GROTIANA

Grotiana 30 (2009) 6587

brill.nl/grot

On Grotiuss Mare Liberum and Vitorias De Indis, Following Agamben and Schmitt1
Johannes Thumfart
Institute for Philosophy, Freie Universitt, Berlin Email: j.thumfart@fu-berlin.de

Abstract The idea of free trade in Grotiuss Mare liberum and his legal opinion De iure praedae has a strong theological basis. Grotius called the right to travel and trade freely a ius sanctissimum, a sacrosanct law. He also perceived the Freedom of the Seas as being a direct result of the will of God. This theological background was strategically necessary because Grotius developed the Mare liberum and the De iure praedae to argue against Spanish-Portuguese claims to a trade monopoly that also had theological underpinnings. But the theological aspect of Grotiuss theory was also emphasized by the references he made to the Dominican friar Francisco de Vitorias ius communicationis. This precursor to Grotiuss Freedom of the Seas, which Vitoria had developed in his De indis, is connected to the legal justication of Christian mission and so has a clear theological connotation. In Grotiuss work, Vitorias concept of a universal right to Christian mission supervised by the pope was transformed into a theologically supported right to free trade. With this transformation of the ius communicationis into the principle of the Mare liberum, Grotius develops a theological basis not for politics but for economics. One can speak therefore, following Giorgio Agamben, of an economic theology in regard to Grotius, a term that is, in turn, derived from Carl Schmitts notion of political theology. Keywords Hugo Grotius, Carl Schmitt, Giorgio Agamben, Francisco de Vitoria, Economic Theology, Mare Liberum

Introduction to subject matter and method As the recent nancial crisis has once again made all too clear, the concept of free trade is one of the most important and most problematic of our time. The necessity for greater regulation of trade, especially in the nancial sector,
1 I would like to thank everyone who has contributed to this paper. Katherine Hunt, Joe Holden, Gabriel Montua, and Anja Wiesinger concerning style and language, Gustaaf Van Nifterik, Christoph Stumpf, Peter Borschberg, and Martine Julia Van Ittersum, as well as an anonymous referee of Grotiana for helpful remarks concerning the content.

Koninklijke Brill NV, Leiden, 2009

DOI 10.1163/016738309X12537002674286

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has lately been emphasized by various political leaders, including German Chancellor Merkel, French President Sarkozy, and U.S. American President Obama. This is a cause for concern, and not just for the most outspoken of laissez-faire liberalists. Often presented as one of the basic pillars of modern liberal society, the liberty to trade freely, governed by ones own responsibility, seems an unquestionable, undeniable and absolute prerequisite to the development of a global civilization. But rather than knowing exactly why free trade is so essential, one seems to associate it with a number of positive, mostly long-term eects that are anything but easy to grasp. According to Viner, it has been common in intellectual history to attribute a providential quality to free trade. Due to divine providence, the invisible hand of the market was expected not only to establish a balance of supply and demand, but also to turn private vices into public benets.2 Inasmuch as it enables the peoples of the world to exchange goods and services with each other on a free basis that is, to interact globally in peaceful ways the process of free trade is supposed to lead to stabilization of international relations, as Kant writes.3 Furthermore, the concept of free trade is eschatologically and teleologically charged, in that some believe an internationalization of economic struggle will naturally lead to an evolution of the quality of goods and methods of production, and to a more just distribution of wealth. All of these are hopes for the future that cannot immediately be veried. One rather simply has faith in them as if they were religious truths. The path of free trade seems inexorably to lead to the vague promise of a better world, a world that is more international, more ecient and more just a veritable new heaven on earth4 and even a Sprengung des Himmels durch gesteigerte Menschhaftigkeit brought about by the believers of the capitalist religion,5 if one follows Nelsons or Benjamins polemics. This essay tries to elucidate the religious quality of free trade at its very origin. It addresses the theological connotation of the idea of free trade in

Jacob Viner, The Role of Providence in Social Order. An Essay in Intellectual History (Philadelphia: American Philosophical Society, 1972), pp. 55-85. 3 Immanuel Kant, Zum ewigen Frieden, Akademie Ausgabe VIII, p. 368; In this passage, Kant refers to the so-called doux-commerce-thesis that was prevalent during the seventeenth and eighteenth centuries. See: Laurence Dickey, Doux-commerce and humanitarian values: free trade, sociability and universal benevolence in eighteenth-century thinking, Grotiana 22/23 (2001/02), pp. 271-318. 4 Robert H. Nelson, Reaching for Heaven on Earth. The Theological Meaning of Economics (Maryland: Rowman Littleeld, 1991), p. xxii. 5 Walter Benjamin, Kapitalismus als Religion, ed. by Dirk Baecker (Berlin: Kulturverlag Kadmos, 2004), p. 16.

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Grotiuss Mare liberum, one of the rst early-modern manifestos to advocate free trade. It will be demonstrated that the idea of free trade evolved as an economic theology in the seventeenth century, and was connected to the principle of free mission in the canon law of the Middle Ages. This will be made clear by illuminating the theological background of Grotiuss Mare liberum, particularly by highlighting the impact of the Dominican friar Francisco de Vitorias Relectio de indis on Grotiuss ideas. Central to this interpretation is the application of Giorgio Agambens term economic theology to Grotius, a term that was developed as an enhancement of Schmitts thesis of political theology.6 Schmitts thesis of political theology that certain terms of political theory can be interpreted as secularized theological concepts (skularisierte theologische Begrie)7 can also be applied to economy. An economic theology in this sense is a secular or, rather, secularized concept of economy that has its roots in a theological idea. To Schmitt, the legal structure of state sovereignty appears to be derived from the theological concept of an omnipotent God. Agamben likewise shows the theological background of early-modern economic theorists such as Linnaeus, Quesnay and Smith.8 According to Agamben, the New Testamentarian and patristic notion of a providential oikonomia had a considerable inuence on the theory of economic laissez-faire.9 Following both Schmitt and Agamben, Grotiuss conception of the legal status of economy can be perceived as being theologically derived.

