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International law has not only the force
of a pact and agreement among men,
but also the force of a law;
for the world as a whole, being in a way one single State,
has the power to create laws
that are just and fitting for all persons,
as are the rules of international law.
Consequently, it is clear that
they who violate these international rules,
whether in peace or in war, commit a mortal sin;
moreover, in the gravest matters,
such as the inviolability of ambassadors,
it is not permissible for one country to refuse
to be bound by international law,
the latter having been established
by the authority of the whole world.
Francisco de Vitoria, De Potestate Civili, 21We must establish the reign of reason and justice,
and not violence, which is fit only for beasts.
Eméric Crucé, The New CineasAfter all, we are not looking for a hollow peace
nor for one lasting only three days,
but for one that will be voluntary, equal, and permanent,
a peace that will grant everyone what belongs to him:
full privileges to every citizen,
hospitality to the stranger,
and freedom to travel and trade
to everyone without exception.
Eméric Crucé, The New CineasNatural law is a dictate of right reason,
showing the moral necessity or moral baseness of any act
according to its agreement or disagreement with rational nature,
and indicating that such an act is therefore either
commanded or forbidden by the author of nature, God.
Hugo Grotius, The Law of War and Peace, 1:1:10For God has given conscience a judicial power
to be the sovereign guide of human actions,
by despising whose admonitions
the mind is stupefied into brutal hardness.
Hugo GrotiusThe most obvious and natural way
of discovering the truth is by referring to laws,
which derive their efficacy from the general consent of mankind.
Hugo Grotius, The Law of War and Peace, 2:11:6He who wages an unjust war
has no legitimate cause for war.
Whatever, then, he does in this war
is unlawful in every respect;
hence, if he kills his enemies, he is a murderer;
if he takes property belonging to the enemy,
he is to be considered an aggressor and robber.
A disturber of the public peace
must he be called who attacks other nations
through needless and unlawful wars.
Therefore, all nations have the right
to force such a disturber of the public peace
to desist from disturbing it.
If a nation is in fear of
such a disturber of the public peace,
it must form alliances of war with others in time.
Christian Wolff, Institutiones, § 1218If, then, there would be found
a restless and unprincipled nation,
ever ready to do harm to others,
to thwart their purposes,
to stir up civil strife among their citizens,
there is no doubt but that all the others
would have the right to unite together, to discipline it,
and even to disable it from doing further harm.
Emerich de Vattel, Law of Nations 2, 4, §53
Following the major division of the Catholic Church in the
Protestant Reformation,
the hope of peace being brought to Europe
through Church authority faded
irrevocably as sporadic religious
wars ravaged the continent for more than a century,
and the secular
rulers no longer followed Church authority in regard to war.
However,
after the development of humanism, legal scholars began to propose
that laws regulate the behavior of nations and princes
in their
often bellicose relationships with each other.
European exploration
and colonization of other continents
also brought up the need
for principles of international law.
To emphasize this need I
am preceding the discussion of the international law pioneers
with the story of Bartolomé de Las Casas and his peacemaking
efforts
during the horrendous Spanish conquest of the new world.
Bartolomé de Las Casas was born in 1484 and grew up
in Seville,
where he witnessed the triumphant return of Christopher Columbus in 1493.
His father and
three uncles accompanied Columbus
on his second voyage;
his father returned in 1498 on a ship loaded
with slaves,
one of whom he gave to Bartolomé during his
college years at Salamanca.
The slave was returned to Española
in accordance with the royal order of 1500.
Bartolomé accompanied
his father to Española in 1502.
After the massacre at Jaragua,
Governor Ovando gave Bartolomé a slave.
Las Casas later
described the misery and early deaths
of the slaves who worked
in the mines.
He went to Spain to assist Bartolomé Columbus
and was ordained a priest at Rome in 1507.
After studying canon
law for two years, Las Casas sailed back to Española
with
Admiral Diego Columbus, who gave him land in
Cibao with a repartimiento
(allotment) of Indians.
In 1513 he joined Diego Velazquez in the
conquest of Cuba
under Panfilo de Narvaez, trying to pacify the
natives.
Las Casas observed Spaniards massacre three thousand
natives at Caonao
after they had brought food to share with the
Christians.
