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2021 marks the 700^th anniversary of Dante’s death and has seen the publication on March 25 of Pope Francis’ Candor Lucis Aeterna, a lucid analysis of Dante and his work.  This is the second of a series of Ius & Iustitium pieces by Aníbal Sabater discussing lawyers in the Divine Comedy.  The first piece, “Dante’s Lawyers from Hell,” can be found here.

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It is a stroke of literary genius and an astonishing legal insight.   The gatekeeper who meets Dante and Virgil upon arrival in Purgatorio turns out to be Julius Caesar’s archnemesis, staunch defender of the Roman Republic, and universal symbol against tyranny, Cato the Younger.  How a pagan divorcee and unrepentant suicide like Cato was spared Inferno and appointed Purgatorio’s warder is commonly explained away by reference to freedom.  Dante—the trite explanation goes—felt compelled to vindicate Cato who, like himself, had been an advocate of individual free will and liberty for the people.  While not incorrect, this explanation misses much of the nuance in Dante’s thinking, artfully revealed in the dialogues throughout Purgatorio’s two first cantos.

Cato’s opening words in the Commedia try to make sense of Virgil and Dante and show the deliberation characteristic of a fair judge.  He wonders whether they are rebels who, subverting natural order, have escaped Inferno, or whether they have been allowed to leave it and arrive at Purgatorio by a special grace: “Son le leggi d’abisso così rotte? / o è mutato in ciel novo consiglio …?” (“Are the laws of the abyss thus breached / or is there some newly changed decision in Heaven …?”).¹

The dispositive term here is “leggi” (laws).  Using it, Dante pays homage to the one hexameter that Virgil devoted to Cato in the Aeneid. Among the dead in Elysium—Book VI of the Aeneid says—Aeneas, saw “almost hidden from sight the pious, and Cato giving them laws” (“secretosque pios, his dantem iura Catonem”).² Through this and other sources, such as Lucan, Dante was well acquainted with the tradition that presented Cato as a wise legislator, the one to whom the pious—those who worship the gods of the family and the city—turned for guidance.  But Dante knew that man-made law (even if made by Cato) is just a lesser form of law, subordinated to natural, divine, and eternal law.³

In Dante’s mind, that Cato was once a wise legislator counts as a merit that allows him now to oversee the application of eternal and divine law in Purgatorio (it is his task to ensure that no one comes to Purgatorio who is precluded from doing so by God’s judgement, and conversely, that no one escapes Purgatorio before his God-appointed time).  Of course, this “promotion” from human lawgiver in Virgil’s Aeneid to supernatural law enforcer in the Commedia has biblical undertones: “He that is faithful in that which is least, is faithful also in that which is greater.”⁴

In the Commedia, Virgil and Dante immediately acknowledge Cato’s preeminence and divine commission.  Dante kneels to listen to Cato;⁵ and Virgil answers in detail Cato’s question about his and Dante’s arrival in Purgatorio, explaining that this is the result of a singular grace.  Moreover, in full submission to Cato’s authority as guardian of Purgatorio, Virgil asks Cato to approve Dante’s visit—and in doing so raises the issue of liberty. Dante, says Virgil, should be allowed to visit Purgatorio because “he is seeking liberty, which is so dear, as he who lays down his life for it knows. You know it, because death was not bitter to you in Utica, where you left the outfit [your body] that will be so pure on the great day” (“libertà va cercando ch’è sì cara / comme sa chi per lei vita rifiuta. / Tu’l sai, che non ti fu per lei amara / in Utica la morte, ove lasciati / la vesta ch’al gran dì sarà sì chiara”).⁶

Virgil’s words (which undoubtedly reflect Dante’s personal views) explain the role of Purgatorio.  It is the place where the soul is finally cleansed from sin and earthly attachments and reaches the true freedom necessary to enjoy the beatific vision.  But they also give away the reason that Cato is not in Inferno—and indirectly reveal the true goal of any law, positive or divine. 

Cato does not appear with the suicides in Inferno’s Canto XIII because his death, according to the Commedia, had a purer motive than despair or rebellion—namely, Cato’s desire to rid his body from unjust human laws, the positive laws that Caesar was enacting to restrict the freedoms of the republic and promote a personalistic legal order.[efn_note]Whether by placing an unrepentant suicide in Purgatorio Dante was going with poetic appeal over orthodoxy is heavily debated.[/efn_note] Cato thus receives praise in the Commedia for rejecting statutes contrary to the common good and natural law.  Had he—and not Caesar—prevailed in the civil war, Rome’s laws would have been better ordered.

