Domingo de Soto was born in Segovia in 1495 and died in Salamanca in 1560. He was a Dominican monk, theologian, jurist, and professor of Theology and Philosophy at the University of Salamanca. He was educated at the University of Alcala and furthered his studies at the University of Paris. He took part in the Council of Trent. He was a royal confessor to Emperor Charles V. He was a member of the School of Salamanca, along with Francisco de Vitoria, among others. He played a role in the Valladolid controversy between Bartolomé de las Casas and Juan Ginés de Sepúlveda.
Excerpts from Domingo de Soto’s work Treaty on Justice and Law (Tratado de la Justicia y el Derecho) will be discussed below, in the style of the Minerva Strategy
The aim of the legislator is to make subjects good, which is based on the primary human end of happiness.
” This conclusion can easily be deduced from the decision of the above question. For the objective of the law is the common good, of which our beatitude consists: so that nothing achieves it except by the exercise of the virtues, which make good those who have them; all the more so when (as the Philosopher says) the happiness of this world is in the practice of the virtues; therefore it is the effect of the law to make men diligent and honest” (Domingo de Soto, Tratado de la Justicia y el Derecho, C. 2º art. 1).
Virtues are habits and moral dispositions linked to a model of excellence associated with a practice. If one acts virtuously -repeating these habits-, one becomes virtuous. This is an ethic that shapes character. And here, there would be two approaches. The first would argue that it is not the government’s task to impose models of the good life, highlighting the famous distinction between theories of justice -public ethics- and conceptions of the good -private ethics-. The second has several versions, the classical Aristotelian one -which inspires Domingo de Soto- and a more up-to-date version, which would make the State’s promotion of virtues compatible with respect for individual autonomy and pluralism of values along the lines defended by Joseph Raz in Morality of freedom.
“We conclude that the law makes men good, and this reasoning only draws from the fact that it makes them good subjects, which is less. Aristotle distinguishes the good citizen from the good man. A citizen is called good if he is a good subject, that is, obedient to the command of the law, but the good man has something more of honesty. For, since civil law permits many things with impunity, one can obey the law and yet be evil, namely, a miser, a fornicator, and so on, as we criticised before. Therefore, it is not enough for the law to make good subjects for it to make men simply good” (Domingo de Soto, Tratado de la Justicia y el Derecho, Ch. 2, art. 1).
If the argument of exclusion of ideals and State neutrality is usually defended from the liberal perspective, can civic virtues be imposed by the State? It seems that the republic of egoists/atomists is insufficient for cementing society, and the education of these civic values plays a prominent role. However, some authors, such as Sandel, have excelled in justifying the role of civic virtues in cementing democratic societies. Others argue in favour of State neutrality.
“Even if human reason could be a certain rule of our actions, the republic would be much better governed by the living voice of men than by written laws. Therefore, being a judge (as Aristotle says), animated justice would more easily and congruently shake him than deaf and dumb law. For actions being concerned with the use of particular things, human law cannot provide for everything, and consider all the singular circumstances, as the judge would do with his prudence” (Domingo de Soto, Tratado de la Justicia y el Derecho, C. 5ª, art. 1).
The Aristotelian influence is followed here in a particularist dystopia, a triumph of topicality, the living voice of men instead of written laws. The world of law is perfectible, but it has unquestionable qualities. It is a characteristic of the Rule of Law, which can be summarised with the government by laws, not by men. It was a significant advance from the Ancien Regime. The legal system is made up of general and abstract laws. There is a great doctrinal debate about whether norms, be they rules or principles, must have an open or closed antecedent. Or, on the other hand, whether, in the face of circumstances that are not contemplated, they are defeasible conditionals. It is then when the judge, as an expert and from his experience, must consider the situation as one more piece of the Rule of Law.
“If a good man better governs the republic than a good law. And he affirms that the law governs better than man. Aristotle also repeats this in another work. Namely, finding one or a few wise legislators is easier than many judges. A few are enough to make laws in a century, but many more are needed to pass judgement. On the other hand, laws are given after a long time of thought, and judgements are resolved very briefly. Therefore, it is easier to err in the latter than in the former” (Domingo de Soto, Tratado de la Justicia y el Derecho, C. 5ª, art. 1).
In this case, Domingo de Soto has a presumption that the legislators’ tasks are prudent and well thought out in the face of the errors of multiple judges. This could be a general approach; however, in the current legal-philosophical field, there has been an interpretative turn -Alexy, Dworkin- where the key question is what are the solutions for hard cases, and tools are provided to answer this question correctly. Ferrajoli, in his work Wild Powers. The Crisis of Constitutional Democracy (Poderes salvajes. La crisis de la democracia constitucional) argued why judges must sometimes defend the rule of law against executive meddling.
“The law should be written in general, that is, it should not command: If such and such a person kills, or for such a reason, or with such a circumstance, let him be punished, but in general: Everyone who kills. These accidental circumstances cannot be included in the law but must be weighed by prudence afterwards. Indeed, just as in speculative matters, as Plato commanded, one must stop at the species, for there is no science but experience about the singular, which is passing, so in practice, there can be no law about the particular, which happens by chance, but only prudence” (Domingo de Soto, Tratado de la Justicia y el Derecho, C. 6ª art. 1).
Laws should be general, and prudence, i.e. the virtues, should be applied to particular circumstances because science is not possible. The renewed interest in Virtue Jurisprudence arises precisely from the question of the role of virtues, such as temperance, fortitude, humility or honesty, in the work of those charged with applying the law. We hope that justice will consist of implementing certain habits associated with models of excellence when deciding judicial cases. This would bring us closer to the ideal that those who apply justice are virtuous judges.
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