Doi: https://doi.org/10.17398/2340-4256.15.221
RESTITUTION AND CORRECTIVE JUSTICE IN THE ARISTOTELIAN
SCHOLASTIC TRADITION: THE CONTRIBUTION OF FRANCISCO SUÁREZ (1548-1617)*
RESTITUCIÓN Y JUSTICIA CORRECTIVA EN LA TRADICIÓN ARISTOTÉLICa
ESCOLÁSTICA: el aporte de FRANCISCO SUÁREZ (1548-1617)
Sebastián Contreras Aguirre
Universidad
de los Andes, Chile
Recibido: 05/11/2019 Aceptado: 22/12/2019
Abstract
This article examines the concept of corrective
justice in the Aristotelian Scholastic tradition, with a particular focus on
the philosophy of Francisco Suárez. Despite the value of restitution in
classical legal theory, corrective justice cannot be defined as a merely
restorative virtue. The Aristotelian Scholastic tradition assigns to it other
important objectives, such as the establishment of the equivalence in
contractual benefits, the fulfillment of agreements in good faith, and the
respect for other people’s rights. Suárez, unlike the rest of the scholastics,
has examined with great attention the nonrestitutive aspect of the commutative
justice. In his proposal, corrective justice fulfills an institutive and
directive function in private dealings. According to Suárez, a virtue with
those characteristics doubtlessly exceeds the ambit of reparation.
Keywords: Aristotle, corrective justice, Francisco
Suárez, restitution, synállagma/ synallágmata, unfair enrichment.
Resumen
Este trabajo
estudia el concepto de justicia correctiva de la tradición aristotélica
escolástica, centrándose especialmente en la filosofía de Francisco Suárez. Más
allá del valor que tiene la restitución en la teoría jurídica de los autores
clásicos, lo justo correctivo no puede definirse solo por su aspecto
reparatorio. La tradición aristotélica escolástica confiere a la justicia
correctiva otros fines más importantes, como el establecimiento de la
equivalencia de las prestaciones contractuales, el cumplimiento de buena fe de los
actos y contratos, así como el respeto de los derechos de los demás. Suárez, a
diferencia del resto de los escolásticos, ha examinado con atención el aspecto
no restitutorio de lo justo conmutativo. Como se verá, para Suárez la justicia
correctiva, que tiene una función instituyente y directiva en las
conmutaciones, excede con mucho el ámbito de la reparación.
Palabras clave: Aristóteles, enriquecimiento injusto,
Francisco Suárez, justicia correctiva, restitución, synállagma/synallágmata.
1. Introduction
Μὴ πλούτει κακῶς.[1] The value of this
apothegm attributed to Thales of Miletus –who was allegedly the greatest of the
Seven Sages– is not only historically, but also philosophically significant. It
is safe to say that this maxim synthetizes classical ethics. Under the concept
of classical ethics, I understand that moral theory which is rooted in
Aristotle’s works, was subsequently developed by Albertus Magnus, Thomas
Aquinas, John Duns Scotus and their followers, and which reached its culmination
in the philosophical project of the Second Scholasticism.
The apothegm warns
against pleonexía (πλεονεξία), i.e. the
excessive greed for wealth, the cause of many ills, which was described
by Greek philosophers as an obstacle to justice.[2] Indeed, if justice
is a ‘virtue’, a ‘proportion’, and an ‘equality’, pleonexia is, on the
contrary, a ‘vice’, an ‘excess’, and an ‘abuse’. Thales’ axiom is equivalent to
the precept that forbids unjust enrichment.[3] According to this
rule, the proportion of profit (κέρδος) and loss (ζημία) standing between the parties of the synállagma
(συνάλλαγμα) may not unduly harm anyone.[4] It is proper of
corrective justice to guarantee reciprocity, to prevent illicit gains, to
institute the specific equality of commutations, and to prevent pleonexia.
According to classical thinkers, corrective justice is the quintessence of the
cardinal virtue of justice, for it gives each strictly their own. This kind of
justice has mainly a constructive function: it renders man good,[5] it
renders him praiseworthy,[6] it renders
his works good.[7] In the terms of
Francisco Suárez, although corrective justice is a kind of remedy for
inequality, it is, first and foremost, a rule that orders acts and arranges
contracts. This is how the so-called Eximius puts it in his still unpublished
commentary on Aristotle’s Ethica.[8]
Pleonexia involves more than the insatiable greed for
profit; “it also includes a desire to have more than I am entitled to [...] so
as to get the better of someone else.”[9] As to the meaning
of pleonexia in Aristotle’s philosophy, T. Irwin remarks that protecting people
from the harm derived from ambition is the hallmark of corrective justice.[10] O. Höffe argues
that the concepts of ‘commutative justice’ and ‘pleonexia’ go beyond the
economic sphere.[11] That is
certainly the case. According to the writings of Aristotle and Suárez, the
pleonectic desire induces wrongs to honor and safety –not only patrimonial
damages.[12]
Suárez uses the
terms ‘loss’, ‘profit’, ‘obligation to repair’, and ‘equality’ –among others–,
to signify the injustice of murder, to explain the duty of restitution of the
bribed official, to object to the denial of the agnatic rights, etc. The
Eximius, like Aristotle, thinks that any grievance entails a gain. Hence, a
defamation, an unfair attack or the abuse of the employee always makes the
offender richer. The offender becomes richer because he satisfies his
disorderly desire. Consequently, whoever acts in pursuit of his individual
interest and injures others, gains something and is unjustly enriched. To
gain, then, means to fulfill one’s desire.[13] In this sense,
whoever harms another to achieve their own goals gains by doing or
getting something he or she wants, or by trying to do so. Thence, this person
is obliged to restitute.[14] Francisco Suárez
knows that the concept of ‘profits’ derives from civil affairs, but he
understands that the scope of pleonexia exceeds the margins of patrimony.[15]
Suárez’s
elucidations of the nature of restitution predate the work of Hugo de Groot,
who is hailed as the architect of the theory of illicit enrichment.[16] Suárez’s theory on
particular justice sets in order the ideas of the other scholastics, fills
Aristotle’s intuitions with legal content, and lays the foundations of the
modern Law of Torts, in which, as E. Weinrib wrote, each contravention of
corrective justice implies one party’s gain at the other’s expense.[17]
This paper does not
intend to address all aspects of the scholastic doctrine of restitution. It
seeks to clarify the nature of corrective justice and the categories of
‘illicit gain’ and ‘restitution’ in the authors of the Second Scholasticism,
especially in Suárez’s philosophy, insofar as they interpret the Stagirite’s
moral theory. With that in view, this article has been divided as follows. In
the first place, it explains that reparation does not exhaust the ordering
function of corrective justice. Secondly, it describes the meaning of the
concepts of restitution and synallágmata in Aristotle’s writings. Thirdly,
it presents, in general terms, the Suárezian doctrine on corrective justice, to
end with the analysis of the Scholastic and Suárezian understanding of
restitution.
II. The corrective just and the duty of restitution in
the Aristotelian Scholastic tradition
The writings of
Suárez and other classical thinkers –Michael Ephesius, Thomas Aquinas,
Francisco de Vitoria, Domingo de Soto, Juan de la Peña, Melchor Cano, Pedro de
Aragón, etc.–, testify to the restitutive interpretation of corrective justice
within the classic tradition.[18] Despite their
reparative emphasis, Suárez, Aristotle or Aquinas probably thought that the
corrective just transcends the mere compensation. In contrast with them,
several scholastics and many other interpreters of the Stagirite have wrongly
reduced commutative justice to a virtue aimed at the reparation of the damages
derived from contracts.