He left Narvaez and was given an encomienda
near the port of Xagua.
Once he was even refused the sacrament
by a Dominican, because he held slaves.
While preparing a sermon in 1514 and reading the Wisdom
of Sirach 34:18-22
in which denying the laborer his wages
is compared to shedding the blood of a neighbor,
Las Casas had
a change of heart, realizing that the
treatment of the natives
was unjust and tyrannical.
He informed Velazquez that he was renouncing
his Indians,
and he began to give sermons against the robbery
and wrongs of the Spaniards,
telling his congregation that it
was sinful to make the Indians serve them.
Las Casas returned
to Spain in 1515 with Antonio Montesinos
to report to King Fernando
on the evils he witnessed.
He presented his Memorial de remedios
to Cardinal Cisneros
on how Spaniards and Indians could live together.
This visionary document was passed from regent Adrian of Utrecht
to Erasmus and Thomas More, who applied its ideas in his Utopia.
In 1516 Las Casas was appointed Protector of the Indians
and
tried to influence the Jeronymite commissioners,
but his zeal
met determined resistance from the Spaniards
who exploited the
labor of the natives.
When he told the Bishop of Burgos that seven
thousand Cuban children
had died of starvation in three months,
because their parents had been taken
to work in the mines, Fonseca
asked how that concerned him or the king.
The next year Las Casas
proposed an experiment to settle Venezuela
with farmers that would
work all the natives in common under his rules.
Twenty African
slaves were to be put in the mines in place of the Indians,
and
only priests properly educated in his methods were allowed.
The
community was to be assisted by 74 officials with various technical
skills,
and 6,600 castellanos were to be spent on supplies per
year.
In 1518 a royal order authorized establishing the villages;
but because of opposition Las Casas had trouble getting volunteers.
Most of those rounded up by Captain Berrio fell ill,
and the attempted
colonization was delayed for three years.
The next year Bishop Juan de Quevedo, using Aristotle as his
authority,
argued that Indians are slaves by nature.
The aristocratic
Gonzalo Fernandez de Oviedo, the first official historian of the
Indies,
seemed to agree, but Las Casas kept this history from
being printed.
Las Casas suggested more Arthurian ideals, dubbed
Knights of the Golden Spur.
Opposed by Fonseca, Las Casas selected
seventy laborers and went to Cumana
in 1521; but some soldiers
refused to serve under him and went off slave hunting.
This caused
the Guayqueri on the Venezuela coast to call on Caribs,
and they
burned the monastery, killed some Dominicans,
and massacred the
colony while Las Casas was away.
Las Casas blamed himself for
compromising with the slave-hunters.
Drunken natives used poisoned
arrows, and in revenge
Spaniards enslaved 600 of them in two months.
The frustrated Las Casas joined the Dominican order and
retreated
into a monastery on Española for many years.
He became
prior of a new monastery on the northern coast in 1526
and observed
the dying slaves that were being brought from the Bahamas.
He
wrote reports to Spain and influenced legislation to suppress
slavery.
In 1533 Las Casas persuaded a dying encomendero
to free
his slaves and leave his goods as reparation.
As a result of this,
pressure was put on his superior to confine him to the monastery.
Las Casas accepted the submission of a "rebel" cacique
named Enriquillo,
who had been educated in a Franciscan convent.
After the encomendero Valenzuela raped his wife, Enriquillo
complained to Valenzuela
and the governor's agent; but they only
threatened him with punishment.
He went to the Audiencia, which
did no more than send him back with a letter.
After more abuses
and brutalities, Enriquillo withdrew to the mountains.
He and
other Indians defended themselves against
the soldiers sent against
them, taking their weapons.
Enriquillo never let his men attack
Spaniards first
and ordered all prisoners disarmed and released.
After thirteen years the colony had spent 80,000 castellanos
trying to capture them.
Finally Fray Remigio persuaded Enriquillo
they could be friends with the Spaniards,
and Enriquillo delivered
to them gold but had to flee again from their treachery.
Soon
after Enriquillo agreed to accompany Las Casas to the town of
Azua, he died.
Las Casas worked as a missionary in Central America, and in
1536 he refused
to join an expedition under Captain Diego Machuca
de Zuazo and denied absolution
to those participating, because
he believed the conquest ordered by
Nicaragua governor Rodrigo
de Contreras was wrong;
but he offered to pacify the country himself
with only fifty men.
