The Roots of International Law

163MX5
Time of Request: Wednesday, November 04, 2015

Client ID/Project Name:
Number of Lines: 841
Job Number:
1825:536149437
20:01:47 EST
Research Information
Service:
Terms and Connectors Search
Print Request: Selected Document(s): 1
Source: Law Reviews, CLE, Legal Journals & Periodicals, Combined
Search Terms: THE ROOTS OF INTERNATIONAL LAW AND THE TEACHINGS OF FRANCISCO DE
VITORIA AS A FOUNDATION FOR TRANSCENDENT HUMAN RIGHTS AND GLOBAL PEACE
Send to:
LUMAGUE, BLYTHE
ATENEO DE MANILA LAW SCHOOL
20 ROCKWELL DR 3RD FLR
ATENEO BLDG
MAKATI CITY, PHL 1700
Page 1
1 of 2 DOCUMENTS
Copyright (c) 2004 Ave Maria School of Law
Ave Maria Law Review
Spring, 2004
2 Ave Maria L. Rev. 123
LENGTH: 11672 words
ARTICLE: THE ROOTS OF INTERNATIONAL LAW AND THE TEACHINGS OF FRANCISCO DE
VITORIA AS A FOUNDATION FOR TRANSCENDENT HUMAN RIGHTS AND GLOBAL PEACE
NAME: Joseph M. de Torre+
BIO: + Professor Emeritus, University of Asia and the Pacific, Pasig City, Philippines. Portions of this article are
developed from Joseph M. de Torre, Generation and Degeneration: A Survey of Ideologies (Southeast Asia Science
Foundation 1995) and Joseph M. de Torre, Contemporary Philosophical Issues in Historical Perspective (University of
Asia and the Pacific 2001).
TEXT:
[*123]
Introduction
In announcing on July 17, 2003, the theme chosen for the next World Day of Peace (January 1, 2004), namely
"International Law: A Path for Peace," the Vatican Press Office stated that "humanity is facing a crucial challenge... . If
it does not succeed in giving itself truly effective institutions to eliminate the scourge of war, the risk exists that the law
of force will prevail over the force of law." n1 Echoing the teaching of Gaudium et Spes, n2 the Vatican statement
added that peace "is not simply the absence of war, nor can it be reduced only to make the balance of litigant forces
stable, nor is it the effect of a despotic domination, rather, it defines itself with all precision as a "work of justice.'" n3
[*124]
I. The Predicament of the Past
A spiral of wars throughout the centuries, activated by selfishness, greed, envy, pride, and economic fallacies, and duly
rationalized by nationalism, imperialism, racism, and other pseudo-religious degenerations, had finally crystallized in
the Marxist class struggle. That struggle itself was a confluence of Machiavellianism ("the end justifies the means"), n4
Hegelianism ("the soldier is the universal man"), n5 and Darwinism ("the survival of the strongest in the struggle for
life"). n6 The stage was thus set for the unprecedented bloodbaths, apocalyptic wars, and genocides of the twentieth
century, with the threat of the self-extermination of mankind. As the second millennium rolled over into the third, there
were approximately thirty-one wars raging worldwide. n7 This situation has provoked a pacifist backlash of "peace at
Page 2
2 Ave Maria L. Rev. 123, *124
all costs," "better red than dead," and all other neoteric aphorisms of the peace movement. n8
In order to restore the balance between these two vicious extremes, militarism and pacifism, the best approach is to
focus our [*125] metaphysical and empirical eye on the concept of peace. n9 From a phenomenological analysis,
history is always the "teacher of life," as recognized by the Romans. n10 It is the indispensable backdrop for the
understanding of any person or community, whose past shapes the present and preconditions the future. As Leibniz said,
"Everything in the universe is so connected that the present contains the future in its bosom." n11
History shows that at all times and in all nations there has been a continuous state of war. Peace seems to have been
the exception, and war the rule - a fact philosophers have utilized in their reasoning.
Hobbes described the natural state of society as "the war of all against all," n12 and a state of nature in which life is
"solitary, poore, nasty, brutish, and short." n13 He revived that famous formula of the Roman poet, Plautus: "homo
homini lupus" (man is a wolf to man). n14 The Chinese philosopher Han Fei Tz<cir u> had also declared that since man
is evil by nature, only brute force can restrain the masses. n15 Closer to our own time, the philosophies of Machiavelli
and Spinoza bolstered this gloomy view of man in an attempt to rationalize royal absolutism. n16 Similar to Locke's
reaction to Hobbes, n17 Rousseau rejected this view, affirming the natural goodness of man before he is corrupted by
society. n18
[*126] This interchange of ideas concerning humanity's intrinsic evil and good is a swinging pendulum, from
oppression to anarchy and back. Still, mankind suffered tyranny, torture, disease, poverty, and ignorance. War raged,
fomented, and was sought after by absolute rulers who were convinced that power comes from wealth, and wealth from
land. Such leaders were always looking for casus belli with adjacent nations, by land or sea, bringing a booty of land
and slaves with every new conquest. So this cycle continued, with more tyranny, torture, disease, poverty, and
ignorance. n19
A. The Rise and Effect of Religious Militarism
Concomitantly, the noble profession of defending one's country, the military profession, degenerated into militarism.
This was the result of the glorification of the warrior in ancient philosophies, and the terrifying escalation of war
technology that casts doubts on the validity of the principle of self-defense. It was this chronic state of affairs that
provided the occasion for nations to turn to polytheism and idolatry in search of supernatural beings (the more the
better), who could assist them in their struggle against other nations. The manipulation of religion for selfish purposes
made it an accomplice of war rather than of peace.
The Bible religions, namely Judaism, Christianity, and Islam, have sustained the original monotheism of mankind
(as evidenced by modern anthropological research on primitive peoples). n20 Followers of these three religions, though,
also fell victim at times to a fanaticism that led them into war against each other, and even against members of their
own faith. Fanaticism (not to be confused tout court with fundamentalism or radicalism) does not distinguish between
the person and the idea, resulting in hatred and violence.
The notorious Thirty Years War of 1618-1648 was the climax of the "wars of religion," pitting Catholics,
Calvinists, Lutherans, and Orthodox against one another. Meanwhile, Anglicans and Calvinists were engaging in a civil
war in England. These wars were themselves [*127] preceded by Muslim conquests, the Spanish Reconquista, and the
Crusades. n21
The wars of religion, beginning with the Muslim Jihad, which Mohammed regarded as self-defense, were a
combination of religious fanaticism and political and economic greed under the dignified umbrella of nationalism and,
later, of racism. Thus, the religions themselves were not at fault for these wars. All true children of Abraham seek peace
as the supreme good on earth under God. Even the purpose of Jihad is to achieve total peace in submission to God. n22
Due to this, it is not a mistake to look to religion, to all religions, in search of that elusive universal peace and
Page 3
brotherhood, as the Pope has urged ever since that memorable speech on October 27, 1986, at Assisi. n23
The Edict of Nantes in 1598 and the Treaty of Westphalia in 1648 ushered in an age of religious "tolerance" by
ending the French Catholic-Calvinist conflict and the Thirty Years War, respectively. The religious groups were each to
be kept in its own territory (cuius regio eius religio), and in the meantime, pure "philosophers," not theologians, were to
engage in a dialogue in search of peace: the pax philosophica. This philosophical approach stemmed from a radical
skepticism regarding the failure of the aforementioned religions to attain peace, and their tendency towards a fanaticism
which led to war.
The partition of religions by territory was also a result of the Enlightenment, that rationalism, inaugurated by
Descartes, would discard religious faith as a source of rational knowledge. n24 This cult of the "natural law" declared
itself independent of all "revealed" religions: the battle cry of Freemasonry. n25 In practice, this position, [*128]
further articulated by such eminent philosophers as Spinoza, n26 Wolff, n27 Voltaire, n28 and Diderot, n29 as well as
by British Deists, was tantamount to religious indifferentism: all religions are the same and should be tolerated, as long
as they do not fall prey to dogmatism or cause social disturbance.
All of this was opposed, and still is, by the Catholic Church, which did not recognize the Treaty of Westphalia, and
maintained the right to religious liberty, not religious "toleration." Religious liberty is the right to worship God in
accordance with one's conscience, free of external coercion, and the duty to accept true religion in the same fashion. n30
II. Hope for the Future
These efforts in the past ended in failure precisely because the means employed were violent. This is revealed by
common sense and dispassionate reason. If violence is used to stop violence, it will, as a rule, generate more violence. If
you want to achieve peace, the first thing that must be done is to abstain from violence. The principle of answering
force with force in self-defense may at times be stretched to conceal other selfish motives. If we can agree on the
importance of banning violence from civilized society, as distinct from the Hobbesian jungle, then we can start a serene
dialogue, a reasoned negotiation, in cooperation and solidarity.
This dialogue must be based on the "truth about man." The dignity of the human person is rooted in his or her
transcendence, or capacity for self-surpassing through knowledge and love. This capacity is attested by the history of
ideas, science, technology, [*129] political institutions, economic enterprise, poetry, and the fine arts, and makes the
human person a subject of rights. These "human rights" are at the very core of human essence, and thereby of human
existence. These rights are not conferred by society, the State, or any other human agency, but are God-given:
permanent and inalienable. No secularistic humanity can be their bedrock. This is the supra-political "natural law" that
must be recognized by and reflected in every man-made constitution or legislation. The recognition of this "truth about
man" at a metaphysical, ethical, and scientific level, is the only possible platform for a dialogue toward peace.
Shortly after elected pope on October 16, 1978, John Paul II sounded a keynote of his pontificate: the truth about
man. n31 "Man is the way of the Church," he would state thirteen years later in Centesimus Annus, n32 but this idea
was already present in his first encyclical, Redemptor Hominis, early in 1979. n33 After his visit to Mexico in January
of that year, where he confronted the problem of a "liberation theology" inspired by Marxism, he visited his own native
Poland in June, then under a Marxist regime. He emphasized in speech after speech the obligation of society and
government to recognize this truth about human rights, just as he had done earlier as Archbishop of Krakow in close
collaboration with Cardinal Wyszynski and the entire Polish hierarchy. n34
On October 5, 1995, John Paul II addressed the United Nations at its headquarters in New York. The subject of his
speech was again this truth about man: the inseparable link between peace and human rights. He emphasized that this
truth is a common patrimony of mankind; it is a philosophical, metaphysical, ethical, and natural truth. It is not the
exclusive concern of any particular religion, but the common possession of all religions open to the transcendence of
God. Even atheists and agnostics, he said, had to be open to this truth and [*130] recognize the right to religious
Page 4
freedom for every person and community. n35

