Inner Necessity and the Definition of Law

The various types of law exist necessarily, a necessity that, apart from Suarez's encompassing theocentric view, is understood in the anthropologi­cal framework of the rational, free creature. The anthropological framework that defines the sphere of human, intelligent, rational reality, is an extremely important element of Suarez's legal theology and of his legacy to Early Modern political thought.

A long evolution of natural law/rights thought thus finds its ultimate affir­mation in the work of Suarez?⁸ Jean Gerson already argued, though not very straightforwardly, that human beings enjoyed natural rights in a different way from other beings, because human beings were endowed with reason. Summenhart understood ius and dominium to apply to both rational and irra­tional creatures, although he also maintained that dominium pertaining to rational creatures was something different. In accordance with the importance of the notion of actualization of natural law in the rational creature, is that Gerson, in his Tractatus de potestate ecclesiastica et de origine iuris et legum, describes ius as a â€?potestas, seu facultas propinqua’, a proximate faculty â€?that befalls a person through the dictate of primary justice'?⁹ As Jussi Vaarkeema notes, proximate denotes an â€?active potency, a power to exercise actions’.^{[430] [431] [432] [433] It is interesting to point out in this context the clear parallel between ius asfacultas and the actualization of natural law in terms of a judgement of the mind that is enacted by the light of reason?1}

Against Summenhart and Gerson, Francisco de Vitoria argues in a revo­lutionary way that only human beings could have dominium, thus asserting the unique value of the human person. Crucial, also with regard to Suarez’s thought on political community, is the fact that the autonomy of the person is also that of the political community.22 Suarez takes this evolution to its final consequences, by treating law in general and the rational being both as the source and as the keystone of juridico-legal philosophy in which the ontologi­cal necessity of law necessarily flows from the rational being as a by definition political being and the rational being’s submission to law and the lawgiver are an act of self-legislation.

With Suarez, the law, the rational being and the rational community, the lat­ter being only called legal and political in the full, perfect sense of the word as a communitas perfecta, are tied together in a mimetic relationship of identity. On the one hand, the necessity of the law’s existence is rooted in the rational being that thus lives â€?by its nature’2³: â€?given the condition of rational nature, the law is in this way necessary’.^{[434] [435] [436] [437] [438] [439] Furthermore, without a rational being that is by nature subjected to the law, there would be no law?5 As Suarez states in DL ιι.ι.ι: â€?The law is an act of governance and there cannot be governance unless there is somebody to be governed’?6 This somebody, the rational being, is however not submitted to an alien force in an act of forced submission, on the contrary. The act to submit oneself to a legislator, is inherent to the rational creature and the rational community that in submission engages in an act of self-legislation. The seventh book of De legibus, De lege non scripta on custom, offers interesting insights in this respect?7 Here, Suarez underlines for exam­ple that when a community â€?possesses legislative power over itself’, and in that sense constitutes a communitas perfecta, like â€?a state or something similar’, it can properly introduce custom?8 Significantly and again underlining the sim­ilar nature of the self-possessing legal subject and the self-legislating commu­nitas perfecta, â€?this power should not be understood as an actual power, but as a capacity to such active power that is necessary to have a communitas per­fecta; every communitas perfecta however is inherently capable of such power, in short, it defines it’?9 Just like the legal subject and the legal community are understood in terms, not of a private, empirical individual or a factual commu­nity (a communitas imperfecta) but in terms of an abstract, citizen or a com­munitas perfecta embodying reason, also the legislator is not a ruler in terms of a (private) person: â€?The law does not result from the person, unless in his capacity to bear power, and the law always depends of this power, in whatever person it is present’.[440] [441] [442] [443] In a context of such inherent reciprocity, the rational being finds its ultimate purpose and ground as a socio-political being in the common good, like also the common good is the ground of the law.}

In the framework of Suarez’s legal theology, law is necessary, for it possesses what could be called contingent necessity, rooted in the rational being.31 It per­tains to the nature of the rational creature to submit itself to a superior author­ity, the legislator, who can impose rule.

The necessity of law, its rationality and self-legislation are finally very much connected with Suarez’s deductive approach to the law as such. Suarez wants to deal with law �properly speaking’ and �speaking properly'.33 His deductive approach of law is closely connected to his general take on knowledge, knowl­edge that is developed according to the conceptual order of things, which he follows both in his Disputationes metaphisicae and in De legibus. The reason for this is explained in the Ratio et discursus totius operis that precedes the Disputationes metaphisicae. In this remarkable piece on methodology and conceptual structure, Suarez states that, because he wants to gain insight in things, he does not want to treat metaphysics in a random way, like the com­mentators do who follow the casual order of things in the work of Aristotle. Instead he wants to preserve the order of doctrine in order to eventually give a comprehensive, full insight in the object under investigation, that for that mat­ter is also, prior to further analysis, defined as such and considered in itself.^{[444] [445]} Systematization, comprehensive, exhaustive vision and circumscription of the field, definition and abstraction in a very radical way characterize Suarez’s approach to law.

The consideration of law in itself constitutes the first step in the auto-foun­dation of law, in passing from showing why law as such necessarily exists to the analysis of various types of law along the same methodological lines. From this angle the approach to law seamlessly fits in with his treatment of being as such in his Disputationes metaphisicae. Like the second disputation deals with the concept of being as such (ens en quantum ens), the first book on the laws deals with the definition of law, before going into a typology of the laws.

The consideration of law is intimately connected with several distinctive methodological or formal categories Suarez deploys. He uses in this context a specific vocabulary in which terms like absolute, necessarium, per se, ex rei natura, ex vi rationis, iuxta naturalem play a dominant role and all relate to notions of self-sufficiency, coherence and completeness.^{[446] [447] [448] They allow him to focus on a strictly a priori necessary truth. For example, the so-called â€?perfec­tion' of â€?the body politic' (or the communitas perfecta) in book ι, as will be seen, denotes the latter's self-sufficiency which in its turn determines its very existence as a legal reality. Methodology and formal categories mix with con­tent and ontology. Adequately defining things, is establishing them in terms of things as such, in itself, things that subsequently exist as legal realities/entities. Without being able to go extensively into the matter, it must suffice to point out the not unimportant fact in this context for Suarez's understanding of natural law, that the auto-foundation of law also includes a mimetic relationship with the rational being, the rational community and the legislator that are equally defined in terms of their rationality and that are endowed with self-legisla­tion that determines their legitimacy or being as legal agents or entities. Given the rational nature of the law, the rational being's/community's submission to it constitutes an act of direct self-regulation. It is precisely for this reason and within this same mimetic logic that natural law, as an â€?enduring sign',37 is intrinsic to the rational creature.}

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