In all this, Dante is in opposition to St. Augustine, who had a grim view of the Roman legal system, which he saw as driven by vice and—at the time of the Empire—a cult of the demonic.[efn_note]City of God, Books 1 & 2.[/efn_note] Dante, by contrast, thought that not only the Christian Empire but also its Roman predecessor were capable of good, and did not hesitate to place emperors from each of them in Paradiso, on a single condition: that the emperor had governed on earth “sub Deo et lege.”

That rulers, including the emperor, must act within the boundaries set forth by God and valid human law is of course a bold claim to make today… but it wasn’t at the time of Dante, especially for those who, like him, lived the Scholastic tradition.  El Fuero Juzgo, the Castillian legal code in force from the Middle Ages (if not before) until 1889, contained this stern admonition: “You will be King if you act rightly, and if you do not act rightly, you will not be king” (“Rey serás, si fecieres derecho y si no fecieres derecho no serás rey”).[efn_note]Fuero Juzgo, Prólogo (“De la elección de los reyes et de lo que ganan”), Ley 2.[/efn_note] In other words, the king is king so long as he acts for the common good; otherwise, his kingship is only apparent. Other 13^th Century Castillian laws went as far as warning the king that unjust behavior on his part would entitle his subjects to rebel.[efn_note]Siete Partidas, Part. II.1.10.[/efn_note]

Cato’s uber-Thomistic understanding of the law permeates his appearance in the Commedia.  Towards the end of Purgatorio’s Canto I, Virgil notes that Cato’s former wife Marcia, who, like Virgil, now dwells in Inferno, still misses and loves Cato.[efn_note]Pur., I, 78 and ff.[/efn_note] In Canto II, Virgil, Dante, and others are moved by a sweet song from Casella.[efn_note]Pur., II, 112 and ff.[/efn_note] In both scenes, Cato remains untouched, as if considering these events just human trifles, and urges his guests to focus on their penance and salvation and dispense with personal affections in Purgatorio.  This “unsentimentality” may seem anti-climactic, but it is a powerful poetic technique.   Law is an ordinance of reason, not of sentiment or the will, and it is becoming that its enforcer be a reasonable, not a passionate person.  That enforcer, however, is still in Purgatorio himself, and thus in need of spiritual improvement before ascending to Paradiso.  In Purgatorio, he is doing justice—but still needs to learn mercy.  Cato’s seeming coolness is thus Dante’s subtle preparation for the reader’s encounter with Trajan, the example of a merciful judge, which will be addressed in the next piece in this series.

—Aníbal Sabater

Ius & Iustitium is happy to present this guest post by O.A.S.

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Last month, in its boundless charity, the Supreme Court announced that it would allow a Catholic foster care agency to continue to exist—at least for the time being.  More precisely, the Court held that the foster care agency can continue to operate until the City of Philadelphia amends its non-discrimination law to remove a minor and never-before-utilized exemption provision.  Once that happens, the City can again move to shut down the Catholic agency, and the parties can spend another several years embroiled in litigation. 

Continue reading “What Both Sides Got Wrong About Fulton” →

Ius & Iustitium is pleased to present this guest post by Kerry Sun, Stéphane Sérafin, and Xavier Foccroulle Ménard. Kerry Sun is a graduate of the University of Toronto, Faculty of Law, and a former clerk at the Court of Appeal of Alberta and to Justice Sheilah L. Martin at the Supreme Court of Canada. Stéphane Sérafin is Assistant Professor, Faculty of Law, Common Law Section, University of Ottawa. Xavier Foccroulle Ménard is a graduate of McGill University, Faculty of Law and the University of Toronto, Faculty of Law, and he works at Norton Rose Fulbright LLP. 

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I. Introduction

In a previous essay, published in the Canadian law journal Constitutional Forum/Forum constitutionnel, we observed that recent debates on common good constitutionalism in the United States and elsewhere have reverberated in Canada.^[1] Discussing some misconceptions of the natural law tradition, we alluded there to the differing perspectives on legislative activity that distinguished positivist from common good-inflected accounts of legal interpretation.^[2] More recently, controversies have emerged pertaining to section 33 of the Canadian Charter of Rights and Freedoms, a peculiar feature of Canada’s constitutionally entrenched bill of rights that allows a legislature to override judicial interpretations of certain enumerated rights. These offer us an occasion for further reflection on Canadian constitutionalism and the common good, in a more concrete manner. 

