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http://www.rg-rechtsgeschichte.de/rg27 Rg 27 2019 280 – 283 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 27 (2019) http://dx.doi.org/10.12946/rg27/280-283

José Luis Egío García * Towards a New Narrative of Natural Law Thinking in Early Modern Scholasticism

* Max-Planck-Institut für europäische Rechtsgeschichte, Frankfurt am Main / Goethe-Universität Frankfurt am Main / Akademie der Wissenschaften und der Literatur Mainz, [email protected]

Dieser Beitrag steht unter einer Creative Commons Attribution 4.0 International License Rg 27 2019

José Luis Egío García Towards a New Narrative of Natural Law Thinking in Early Modern Scholasticism

The presence of moral theology and scholasti- ished: the re-emergence of the concept of natural cism in the recently published Oxford Handbook of law in the mid-16th century and the importance Legal History and Oxford Handbook of European that this concept – and the argumentation depend- Legal History is very limited. The first volume aims ent on it – gained in legal discourses and practices to be iconoclastic. It explicitly does not seek to during the early modern period. provide a kind of global historical account but After a very brief introduction – a mere eight instead presents some of the innovative methodo- lines long – summarizing the ancient roots and logical perspectives guiding current legal historical early modern doctrinal developments he will cover research. Thomas Duve, writing about the contri- in his exposé, Ibbetson presents the antecedents of bution of the School of Salamanca to the theori- the modern idea of natural law that were formu- zation of a certain framework of »indigenous lated by Aristotle and Cicero (Section I, 1). Natural rights« during the period of colonial domination, law did not have »any jurisprudential weight« is thus the only contributor to this volume who either in Republican or in Imperial Rome, as the mentions moral theology. In the Handbook of Euro- function of the principles that some philosophical pean Legal History, there are two articles on impor- schools considered to be part of it was always tant scholastic contributions to legal history that unclear (Section I, 2). Ibbetson therefore quickly also deal with the influence of Salamanca and abandons the Greek and Roman context and fo- related scholastic authors to equally wide fields of cuses on the way in which Aquinas (Section I, 3) legal thinking. Wim Decock discusses authors of and particularly certain Spanish Renaissance Tho- the second scholasticism in the context of the law mists(DomingodeSotoandLuisdeMolina, of property and obligations (611–632), and David Section I, 4) assigned to natural law the function Ibbetson writes on natural law (566–582). In the of a normative mirror against which human / following, I will focus on Ibbetson’s chapter, which positive laws should be compared in order to avoid only partially matches the ambitious intended excessive and unjustified distortions. After this aims of the volume editors (Pihlajamäki, Dubber, brief review of the above-mentioned antecedents, Godfrey): to »chart the landscape of contemporary the writings of Grotius (Section II, 1), Pufendorf, research« and to show the global impact that and other central figures (Section II, 2) of the European legal systems had »from the fifteenth natural law school of thought in central and north- century onwards«. ern Europe are examined as the main exponents of David Ibbetson is Professor of Civil Law at the the idea of natural law’s validity not depending on University of Cambridge and has written author- divine authority (with the famous Grotian sen- itative books and articles in the field of legal history tence Etsi Deus non daretur). These thinkers sought covering a wide chronological range.1 In this to identify its elusive first principles in order to chapter, he addresses a topic in which the signifi- deduce from these the main substantial contents of cance of second scholasticism – Catholic and Prot- ius gentium and positive law. Ibbetson closes his estant – absolutely cannot be silenced or dimin- examination of the abovementioned keystones of

1 His publications deal with such di- versetopicsastheRomanlawtradi- tion in the Early Middle Ages and legal education in contemporary England. See e. g. David Ibbetson, A Historical Introduction to the Law of Obligations, Oxford 1999, and idem, European Legal Development: TheCaseofTort,Cambridge2012.

