2021 marked the 700 th anniversary of Dante’s death and saw the publication on March 25 of Pope Francis’ Candor Lucis Aeterna, a lucid analysis of Dante and his work. This is the third of a series of Ius et Iustitium pieces by Aníbal Sabater discussing lawyers in the Divine Comedy. The first two pieces, “Dante’s Lawyers from Hell” and “Dante’s Lawyers from Purgatory: Cato” can be found here.
Man becomes proud, Aquinas reminds us, not only by coveting God’s likeness or human praise, but also by indulging in “excellence,” that is, in the presumption of superiority over others.[1] This notion that there is spiritual danger in being too good at anything—including a professional activity—permeates the Commedia[2] and gets special attention in Purgatorio, where the haughty are purified by carrying heavy stones while contemplating three animated sculptures.[3] The first is a statue of Our Lady uttering her “Ecce Ancilla Domini”;[4] the second shows David dancing merrily before the Ark, indifferent to his wife, Michol, who mocks him for this “un-royal” conduct; the third depicts the encounter between a widow and the Roman Emperor Trajan, as he departs for the Dacian Wars. She asks him to judge his son’s assassins. Trajan demurs, but she insists and eventually persuades him.[5]
Dante’s account of the conversation between the widow and Trajan is imaginary but has a grain of historical truth. “Contrary to what might have been expected of a warlike man,” said Lucius Cassius Dio, “Trajan did not pay any less attention to civil administration nor did he dispense justice any the less; on the contrary, he conducted trials, now in the Forum of Augustus, now in the Portico of Livia, as it was called, and often elsewhere on a tribunal.”[6]
Dante was not facetious when he placed Trajan’s conduct on the same level of excellence as Our Lady’s or King David’s. In De Monarchia, he had already asserted that the emperor receives his authority directly from God, not vicariously from the Pope (a proposition that was condemned as heretic and landed the book in the Index for three centuries). In the Commedia, Dante barely touches on the origins of imperial authority, but insists on how a centralized, global political authority is intrinsic to Christianity. Just as the firmament is guided by a single source of motion, argues Dante, a unified monarchy is necessary for the well-being of the world.[7]
What Dante finds attractive in the emperor, however, is not his raw power, but rather his ability to display and spread virtue to a wide audience through the nitty-gritty exercise of daily governance. This is why the imperial activity that Dante chooses as an example for penitents in Purgatorio is doing justice to a widow in a common legal case. In the classic definition, “justitia est constans et perpetua voluntans ius suum cuique tribuens”—justice is the constant and permanent will to give each one his right.[8] This means that the judge does not create rights or increases another’s well-being—those are tasks for the legislator or the munificent administrator. He simply makes sure that each person receives what the law already gives her. This task is menial and foundational at the same time. Justice is not enough to guarantee the common good, but without it, there is no common good. Similarly, no ruler is praiseworthy if he is not just.
Of course, Dante is not alone here. For centuries, wise ruling has been linked to wise judging (think of King Salomon praying for an understanding heart to judge his people, or St. Louis King of France hearing cases under an oak tree in the forest of Vinceness.) Dante follows this tradition and, with it, acknowledges the reciprocal connection between justice, humility, and mercy.
Aquinas said that justice done with pride is no longer justice, and like Chrysostom, believed that sin committed with humility is better than justice done with pride.[9] Here, Trajan heard the widow’s case instead of delegating it to a lower-level magistrate. Adjudicating the case of the widow was not beneath him, nor was his vocation limited to leading in battle or making existential decisions for the republic. Compare that with the conduct of megalomaniac emperor and amateur lawyer Napoleon, who upon learning that a panel of experts was editing heavily the Civil Code he had come up with, exclaimed (perhaps apocryphally) “Mon code est perdu!” Compare it also with the fictional Purgatorio testimony of Oderisi da Gubio, a sometime admired book miniaturist and now one of the souls required to look at Trajan’s statue, who bemoans that his sole heart desire on earth was to excel others at his trade—“Oh vana gloria de l’umane posse!”[10] Trajan appears as a contrast to them because he chose the conduct that would got him less, if any, human recognition.