The Pope knew, of course, that the Bible provides the best testimony of the dignity of the human person n36
because it shows the person is created and redeemed by God. n37 However, this biblical argument would convince only
Jews, Christians, and Muslims, who together do not comprise an overwhelming majority of mankind. Knowing the
limitations of a biblically based argument, John Paul II chose an argument based on reason and a democratic philosophy
appropriate to that forum in which all nations, all cultures, and all religions were represented. It alone could provide the
medium of communication for a world conference on peace.
The effectiveness of this papal speech and of his many other pronouncements along this line can be gauged by the
gradual undermining of the Marxist regimes throughout the 1980s, ending in their mostly non-violent collapse in 1989.
This papal discourse directly combated the core of Marxist ideology: the suppression of individual personal freedom
and the total absorption of man into the community. For this reason, Marxism is unable to recognize the transcendence
of the human person. n38
Of all of man's freedoms, that which is most fundamental and the root of his greatness and dignity is his orientation
toward infinity and boundless creativity. God, though, and not man, is the source of this freedom and creativity. Hence,
the fundamental right to religious freedom must include openness to a transcendent, personal Creator. This is what the
Pope often refers to as freedom of thought and of conscience, not to be confused with the false autonomy of a human
reason that is not ruled by truth, but by its own subjective preference. n39
[*131] True freedom consists not in boundless omnipotence, but in the power to choose without external coercion.
Such freedom must be ordered by the golden lamp of law, an idea the Statue of Liberty has immortalized. n40 This
freedom must be balanced by justice, even as rights must be balanced by duties. To the extent that this balance is
achieved, there will first be economic prosperity, followed by cultural prosperity, and finally, the total development of
man in a society at peace.
Although freedom is indispensable for peace, it is not alone sufficient. It unleashes man's creativity, but also his
selfishness. Western materialism is notoriously rampant with hedonism and consumerism. This is not the direct effect of
the capitalist and democratic systems, but it often accompanies them. Freedom naturally entails the risk of misuse, but it
is a risk that must be taken [*132] for man to achieve the common good. (This is not "the greatest good for the greatest
number," as utilitarianism and hedonism might suggest, but the good for "every" man and the "whole" man.) This link
between peace and complete human development, i.e., the common good, was the theme of two great encyclicals on
peace, that of Pope John XXIII, Pacem in Terris, n41 and that of Pope Paul VI, Populorum Progressio. n42
In light of these truths, is there any justification for claiming along with Hobbes and Plautus that "man is a wolf to
man," or sharing a belief similar to that of Han Fei Tz<cir u> and Machiavelli? It cannot be denied that man does much
evil if he is left free, but he also does much good if he is educated in the use of his freedom. Man is neither an angel nor
a devil, though surely at times he may have borne a resemblance to either. Moreover, he is not a freedom-less animal
nor a lifeless machine. The Bible has revealed that man is free in his boundless love, but still bound to the truth that
liberates. n43 Our ability to overcome our evil tendencies lies in truth and openness to He who is Truth, God. That is
our dignity, and we must respect its development in each of us from the moment of conception. We must trust in our
capacity to overcome all evils with the aid of God, with solidarity, and in cooperation with one another.
III. Recent Attempts to Promote an Institution of Peace
In 1976, the United Nations paid official tribute to Francisco de Vitoria as its precursor and the Father of International
Law. n44 [*133] Vitoria's teaching, as discussed below, is rooted in that of St. Thomas Aquinas and has been affirmed
by all popes since Paul III. n45 It has been followed by many other theologians and philosophers, such as Suarez,
Molina, Bellarmine, Grotius, Pufendorf, Leibniz, Locke, and Kant. Vitoria's emphasis on human rights as the condition
for peace and order was partially reflected in the American Declaration of Independence, which recognized rights
Page 5
derived from God. n46 The French Constitution, framed shortly thereafter, failed to include a derivation of rights from
God, thus initiating modern secularism which provides no basis for human rights except positive human law. Hence, all
are at the mercy of whoever has more power. "Might is right" under legal positivism. n47
The first truly international attempt to institutionalize the ideas of Francisco de Vitoria, and thus surpass the era of
mere pacts or treaties between individual nations (which only led to further wars between blocs of nations) came with
the League of Nations, founded in Geneva shortly after the First World War. This dismal effort had lasted barely
[*134] twenty years when the Second World War heralded its end. Nevertheless, hope was not extinguished, and the
United Nations was founded after World War II as a reaction to that most terrible of all wars. It was begun with the firm
determination to promote peace everywhere on earth by peaceful and democratic means. In so doing, it promulgated a
comprehensive Universal Declaration of Human Rights n48 as a juridical guarantee of peace. The old formula "if you
want peace, prepare for war" n49 was replaced by a new one: "if you want peace, respect human rights." The UN has
proven to be far from perfect, but it is doubtless a giant step in the right direction, and has never lacked the
encouragement and support of the popes (from Pius XII to the present one).
As mentioned earlier, John XXIII issued Pacem in Terris in 1963 while the Second Vatican Council was in session,
addressing this encyclical in a ground-breaking fashion "to All Men of Good Will," and not only to Catholics. n50 This
was an indication that his arguments would be purposefully philosophical, and not just Christian, biblical, or
theological. He stated that the way to build and secure "peace on earth" is to respect the human rights grounded in the
"dignity of the human person," and proceeded, in the tradition of Francisco de Vitoria, to enumerate one of the most
comprehensive lists of human rights ever put forward. n51 This list begins with the right to life of the unborn, the most
defenseless and vulnerable of human beings. This is where the aforementioned abolition of violence has to begin since,
as Mother Teresa of Calcutta famously asked,
But I feel that the greatest destroyer of peace today is abortion, because it is a war against the child - a direct killing of
the innocent child - murder by the mother herself. And if we accept that a [*135] mother can kill her own child, how
can we tell other people not to kill one another? n52
Four years after Pacem in Terris, Paul VI enriched this concept in Populorum Progressio with the idea that
development is the new name for peace, n53 with "development" defined as the total promotion of man based on an
"integral humanism." n54 This is a philosophical basis that can be accepted by all religions and cultures for an
"international law" that strives to defend and preserve global peace. It is not the secularist pax philosophica of the
Enlightenment, but a truth acceptable to and supported by all religions. It is manifested in fundamental ethical values
rooted in the dignity of the human person and spelled out in the universally accepted list of human rights.
The equality of human nature also creates a "universal brotherhood" of mankind; not a secularist brotherhood, but
one under God. The obvious existing inequalities among human beings and communities are not supposed to be
antagonistic, adversarial, or even "dialectical" in the Hegelian-Marxist sense, n55 but complementary and harmonizable.
What inequality of individual persons there is [*136] must be understood in light of the underlying unity of all
mankind, as the Confucian tradition has also maintained. n56
Cooperation and solidarity are a natural extension of this unity. These should not be confused with the "pacifism"
of "peace at all costs," or the "irenecism" (from the Greek Irene meaning "peace") of compromise at the expense of
truth. In fact, the sacredness of truth carries a moral obligation to sacrifice one's life in its defense. For a Christian, the
paradox of Christ, that He came not to bring peace on earth, but war, n57 cannot be brushed aside. He clarified this,
however, by explaining that the "war" to be waged was not against others but against oneself. n58 Only in this way can
the peace of Christ be offered to others, by channeling all of our aggressiveness toward ourselves in the struggle against
selfishness. Without this, we cannot prevent ourselves from being aggressive with others.
Page 6
This humanism that is open to transcendence, not secularism, n59 includes the universal equality of all persons and
peoples, and is therefore opposed to any form of racism or chauvinism. It is in accord with this universal
equality/humanism that the Catholic Church is one of the most consistent and adamant opponents of racism. In
countries deeply affected by the Catholic ethos, racism is, as a rule, less frequent. No other institution has more strongly
condemned the evils and errors, both philosophical and scientific, of racism. On the other hand, no other institution has
more highly praised the virtue of patriotism. The Catholic Church, as the name [*137] "catholic" means, is universal in
outlook, while at the same time deeply involved in the reality of actual peoples and communities. n60
The advent of Christianity, with its radical natural law affirmation of the fundamental equality and dignity of all
men, fermented social change in a Roman Empire which had fully established and legalized the institution of slavery,
just as the Greek city-states had done. The institution of slavery was largely based on the economic fallacy, espoused by
Aristotle, that natural resources (soil and sub-soil) and forced labor (slavery) were the sole sources of wealth. n61 This
way of thinking made war an economic necessity as well; wars were needed for the conquest of new lands and the
enslavement of peoples. It also made mercantilism and a static economy the prevailing doctrines, allied to the
absolutism of rulers and the endemic recurrence of tyrannies, together with the chronic poverty and squalor of the
majority of the population. n62
This Aristotelian economic fallacy was not refuted until the analysis of the Spanish sixteenth century theologians of
the School of Salamanca, n63 including Francisco de Vitoria, Tomas de Mercado, Martin de Alpizcueta, and Luis de
Mariana. Joseph Schumpeter has illustrated this in his classic work, History of Economic Analysis. n64 More recently,
Alejandro Chafuen, in Christians for Freedom, n65 traced the decline of the Spanish Empire to the failure to recognize
that the real source of wealth is not land or labor, but the "free" creativity of the human mind. For a dynamic and
growing economy, this creativity must be allowed to express itself in agriculture, industry, commerce, and finance with
a minimization of government control and stimulation of private enterprise and wealth. n66 The ideas underlying
[*138] this economic rebirth were fully developed and systematized by Adam Smith. Smith explained not only the
decline of the Spanish Empire (a static economy), but also the rise of the British Empire, by way of contrast. n67
(Smith's work appeared in 1776, the same year as the American Declaration of Independence, which affirmed the
universal equality and freedom of all men under God.)
The cultural, economic, political, yet peaceful revolution of Christianity was not able to flourish initially due to
universal acceptance of the Aristotelian fallacy. Christianity commenced a process of cultural transformation, gradually
humanizing slavery, war, poverty, disease, and political absolutism, by favoring the introduction of practices and laws
to this effect. In this endeavor, it always defended and protected the dignity of man and his labor. After the European