280 Towards a New Narrative of Natural Law Thinking in Early Modern Scholasticism Forum forum early modern juridical thinking by presenting the ment similar to the projects undertaken in France, problems raised by a natural law method con- Spain, or the German states. As in previous sec- structed as an imitation of the mos geometricum in tions, Ibbetson focuses on a few milestones of vogue in metaphysics and natural philosophy at juridical thinking to explain the particular evolu- the time: irreconcilable conflicts between first tion of the debates on natural law in the English principles of natural law, lack of evidence of realm. Starting with Edward Coke’s famous Insti- certain deductions and superficial objectivity of tutes of the Laws of England (1628), Ibbetson reviews the great systems constructed by modern jurists, the scholarly contributions of figures such as Sel- giants with feet of clay. den, Hobbes, Locke, or Hale, in which he detects The historical account of books and writers of a certain Grotian influence. The final paragraphs Sections I and II is followed in Section III by a follow the echo of Pufendorf’s De Iure Naturae thematic discussion of the parallel theorization of et Gentium in the works of 18th-century English the ius gentium in the early modern period, which writers of juridical treatises, specifically Ballow, has usually been represented as having been de- Pothier, Buller, and Blackstone. Ibbetson here pendent on the definition and hierarchization of mentions natural law thinkers’ influence on En- the ius naturale.Eveninthisthematicsection, glish legal doctrines related to contracts, negli- however, Ibbetson remains anchored to the same gence, the first laws concerning copyright, and chronological and geographical schema he uses even the increasing trend to present and explain to construct his whole article, travelling from technical customary laws within rational and sys- 16th-century Spain to the 17th-century Netherlands tematic frameworks. and Enlightenment Germany. To the above-men- To begin with the critical evaluation of Ibbet- tioned names he adds references to the works of son’s contribution, we can say that all the elements Rachel, Textor, and Wolff. he covers are sine qua non –theirabsencewouldbe In Section IV, Ibbetson shows the affinities hard to explain in a survey of natural law thinking between the thinking of Grotius or Wolff and the within the historiographical genre of a handbook, Enlightenment movement. Both gave a central which imposes significant thematic and space lim- role to reason and were optimistic regarding the itations. In the face of these external constraints, possibility of human beings gaining objective the author seems to have opted for a deliberately knowledge from nature, whether from physical classical approach that appears to stand in contrast realities or from moral and legal principles. In this to both Handbooks’ avowed emphasis on ground- rationalistic commitment, Ibbetson sees the intel- breaking and innovative approaches. lectual foundation of the evolution from the mere Different elements could perhaps have been »collections of the law in force« of the 17th century mentioned in passing in order to reinforce the link to the 18th century’s systematic legal codifications between the chapter’s contents and the editors’ »in accordance with reason«. Ibbetson touches on motivations. For example, more attention could codes and codification projects coming from differ- have been paid to the debates on natural law in ent German states, the Habsburg monarchy, Rus- geographical regions located at the periphery of sia, and France. In perhaps the best section of his the already well-studied continental axis, such as contribution, Ibbetson analyses why only some of in Scandinavia or Southern and Eastern Europe. these codes – for example, the Napoleonic Code Thearticledoesnotdiscussthecurrentstateof Civil of 1804 – can be considered true natural law research, but a brief survey of the existing – and codifications. Many others, while containing indi- abundant – literature on natural law in the early rect references to the work of the main natural law modern period would have been useful in order to jurists, did not abandon Roman Law as a necessary underline the methodological challenges and to mediation between the abstract principles of natu- identify the main gaps with which contemporary ral law and positive written law. researchers are dealing, or will have to deal with, in In a fifth section, Ibbetson deals with the role of the following years. natural law thinking in England. He deliberately Another vacuum in Ibbetson’s account on the discusses this separately from continental Europe development of natural law in early modern jurid- because the English system, in contrast to the ical thinking is the absence of an explanatory continental ones, was never structured around hypothesis allowing the reader to understand Roman law, and also knew no codification move- why natural law – defined and partially explored,

