(A2-8) The doctrine of restitution in 16th century scholasticism

In their comprehensive treatises De iustitia et iure, theologians and lawyers of the so-called 16th century scholastic school developed highly complex Catholic systems of natural justice in the 16th century, formulating them in every detail in a juridical dogmatic way. In the 17th century, by mediation of Hugo Grotius, these systems of natural justice – which were formally presented as annotations to parts of Thomas Aquinas’ “Summa Theologiae”, thus initiating the renaissance of Catholic Thomism – became the basis of the secular systems of rational law. The fundamentals of modern political theory, which was not secularised until later, were developed here.

A particularly interesting part of these systems was the doctrine of restitution. The restitution had formed part of the sacrament of penance since the Middle Ages. This doctrine found its basis in a saying of Augustine (“non remittetur peccatum nisi restituatur ablatum”). Albertus Magnus and Thomas Aquinas had reconstructed the doctrine drawing on the Aristotelian theory of justice (“restitutio est actus commutativae iustitiae”). Under the guidance of Francisco de Vitoria, 16th century theologians had based it on a genuinely legal, modernising theory of individual subjective rights (“omnis restitutio fundatur in dominio”). In the process, the doctrine was formulated, right down to the smallest detail, as a comprehensive, immediately applicable legal theory of non-contractual obligations.

It will be investigated in this project how, despite various controversies, it was at all possible to develop in detail systems of natural law – formulated in such a highly complex manner and so remarkably stable – as obligatory parameters for political and theological practice. Thus, the project aims to reconstruct a historical dogmatisation process in response to a fundamental normative crisis. At the same time, we would like to understand the way in which normative “truths” could successfully be axiomatised as requirements of system formation and normative argumentation. In particular, this process should also be taken into consideration from the point of view of differentiation/de-differentiation: in the light of an increasingly fragmenting world, the 16th century theologians once again deliberately provided a universally constructed theory in which theological, philosophical and legal arguments merged overall to form a whole. Obviously, only an approach of this kind seemed to have been able to satisfy a comprehensive claim to truth. Moreover, on closer inspection, it is apparent that one methodical strategy was the inclusion of normative conflicts in the mode of ambiguity: probabilistic arguments made it possible to hedge content-related controversies as moral uncertainties in the context of stable systems that were as such obligatory, giving rationally justifiable instructions in detail despite uncertainty. Taking all this into account, this process can apparently only be understood if, on the one hand, late scholastic theory is reconstructed in detail and if, on the other hand, those aspects of dogmatisation processes which are medial, institutional and stand outside of the theory are also taken into consideration. In this respect, the project draws on the research results of the first stage.

The Project is part of interconnecting platform E Differentiation and De-Differentiation and of coordinated project group The liquefaction and solidification of normativity.