Elizabeth Rain Kincaid: Law from Below

April 30, 2024 / 5 mins read

Law From Below by Elizabeth Rain Kincaid shows how the theology of law from Francisco Suárez, SJ, an early modern legal theorist and theologian, can be crucial today. Read on for a Q&A with the author as she explains how Suárez’s theology of law can address our current moment and why this book is important for laypeople as well as lawmakers.

Your book argues that Suárez’s theology of law can be relevant today for changing the law from below. Can you briefly explain what Suárez’s theology of law is?

Suárez begins with the assumption that political power is given by God to the people, who then entrust it to a ruler. However, while the ruler has the power to issue laws, they also have the responsibility to change the laws in response to the people. Therefore, Suárez understands the development of law as a dialogical process in which the rulers and the people work together to make laws more just and appropriate for each specific situation.

How does our contemporary political moment make this book particularly important?

We live in a time in which much of our political rhetoric focuses on the use of power imposed from the top down to achieve some type of political goal. Suárez also lived in a time in which many people believe in a narrative of absolute power. In these types of historical moments, we often tend to focus only on using political means, sometimes fairly extreme ones, to make laws and policies which align with our own understanding of justice. Suárez reminds us that the actions of communities pursuing the good can and should make a difference in how laws are formulated to better achieve justice. In the second half of the book, I consider different contemporary Christian communities which have used the tools of the custom, equity, and interpretation to change how laws are understood and applied.

What do you think the role of lay people should be in changing the law?

Suárez reminds us of the power of communal action to change laws. Often, we think that working for more just laws depends on getting the “right person” in power and handing over authority to that person. Rather than depending simply on powerful people, Christians should focus on the power of local communities to effect change in laws.

Can Suárez’s theology of law be useful for non-Christians as well?

Absolutely. Suárez’s entire theory of civil law assumes that the goal of laws is to promote natural ends of peace and justice for all people. Therefore, he envisions the possibility for Christians and non-Christians to work together to make law more just. Because of his own Spanish background and his engagement with Reformation political controversies, Suárez assumes that polities may be religiously diverse and envisions engagement with laws as providing shared opportunities for people of different faiths to work together for more just laws.

In what ways could lawmakers benefit from reading your book?

Suárez emphasizes repeatedly that power is given from God to the people to advance the common good. Lawmakers need to understand that the people never surrender this power completely. They also need to understand that often the people living in a specific community may have important insights regarding the justice of a law’s application which may change how the law is understood. Therefore, he provides a powerful reminder as to why lawmakers need to cultivate the virtue of humility.