colonization of the Americas, this new consciousness of universal equality and freedom fomented its own science of
economics at which time there was no longer any excuse to maintain the aberrations that had been tolerated for
centuries.
The origin of these revolutionary ideas was not Locke's liberal reaction to Hobbes's absolutism. n68 To say this is a
flagrant oversimplification. Rather, as already stated, the origin is in the work of the sixteenth century Spanish
economists.
IV. The Work of Francisco de Vitoria
To celebrate the fifth century of Christopher Columbus's arrival in the New World, the University of Salamanca, in
conjunction with the Catholic University of America, published a bilingual volume entitled The Rights and Obligations
of Indians and Spaniards in the New World. This volume reconstructs and compiles all the relevant statements of
Francisco de Vitoria on this issue. n69 Included in this are a long series of lectures given to large audiences at the
University of Salamanca throughout the 1530s. Deeply stirred by briefings from Bartolome de Las Casas, who had
started his peaceful crusade in favor of the Indios after listening to Antonio Montesinos preach at [*139] Santo
Domingo in 1511, Vitoria courageously expounded the fundamental equality of all human beings and acknowledged
that the ultimate sovereignty of the people is given to them by God. He spelled out the inviolable rights to life, to
Page 7
liberty, and to self-rule, including the right to private economic initiative and to participation in public life. n70 In
Francisco de Vitoria's writings, we find the first virtually complete enumeration of human rights and the principles of
democratic government and law, both on a national and on an international level, long before the American Declaration
of Independence and Thomas Paine's The Rights of Man. n71
As a result of the reverberations caused by Vitoria's lectures at Salamanca, Pope Paul III issued two Briefs in 1537
in which he authorized the excommunication of those colonists in the New World who deprived the natives of life,
liberty, or property. In these he proclaimed the fundamental equality of all human beings, regardless of their race,
religion, or culture. n72 Emperor Charles V requested that the Pope withdraw these Briefs of excommunication,
pledging that he [*140] would promulgate the New Laws of the Indies as soon as possible to guarantee rights n73
similar to those formulated by Francisco de Vitoria.
Four years before Vitoria's death, Charles V did indeed issue The New Laws of the Indies in 1542, n74 which did
not come until the Council of Trent n75 was already in session. This Ecumenical Council, attended by many of Vitoria's
followers, such as Domingo de Soto and Melchor Cano, proclaimed the universality of the Christian religion and of
human nature, denouncing both the elitism of the Protestant Reformers and the claims of moral and racial superiority of
the Iberian conquistadores. n76 Controversy, though, raged in Spain. Vitoria's followers, led by Bartolome de Las
Casas, opposed those in favor of conquest, led by Juan Gines de Sapulveda. This was not resolved until a formal session
of debates was arranged by Emperor Charles V between these two leaders at the royal court of Villadolid in 1550 and
1551. Las Casas rebutted Sepulveda's theses with Vitoria's ideas, which had been adapted from those of St. Thomas
Aquinas. Las Casas was considered to have won the debate. n77
It was Vitoria, therefore, who set in motion the "revolution of human rights," which has crystallized in modern
democracies and contemporary international organizations. n78 His doctrine on the [*141] fundamental equality of all
persons and peoples, and on their right to self-rule, rooted in their national subjectivity, was based on a Christian
theology that illuminated the natural law witnessed to by human reason, and most thoroughly analyzed by St. Thomas
Aquinas. Vitoria's philosophy focused on the human person and human society; therefore, it can be called a "philosophy
of order" in which authority and law (a rational ordering, i.e., one not arbitrary or voluntaristic) are the basis and
justification for the power to govern. This power is bestowed on the rulers by the people, but not by the people as
"numbers," a fact Jacques Maritain n79 and Yves R. Simon n80 have explained so well. Rather, it is bestowed by the
people as a community of persons aware of their subjective responsibility and dignity as beings open to infinite
transcendence and objective values. This philosophy of order, based on the natural law, was continued by a long chain
of theologians and philosophers. n81
In contrast to this philosophy of order, which builds up a "democracy of the person," is the "philosophy of power,"
started by Ockham, and later further developed by Marsilius of Padua, Machiavelli, Luther, Hobbes, and Rousseau. This
philosophy of power continued through the French Revolution, on to modern liberal individualism (the "democracy of
the individual"), and finally achieved totalitarian socialism. Meanwhile, the more moderate individualism of Locke,
influenced by the Scholastics (especially the Dominicans), n82 was foremost in the thought of Thomas Jefferson and
[*142] the framers of the American Constitution. n83 Jefferson, of course, is well known as the drafter of the American
Declaration of Independence and its testament to self-evident natural law.
The genesis of much of this human rights thinking had been in those acclaimed lectures at Salamanca. There,
Vitoria put the dignity of the human person, regardless of race, culture, or religion, on center stage, together with the
need for a juridical order to safeguard it. n84 He iterated what Aquinas had said many times: "No one is a slave by
nature." n85 All men and women are equal by nature, in spite of their existential inequalities, and they can never lose
their fundamental rights even if they fall into sin. Vitoria rejected the Roman ius belli and declared there to be no such
thing as a "right to war," but rather only a right to self-defense. n86 He rebuffed the "divine right of kings" then claimed
by absolutist monarchs, instead asserting the right of the people to depose tyrants when reasonable. n87 He rejected
theocratic imperialism, advocating in its place a universal community of nations ruled by a natural law common to all
cultures (an ius gentium or "law of nations") and delineated in a "declaration" of human rights. n88 For this reason, the
Page 8
United Nations considers Vitoria its precursor, and international jurists generally regard him as their "father." The bust
erected in his memory at the United Nations headquarters in New York calls him "Founder of the Law of Nations," and
the "Francisco de Vitoria Hall" at the UN Geneva Offices testifies to Vitoria's leadership in the march toward
democracy and liberty.
[*143] Despite this, some authors have erroneously attributed the title of "Father of International Law" to Hugo
Grotius (1583-1645), born thirty-seven years after Vitoria's death. However, Grotius himself utilized Vitoria's thesis on
just war, as found in Grotius's capital work De iure belli ac pacis in 1625. n89 Following Vitoria's thought, Grotius also
roots the natural law on God as the author of human nature and natural sociability. This is notwithstanding his
misunderstood remark that the natural law would be valid even if we were to admit that God does not exist nor care
about human affairs. n90 On the evidence of his writings, Grotius cannot be said to have started the process that
secularized the natural law tradition. Neither can he be considered the "father" of international law. He followed Vitoria
and further elaborated on his philosophy.
Other false claimants to the title of father of modern human rights rooted in the natural law tradition are Samuel
Pufendorf (1632-1694) and his contemporary, John Locke. We have already noted how the latter was indebted to the
Dominican theologians, and how he subsequently influenced the thought of Thomas Jefferson. In dismissing
Pufendorf's claim to Vitoria's title, a candid reading of his capital works, De iure naturae et gentium libri octo n91 and
De officio hominis et civis secundum legem naturalem libri duo, n92 reveals his great dependence on Grotius, n93 and,
thereby, on the Vitoria tradition. Admittedly, he is also somewhat affected by the more individualistic outlook of
Hobbes, but only in some empirical observations which do not modify the substance of his doctrine, and in a greater
emphasis on [*144] the will, rather than on reason, regarding the nature of positive law. Pufendorf roots natural law in
man's rationality and sociability. Thus, following Suarez, Grotius, and Vitoria, he defines natural law as that which fits
the rational and social nature of man so necessarily that without its observance there could be no honest and peaceful
society in mankind. n94 Positive law, by contrast, is not founded on the general constitution of human nature, but purely
on the will of the lawgiver. n95 As a result of this, he does not distinguish between ius gentium and positive law as
clearly as Suarez does. n96
Pufendorf most clearly shows his relation to the Vitoria tradition in his enumeration of the "natural duties of man."
. As regards his soul, to know God as the Supreme Being, Intelligent, Free, Ruler of the Universe, and worship Him.
n97 (This is clearly not the Supreme Being (the "Great Architect") of the Deists and the French Revolution, but the
Provident God of Locke, Montesquieu, Jefferson, and the American Revolution).
. To know himself and his own nature well. To acknowledge his dependence on God, his duties toward Him and toward
other men; to act with prudence, equity and moderation. To use well what depends on us. n98
. To seek one's esteem and honor. (In other words, to be aware of one's human dignity.) n99
. To seek wealth with moderation. (This is a new way of expressing Vitoria's right of all men to engage in business
[*145] enterprise and acquire private property, always taking into account the common good, or "with moderation.")
n100
Page 9
. To subject the passions to reason. (That is to say, to be fully human in accord with natural law.) n101
. To exercise just self-defense. n102 (As we have seen, he follows Vitoria in the application of this general duty as a
replacement for the "right to war.")
Along with Grotius, Pudendorf, and Jefferson, one can make mention of many other theologians and philosophers who
followed Vitoria's natural law doctrine, such as Locke, Montesquieu, Domingo de Soto, n103 Francisco Suarez, n104
Luis de Molina, n105 Robert Bellarmine, n106 Jean Bodin, n107 Richard Hooker, n108 Alberico Gentilis, n109 and
generally all late Scholastics. With the rise of Deism in England and with the German Enlightenment, the interest
shifted to man's happiness without relation to God. This can be seen in the work of a number of Pufendorf's followers in
Germany, such as Christian Thomasius, n110 as well as in the rise of utilitarian ethics in England with Hutcheson, n111
[*146] Hume, n112 and Bentham. n113 Such thinkers were prone to interpret Jefferson's "pursuit of happiness" n114 in
hedonistic terms and to secularize the natural law tradition.
The natural law, as exemplified in the American Declaration of Independence and in the American Constitution,
was reaffirmed by George Washington n115 and Abraham Lincoln, n116 the Whig Tradition of England, and
Continental thinkers such as Montalembert, n117 Juan Donoso Cortes, n118 and Frederic Bastiat, n119 and, more
recently, Lord Acton n120 and Jacques Maritain. n121 This natural law is God and liberty-centered in the tradition of
Francisco de Vitoria. It is a philosophy of order, and of ordered liberty. It is the cultural core of a republic (or a
constitutional monarchy) organically composed of free persons under [*147] God, for the transcendent common good
of society. This is the "democracy of liberty" suggested by Alexis de Tocqueville. n122
In contrast, the philosophy of power, of the self-affirmation of the individual and autonomous will, whether singly
or collectively, found political expression in the French Revolution of 1789. In that government's Declaration of the
Rights of Man and the Citizen, Article VI, it is stated that "the law is an expression of the general will," n123 i.e., not a
"rational" ordering. This is what leads to the "democracy of tyranny" described by Tocqueville. n124 The God of the