Contreras banished Las Casas; but King Charles
ordered Contreras to suspend
his expedition for two years so that
Las Casas could use peaceful methods.
He attended conferences
in Mexico with his allies Fray Julian Garces
and Bishop Juan de
Zumarraga, urging the doctrine of peaceful conversion.
Bernardino
de Minaya took these ideas to a conference in Rome in 1536,
and
the next year Pope Paul III pronounced that American Indians should
not be
deprived of their liberty or property even if they are
outside of the Christian fold;
he threatened those who enslave
Indians with excommunication.
Las Casas wrote a long book, which
is mostly lost, entitled
The Only Method of Attracting All
People to the True Faith.
In this treatise he moderated his
rhetoric and exhorted preachers
to use only peaceful and loving
methods of conversion,
because any violence repels rather than
attracts.
Infidels are not moved by those greedy for wealth or
desiring dominion over them.
Las Casas was allowed to attempt another experiment
to test
this thesis in Guatemala with his fellow Dominicans.
The province
of Tuzutlan was so untamed that it was called the "Land of
War."
In 1537 acting governor Alonso Maldonado from the second
Mexico audiencia
was investigating the Alvarado government
and agreed
to keep other Spaniards out of this region for five
years.
With three friars Las Casas wrote songs on Christian history,
and they taught them to four native merchants who were Christians
and began by trading with the natives and singing these songs.
Then the Dominican Luis de Barbastro, who knew the
Mayan language
Quiché, went to live among them.
The chief became a Christian
and urged his people to follow.
Las Casas took the chief to meet
Governor Alvarado,
and this experiment in peaceful conversion
succeeded for several years
as the region was renamed Vera Paz,
the "Land of True Peace."
Meanwhile colonists and ecclesiastics
argued over peaceful preaching as a method.
Las Casas returned to Spain in 1539 and for two years lobbied
the Council of the Indies to abolish encomiendas.
He condemned
this system in his Remedies for the Existing Evils,
with Twenty Reasons Therefore.
The ninth reason was the most
simple and obvious,
namely that all people in the new world are
free.
Even the Spanish Cortes (Council) in Valladolid petitioned
the king
to remedy the cruelties perpetrated against the Indians.
After Charles V returned to Spain in 1542, Dominicans persuaded
him
to abolish encomiendas and promulgate the New Laws.
No Indian was to be enslaved, and all existing Indian slaves were
to be freed.
Encomenderos without proper title were to
lose their natives,
as were all officials and prelates.
No new encomienda was to be granted to anyone, and as encomenderos
died,
their natives were to revert to the Crown.
On the islands
of Puerto Rico, Cuba, and Española tribute was not to be
demanded from Indians, who were to have the same rights as Spaniards.
Suspected of taking bribes from Cortes, Pizarro, and others, the
Council of the Indies
was suspended for a year, and new commissioners
were appointed.
Later historians have questioned whether abolishing
the encomiendas
benefited the natives, because they still
were considered tribute-paying vassals of the king.
The conquistadors reacted strongly to the New Laws,
resulting
in the assassination of the viceroy in Peru.
Visitador Tello de
Sandoval was sent to Mexico to enforce the New Laws;
but he heard
so many protests, he modified them.
Business was badly affected,
and hundreds of
Spaniards returned to Spain with their wives.
Clergy had also profited from encomiendas, and many priests
resisted the reform.
In 1545 the Council of Mexico advocated suspending
the New Laws
and making encomiendas perpetual, and Charles
V did
revoke the New Law on encomiendas later that year.
Las Casas met with hostility at Santo Domingo,
yet the stern
rule of Judge Cerrato prevented violence.
After rejecting the
lucrative see of Cuzco, Las Casas
was consecrated bishop of poor
Chiapas in 1544.
He met with bishops at Mexico City in 1546 and
wrote
Advice and Regulations to Confessors, urging the
withholding of sacraments
from anyone who did not compensate Indians
properly for their labor.
The rules were to be kept secret; but
they leaked out and upset many.
Penitents were required to give
their slaves freedom instantaneously and irrevocably.