Among the
scholastics, Salamanca professor Fernando de Roa paradigmatically instantiates
this reading of Aristotle. He holds that this virtue corrects (corrigere)
breached obligations and contracts.[19] I do not intend to
excuse Roa, yet, Aristotle’s use of some concepts (e.g., ‘harm’, ‘inequality’,
‘victim’, when discussing the act by which someone kills and someone dies[20]) partially
justifies the exclusively reparative significance given to this virtue. The
rectifying vision of corrective justice has been defended too by contemporary
authors like F. Ricken, D. Ross, C. Despotopoulos, A. Kaufmann, F. Miller and
A. MacIntyre, who end up restricting the Aristotelian idea of the commutative
just to the act of reparation.[21]
In its rectifying
version, this virtue “looks only to the [...] injury” and encloses “a bipolar
conception of injustice as a violation of quantitative equality [...] and a
bipolar conception of the remedy as the annulment of the parties’ correlative
gain and loss.”[22] Simultaneously,
‘remedial justice’, as it is also called,[23] “includes a
reference to the status of the parties and the voluntariness or involuntariness
of the act; it takes account of ‘moral and intellectual damages’ as well as of
physical or financial injury.”[24] It is added that
corrective justice is that which “rectifies or remedies inequalities which
arise in dealings [...] between individuals.”[25] Thereby, it is
defined as the virtue that only heeds the damage and its restoration.[26] Now, paraphrasing
Aristotle, it has been written that “corrective justice [...] covers the whole
sphere of what we should call civil and criminal.”[27] Thus, as Höffe
points out, this justice “is in turn subdivided into a ‘voluntary sector’, that
is, what is now called civil law [...] and an ‘involuntary sector’, or what we
call criminal law.”[28]
J. Pieper supports
an extremely restorative reading of the commutative just, far more radical than
Roa’s position. Pieper constructs his explanation of corrective justice around
the assumption that the act of this virtue is restitution (not without
first criticizing a certain doctrine which, in his opinion, attempts to weaken
the value of this theorem).[29] To my mind,
Pieper’s approach, which rules out any corrective act other than restitution,[30] contradicts the
most basic rules of internal coherence with which any theory on particular
justice must comply.
In line with
Aristotle and St. Thomas, Pieper holds that the differences between the modes
of partial justice –viz., the justice that directs the distribution of common
goods and the justice that regulates commutations between private individuals–
fail to draw any real distinction between these subclasses of the virtue of
justice, because, despite their dissimilarities, both are ordered to the good
of private individuals. Moreover, both corrective and distributive justice fall
within what Aristotle identifies as the habit that deals with honor, money and
security.[31] Likewise, both
types of justice coincide in the ideal of equity and in the kind of opposed
injustice, namely, the injury that proceeds from pleonexia.[32] Hence, because
“injustices in the political community (e.g., acts of violence, robberies, and
the like) happen because of the love of honor and money,”[33] Aquinas writes
that
[...] particular justice
<not only> regards those things that take into account social
intercourse, like honor, money, whatever pertains to the safety or harm to the
body, and so on […] <but it also considers> pleasure consequent on the
profit by which a man takes his neighbor’s goods beyond what he ought.[34]
Even though Pieper
describes distributive and corrective justice as forms of the same virtue, i.e.
the justice that gives to particular subjects their due,[35] he does not define
the acts of these kinds of partial justice according to the structure of two
species within the same genus. According to Pieper’s account –and to the
rectifying interpretation of Aristotle in general–, whereas the geometric just
consists in the distribution that follows the criteria of necessity and merits,
the arithmetic just consists in the mere reparation of illicit enrichment.[36] The
argumentative imbalance is apparent. What is just in distributions has a ‘constructive’
and ‘positive’ attribute, insofar it renders man and his actions good, like the
other virtues of character; why should the arithmetical just have, in contrast
to the distributive just, only a ‘negative’ quality that supposes the
re-establishment of the state of equality that existed before the injury? It
could even be argued that, if the vice of both types of justice consists of the
same thing –i.e. the “special injustice <which> is concerned with honour
or wealth or safety [...] and <that> aims at the pleasure that results
from making a profit”[37]–, the act of these
modes of virtue should match. Suárez supports this identification by saying
that the act of the two kinds of particular justice is always an act of
direction (since it is proper of partial justice, in one case, to direct
the distributions, and, in the other, to direct the commutations).[38]
J. Finnis
criticizes the rectifying reading of the corrective just (truly, Finnis
criticizes Aristotle’s explanation of the commutative just). He maintains that
the strict virtue of giving each their due is neither simply restitutive nor is
it indifferent with respect to the obligation to repair the damages to third
parties; more precisely, corrective justice governs all dealings that can take
place in the vast field of human interaction.[39] This account is
conceptually limited by the subjection of correction to the principle of equality
in recompense, which is, Finnis says, “the guiding principle in all
voluntary and non-voluntary transactions.”[40]
Anyhow, this is not
a novelty of Finnis’ theory of justice. Suárez had already warned that
corrective justice, as a true virtue, is defined more properly by its
constructive quality than by its reparative dimension (over and above the duty
to return goods, the duty to observe in conscience the rights of others is
proper to corrective justice[41]). Thereby, Suárez
remarks in the Tractatus quartus that this “is the justice standing
among private persons,”[42] who are obviously
related not only through the injury. Suárez adds there that the corrective just
is defined firstly by its constituent character: it renders commutations righteous.[43] Suárez did
not come up with this doctrine. Medieval and Premodern Scholastics had already
discussed it at length.
Aquinas, for
example, teaches that corrective justice “directs commutations that can take
place between two persons.”[44] Alonso de la
Veracruz, the so-called protector of the Indians,[45] maintains that “in
the buying and selling, commutative justice is present, provided that neither
fraud nor deceit intervenes.”[46] Regarding the
contracts of sale and purchase signed between Indians and Spaniards, this
disciple of Vitoria adds that, because these are legitimate businesses, “this
justice is present in them.”[47] He thus highlights
what could be understood as the extra-restitutive aspect of this virtue, which
explains the regulatory function that corrective justice has in all
private relations –and not only in view
of offenses and defrauded agreements. Therefore, far from being limited to
restitution, this justice will be defined by its ability to render deals and
contracts compulsory.[48] Dealings will be
valid as synallagmatic nexuses only when the desired equivalence of commuted
things has been achieved, as Francisco García formulates it.[49]
Finally, Juan de
Zapata y Sandoval holds, on the one hand, that the ordering principle of the
corrective just “concerns human coexistence,”[50] and, on the other
hand, that commutative justice, which guides contractual activity,[51] “establishes the
[...] rectitude of exchanges and other businesses.”[52] To affirm that
this justice concerns human coexistence underlines the necessity of the
transactions and other commutations for human flourishing. From this
background, Pedro de Oñate, who was perhaps the most outstanding of Suárez’s
students, teaches that the existence of contracts and of any synallagmatic relationships
is something that experience itself reveals as necessary.[53] From this view,
the Aristotelian-scholastic tradition teaches that the naturally political
character of man is manifested in the practice of commutation. Now, as it will
be shown below, Aristotle thinks interchanges could disappear owing to frauds,
to the contractual bad faith, to the unreasonable nullification of synallagmas,
and to unjustified doubts of the parties on the validity of their agreements.
III. Restitutio and synallágmata
in Aristotle’s philosophy
As I have
previously said, Aristotle seems not to circumscribe commutative justice to
restitution. He elaborates his theory of the corrective just on the basis of
the principle that justice is a virtue that establishes equalities.[54] By extending this
principle to the field of synallágmata (συναλλάγματα), we infer that commutative justice is the virtue that establishes the
equality of all contracts and transactions between private subjects.
Justice renders us
just agents,[55] it impels us to do
justice and to wish what is just, and moves us to use virtue for the benefit of
others,[56] which is a
difficult task.[57] The main
challenge, therefore, is to become virtuous and not only to adjust one’s own
conduct to duty (to put it in Kantian terminology). In similar fashion, justice
belongs to the beautiful things,[58] it saves the
equality in human dealings,[59] and it restrains
us from desiring the goods of others.[60] Overcoming greed
also belongs to justice.[61] Moreover, this
virtue commands us to “do good for the benefit of as many as possible.”[62] Its standard is
nobleness.[63] A virtue with
these characteristics can hardly be restricted to compensation alone. These and
other passages from the Aristotelian corpus show that corrective justice, like
the other moral virtues, has a perfective (and not only remedial) function in
the acts and character of persons.
