Norma y principio en el jus commune

Abstract

This article presents a synthesis of some aspects in the method used by the Jus Commune jurists and by some theologians influenced by it. The author makes a clear distinction between two instances of the reflection over the juridical science. One, that pre­vious to the XVII century; the other, that at the onset of the XVI century which, on the general philosophical level, was the one represented by Gabriel Vásquez de Belmonte, Luis de Molina, and Francisco Suárez. Gabriel Vásquez fiercely rebelled against Thomas of Aquinas -and, with him, against the spirit of practical medieval philosophy- and Molina and Suárez followed suit. The work of these theologians is characterized by their adoption of the ex objecto in ethics, ac­cording to which good and evil intrinsically and radically depend on behavior itself, so that practical knowledge is determined by knowledge of the nature of things in the di-vine mind; therefore, manente natura rationali, good shall always be good, and the same shall be true of morally evil acts. The most immediate consequence is that the natural law doctrine was filled with eternal and immutable essences. The Middle Ages had not seen the relationships between the general (rather, theoretical) instance and the practical, always concrete, instance in this way. The article is supported by the works of Pedro de Bellapertica, Albertus Bolognettus, François Conan, Johannes Althusius and, among the theologians, Thomas of Aquinas in particular, to show what Johann Eisenhart would explain in mid-Enlightenment: that logic is always rigid and goes from the general to the particular, whereas metaphysics teaches us to learn that the causes come from the effects, the principles from the principiata, the first elements from the last ones, the antecedent from the consequence, and the whole from its parts.