ANTNIO MARTINS

NATURAL LAW AND THE LAW OF NATIONS. A CASE STUDY

I
Although this paper does not address the history of law and institutions, it is nevertheless
worthwhile recalling, in general, some of the co-ordinates and facts underlying our topic,
i.e. Portugal and Spain in the early 17th Century. Two independent kingdoms, but united
under a single King since 1580; two world empires with a growing loss of influence since
the late 16th century in favour of the new, emerging colonial powers, England and
Holland.
The voyages of Christopher Colombo and Vasco da Gama were important moments in
the history of humanity, as acknowledged by Adam Smith inter alia. They conceivably
influenced the first globalisation process, which extended beyond the sphere of trade. It
comprised other aspects that changed Europeans view of themselves and of the world.
The image of the world (cosmos, mundus, orbis terrarum) since antiquity was of an
oikumene as Herodotus put it - surrounded by a vast ocean.
It was the Portuguese and Spanish expansion that brought about change to geography and
human imagination. In 1508, in Esmeraldo de situ orbis, Duarte Pacheco Pereira said it
is not the ocean that surrounds land, as the philosophers thought, but land that surrounds
the seas. The ocean was no longer a border; it had become a path or route capable of
connecting the earths peoples.
The expansion, in its many different aspects, inevitably fostered much reflection among
theologians, jurists and philosophers: Francisco Vitria, Bartolomeu de Las Casas,
Domingos de Soto, Molina, Surez, Vzquez, Covarrubias, to name a few. As is well
known, some of the principles governing the conduct of states, ius gentium as they are
called in Latin, date from the antiquity. Yet, Hugo Grotius is still perceived by most as the
true founder of modern international law. It is not our intention to discuss this title, but
rather to highlight that it is difficult to understand Grotius without the context in which
his works arise, and taking into account the debate prior to him and in which he takes
part. Many authors, who cannot be addressed herein, are involved in this complex
process. Before De Iure Belli et Pacis (1625), which brought him into the limelight,
Grotius wrote an anonymous pamphlet, Mare Liberum (1609). The ideological reply was
delivered in 1635 by the Englishman Selden, in Mare Clausum. The Portuguese response
- not adopted officially for obvious reasons - came in 1625 via De iusto imperio

Lusitanorum Asiatico1 of Father Serafim de Freitas, professor in canonical law at

Valladolid University after studying at Coimbra University. Serafim de Freitas quotes in
his writings theologians, jurisconsults, literary works and canonical documents to refute
the arguments of the author of Mare Liberum. Surez is mentioned again and again.
Freitas agrees with Surezs views on many issues, but begins by disagreeing with one of
the most characteristic features of his approach, the analysis of the law of nations from
the perspective of pure nature. What according to Jean-Franois Courtine is one of the
most characteristic and innovative features of Suarezs law of nations, his doctrine of
pure nature as the source of political power and law is totally unacceptable to Serafim de
Freitas.
Dans le trait des Lois, cest certainement lhorizon de la doctrine de la pure nature qui contribue
dplacer de manire radicale larticulation thomiste entre lex naturalis et lex aeterna. Surez procde
en effet ce que lon est tenter dappeler une lacisation expresse du concept de bien commun, en
dterminant restrictivement la fin de la Respublica humana comme une vritable flicit politique. 2

Ahead, we shall briefly address the question of whether Serafim de Freitass arguments
are convincing when he rejects Suarezs position. We further analyse, briefly, two of the
core issues in Grotiuss work that Freitas wants to refute: the freedom to sail and trade
and the right to armed combat.
It is not our intention to support here any theories of the inception of modern
jusnaturalism and the modern versions of the law of nations, which would require deep
knowledge of the most important sources and fundamental historical data. We do,
however, underwrite a more scrupulous and contextualised knowledge of the authors of
this period. Serafim de Freitas provides us here with a specific outlook on the texts of
Surez and some of his contemporaries, including on the specificity of the Asiatic
Empire.

II
THOMIST DISCUSSION FRAMEWORK

In the European universities influenced by Rome, as elsewhere, in 16th and 17th-century

Iberian scholasticism, Thomas Aquinass Theological Summa was also the starting point
for any discussion about jurisprudence and the law (Treatise on Law, IaIIae, q. 90-97;
1 SERAFIM DE

FREITAS, Do justo imprio asitico dos portugueses. De justo imperio Lusitanorum

Asiatico. [Regarding the Portuguese just asiatic empire] introd. by Marcello Caetano; transl. by Miguel
PINTO DE MENESES, Lisbon, Inst. Nacional de Investigao Cientfica, 1983. 2 vol.
(Facsimiled
reproduction of the 1625 ed.). Our quotations are from this edition indicating the chapter number followed
by paragraph number.
2

J.-F. COURTINE, Nature et empire de la loi, Paris 1999, 150-1.