Grotius and Vitoria: historical placement and economic-theological form In March 1609, Hugo Grotius (15831645), who is today recognized as one of the fathers of international law, published a revised chapter of his legal
Giorgio Agamben, Il regno e la gloria. Per una genealogia teologica delleconomia e del governo. Homo sacer, 2, 2 (Vicenza: Neri Pozza, 2007), p. 14; Johannes Thumfart, English review of Agamben, Il regno e la gloria, in Alea. revista internacional de fenomenologa y hermenutica 6 (2008), pp. 187-191;The term economic theology can also be found in the discussion of theological implications of the invisible hand at Adam Smith. See: Duncan K. Foley, Adams Fallacy. A guide to Economic Theology (Harvard: Harvard University Press, 2006); Nelson, Reaching for Heaven on Earth, pp 95-106. 7 Carl Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souvernitt (Berlin: Duncker & Humblot, 2004), p. 43. 8 Agamben, Il regno e la gloria, pp. 306-310. 9 Ibid., p. 35; See also: Gerhard Richter, Oikonomia. Der Gebrauch des Wortes Oikonomia im Neuen Testament, bei den Kirchenvtern und in der theologischen Literatur bis ins 20. Jahrhundert (Berlin: De Gruyter, 2005).
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opinion on the law of prize and booty (De iure praedae). The anonymous publication, the full title of which is Mare liberum sive de iure quod Batavis competit ad Indicana commercia, dissertatio, was the rst modern attempt to establish the legal status of the high seas.10 It was in this text that Grotius substantiated the normative ideals of global free trade, including those of equality, reciprocity and private responsibility. In this regard, Grotiuss thinking considerably inuenced Adam Smith (17231790) by way of Smiths mentor Francis Hutcheson (16941746), who read and quoted Grotius.11 However, Grotiuss assertion regarding the necessity of free trade was not without precedent. In his De iure praedae, Grotius relied heavily on the arguments for free trade put forth by Francisco de Vitoria nearly one century earlier.12 In his Relectio de indis of 1539, Vitoria oered one of the rst arguments on international trade, law, and the implications of the Christian mission for Europes relationship to overseas territories. It would prove instrumental for Grotius, who in his De iure praedae also dealt with overseas trade. Both of these men arrived at similar conclusions. Although Grotius and Vitoria were probably born exactly one hundred years apart (1483 and 1583),13 both are considered to be the father of international public law.14 However,
10 Monica Brito Veira, Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Seldens debate on dominion over the seas, Journal of the History of Ideas 64, 3 (2003), 361-377 (p. 361). 11 Richard F. Teichengraeber, Free Trade and Moral Philosophy. Rethinking the Sources of Adam Smiths Wealth of the Nations (Durham: Duke University Press, 1986), pp. 20-26, pp. 56-60, 65. Teichengraeber on Hutchesons statements concerning private property: Both the language and the substance of [his] statements identify Hutcheson as a follower of Grotius.; Hutcheson mentions Grotius in two prefaces as an important inuence. See: Francis Hutcheson, Logic Metaphysics, and the Natural Sociability of Mankind, ed. by James Moore and Michael Silverthorne, transl. by Michael Silverthorne (Indianapolis: Liberty Fund, 2006), p. 8; Id., Philosophiae Moralis Institutio Compendiara with A Short Introduction to Moral Philosophy, ed. by Luigi Turco, Latin with English translation on facing pages (Indianapolis: Liberty Fund, 2007), pp. 3, 5; in the latter passage, Hutcheson refers explicitly to Grotiuss law of nature and nations. See also p. 147, a passage on property, in which Hutcheson probably indirectly draws on Grotius by way of Pufendorf; According to Peter Dooley, Hutcheson also paraphrases Grotius in his Observations on The Fable of the Bees . See: Peter Dooley, The Labour Theory of Value (London: Routledge, 2005), p. 11. 12 Peter Haggenmacher, La Place de Francisco de Vitoria parmi les fondateurs du droit international, in Actualit de la Pense juridique de Francisco de Vitoria. Travaux de la journe dtudes organise Louvain-la-Neuve par le Centre Charles de Visscher pour le Droit International, ed. by Antonio Truyol y Serra et al. (Bruxelles: Bruylant, 1988), 27-80, (p. 31). 13 Although there is a debate about whether Vitorias date of birth was 1492 or 1483, the latter seems more plausible. See: Mara del Carmen Rovira Gaspar, Francisco de Vitoria. Espaa y Amrica, el poder y el hombre (Mxico: Miguel Angel Porrua, 2004), p. 21n3. 14 Ernest Nys, Les origines du droit international (Brussels: Castaigne, 1894), p. 11; James Brown Scott, The Spanish Origins of International Law. Francisco de Vitoria and his Law of Nations

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the connection between Grotius and Vitoria is limited neither to their respective historical impacts nor to the considerable degree to which Grotius quoted Vitoria, but extends further, to their common intellectual foundation. Grotius, like Vitoria, developed his arguments within the framework of theology.15 Accordingly, the reections on the law and politics of free trade that Vitoria and Grotius present within the scheme of their conceptions of international law, can be interpreted as an economic theology. The form of economic theology underlying the arguments of Vitoria and Grotius has two important characteristics. Firstly, both develop the normative ideal of global free trade on the basis of the history of salvation. In this respect, one can speak of a tradition of the providential function of commerce within which Grotius and Vitoria operated.16 This position axiomatically assumes that there is a historico-teleological tendency inherent in global free trade, such that the purpose of free trade is to unite the world in peace. Secondly, the requisite openness of global exchange is, for both Grotius and Vitoria, an economic theology that can be understood within the framework of Schmitts notion of political theology. In the systematic structure (systematischen Struktur) of both global political conceptions, the concept of free trade serves as the highest, last (letzte) principle17 to which political power has to subordinate itself, under the threat of a just war (bellum iustum), for the cause of the maintenance of global free trade and open borders. This concept can be called an economic theology in the Schmittian sense particularly with regard to Schmitts notion of political theology. As previously noted, Schmitt dened political theology as secularized theological concepts in the political realm.18 In the case of Vitoria and Grotius, the great importance of free trade is the result of theological viewpoints that underwent a gradual secularization.

(New Jersey: The Lawbook Exchange, 2000; originally published Oxford: Clarendon Press, 1934). 15 In regard to Francisco de Vitoria, this is an obvious statement. Regarding the theological thought of Grotius, see: Henk J. M. Nellen and Edwin Rabbie (eds.), Hugo Grotius: Theologian. Essays in Honour of G.H.M. Posthumus Meyjes, Studies in the History of Christian Thought 55 (Leiden: Brill, 1994); Christoph A Stumpf, The Grotian Theology of International Law. Hugo Grotius and the Moral Foundations of International Relations (Berlin: De Gruyter, 2006). 16 Viner, The role of Providence in social order, p. 37; Viner uses this term in respect to Libanius and early Christian theologians. In the section of this essay, subtitled The theology of free trade, it will be shown that Grotiuss main theological argument in favour of free trade also stems from Libanius. It is therefore possible to apply Viners term to Grotius. 17 Schmitt, Politische Theologie, pp. 43, 50. 18 Ibid., p. 43. Quote originally in German. See supra n. 7.

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The components of an economic theology understood in this way as history of salvation and universal politics can neither be reduced to a renaissance of antique models of cosmopolitanism, nor be conceived of as a result of Webers famous notion of the Protestant economic theology of inner-worldly ascetism (innerweltliche Askese).19 Grotiuss and Vitorias economic theology is a genuine product of the Catholic-Christian tradition, which the Protestant humanist Grotius inherited by way of, among other sources, the writings of Vitoria. In this context, it should be noted that the reprise of Catholic-Iberian arguments was of practical use for Grotius.20 He employed these arguments as irrefutable propositions21 in the debate on the legitimacy of the VOCs policy to secure its trading expeditions by military means, which also included preemptive strikes. Having been hired by the VOC directors, Grotius promoted Dutch interests against the claims of the Portuguese and Spanish to trade monopolies in the East and West Indies. Because the Spanish had themselves previously used the notion of a right to travel and trade freely in order to legitimize the conquista, Grotius used the same argument to justify Dutch military aggression against the Portuguese in terms of a Dutch defence of their right to travel and trade freely against the Portuguese claims to a trade monopoly.

The Mare liberum: An argument on the law of prize Less well-known than Grotiuss discussion of Mare liberum in the twelfth chapter of the De iure praedae commentarius is the complete legal opinion itself. This is because the full text was not published until 1868. This work, De iure praedae commentarius, was commissioned by the Verenigde Oost-Indische

19 Max Weber, Die protestantische Ethik und der Geist des Kapitalismus, in Id., Gesammelte Aufstze zur Religionssoziologie I (Tbingen: Mohr Siebeck, 1988), 17-206 (pp. 84-87). 20 Lleana Porras, Constructing International Law in the East Indian Seas: Property in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius De iure praedae The Law of Prize and Booty, or on How to distinguish Merchants from Pirates, Brooklyn Journal of international law 31, 3 (2006), 741-804 (pp. 756, 770); Carl Schmitt, Der Nomos der Erde im Vlkerrecht des Jus Publicum Europaeum (Berlin: Duncker & Humblot, 1997), p. 151. 21 Eric Wilson, Erasing the Corporate Sovereign. Inter-Textuality and an Alternative Explanation for the Publication of Hugo Grotius Mare liberum (1609), Itinerario 30, 2 (2006), 78-103, (p. 78); With these tting words, Wilson recapitulates the standard opinion on the subject, which he then proceeds to put into perspective.