They must
pay for the wrongs they did, and very unpopular was the call for
conquistadors,
who had gained all their wealth from exploiting
natives, to leave nothing to their sons.
Merchants who imported
war materials were also guilty and owed restitution.
Those confessing
must never again participate in a war of conquest against natives.
Having become too unpopular to minister effectively in the
colonies,
Las Casas resigned his bishopric and returned to Spain
for good in 1547.
The king's chaplain Juan Ginés de Sepulveda
had written a treatise
in which he argued that the wars against
the Indians were just.
Persuaded by Las Casas, university authorities
refused to let Sepulveda's book be printed.
Las Casas had been
working on his History of the Indies for years
and responded
by writing the massive Defense of Indian Civilization.
He argued that the current licenses should be revoked
and that
all conquest should be stopped.
In April 1549 the royal order
on "The Manner in which New Discoveries
are to be Undertaken"
was sent to the Audiencia of Peru.
Sepulveda wrote to Prince Philip in September, and in April
1550 Emperor Charles
ordered all conquests stopped until theologians
and counselors should decide the issue.
Sepulveda wrote A Defense
for the Book on the Just Causes of the War,
which was printed
at Rome in May 1550, and he wrote three other
defenses in Spanish,
describing the Indians as brutish and cowardly.
Fourteen officials
and ecclesiastics met for a month during the summer at Valladolid.
Sepulveda spoke for three hours and then Las Casas read from his
book
for five days before the judges began their discussion.
Domingo
de Soto made a summary, and then Sepulveda
wrote a reply to the
twelve objections of Las Casas.
Sepulveda argued that because
of their idolatry and sins against nature,
the Indians should
be subjugated and protected by the superior Spaniards.
He noted
that the natives do not have any written laws or even private
property.
Las Casas responded that the Indians were quite rational
and in some respects superior to the Greeks and Romans.
He wrote,
No nation exists, no matter how rude, uncultivated,
barbarous, gross, or almost brutal its people may be,
which may not be persuaded and brought to a good order
and way of life and made domestic, mild, and tractable,
provided the method that is proper and natural to men is used;
that is, love and gentleness and kindness.1
The judges argued and made no judgment, but by 1566, the year
Las Casas died,
King Philip II was issuing licenses for new discoveries.
Yet the more humane ordinance of 1573 was surely influenced by
the life work
of the zealous Dominican, as the concept of conquest
was replaced by pacification.
After the debate Las Casas in 1552 published eight tracts,
including his
Short Account of the Destruction of the Indies
he had written ten years earlier.
Unlike most of his writing,
this bold criticism was translated in the 16th century
into Flemish,
English, French, German, and Latin and was thus widely disseminated.
In the prolog he explained that it would have been a criminal
neglect of his duty
to remain silent about the enormous loss of
life because of the conquests.
He summarized the most egregious
violations he was describing in his longer history.
The native
population of Española had been reduced from three million
to two hundred.
Cuba, Puerto Rico, Jamaica, and the Bahamas were
similarly devastated.
On the mainland Christians had caused the
deaths of between twelve and fifteen million
people by unjust
war and brutal slavery in order to get gold and amass private
fortunes.
Las Casas repeatedly argued that the natives had done
nothing wrong to deserve such ill treatment.
They had welcomed
the Europeans, believing they came from heaven
until they realized
what their oppressive purposes were.
Only then did some of them
take up their inferior weapons to try to defend themselves.
Europeans
were ruthless and vowed to slaughter
one hundred natives for every
Spaniard who was killed.
In Panama and Nicaragua Governor Pedrarias led
the slaughter
in the relentless search for gold.
Demands for fifty slaves every
few months were made of local leaders,
who were burned alive or
thrown to dogs if they did not meet their quota.
Las Casas described
the assaults in Mexico as worse
than those of Turks trying to
destroy Christians.
He accused the Alvarado brothers of killing
four million
natives in Guatemala between 1524 and 1540.
Other
"butchers" he left unnamed were
Guzman in northern Mexico
and Montejo in Yucatan.
In only the first ten years Las Casas
calculated
the number of deaths in Peru at four million.
He noted
that already the conquistadors in Peru were fighting and killing
each other.
He saw the Christ in each of the natives and lamented
that
they had not been given the knowledge of God.