Treatise on Justice, IIaIIae, q. 57-79). Caietano must be mentioned alongside the wellknown commentators from the Salamanca school.3
The topic of the discussions was always nominally the same, the Respublica Christiana.
This was the title of Joo Baptista Fragosos monumental treatise about political regimes
in 1641. 4 Without discussing the relevance of this name for the specific context in which
Thomas Aquinas and other mediaeval scholars lived, the geopolitical and doctrinal
framework of the analyses by Francisco Vitria and Surez, among others, is quite
different. The facts are too well-known, regardless of the interpretation and evaluation of
each of the elements involved: the discoveries from which stemmed colonial empires, the
Reform and Counter-Reform and confrontation with other powers and empires.
Thomas Aquinas text is read and commented ad nauseam. In this complex
interpretational enterprise, many moments of conflict arise, in spite of an outspoken
intention in many sectors to follow Thomas Aquinas doctrine faithfully. But one should
not forget that the line of thought of the Dominican author was neither the only one, nor
even the dominant line in theology teaching in many Catholic-country universities.
Let us recall some of the features of the link between natural law and law of nations in
Thomas Aquinas. According to Vitoria and Surez, his allegedly most characteristic
stance is laid down in IIae, q.95, a. 4:
Ad primum ergo dicendum quod ius gentium est quidem aliquo modo naturale homini, secundum
quod est rationalis, inquantum derivatur a lege naturali per modum conclusionis quae non est
multum remota a principiis. Unde de facili in huiusmodi homines consenserunt. Distinguitur tamen a
lege naturali, maxime ab eo quod est omnibus animalibus communis.

In this article Thomas Aquinas dissociates himself from the traditional classification of
law in Isidore of Seville (Etimologias V, 4-6). The link between natural law and law of
nations is addressed in terms of the relation between principles and the relevant
conclusions. This and other steps (IIa IIae, q. 57 a. 3) bind the law of nations to natural
law; and the clearer it is that the inference in question is of a deductive nature the
3

Summa Caietana was widely read in Portugal and had several editions in Portuguese and Spanish
translations: TOMAS VIO CAIETANO, Summa caietana trasladada em lingoaje[m] portugues com annotaes
de muytas duuidas, & casos de consciencia Por ho Doctor Paulo de Palacio cathedratico da S. Scriptura na
vniuersidade de Coimbra. Vam em esta terceira edio todos os decretos do S. Ccilio Tridentino q[ue]
sam a p[ro]posito dos casos de cscicia. Coimbra: Ioo de Barreyra, 1566; Summa caietana sacada en
lenguaje Castellano, con annotationes de muchas dudas y casos de consciencia / por el M. Paulo de Palacio.
Lisboa : en casa de Ioannes Blauio de Colonia, 10 Mayo 1557.
4 J. B. FRAGOSO, Regimen reipublicae christianae, ex sacra theologia, et ex vtroque iure ad vtrumque
forum tam internum, quam externum coalescens, in tres partes diuisum: quarum I. Principum, ac
magistratuum ciuilium gubernationem, potestatem, iurisdictionem, & obligationes comprehendit. II.
Principum, ac pastorum ecclesiasticorum iurisdictionem, & obligationes amplectitur; vbi late de religiosis.
III. Oeconomiam continet, ac patrum familis in filios, & domesticos, & filiorum, ac domesticorum in
parentes, ac dominos obligationes explicat. Lugduni : Sumpt. Haered. Gabr. Boissat, & Laurentij Anisson,
1641-1652.