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Compagnie (VOC) on the occasion of a trial concerning the law of prize.22 The trial dealt with the capture of the Portuguese merchant ship Santa Catarina by the Dutch admiral Van Heemskerck, which took place in the early morning hours of February 25th 1603, in the Strait of Malacca, located between the Malayan peninsula and the island of Sumatra. Although the not yet independent Dutch provinces were at war with Spain and Portugal at the time, both parties of conict were private ships that were not formally engaged in acts of war. The complex question (multiplex disputatio23) was whether the private trading company VOC, for which Van Heemskerck had sailed, was the rightful owner of the rich booty taken from the hold of the Santa Catarina: a vast sum approaching three and a half million Dutch guilders.24 This could be the case only if Heemskercks attack that led to the prize could be considered as having been in the scope of the paradoxical concept of a bellum iustum privatum, a legal act of private war.25 As was expected of him, in his legal capacity, the young lawyer Hugo Grotius defended the overseas interests of his nation and his employer VOC. He characterized the capture of the Portuguese ship and the keeping of the prize as lawful. Grotiuss rst line of argument denied the legitimacy of the Spanish and Portuguese trade monopoly on the worlds seas, an assertion he had developed mostly from an historical perspective. Since the discovery of the Canary Islands in the fourteenth century and the discovery of the Americas from 1492 on, the Spanish and the Portuguese had claimed trade and shipping monopolies, as outlined in the treaties of Alcovas (1479), Tordesillas (1494), and Saragossa (1526). Despite the mostly secular character of the treaties of Tordesillas and Alcovas,26 the Spanish and Portuguese claims can be interpreted as drawing
22 The debate about the historical context of the De iure pradae has led to a variety of dierent interprations of the purpose of its publication. See: Martine Julia Van Ittersum, Prot and Principle. Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies. 1595 1615 (Leiden: Brill, 2006), pp. 108-188. 23 Hugo Grotius, De iure praedae, I, ed. by H. G. Hamaker (Den Haag: Nijhof, 1868), p. 5. 24 Peter Borschberg, The Seizure of the Sta. Catarina Revisited: The Portuguese Empire in Asia, V.O.C. Politics and the Origins of Dutch-Johor Alliance. (1602 1616), Journal of Southeast Asian Studies 33, 1 (2002), 31-62 (p. 35). 25 Porras, Constructing International Law in the East Indian Seas, p. 755; Grotius, De iure praedae, VI, pp. 59-62; Hugo Grotius, Commentary on the Law of Prize and Booty, XII, transl. by Gwladys L. Williams and ed. by Martine Julia van Ittersum, (Indianapolis: Liberty Fund, 2006), pp. 127-142 [hereafter: Commentary]. 26 Ute Schneider, Tordesillas 1494 Der Beginn einer globalen Weltsicht, Saeculum 54, I (2003), 39-62 (p. 48); Juan Goti Ordeana, Del Tratado de Tordesillas a la Doctrina de los Derechos

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from the tradition of papal grants concerning overseas territories. In his bull Inter caetera of 1493, Pope Alexander VI divided the worlds oceans, donating half to the Spanish and half to the Portuguese.27 Such political-theological intertwining of papal power and Portuguese-Spanish claims can be traced back to, among other sources, those treaties which the Iberian kings and the papacy had concluded during the process of the reconquista of the Iberian Peninsula.28 Within the context of the reconquista and the conduct of a just war against the Muslims, the validity of the papal grants had been based upon the concept of a theological and political supremacy of the pope over non-Christian territories, as had been put forward by Hostiensis during the thirteenth century.29 In the fourteenth century, this concept had been employed to enable the pope not only to legitimize Portuguese crusades in North-West Africa but also to donate African land and trade monopolies to the Portuguese.30 In the case of non-Christian peoples, such as the Canarian Guanches and the Amerindian tribes, who had not engaged in a war against Christianity thus far, the pope apportioned their lands as compensation for the duty of Christian mission in these territories, which the secular kings were obliged to organize and nance.31 As the rst Christian European countries to interact with
Fundamentales en Francisco de Vitoria (Valladolid: Secretariado de Publicaciones e Intercambio Cientco, Universidad de Valladolid, 1999), pp. 20, 149-165. 27 The bull Inter caetera, 4th of May 1493, in, European Treaties Bearing on the History of the U.S. and its Dependencies to 1648. Tome 1, ed. by Frances Davenport (Washington D.C.: Carnegie Institution of Washington publication, 1917), pp. 72-75. 28 Carmen Bernand and Serge Gruzinski, Histoire du nouveau monde. De la dcouverte la conqute (Paris: Fayard, 1991), pp. 65-66; Odilo Engels, Reconquista und Landesherrschaft. Studien zur Rechts- und Verfassungsgeschichte Spaniens im Mittelalter (Paderborn: Schningh, 1989), p. 293; David Abulaa, The Discovery of Mankind. Atlantic Encounters in the Age of Columbus (New Haven: Yale University Press, 2008), p. 10. 29 Hostiensis, Reduction of the Teachings of Innocent IV on the Legal Status of Indels, in Fontes Historiae Iuris Gentium. Quellen zur Geschichte des Vlkerrechts, ed. by Wilhelm G. Grewe (Berlin: De Gruyter, 1995), p. 351; See also: Id., Summa Aurea, De Treuga et Pace, ed. by F. Martini Abbatis (Venice 1574), column 359; James A., Brundage, Holy War and the Medieval Lawyers In Id., The Crusades, Holy War and Canon Law (Aldershot: Variorum, 1991), pp. 99-140 (p. 114); Eberhard Straub, Das Bellum Iustum des Hernn Corts in Mexico (Kln und Wien: Bhlau, 1976), p. 37; Abulaa, The Discovery of Mankind, p. 72; Jrg Fisch, Die europische Expansion und das Vlkerrecht (Stuttgart: Franz Steiner, 1984), pp. 189-190. 30 Eberhard Schmitt and Charles Verlinden (Ed.), Die mittelalterlichen Ursprnge der europischen Expansion - Dokumente zur Geschichte der europischen Expansion. Tome 1, (Mnchen: Beck, 1986), p. 218; Goti Ordeana, Del Tratado de Tordesillas a la Doctrina de los Derechos fundamentales en Francisco de Vitoria, pp. 61, 32-41; Horst Grnder, Welteroberung und Christentum. Ein Handbuch zur Geschichte der Neuzeit (Gtersloh: Gtersloher Verlagshaus, 1992), p. 87. 31 Abulaa, The Discovery of Mankind, pp. 82, 89, 72; Fisch, Die europische Expansion und das Vlkerrecht, p. 48; Martin Van Gelderen, Grotius and Vitoria on Natural Law and