Continue reading “Notwithstanding the Courts? Directing the Canadian Charter toward the Common Good” →

We should start by acknowledging the clear positives in the Supreme Court’s decision in Fulton v. City of Philadelphia. First, the Court held that City foster care officials violated the Free Exercise Clause by refusing to contract with Catholic Social Services (CSS) for the provision of foster care services unless CSS agreed to certify same-sex couples for foster care in violation of its religious beliefs. Second, that conclusion was unanimous—every justice agreed that the City had violated the Constitution in some fashion. The liberal justices did so without even so much as a qualifying concurring opinion noting the narrowness of the majority’s holding, as we saw Justice Kagan issue in Masterpiece Cakeshop in 2018. Philadelphia lost and lost big; we should hope that City officials will take the lesson to heart. And if they don’t, we should hope the district and circuit court judges think again before ruling in the City’s favor a second time.

But therein lies the problem with Chief Justice Roberts’ majority opinion. The grounds underlying the decision are narrow—very narrow indeed. And recent experience suggests we should be wary of Philadelphia officials trying again to cut off CSS’s foster care certification services, with a judiciary again ready to cover for them.

Continue reading “Dance Lessons With the Chief Justice: Fulton v. City of Philadelphia” →

Ius & Iustitium is pleased to present this guest post by José Ignacio Hernández G. Professor Hernández G. is professor of administrative law at “Andrés Bello” Catholic University and Central University, Venezuela, and a fellow of the Harvard Kennedy School.

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I

Last November, the Centro de Estudios Políticos y Constitucionales in Madrid held a seminar based on Cass Sunstein’s and Adrian Vermeule’s recent and inspiring book: Law & Leviathan. The purpose was to discuss the book’s main ideas from the European, Spanish and Latin American perspectives. Professor Luis Arroyo gave the European vision, while Professor Silvia Díez explained the Spanish perspective. I completed the comparative study from the point of view of Latin American administrative law, which I will focus on in this brief essay. 

It was a rare event. Unfortunately, the fact is that the study of comparative administrative law is still a nascent field. 

Law & Leviathan opens new doors for this comparative approach. The book’s main idea is that administrative law should be studied from the perspective of Fuller’s inner morality of law through general principles that both constrain administrative action and facilitate it in order to promote the common good. Rather than dismantle the modern administrative state, the book proposes to reinforce its framework through the principles of legal morality, such as the principles that “agencies must follow their own rules; retroactive rulemaking is disfavored and must be limited to prevent abuse; and official agency declarations of the law and policy must be congruent with the rule that agencies actually apply” (Law & Leviathan, p. 9). 

Continue reading ““Law & Leviathan” in the age of coronavirus” →

Ius et Iustitium is happy to present this guest post by Anna Lukina. Anna Lukina is a graduate of the University of Oxford (BA, BCL) and Harvard Law School (LLM). She is a lecturer at Free University Moscow and an incoming PhD student at the University of Cambridge. Her doctoral project will be entitled “Towards a Jurisprudence of Evil Law.” This is the first in a brief series on law and angelology. Pat Smith’s reply can be found here. Pater Edmund Waldstein is writing a response as well, which will be forthcoming soon.

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Law, with its ability to change one’s moral obligations and authorize coercion, has the capacity not only to deter, but also to produce evil. This ‘immorality that law makes possible’ (to quote Leslie Green^[1]) remains a subject of great interest. In this piece, I aim to explore how this problem was unpacked in the work of St Thomas Aquinas and what insights can it bring to the contemporary jurisprudence. In short, St Aquinas’s teaching on demons shows how the legal form can aid evil regimes despite this use of law taking away from its nature.

This adds much needed nuance to the following exchange between Nigel Simmonds and Matthew Kramer, exemplary of modern legal thought. Simmonds has argued that, since governing by law means that the state needs to restrict its actions, an evil regime would prefer to govern extralegally^[2]. As a result, the rule of law^[3], he claimed, would be better construed as being, as expressed in Lon Fuller’s formulation, ‘the inner morality of law^[4]’, or having a necessary normative quality. Kramer challenges his view, retorting that notwithstanding the limitations it places on the state, governing by law is nevertheless serviceable to evil regimes as it guarantees better compliance of the citizenry with the state’s directives^[5]. This renders law akin to, as per Joseph Raz’s analogy, a knife^[6], an instrument that can be used for good and evil. Continue reading “St. Thomas Aquinas on Angels, Demons, and Evil ‘Law’” →

Ius & Iustitium is happy to present this guest post by Aníbal Sabater. Aníbal Sabater is a lawyer in New York City specialized in international arbitration. This essay is the first of a planned three pieces on lawyers in the Divina Commedia. Essays on lawyers in Purgatorio and Paradiso are expected to follow in a few weeks. If a discussion of Dante is always timely, it is more so this year, which marks the 700^th anniversary of Dante’s death and has seen the publication of Pope Francis’s Candor Lucis Aeterna (March 25, 2021), a lucid analysis of Dante and his work.