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as Ibbetson mentions, by ancient and medieval lectual motivations behind them is, in fact, a philosophers and theologians but not by their recurring problem throughout the text. Even with- contemporaneous jurists – attained an importance in the constraints of the handbook genre, the in the early modern period that it had never seen omissions could at least have been signaled in before and became a decisive juridical authoritative order to avoid the creation of a monolithic narra- referent. tive. Thelinkbetweentheimpressivesuccessionof In addition to the important intra-European theoretical developments in the field of natural law and intra-Christian historical factors mentioned in early modern thinking and the European Ref- above, events and processes taking place outside ormation could have served as such a general Europe, in the lands of »infidels«, strongly influ- explanatory hypothesis. As other scholars dealing enced European ideas on natural law. A first chal- with this issue have shown,2 the »need for finding lenge concerned the need to legitimize the Spanish new rationales for obligating men« in a Europe presence in the Americas by appealing to non- split by the Reformation could explain why the confessional, supra-positive norms that could be 1530s and the 1540s were so decisive for both the taken as solid foundational »titles« by contempo- consolidation of the Protestant movement and the rary European powers. I refer to the urgent and reemergence of natural law. These two decades permanent need to discredit the pretensions of were precisely the period in which first system- those who did not accept papal bulls and donations atizations and hierarchizations of natural law – as legitimizing instruments. within the overarching notion of ius –wereelabo- The second challenge to early modern natural rated by the first generation of members of the so- law thinkers resulting from the discovery of the called School of Salamanca and contemporary »New World« was independent of any kind of Protestant theologians and jurists. European rivalries around the proper sources of Nevertheless, Ibbetson does not take into ac- law and legitimacy. The encounter with the un- count one of the two main roots of early modern expected and radical otherness of the American natural law thinking, the Protestant one. Protes- natives played a crucial role in the pioneering tant reflection on natural law began long before developments of natural legal thinking. It con- Grotius’ De Jure Belli ac Pacis with key figures such cerned the unparalleled and problematic conviven- as Melanchthon and Oldendorp.3 On the Catholic cia of Spaniards with a great number of heteroge- side, Ibbetson takes Soto alone as »the most im- neous pagan peoples, whose unusual and almost portant« representative of the way in which the »fantastical« customs the Christian invaders began, salmantinos emphasized natural law as the guiding little by little, to notice and understand. The framework against which to evaluate positive law respect due to a myriad of popular practices, rites, and to correct any excessive deviations from that and customary ways of ruling, obeying, taxation, framework. Why Soto deserves to be mentioned in etc. complicated the already complex multinorma- this historical and theoretical account but not tive legal system brought to America by the Span- jurists such as Azpilcueta, Covarrubias, Castro, or iards even more. Vázquez de Menchaca (all of whom worked under Vitoria, Soto and other prominent members of thesamenormativeparadigmandshouldbecon- the School of Salamanca recognized that Christi- sidered as of equal importance regarding this issue) ans could not ask American »infidels« to obey is not explained. A propensity to make crucial and divine law or convert them by force. They also problematic choices without explaining the intel- took into account that Christianity was lacking a

2 Among the most recent accounts, 3Antti Raunio, Natural Law in the I consider von Friedeburg’s particu- LutheranTradition, in: Norman Doe larly valuable. See Robert von (ed.), Christianity and Natural Law, Friedeburg,TheRiseofNatural Cambridge 2017, 77–97; Mary A. LawintheEarlyModernPeriod, Plaatjes van Huffel, Natural Law in: Ulrich Lehner et al. (eds.), The in the Reformed Tradition, in: ibid., Oxford Handbook of Early Modern 121–139. Theology, 1600–1800, Oxford 2016, 625–641.