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overseas peoples in this way, the Spanish and the Portuguese beneted most from such donations. The indigenous rulers of these territories, the nonChristian princes, were believed to be unt to be rightful owners (veri domini) because of their lack of faith and morals. On the occasion of the donation of the Canary Islands, Pope Clement VI wrote: Forte enim indeles ratione indelitatis merentur perdere omnem dominium.32 Nullum dominium debet esse sine virtute. In indelibus autem nulla est virtus, sed ymago virtutis solum. Ergo nec verum dominium cum sine de impossibile sit placere deo.33 By reason of their indelity, non-Christians lose their right to dominium, writes Clement. Dominium presupposed morals, which in the eyes of Pope Clement indels could not possibly have. According to Grotiuss evaluation, the Portuguese monopoly at the beginning of the seventeenth century was still based on the supra-territorial power of the papacy and concomitant political-theological ideas. In the case of the East Indies in particular, both lines of justication the just war against Muslims and the duty to convert the non-Christians could be used because the Asian people were, as Grotius wrote, partim idolatrae, partim Mahumetani34 in part idolaters, in part Mohammedans.35 However, Grotius quotes those historical justications only in order to refute them. According to Grotius, the just war against indels is not a legitimate reason for conquest: It is heretical to hold that indels are not the owners of the property that belongs to them. And the act of snatching from them, on the sole ground of their lack of faith is an act of thievery and rapine no less than it would be if perpetrated against Christians.36 Grotius also refutes the raya of pope Alexander VI, which granted non-Christian territories as compensation for the task of religious conversion. According to Grotius, the apportionment made by Alexander VI was illegitimate because
International Relations, Grotiana 14/15 (1993/94), 3-37 (p. 13); Diana Wood, Clement VI: the Ponticate and Ideas of an Avignon Pope (Cambridge: Cambridge University Press, 1989), pp. 180, 190; Schmitt and Verlinden (Ed.), Die mittelalterlichen Ursprnge der europischen Expansion, pp. 192, 207, 210; Grnder, Welteroberung und Christentum, pp. 87, 93; Pedro Leturia, Der heilige Stuhl und das spanische Patronat in Amerika, Historisches Jahrbuch 46 (1926), 11-71, (pp. 66-68). 32 Clement VI, Sermon 45, Ste-G. 240, fol. 341r., cited after: Wood, Clement VI, p. 193n83. 33 Ibid., fol. 343r, cited after Wood, Clement VI, p. 194n90; See also: Felipe FernndezArmesto, Before Columbus. Exploration and Colonisation from the Mediterranean to the Atlantic. 1229 1492 (Basingstoke: Macmillan, 1987), p. 232. 34 Grotius, De iure praedae, XII, p. 209. 35 Id., Commentary, p. 308. 36 Ibid., p. 308.

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no one could grant what was not his, and the pope did not own the nonChristian territories that he gave away in 1493. On the other hand, Grotius concludes, if the pope had acted only as arbiter between the two peoples , we must infer that the apportionment was drawn up only with reference to the Spaniards and the Portuguese and therefore will not aect the other peoples of the world.37 In contrast to the Iberians politically-theologically founded claims, Grotius depicts a system of equal states, legitimized by natural law. He applies the principle of the Freedom of the Seas, derived from Roman law, to international maritime waters.38 The sea is an element common to all, writes Grotius.39 So, he concludes, it can be sailed by everyone. This is the basic argument of the twelfth chapter of Grotiuss legal opinion De iure praedae, which was later reworked and separately published as Mare liberum. Following this principle of the Freedom of the Seas, Grotius classied the procedure of the VOCs captain Van Heemskerck as a private just war (bellum iustum privatum).40 Grotius argues that Van Heemskerck defended his natural right freely to travel and trade on the worlds seas against illegitimate Portuguese claims.41 According to Grotius, such an unusual act of private war could be justied because in the Strait of Malacca, Van Heemskerck had been far from the range of any state power that could have defended his natural rights. Van Heemskerck therefore had to defend his natural right himself: Eatenus juste bellum privatum suscipitur, quatenus judicium decit.42 According to Grotius, such a defence of ones own natural right does not have to be a reaction to a concrete attack. Van Heemskercks capture of the Santa Catarina had not been preceded by a Portuguese attack. However, the Santa Catarina and her crew could be rightfully punished due to their
Ibid., p. 309. Dig., I.8.5; see also: Gai, inst. II.1; Ernest Nys, Les origines du droit international, p. 11. 39 Grotius, Commentary, p. 322. 40 Porras, Constructing International Law in the East Indian Seas, p. 755; See: Grotius, De iure praedae, VI, p. 59-62, chapter: Quae justa sit causa eciens belli privati; Grotius, Commentary, pp. 127-142. 41 To Grotius, the criterion for a bellum iustum is the compensation for an unjust act, for example the breach of a contract or a military aggression. He quotes Augustins classic denition of the bellum iustum: Justa autem bella deniri solent, quae ulciscuntur injurias., see: Grotius, De iure praedae, VIII, p. 68; Grotius interprets this right to compensate an unjust act as also extending to private persons, which inevitably leads to the gure of a bellum iustum privatum, a term however that Grotius himself does not use. 42 Ibid., VIII, p. 95; Commentary, p. 142: A private war is undertaken justly in so far as judicial recourse (judicium) is lacking.
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belonging to Portugal,43 whose claim to a monopoly on trac on the world seas was itself in contradiction to natural law.44 Therefore, Grotius argues, Van Heemskercks capture of the Santa Catarina was an act of bellum iustum privatum and the booty of three and a half million Dutch guilders from the hold of the ship was the legitimate property of the VOC. The theology of free trade Grotiuss predecessor Vitorias concept of the source of law can be regarded as theological voluntarism. In Vitorias thought, even natural law bears traces of positivism inasmuch as its content is dependent upon the will of God in his function as universal legislator.45 If god did not exist, said Vitoria in one of his relectiones, there would be no sin nor a moral aw.46 In contrast to Vitorias position, Grotiuss conception of natural law can be interpreted as a secularized one.47 In his chef doeuvre, De iure belli ac pacis, Grotius applied Gregory of Riminis famous notion etiamsi daremus non esse deum to natural law,48 to make the argument that natural law would still be valid even if god
43 Ibid., p. 158: Individual citizens are also bound by the act of the state. Indeed, it is in keeping with natural equity, since we derive advantages from civil society, that we should likewise suer its disadvantages. 44 Ibid., XII, p. 363: Since it has been demonstrated (with authoritative conrmation drawn from Victoria and with the aid of examples) that a just cause of war exists when the freedom of trade is being defended against those who would obstruct it, we arrive at the conclusion that the Dutch had a just cause for war against the Portuguese. I will later come back to this passage. 45 On Legal Positivism at Vitoria see: Johannes Thumfart, Die Begrndung der globalpolitischen Philosophie. Zu Francisco de Vitorias relectio de indis recenter inventis von 1539 (Berlin: Kulturverlag Kadmos, 2009), Chapters: Yo le compro llanamente Vitorias Haltung zu conquista und Sklaverei in den Briefen, Lex divina und ius naturale. 46 Francisco de Vitoria, De eo, ad quo tenetur homo, cum primum venit ad usum rationis, II, 9, edited by Ulrich Horst et al., Latin with German translation on facing pages, in Id., Vorlesungen II. Vlkerrecht Politik Kirche (Stuttgart et al.: Kohlhammer, 1997), pp. 92-187 (p. 160): Si vel Deus non esset vel nihil praeciperet, ego non dubito, quin nullum esset proprie peccatum aut malum morale. With these words, Vitoria denies the possibility of a morality without the laws that are based upon the will of God. If God did not exist, Vitoria concludes, there would be neither sin nor unethical acts. This formula is however not explicitly applied to international law by Vitoria, but can also be read as referring only to the theological categories of peccatum and malum morale. 47 Georg Cavallar, Cosmopolis. Supranationales und kosmopolitisches Denken von Vitoria bis Smith, Deutsche Zeitschrift fr Philosophie 53 (2005), 49-67 (p. 55). 48 Hugo Grotius, De jure belli ac pacis libri tres, in quibus jus naturae et gentium, item juris publici praecipua explicantur, prolegomena, ed. by James Brown Scott, reproduction of the edition of 1646 (Washington D.C.: Carnegie Institution of Washington, 1913), p. 5.

