Dominique Bauer and Randall Lesaffer, eds., History, Casuistry and Custom in the Legal Thought of Francisco Suárez (1548–1617): Collected Studies

In: Journal of Jesuit Studies
Juan Antonio Senent-De FrutosDepartamento de Humanidades y Filosofía, Universidad Loyola Andalucía, Seville, Spain,

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Dominique Bauer and Randall Lesaffer, eds., History, Casuistry and Custom in the Legal Thought of Francisco Suárez (1548–1617): Collected Studies. Legal History Library, 51. Leiden: Brill Nijhoff, 2021. Pp. 160. Hb, €93.00/ $112.00.

The studies in this book investigate the vast corpus of Suárez to identify the richness and potential of his legal thought. This is one major merit of this collection. Unlike customary studies of Suárez that focus on his best known works, specifically Disputationes metaphysicae, Tractatus de legibus ac Deo legislatore or Defensio fidei, and concentrate on their philosophical, theological or legal content, the articles collected here investigate less known and frequently neglected works such as his Roman lectures De iustitia et de iure, Conselhos e pareceres, or De virtute et statu religionis, with a wider focus that includes, but is not restricted to, his theological, juridical, and philosophical works. The result is more complex but also enriching.

Some of the articles advance our understanding and appreciation of Suárez’s works and his contribution to the Western intellectual tradition. Too often one’s interpretation of Suárez is restricted to his influence on posterity, whether he is responsible for or guilty of some turns in modernity that he himself would not share. On the other hand, some common characterizations or clichés about Suárez can be revised, e.g. he was a speculative thinker disconnected from practical issues arising from social, economic, or ecclesiastical matters; he was a voluntarist author; he assumed a subjectivist and individualistic juridical point of view in his consideration of dominium or the rights of the individual; he defended the interests and power of the church and canon law for apologetic reasons.

In Daniel Schwartz’s “Suárez on the Duty to Punish,” the author takes a critical view of the very popular deontological retributionism as formulated by Immanuel Kant in Grundlegung zur Metaphysik der Sitten. In it, he tells us that “even if a civil Society were to dissolve itself by common agreement of its members, […] the last murderer remaining in prison must first be executed.” Faced with this apparent coherence and enlightened rationality, which conceals a cold indifference to the human production of an evil supposedly legitimized by a mechanism of moral rationalization, Suárez denies that it is a strict obligation of justice, since the punishment of the guilty “cannot be animated by the aim of returning evil unto evil,” since the wish to render evil unto evil considered in itself is not something that can be desired with honesty (non est per se honeste amabile), and “for doing it morally honest it needs an annexed end or motive.”

The contribution by J. M. Azevedo Alexandrino Fernandes, “Einige reflexionen über dir Wahrscheinlichkeit und den Probabilismus im Recht,” expounds on Suárez’s boldness and breadth of vision in practical matters even in a case so sensitive and thorny for him as consultation before a religious who sought a dispensation from his religious vows before the personal revelation that God dispensed him to be able to marry. Suárez considers this case from the perspective of probabilism as formulated by some Dominicans, e.g. Bartolomé de Medina, and advanced by various Jesuit moral theologians. Suárez considers whether dispensation could be admitted based on probability, what degree of probability was required, and whether it could act without the consent of the superior. This would require an eficacissima motiva and could only be done to avoid a magna inconvenientia.

In addition, various articles in this collection dispel common prejudices in the interpretation of Scholastic and Catholic authors such as Suárez and open a new horizon of understanding. An example is the article by Luisa Brunori and Win Decock, “The Pragmatic Suárez: Private Law in the Work of the Doctor Eximius.” It focuses on a case of a wife who, fearing for her life, escapes from her husband’s violence and takes refuge in her mother’s house. She later requests a divorce before a judge. Although the law applicable to the case would require that prior to her flight, she had requested authorization to live separately because it is more difficult and much more risky for a woman than for man to seek judicial authorization in these circumstances, the natural right of protecting one’s own life prevails over other civil or canonical obligations. Here, although it may seem unusual for a sixteenth-century Jesuit, Suárez has made an interpretation of family law from what today we would call a “gender perspective.”

The cases analyzed in this book consistently highlight the intellectual and practical relevance of Suárez’s legal thought, even today.

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