As R. Polansky writes,
Aristotle does not really speak of ‘rectificatory justice’, but rather of ‘the
just in commutations’. However, he refers to τὸ διορθωτικόν, often understood as ‘the corrective’ or ‘the
rectifying’.[64] In Polansky’s
view, this translation seems to have misled scholars. Aristotle’s concern is
with the just in commutations and not solely with correcting them when they go
wrong, as broadly assumed.[65] Thus, although it
has been widely understood as a rectifying virtue, for “it typically comes into
play after an injustice has arisen [...] it also gets things straight in
advance, as in drawing up a contract.”[66]
Many reasons render
improbable the reduction of the Aristotelian virtue of the commutative justice
to restitution. Just to mention some: the Aristotelian doctrine of the private
contract (συνθήκη), which is a law for the
parties;[67] the broad sense
that Aristotle assigns to the mandate to give each person their due;[68] his censure of
unfair enrichment (hand in hand with the assertion that retaining what belongs
to someone else is unjust[69]); to say nothing
of his defense of the obligatory character of the given word. On the other
hand, the Stagirite takes for granted the validity of contracts.[70] He affirms that if
we begin to invalidate our agreements with others, “there will be an end to
social relationships.”[71]
The precept of
giving each one their due is related to the idea that the upright man does not
do what could be harmful or inconvenient to others. In this context, it is
clear that giving each one their due not only imposes a reparation, i.e. the
equalization of the situation of the parties after the damage or noncompliance
has occurred. It also imposes the good faith and the equivalency of what is
handed over and what is received. G. Prisco, wanting to explain the
Aristotelian thesis of contractual justice, writes that “<according to the
order of the corrective just> the will of the contracting parties is to
receive a thing equivalent to that which each one gives.”[72] The parties wish
that the agreement be equal from the very start (so, according to the division
of justice ‘invented by Aristotle’, the just contract will not give more
profits to one nor heavier burdens to the other than those due[73]).
The contracts –which
are balances of interests in the Aristotelian typology–, will be fair
only if the parties equally participate in profits and losses. The idea of
‘profit’ is one of the central concepts of the Aristotelian doctrine of
contracts. Among other things, this concept allows Aristotle to explain the
injustice of commutative relationships, the vice of pleonexia, the unfair
enrichment, the binding force (and presumption of validity) of legitimately
concluded contracts, the idea of inequity, and so on. While the notion of
‘gain’ proceeds from voluntary transactions (τά ἑκούσια συναλλάγματα), by analogy it can be used to describe the
type of imbalance that harm/injury causes within involuntary commutations (συναλλάγματα ἀκούσια).[74]
Aristotle assumes
that all harm involves an illicit gain.[75] He writes that “we
speak of profit for the attacker who wounded his victim [...] even if that is
not the proper word for some cases.”[76] The reason is
simple: just like the unjust man becomes richer because of injustice, so does
the offender become richer because of the offense.[77] Under the logic of
loss and profit, Aristotle argues that to have more implies inequity, so that
if justice is a sort of equality, injustice is a sort of inequality.[78] For all these reasons,
he notes that
[…] when men apportion to
themselves the larger share of good things and the less share of evil things,
this is unequal, and we say that injustice is done and suffered [...]
therefore, the virtue of justice is a mean betwixt excess and defect, much and
little. By doing injustice the unjust man receives more; through suffering
injustice, the wronged man receives less. The mean state betwixt this more and
less is justice; and such a mean is equality.[79]
In breached
contracts, one of the parties has become richer at the expense of the
impoverishment of the other.[80] This produces a
certain ‘displacement’ of goods from one hand to another.[81] Then, in order to
re-establish the commutative order that existed before the unjustified enrichment,
a judge will have to intervene, at least as stated in the Ethica Nicomachea
–in the Ethica Eudemia, Aristotle seems to support a different thesis:
it is reasonable for the parties themselves to resolve the impasse that
confronts them.[82]
The overreacher
(πλεονέκτης),[83] i.e. “[...]
<that one> who takes more than his due,”[84] must surrender to
the offended party what is theirs. For this goal, the judge will order the
restitution. Now, forced restitution is not, properly speaking, an act of
virtue. As it is said in the Artis rhetoricæ, men act voluntarily when
they know what they do and do not act under compulsion.[85] Therefore, if the
act of restitution is not voluntary, then it will not be an act of justice
either. Given that, how could corrective justice be defined by an act that does
not perfect the person or make him genuinely good?
Aristotle adds that
it is not properly a morally good action to fulfill an agreement or to deliver
what is due because of fear or of the imposition of the tribunal. Even though
such acts may be called materialiter just, they will not be such formaliter.
Here, at best, one can speak of an accidental justice.[86] Moreover, the
judge intervenes to remedy the imbalance between the profits and losses of the
parties, but, what if no one wins or loses? What if the buyer has paid what is
due to the seller and he has delivered the agreed good to the buyer? If no one
obtains benefits or suffers losses, i.e. if the rights of the parties, or the
parties themselves, do not suffer damages of any kind, what role will the
justice have, if any at all? It seems clear to me that the equivalence of the
reciprocal obligations and the execution in good faith of the contract by those
to whom the synallagma obliges is the task of commutative virtue.
The corrective
justice has a positive and a negative aspect. The former refers to the mandate
to seek the good and to contribute to the further development of everyone else.
The latter, on the other side, relates to the mandate not to harm, the
contravention of which gives rise to the obligation to restitute. Aristotle’s
thesis echoes the ancient definition of justice as the virtue that orders declinare
a malo et facere bonum. That being so, the virtuous life –the one that the
righteous lives– is only achieved by rejecting vice and doing just things.[87] As a consequence,
Aristotle –or the authentic author of Œconomica– states that life
according to justice consists in moving away from the dishonorable and in doing
that which is good and honorable.[88]
Aristotle’s
presumably ‘rectifying’ explanation reflects more the legal system in force in
Classical Greece rather than reasons of a philosophical nature. In ancient
Greek law, the notions of responsibility, equality, obligationes contractæ
–quoquo modo contractæ, in Gaius’ words–, etc., seem to have a
reparative origin.[89] As specialists
point out, ancient Greek law is more concerned with handling guilt than with
the contractual freedom or autonomy of will. Thus, for the Greek-Classical
legal system, the main effect of legal acts and facts is responsibility;
possibly, the normative system of Classical Greece was almost solely composed
of prohibitive rules; this would explain the Aristotelian idea that the just
man is the one who does not break the law.[90]
In this
perspective, the obligation deriving from the involuntary synallagma
constitutes the first analogue of the set of duties that take place in
contracts and commutative dealings. From my point of view, this could explain
Aristotle’s special concern for the restorative aspect of corrective justice, a
concern revealed in the emphasis that the author puts in the natural iniquity
of some commutations, such as adultery, theft and
murder, actions which, in another place, he describes as acts whose names
“automatically include baseness” (and which here are treated as commutative
injustices).[91] There is no doubt
that, in the presence of damages, this justice will fundamentally have a
restitutive function, which does not mean that the ‘corrective’ character of
this virtue is exhausted, for Aristotle, with the compensation. As I see it,
this justice is called ‘corrective’ not really because it ‘corrects’ but
because it makes the synallagmatic nexus ‘straight’, ‘correct’, even ‘healthy’.
For this reason, medieval authors understood this virtue as regulativa sive
correctiva, in commutatibus directiva.
The Aristotelian
exposition of corrective justice is based on the relationship between
diorthotic justice and synallagma: diorthotic justice is the habit that
regulates synallágmata. This is what Aristotle states in Ethica Ε 4: “Τὸ δὲ λοιπὸν ἓν τὸ διορθωτικόν, ὃ γίνεται ἐν τοῖς συναλλάγμασι καὶ τοῖς ἑκουσίοις καὶ τοῖς ἀκουσίοις” [“The remaining one is the justice that gets
things straight, which comes about in transactions of both the willing and the
unwilling sort”[92]]. Before addressing
the question of the nature of synallagmas, it is worth clarifying that, in
strict terms, it is more appropriate to speak of ‘corrective justice’ than of
‘commutative justice’. Aristotle is thinking of τὸ διορθωτικόν δίκαιον, a term that
Robert Grosseteste, in the first decades of the 13th century, translates as iustum
directivum.[93] Grosseteste thus
implies that the corrective just comprehends both the fulfillment/breach of
covenants and contracts, and the duty to compensate that falls on the offender
because of the harm he has caused to others.