He loved Castile
and feared his country would be punished for these crimes.
Las Casas wrote a treatise on imperial sovereignty in which
he argued that
the pope had no coercive authority to force infidels
to accept Christianity,
and he believed that the natives had their
own rightful kings and property,
which should be restored by the encomenderos who had robbed them.
In Thirty Very Juridical
Propositions he argued that
everything the Spaniards had done
in the new world was illegal and unjust.
These writings and his
sermons made Las Casas
the most hated man in the Spanish empire.
Several times the council of Mexico City urged Philip II to restrain
the Indian advocate and prohibit the printing of his books.
In
1554 licenciado Ribera on behalf of encomenderos in Peru
offered Philip
four million ducats if he would make encomiendas
perpetual;
so Las Casas contacted missionaries, and they promised
even more money
to the bankrupt Spanish government from the Indians
themselves for their freedom.
This royal commission was so fraught
with corruption
and fraud that the king dismissed it.
In 1564
Las Casas wrote a Solution to the Twelve Doubts in which
he asserted that it is right for even infidels to have jurisdiction
over their own lives.
He questioned the enrichment of the fortune
hunters in Peru,
and his writing stimulated Viceroy Toledo to
research the history of the Incas
so that he could prove that
they had oppressed other natives.
In his last will and testament Las Casas described his call as:
To act here at home on behalf of all those people
out in what we call the Indies,
the true possessors of those kingdoms, those territories.
To act against the unimaginable, unspeakable violence
and evil and harm they have suffered from our people,
contrary to all reason, all justice,
so as to restore them to the original liberty
they were lawlessly deprived of,
and get them free of death by violence, death they still suffer.2
Then in the same will he left behind a disturbing prophecy:
I think that God shall have to pour out his fury and anger
on Spain for these damnable, rotten, infamous deeds
done so unjustly, so tyrannically, so barbarously
to those people, against those people.
For the whole of Spain has shared in the blood-soaked riches,
some a little, some a lot, but all shared in goods
that were ill-gotten, wickedly taken with violence and genocide—
and all must pay unless Spain does a mighty penance.3
The first major effort in this direction was made by a Dominican
professor
of theology at the University of Salamanca named
Francisco
de Vitoria (in Latin Franciscus de Victoria).
Born about 1492
in the Spanish city of Vitoria,
Francisco studied for seven years
at the University of Paris.
After teaching for three years at
Valladolid, in 1526 he won the chair of theology
at the University
of Salamanca, where he lectured for the rest of his life.
While
his nation Spain was at the height of its power, he contributed
much
to moderating the violence of its conquests by raising concerns
for international justice.
After learning of the violence in the
Spanish conquest of Peru in 1536,
Vitoria lectured on the Indies
for the rights of the natives.
Charles V complained about the
friar, but in 1542 new laws
put the natives under the protection
of the crown.
Vitoria's lecture notes on the Indies and the laws
of war
were collected and published after he died in 1546.
Because
of his early discussions on the principles of international law
and the laws of war, Vitoria is now generally recognized by scholars
as the founder of modern international law.
Vitoria began with the premise that God has ordained certain
principles
for all by the law of nature, and these include not
stealing,
not killing an innocent person, and not doing to anyone
what we would not let others do to us.
The justice of natural
law, which he considered necessary,
he contrasted with the laws
made by human will, which he called positive law.
Vitoria observed
that human societies are
established to help bear each other's
burdens.
He noted that a community is needed for mutual assistance
because
a single family does not suffice, especially in regard
to resisting violence.
A perfect state is complete and whole
and
thus is not subject to any outside force.
States, he believed,
have the authority or right to use public power
by governing in
order to protect and preserve people.
Vitoria believed that individuals
would be torn apart
if there were not a providential force, a
state, to consider
the common good and provide for the general
welfare.
A prince or good rulers should subordinate
both peace
and war to the common good of all,
but a tyrant directs the government
toward his individual good.
Thus the government is not legitimate
unless
a majority agrees with the exercise of power.
Vitoria suggested that the law of nations derives from
natural
law and confers rights and obligations.
The world as a whole has
the power to create
international laws that are just for all persons,
and no country should be permitted to refuse to be
bound by international
law that has been so established.