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common answer to the question of what should resistance against illegitimate royal provisions and be considered as the real contents of this elusive officers (Hobbes’ re-theorization of this alleged divine law. Natural law therefore from the very right of self-defense in fact presupposes an attack beginning of the colonization process acted as a on these kinds of writings). Arguments coming decisive authoritative point of reference. This is from natural law could act also as connecting true even for the – until now rather understudied bridges between England and the Continent re- – period before Vitoria.4 Bythemiddleofthe garding many other juridical issues. In canon law 16th century, natural law had become such an thinking there were strong ties, e. g. between the important authoritative referent that, in order to doctrines on marriage and dispensation elaborated facilitate the convivencia with pagans and neo- by Cardinal John Fisher and the first generation of phytes, many theologians and jurists5 proposed a Salamanca’s masters (Vitoria, Soto,Vera Cruz, …), temporary tolerance of jurisdictional, tributary or an issue in which natural law played a crucial role. matrimonial native customs that – even if far away A last critical remark concerns the fact that the from the prescriptions of Christian divine law – practical dimension of the topic of natural law were not flagrant violations of the first principles of remainsinanalmosttotalobscuritywithinthis natural law. Even if it might seem paradoxical at contribution, as it does in many other approaches first sight, the encounters with the American »oth- coming from the field of the history of ideas.7 er« and the missionary and civilizatory campaigns I am referring specifically to the increasing pres- to which many of the Iberian scholastic thinkers ence of arguments coming from different natural contributed stimulated the secularization of natu- law theories in the European courts of the early ral law. Not only in Ibbetson’s text, but in many modern period, a subject recently studied by Ri- handbooks and encyclopedic accounts, too,6 such chard Helmholz in his challenging Natural Law in a complex and multistage process tends to be Court. A History of Legal Theory in Practice (Cam- represented as the result of Grotius’ speculative bridge 2015). New scholarly perspectives on the genius. field of natural law seem to come from a new wave Moving on to other issues, a certain attention of mixed theoretical-empirical studies on natural to neglected legal spheres, such as public law or law as a »living law« in the early modern period. canon law, could have also been useful to avoid the Unfortunately, these are missing from Ibbetson’s relative isolation in which the English debates on contribution to the Oxford Handbook of European natural law are presented in Section V. Within this Legal History. sphere,alreadybythemid-16th century there were substantial discussions on the natural law of self- defense in almost all of the treatises justifying 

4 For the case of the debates taking tive in the Viceroyalty of New Spain. ScholasticThought, Cambridge 1997; place at the Junta de Burgos of 1512 See Virginia Aspe Armella, Integra- Merio Scattola, Before and After and the importance given to natural ción cultural y ley natural en el Natural Law. Models of Natural Law law, see José Luis Egío García,Ma- Speculum Coniugiorum de Alonso in Ancient and Modern Times, in: tías de Paz and the Introduction of de laVeracruz, in: Revista Estudios 32 Tim J. Hochstrasser,Peter Schrö- Thomism in the Asuntos de Indias:A (2016) 377–402; Anastasía Assima- der (eds.), Early Modern Natural Law Conceptual Revolution, in: Rechts- kópulos,Sebastián Contreras,Ma- Theories. Contexts and Strategies in geschichte – Legal History 26 (2018) trimonio y derecho natural en Alonso the Early Enlightenment, Dordrecht 236–263, online: http://dx.doi.org/ de Veracruz (1507–1584), in: Revista 2003, 1–30; Richard Tuck,Natural 10.12946/rg26/236-262; Christiane de Estudios Histórico-Jurídicos 39 Rights Theories: Their Origin and Birr, Dominium in the Indies. Juan (2017) 173–193. Development, Cambridge 1979; López de Palacios Rubios’ Libellus de 6Hans Schlosser, Neuere Europäi- Alessandro Passerin d’Entrèves, insulis oceanis quas vulgus indias appe- sche Rechtsgeschichte, 3rd ed., Mu- Natural law: an introduction to legal lat (1512–1516), in: Rechtsgeschichte nich 2017. philosophy, London 1970. – Legal History 26 (2018) 264–283, 7Annabel Brett, Nature and the online: http://dx.doi.org/10.12946/ Limits of the City in Early Modern rg26/264-283. Natural Law, Princeton 2011; 5 A paradigmatic case would be that of Annabel Brett,Liberty,Rightand Alonso de la Vera Cruz, who was ac- Nature: Individual Rights in Later

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