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did not exist. In itself, however, this formula does not necessarily imply a secularization, but it can be regarded as an intellectual formula that follows the medieval tradition of the discussion of impossible hypotheses, just as the phrase si per impossibile deus ipse non esset is used by Gregory of Rimini.49 In De iure praedae, however, the secularization that Grotius undertakes seems immediately more obvious.50 Against an international order dominated and regulated by the papacy and the monopolies it granted, he presents an international order of free commerce and trac. With his apologia of the bellum iustum privatum, Grotius gave the anarchic competition of private trading companies and pirates on the oceans of the seventeenth century the rst internationally recognized legal justication. On this count, Grotius cannot be considered to be simply the father of public international law, but also the father of the delimitation of European public law beyond the line of amity, which legally separated the high seas from the European continent.51 This is particularly true in regard to coophandel met force (trade supported by the force of arms52), the policy of the VOC, which Grotius qualied as a bellum iustum privatum. While Grotiuss formulation of the Freedom of the Seas seems, on the surface, to be a recipe for mere anarchy, on closer examination, the Grotian principle of the Freedom of the Seas appears to represent a monist, universalist line of legal thought. In this case too, Grotiuss role must be conceived as a connector between traditional Christian international law and modern international law (Bindeglied ).53 By developing his principle of the Freedom of the

49 Gregory of Rimini, Lectura super primum et secundum sententiarum, dist. 34-37, qu.1, art.2, ed. by A. Damasus Trapp and Venicio Marcolino (Berlin and New York: De Gruyter, 1980), p. 235; Paola Negro, A Topos in Hugo Grotius: Etiamsi daremus non esse Deum , Grotiana 19 (1989), 3-23 (p. 12); Ernst Wolfgang Bckenfrde, Geschichte der Rechts- und Staatsphilosophie (Tbingen: Mohr Siebeck, 2006), p. 341n4. 50 This paper deals with the secularization in De iure praedae from the point of view of the history of legal ideas. For a discussion of this thesis that is more focused on theology, see: Mark Somos, Secularization in De Iure Praedae: from Bible Criticism to International Law, Grotiana 26/28 (2005/2007), 147-191. 51 Schmitt, Der Nomos der Erde, pp. 59-69; Grewe, Epochen der Vlkerrechtsgeschichte, pp. 181-193. 52 Peter Borschberg, Hugo Grotius, East India Trade and the King of Johor, Journal of Southeast Asian Studies 30, 2 (1999), 225-248 (p. 244); Id., The Seizure of the Sta. Catarina Revisited: The Portuguese Empire in Asia, V.O.C. Politics and the Origins of Dutch-Johor Alliance. (1602 1616) , Journal of Southeast Asian Studies 33, 1 (2002), 31-62 (p. 35). 53 Christoph A. Stumpf, Vlkerrecht unter Kreuz und Halbmond. Muhamaad al-Shaybani und Hugo Grotius als Exponenten religiser Vlkerrechtstraditionen, Archiv des Vlkerrechts 41 (2003), 83-100 (p. 95).

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Seas, Grotius not only negated the principle of papal supremacy, on which the Iberian claims to a monopoly of trade had originally rested. He also developed and expanded upon the rhetoric and structure of the international law of the Middle Ages insofar as he was occupied with the problem of an equivalent to replace the supra-territorial power of the pope. To Grotius, the principle of the Mare liberum is essentially of the same value and strength as the papal dominium orbis of the middle ages. The Freedom of the Seas is depicted by Grotius as a supreme, most secure and unchanging principle regula certissima, cuius perspicua atque immutabilis est ratio: Fundamentum struemus hanc iuris gentium, quod primarium vocant regulam certissimam, cuius perspicua atque immutabilis est ratio; licere cuivis genti quamvis alteram adire, cumque ea negotiari.54 In Grotiuss conception, this principle of natural law is truly meta-political inasmuch as it cannot be abrogated by any political force, such as a republic or a prince (ullam rempublicam aut principem).55 This absolute, truly metapolitical quality of Grotiuss conception of free trade is also very clearly reected in the language he chooses to use. Grotius himself referred to a jus sanctissimum,56 a sacrosanct law.57 This choice of words and the structural conception of the Freedom of the Seas as a supreme principle clearly points to an analogy between Grotiuss concept of international law and the Iberian medieval one against which he argues. Whilst papal blessing had legitimized the global Iberian trade monopoly, Grotius secures an absolute, truly meta-political validity of the Mare liberum through the connection of his principle of free trade to theological premises. Grotius legitimizes his principle of free trade by the use of a providential argument that was to become a locus classicus in the later modern debate on the subject.58 The regional, continental and national dierences and the

54 We will lay this certain rule of the law of nations (which they call primary) as the foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it., Hugo Grotius, The Freedom of the Seas or The Right which Belongs to the Dutch to take part in the East Indian Trade, I, ed. by James Brown Scott and transl. by Ralph Van Deman Magon, Latin with English translation on facing pages (New Jersey: The Lawbook Exchange, 2001; repr. of: New York: Oxford University Press, 1916), p. 7; The version in the De iure praedae diers. See: De iure praedae, XII, p. 205: Instead of licere cuivis genti, Grotius only writes licere Batavis. I therefore quote the Mare liberum version. 55 Id., De iure praedae XII, p. 206. 56 Ibid. 57 Id., Commentary, p. 304. 58 Viner, The role of Providence in Social Order, pp. 40-54.

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respective lacks and surpluses of resources forced humankind to maintain global economic contact with one another, argues Grotius. Inasmuch as the Christian God is conceived as the creator of nature, he is also the creator of those regional, continental and national dierences, which ultimately force mankind to maintain economic global contact.59 The logic inherent in creation, which Grotius like all theorists of natural law was preoccupied with deciphering, therefore points directly towards an openness of global trade. Deus hoc ipse per naturam loquitur, God himself says this speaking through the voice of nature, wrote Grotius in Mare liberum:60 For God has not willed that nature shall supply every region with all the necessities of life; and furthermore, He has granted pre-eminence in dierent arts to dierent nations. Why are these things so, if not because it was His Will that human friendships should be fostered by mutual needs and resources.61 With this argument, Grotius invoked a pre-Christian tradition of economic theology that reaches from Philo of Alexandria and Libanius to early fathers of the church such as John Chrysostom and Origen.62 This pre-Christian line of thought seems to be an important aspect of Grotiuss economic theology which, inasmuch as it is based upon natural law, does not necessarily depend on Christian narratives. Grotius himself wrote that natural law is independent from the events of the Christian history of salvation.63 However Grotiuss principle of free trade cannot be fully understood when thought of as being derived solely from Stoic or other pre-Christian concepts.64 His ideas are strongly connected to the Christian history of salvation inasmuch as they can be conceived teleologically. The assumption that global trade is founded on divine providence seems to imply that it would be morally good to bridge successively the dierences between the peoples of the Earth by trading. According to Grotius, God has unequally distributed the goods of the Earth because it was his will that human friendships should be fostered by