stronger the link. Thomas Aquinas certainly acknowledged other types of links with
natural law, in which legal norms are called determinationes quaedam aliquorum
communium.(q. 95, a. 2). However, in this case the link with natural law is much more
fragile and contingent. The precepts derived in the latter compel with the force of natural
law, whereas those that arise by way of determination have only the force of human law.
This conception of law of nations, as J.-F. Courtine points out, could not take on the task
of binding several political communities to a higher common good.5 We share J.-F.
Courtines conviction about the divide between Thomas Aquinas and some of his most
faithful interpreters, and the interpretation of authors like Vitria and Surez. According
to the latter, the universal common good can be defined in strictly political terms, based
on the idea of a sole state or universal republic.
Francisco Vitria Relectios Relectio de potestate civili and Relectio de Indis can
nowadays be found in several modern editions, while in the second half of the 16th
century there is a Latin edition from Lyon. Vitria finds that justice and law are for
human beings only. Thus excluding any talk, for example, of rights (either natural or of
other kinds) that humans might share with other animals. Vitria acknowledged that
Indians (consequently, all human beings) had the capacity to be subjects of rights and
become members of a perfect political community. In spite of trying to faithfully interpret
Thomas Aquinas, the truth is that Vitria and his contemporaries were faced with new
geopolitical circumstances, which caused him and Surez to increasingly emphasise the
aspects underlying international law. Obviously, it is always possible to reinterpret all the
texts and stress what Vitria and Surez, and Toms Aquinas still have in common. These
are perfectly legitimate interpretational strategies, provided they do not distort texts, nor
disregard the presuppositions to each particular historical context. What Vitria found
relevant was that political power was directly under the political community which could
transfer it in many different ways. Such detachment from all political things holds for all
peoples and periods, and does not contradict another of his theories regarding the ultimate
source of political power, i.e. natural (and divine) law. The issue of fair war is relevant to
the context of this apparent fundamental equality between all peoples. When one
introduces the basic principle of human beings natural capacity of socialising and
communicating as the reason for this achievement, the door is obviously open to an
ideological use of the law of nations. Vitria finds it necessary to distinguish between two
types of law of nations: a universal law of nations (derived from natural law and which
does not admit exceptions) and a pact-based law of nations (adopting customs, treaties,
pacts, etc). See De potestate civili, 21.
Surez develops further Vitrias reflections about the autonomy of political
communities, but in De Legibus he also develops a doctrine of the law of nations and its
relation to natural law, which features a narrower conception of jurisprudence and law.
We are in the presence of a discussion in which many authors took part. Surez quotes
5

J.-F. COURTINE, Nature et empire de la loi, Paris 1999, p. 123.

not only his contemporaries - theologians and jurists -, but also experts of tradition. When
Surez arrives in Coimbra, in 1597, Vitrias theories and that of other theologians and
jurists from the Salamanca school had already undergone a long and complex reception
process in the Theology and Law Faculties (Martin de Ledesma, Antnio de Santo
Domingo, Rodrigo de Sousa, Pedro Barbosa, Manuel Soares, etc). The following is some
of the printed literature produced by Jesuits in that period: Lus de Molina (De Iustitia et
Iure, Cuenca, 1593-), Gabriel Vzquez ( Commentariorum in primam-secundae S.
Thomae, 2 vol. (Alcal, 1598-1605) and Juan Salas (Tractatus de Legibus, Lyon, 1611).
Surezs theses in the early 17th Century about the law of nations, as readdressed during
his teaching in Coimbra, are laid down in the treatise De Legibus, II 17-20. This text
should be read together with De bello (= 13th disp. in the treatise De Charitate, Opera,
vol. 12) and in line with the concept of sovereignty in Defensio Fidei (Coimbra, 1613).
In the latter we find one of the clearest statements of the duty to obey political authority
and the law, which is founded directly on the law of nations, and not entirely and directly
on natural law:
Obedientiam civilem regibus datam, licet fundata sit et radicata in iure naturali, verius et proprius
dici esse de iure gentium, quia non est immediate de iure naturali, sed supposita hominum
coniunctione in uno politico corpore et communitate perfecta, vel certe ad summum dici potest esse
de iure naturae supposito pacto et conventione inter hominess. 6

Courtine highlights the importance of this text repeatedly. This is all in line with a ius
gentium as something clearly tied to the political sphere and detached from natural law.
The law of nations is seen as positive law, although coded differently from that of civil
positive law. Surez finds that the mere fact that ius gentium is an unwritten law is
enough to distinguish it adequately from civil law. It is essentially a law founded on
custom. It is composed mainly of the customs of peoples since time immemorial (II,
20.1). Surez uses ius gentium to refer to two types of norms (those followed by all
peoples civitates vel regna intra se observant, De Leg. II, 19,8); and, sensu stricto, law
governing all peoples and nations in their relations with each other, that which later is
called public international law. As it is a law that governs relations between peoples, the
force and binding power of its norms depend on the correct functioning of each society
and on compliance with commitments.
Although the law of nations is close to natural law, Surez agrees that, in some cases, it
may even allow things which go against the latter. He quotes anecdotally, two examples
in this regard: prostitution and small or moderate cheating in business transactions, both
of which tolerated by law:
Differentia inter ius gentium et naturale.
6

Defensio fidei, VI, 6,11.

