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Perceptions of the Influence of Francisco De Vitoria on the Development of International Law in 21St Century Discourse

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Perceptions of the Influence of Francisco De Vitoria on the Development of International Law in 21St Century Discourse Perceptions of the Influence of Francisco de Vitoria on the Development of International Law in 21st Century discourse Gerrit Altena U1274635 October 2020 Tilburg Law School Supervisor: Dr. Inge van Hulle Contents: Chapter 1: Introduction…………………………………………………………………………………………………………2 Chapter 2: Francisco de Vitoria and the Development of Humanitarian Intervention……………9 Chapter 3: Francisco de Vitoria and the Secularization of International Law…………….………...21 Chapter 4: Francisco de Vitoria as the Founder of International Law……………………………….....27 Chapter 5: Conclusion………………………………………………………………………………………………………….37 Bibliography…………………………………………………………………………………………................................43 1 Chapter 1: Introduction The work of Francisco de Vitoria has always evoked conversation. Pufendorf and Kant could not agree on whether the work of the 16th Century Spanish clergyman and lecturer represented a defence or an attack on the native population of the Americas. Their disagreement has carried forth until this day.1 The conversation received renewed attention at the turn of the 20th Century, when American jurist James Brown Scott proclaimed Vitoria to be the founder of international law, as opposed to Hugo Grotius.2 Who was Francisco de Vitoria? Not much is known with certainty about the early life of Francisco de Vitoria. There is even disagreement over both Vitoria’s birthplace and the year of his birth. The former is said to be either Vitoria, the modern-day capital of Basque country, or Burgos.3 With regards to the year of his birth, there used to be a consensus on 1492. Vitoria, however, became a deacon in 1507, which would mean he would be 15 years old at that time. According to Hernández, it was impossible at the time to be a deacon at that age. The year 1483 is proposed as the likelier year of birth by Spanish historian Arriag4, though the more recent work by Van Liere places his birthyear at 1486.5 But, as James Brown Scott aptly pointed out, “For him, as well as for us, the important matter is that he was born.”6 Vitoria’s academic life has been 1 Andrew Fitzmaurice, ‘The Problem of Eurocentrism in the Thought of Francisco de Vitoria’, in J.M. Beneyto & J.C. Varela (eds), At the Origins of Modernity: Francisco de Vitoria and the Discovery of International Law (Springer 2017) 77-93 2 Ibid 80 3 Ramón Hernández, ‘The Internationalization of Francisco de Vitoria and Domingo de Soto’ (1991) 15(4) Fordham International Law Journal 1031 4 Ibid 5 Katherine Elliott van Liere, ‘Vitoria, Cajetan, and the Conciliarists’ (1997) 58(4) Journal of the History of Ideas, 597 6 James Brown Scott, ‘Francisco de Vitoria: Prima Professor of Theology at Salamanca’ in The Spanish Origin of International Law: Francisco de Vitoria and his Law of Nations (The Clarendon Press 1934) 70 2 discussed a couple of times elsewhere, for our scope it is important to note that Vitoria joined the Dominican order at a young age and went to Paris to study and eventually teach. Then he returned to Spain, first to Valladolid and lastly to the University of Salamanca, where he took on the primary of two chairs in theology.7 Here, he revived the scholastic method. As a scholastic, the Bible is the most important influence for Vitoria’s thought. Next to the Bible and Aristotle, who has always been a major source of influence for scholastics, he and his fellow academics from The Second Scholastics (Also known as the School of Salamanca) extensively used Saint Thomas Aquinas, a fellow Dominican and scholastic.8 These are direct influences in the sense that Vitoria cites them in his lectures, but there are a number of other influences that have often been ignored. Van Liere makes the point that the effects that political and ecclesiastical power have on one another were always on Vitoria’s mind, as a result of him being a part of the Church. This means that even when Vitoria is not talking or writing about the Church explicitly, he has considered the implications of his ideas on the Church. Van Liere uses the example of Vitoria’s relectiones de Indiis, which were inspired both by “the plight of the American Indians under Spanish colonial rule” and by “his protracted struggle with the theological 7 More detailed histories of Vitoria’s academic life are given in Ramón Hernández, ‘The Internationalization of Francisco de Vitoria and Domingo de Soto’ (1991) 15(4) Fordham International Law Journal 1031, 8 Matthias Kaufmann, ‘Die Referenzautoren der Schule von Salamanca und andere Vorläufer im Mittelalter’, in K. Bunge, M. J. Fuchs, D. Simmermacher, & A. Spindler (eds), The Concept of Law (Lex) in the Moral and Political Thought of the 'School of Salamanca' (Brill 2016) 9-31 3 implications of natural law theory”.9 To merely categorize Vitoria as a Catholic would be a simplification of his religious influences. As mentioned before, Vitoria