commonsense guidelines, including a sense of scandal if the custom is not followed, a sense of obligation to abide by the custom even at great cost or inconvenience, or a clear sign that the custom contributes greatly to the general welfare. See 7.12.11.

92

Murphy, Philosophy of Customary Law, 57.

93

Suárez, De legibus, 7.18.15.

94

Suárez, De legibus, 7.9.12, 13. Suárez includes in this majority everybody except infants and people lacking mental capacity. He includes women and those under twenty-five years. See 7.9.14.

95

Postema, “Custom, Normative Practice, and the Law,” 707.

96

Suárez, De legibus, 7.4.17.

97

Suárez, De legibus, 7.6.1.

98

Suárez, De legibus, 7.4.4. Suárez also notes that custom may even be useful for interpreting divine and natural law.

99

Suárez, De legibus, 7.4.3.

100

Suárez, De legibus, 7.4.4.

101

See Suárez, De legibus, 7.16.2 for discussion of the role of custom in setting a price. While it is beyond the scope of this chapter, the difference between Suárez’s view of the role of custom in setting prices in a way that advances the common good and free market capitalist approaches that prices should be set as high as the market can bear would be worth a more in-depth comparison.

102

Suárez, De legibus, 7.15.3.

103

Suárez, De legibus, 7.2.5.

104

Suárez, De legibus, 7.2.6.

105

Suárez, De legibus, 7.6.3.

106

Suárez, De legibus, 7.6.3.

107

Suárez, De legibus, 7.6.4.

108

Suárez, De legibus, 7.12.2.

109

Suárez, De legibus, 7.12.5.

110

Suárez, De legibus, 7.12.11.

111

Murphy, Philosophy of Customary Law, 53. “When those customs are ruthlessly enforced by violence (say, by the kkk), Suárez would deny that conformity to such custom is a sign of any kind of consent. But most customs of social subordination are enforced by much subtler threats and incentives: if we ‘know what is good for us’ we will show proper deference. In these more common cases in which customs may well be practiced with resentment, Suárez seems to say that we should not interpret conformity to these customs as evidence of consent to binding customary law. So the customary deference of black to white Americans in the South should not be interpreted as consent to the legal enforcement of racial customs.”

112

Suárez, De legibus, 7.6.13.

113

Suárez, De legibus, 7.6.11.

114

Suárez, De legibus, 7.6.7.

115

Suárez, De legibus, 7.6.16.

116

Suárez, De legibus, 7.6.17.

117

Suárez, De legibus, 7.18.9.

118

Suárez, De legibus, 7.18.10.

119

Suárez, De legibus, 7.6.4.

120

Suárez, De legibus, 7.18.25.

121

Suárez, De legibus, 7.20.9.

122

Suárez, De legibus, 7.20.11.

123

Suárez, De legibus, 7.20.1.

124

Jeffrey Stout, Blessed Are the Organized: Grassroots Democracy in America (Princeton: Princeton University Press, 2010), 93.

125

Stout, Blessed Are the Organized, 96.

126

Stout, Blessed Are the Organized, 101–2.

127

Stout, Blessed Are the Organized, 99.

Francisco Suárez (1548–1617)

Jesuits and the Complexities of Modernity

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