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That legal talent does not guarantee a place in Dante’s Paradiso is well attested by Judge Ugolino Visconti, whom friends called “Nino.” ^[1] Around 1290, Judge Nino arrested and sentenced to death a certain Fratre Gomita, chancellor of Gallura in Sicily and brazen barrator according to local contemporary chroniclers, who described him as “molto malizioso e grande trebalderi per danari” (“very wicked and a great purloiner for money”).^[2] Dante was probably aligned with popular sentiment when he praised Judge Nino for his decency,^[3] while counting Gomita among the fraudsters in the eighth circle of the Inferno.^[4] But a rigorous Thomist for the most part, Dante knew that, upon death, the Judge was not quite ready for Paradiso. Lawyers are called to pursue truth, justice, and the common good, with singular unity of life. A person lacking in personal virtue can make a good blacksmith, but not a good lawyer, because ultimately, the lawyer offers, or should offer, himself for others in ways that the blacksmith cannot. Eventually, we find Judge Nino in Purgatorio, because despite his success as Sicily’s anti-corruption czar, he had been so absorbed by local politics that he neglected both his spiritual life and the care of his wife. In a poignant scene in Purgatorio’s Eighth Canto, Judge Nino longs for the prayers of his infant daughter Giovanna, the only person on earth who still seems to miss him, and goes on a proud diatribe against his widow, who was too quick to remarry. ^[5] 

Continue reading “Dante’s Lawyers from Hell” →

Ius et Iustitium is happy to present this guest post by JS.

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It is easy to imagine a perplexed reader trying to figure out what John Finnis and Ed Whelan have to do with Indian tribes, but a recent Note, Tribes Can Prohibit Abortions In Indian Country, in the Harvard Law Review makes the connection clear.  The Note advances the perhaps surprising thesis that the 574 federally recognized tribes in the United States can prohibit abortions from being obtained or performed by Indians on their reservations. The argument has four key ideas. 

First—and this might surprise those unfamiliar with federal Indian law—the Constitution does not apply to Indian tribal governments. The Note traces this rule to its roots in Worcester v. Georgia and the first clear articulation of it in Talton v. Mayes, where the Court concluded that the laws of the Cherokee Nation are “not operated upon by the Fifth Amendment.” In recent years, the Court has reaffirmed the rule that the Constitution generally and the Bill of Rights specifically does not operate upon Indian tribal governments, in such cases as Oliphant v. Suquamish Indian Tribe and the 2016 United States v. Bryant decision.

Continue reading “John Finnis, Ed Whelan, and Indian Tribes” →

Ius et Iustitium is happy to present this guest post by Brian McCall. Mr. McCall holds the Orpha and Maurice Merrill Chair in Law at the University of Oklahoma.

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It seems as if the only thing about which most Americans can agree is that America has become more deeply divided than any time since the mid-nineteenth century. The people of America are so divided that it raises the question, Is the Republic still a commonwealth? Cicero, in his great work of political and legal philosophy, De Republica, defined a commonwealth as: “an assemblage of some size associated with one another through agreement on law (ius) and community of interest.”^[1] This definition contains three elements: (1) a group of people that is of a certain minimum size, (2) a common interest, and (3) an agreement on the nature of law and justice. The Latin word used for this final element is ius. This word possesses a rich penumbra of meanings beyond that of the simple English word “law.”^[2] The range of meanings of ius includes “law, justice, right, rights, procedures of justice, just behavior, court, regulations, power, authority.”^[3] The term also has the “connotation of ‘justice’—that is, the broader principles of equity or morality which a legal system is supposed to embody.”^[4] This rich word is distinguished from the Latin word lex, also rendered in English as “law,” which has a more specific meaning than ius. It refers merely to written rules adopted by a constitutionally approved legislative authority. Thus, when Cicero requires a consensus on ius (consensus iuris) before discussing the best form of civil laws, he is referring to a much deeper consensus than a mere agreement on the specific laws of a polity. He insists upon a consensus about the very nature of law and justice. In De Legibus, his discourse on the best form of laws for a commonwealth, the reader must wait until Book II before Cicero begins listing these laws. Cicero requires from his philosophically pluralist discussion partners^[5] at least a tentative agreement on fundamental philosophical principles that underlie law, before describing specific civil laws.^[6]

Continue reading “Would Cicero Recognize America as a Commonwealth?” →