Deists and of the Jacobins is the Great Architect who has left the world "entirely" in the hands of man. Thus, deprived
of a point of reference beyond and above themselves, men now turn to one another as wolves (Hobbes) and will try
either to create a Leviathan, an absolute State to impose order on all, or to seek power-mechanisms in a free-for-all
society to secure the "survival of the fittest." n125 In this way, the "general will" of Rousseau n126 was first claimed by
the French Revolution, and later by Bolshevism, n127 [*148] Fascism, n128 and Nazism, n129 the collectivist or
socialist forms of the philosophy of power. At the other end of the secularist spectrum, utilitarian and pragmatic trends
favored its individualistic form. This has historically outlived the collectivist form and plunged humanity into the global
crisis we are now experiencing in the awesome confrontation of a culture of life and a culture of death, a philosophy of
love and a philosophy of hate. n130
V. Vitoria on the Laws of War
In 1991, Cambridge University Press published a volume entitled Vitoria: Political Writings as part of a series of texts
in the history of political thought. Edited by Anthony Pagden of the University of Cambridge and Jeremy Lawrance of
the University of Manchester, the volume contains an excellent translation of the famous Praelectiones (end-of-term
comprehensive lectures) delivered by Vitoria from 1528 to 1539 at the University of Salamanca to jam-packed
audiences, on occasion including Emperor Charles V, who promulgated the New Laws of the Indies, as stated above.
n131 These Praelectiones contain the groundwork for all subsequent elaboration by his numerous followers, beginning
with the Scholastics, Grotius, Pufendorf, and later Locke. It focused on civil power, the sovereignty of the people, the
equality of all men before the law, the role of religion, and the enumeration of basic human rights. n132
As mentioned by Ernest Nys, the Law of War is a continuation of the previous Praelectio "On the American
Page 10
Indians" (De Indis). n133 Vitoria expounded at length on the previous war theory since the time of St. Augustine. In
Scholastic fashion, he divided the discussion into questions and articles.
[*149]
Question 1:
Article 1: Whether it is lawful for Christians to wage war.
Article 2: On what authority may war be declared or waged.
Article 3: What are the persuasive reasons and causes of just war?
Article 4: What and how much may be done in the just war?
Question 2:
Article 1: Whether it is enough for the just war that the prince should believe that his cause is just.
Article 2: Whether subjects are required to examine the causes of war.
Article 3: What is to be done when the justice of war is undecided?
Article 4: War cannot be just on both sides.
Article 5: If a belligerent discovers that his cause is unjust, must he make restitution?
Question 3:
Page 11
Article 1: Whether one may kill innocent people in a just war.
Article 2: Whether one may plunder innocent people in a just war.
Article 3: Whether one may enslave the innocent in a just war.
Article 4: Whether one may execute hostages.
Article 5: Whether one may execute all the enemy combatants.
Article 6: Whether one may execute those who have surrendered or been taken prisoner.
[*150]
Article 7: Whether all the booty taken in war belongs to the captors.
Article 8: Whether one may impose tribute on a defeated enemy.
Article 9: Whether one may depose the enemy's princes and set up new ones.
Conclusion: The rules of war summarized in three canons. n134
Conclusion
Goaded by developments in the New World, Vitoria took great pains to lay down norms of international law. Those
that followed his example, (beginning with Grotius) were prompted by the "Wars of Religion" and the escalation of
imperialistic conflict, along with a desire for the realization of Vitoria's ideal: a community of nations in pursuit of
peace. Their endeavors finally culminated in the formation of the United Nations. n135
However, the end envisioned still has not become a reality. A "new world" is once again burgeoning, reshaping the
relationships of nations and their citizens. This time it does not arise from the discoveries of explorers, but of scientists.
With many benefits there also come many dangers. Technological advancement in warfare has presented new perils that
have complicated the just war issue. Even if inadvertent, progress has increased the havoc of war, extending the reach of
dehumanising ideologies and their dreadful offspring: genocide. Coming to terms with the question of just warfare
Page 12
today requires a mature reconsideration of its underlying principles and goals in light of the modern situation.
This is not to advocate yielding to a relativistic, or purely pragmatic ethic. Moral principles and guidelines are like
human rights, universally valid and inherent to human nature. One such unchanging guideline is that the formation of
conscience requires consideration of the formal object or end of the moral act, the [*151] intention of the agent, and
the circumstances. These are the rules of jurisprudence, and they govern the application of the law to practical
judgements, including the ius ad bellum and ius in bello. With the proliferation of weapons of mass destruction, the
"circumstances" have become the most relevant factor in that analysis. The "circumstances" of any war have the
potential to be broader in their effect than at any time in the past and any just war analysis must pay heed to them in an
international light. This insight motivated the emphasis placed by the Holy Father on international law, the need to
strengthen the United Nations, and the role of international diplomacy.
To achieve these goals, an in-depth study of the concept of law must be undertaken with a thorough knowledge of
history. This is a central theme of Vitoria's thought. The analysis of moral principles should not be undertaken blindly
and without reference to the past anymore than technological study should ignore prior contributions. A historically
blind approach not only fails to capitalize on the achievements of the past, it also forgoes the best defense against the
repetition of error. Prudently approaching the question of just war requires the exercise of memory, circumspection, and
foresight. Even with all three no one can forecast the future, but an understanding of the past fosters the conditions that
provide grounds for hope.
Legal Topics:
For related research and practice materials, see the following legal topics:
TortsNegligenceDutyAnimal OwnersScienter
FOOTNOTES:
n1. Zenit News Agency, 2004 World Day of Peace to Emphasize International Law: Humanity Facing a
Crucial Challenge, Says Vatican (July 17, 2003), available at
http://www.zenit.org/english/visualizza.phtml?sid=38984 (Code: ZE03071712) (on file with the Ave Maria Law
Review).
n2. See generally Second Vatican Council, Gaudium et Spes [Pastoral Constitution on the Church in the
Modern World] (1965), reprinted in The Sixteen Documents of Vatican II 513 (Nat'l Catholic Welfare
Conference trans., St. Paul ed. 1967).
n3. Id. (quoting Isaiah 32:17).
n4. 1 Niccolo Machiavelli, The Discourses of Niccolo Machiavelli 234 (Leslie J. Walker, S.J. trans., W.
Stark ed., 1975) ("It is a sound maxim that reprehensible actions may be justified by their effects, and that when
the effect is good ... it always justifies the action.").
Page 13
n5. William Turner, Hegelianism, in 7 The Catholic Encyclopedia 193 (Charles G. Herbermann et al. eds.,
2d ed., The Encyclopedia Press, Inc. 1913) ("War, he [Hegel] teaches, is an indispensable means of political
progress. It is a crisis in the development of the idea which is embodied in the different States, and out of this
crisis the better State is certain to emerge victorious."). As Frederick Copleston described Hegel's thought on
war:
It should be noted that Hegel is not simply saying that in war a man's moral qualities can be displayed on an
heroic scale, which is obviously true. Nor is he saying merely that war brings home to us the transitory character
of the finite. He is asserting that war is a necessary rational phenomenon. It is in fact for him the means by
which the dialectic of history gets, so to speak, a move on. It prevents stagnation and preserves, as he puts it, the
ethical health of nations. It is the chief means by which a people's spirit acquires renewed vigour or a decayed
political organism is swept aside and gives place to a more vigorous manifestation of the Spirit.
7 Frederick Copleston, S.J., A History of Philosophy 217-18 (1963).
n6. See generally Charles Darwin, The Origin of Species by Means of Natural Selection, or the Preservation
of Favoured Races in the Struggle for Life (6th ed. 1872) (Darwin discusses this theory fully in Chapter III:
Struggle for Existence and Chapter IV: Natural Selection; or the Survival of the Fittest.).
n7. Weather Wreaked Havoc, Aids Killed Millions, Fast Food Boomed, Smoking Declined and Conflicts
Increased, The Indep. (London), Aug. 21, 1999, at 7.
n8. See generally George Weigel, Tranquilitas Ordinis: The Present Failure and Future Promise of
American Catholic Thought on War and Peace (1987) [hereinafter Tranquilitas Ordinis] (containing a thorough
review of the phenomenon of the peace movement).
n9. See Joseph M. de Torre, Contemporary Philosophical Issues in Historical Perspective (2001)
[hereinafter Contemporary Philosophical Issues].
n10. See Marcus Tullius Cicero, De Oratore, Liber Secundus 225 (E.W. Sutton trans., 6th ed. 1942) (55
B.C.) ("And as History, which bears witness to the passing of the ages, sheds light upon reality, gives life to the
recollection and guidance to human existence, and brings tidings of ancient days, whose voice, but the orator's,
can entrust her to immortality?").
Page 14
n11. Jerome Rosenthal, Attitudes of Some Modern Rationalists to History, 4 J. Hist. Ideas 429, 449 (1943)
(quoting Gottfied Wilhelm Leibniz, Hauptschriften zur Grundlegung oer Philosophie (E. Cassirer, ed.,
Philosophische Bibliothek 1966) (1717)).
n12. Thomas Hobbes, On the Citizen P 13 (Richard Tuck & Michael Silverthorne eds. & trans., Cambridge
Univ. Press 1998) (1651).
n13. Thomas Hobbes, Leviathan 104 (Am. ed. 1950) (1651).
n14. Titus Maccius Plautus, Asinaria 72 (R.A.D.A.R. Padova 1968).
n15. See Fung Yu-Lan, 1 A History of Chinese Philosophy: The Period of the Philosophers 312-35 (Derk
Bodde trans., 2d ed., Princeton Univ. Press 1983) (1931).
n16. See generally Contemporary Philosophical Issues, supra note 9.
n17. G.A.J. Rogers, John Locke, in The Columbia History of Western Philosophy 388 (Richard H. Popkin
et al. eds., 1999) ("Although Locke shares with Hobbes a commitment to a social contract as the moral rationale
of society, he was very keen to distance himself from Hobbes's philosophy.").
n18. Jean-Jacques Rousseau, Emile, in 20 International Education Series 212 (William T. Harris ed.,
William H. Payne trans., 1892) ("Let him know that man is naturally good; let him feel it; let him judge his
neighbors by himself; but let him see how society depraves and perverts men; let him find in their prejudices the
source of all their vices; let him be inclined to esteem each individual, but let him despise the multitude; let him
see that all men wear nearly the same mask, but let him know also that there are faces more beautiful than the
mask which covers them.").
Page 15
n20. See, e.g., P.W. Schmidt, Der Ursprung der Gottesidee: Eine Historisch-Kritische und Positive Studie
[The Origin of the Idea of God: A Historical Critique and Positive Study] (Aschendorffsche 1926) (1912).
Translation from the German is by Meggan Mikula.
n21. See, e.g., Joseph M. de Torre, The Humanism of Modern Philosophy (2d ed. 1997) [hereinafter
Humanism].
n22. See generally Asghar Ali Engineer, Islam and Liberation Theology 7 (1990) ("Jihad in Islam is to be
primarily waged either for protecting the interests of the oppressed and the weak or to defend oneself against
aggression.").
n23. See Antonio M. Rosales, O.F.M., October 1986: The Day Assisi Became the "Peace Capital" of the
World, at http://www.americancatholic.org/Features/Assisi/PeaceCapital.asp (on file with the Ave Maria Law
Review).
n24. See Humanism, supra note 21.
n25. Freemasonry lacks the basic elements of religion:
(a)It has no dogma or theology, no wish or means to enforce religious orthodoxy.

