Catholic Scholasticism at the Threshold of Constitutionalism
Thomas D. Howes, “Catholic Scholasticism at the Threshold of Constitutionalism,” The Vital Center 1, no. 1 (Fall 2023): 26–32.
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As Pope Benedict XVI and many others have noted, it was ultimately the success of the United States of America that convinced many faithful Catholics that one could support legal rights of religious freedom without at the same time supporting secularism or religious indifference (before this, civil peace was a primary concern). But for that American experiment to happen, there was a long history of contributions, among which were those made by Catholic scholastics. And this, I am convinced, is a story young Catholics need to hear.
Young people tend toward radicalism. For young serious Catholics, that radicalism is not usually Marxism but instead an excessive form of anti-modernism. You might have heard the narrative: there was the golden age of Christendom and its Catholic kings obedient to the authority of popes. Then came the decadent hyper-individualism of modernity, the first seeds of which were planted by Ockham, Luther, or Hobbes—depending on who you ask. Manichean narratives like this can be dangerous because they lead to reactionary, simplistic dismissals of anything modern, even modern things that are, from the standpoint of morality and human flourishing, rather important. Much of the problem is that the “canon” of great authors that forms a foundation of our education excludes transitional figures whose thought contains important modern ideas. To construct large historical narratives based solely on canonical authors, therefore, leads us to miss that these ideas are firmly rooted in older traditions.
One group of these forgotten figures are the great scholars of sixteenth- and seventeenth-century Catholic scholasticism, who made important contributions to modern politics through their discussion of human rights, social contract, and economic theory. My focus will be on their political theory, particularly that of Francisco Suárez, whose thought on these matters effectively summarizes the developments in political theory among Catholic scholastics from the first half of the sixteenth century to the turn of the seventeenth century. Anglican cleric Richard Hooker, moreover, would draw on the same Catholic scholastics, transmitting ideas that would have an important yet often forgotten role in the development of modern constitutionalism. After all, the natural law political theory they advocated, with its recognition of human rights, the limits of political sovereignty, and even a right of resistance, was in tension with the ideological absolutism of the era defended by Hobbes and Filmer—even if these scholastics never drew out all its implications. Through people like Hooker, these scholastic ideas found a natural home alongside British political traditions that reached back to the Middle Ages, and which favored a more genuine rule of law, separation of powers, and checks and balances: traditions that provided more effective resistance to absolutism than anything the scholastics proposed. All of this shows that the gap between the Catholic natural law tradition and modern legal and political theories is much smaller, and its relationship much more complex, than the dualistic narrative implies. And to convince young radical Catholics that not all modern ideas are bad, this is an important place to start.
Political Authority Arising from Natural Equals
What is so surprising about Suárez and other Catholic scholastics of that time is that most of them endorse a kind of social contract theory, even using thought experiments about a “state of nature” (a term used by the Spanish Jesuit, Luis de Molina). Sometimes they would speculate about actual historical pacts made in the past, but they were more concerned with understanding the tacit “pact” implied in ordinary everyday political communities. Because it is lesser known and easily misunderstood, it is worthwhile to examine this theory further. Properly understood, and with some refinements, it is rather compelling. It also helps us see how blurred the lines are between late scholasticism and early constitutionalist thought.
For Suárez, prior to political communities, leaders of households all stand in relation to one another as equals with no authority over each other. As he says in his Tractatus de legibus ac Deo legislatore (III, 2), “the reason [political authority does not naturally reside in individuals] is that all men are born naturally free. Therefore, none of them has political jurisdiction—or dominion—over the other.” Political authority, moreover, is a result of an “express or tacit pact” whereby persons unite for mutual benefit and a common good under a political authority (In opera sex dierum, V.7.3). This should sound familiar. It is true that human beings are for Suárez, as for Aristotle, naturally political. But just as Catholic tradition views matrimony as both the object of a natural inclination and the result of positive consent, political society can also be said to be both the result of a natural human inclination while still requiring some sort of (corporate) consent on the part of the community.