He believed that any war that
is advantageous to one nation
but is injurious to the world is
unjust.
Vitoria rejected Spain's imperial claims
because all people
are free by natural law.
He argued that the Indians were in peaceable
possession
of their goods and must be treated as their rightful
owners,
and unbelief does not prevent anyone from being a true
owner.
Therefore Christians should not despoil their property.
He declared that the Emperor is not the lord of the whole world.
The pope has no authority over non-believers;
thus war could not
be waged against Indians
because they did not acknowledge the
pope's claims.
Although the pope is not a temporal lord,
he may
judge between Christian princes in conflict.
Vitoria argued that Spaniards have the right to travel and
live in other lands
as long as they do not harm the natives, because
friendship is part of natural law.
Vitoria also held that running
water and the sea are common to all by natural law,
and so ships
have the right to use them.
Also it is the right of nations to
trade as long as they do not hurt citizens.
Spaniards do not have
the right to prevent the French from trading.
Christians have
no right to take things from Jews or Muslims or unbelievers;
but
to do so is robbery, just as if they were taken from Christians.
Vitoria argued that native princes may not hinder their subjects
from trading
with Spaniards, nor may Spanish princes prevent commerce
with natives.
Vitoria believed that children of Spaniards ought to be allowed
to become citizens,
provided they submit to the legal burdens.
Spanish missionaries have the right to preach the Gospel,
and
it is wrong to hinder them or to punish the converted.
He advised
that massacres and spoliation tended to hinder conversion.
War
should not be used to induce belief,
for such belief is usually
feigned and is a sacrilege.
Vitoria did argue that Spanish sovereigns
might send governors for those natives
who would clearly be benefited
by that;
but it must be for their welfare and not for the profit
of the Spaniards.
They do have the right to stop human sacrifices
and cannibalism in order to protect innocent people.
The consent
of all is not required, but a majority is sufficient.
Yet the
choice must be made without fear and ignorance.
Vitoria argued that defensive war may be used to repel force
and that offensive war
may even be employed to repossess property
or avenge a wrong suffered.
He reasoned that oppressors, robbers,
and plunderers should not be allowed
to commit their crimes with
impunity without others having the right to retaliate.
Thus rulers
can punish enemies just as they can criminals in their own jurisdiction.
So Vitoria granted every state the authority to declare
and make
war in order to defend the common good.
He listed four justifiable
purposes for war as self-defense and defense of property,
recovering
things taken, avenging a wrong, and to secure peace and security.
Yet he explicitly stated that neither differences of religion
nor extending an empire are just causes for war.
Nor should war
be conducted for the glory of a prince or for his advantage.
Only
a serious wrong is cause for war, for the degree of punishment
should correspond to the measure of the offense.
Anything doubtful
makes it not a just war; otherwise there would be
many wars with
both sides claiming they are just.
A careful examination must be made of the justice of the causes,
and the ruler's council and other governors should be consulted.
Vitoria taught, "Subjects whose conscience is against
the
justice of a war may not engage in it."4
However, later Vitoria
stated that subjects are bound to follow their ruler
in a defensive
war or an offensive war that is justified
because they should
not betray their state to the enemy.
In the doubtful cases the
benefit should go to the party already in possession.
Those in
doubt as to their claim should examine carefully
and give a quiet
hearing to arguments of the other side.
Vitoria argued that a
war cannot be just on both sides,
and it is unlawful to fight
against the just side.
Vitoria also stated, "The deliberate
slaughter of the innocent is never lawful in itself."5
He
did acknowledge that collateral damage could occur in a just war,
and some innocent people may be killed, as when a city is stormed,
for example.
Vitoria argued against the killing of guilty people because
of
the expectation they may cause danger in the future.
Arms,
ships, and engines of war may be taken from the innocent
to prevent
the enemy from using them, but agriculture should not be despoiled.
Foreigners and guests of the enemy should not be killed
unless
they are obviously at fault.
Hostages should not be killed.
Vitoria
allowed reparations from the enemy for damages wrongfully caused,
but they must be in proportion to the wrong.
Vengeance for wrongs
should be conducted with due regard for equity and humanity.
Only
in rare cases is it justified to overthrow
the enemy's sovereignty
and depose the ruler.