A medieval
interpretation of Aristotle that does not restrict corrective justice to
restitution is offered by the Arabic version of the Ethica Nicomachea.
The Arabic translation of Ethica Ε 4 introduces the
concepts of ‘health’, ‘integrity’, ‘perfection’ (the term used is ‘ṣaḥīḥ’) into
its description of the corrective just. Arguably, this conceptual background –as
well as the cultural preconceptions resulting from the Koranic view of justice–
obliges the translator to present corrective justice as that which
directs/ordinates social relations and not only commercial exchanges and
acts of restitution, which is arguably a correct interpretation of Aristotle’s
mind.[94]
The distinction
between voluntary and involuntary synallagmas follows the logic of efficient
causality. In other words, the distinction between voluntary and involuntary
commutations is that, in the former, the origin of the synallagmatic
relationship is voluntary (the man who is subsequently injured has freely
entered into that relationship),[95] unlike the
equivocally called ‘involuntary contracts’, which is an ‘elegant expression’
but ‘inappropriate’, as Vico notes, for it does not help to understand the
nature of the harmful acts that are subject to the regulation of the
commutative justice.[96]
The double mode of
the synallagmas of Ethica Nicomachea corresponds to the double cause of
obligations mentioned in Artis rhetoricæ. According to the structure of
text, the analysis of the different nature of common and particular law begins
with the assertion that all transactions are reduced to the categories
of ‘delict’
(ἀδίκημα) and ‘right action’ (δικαίωμα).[97] The same
distinction contract/delict is developed, mutatis mutandis, by the
Roman jurists –Labeo even remarks that the Latin notion of voluntary contract, ultro
citroque obligatio, coincides with what the Greeks call synállagma
(“quod Græci συνάλλαγμα vocant”).[98]
Gaius, certainly
under the influence of Greek Law and of Aristotle (or the Peripatetics),[99] holds that the two
great and only sources of obligations are the delict and the contract.[100] The Corpus
iuris civilis, in the same line, does not limit the formula contrahere
to convention. As a result, according to the Justinian compilation, delicts and
obligations derived from insult, injury, damage, prejudice, etc., are also
‘contracted’. Thereupon, the notion of synállagma/contractus, generally
used in commercial transactions, often designates among ancient thinkers “any
type of legal obligation regardless of its creation, be it an offense or a
contract.”[101] Synállagma is, hence, ‘the contracted’, that idea that is expressed with the
passive participle of the verb contrahere and not the contract-consensus.
G. Bien speaks of
‘relationship’ in order to avoid difficulties of defining synállagma as
‘exchange’, ‘transaction’ or ‘intercourse’,[102] terms that, as F.
Chénedé observes, do not accurately express the Aristotelian notion of synállagma.[103] Strictly, synállagma
is nothing more than any juridically cognizable relation that exists between
two private individuals by the free act of one or both.[104] This reason has
led some contemporary Aristotelians to speak of ‘interactions’.[105] Because of the
above considerations, R. Martini asserts that the most appropriate thing is to
give the Aristotelian term synallágmata the meaning of ‘intersubjective
relations’,[106] and F. Schulz
stresses that Aristotle simply uses the term synallágmata in the sense
of ‘acts which entail an obligation’.[107]
Michael of Ephesus
advances a proposal to overcome the conceptual ambiguity regarding the diverse
nature of synallagmatic obligations, ex contractu, in some cases, and ex
delicto, in others. According to Ephesius, “the Ancients use the term synallágmata
not only to speak about legal <commutations> that have their origin in
mutual agreements, but also to <refer to> acts prohibited by law.”[108] However, the
effort of this Aristotelian seems to have been lost in time. By the end of the
Middle Ages, almost no jurist was interested in the study of the meaning of the
term synállagma, and, according to the reports of Francisco de Araújo,
at the dawn of Modernity, corrective justice is almost universally conceived as
the virtue governing agreements and conventions, to the point of defining it as
the justice that determines the debit of contracts and bilateral businesses.[109]
IV. Suárez, corrective justice and the obligation to
give each ONE HIS right
The historiography
of the reception of the synallágmata in the ius civile tradition
reveals the absolute unanimity of the consensualist reading of Aristotle
towards the end of the Middle Ages. Simultaneously, the thinkers of the time
frequently noticed that synállagma equates to a commercium.[110] This is an
indisputably trade-orientated comprehension of the Greco-Roman contractual
doctrine, which reaches its maximum development in Grotius.[111] Unsurprisingly,
Pedro de Osma, the famous Salamanca Aristotelian of the 15th century, adheres
to this interpretation and defines synállagma in terms of agreement/ convention.[112]
Although it is not
the case of Suárez, whose commentary I will discuss next, it is worth noting
that other interpreters of Aristotle are more accurate when commenting the
legal ideas in the Ethica Nicomachea. Thereby, Camerarius, a German
humanist, managed to overcome the conceptual deadlock that derived from the
reductionist sense given over time to the synallágmata, which forced
modern interpreters to speak of involuntary contracts. With great philosophical
and philological precision, Camerarius describes corrective justice as that
which deals with ‘things that are contracted’ –and not with contracts
themselves. This justice, he adds, dictates the reciprocal obligations of the
parties, making ‘correct’ (in the sense noted above) the equality or
arithmetical measure of the duty which is object of this virtue.[113]
The Suárezian understanding
of corrective justice cannot be understood outside of this renewed
interpretation of the synallágmata. Suárez remains faithful to the
exegetical tradition initiated by Aquinas. Hence, he describes the corrective
just as the rule of contracts, just like Aquinas interpreted in a
commutative way the fifth book of the Ethica Nicomachea.[114] Thus, Suárez
states that corrective justice “is the one concerned with observing the right
of the other [...] in contracts and commutations, which are the acts that give
the name to this justice.”[115]
I include Suárez in
the catalog of commentators on Aristotle’s works because, as I said before, he
has left a commentary on each of the books of the Ethica, which is
preserved, along with some notes on the Magna moralia, in manuscript
lat. 6775 of the Bibliothèque Nationale de France. This codex –which remains
unpublished– groups together a set of lectures that Suárez, following the
disputation method, presumably delivered at the Collegio Romano during the few
years he stayed there.
Although the codex
is not as insightful as De legibus ac Deo legislatore or Defensio
fidei catholicæ, it is nevertheless a very interesting work, because it
accounts for Suárez’s effort to highlight the strictly Aristotelian elements of
the natural law tradition, for example, the principle that holds that it is
better to act justly than to know what virtue is[116] (in Aristotle’s
own words, “We desire to know virtue; but at the same time we desire to be
virtuous ourselves”[117]). In Suárez’s
manuscript, corrective justice is presented as the order in commutations.
Every commutation, Suárez says, entails a handing over and a retribution:
whoever hands over something receives something else in return. Now, what is
handed over and what is received must share a common measure. If corrective
justice did not order the equivalence of benefits, there would be no contracts
or commutative relations of any kind, since no one enters into a contract at
the expense of his person or his patrimony. On the subject of involuntary
dealings, the codex merely affirms that corrective justice is also the norm for
this kind of synallagma, since this virtue directs each and every one of the
legal relations occurring between private persons.[118] The vast majority
of Aristotle’s commentators and of the late scholastics who wrote treatises on De
legibus and De iure et iustitia, say scarcely anything else. They
only add, like Suárez, that most human affairs that give rise to co-respective
obligations are born from the will.[119]
Insofar as it is a
general virtue, justice is the habit that commands respect for the rights of
others and for the practice of equity.[120] The act of giving
each one their due is the ‘task of justice’,[121] which, as in other
moral virtues, is defined more by the internal will than by external conduct.[122] For this reason,
Suárez argues that external acts are not properly called good; their honesty
rather depends on the internal acts.[123] He sums up saying
that “<external acts> can sometimes be called good and sometimes bad,
<but only> because of the internal acts from which they originate.”[124] Additionally,
Suárez explains that acts of justice are difficult.[125] Yet, when we
achieve virtue, “we act justly with promptness, ease and constancy.”[126]
Each virtue is
defined through its object. Thus, if corrective justice is a true virtue, it
must have an object of its own. Moreover, if it is a true kind of justice, its
object must be different from that of legal justice and distributive justice.