Porras, Constructing International Law in the East Indian Seas, pp. 756, 761. Grotius, The Freedom of the Sea, p. 7. This passage is formulated slightly dierently and less sharply in De iure praedae, which is why I use the Mare liberum version here again. 61 Id., Commentary, pp. 302-303. 62 Viner, The role of Providence in Social Order, pp. 36-37, 42; Douglas A. Irwin, Against the Tide. An Intellectual History of Free Trade (Princeton: Princeton University Press, 1996), pp. 16-17. 63 Grotius, De iure praedae III, p. 33: Jus est semper,etiam post Christum; Id., Commentary, pp. 54-55: Law is valid for all times, it is valid even for times after the advent of Christ. 64 Dickey for example links Grotiuss understanding of free trade to the Stoic notion of oikeiosis, which is an important aspect of Grotiuss doctrine of free trade, although not the only one. Dickey, Doux commerce and humanitarian values, p. 280.
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mutual needs and resources (voluit mutua egestate et copia humanas foveri amicitias).65 Seen from this perspective, an intensication of global trade can also fortify friendships among human beings and is therefore desirable from a historico-philosophical point of view. In line with these teleological dynamics of free trade, Grotius conceives an eschatology of economy according to which the accumulation of goods by means of trade will one day comprise a great gift for God.66 Grotius writes: Fiet ita quod apud prophetam est, ut negotiatio et quaestus omnis Deo consecretur.67 Indeed, Grotius also quotes Seneca in order to legitimize the providential aspect of his economic theology: In Senecas opinion, the supreme blessing conferred by nature resides in these facts: that by means of the winds she brings together peoples who are scattered in dierent localities, and that she distributes the sum of her gifts throughout various regions in such a way as to make reciprocal commerce a necessity for the members of the human race.68 But a Stoic origin of this justication of trade is not ultimately plausible. According to Viner, the ideal of economic expansion was unknown to antiquity. The antique conception of economy was mostly oriented towards the ideal of autarkeia, or self-suciency.69 It was along these lines that Aristotle, for example, expressed his strong critique of trade in general.70 As for the passage from Senecas Naturales quaestiones, which Grotius quotes in order to strengthen his economic-theological thesis, it is obvious that he is using Senecas words selectively. To Seneca, international trade was not at all an entirely positive phenomenon. While Seneca does praise divine providence, which enables man to trade globally and trac goods, he is also careful to add that the madness of mankind (generis humani dementia)71 is to blame for the fact that this pursuit of global trac can so easily become a cause of war.

65 Id., Commentary, p. 303; Latin phrase: Id., De iure praedae XII, p. 205; Porras, Constructing International Law in the East Indian Seas, p. 763. 66 Ibid., p. 760. 67 Isaiah: 23. 18; Grotius, De iure praedae XV, p. 321; Commentary, p. 468: Isaiah prophesied, that all merchandise and all prot shall be consecrated to the Lord. 68 Ibid., XII, pp. 303-304. 69 Jacob Viner, Early Attitudes towards Trade and the Merchant, in Id., Essays on the Intellectual History of Economics (Princeton: Princeton University Press, 1991), 39-45 (pp. 39-41); Porras, Constructing International Law in the East Indian Seas, p. 761. 70 Aristotle: Politics. 1257 b 22. 71 Seneca, Naturales Questiones, tome II, V, 18, 4-5, ed. and transl. by Thomas H. Corcoran, Latin with English translation on facing pages (Cambridge, MA.: Harvard University Press, 1972), pp. 114-115.

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Grotius and Vitoria Grotius wrote his legal opinion De iure praedae after 1576, the year in which Jean Bodin published his Six livres de la rpublique. The primacy of universal principles over local sovereignties, which Grotius defended, was therefore outdated in the larger context of European political theory. But this did not necessarily devalue Grotiuss position, for Grotius did not conceive his principle of free trade for the European continent alone, outside of which the principle of territorial or state sovereignty did not play a great role until at least 1945. On the contrary, it was exactly the outdatedness of Grotiuss theory of the Freedom of the Seas that determined its extreme strategic value in the specic debate in which he employed it. For in some respects it was a locus classicus, especially for the Spaniards, against whom Grotius made his case using this very argument. As Grotius never ceases to mention, the Spaniards themselves had used the justication of the Mare liberum approximately 60 years before. The right freely to travel and trade had been used by the Spaniards in order to legitimize Spanish colonialism in South and Central America. In his Relectio de indis of 1539, Francisco de Vitoria argued along similar lines to those later taken up by Grotius. Vitoria declared an unchangeable right to travel and trade freely, which allowed the Spaniards and any other nation to trade with any people they wanted and to travel wherever they pleased. Vitoria called this principle the ius communicationis, literally the right of communication.72 According to Grotiuss interpretation of Vitoria, the latter accused the indios of having denied the Spaniards their right to travel freely on their land by trying to expel them. Thus, in Grotiuss interpretation of Vitoria, Vitoria granted the Spaniards the right to defend their natural right to travel and trade freely in a just war (bellum iustum).73 In this way, Spanish colonialism could be justied as a bellum iustum, which served the defence of the natural right of

72 Francisco de Vitoria, Relectio de indis recenter inventis, III.1, ed. by James Brown Scott (Washington D.C.: Carnegie Institute of Washington 1917), p. 257. 73 For Vitoria himself, this connection is however not so clear, because Vitoria demands that the Spaniards try to convince the Amerindians by peaceful means before waging war against them. Hispani primo debent ratione et suasionibus tollere scandalum., See: Vitoria, Relectio de indis, III.1, p. 260; Unlike Grotiuss position in Mare liberum, Vitorias focus lies not only on global economics, but also on global politics. See: Thumfart, Die Begrndung der globalpolitischen Philosophie; Id., Das ius gentium als Form der translatio imperii. Francisco de Vitorias Legitimation des spanischen Kolonialismus im Kontext der Arbeiten Miguel de Ulzurruns, Hernn Corts und Bartolom de las Casas, in Verfassung jenseits des Staates - Von der europischen zur globalen Rechtsgemeinschaft, ed. by Ingolf Pernice et. al. (Berlin: Nomos Verlag, 2009), pp. 15-39.

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the Spaniards, Grotius argued. Castellanis etiam in Americanos has justas potuisse belli causas esse Victoria putat, si peregrinari et degere apud illos prohiberentur, si arcerentur a participatione earum rerum, quae jure gentium aut moribus communia sunt, si denique ad commercia non admitterentur.74 It is of great historical irony that, in his defence of Van Heemskercks bellum iustum privatum, Grotius turned Vitorias argument against the Iberians themselves. He wrote: Since it has been demonstrated (with authoritative conrmation drawn from Victoria and with the aid of examples) that a just cause of war exists when the freedom of trade is being defended against those who would obstruct it, we arrive at the conclusion that the Dutch had a just cause for war against the Portuguese.75 What made Vitorias argument interesting to Grotius and so appropriate to his attack on Iberian claims to monopoly was the fact that the Catholic Vitoria also refuted the papal claim to be the lord of the world (dominus totius orbis).76 Vitoria therefore provided Grotius with the line of argument he needed to refute the Iberian claims of monopoly that were based on papal authority. In fact, Grotius seems to have quoted Vitorias refutation of worldwide papal authority.77 However, to Vitoria, both the universal validity of the right to free trade and the refutation of papal authority were subject to signicant constraints. Although Vitoria disagreed with the emperors claims of world domination in simple, unambiguous terms Imperator non est dominus totius orbis (the emperor is not the lord of the world)78 he signicantly mitigated his refutation of papal authority, formulating his relatively complex opinion thus: Papa non est dominus civilis aut temporalis totius orbis, loquendo proprie de dominio et potestate civili.79
74 Grotius, De iure praedae XII, pp. 206-207; It is necessary to quote the Latin version here, because Vitorias terms peregrinare, participatio, commercium, to which Grotius refers, are not fully translatable with all of their complex philosophical and theological connotations. Commentary, p. 304: Vitoria holds that, if the Spaniards should be prohibited by the American Indians from travelling or residing among the latter, or if they should be prevented from sharing in those things which are common property under the law of nations or by custom if, in short, if they should be barred from the practice of commerce these causes might serve them as just grounds for war against the Indians. 75 Ibid., XII, p. 363. 76 Vitoria, Relectio de indis, II.3, p. 240. 77 Grotius, Commentary, p. 310. 78 Vitoria, Relectio de indis, II.1, p. 235. 79 Ibid., II, 3, p. 240; Vitoria, On the Indians Lately Discovered, II.3, p. xxi: The pope is not civil or temporal lord of the whole world in the proper sense of the terms lordship and civil power.

