Abstract
The traditional interpretation of the doctrine on “nature” focusses particularly upon the relationship between the theories of Vitoria and Grotius, highlighting the differences in their lives and work, their spiritual affinities and doctrinal influence, particularly on jus gentium. It is important, both from a historical and from a theoretical perspective, to investigate to what extent the doctrine on “nature” developed by the “second scholastic” theologians (Vitoria, Vázquez, Suárez) has exerted an influence on their idea of natural law and, by extension, on the modern Natural Law School.
Translation from Italian into English by Eleonora Harris.
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Notes
- 1.
“For the definition will not be much more uncertain, whether we proceed from natural things, or whether we argue from the Sacred Scriptures”.
- 2.
Thieme 1973, 15.
- 3.
Cavalla 2011, 161–162.
- 4.
Hernández Martín 1999, 87–112.
- 5.
- 6.
Gentili 1598, l. I, c. 19.
- 7.
Pufendorf 1727, l. III, c. 3, nn. 9 and 12.
- 8.
Locke 1690, First Treatise, ch. VI and VIII.
- 9.
- 10.
See Cavanna 1982, 381–478.
- 11.
See Auer 1964, 253–254.
- 12.
See Todescan 2014c, 41–123.
- 13.
de Vitoria 2010a (1533–1534), q. 91, a. 2 (p. 163). “Aquinas replies in the affirmative, because although the rules of law are in God as in the thing which is the rule, the knowledge of them which is channelled into us an effect of the divine rule is also called a rule and measure. From this article you may deduce that our judgment and knowledge, which I rely upon when I dictate that such and such is to be done, does not oblige per se, but only insofar as it derives from eternal law. All the rest is clear”.
- 14.
See in parallel Mongillo 1970, 103–123.
- 15.
See Todescan 2014a, 240–251.
- 16.
Vázquez 1605, d. 150, c. 3, n. 23. “Whenever each good or bad action—according to some rule—is judged good or bad, just or unjust, it happens that, as a consequence, before any order, before any will, and even before any judgment, there is a certain rule for such actions, so that it naturally follows that no action is in contradiction with itself: this, however, happens on account of its very rational nature, which cannot be opposed to itself […] In short, the first natural law in a rational creature is its very nature, as rational, because this is the first rule of good and evil”.
- 17.
See Todescan 2014a, 251–269.
- 18.
Suárez 1612, 1. I, c. 3, n. 11. “As regards the natural law, Theology teaches us that man can be considered according to a dual nature and according to a dual light of reason. Firstly, according to a pure nature, that is, the substance of a rational soul and, consequently, in accordance with the light of reason that is innate in him. Secondly, according to the nature of the Grace infused from above into man, and conforming to the divine and supernatural light of Faith, through which—also on the basis of his state of life—he is guided and governed. Alongside these two principles [Theology] distinguishes a twofold natural law, namely: a simply natural one, related to man, as opposed to the other, supernatural with regard to man (since all the order of Grace is, for him, supernatural), which, however, can be considered natural according to Grace, for Grace too has its own essence and nature, to which is connatural an infused light […] So the natural law can be considered of a dual nature, of which one being purely natural, and the other simply supernatural, or even natural, through a comparison with Grace”.
- 19.
See Todescan 2014b, 91–139.
- 20.
Grotius 1925 (1625), Prolegomena, § 11. “What we have been saying would have a degree of validity even if we should concede, that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him”.
- 21.
“In my judgement, Grotius was right in connecting the Scholastic doctrine of the eternal Law of God with the principle of sociability”.
- 22.
See Todescan 2014b, 295–319.
- 23.
Pufendorf 1727 (1672), l. I, c. 2, n. 6 (p. 17). “But to make the knowledge of the law of nature, of which we are now treating, and which includes all moral and civil doctrines that are genuine and solid, to make this knowledge, we say, fully come up to the measure and perfection of Science, we do not think it necessary to assert, with some writers, that there are several things honest or dishonest of themselves (per se) and antecedent to all imposition, and so to make these things the object of our natural and perpetual law, in opposition to positive law, where matters are right or wrong, just as the law-giver was pleased to make them either. For, since honesty (or moral necessity) and turpitude are affections of human deeds, arising from their agreeableness or disagreeableness to a rule, or a law, and since a law is the law command of a superior, it does not appear how we can conceive any goodness or turpitude before all law, and without the imposition of a superior”.