Such an object, according to Suárez, is the dominion that each person has over
their things (something like one’s own dominion over one’s own things).[127] Consequently,
Suárez postulates that:
[...] each person holds their
own dominion over their own things. A particular community or the whole society
has also some ownership or dominion over certain things, in the way that the
private person <has dominion over what is theirs>. Even the king, <who
is a> public person, has a dominion [...] over the things of which he is a
special lord. This is the right that commutative justice […] considers and respects,
whatever person or community he belongs to. Well, for a right to be <in the
hands> of the whole community, of a public person or of a private individual
is something rather material and accidental, because <that right, whatever
it is,> always has the same condition.[128]
In a complementary
way, it is read in De iustitia et iure:
[...] if a citizen usurps the things common to
the republic, that is, if he steals them, he commits a sin against commutative
justice [...] therefore, he is obliged to restitute <what he stole>,
because restitution, according to the doctrine of Aquinas, is the proper act of
commutative justice. <Likewise,> [...] the republic owns its goods in the
same way as citizens <own> theirs. Thus, justice itself obliges us to
respect this right in the same way <that it obliges us to respect the
dominion of the particular person>.[129]
Commutative
equality is arithmetic, i.e. it is an equality from thing to thing. This
is how Suárez expresses it in several passages of De legibus ac Deo
legislatore.[130] That being so, the
nature of the parties is of corrective importance only when the situation of
the transgressor/delinquent/offender increases the magnitude of the injury and
only with a view to reparation.
The ideal of justice, to give to each one their due, is fully realized
in corrective justice. Suárez points out that we are discussing here the
justice of civil subject-matters, which does not take into account the
singularities of the parties, but only the parity of the obligations. Hence,
Suárez teaches that this special virtue is that which attributes to each one
their own right.[131]
Suárez’s trade-bias
of the corrective justice can be observed, for example, in De iustitia Dei.
Here the author affirms that “the proper and adequate subject-matter of
commutative justice –as the name itself declares it– is the mutual handing over
and reception <of something>, which is a certain commutation.”[132] Now, “the formal
object of this justice consists in the equity of what is given and what is
received.”[133] When the relation of
obligations is not equitable, that is to say, when profits and losses are not
proportionate, commutative justice imposes the duty to turn that inequality
into equity.[134] In Suárez’s
own words,
This is how Aristotle explains
the object and reason of justice in the Ethica Nicomachea, <a line of
arguments> which leads him to state that commutative justice deals only with
three genres of goods, namely money, honor and health –only in these is equity
constituted or respected– [...] <Aristotle> adds [...] that <the
obligation arising from commutative justice> exists in spontaneous exchanges
<that is, in those whose principle is the will of the parties> and in the
injustice perpetrated involuntarily among men.[135]
The principle
governing the fairness among the parties’ considerations is called the principle
of equivalence. The role of this principle in Suárez’s theory of contracts
shows that he does not grasp corrective justice as merely reparative. He
remarks that commutative justice institutes the legal relations among
private persons.[136] Therefore, the
proportion that defines commutative relations must already exist at the moment
of the celebration of the act or contract. Suárez does not say so, but it is
clear that the parties of the agreement expect that the ratio of profit and
loss that binds them is adequate from its origin.
V. The Scholastic and
Suárezian theory of restitution
As
it has been said above, ‘equality’, ‘injury’, ‘unjustified enrichment’,
‘benefits equivalence’, etc., are central concepts in the Aristotelian and
Scholastic theory of corrective justice. The same is true of Aristotle’s notion
of synallagma. Undoubtedly, compensation for illicit profits is an important
factor in the practical philosophy of classic thinkers, but his legal theory is
more interested in the execution of contracts in good faith, in the
equitableness of the parties, in the respect for others’ rights, and in the
fulfillment of the given word and of the freely contracted obligations. Since
this constructive/positive aspect of corrective justice has been dealt with
extensively in the previous sections, I will devote this last part to the
strict problem of restitution.
Similar
to other scholastics, Francisco Suárez constructs his ethics of restitution
starting from the concept of unjust enrichment; like the Stagirite, Suárez
gives to the idea of illicit gains the broadest possible sense, only
restricting it to the infliction of some wrong-doing of a commutative nature.
Accordingly, he maintains that whoever injures someone without a proportionate
reason, profits in some way from it; hence, they must restitute.[137]
Bartolomé
Carranza, the famous Toledo archbishop who was accused of heresy by the Holy
Office, sums up the Aristotelian Scholastic doctrine of restitution in a very
simple principle: if I have not become richer, I am not obliged to
compensate.[138]
Carranza adds that any injury to others’ rights requires compensation,
regardless of whether the offender has obtained an economic benefit from it.[139]
Suárez, whose conception of restitution depends on a kind of general duty of
respecting the property of others –the
Eximius thinks that respect for others’ dominion is the main subject matter of
the corrective just– completes Carranza’s thesis by saying that, on account of
commutative justice, no one is obliged to renounce what is theirs unless the
common good requires it.[140]
Save for this last motivation, any undue transfer of goods or values from one
person to another is unfair, so that, whenever one takes what is alien without
a just cause, it must be returned.[141]
In this regard, Suárez explains that:
[...] the same thing
<said about voluntary dealings> can be said [...] of debts that originate
between men by involuntary actions or passions and by offending actions. The
reason is that [...] when someone hurts another or damages their honor or fame,
etc., it affects their domain [...] thereby damaging <also> the thing of
which <the other> had in domain or possession. Now, the same virtue of
justice provides that <the offender> is obliged either to reinstate the
right or the thing when possible or to return something equivalent if the due
estimation proceeds.[142]
In
Suárez’s terms, to restitute is tantamount to paying what is due.[143]
As it is well known, the legal notion of payment is not limited to the delivery
of a sum of money to a seller or to the opposite party of a commercial
transaction. Payment is one of the many modes of extinguishing an obligation.
This being so, the person who restitutes, pays, because, when making the
payment, the debtor fulfills the duty that kept him synallagmatically bound to
the creditor. Even if they come from classical Roman Law, the concepts of
‘payment’, ‘commutative duties’, ‘debit’ and ‘extinction of obligations’ were
significantly enriched in the Spanish Scholasticism, especially thanks to the
work of Francisco de Vitoria, Domingo de Soto, Luis de Molina and Suárez
himself. In view of their thorough studies, the late scholastics are deemed as
an antecedent of the French jurists’ doctrine on civil obligations, ideas which
are embodied, to this day, in the Napoleonic Civil Code.
As
regards the Law of Restitution, modern Civil Law owes much to the scholastic
theologians.[144]
As Th. Duve writes, before Domingo de Soto, the tradition of ius civile
“had never [...] developed a general theory of restitution.”[145]
Similarly, J. Schumpeter underlines the lack of originality of Grotius,
Pufendorf and other modern jurists in comparison to the richness of Second
Scholasticism’s ethics and economic theory.[146]
Without downplaying the role of the Spanish Scholastics in the History of Law,
I think Schumpeter’s judgment unduly disregards the efforts of the authors of
the Modern School of Natural Law and the Codification Fathers. However, it must
be said that the late scholastics dealt with each of the aspects of the current
civil liability system.[147]
Suárez
conceives restitution as the act through which an offense is brought to an end.[148]
All wrongs, strictly speaking, consist of a violation of the right to property.