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To Vitoria, the pope was therefore not the lord of the world in regard to actual political power. But, strangely enough, this did not mean to Vitoria that the pope was not allowed to grant monopolies of trading to the Spanish and Portuguese. The pope [could] forbid others to trade., wrote Vitoria in the third section of his Relectio de indis.80 And furthermore: Inasmuch as the sovereigns of Spain were the rst to patronize and pay for the navigation of the intermediate ocean, and as they then had the good fortune to discover the New World, it is just that this travel should be forbidden to others and that the Spaniards should enjoy alone the fruits of their discovery.81 According to Vitoria, the raya of 1493 was therefore fully justied. The restriction of the freedom to trade by Vitoria does not, however, oppose the line of economic-theological thought such as is to be found in Grotiuss Mare liberum. Rather, the reason for Vitorias stance on the supremacy of the pope over global trade lay exactly in the theological function which Vitoria believed trade to have. To Vitoria, global trade was powerfully connected to the global Christian mission, which was entrusted to the supervision of the pope. According to Vitoria, the pope did not have direct political power over the world but, following the pseudo-Thomist tradition, Vitoria perceived the pope as having a potestas indirecta,82 an indirect power. This meant that the pope had temporal power, inasmuch as the temporal concerns the spiritual: The pope is not temporal lord, yet he has power in matters temporal when this would subserve matters spiritual. The global Christian mission was a task born of profound spiritual concerns, which is why Vitoria nally drew the following conclusion: It is the popes concern to bestow especial care on the propagation of the Gospel over the whole world.83 According to Vitoria, the pope could therefore entrust it to the Spaniards to the exclusion of all others, if the sovereigns of Spain could render more eective help in the spread of the Gospel in those parts.84 Since the aforementioned papal grants of overseas territories and trade monopolies were traditionally given as compensation for fullling the duty of Christian mission, one can also easily interpret the text of the bull of 1493
Ibid., III.10, p. xli. Ibid., p. xlii. 82 Arthur F. Utz, Weltliche und kirchliche Gewalt bei Francisco de Vitoria, Die neue Ordnung 50, 6 (1996), 455-464 (p. 461); Ptolomaei Lucensis, Continuatio S. Thomae De regno, III, 13, in Corpus Thomisticum. S. Thomae de Aquino Opera Omnia, ed. by Enrique Alarcn (Navarra: Universitatis Studiorum Navarrensis, 2000), http://www.corpusthomisticum.org/xrp.html: Dominium Christi ordinatur ad salutem animae et ad spiritualia bona, ut iam videbitur, licet a temporalibus non excludatur, eo modo quo ad spiritualia ordinantur. 83 Vitoria, On the Indians Lately Discovered, II.3, p. xli. 84 Ibid.
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from this perspective. The papal grant addressed the kings of Castile in the following way: It is your duty to lead the peoples dwelling in those islands to embrace the Christian profession . In order that you may enter upon so great an undertaking with greater readiness and heartiness we give, grant and assign forever to you and your heirs the aforesaid countries and islands. We strictly forbid all persons of no matter what rank without your special permit to go for the sake of trade or any other reason to the said islands and countries.85 For Vitoria as well, the Spanish trade monopoly was compensation of a kind for the Spanish duty to preach the gospel. Since the pope was, according to Vitoria, entitled to supervise the mission, he could not only forbid others to preach, but also to trade , if this would further the propagation of Christianity, for he can order temporal matters in the manner which is most helpful to spiritual matters.86 Reasoning why it might not be benecial for the Christian mission if all nations were allowed to go to America, Vitoria sketches the following scenario: If there was to be an indiscriminate in-rush of Christians from other parts to the part in question, they might easily hinder one another and develop quarrels, to the disturbance of the concerns of the faith and of the conversion of the natives.87 To Vitoria as to Grotius, trade was therefore a meta-political, spiritual procedure which did not belong to the secular realm of politics so much as to the theological realm of matters spiritual. Vitorias assertion that only the pope could deny the ius communicationis clearly illustrates that the ius communicationis was, for Vitoria, ultimately a principle that belonged to the domain of the spiritual power. If, however, the ius communicationis was denied by somebody else, Vitoria envisaged the same punishment as the traditional canonical doctrines had decreed for anyone who prevented missionaries from preaching the gospel the bellum iustum.88 In Pope Innocent IVs much cited comment on the subject, one nds for example the following line of thought: Mandare potest Papa indelibus quod admittant praedicatores.89 Although Innocent IV as later did Vitoria90 granted
85 The bull Inter Caetera, 3rd of May 1493, in Davenport, European Treaties, pp. 58-67 (pp. 62-63). 86 Vitoria, On the Indians Lately Discovered, II, 3, p. xli. 87 Ibid., p. xlii. 88 Ibid., III,6, p. xxxix. 89 Innocent IV, Apparatus super quinque libris decretalium, Quod super his, PDF Version Gallica (Venice 1481), p. 505; Id., Pope Innocent IV on the Legal Status of Indels, in Fontes Historiae Iuris Gentium. Quellen zur Geschichte des Vlkerrechts, ed. by Wilhelm G. Grewe, 348-350 (p. 350). 90 Vitoria, On the Indians Lately Discovered, I, 24, p. xiv.