Suárez is offering a normative, not a descriptive, account. It in no way denies that political leadership has usually been established by usurpation (for Suárez, see De Legibus, III, 1, 11). But, while usurpation creates an illegitimate situation, the community can come to freely consent to the new effective authority over time (Suárez, III, 4, 4), and presumably not only out of fear that revolting will cause more harm than good. Suárez has good reason to claim that community consent still matters, or else we would have to call legitimate a usurper’s effective violation of the established constitutional principles of a community. But that does not seem right. It is more plausible to say that while it may compel the reason of individuals to obey the new usurping power, because it would do more harm than good to resist, the rule can still be considered illegitimate violence against the community until the latter comes to freely embrace it. After all, the usurping power has no more claim to authority than anyone else in the political community and is thus taking an unequal claim to the community’s governance that it does not have by nature.
On these matters, it is important to realize that by appealing to the corporate consent of the community, these scholastics were not primarily concerned with justifying the moral obligation to follow political authority. They were instead positing a necessary but insufficient condition for the moral authorization of laws and political leaders who promulgate, enforce, and adjudicate them. Only with the corporate consent of the political community does this or that person, or these or those laws, have any special claim to authority over others. Although the political community is for Suárez a moral or mystical union of wills (In opera sex dierum, V.7.3) and is thus constituted by the consent of its members—and it is from this emergent corporate consent that its constitution, along with its leaders and laws, is authorized—individual consent plays a limited role in explaining obligation.
As far as the rationale for forming and entering into a political community goes, Suárez points to the inconveniences of a pre-political state of nature, which would not be solitary, because sociality is prior to politics, but it would still be, as Hobbes says, “poor, nasty, brutish, and short” (for Suárez, see De Legibus III, 1, 3). And this is because, citing Thomas Aquinas, a body cannot survive without a “principle whose function is to serve and seek the common good” (De Legibus III, 1, 4–5). It is a short move from recognizing the obvious need for political authority to justifying political obligation even for those without explicit consent—but it is a move whose justification these scholastics could stand to elucidate further. For instance, this account would perhaps benefit from further analysis of how, given the practical impossibility of perfect consensus regarding those determinations that are necessary to solve coordination problems that affect the common good (e.g., a single decision must be made about the guilt or innocence of this person, about what side of the road people will drive on, and so forth), the community’s non-unanimous consent is therefore necessary. Considering that the common good is a shared goal that we wish for others to uphold, it follows, as a demand of general justice, that we ought to contribute to its preservation; moreover, considering that the common good requires some kind of authority to make unique determinations, and given that complete unanimity is an impossible ideal, we owe it to one another to respect in most cases the functional consensus of the community on these matters. This is what more recent natural law theorists Yves Simon and John Finnis argue, and unlike them, I see it as a consistent elucidation to what scholastic social contract theorists already hold. Implied in all these defenses of political obligation, moreover, is that it is not limitless.
Finally, the implications of these ideas for the right of resistance are clear but have often been downplayed by commentators because in more well-known places, Suárez sounds as conservative as Thomas Hobbes. In other places, however, Suárez’s position is clearly distinct from that of Hobbes:
The [political community or civitas] […] may rise in revolt against such a tyrant [a sovereign who rules tyrannically]; and this uprising would not be a case of sedition in the strict sense, since the word is commonly employed with a connotation of evil. The reason for this distinction is that under the circumstances described the [political community], as a whole, is superior to the king, for the [political community], when it granted him his power, is held to have granted it upon these conditions: that he should govern in accord with the public weal, and not tyrannically; and that, if he did not govern thus, he might be deposed from that position of power.
We see that narratives about modern political decline, from a politics of natural law to a politics of social contract, become more complex and debatable when one is aware of these transitional figures, and that is so even without considering the presence of subjective natural-rights talk among the scholastics.