Just as the Suárezian notion of illicit enrichment is very broad, so is the
notion of property. We are not only the owners of external goods. We also have
a (certain) right of ownership over honor, life, integrity, etc. As a result,
Suárez understands corrective justice as a tool to protect the right of
ownership or the right that acts as such, as mentioned in the previous
section. Now, because restitution is a reparatory action –‘a remedy’ in terms
of common law jurists–, it cannot be imposed on someone who has not
inflicted any patrimonial or extra-patrimonial damage. The Spanish scholastics
consider the existence of a real injury to the person or property of others the
main requirement for the action for restitution. Therefore, Tomás de Mercado,
one of the leading expositors on the Law of Contracts of the Scholastic
tradition, maintains that restitution will not take place if no one has
unfairly taken somebody’s property.[149]
The
restitution is deemed fulfilled even when the offender, against his will,
compensates the offended, or when the debtor pays the creditor without wanting
to do so. As Suárez writes,
Whoever performs an
act <such as the restitution> without noticing it or against his will, is
not obliged to do so again [...] <Thus,> even if he does not want to, if
the debtor restitutes, he will be free from the burden of repairing. On the
other side, if the tithe has been paid or rather has been taken by force [...] one
is not obliged to pay it again. Even if someone has given alms while drunk, his
obligation ceases [...] As far as the duty to repay is concerned, it is
important to know that it disappears [...] <not because a moral principle
has been fulfilled, but because> the debt has been extinguished, even if the
debtor has been forced to pay, since <as the classical writers have
taught> the will of the debtor is not always necessary for a debt to
disappear.[150]
The
Suárezian explanation is, one might say, that of strict positive law, since
moral principles are not properly observed through an act which, although good
before human law, is badly performed from the point of view of virtue. With
Suárez’s words, “although with a good act in itself, but badly performed, a
natural law command can be fulfilled, that does not mean that the whole natural
law is fulfilled [i.e. that one acts according to it].”[151]
The (right) intention required for accordance with moral norms is not required
in positive human law, where the material performance of the due act suffices
to extinguish the obligation. As a consequence, in the realm of human law –which
cannot command every act of virtue or prohibit every single vice, and which is
dictated for the average citizen–, the malice of the act of restitution spoils
its legal rightness only when it is prohibited by the law itself.[152]
Aristotle,
Suárez and the scholastics painstakingly define the nature and conditions of
the commutative just in order to clearly differentiate illicit gains
from justified acts of enrichment at the expense of another; in other
words, not every juridically relevant enrichment stems from pleonexia. Current
Civil Codes establish various hypotheses of ‘justified’ enrichment, such as the
possibility that reciprocal benefits in a sale are not commutatively
equivalent. This is not an innovation of Civil Law’s modern jurists;
unsurprisingly, this and other hypotheses of ‘justified enrichment’ were
already advanced by the late scholastics. For instance, Suárez –who states that
restitution will only be required when the enriched party cannot justify his
conduct in any legal precept– explains that a sale should cause no læsio
enormis (i.e. the kind of contractual damage that jurists call ‘lesion
beyond moiety’), and that no contract should be sealed with fraud, force or
another vice of consent.
Suárez
did not write a unitary treatise on restitution, unlike other pre-modern scholastics.
However, in contrast to other thinkers of his time, he mediated
in a series of civil, political, canonical and economic lawsuits, many of which
touch more or less directly on the issue of restitution. Among those
arbitraments, gathered under the title Conselhos e pareceres, there is
one in which Suárez must review a case of agnatic rights. That cannot be a
coincide[153]nce.
Suárez mostly examines the nature of restitution apropos the duties derived from filiation, which are not renounceable,
as the Eximius repeats throughout his work. Indeed, on the basis of the
principle of ius cognationis non posse repudiari, Suárez observes in De
legibus ac Deo legislatore that the father must always restitute to his
child the rights which he has unjustifiably denied to his offspring.[154] The case I am referring to goes as follows:
A priest of good
name and reputation had an illicit relationship with a dissolute and corrupt
woman. She, however, was neither guarded nor watched by him at home, but
enjoyed a shrewd, mendacious, and audacious liberty within his house. The
presbyter had probable and reasonable motives to suspect that at that time the
woman was sleeping with an adolescent student, with whom she had a closer and
more frequent contact than what she confessed, saying that she did not do so
with malicious intent. But the presbyter knew with moral certainty that they
were lovers and that she intended to marry him. The woman conceived and gave
birth on a date when the child could have been born to the presbyter or to the
student [...] The presbyter was uncertain of the son’s filiation, and wishing
[...] to avoid the danger of revealing the fact and suffering infamy [...] he
deceitfully took the son away from the mother and entrusted him to the care of
the common income <of the community> so that he would be educated.[155]
The doubt about the filiation leads the interested parties to ask for
clarification as to whether or not the presbyter is obliged to recognize the
minor, despite the damage to his honor. Suárez’s answer to this question is that the priest is not obligated to
acknowledge the paternity over the child.[156] Second –here is the point of interest– Suárez
is asked to establish whether the priest is obligated to return to the
community the money he took from the ‘common income’ to meet the needs of the
child. It is certainly an issue of ‘difficult resolution’, Suárez says.[157] First of all, he notes, it will be necessary to determine whether the
child’s mother is poor or not. If she is poor, the priest is not bound to
restitution, because the economic needs of the mother and child justify, hic
et nunc, the use of another people’s money. Were the mother rich, the
priest would have to return to the community the money spent on the care of the
minor, because there would not be any grave need allowing him to feel in real
need.[158]
Let us suppose, for the sake of the argument, that the priest is indeed
the father of the minor. If so, he may not disavow his maintenance duty, for
the correlative right to receive nourishment is inalienable. The father
acquires this duty through the filiation itself. Suárez
affirms that filiation determines kinship relationships, from which a
series of rights and duties arise that are based on nothing more than the fact
of being a descendant of another by right of blood, adoption, institution, etc.[159]
The broad conception of unjust enrichment in the Aristotelian Scholastic
tradition –and the corresponding rules of restitution– applies to very diverse
cases. To name some examples, Suárez deals with the duty of restitution that weighs on the ruler who has
waged war without legitimate cause,[160] on a judge who condemned someone without attending to the minimum
procedural guarantees,[161] on the parties of a duel, on the workers who, under the pretext of
receiving an unjust pay, secretly and without motive lay their hand on the
goods of their lord.[162] Finally, if we expand Suárez’s line of thought to, for example, war, then, as the general rule of
restitution demands, we must conclude that war can only be declared if there is
a serious attack on the common good, that is, only if there is a real
wrong/injury.[163] This is the obvious inference, the only possible one,
since, as it has been said, there is no obligation to restore when no harm has
been caused to third parties.
6. Conclusion
Despite
the restitutive tinge in the Aristotelian and Scholastic explanation of
commutative justice, corrective justice transcends its remedial side. Those who
have tried to reduce corrective justice to reparation –saying, for example,
that the act of commutative justice is restitution– seem not to notice
that the structural unity of the two modes of partial justice obliges us to
explain both the positive/constructive aspect and the negative/reparatory
dimension of these virtues. Having said that, my impression is that Aristotle’s
and the Scholastics’ teaching on commutative justice does not limit the
equalizing function of this virtue to restitution. Among the thinkers belonging
to the Aristotelian Scholastic tradition, Francisco Suárez
occupies a central place. The Suárezian writings, including those still
unedited, account for the precise and sophisticated legal theory of this
author, who underlines, among other aspects, the directive/ instituting –and
not only reparatory– character of the cardinal virtue of justice.
The Aristotelian
distinction between voluntary and involuntary commutations has been adopted by
jurists of the stature of Gaius, whence it has been integrated in all systems
of Civil Law coming from the Justinian Law. Thus, from the voluntary and
involuntary synallagmas we proceed to the Roman obligations ex contractu
and ex delicto, which are the bases of the current systems of civil
liability.
Restitution is a
type of payment of what is due, to use Suárez’s
terminology. Any restitution supposes that the order of justice, which existed
prior to the illicit enrichment of one party at the expense of another, has to
be re-established. The idea of ‘illicit gain’ is fundamental for a correct
understanding of the classical theory of restitution. According to this theory,
any injury to third parties entails a sort of gain for the offender. Now, the
idea of ‘gain’ (‘illicit gain’ or ‘unjust enrichment’) exceeds the economic
field. For this reason, Aristotle, Aquinas, and Suárez
apply the rules of restitution to diverse spheres such as honor, life, and
physical integrity. In this sense, they defend a notion of ‘illicit gain’ that
almost coincides with that of ‘commutative injury’.