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the non-Christians the right to be the legitimate owners (veri domini) of their lands, he also granted the pope the right to command the non-Christians to admit Christian priests among them. If they failed to admit these priests, the pope would have to punish the non-Christians (puniendi sunt), writes Innocent. Clearly Vitoria enhanced this ius praedicandi, which he also defends,91 to a legal title of secular commerce, the ius communicationis. In respect to the sanction of the bellum iustum and their close connection to the papacy, trade and mission have the same legal status in Vitorias De indis. As with Grotius, trade also had an important function in the Christian history of salvation according to Vitoria. It was, after all, the biblical narrative of the common Adamitic or Noahic origin of all mankind on which Vitoria based his notion of ius communicationis, the right to travel and trade freely.92 Vitorias conception of trade also shares with Grotiuss its historico-teleological aspect. To Vitoria, the right to trade was not based upon the history of salvation alone, with its hypothesis of the common origin of all men. It also fullled an important function regarding the future of the history of salvation. To Vitoria, as to other contemporary Iberian authors, the history of salvation was expected to be fullled by the conversion of all peoples to Christianity.93 The paragraph of the Bible on which Vitoria based his Relectio de indis deals directly with the Christian missionary imperative: Go and make disciples of all nations, baptising them in the name of the Father and of the Son and of the Holy Spirit.94 This passage from Matthew is intimately related to a similar verse in a preceding chapter. Here, the connection between the global Christian mission and eschatology is expressed even more succinctly: This gospel of the kingdom shall be preached in all the world for a witness unto all nations; and then shall the end come.95 To Vitoria, trade was a temporal instrument that concerned the spiritual realm because it helped to achieve the conversion of all peoples assumed in the Christian conception of the fullment of history. In this sense, Vitoria perceived the end of time as being dominated by the pope as one shepherd of one ock: In ne saeculi et unum ovile et unum pastorem.96 If the pope had,
Ibid., III,9, p.xli. Ibid., III,2, p. xxxvi. 93 Eberhard Straub, Das Bellum Iustum des Hernn Corts in Mexico, p. 15; Djelal Kadir, Columbus and the Ends of the Earth. Europes Prophetic Rhetoric as Conquering Ideology (Berkeley: University of California Press, 1992), p. 32. 94 Vitoria, On the Indians Lately Discovered, frontpage of Appendix A, no page number, between p. 288 and i; Matt. 28. 19. 95 Id., 24.14. 96 Vitoria, Relectio de indis, II.3, p. 241; John 10. 16.
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according to Vitoria, a power in matters temporal when this would subserve matters spiritual, this meant that the popes power extended to everything which served to put an end to temporal history, that is, to full the history of salvation. To Vitoria, controlling and fostering trade was a means to reach this much-desired culmination of the Christian history of salvation. As this examination of the role of trade in Vitorias conception reveals, Grotiuss quotation of Vitorias ius communicationis has far-reaching implications. For Grotius had also inherited Vitorias idea of an intrinsic Christian morality of global trade and the connected notion of a possible punishment of restrictions of trade with a bellum iustum. Grotius was not the rst to assign to trade a specic function in the history of salvation, as Porras suggests in her examination of the matter: Unlike Grotius , Vitoria had not based his claim on a strong version of the doctrine of the providential function of commerce.97 More likely, Grotius had derived this spiritual concept of trade from Vitorias allocation of trade to the spiritual domain of the pope. As the papal authority was erased in Grotiuss Protestant conception, it was the theological function of trade itself that remained.

Conclusion The principle of the Mare liberum in Grotiuss conception can undoubtedly be deduced from similar principles in Roman law, and from the cosmopolitan thought of the Stoics.98 Grotiuss underlying assumption that trade was an inherently positive and moral phenomenon can however not be traced back to these sources. Particularly in regard to its historico-philosophical implications, such a perception of trade can only be understood as stemming from the Christian tradition of associating trade with the mission of conversion. In this respect, a transmission of Christian economic theology from Vitoria to Grotius can be clearly demonstrated. This is especially true in regard to the sanction of bellum iustum for the punishments of political acts against the principle of free trade, and in regard to an eschatological function of global trade. In Mare liberum, Grotius dissolved the connection between the economictheological conception of trade and papal authority, which was extant in

Porras, Constructing International Law in the East Indian Seas, p. 771. The quoting of Seneca was essential to the argument of the Mare liberum. See supra n74; for Stoic thought and Grotius in general see: Hans Blom and Laurens Winkel (eds.), Grotius and the Stoa. Grotiana 22/23 (2001/02).
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Vitorias Relectio de indis. This signied a secularization in the very literal sense of the word. In respect to its original historical meaning, Lbbe dened secularization as a deprivation or release of a thing, a territory or an institution from spiritual-ecclesiastical observance and dominion.99 However, Grotiuss secularization of global free trade did not involve any form of de-sacralisation. Rather, Grotius replaced the absolute, supreme authority of the institution of the papacy with the absolute, meta-political authority of the principle of free trade. Although the concept therefore underwent a gradual secularization, the theological structure of free trade remained intact. Applying Schmitts notion of political theology that certain terms of political theory can be interpreted as secularized theological concepts100 one can also interpret Grotiuss conception of free trade as a secularized theological conception of economy. It follows, therefore, that one can speak of an economic theology regarding Grotiuss conception of free trade in De iure praedae and Mare liberum. Grotiuss economic theology in the Mare liberum is of interest because it seems to be an example par excellence of what Sloterdijk in his reection on globalization has labelled a secular missionary science of early modern global trade.101 It also seems to be an illustration of the connection between Christian mission and globalization that Lwith sketched in the last remarks of his Meaning in History. There, Lwith asked rhetorically: Is it perhaps that the hope in a future Kingdom of God, and the Christian command to spread the gospel to all the nations for the sake of salvation have turned into the secular presumption that we have to transform the world into a better world in the image of man and to save unregenerate nations by Westernization and re-education?102 It is only in the original English version of the book103 that Lwith also provocatively answers: There are in history not only owers of evil but also
Hermann Lbbe, Skularisierung. Geschichte eines ideenpolitischen Begris (Freiburg im Breisgau: Alber, 1975), p. 23.: Entzug oder die Entlassung einer Sache, eines Territoriums oder einer Institution aus kirchlich-geistlicher Observanz und Herrschaft. 100 Schmitt, Politische Theologie, p. 43, quote originally in German; Concerning this comparision between economic theology and political theology see: Agamben, Il regno e la gloria, p. 14. 101 Peter Sloterdijk, Im Weltinnenraum des Kapitals. Fr eine philosophische Theorie der Globalisierung (Frankfurt/M: Suhrkamp, 2005), p. 92: skulare Missionswissenschaft. 102 Karl Lwith, Meaning in History. The Theological Implications of the Philosophy of History (Chicago: The University of Chicago Press, 1957), p. 203. 103 In the German version, the provocative conclusion is omitted. See: Karl Lwith, Weltgeschichte und Heilsgeschehen. Die theologischen Voraussetzungen der Geschichtsphilosophie (Stuttgart: Metzler, 2004), p. 218.
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evils which are the fruit of too much good will and of a mistaken Christianity that confounds the fundamental distinction between redemptive events and profane happenings, between Heilsgeschehen and Weltgeschichte.104 In regard to economic theology, Lwiths question about the good or evil of theology is probably the wrong question to ask. It is indisputable that trust in the positive dynamics of free trade brought with it a global community of merchants more widespread, more manifold and also more pleasant than any religious community of the past. Nevertheless, unregulated markets do not necessarily transform private vices into public benets by divine providence, but private vices can also simply lead to public and private disasters. Further inquiries into the nature of economic theology may provide more clarity. Reading Grotius from the point of view of a history of legal ideas at least makes visible how missionary principles transformed into international law. It remains to be remarked, however, that Grotius himself utilized Vitorias economic theology for reasons neither intellectual nor theological, but rather tactical. Grotiuss text Mare liberum must be interpreted within the context of his legal opinion De iure praedae within which it was originally developed. The Protestant Dutchman quoted the opinions of the Catholic Spaniard Vitoria because Grotius assumed Vitorias argument would have a great impact on the Spaniards and Portuguese against whom he argued. Central to Grotiuss strategy was his reliance upon Iberian scholastics as a means of providing a series of irrefutable propositions to the Spaniards, writes Wilson, summarizing the standard opinion.105 Finally, Grotiuss economic theology, especially in regard to its theological tradition, was an argument developed in order to defend the economic interests of Grotiuss employers. If one should dare to answer the broad question of which came rst an economic theology or economic interest at least for Grotius, the answer can be found on the solid ground of materialism.

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Lwith, Meaning in History, p. 203. Wilson, Erasing the Corporate Sovereign, p. 78.