(b)It offers no sacraments.
(c) It does not claim to lead to salvation by works, by secret knowledge, or by any other means. The secrets
of Freemasonry are concerned with the modes of recognition, not with the means of salvation.
Masonic Information Center, Statement on Freemasonry and Religion (Dec. 1993), available at
http://www.rsm-mi.org/stmt.html (on file with the Ave Maria Law Review).
n26. See generally Leo Strauss, Spinoza's Critique of Religion (E.M. Sinclair trans., 1965).
Page 16
n27. See generally Manfred Kuehn, Christian Thomasius and Christian Wolff, in The Columbia History of
Western Philosophy 472-75 (Richard H. Popkin et al. eds., 1999).
n28. See generally 2 Francois Voltaire, The Philosophical Dictionary 437-48 (Peter Gay trans., Basic Books
1962) (1764) (expressing skepticism toward traditional religious beliefs).
n29. See generally Denis Diderot, Rameau's Nephew and D'Alembert's Dream (L.W. Tancock trans.,
Penguin Books 1966) (1762).
n30. See Second Vatican Council, Dignitatis Humanae [Declaration on Religious Freedom] (1965),
reprinted in The Sixteen Documents of Vatican II 397-413 (Nat'l Catholic Welfare Conference trans., St. Paul
ed. 1967).
n31. Pope John Paul II, Message to the Secretary General of the United Nations (Dec. 2, 1978), at
http://www.vatican.va/holy father/john paul ii/speeches/1978/documents/hf jp-ii spe 19781202 segretario-onu
en.html (on file with the Ave Maria Law Review).
n32. Pope John Paul II, Centesimus Annus [On the Hundredth Anniversary of Rerum Novarum] PP 53-62
(St. Paul ed. 1991).
n33. Pope John Paul II, Redemptor Hominis [Encyclical Letter, The Redeemer of Man] P 14 (St. Paul ed.
1979).
n34. See, e.g., George Weigel, Witness to Hope: The Biography of Pope John Paul II (1999) [hereinafter
Witness to Hope].
n35. Pope John Paul II, Visit to the United Nations and the United States: Greeting to the United Nations
Staff (Oct. 5, 1995) ("For you, it means being resolutely committed to honesty and personal integrity in your
work and professional relationships. It means respecting the religious and cultural traditions of others, and even
protecting and promoting them when necessary. It means applying to yourselves the same standards of conduct
and courtesy which you expect from others."), available at http://www.ewtn.com/library/PAPALDOC
Page 17
/JP2US95C.htm (on file with the Ave Maria Law Review).
n36. Genesis 1:26-27 ("Then God said: "Let us make man in our image, after our likeness. Let them have
dominion over the fish of the sea, the birds of the air, and the cattle, and over all the wild animals and all the
creatures that crawl on the ground.' God created man in his image; in the divine image he created him; male and
female he created them.").
n37. 1 Corinthians 1:30.
n38. See, e.g., Witness to Hope, supra note 34.
n39. As John Paul II writes in Fides et Ratio,
In the Encyclical Letter Veritatis Splendor, I wrote that many of the problems of the contemporary world stem
from a crisis of truth. I noted that "once the idea of a universal truth about the good, knowable by human reason,
is lost, inevitably the notion of conscience also changes. Conscience is no longer considered in its prime reality
as an act of a person's intelligence, the function of which is to apply the universal knowledge of the good in a
specific situation and thus to express a judgment about the right conduct to be chosen here and now. Instead,
there is a tendency to grant to the individual conscience the prerogative of independently determining the criteria
of good and evil and then acting accordingly. Such an outlook is quite congenial to an individualist ethic,
wherein each individual is faced with his own truth different from the truth of others."
Pope John Paul II, Fides et Ratio [Encyclical Letter on the Relationship Between Faith and Reason] P 98 (St.
Paul ed. 1998).
n40. The text on a plaque mounted in the base of the Statue of Liberty states the following:
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Page 18
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep, ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Page 19
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