A Forgotten Influence
At the turn of the seventeenth century, scholars and students of theology in Britain were reading Catholic scholastics, and the Anglican cleric Richard Hooker likely did as well. In fact, Anglican archbishop Whitgift wrote to the Vice-Chancellor of Cambridge in 1594 to complain about the influence of Catholic authors at Cambridge:
That in these times instead of Godly and sound writers, among their stationers, the new writers were very rarely bought: and that there were no books more ordinarily bought and sold then Popish writers […] that upon the search that had been made by his Grace’s appointment, many Divines’ studies being searched, there were found in divers studies many Friar’s, schoolmen’s and Jesuit’s writings, and of Protestants either few or none.
Alexander S. Rosenthal cites this passage and elsewhere notes many similarities between the writings of Hooker and Suárez, with the latter’s thoughts on politics and law reflecting themes in Spanish scholasticism that go back to its founder, Francisco de Vitoria. It is not unreasonable to assume that these similarities reflect common influences, probably the Catholic scholastics who preceded them both. Moreover, the English cleric was able to combine these ideas with important virtues of the English political tradition, such as its stronger emphasis on institutional checks on power. In fact, we see in Richard Hooker’s The Laws of Ecclesiastical Polity a state-of-nature thought experiment, the need for people to consent to political community and the need for a political authority which is established by a sort of pact. “Two foundations there are which bear up public societies—the one, a natural inclination, whereby all men desire sociable life and fellowship; the other, an order expressly or secretly agreed upon, touching the manner of their union in living together” (emphasis mine). Familiar ideas once again. These ideas would circulate throughout the seventeenth century in the English-speaking world. For example, in 1638, when John Locke was still a child, Thomas Hooker—a possible relative of Richard—preached a sermon that inspired the Fundamental Orders of Connecticut, stating therein, “the foundation of authority is laid firstly in the free consent of people.”
Later Robert Filmer, the foremost seventeenth-century defender of the theory of the divine right of kings, would lament in his Patriarcha about the Catholic and Calvinist sources of the doctrine of consent:
Since the time that School-Divinity began to flourish, there hath been a common Opinion maintained, as well by Divines as by divers other learned Men, which affirms, Mankind is naturally endowed and born with Freedom from all Subjection, and at liberty to chose what Form of Government it please: And that the Power which any one Man hath over others, was at first bestowed according to the discretion of the Multitude. This Tenent was first hatched in the Schools, and hath been fostered by all succeeding Papists for good Divinity […] Yet upon the ground of this Doctrine both Jesuites, and some other zealous favourers of the Geneva Discipline, have built a perillous Conclusion, which is, That the People or Multitude have Power to punish, or deprive the Prince, if he transgress the Laws of the Kingdom.
The author Filmer singled out was the Italian Jesuit cardinal Robert Bellarmine, who, in his de Laicis, made many claims similar to the Spanish scholastics, arguing, for instance, that human beings are social by nature, that political society is necessary due to the inconveniences of nature, and that political authority was needed to govern that same political society toward the common good. Moreover,
In the absence of positive law, there is no good reason why, in a multitude of equals, one rather than another should dominate […]. It depends on the consent of the people to decide whether kings, or consuls, or other magistrates are to be established in authority over them; and, if there be legitimate cause, the people can change a kingdom into an aristocracy, or an aristocracy into a democracy, and vice versa.
Bellarmine and the Spanish scholastics were, in fact, in many ways papalist intermediaries of the conciliarist writers of the fourteenth, fifteenth, and sixteenth centuries, with the conciliarists instead applying these ideas to the Church’s governance. See, for instance, Nicholas of Cusa in the mid-fifteenth century: “For if by nature men are equally powerful and equally free, the valid and ordained power of one man equal in power with the others cannot naturally be established” (translation by Francis Oakley). Bellarmine and the Spanish scholastics, starting with Francisco de Vitoria (who on this point followed the Italian Thomist, Cajetan), were all opponents of conciliarism as a theological doctrine. Nonetheless, and this marks perhaps their greatest significance for political theory, they separated the wheat from the chaff and genuinely affirmed these ideas as applied to secular political authority. It is thus understandable that, with these ideas floating around so early, Thomas Jefferson considered as common opinions all his famous claims in the preamble of the Declaration of Independence about the natural equality of persons and a government by the consent of the governed. Therefore, these are not, as many claim, “enlightenment” innovations. They are firmly rooted in the tradition of Catholic political thought.
