LOEWE-Schwerpunkt "Außergerichtliche und gerichtliche Konfliktlösung" : Arbeitspapier = LOEWE research focus "Extrajudicial and judicial conflict resolution" : working paper
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- Aquinas (1)
- Arriaga (1)
- Early modern criminal law (1)
- Frühneuzeit (1)
- Harald Maihold (1)
- Naturzustand (1)
- Opfer (1)
- Philosophy of criminal law (1)
- Principle of guilt (1)
- René Girard (1)
16
In ‘Strafe für fremde Schuld’ Harald Maihold uncovered how a doctrine of surrogate punishment in the legal treatises of the Salamanca school gradually gave way to the principle of guilt. This meant that punishment eventually could only be inflicted upon a culprit and no longer upon an innocent. We will use René Girard’s philosophy of (the disruption of) scapegoat mechanisms and sacrifice to develop a coherent interpretation not only of how this institution of surrogate punishment functioned, how it selected its victims and the way it was legitimated, but also of the theology that formed its background. We argue that most of what surrogate punishment is about can be grasped in two words: sacrificial logic. The elimination of surrogation from criminal law would then correspond to the rejection of this logic, an evolution which could be interpreted as a desacralisation or secularisation of criminal law under the influence of the upcoming principle of guilt.
14
Francisco Suárez (1548-1617) and Rodrigo Arriaga (1592-1667) on the state of innocence and community
(2014)
Recent scholarship on late-scholastic thought has stressed a Jesuit discontinuity from Thomism. While Aquinas’ Aristotelian thesis located the political sphere in the state of innocence, Jesuit thought on community formation is said to have referred to ‘fallen’ and ‘pure’ nature. In this piece, I trace one particular narrative: In the hypothetical, lasting state of innocence (if original sin had not occurred), Aquinas identified the political community, but not the institution of the sacraments. Two celebrated Jesuit scholastics, Francisco Suárez and Rodrigo Arriaga, challenged the latter claim and defended the naturalness of spiritual alongside temporal power. This effectively allowed them to connect ‘nature’ to ‘utility’ and ‘necessity’ without tying their claims to the supernatural teleology. To them, the state of innocence remained relevant for politics, albeit in a way that challenged the Thomist account.