chapter 5 Natural Law and Natural Right in the Spanish Scholasticism

Merio Scattola ✝

1 What Is Spanish Scholasticism?

First of all, we should define the meaning of the two concepts and ideas we will be using in this article: 1. Spanish Scholasticism and 2. natural law and natural right(s). Beginning with Spanish Scholasticism, we take it to stand for an intel- lectual tradition either according to its contents or according to its forms. This means that if we look at the contents—like the history of political and legal ideas frequently does—, we deal with a plurality of ideological notions, like papalism, conciliarism, republicanism, monarchism, absolutism and so on, which defended particular interests within a society or commonwealth. In this sense the Spanish Scholasticism was described in four different ways or with four different contents: (1) as a legal tradition, (2) as a philosophical current, (3) as a modern economic thought and (4) as a theological renewal.1 As to the forms of this intellectual tradition, we are bound to describe the political, legal or theological thought taking into account the ways and the means of com- munication that the authors applied in their intellectual activity, for example as writers, teachers, polemists or apologists. In the former case, we consider “what they said”; in the latter, “how they said it”. When describing the Early Modern Political Thought in this formal or epis- temic way, we find that the authors of that period did not use the same code of communication all over Europe but that it was distributed in various circles that used different languages. These circles or communities were twofold: (1) the four academic faculties provided the codes and references for the discus- sion. If we think of natural law, the faculty of arts or philosophy referred main- ly to the Nicomachean Ethics of Aristoteles, to Cicero or the Stoic tradition. Jurisprudence in turn argued with the Corpus iuris civilis, while theology took

1 Tellkamp, J.A., “Über den Zusammenhang von Freiheit und Sklaverei bei Vitoria und Soto”, in Kaufmann, M. and Schnepf, R. (eds.), Politische Metaphysik. Die Entstehung mod- erner Rechtskonzeptionen in der Spanischen Scholastik, Frankfurt am Main, 2007, 155–175, here 157–158.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_007 Natural Law and Natural Right in the Spanish Scholasticism 129 its materials from the Church Fathers, Isidore of Seville, Petrus Lombardus or Thomas Aquinas. Of course, natural law was not treated in the faculty of medi- cine. Within these three main currents, there were also local traditions with varieties of languages and codes of their own. Thus, Catholic and Lutheran divinities proposed two different versions of theological natural law which constituted distinct and closed circles or schools. Spanish Scholasticism can be considered an example of such a school. Epistemologically, each of those circles can be defined through explicit or implicit means. Explicit means are all those that contain an evident acknowl- edgment that the speakers or writers are part of the same community of dis- course. The most important among these means is the direct quotation, which can either be horizontal or vertical, either direct or indirect, as well as either active or passive. In this respect, every community of discourse is at the same time a community of quotation. Implicit means correspond to the code or language shared by the community. In the age of print such distinctive code contains mainly a set of literary conventions and literary genres, that is, a set of rules of communication. The consequence of this is that each European community of discourse can be defined in early modern times through the particular literary genres it developed and applied. So far, a community of discourse has been described only through either the question “how” or through its scientific code. Nevertheless, it possesses also a “social depth”, meaning that the language of a particular community corre- sponds to an agent, a place and an addressee of the communication. Thus, connected to a “how” we find always also a “who”, a “where” and a “for whom”. It is important to underscore that Spanish Scholasticism can be described recurring to this pattern. Its agents were always or mostly theologians or can- onists with important duties in the administration of the kingdom: they were counsellors, ecclesiastical judges, confessors of the king etc. In this respect, their activities took place between the academic and the confessional chair. The place of their activity (i.e. “where”) was clearly the university, where they educated personnel for the administration of the Iberian kingdoms and of the viceroyalties. Taking a closer look at the “how”, we can distinguish three different concen- tric circles or communities. The starting point for the Spanish discussion on natural law was the University of Salamanca, and more specifically Francisco de Vitoria, who returned there in 1526 and soon gathered around him a num- ber of renowned colleagues and students like Domingo de Soto, Martín de Azpilcueta, Melchor Cano, Alfonso de Castro, Bartolomé de Carranza, Diego de Covarrubias y Leyva, Pedro de Sotomayor among others. This group of people established a relatively closed circle which is often called the “School