“Catholic scholastics developed a social contract theory in conjunction with their account of natural law and a desacralized account of the political community, which naturally drew attention to the limits of governmental authority and to the legitimacy of resistance when those limits are surpassed.”
Although some of these ideas can be found floating around Britain as early as the fourteenth century, their renewed interest at the turn of the seventeenth century, through mostly Catholic and Calvinist defenders of resistance, was significant because, as I note above, the Anglosphere had a political tradition with a stronger emphasis on institutional checks on power. Scholastic political thought, with its account of natural rights, the limits of sovereignty, and defense of the right of resistance, was naturally in tension with modern absolutism. But working within the political traditions also informed by Roman law—which, despite its emphasis on natural law, still had absolutist tendencies, often softened in its reception by Christian Europe—they had fewer resources for promoting a political structure with sustainable resistance to tyranny. This is apparent in the Spanish Jesuit scholastic, Juan de Mariana, whose controversial tract, De rege et regis institutione, presents extralegal resistance or even tyrannicide as a short-term solution for tyranny, whereas his long-term solution is to strengthen the older competing powers, the nobility and Church, and to ensure better education for monarchs to bind themselves to the law—hardly viable solutions in hindsight.
This is why Anglican cleric Richard Hooker is so significant for this story. Although downplaying resistance, he emphasizes rule by consent along with a rule of law. He thus combines the political framework of Catholic scholasticism with British political ideals, manifest in seminal form in the Magna Carta, and in the writings of the common law tradition such as those by Henry of Bracton, John Fortescue, Edward Coke, etc. In the latter half of the seventeenth century, Tories and Whigs fought over whose side better represented Hooker’s ideas, with the Whigs, and their emphasis on institutional constraints on the king, ultimately winning out. This contribuuted to the unprecedented constitutional theorizing of the eighteenth century in Montesquieu, Blackstone, the Scottish enlightenment, and the Federalist Papers.
It is true that some of the scholastics, like Suárez, promoted some kind of mixed regime, just as Aquinas did. But they never fully escaped the model of what Martin Rhonheimer calls a sovereign’s “rule by law,” rather than the “rule of law” present in modern constitutionalism, the essence of which is, as Rhonheimer puts it, the “institutionalization of the right of resistance.” If later Catholic authorities, like Pope Leo XIII, could then downplay the right of resistance, it was because, as German natural law theorist Heinrich Rommen notes, its “political functions […] were taken over by modern constitutionalism.” And if Jesuits no longer needed to give detailed—bordering on scandalous—defenses of tyrannicide, that was because real institutional progress had been made.
Catholic scholastics thus contributed to modern democratic constitutionalism. They developed a social contract theory in conjunction with their account of natural law and a desacralized account of the political community, which naturally drew attention to the limits of governmental authority and to the legitimacy of resistance when those limits are surpassed. And all of this gave additional support to Anglo-American ideals of limits on the sovereign power and to Anglo-American institutions that progressively evolved in the direction of a rule of law, separation of powers, and checks and balances. These scholastics also promoted, as we see above, important democratic elements which, though not necessarily translating to democratic institutions with free elections, have a natural tendency to do so.
Regarding the issue of religious liberty, however, it was a long road from the writings of these scholastics to the American Bill of Rights, and an even longer road to the Second Vatican Council’s Declaration on religious freedom, Dignitatis Humanae. Most, if not all, of the scholastics were in fact what we would today call integralists, believing that the Pope’s indirect temporal power legitimized state coercion in religious matters. But as Pope Benedict XVI and many others have noted, it was ultimately the success of the United States of America that convinced many faithful Catholics that one could support legal rights of religious freedom without at the same time supporting secularism or religious indifference (before this, civil peace was a primary concern). But for that American experiment to happen, there was a long history of contributions, among which were those made by Catholic scholastics. And this, I am convinced, is a story young Catholics need to hear.