Notably, Trajan’s humble act of justice stemmed from a previous act of mercy—his decision to succor the widow out of sympathy for her distress.[11] As in the order of creation, justice presupposes mercy.[12] Here, Trajan was not obligated to dispose of the widow’s case. Very little is known of imperial jurisdiction under Roman law—no legal text has been found giving emperors the power to adjudicate disputes, but it seems certain that it was entirely discretional for the emperor to decide whether to hear a case. Dante’s dialogue between Trajan and the widow starts from that premise:
“La miserella intra tutti costoro
pareva dir: ‘Segnor, fammi vendetta
di mio figliuol ch’è morto, ond’ io m’accoro’;
ed elli a lei rispondere: ‘Or aspetta
tanto ch’i torni’; e quella: ‘Segnor mio,’
come persona in cui dolor s’affretta,
‘se tu non torni?’; ed ei: ‘Chi fia dov’io,
la ti farà ….”
(“The poor woman among them all seemed to say[13]: ‘Lord, vindicate me as my little son is dead, for which I grieve’; and he replied: ‘Wait for now until I come back.’ As a person whose pain is urgent, to this she said: ‘My lord, and what if you don’t come back?’; to which he replied: ‘Whoever is then in my place will do it for you ….’”).[14]
However, like the Syrophoenician woman or the widow addressing the unjust judge, this mother was not ready to give up. In the next few verses she subtly makes it clear that the issue is not whether she will get justice, but rather whether Trajan will do it—others can do her justice, but then Trajan will have missed an opportunity to be virtuous. Eventually she carries the day:
“‘L’altrui bene /
a te che fia, se ’l tuo metti in oblio?’;
ond’ elli: ‘Or ti conforta; ch’ei convene /
ch’i’ solva il mio dovere anzi ch’i’ mova:/
giustizia vuole e pietà mi ritene.’”
In Candor Lux Aeterna, Pope Francis singles out Trajan’s passage from the Commedia precisely as an example of service in mercy:
“[There] are several episodes and individuals in the Comedy which show that no one on earth is precluded from this path [to true happiness]. There is the emperor Trajan, a pagan who nonetheless is placed in heaven … Trajan’s gesture of charity towards a ‘poor widow’ … [is] not only sig[n] of God’s infinite mercy, but also confirm[s] that human beings remain ever free to choose which path to follow and which destiny to embrace.” [16]
Trajan’s ultimate disposition of the case is unknown—or at least Dante does not tell it, implicitly confirming his view that Trajan took the case with a sincere interest and not for the political effect that its outcome may have. Dante emphasizes instead the gratuity of Trajan’s conduct and his decision to give the widow her due, whichever this due may have been.
Castille’s Siete Partidas—a legal Code contemporaneous of Dante—required judges to be “without ill ambition, wise … and [that] they refrain from sin and … act with piety and justice” (“[P]ara ser jueces … que sean … sin mala cobdicia. E que hayan sabiduría … E … [que se] guard[en] … de fazer pecado e auran en si piedad, e justicia. ”)`[17] Dante’s portrait of Trajan accords with that standard and speaks also to those wishing for the restoration of the classical tradition in the practice of law. An author rightly recommended on these shores has said that the enemies of the practice of law include the jurist’s desire to become a social engineer or agent of political change[18] (one is tempted to add celebrity to the list). The jurist is neither, his field more limited and yet, as Dante suggests, so noble.
—Aníbal Sabater
[1] S.Th., II-II, q. 162, a. 3, ad. 4.
[2] See the reference to Judge Nino in the first piece of this series.
[3] Pur. X. While seemingly still and quiet, the sculptures speak to the heart of the onlooker.
[4] Dante actually goes with the more archaic translation “Ecce Ancilla Dei.” Pur. X, 44.
[5] According to the same legend, an impressed Saint Gregory the Great prayed for and obtained Trajan’s salvation on the strength of his virtuous deed.
[6] Roman History, Epitome of Book LXVIII, chapter 10.
[7] De Monarchia, I, ix; and Par. XXX, 118 and ff.
[8] S.Th., II-II, q. 58, a. 1; Digest. i, 1.
[9] S.Th., II-II, q. 161, a. 5, ad. 1.
[10] Purg., XI, 79.
[11] Aquinas: “Mercy is a heartfelt sympathy for another’s distress, impelling us to succor him if we can.” S.Th., II-II, q. 30, a. 1.
[12] S.Th., I, q. 21, a. 4.
[13] To recall, the sculptures are animated.
[14] Pur. X, 82-89. Translation is the author’s.
[15] Id., 89-93. Translation is also the author’s.
[16] Candor Lux Aeterna, 5 (footnote omitted).
[17] Tercera Partida, Título IV, Ley III.
[18] Javier Hervada, What is Law? The Modern Response of Juridical Realism (translated by William L. Daniel) 39-41 & 107-123 (2007).
