2021 marks the 700th 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.
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 13th 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