Emma Lazarus, The New Colossus, available at http://usinfo.state.gov/usa/infousa/facts /democracy/63.htm (on
file with the Ave Maria Law Review) (citing 1 Emma Lazarus, The Poems of Emma Lazarus 2 (1889).
n41. Pope John XXIII, Pacem in Terris [Encyclical Letter on Establishing Universal Peace in Truth, Justice,
Charity, and Liberty] P 12 (St. Paul ed. 1963) [hereinafter Pacem in Terris] ("By the natural law every human
being has the right to respect for his person, to his good reputation; the right to freedom in searching for truth
and in expressing and communicating his opinions, and in pursuit of art, within the limits laid down by the
moral order and common good; and he has the right to be informed truthfully about public events.").
n42. Pope Paul VI, Populorum Progressio [Encyclical Letter on The Development of Peoples] P 15 (St. Paul
ed. 1967) [hereinafter Populorum Progressio] ("In the design of God, every man is called upon to develop and
fulfill himself, for every life is a vocation... . Endowed with intelligence and freedom, he is responsible for his
fulfillment as he is for his salvation. He is aided, or sometimes impeded, by those who educate him and those
with whom he lives, but each one remains, whatever be these influences affecting him, the principal agent of his
own success or failure. By the unaided effort of his own intelligence and his will, each man can grow in
humanity, can enhance his personal worth, can become more a person.").
n43. 1 Corinthians 13:6 ("[Love] does not rejoice over wrongdoing but rejoices with the truth."); John 8:32
("The truth will set you free.").
n44. See Press Release, United Nations, Kofi Annan Stresses Importance of Universality of Human Rights,
Soundness of Rule of Law, For Common Understanding Among Governments and People, U.N. Doc.
SG/SM/6958 (Apr. 12, 1999), available at http://www.un.org/News /Press/docs/1999/19990412.sgsm6958.html
(on file with the Ave Maria Law Review).
n45. In particular, Paul III followed Vitoria in espousing equal human rights for the native peoples of the
New World. See, e.g., Catholic League for Religious and Civil Rights, Catholicism and Slavery ("In the Spanish
colonies of the western hemisphere Catholic missionaries, supported by Pope Paul III, were outspoken in
advocating for the human rights of Native American slaves, and decrying their harsh treatment by Spanish
settlers. Their efforts prompted the New Laws of the Indies, a royal proclamation from Charles V of Spain
banning all future enslavement of Indians, and mandating humane treatment of those already enslaved."), at
Page 20
http://www.catholicleague.org/catholicism and slavery/stopskyconclhtm.htm (on file with the Ave Maria Law
Review).
n46. The Declaration of Independence para. 1-2 (U.S. 1776). Specifically, the document states,
WHEN in the Course of human events, it becomes necessary for one people to dissolve the political bands
which have connected them with another, and to assume among the powers of the earth, the separate and equal
station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of
mankind requires that they should declare the causes which impel them to the separation.
WE hold these truths to be self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That
to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of
the governed, -- that whenever any Form of Government becomes destructive of these Ends, it is the Right of the
People to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and
organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
n47. See, e.g., Joseph M. de Torre, Person, Family and State: An Outline of Social Ethics 29-45 (1991).
n48. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).
n49. 3 Flavius Vegetius Renatus, Epitoma Rei Militaris P 1 (circa 375) ("Igitur qui desiderat pacem,
praeparet bellum... ." ("Therefore, he who longs for peace, let him make ready for war.")), available at
http://www.gmu.edu/departments/fld/CLASSICS/vegetius3.html (on file with the Ave Maria Law Review). The
phrase is sometimes given as "Si vis pacem, para bellum" ("If you desire peace, make ready for war."). See list
of Latin Proverbs at http://en.wikipedia.org/wiki/Latin proverbs (on file with the Ave Maria Law Review).
n50. Pacem in Terris, supra note 41, pmbl.
n51. Id. at PP 11-27.
Page 21
n52. Mother Teresa, National Prayer Breakfast Speech (Feb. 5, 1994), available at
http://www.worldnetdaily.com/news/article.asp?ARTICLE ID=36681 (on file with the Ave Maria Law Review).
See also Mother Teresa, Nobel Lecture (Dec. 11, 1979), available at
http://www.nobel.se/peace/laureates/1979/teresa-lecture.html ("... the greatest destroyer of peace today is
abortion, because it is a direct war, a direct killing--a direct murder by the mother herself.").
n53. Populorum Progressio, supra note 42, P 87 ("With a full heart We bless you, and We appeal to all men
of good will to join you in a spirit of brotherhood. For, if the new name for peace is development, who would
not wish to labour for it with all his powers? Yes, We ask you, all of you, to heed Our cry of anguish, in the
name of the Lord.").
n54. Id. P 20 ("If further development calls for the work of more and more technicians, even more necessary
is the deep thought and reflection of wise men in search of a new humanism which will enable modern man to
find himself anew by embracing the higher values of love and friendship, of prayer and contemplation. This is
what will permit the fullness of authentic development, a development which is for each and all the transition
from less human conditions to those which are more human." (internal citations omitted)). See, e.g., Jacques
Maritain, Integral Humanism: Temporal and Spiritual Problems of a New Christendom (Joseph W. Evans trans.,
English trans. 1968).
n55. Hegel employed the dialectic as a way of explaining the process through which history resolves
conflicts and changes, and, although Marx himself never used it, his followers arrogated the term "dialectical
materialism" to describe his philosophy. Speaking superficially, the similarity between the two theories is the
dialectical aspect, whereby the world undergoes change. The difference is the fact that the Hegelian dialectic is
idealist and focuses on a supernatural consciousness that created matter, while the Marxian dialectic is
concerned with matter without reference to any higher reality, hence, the addition of materialism. See The
Oxford Companion to Philosophy 198 (Ted Honderich ed., 1995) (defining "dialectic" and "dialectical
materialism").
n56. As Professor Irene Bloom writes,
The idea of a fundamental similarity among human beings is a new development in China during the period
from the sixth to the third centuries B.C.E. closely identified with Confucius, and even more with Mencius, it
sets the classical Confucian tradition apart from certain other traditions that were also evolving during the "axial
age.' ... The emphasis on a common human moral potential implies a respect for persons that goes beyond, and
tends to undermine, class distinctions.
Irene Bloom, Fundamental Intuitions and Consensus Statements: Mencian Confucianism and Human Rights, in
Confucianism and Human Rights 94, 98 (Theodore de Bary & Tu Weiming eds., 1998).
Page 22
n57. Matthew 10:34.
n58. Cf. Matthew 10:37-38; Matthew 10:39 ("Whoever finds his life will lose it, and whoever loses his life
for my sake will find it."); John 12:25-26 ("Whoever loves his life loses it, and whoever hates his life in this
world will preserve it for eternal life.").
n59. See, e.g., Joseph M. de Torre, Openness to Reality: Essays on Secularism and Transcendence 5-20
(1995) [hereinafter Openness to Reality].
n61. See generally Aristotle, Politics (H. Rackham trans., Harvard Univ. Press rev. ed. 1998); Aristotle, The
Nicomachean Ethics (H. Rackham trans., Harvard Univ. Press rev. ed. 1998).
n62. The author has also pursued this point in depth in Joseph M. de Torre, Natural Law and Human Rights:
Francisco de Vitoria (1486-1546), XV Vera Lex, Nos. 1 & 2, 2 (1995).
n63. See generally Juan Belda, La Escuela de Salamanca y la Renovacion de la Teologia en el Siglo XVI
(2000).
n64. See generally Joseph A. Schumpeter, History of Economic Analysis 51-378 (Elizabeth Boody
Schumpeter ed., 1954).
n65. Alejandro Antonio Chafuen, Christians For Freedom: Late-Scholastic Economics (1986).
n66. See generally Joseph M. de Torre, Freedom, Truth and Love: The Encyclical Centesimus Annus
Page 23
151-65 (1992) (grounding the idea of a dynamic economy and democracy in the Catholic understanding of the
dignity of the human person whose intelligence applied to resources toward the common good is the real source
of wealth); Marjorie Grice-Hutchinson, The School of Salamanca: Readings in Spanish Monetary Theory
1544-1605 (1952).
n67. 1 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (R.H. Campbell et al.
eds., Liberty Fund 1981) (1776).
n68. Cf. Joseph M. de Torre, Generation and Degeneration: A Survey of Ideologies 87-92 (1995).
n69. The Rights and Obligations of Indians and Spaniards in the New World (Luciano Pere<tild n>a
Vicente ed., 1992) [hereinafter Rights and Obligations].
n70. Cf. Francis de Vitoria, De Indis, in Political Writings 231, 251 (Anthony Pagden & Jeremy Lawrence
eds., 1991) ("Aristotle certainly did not mean to say that such men thereby belong by nature to others and have
no rights of ownership over their own bodies and possessions ... such slavery is a civil and legal condition, to
which no man can belong by nature."). See generally Rights and Obligations, supra note 69.
n71. See International Law, in 21 The New Encyclopedia Britannica 789, 790 (15th ed. 2002) ("When in the
late 15th and 16th centuries Spain became the leading Western power, Francisco de Vitoria ... founded the
Spanish school of international law.").
n72. Pope Paul III wrote,
We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those
sheep of His flock who are outside into the fold committed to our charge, consider, however, that the Indians are
truly men and that they are not only capable of understanding the Catholic Faith but, according to our
information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, We define
and declare by these Our letters, or by any translation thereof signed by any notary public and sealed with the
seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that,
notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people
who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of
their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and
legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved;
Page 24
should the contrary happen, it shall be null and have no effect.