Finally, diorthotic
(or commutative) justice promotes a corrective ideal not only because it
directs the reparation of abuses that occur in a legal relationship or that
originate a new synallagmatic nexus. This is one aspect of corrective
justice, but it is not limited to this compensatory role. In many other cases,
nay, in the majority of them, this virtue seeks to render ‘correct’, ‘right’,
‘proportionate’, the obligations of the contracting parties, who expect the
ideal of equality of the commutative justice to be present already at the time
of the conclusion of the agreement. As Suárez points out, a virtue that directs
commutative relationships from the start and renders them equitable cannot be
defined as purely restorative.
bibliographical
references
Primary sources
Aquinas, Thomas. Sententia
libri Ethicorum. Notre Dame: Dumb Ox Books, 1993.
―.
Sententia libri Politicorum. Indianapolis: Hackett, 2007.
―.
Summa theologiæ. New York: Benziger Bros, 1947.
Aragón, Pedro de. De iustitia
et iure. Salmanticæ, 1590.
Araújo, Francisco de. Las
leyes (1638). Pamplona: Eunsa, 2010.
Aristotle. Artis rhetoricæ. Cambridge/New York:
Cambridge University Press, 2009.
―. De
iustitia. Librorum
deperditorum fragmenta. Berolini: W. de Gruyter, 1987.
―.
De republica Atheniensium. New Jersey: The Lawbook Exchange, 2004.
―.
De sophisticis
elenchis. Cambridge/Harvard: Harvard University Press, LCL 400, 1955.
―.
Ethica Eudemia. Cambridge/New York: Cambridge University Press, 2013.
―.
Ethica Nicomachea. Translated by Terence Irwin. Indianapolis, Hackett,
2019.
―. Ethica Nicomachea. Translatio Roberti
Grosseteste Lincolniensis: Recensio pura, XXVI 1-3/3. Edited by René
Antoine Gauthier. Leiden/Bruxelles: Brill/Desclée, 1972.
―.
Aristotle’s Ethics. Edited by Jonathan Barnes and Anthony Kenny. Princeton:
Princeton University Press, 2014.
―. Magna moralia.
Cambridge/London: Harvard University Press, LCL 287, 1935.
―. Topica. Cambridge/London: Harvard University
Press, LCL 391, 1960.
―.
Nicomachean Ethics. Translated by Joe Sachs. Indianapolis: Focus/Hackett,
2011.
―.
Nicomachean
Ethics. Edited by Sarah Broadie and Christopher Rowe. Oxford: Oxford University Press, 2002.
―.
The Arabic Version of the Nicomachean Ethics. Edited by Anna A. Akasoy,
Alexander Fidora and Douglas M. Dunlop. Leiden/Boston, Brill: 2005.
―.
The
Nicomachean Ethics. Translated by Harris Rackham. Cambridge/ London:
Harvard UP, LCL 73, 1934.
―.
The Nicomachean Ethics. Edited by Harold Henry Joachim and David Arthur
Rees. Oxford:
Clarendon Press, 1956.
Báñez, Domingo. De iure et
iustitia decisiones. Salamanticæ, 1594.
Camerarius, Joachim. Ethicorum Aristotelis Nicomachiorum explicatio. Francofurti,
1628.
Cano, Melchor. De locis
theologicis. Roma: Libreria Editrice della Vera Roma di E. Filiziani, 1900.
Carranza,
Bartolomé de. Catechismo christiano.
Madrid: BAC, 1972.
―. De iustitia. Pamplona: Eunsa, 2003.
Corpus Christi, Mancio de. De
iure et iustitia. Pamplona: Eunsa, 2013.
Gaius, Institutiones.
Oxford: Clarendon Press, 1904.
Groot, Hugo de. De iure belli ac
pacis. Indianapolis: Liberty Fund, 2005.
Justinian. Digesta Iustiniani Augusti. Berolini:
Weidmannos, 1870.
Oñate, Pedro de. De
contractibus in genere. Romæ: Ex Typographia Francisci Caballi, 1647.
Osma, Pedro de. Commentaria in
Ethicorum libros Aristotelis. Salamanca: Universidad Pontificia de
Salamanca, 1996.
Magnus, Albertus. In
X Ethicorum. Paris: Vivès, 1891.
Mercado, Tomás de. Tratos
y contratos de mercaderes. Salamanca:
Mathias Gast, 1569.
Michael Ephesius. In IX Ethicorum. London:
Bloomsbury, 2001.
―. In librum quintum Ethicorum.
Berolini: Georgii Reimeri, 1901.
Peña, Juan de la. De
iustitia. Coimbra: General Library
of the University of Coimbra, ms. 1852.
Plato. Symposium. New Haven/London: Yale University Press, 1991.
Pseudo-Aristotle. Œconomica.
Cambridge/London: Harvard University Press, LCL 287, 1935.
Roa, Fernando de. Repetitio de justitia et
injustitia. Salamanca: Universidad
Pontificia de Salamanca, 2007.
Soto, Domingo de. De iustitia.
Roma: Vatican Library, ms. ott.
lat. 781.
―. De
iustitia et iure. Madrid: IEP, 1967-1968.
Suárez, Francisco. “De filiatione
dubia.” Vol. 1 of Conselhos e pareceres, 179-183. Coimbra: Universidade de Coimbra, 1948.
―. Commentarii
in Ethica Aristotelis. Paris: Bibliothèque Nationale de France, cod. lat. 6775,
1585.
―. De pace. De bello. Über den Frieden. Über den Krieg.
Stuttgart: Frommann-Holzboog, 2013.
―. De
charitate. Opera omnia, v. XII. Paris: Vivès, 1858.
―. De iustitia Dei. Opera omnia, v. XI. Paris: Vivès, 1858.
―. De legibus ac Deo legislatore. Conimbricæ,
1612.
―. Defensio
fidei. Conimbricæ, 1613.
―. Quæstiones de iustitia et iure. Freiburg: Herder, 1958.
―. Tractatus
quartus. Opera omnia, v. IV. Paris: Vivès, 1856.
Veracruz, Alonso de la. De dominio
infidelium et iusto bello. Ciudad de México: UNAM, 2007.
Vico, Giambattista. De universi
iuris principio et fine uno. Amsterdam/Atlanta: Rodoni, 2000.
Vitoria, Francisco de. De iustitia: De
restitutione. Stuttgart:
Frommann-Holzboog, 2017.
Zapata y Sandoval, Juan de. De iustitia distributiva et acceptione personarum. Madrid: CSIC,
2004.
secondary sources
Barker,
Ernest. The Political Thought of Plato and Aristotle. New York: Dover, 1959.
Barrientos
Grandón, Javier. “La actio de
in rem verso en la literatura jurídica francesa.” Revista de Historia
del Derecho Privado 3 (2000): 61-62.
Basalenque, Diego. Historia
de la provincia de San Nicolás de Tolentino de Michoacán de la orden de nuestro
padre san Agustín. Ciudad de México: Jus, 1963.
Bastit, Michel. “La diversité dans
les Institutes de Gaius.” Archives de philosophie du droit 23
(1978): 333-343.
Bien,
Günther. “Aristotle on Justice (Book
V).” In Aristotle’s Nicomachean Ethics,
edited by Otfried Höffe, 109-131. Leiden/Boston: Brill, 2010.
Brieskorn,
Norbert. Rechtsphilosophie.
Stuttgart: Kohlhammer,
1990.
Jansen,
Nils. Theologie, Philosophie und Jurisprudenz in der spätscholastischen
Lehre von der Restitution. Tübingen: Mohr Siebeck, 2013.
Chénedé,
François. Les commutations en droit privé. Paris: Economica, 2008.
