The Negative Demarcation of History
The case of natural law is very interesting in this respect. In Suarez’s work a tension exists between the ethical objectivism according to which natural law is objective and necessary and imposes itself by itself on the one hand and the role of the legislator from which legal obligation results on the other.
Although, as already implied by the above mentioned examples, the role of the legislator and the concept of law as â€?an act of rule, of power or jurisdiction’ play a domÂinant and reiterative role in the De legibus, Suarez at the same time remains close to ethical objectivism as well. Starting from the methodological imperaÂtive of a coherent, singular, exhaustive and essentialist concept of law, natural law is immutable and eternal. Suarez argues that natural law is like this, not only from the point of view of the divine mind in which it is written, but also from the point of view of the inner necessity of the behavior it regulates: â€?It forbids what is intrinsically bad, and commands that which is necessary by itself; what is necessary, is eternal’.[460]On the basis of this double background, and the methodological prerequiÂsite of only one law, it has been noted that Suarez leaves a peculiar, ex negaÂtivo space for positive law. As Francisco Carpintero states in his Justiciay Ley Natural, a passage that is interesting to quote at length:
positive law, made by man, can only be compulsory on the basis of its disÂtinctive origin:....because it has been commanded by the person or the society that possesses legitimacy or the adequate jurisdiction, and not on the basis of its content that would only be arbitrary and conventional. Suarez dissolves the entire obligatory character of positive law in the relaÂtion of dominium or jurisdictio that the legislator has over the peoples he commands. That is to say, every rule that possesses an objective cause to exist would be part of natural law, and positive law would remain as what is imposed through authority concerning morally indifferent themes?1
In addition to this, Suarez crucially states vis-a-vis human law, ius gentium and private will, that â€?the very obligation to act in a particular way’, - that is furÂthermore clearly distinguished from the fact that human law, ius gentium and private will may bring about â€?some change in things’ -, flows immediately from natural law?2
This negative demarcation of the contingent nature of positive law, extremely radical in the mentioned case of positive law, fits into a broader approach throughout Suarez’s work to the factual, the singular, the concrete that all pertain to the realm of the extra-legal. Very telling in this respect are distinctive passages in book vii on custom, or unwritten law (lex non scripta) in which Suarez’s understanding of self-sufficient law, founded in obligation, precisely starts off from the undoing of the contingent, historical nature of law, and in opposing the timeless nature of law to history and historical examÂples as a purely contingent reality.[461] [462] [463] [464] In the prologue to book vii on custom, Suarez refers to the primordiality of the law in Gregory ix’s Liber Extra (1234). Custom is, as in the Liber Extra, treated after constitutions and rescripts, because according to Suarez, written law is more â€?certain and known’. Whether custom is often, but not necessarily older (antiquior) than written law, is, very significantly, not relevant in the framework of its legal dimension?4 Suarez furthermore states, in a nice example of negatively singling out the legal from the contingent extra-legal, â€?that it may very well have been that people lived together before there was written law’. Already thinking ahead towards a more formal treatment of legally qualified custom, Suarez however maintains that â€?what they had instead, was not custom, but the personal rule of a king, which is neither law, nor custom.’55 Suarez’s point at this instance seems to be that it does not really matter what came first, and then passes onto written law as the primordial form of law, aform â€?from which custom to a large extent derives its force and significance’?6 The latter conception of the contingent nature of historical facts ex negaÂtivo occurs also in other instances throughout the De legibus. In his work on Suarez’s theory of interpretation of the law, Azevedo Alexandrino Fernandes states that the Doctor Eximius understood Roman law in the strict sense as the law of the Romans, that in no way could apply to other sovereign kingdoms. The Corpus iuris civilis has to Suarez in this respect an important exemplary value, but its use as example should be clearly distinguished from any assertive claim that could be attached to it.[465] Assertive claims in this sense can no longer be founded in historical exempla. 6