Pope Paul III, Sublimus Dei, P 4 (1537) (discussing the enslavement and evangelization of the Indies natives),
available at http://www.papalencyclicals.net/Paul03/p3subli.htm (on file with the Ave Maria Law Review).
n73. Cf. Enchiridion Symbolorum Definitionum et Declarationum: de Rebus Fidei et Morum 362 (Henricus
Denzinger & Adolfus Sch<um o>nmetzer, S.J. eds., 1965) [hereinafter Enchiridion]. Spain did not withdraw
from the new lands, but pledged to implement those "Laws of the Indies" guaranteeing the equality of all.
Subsequently, Philip II, in accordance with those Laws, prohibited any further "conquest" by Spain, so that
when Legazpi reached the Philippines in 1565 he simply offered a friendship treaty by blood-compacts with the
chieftains of the archipelago and a peaceful evangelization. Cf. Belen L. Tangco, Contemporary Philippine
Democracy (1986-1989) in the Light of the Political Thought of St. Thomas Aquinas (a doctoral dissertation
approved with the degree of Meritissimus by the Pontifical University of Santo Tomas, Manila) (on file with the
Ave Maria Law Review).
n74. "The Laws and ordinances newly made by His Majesty for the government of the Indies and good
treatment and preservation of the Indians created a set of pro-Indian laws--so pro-Indian that they some [sic] had
to be revoked in Mexico and in Peru due to settler opposition, where the viceroy was killed when he attempted
to enforce them." Modern History Sourcebook, The New Laws of the Indies, available at
http://www.fordham.edu/halsall/mod /1542newlawsindies.html (on file with the Ave Maria Law Review).
n75. See Canons and Decrees of the Council of Trent 11 (H. J. Schroeder trans., 1978).
n76. See Modern History Sourcebook, supra note 74.
n77. See Lewis Hanke, All Mankind Is One: A Study of the Disputation Between Bartolome de Las Casas
and Juan Gines de Sepulveda in 1550 on the Intellectual and Religious Capacity of the American Indians 82-99
(1974).
n78. Cf. Francisco de Vitoria, De Indis Et De Jure Belli Reflectiones: Being Parts of Reflectiones
Theologicae XII, in The Classics of International Law (Ernest Nys & James Brown Scott eds., 1917); see
generally Ramon Hernandez, O.P., Derechos Humanos en Francisco de Vitoria (1984); Ramon Hernandez, O.P.,
Francisco de Vitoria: Vida y pensamiento internacionalista (1995).
Page 25
n79. As Jacques Maritain said,
There is no need to add that the will of the people is not sovereign in the vicious sense that whatever would
please the people would have the force of law. The right of the people to govern themselves proceeds from
Natural Law: consequently, the very exercise of their right is subject to Natural Law. If Natural Law is
sufficiently valid to give this basic right to the people, it is valid also to impose its unwritten precepts on the
exercise of this same right. A law is not made just by the sole fact that it expresses the will of the people. An
unjust law, even if it expresses the will of the people, is not a law.
Jacques Maritain, Man and the State 48 (Catholic Univ. of Am. Press 1998) (1951).
n80. Yves R. Simon, Philosophy of Democratic Government 99 (1951) ("The danger of oppression by the
majority is so obvious that the history of modern democracy is haunted by the ambition of including the
minority in the controlling electoral body.").
n81. See discussion infra.
n82. See generally 1 & 2 William A. Hinnebush, O.P., The History of the Dominican Order (1966).
n83. See generally Adrienne Koch, The Philosophy of Thomas Jefferson (1943).
n84. See generally The Principles of Political and International Law in the Work of Francisco de Vitoria
64-65 (Antonio Truyol Serra ed., 1946) (Vitoria writes: "Indeed, there are many things in this connection which
issue from the law of nations, which, because it has a sufficient derivation from natural law, is clearly capable of
conferring rights and creating obligations.").
n85. Thomas Aquinas, Summa Theologica, Part I-II, Question 57, Article 3 (Fathers of the English
Dominican Province trans., Christian Classics 1981). Aristotle, on the contrary, had affirmed that some men are
"born slaves." Id.
n86. Francisco de Vitoria, On the Law of War, in Political Writings 293, 303 (Anthony Pagden & Jeremy
Page 26
Lawrance eds., 1991) ("The sole and only just cause for waging war is when harm has been inflicted.").
n87. Francisco de Vitoria, On Law: Lectures on ST I-II. 90-105, in id. at 153, 200 ("But it remains true that
if a king proves to be a tyrant in government the commonwealth can depose him, because even if the
commonwealth has given away its authority it keeps its natural right to defend itself; if there is no other way, it
may reject its king.").
n88. Francisco de Vitoria, I On the Power of the Church, in id. at 45, 84 ("The pope is not the lord of the
whole world.").
n89. Hugo Grotius, 2 De Jure Belli Ac Pacis Libri Tres 550-53 (Francis W. Kelsey trans., William S. Hein
1995) (1925).
n90. Edward Dumbauld, The Life and Legal Writings of Hugo Grotius 73-74 (1969) ("For the law of nature
Grotius found a basis in human nature. This foundation would remain firm even if it should wickedly be
supposed that God does not exist or takes no concern in human affairs."). See also id. at 74 n.97.
n91. Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (C.H. Oldfather & W.A. Oldfather trans.,
William S. Hein 1995) (1688) [hereinafter De Jure].
n92. Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature (Ian Hunter & David
Saunders eds., Andrew Tooke trans., 2003) (1673) [hereinafter The Whole Duty of Man].
n93. As one modern editor writes of Pufendorf in an introduction to his work, "it is, however, to be admitted
that Pufendorf was not in the domain of international law a pioneer to the same extent as, for instance, Francisco
de Vitoria or Hugo Grotius." De Jure, supra note 91, at 11a. Later in the same introduction it is said that,
although not denying the contribution of his own work, "[Pufendorf] mentions with expressions of veneration
the name of Hugo Grotius... ." Id. at 18a. The rest of the introduction is a short discussion of the particular views
Pufendorf takes up in his work, the greater number of which seem to be in accord with or drawn from the views
of Grotius.
Page 27
n94. Id. at 166-232.
n95. Id. at 1132 (Pufendorf writes, "A law is civil with respect to its origin, which arises purely in the will
of the supreme civil power.").
n96. See, e.g., Francisco Suarez, S.J., De Legibus, Ac Deo Legislatore (1612), reprinted in 2 The Classics of
International Law: Selections From Three Works 336 (James Brown Scott ed., Gwladys L. Williams et al. trans.,
William S. Hein & Co. 1995) ("The law in question does spring from the force of natural reason alone; yet it is
fitted, not for men in an absolute sense, but for men as congregated in some human society; and, consequently, it
is distinguished from the primary natural law as a secondary phase (so to speak) and is called the ius gentium.").
Clearly then, for Suarez the ius gentium is a part of the natural law and distinguished from a law arising from the
will of the lawgiver.
n97. The Whole Duty of Man, supra note 92, at 71-73.
n98. Id. at 73-75.
n99. Id. at 75-76.
n100. Id. at 76-77.
n101. Id. at 77-80.
n102. Id. at 80-94.
n103. See generally Vicente Beltran de Heredia, Domingo de Soto: Estudio biografico documentado (1961).
Page 28
n104. See generally Suarez, supra note 96.
n105. See generally Luis de Molina, La Teoria Del Justo Precio (Francisco G. Camacho ed., 1981).
n106. See generally James Brodrick, The Life and Work of Blessed Robert Francis Cardinal Bellarmine,
S.J. 1542-1621 (1928).
n107. See generally Jean Bodin, Colloquium of the Seven About Secrets of the Sublime (Marion Leathers
Daniels Kuntz trans., 1975).
n108. See generally Richard Hooker, Tractates and sermons (W. Speed Hill ed., Harvard Univ. Press 1990)
(1553).
n109. Alberici Gentilis, 3 De Iure Belli 37 (Thomas Erskine Holland ed., London, Clarendoniano 1877)
("Sed hanc sententiam, de bello propter religionem non mouendo, probatam omnibus, nemine excepto, testatur
doctissimus a Vitoria." ["But in fact this way of thinking, concerning not going to war on account of religion,
[that is] approved by all [and] excluded by no one, was attested to by the most learned Vitoria."]). He also cites
Vitoria for several other propositions, including, inter alia, "Et subditus non iuste interficit innocentem ex
mandato principis." ("And the subject does not rightfully kill the innocent by reason of a prince's command.") Id.
at 120. Translation from the Latin is by Albert Anthony Starkus.
n110. See generally Rolf Lieberwirth, Christian Thomasius (Nachfolger 1955).
n111. See generally Francis Hutcheson, On Human Nature (Thomas Mautner ed., 1993).
n112. See generally David Hume, A Treatise of Human Nature (L.A. Selby-Bigge & P.H. Nidditch eds., 2d
ed. 1978).
Page 29
n113. See generally Jeremy Bentham, The Limits of Jurisprudence Defined (Charles Warren Everett ed.,
1945).
n114. The Declaration of Independence para. 2 (U.S. 1776) ("We hold these truths to be self-evident, that
all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.").
n115. See, e.g., George Washington, Farewell Address (Sept. 19, 1796), in The American Republic:
Primary Sources 72, 76 (Bruce Frohnen ed., 2002) ("Of all the dispositions and habits which lead to political
prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of
Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties
of Men and citizens.").
n116. Lincoln stated in the Gettysburg Address,
It is rather for us to be here dedicated to the great task remaining before us - that from these honored dead we
take increased devotion to that cause for which they gave the last full measure of devotion - that we here highly
resolve that these dead shall not have died in vain - that this nation, under God, shall have a new birth of
freedom - and that government of the people, by the people, for the people, shall not perish from the earth.
Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863), in Three Lincoln Masterpieces 144, 144 (Benjamin
Barondess ed., 1954) (emphasis added).
n117. See generally Andre Trannoy, Montalembert (1947).
n118. See generally Juan Donoso Cortes, Selected Works of Juan Donoso Cortes (Jeffrey P. Johnson ed. &
trans., 2000).
n119. See generally Frederic Bastiat, Providence and Liberty (Raoul Audouin trans., 1991).
n120. See generally Roland Hill, Lord Acton (2000); John Emerich Edward Dalberg-Acton, First Baron
Page 30
Acton, Selected Writings of Lord Acton: Essays in Religion, Politics, and Morality (J. Rufus Fears ed., 1988).
n121. See generally Jacques Maritain, An Essay on Christian Philosophy (Edward H. Flannery trans., 1955).
n122. See generally Alexis de Tocqueville, Democracy in America (Alfred A. Knopf 1994) (1835).
n123. Declaration of the Rights of Man and of the Citizen art. 6 (Fr. 1789) (emphasis added).
n124. Tocqueville writes,
I hold it to be an impious and an execrable maxim that, politically speaking, a people has a right to do
whatsoever it pleases; and yet I have asserted that all authority originates in the will of the majority. Am I then
contradicting myself?
A general law - which bears the name of Justice - has been made and sanctioned, not only by a majority of this
or that people, but by a majority of mankind. The rights of every people are consequently confined within the
limits of what is just. A nation may be considered as a jury which is empowered to represent society at large,
and to apply the great and general law of Justice.
Alexis de Tocqueville, The Tyranny of the Majority, in On Democracy, Revolution, and Society 99, 99 (John
Stone & Stephen Mennell eds., 1980).
n125. See supra notes 6, 13, 14 and accompanying text.
n126. Stephen Ellenburg, Rousseau's Political Philosophy: An Interpretation from Within (1976). Ellenburg
writes,
Like a natural body, a body politic has its own "life." Its life is "the self common to the whole [le moi commun
au tout], the reciprocal sensibility and internal correspondence of all its parts." Its common self is a "will," a
Page 31
given "general will" comprising the social identity shared by all mutually dependent members of a determinate
common life.
Id. at 101-02 (alteration in original).
n127. See generally V.I. Lenin, What Is to Be Done? (S.V. Utechin ed. & trans., Patricia Utechin trans.,
1963); see also Robert Service, Lenin: A Biography (2000).
n128. See generally Nicholas Farrell, Mussolini: A New Life (2003).
n129. See generally Klaus P. Fischer, Nazi Germany: A New History (1998); John Toland, Adolf Hitler
(Anchor Books 1992) (1976).
n130. See generally Openness to Reality, supra note 59, at 11-19 (tracing American and international trends
toward pragmatism to the psychology of William James and its effect on culture, human rights, and particularly
the university where the fundamental and natural question, "what is truth," now arouses perplexity and
indifference, weakened by a pragmatic inquiry into the question of "what is the use of truth?" which becomes an
extremely dangerous ground for solving legal, economic, and political problems in the world).
n131. See Enchiridion, supra note 73.
n132. See Contemporary Philosophical Issues, supra note 9.
n133. Ernest Nys, Le Droit de guerre et les precurseurs de Grotius, 15 Revue de Droit international et legal
comparee (1882).
n134. See Vitoria, supra note 86.
Page 32
n135. See Tranquilitas Ordinis, supra note 8, at 40 (highlighting Vitoria's seminal contribution to these
ethical issues with his conception of a "community of nations" as a framework for international law and the
forum for universal consensus through dialogue on the basis of equality).
163MX5
********** Print Completed **********
Time of Request: Wednesday, November 04, 2015
Print Number:
1825:536149437
Number of Lines: 841
Number of Pages: 32
Send To:
LUMAGUE, BLYTHE
ATENEO DE MANILA LAW SCHOOL
20 ROCKWELL DR 3RD FLR
ATENEO BLDG
MAKATI CITY, PHL 1700
20:01:47 EST

