1

LEGAL PHILOSOPHY AND THE EPISTEMOLOGICAL TURN OF RATIONALISM.

THE SCHOOL OF SALAMANCA – FRANCISCO SUÁREZ

DOMINIQUE BAUER

Over the last years, groundbreaking research has been done concerning the development,
quasi ex nihilo and in a legal framework, of subjective concepts of right (“ius”) with the major
representatives of Spanish scholasticism. Within the thoroughly objectivist framework of Thomas
of Aquinas's understanding of law and right and against the eclectic background of fifteenth
century theological, mystical and aristotelian thinking about key concepts like “ius”, “facultas”,
“proprietas” and “propinquitas” (the obvious examples that are generally singled out in literature
being those of Jean Gerson and Conrad Summenhart), Vitoria, Soto, Molina and Suárez construct
notions of legal subjectivity. They do so in various degrees of coherence and systematics. In this
context, also the influence of Spanish scholasticism concerning legal subjectivity on rationalist
political thinking and rights discourse has been pointed out. Apart from the famous case of Hugo
Grotius's on “ius” as a “qualitas moralis personae” in his De iure belli ac pacis, also that of John
Locke on inherent rights in the state of nature in his Two Treatises of Government shows this.
One of the interesting points raised today throughout the analysis of “ius” as “facultas”, is the
foundational idea of the self-possession of the (legal) subject. This “facultas” is with Suárez
called a “facultas moralis”, “to the extent in which”, as Baciero Ruiz states, “... man belongs to
himself or is his own master by virtue of reason.”1 The “facultas moralis” thus denotes the self-
possession of the rational being.

It is the purpose of this paper, first to explore, by close reading, the concrete deployment,
by Suárez, of “moralis” as a defining feature of the legal realm that opposes factuality, and of
“facultas moralis”. This methodology is all the more necessary because Suárez did not develop a
systematic theory of the “facultas moralis”, let alone of legal subjectivity.

The point of departure is Suárez's theory on custom in which the opposition between the
moral nature of law and “factual reality” play an important part. De Lege non scripta (the seventh

1Baciero Ruiz, F.T. “El concepto de derecho subjetivo y el derecho a la propriedad privada en Suárez y Locke”
Anuario Filosófico 45,2 (2012) 391-421, 396.
 2

book of De legibus) enfolds the realm of legal abstraction and the ex contrario establishment of a
pre-legal or extra-legal realm that is concrete or private. The confrontation of theological,
philosophical and legal formulations of usus and custom, scholastic applications like that of
causa proxima/ causa primaria and of immeditio virtutis/ immediatio suppositi and tension
between the performative nature of legal subjectivity and the vis, force of law, open up of a field
proper to legal philosophy and the gradual development of the private and the public.

Second, Suárez seems to assemble or a number of scholastic tools that express forms of
“immediacy” (like self-possession and self-legislation) that denote actual acts or uses, like “ius”
as “a moral power to a certain act or use”, as Suárez states in his De pauperitate (De virtute et
statu religionis, lib. VIII) and furthermore in his Quaestiones de iustitia et iure. These echoe
Gerson's “facultas propinqua” that also with Suárez denotes an “active potency, a power to
exercise actions,” as Vaarkema phrases it.2 Immediacy and performancy characterise both the
legal subject and the legal community. The self-possession is indeed carried further through in
the legislative power of the communitas perfecta that is of an equally performative nature. As
Schwarz showes in this context, the city is characterised by natural resultancy (“a mode of
causation by which a substance produces its own accident or property”), that effects the “city's
original but alienable right to be its own master.”3

From this angle, the performative act of the facultas moralis may match another self-
sufficent performative subject, the je sens that is implied in the (que) je pense and that defines
Descartes' epistemological turn. Also the latter constitutes an actus in which subjectivity
establishes the very form of objective knowledge that coincides with that very act. Also the
relation, finally, between je sense and the je pense functions in terms of immediacy, and can
therefore be confronted with scholastic expressions of immediacy, like Suárez's use of the causa
proxima/ causa primaria, of immeditio virtutis/ immediatio suppositi and the application of the
concept of natural resultancy to the city show.

2 Varkemaa, J. “Justification through Being: Conrad Summenhart on Natural Rights” in: J. Krayne and R.
Saarinnen (ed.) Moral Philosophy on the Treshold of Modernity. Dordrecht, 2005, 181-194, 186.
3 Schwarz, D. , “Francisco Suárez on Consent and Political Obligation” Vivarium 46 (2008) pp. 59-81, p. 61; p.

73.