was part of the Dominican Order, which had a couple of ideals that other Christian orders did not have. Emanating from France, the Dominicans spread rapidly across Medieval Europe. A great number of influential thinkers were taught through Dominican education. Perhaps the most famous of all is Saint Thomas Aquinas, who -as mentioned above- was a major influence on Vitoria. What set the Dominican Order apart from other Catholic orders was a focus on both preaching and teaching. Friars were also required to live in poverty, but the Dominicans were not unique in this aspect.10 Based on the teaching focus, a lot of Dominican missionaries were sent to the New World. Dominicans in Europe often held teaching positions at universities. Furthermore, the Dominicans had a cosmopolitan world view and the ideal of equality.11 Because of the connection with missionaries in the New World, Vitoria had information on the relations between the natives and the Spanish, as is evidenced by a couple of personal letters that survived. Aside from the reformation, there was disagreement among Christian theologians in Vitoria’s formative years. Vitoria was witness to a polemic between Cardinal Cajetan and Jacques Almain. This debate was revolving around the topic of conciliarism, which was a movement attempting “to modify and limit papal control over the Church by means of 9 Katherine Elliott van Liere, ‘Vitoria, Cajetan, and the Conciliarists’ (1997) 58(4) Journal of the History of Ideas, 597 10 Daniel Prudlo, ‘The Friars Preachers: The First Hundred Years of the Dominican Order’ (2010) 8(11) History Compass 1275 11 Beatriz Salamanca, ‘Early Modern Controversies of Mobility within the Spanish Empire: Francisco de Vitoria and the Peaceful Right to Travel’ (2015) 3(1) Tropos 14 4 general councils”.12 While Vitoria reportedly ‘admired’ conciliarist Almain’s work, agreeing with the proposition that Popes had too much power and that councils were necessary to keep the papacy in check, he did not agree with the underlying structure of argumentation, agreeing in this sense with anti-conciliar writers such as Cardinal Cajetan, but also Juan de Torquemada, both Dominicans too.13 Additionally, when Ernest Nys was tasked by James Brown Scott in the early 20th Century to write an introduction on de Indiis, a couple of influences of Vitoria were mentioned that do not receive attention in other works. Even though the discourse surrounding Vitoria in the 20th Century has received a lot of criticism regarding anachronism,14 a discussion of his influences and predecessors does put Vitoria into his temporal and cultural context and could therefore be a useful addition to the analysis of Vitoria’s influences. Nys, for example, points to the influence of Peter Crockaert, who introduced Vitoria to the Summa Theologica of Thomas Aquinas.15 Some writers make the point that the historical events of Vitoria’s time -i.e. The (counter- )reformation, invasions by the Ottoman Empire and the discovery of America- must have had an enormous impact on his thinking next to being influenced by his peers and 12 Antony Black, ‘The Conciliar Movement’ in J. Burns(ed), The Cambridge History of Medieval Political Thought c. 350 - c. 1450 (1988 Cambridge University Press) 537-587 13 Katherine Elliott van Liere, ‘Vitoria, Cajetan, and the Conciliarists’ (1997) 58(4) Journal of the History of Ideas, 597 14 For example from Andrew Fitzmaurice, ‘The Problem of Eurocentrism in the Thought of Francisco de Vitoria’, in J.M. Beneyto & J.C. Varela (eds), At the Origins of Modernity: Francisco de Vitoria and the Discovery of International Law (Springer 2017) 77-93 and Martti Koskenniemi, ‘Colonization of the 'Indies': The Origin of International Law’ (2010) La idea de la América en el pensamiento ius internacionalista del siglo XXI 43 15 Ernest Nys, (1917). ‘Introduction’, in F. d. Vitoria, & J. B. Scott (Ed.), Franciscus de Victoria De Indis et De Ivre Bellis Relectiones (1917 Carnegie Institution J. P. Bate, Trans., Vol. 7) 55-100 5 predecessors. Justenhoven, for instance, identifies the struggle between French King Francis I and Charles V, weakening the Habsburg Empire, as an important event for Europeans during Vitoria’s time because together with the reformation it challenged the Medieval ideal of a united Christianity.16 The world in which Vitoria found himself was in between two epochs of world history: The Middle Ages on the one hand, and modernity on the other. The result of this was an outburst in creativity, but also uncertainty about how to respond to new developments.17 All of the above has in some way contributed to the lectures Francisco de Vitoria gave in Salamanca. These lectures were transcribed by students. These transcripts, in combination with some surviving lecture notes of Vitoria himself, make up what we now see as his body of work. The most influential works are collected in their translated form in Francisco de Vitoria: Political Writings, which features a lecture on civil power, two on the power of the church, a lecture on Aquinas’ Summa Theologica, one on dietary laws and two on the American Indians.
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