- 24.
Opocher 1993, 101 ff.
- 25.
See Todescan 2001, 139–148.
- 26.
de Lubac 1978, 263 ff.
- 27.
“Natural with regard to the appetite, but supernatural with regard to the thing which is to be achieved”.
- 28.
See Todescan 2015, 71–110.
- 29.
de Vitoria 2010b (1538–1539), I, 20 (pp. 247–248). “Irrational creatures clearly cannot have any dominion, for dominion is a legal right (dominium est ius), as Conrad Summenhart himself admits. Irrational creatures cannot have legal rights; therefore, they cannot have any dominion. The minor premiss is proved by the fact that irrational creatures cannot be victims of an injustice (iniuria), and therefore cannot have legal rights […] This argument is confirmed by Aquinas: only rational creatures have mastery over their own actions (dominium sui actus), as Aquinas also shows in ST I. 82. 1 ad 3. [A person is master of his own actions insofar as he is able to make choices and another; hence, as Aquinas says in the same passage, we are not masters as regards our appetite for our own destiny, for example] […] We do not speak of anyone being ‘the owner’ of a thing (dominum esse) unless that thing lies within is control. We often say, for example: ‘It is not in my control, it is not in my power’, meaning I am not master or owner (dominus) of it. By this argument brutes, which do not move by their own will but are moved by some other, as Aquinas says, cannot have any dominion (dominium)”.
- 30.
See Grossi 1973, 121 ff.
- 31.
de Vitoria 2010b (1538–1539), I, 21 (p. 249). “Children before the age of reason can be masters. This is self-evident, first because a child can be the victim of an injustice (iniuria); therefore a child can have legal rights, therefore it can have a right of ownership (dominium rerum), which is a legal right. Again, the possessions of an orphan minor in guardianship are not the property of the guardians, and yet they must be the property of one of the two parties; a fortiori they are the property of the minor. Again, a child in guardianship may legally inherit property; but an heir is defined in law as the person who succeeds to the inheritance of the deceased, hence the child is the owner of the inheritance. Furthermore, we said earlier that the foundation of dominion is the fact that we are formed in the image of God (imago Dei); and the child is already formed in the image of God. The Apostle goes on to say, in the passage of Galatians quoted, ‘the heir, as long as he is a child, differeth nothing from a slave, though he be lord of all’ (Gal 4, 1)”.
- 32.
de Vitoria 2010b (1538–1539), I, 20 (p. 248). “A person is master of his own actions insofar as he is able to make choices and another; hence, as Aquinas says in the same passage, we are not masters as regards our appetite for our own destiny, for example”.
- 33.
“O Lord, You made us for You and our heart will be restless until it can rest in You”.
- 34.
“…natural with regard to the appetite, but supernatural with regard to the thing which is to be achieved”.
- 35.
de Molina 1588, q. 14, a. 13, d. 3. “A first condition of the human nature consists of a natural state, without sin, without Grace, and without any other supernatural gift. Man, however, never had that condition, nor will he never have it. Naturalist philosophers, however, believed that man was placed in that condition, as they could not understand otherwise without the light of the divine revelation. […] There is, however, a second condition, which consists in that our first progenitor was created before sin, and therefore called state of innocence”.
- 36.
Suárez 1619, Proleg. IV, c. 1, n. 2. “Cajetan and the most modern theologians considered a third state, which they saw as purely natural, which in fact did not exist, although we can think of it […] as being possible, and this consideration is crucial to comprehend the other states, as in fact this state underlies all the others, being their foundation”.
- 37.
“Cajetan and the most modern theologians”.
- 38.
Hobbes 1651, ch. XIII.
- 39.
Locke 1690, Second Treatise, ch. II, § 4.
- 40.
Locke 1690, Second Treatise, ch. II, § 14.
- 41.
Hobbes 1651, ch. XIII.
- 42.
Locke 1690, Second Treatise, ch. II, § 14.
- 43.
See Todescan 2014b, 132 ff. and 319 ff.
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Todescan, F. (2017). From the “Imago Dei” to the “Bon Sauvage”: Francisco de Vitoria and the Natural Law School. In: Beneyto, J., Corti Varela, J. (eds) At the Origins of Modernity. Studies in the History of Law and Justice, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-319-62998-8_2
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