Addo vero esse differentiam inter ius gentium et naturale rigorosum, quod ius naturale non solum
praecipit bona, sed etiam ita prohibet omnia mala, ut nullum permittat. Ius autem gentium aliqua
mala permittere potest, ut notavit Matienzo, lib 5 Recopilationis, tit 11, leg 1, Gloss.1, n. 3. Quod
maxime videre haber locum in illo iure gentium, quod re vera civile est, per similitudinem autem et
convenientiam nationum vocatur gentium. Sic enim sicut in iure civili permittuntur aliqua mala, ita
etiam
possunt permitti iure gentium, quia ipsa permissio potest esse tam necessaria iuxta
fragilitatem et conditionum hominum vel negotiorum, ut in ea servanda omnes fere nationes
concordent; talis esse videtur permissio meretricum, et permissio deceptionis in contractu, quae non
sit enormis, et similia. 7

As it is impossible to discuss every aspect of Surezs doctrine on this topic, about which
a lot has already been written, we are going to briefly look at the passages in Serafim de
Freitass work where Surez is mentioned directly. Serafim de Freitass texts provide the
starting point for a case study. Our purpose is not to address all the points of view
involved in this issue. Before analysing some passages in which Francisco Surez is
mentioned, a couple of words are merited on the context most adjacent to this discussion
about the anonymous text, which we now know is by Hugo Grotius.
III
SOME ASPECTS OF THE DEBATE BETWEEN SERAFIM DE FREITAS AND GROTIUS

The context is the discussion about the pamphlet on Mare Liberum (1609), which
was published anonymously in Holland. We now know, however, it is chapter 12 of De
Iure Praedae that was published only in the 19th century.8
This short text was enough to make Grotius popular among his contemporaries. The
debate had begun long before and intensified when the Santa Catarina was caught,
together with its valuable cargo, in 1603. The main purpose of Mare Liberum was to deny
all Portuguese rights to conduct special and exclusive trade all over, and in the Indian
Ocean in particular. The title of this dissertatio was very straightforward: Mare
Liberum sive de ivre qvod batavis competit an indicana commercia, or Dutch right to
Take Part in the East Indian Trade.

7
8

De Leg. II, 20.3.

For the nearest historical context and, in particular, the many examples of conflicts and alliances
between the Dutch and the Portuguese and other nations in the late 16th and early 17th centuries see
MARTINE J. ITTERSUM, Profit and Principle. Hugo Grotius, Natural Rights Theories and the Rise of Dutch
Power in the East Indies, 1595-1615, Leiden 2006; the same author furnishes some precious indications
about the date in which Mare Liberum was written and changes made by Grotius to this text and in the rest
of the De Jure Praedae manuscript: M. J. ITTERSUM, Dating the manuscript of De Jure Praedae
(1604-1608): What watermarks, foliation and quire divisions can tell us about Hugo Grotiuss development
as a natural rights and natural law theorist, in History of European Ideas, 35(2009), 125-193. See also M. J.
ITTERSUM, The long goodbye: Hugo Grotius justification of Dutch expansion overseas, 16151645,
in History of European Ideas 36(2010), pp. 386-411 and the special issue of Grotiana dedicated to Mare
Liberum 400 years (2009, Volume 30, Number 1).

Grotius appeals to the Christian kings (ad principes popvlosqve liberos orbis christiani) to
acknowledge the legitimacy of the claims of the Dutch East India Company (VOC) and
to see the weaknesses in the Portuguese claims; all of the Portuguese arguments are
considered specious and contrary to natural law and that of nations. What was at stake
was the freedom to sail and trade in the East Indies without any interference from the
Portuguese.9
The text has a strong rhetorical tone, which cannot be ignored in any analysis of Mare
Liberum. The string of arguments on the issue of the ownership and possession of the
oceans is intended to safeguard the trade conducted and substantial profits collected on
land and in the ports that dotted the trade routes of that time. The need to use his
rhetorical resources is all the greater in that the author Mare Liberum did not, to a large
extent, know the essential facts about the Portuguese State of India, the most up-to-date
factual information about the sea routes used by Portuguese ships or the trade practices in
force in Asia, at the beginning of the 17th century. At least this is what some more recent
research indicates. 10
Right at the start of chap. 1 of Mare Liberum the author asserts that the right of the Dutch
VOC is based on a primary law of nations. The latter provided the grounds for the
exact principle that allows any people to travel to any part of the world and do business
with anyone.
Serafim de Freitas first denies the relevance of distinguishing between two laws of
nations, one primary and the other secondary: this was unheard of and contrary to the