Coing,
Helmut. Europäisches Privatrecht. Älteres Gemeines Recht (1500 bis 1800).
München: Beck, 1985.
Copleston,
Frederick. A History of Philosophy:
Greece and Rome. New York/London: Image, 1993.
Despotopoulos,
Constantin. “La notion de synallagma chez Aristote.” Archives de philosophie du droit
13 (1968): 115-127.
―. Aristote
sur la famille et la justice. Bruxelles: Ousia, 1983.
Decock,
Wim. “Law of Property and Obligations: Neoscholastic Thinking and Beyond.” In The
Oxford Handbook of European Legal History, edited by Heikki Pihlajamäki, Markus Dubber and Mark Godfrey,
611-631. Oxford: Oxford University Press, 2018.
―. Theologians and Contract Law. The Moral
Transformation of the ius commune (ca. 1500-1650). Leiden: Martinus Nijhoff,
2012.
Decock,
Wim and Hallebeek, Jan. “Pre-contractual duties to inform in Early Modern Scholasticism.” Tijdschrift
voor Rechtsgeschiedenis 78 (2010):
89-133.
Duve, Thomas. “La teoría de la restitución en Domingo de Soto.” In La ley natural como fundamento moral
y jurídico en Domingo de Soto, edited by Juan Cruz Cruz, 181-198. Pamplona: Eunsa, 2007.
Englard, Izhak. Corrective and Distributive Justice. Oxford/New
York: Oxford University Press, 2009.
Escriche,
Joaquín. Diccionario razonado de legislación
y jurisprudencia. París:
Librería de Rosa, Bouret y Cia., 1852.
Feenstra,
Robert. “Grocio y el derecho privado europeo.” Anuario de Historia del
Derecho Español 45 (1975): 605-622.
Finnis,
John. Aquinas. Oxford: Oxford
University Press, 1998.
―. Natural Law and Natural
Rights. Oxford: Oxford University Press, 2011.
García,
Francisco. Tratado utilísimo y muy general de todos los
contratos (1583). Pamplona:
Eunsa, 2003.
Gierke,
Otto von. “The Social Role of Private
Law.” German Law Journal 19/4 (2018): 1017-1116.
Gordley,
James. “The Moral Foundations of Private Law.” The American Journal of
Jurisprudence 47/1 (2002): 10-13.
―. The Jurists.
Oxford: Oxford University Press,
2013.
Guzmán
Brito, Alejandro. “Para la historia de la formación de la teoría general del
acto o negocio jurídico y del contrato. IV: Los orígenes históricos de la
noción general de acto o negocio jurídico”. Revista de Estudios
Histórico-Jurídicos 26 (2004): 187-254.
Hallebeek,
Jan. “La formación de la idea de ‘enriquecimiento injustificado’ como concepto
jurídico en la Escuela de Salamanca.” In Enriquecimiento injustificado en la
encrucijada, directed by Pedro
del Olmo García and Xabier Basozabal Arrue, 37-47. Navarra: Thomson/Aranzadi, 2017.
―. “Unjust Enrichment as a Source of Obligation.” Restitution
Law Review 10 (2002): 92-99.
―. The Concept of Unjust Enrichment in Late
Scholasticism. Nijmegen:
Gerard Noodt Instituut, 1996.
Hamburger,
Max. Morals and Law. The Growth of Aristotle’s Legal Theory. New York:
Biblo & Tannen, 1971.
Höffe,
Otfried. Aristotle. Albany: State
University of New York Press, 2003.
―. Democracy
in an Age of Globalisation. Dordrecht: Springer, 2007.
―. Gerechtigkeit. Eine philosophische
Einführung. München: Beck, 2007.
―. Political Justice.
Cambridge: Polity Press, 1995.
Honoré,
Tony. Gaius. Oxford: Clarendon Press,
1962.
Irwin,
Terence H. “Glossary.” In Aristotle, Nicomachean Ethics, 361-403. Indianapolis:
Hackett, 2019.
―. Aristotle’s First Principles. Oxford: Clarendon Press, 2002.
Kaufmann,
Arthur. Rechtsphilosophie. München:
Beck, 1997.
Kirchmann,
Julius H. von. Erläuterungen zur
Nikomachischen Ethik des Aristoteles. Leipzig: L.
Heimann’s Verlag, 1876.
López Santa María, Jorge and
Fabián Elorriaga de Bonis. Los contratos.
Parte general. Santiago: Legal/Thomson, 2010.
MacIntyre,
Alasdair. A Short History of Ethics. London:
Routledge, 1998.
―. Whose Justice? Which Rationality? Notre Dame: University of Notre
Dame Press, 1988.
Martini,
Remo. Diritti greci. Torino:
Zanichelli, 2005.
Mausbach,
Joseph and Gustav Ermecke. Katholische Moraltheologie. Die spezielle Moral:
Der irdische Pflichtenkreis. Münster: Aschendorff, 1961.
Miller,
Fred Dycus. Nature, Justice, and Rights
in Aristotle’s Politics. Oxford/New York: Clarendon Press, 1995.
Muinelo
Cobo, José Carlos. La invención del
derecho en Aristóteles. Madrid:
Dykinson, 2011.
Pieper,
Josef. The Four Cardinal Virtues. New
York: Harcourt, Brace & World, 1965.
Pietro,
Alfredo Gustavo di. Derecho privado
romano. Buenos Aires: Depalma, 1999.
Polansky,
Ronald. “Giving Justice Its Due.” In The
Cambridge Companion to Aristotle’s Nicomachean Ethics, edited by Ronald
Polansky, 151-179. Cambridge/New York: Cambridge University Press, 2014.
Prisco,
Giuseppe. Principii di filosofia del diritto sulle basi dell’etica.
Napoli: Manfredi, 1872.
Ricken, Friedo.
“Aristoteles und die moderne Tugendethik.” In Gemeinschaft, Tugend, Glück, 127-139. Stuttgart: Kohlhammer,
2004.
Ross, David.
Aristotle. London/New York:
Routledge, 2005.
Sachs,
Joe. Aristotle: Nicomachean Ethics. Indianapolis: Focus/Hackett,
2011.
Sampson,
Joe. The Historical Foundations of Grotius’ Analysis of Delict. Leiden:
Brill, 2018.
Schiemann,
Gottfried. “Synallagma.” In Brill’s
New Pauly. Encyclopædia of the Ancient World: Antiquity,
edited by Hubert Cancik and Helmuth Schneider. Retrieved from
http://dx.doi.org/10.1163/1574-9347_bnp_e1127030.
Schulz,
Fritz. Classical Roman Law. Oxford:
Clarendon Press, 1961.
Schumpeter,
Joseph A. History of Economic Analysis. Abingdon:
Routledge, 2009.
Soto,
Luís G. Teoría de la justicia e idea del
derecho en Aristóteles. Madrid/Barcelona: Marcial Pons, 2011.
Villey,
Michel. Le droit et les droits de l’homme.
Paris: PUF, 2016.
Weinrib,
Ernest J. The Idea of Private Law. Oxford:
Oxford University Press, 2012.
Williams, Bernard. The
Sense of the Past. New Jersey: Princeton University Press, 2006.
Wöhrle, Georg, ed. The Milesians: Thales. Berlin: W. de Gruyter, 2014.
Wolff,
Hans Julius. “Diritto greco, diritto tolemaico.” Dike 16 (2013): 97-122.
―. “Greek
Legal History: Its Functions and Potentialities.” Washington University Law Review 2 (1975): 395-408.
―. “La
structure de l’obligation contractuelle en droit grec.” Revue historique de droit français et étranger 44 (1966): 569-583.
―. “The
Origin of Judicial Litigation among the Greeks.” Traditio 4 (1946): 31-87.
Zimmermann,
Reinhard. The Law of Obligations: Roman
Foundations of the Civilian Tradition. Oxford/New York: Oxford University Press, 1996.
Sebastián Contreras Aguirre
Facultad de Derecho
Universidad de los Andes, Chile
Álvaro del Portillo 12455
Las Condes, 7620001 Santiago de Chile (Chile)
https://orcid.org/0000-0002-4517-5600