The Roots of International Law

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

The Roots of International Law

Hochgeladen von

Copyright:

Verfügbare Formate

163MX5

Time of Request: Wednesday, November 04, 2015

freedom for every person and community. n35

Article 1: Whether it is lawful for Christians to wage war.

Article 2: On what authority may war be declared or waged.

Article 2: Whether subjects are required to examine the causes of war.

Article 3: What is to be done when the justice of war is undecided?

Article 4: War cannot be just on both sides.

Article 1: Whether one may kill innocent people in a just war.

Article 2: Whether one may plunder innocent people in a just war.

Article 3: Whether one may enslave the innocent in a just war.

Article 4: Whether one may execute hostages.

Article 5: Whether one may execute all the enemy combatants.

Article 8: Whether one may impose tribute on a defeated enemy.

Conclusion: The rules of war summarized in three canons. n134

n3. Id. (quoting Isaiah 32:17).

n13. Thomas Hobbes, Leviathan 104 (Am. ed. 1950) (1651).

n14. Titus Maccius Plautus, Asinaria 72 (R.A.D.A.R. Padova 1968).

n16. See generally Contemporary Philosophical Issues, supra note 9.

n19. See generally Contemporary Philosophical Issues, supra note 9.

n24. See Humanism, supra note 21.

n25. Freemasonry lacks the basic elements of religion:

(a)It has no dogma or theology, no wish or means to enforce religious orthodoxy.

/JP2US95C.htm (on file with the Ave Maria Law Review).

n37. 1 Corinthians 1:30.

n38. See, e.g., Witness to Hope, supra note 34.

n39. As John Paul II writes in Fides et Ratio,

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

"Keep, ancient lands, your storied pomp!" cries she

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

n50. Pacem in Terris, supra note 41, pmbl.

n51. Id. at PP 11-27.

n56. As Professor Irene Bloom writes,

n57. Matthew 10:34.

n60. See generally Contemporary Philosophical Issues, supra note 9.

n72. Pope Paul III wrote,

should the contrary happen, it shall be null and have no effect.

n76. See Modern History Sourcebook, supra note 74.

n79. As Jacques Maritain said,

n81. See discussion infra.

n94. Id. at 166-232.

n97. The Whole Duty of Man, supra note 92, at 71-73.

n98. Id. at 73-75.

n99. Id. at 75-76.

n100. Id. at 76-77.

n101. Id. at 77-80.

n102. Id. at 80-94.

n104. See generally Suarez, supra note 96.

n110. See generally Rolf Lieberwirth, Christian Thomasius (Nachfolger 1955).

n116. Lincoln stated in the Gettysburg Address,

n117. See generally Andre Trannoy, Montalembert (1947).

n124. Tocqueville writes,