9 Grotius was not the first to address these matters. For a brief account of the discussion on the
issues herein see B. J. THEUTENBERG, Mare Clausum et Mare Liberum, in Arctic 37 (1984), 481-492.
For a brief report of the debate with Grotius see Mnica Brito VIEIRA, Mare Liberum vs. Mare Clausum:
Grotius, Freitas, and Seldens Debate on Dominion over the Seas, in Journal of the History of Ideas 64
(2003), pp. 361-377. Freitas quotes and discusses the opinions of a Spanish author, Rodrigo Suarez, on the
use and freedom of the seas in general, focusing particularly on trade. It is a brief text, De usu maris,
published within a larger edition of Stracchas widely known and read treatise, De Mercatura. The text had
several editions in Italy, France and Germany. We used the French edition of 1558: Benvenuto STRACCHA,
Tractatus de mercatura seu mercatore, Huc accessit Petri Santern Lusitani Tractatus de Sponsionibus &
assecurationibus mercatorum. Alios prtere Tractatus aliunde excerptos unum videlicet D. Ioan. Nider, De
contractu mercaturae, alterum D. Baldi de Vbald. Perusini, de Constituto, in Iureconsultorum gratiam
adiunximus duoque D. Roderici Suarez Consilia, de Vsu Maris, & mercibus super illo transuehendis,
Lvgdvni, Apud Sebastianum Honoratis, 1558.

10 Peter Borschberg thus challenges the assumptions of others, leading interpretations, according to
which, before writing Mare Liberum, Grotius did some research work in the archives of the VOC to find
out more about Portuguese trade and the local commercial rules in force in the various Asian distribution
centres. See Peter BORSCHBERG, Grotius, Maritime Intra-Asian Trade and the Portuguese Indian State:
Problems, Perspectives and Insights from De iure praedae, in Grotiana, 27, 28 (2005/2006/2007), pp.
31-60.

statements of jurisconsults (I, 13). After quoting several ancient and contemporary
authors (Digesto, Covarrubias, and Molina), he concludes as follows:
Given, then, that there is only one creator of the law of nations, i.e. natural reason, () given that
there is only one purpose, i.e. human natures good, and only one republic, i.e. all men, in that they
are grouped under the command of natural reason as if under the government of a sole principle, in
line with Salass doctrine, De legibus, disp. 2, n. 21, col. 2, it is logical to say that there is only one
law of nations. 11

If this theory of the unity of the law of nations is solid, Freitas needs to explain why this
same law and its complex organisation vary over history. And it is precisely here that he
first differs from Francisco Surez, as mentioned earlier. Freitas sees only one solution:
separating the pure state of nature from the corrupt one.
It is in particular the first thesis of Mare Liberum (that all enjoy the right to sail and trade
anywhere under the law of nations) that worries Freitas. For this reason he argues that all
these previous arguments are intended to hold that sailing falls under the second rather
than the first section of the law of nations, because it is only necessary for alleviating the
indigence of corrupt nature, as the aforementioned Unknown author [Grotius]
acknowledges too. 12
Freitas is not very interested in exploring this point of disagreement with Surez, as he
intends to evoke him again to challenge the first thesis on Mare Liberum.
Freitas, quoting Surez (De Legibus II, 14, 6) to refute Grotiuss thesis, says that what is
called primary law of nations in Mare Liberum is after all natural law. Grotius [the
Unknown] had made the same mistake as Vasquez de Menchaca by not distinguishing
clearly natural law (ius naturae) and law of nations (ius gentium). Surez and Salas are
quoted again to clarify this terminological issue.
Serafim de Freitas refers to the passage in De Legibus II, 14,6 where Suarez describes
two ways of speaking about things that are within the realm of natural law: 1) when
natural law establishes [prescribes] them; 2) by way of permission, denial or concession.
Serafim de Freitas follows closely the letter and spirit of Surezs text. He outspokenly
mentions what is relevant to support his position. Therefore, he immediately quotes
paragraph18 of the same chapter of De Legibus (II.14.18) and tries to provide in his
reasoning several practical implications of Surezs distinction. He is not interested in
Surezs problematic assertions about human freedom in the second part of this
paragraph. What interests him is the explanation that immediately follows (II, 14, 19).
The first sort of natural law, says Freitas paraphrasing Surez, contains rules and
principles on acting correctly, which hold an indispensable truth and for this reason
11

FREITAS, De iusto imperio, I, p. 14.

12

FREITAS, De iusto imperio, I, pp. 17-19.

cannot be changed; others, on the contrary, depend on the state of affairs and the
changing circumstances13 . It is not a question, in these cases, of changing the natural
law. Freitas quotes Soto too (De iustitia I, q. 4, a.5), but Surez is his most immediate
source, in particular in the text De Legibus II, 13, 5ss, where there is a discussion of the
objections to the immutability of the precepts of natural law and the importance of
circumstances for the fulfilment of these precepts. Freitas is not worried about the
examples Surez adduces. What interests him and what he thinks he can draw from
Surezs analysis is that the right to sail and trade is not a universal right under
prescriptive natural law:
Now, although in the primitive pure state of nature sailing and trade did exist, nevertheless they had
nothing to do with the precepts of natural law. 14

For this reason he concludes that princes (holders of political power in general) have the
right to not allow or to prevent foreigners from entering into their territories and trading
(I, 24). Freitas points out that even the text of Mare Liberum acknowledges that the
Portuguese had obtained certain privileges and prerogatives regarding trade that were
granted to them by the authorities in Java, Taprobana and Molucas. If this is accepted to
prove that the claims of the Portuguese are precarious, then it needs to be acknowledged
that the freedom to trade requires positive regulation to be effective. And this could only
be achieved by the law of nations as understood by Freitas, in line with Surez, or
through positive law and specific treaties and agreements. Clearly without trade the
freedom to sail was pointless.
The weaknesses found by Serafim de Freitas in the justification of the main argument in
Mare Liberum also cancel out those put forward to justify armed conflict to defend this
alleged right, and to support the confiscation of cargo on merchant ships.
The lengthy reasoning behind the claims challenged by the author of Mare Liberum is
much more detailed than the one provided in that pamphlet.
The most important argument for the Portuguese position in the seas of Asia is
prescription or custom, in spite of all the difficulties of interpreting the circumstances on
a case-by-case basis. He also analyses the other arguments: discovery, conquest,
occupation and endowment by the Pope. When he upholds the Portuguese position by
resorting to several legal arguments, Serafim de Freitas eliminates entirely all reason for
armed conflict and the alleged defence of natural law, as mentioned in the last chapter of
Mare Liberum.

13

FREITAS, De iusto imperio, I, p. 22.

14

FREITAS, De iusto imperio, I, p. 23.

Serafim de Freitass reasoning is a serious attempt to challenge the arguments of Dutch

imperialism, as laid down in the anonymous pamphlet Mare Liberum. Perhaps he is too
focused on directly and exclusively disputing the texts theses without putting the debate
into context. Maybe he knew somewhat the limitations of this same context.
Consequently, his work was not read in Portugal when it was published and in Spain it
produced hardly any impact. Holland was at war with Spain which, in turn, besides
defending its imperial interests on a global scale, had very particular concerns in the
Mediterranean basin, where it wanted to dispute the maritime rights and control of some
seas by Venice and other italic republics. For these and other reasons, which are not
always clear to peoples, the position defended by Serafim de Freitas was associated with
the losers and that of Grotius with the winners and defenders, in theory, of the freedom of
the seas. However, the principle, as adopted in later international law, does not have the
features described in Mare Liberum. The regulation of exclusive maritime zones was
gradually introduced in international law, starting in the 18th century, notwithstanding the
arguments of Grotius in Mare Liberum against the bare possibility of the occupation or
possession of any maritime area. To conclude, Serafim de Freitas and Grotius share the
same style of presentation and rhetorical artifices that later generations abandoned.
Rousseau even said that Grotiuss arguments were founded on poetry and not on the
nature of things.15 Rousseaus criticism is obviously simplistic and partial, but in fact the
literary style was clearly dated. The same should be said about Serafim de Freitas, which
should not prevent us from reading him.

Universidade de Coimbra

15 For a balanced and well informed account of the theoretical positions of Suarez and Grotius and
their relevance, regardless of the issue of originality, see Terence IRWIN, The Development of Ethics: A
Historical and Critical Study, Vol. 2. From Suarez to Rousseau, Cambridge, 2008, pp. 57-99.