Finally, in victory Vitoria recommended
moderation and Christian humility.
Although some of Vitoria's points are debatable,
he clearly
set up many useful standards for limiting and regulating
the massive
violence that was occurring in his time.
He helped to bring some
reforms to the ruthless Spanish policies of the conquistadors;
but he also justified their interventions more than
the humanitarian
efforts and writings of Bartolomé de Las
Casas.
Two years after Vitoria died, Francisco Suarez (1548-1617)
was born in Granada.
He studied canon law at Salamanca University
for nearly ten years.
After failing two tests for the recently
founded Society of Jesus,
he was admitted into the Jesuit order
in 1564.
Seven years later he began teaching philosophy at Segovia,
and starting in 1580 he taught at Rome for five years;
by then
he was so renowned that Pope Gregory XIII attended his first lecture.
After teaching seven years at Alcala and five years at Salamanca,
in 1597 King Philip II persuaded Suarez to teach at Coimbra in
Portugal
to give that university more prestige, and he taught
there until 1616.
He died after trying to mediate a dispute in
Lisbon
between ecclesiastical and lay authorities.
The extensive writings of Suarez are perhaps the culmination
of scholastic theology.
His book on laws, De Legibus, was
completed in 1612.
The next year at the request of Pope Paul V
he wrote a response to the claims
of Anglican theologians and
England's king James I to the divine right of kings
without being
under the authority of the pope.
In his Defense of the Faith
(Defensio Fidei) Suarez argued against
the oath of allegiance
James had imposed in which his subjects abjured
the doctrine that
princes excommunicated by the pope
may be deposed or murdered
by their subjects.
Suarez believed that princes ruled by consent
of the people
and could be deposed if they became tyrannical.
His book was publicly burned in London and in France,
where refugee
Grotius in writing his books
was careful about praising the Spanish
theologian.
Suarez called conflict within a state sedition and
held that the aggressor is evil, but defense is just.
Once again,
the people have the right to overthrow an unjust ruler.
Suarez
called private wars duels and considered them intrinsically evil.
Suarez believed that theology was the highest study involving
the human conscience and should be the basis for law.
He often
agreed with the ideas of Vitoria and
attempted to refine his ideas
more precisely.
All people are born free by natural law, and nature
does not confer
on any particular person political jurisdiction
over another.
Rather the power of the state resides in the whole
body of mankind.
However, unlike Vitoria, Suarez did not believe
that a single state for all humanity was feasible.
Thus the power
of making laws resides in several political communities.
The legitimacy
of a ruler can be lost if the consent of the community is forfeited.
The form of government depends on human choice because
it is too
difficult for the whole community to make laws directly.
If a
legitimate ruler lapses into tyranny, the people may wage
a just
war against him by the right of self-defense.
If a tyrannical
usurper is clearly unjust, and if no other remedy is available,
it is licit for even a private individual to kill him.
Suarez
held that unjust tax laws do not bind the conscience.
In discussing the theological virtue of faith, Suarez argued
that
the Church has the right to preach the Gospel everywhere
and
to defend its preachers against force and violence that hinders
them.
For this purpose the pope may distribute realms of the unbelievers,
though peaceful means of persuasion must first be employed.
Suarez discussed the issue of war in respect to the theological
virtue of charity.
He took the position that war is not evil in
itself, and he argued
it is not forbidden to Christians because
defensive war
and even offensive war that is right are permitted.
He cited the three traditional conditions that are needed to justify
war,
namely legitimate power, a just cause, and
just, proper,
and proportionate conduct of the war.
Generally an inferior prince
or imperfect state may not declare war
without authorization of
the superior, though Vitoria and he made an exception
if the sovereign
prince is negligent in avenging a wrong.
Jurisdiction depends
on there being a tribunal which is supreme in that realm.
Suarez
argued that although the pope has no direct temporal authority,
he may authorize a prince to conduct a just war;
a war declared
against that legitimate authority,
Suarez considered contrary
to charity and justice.
Injuries must be serious to cause a war, which is only justified
if they refuse to give satisfaction for the injury.
A defensive
war should be tried before being offensive.
An injured sovereign
should not enter into an offensive war of revenge
if the chance
of victory is unlikely.
Suarez gave two reasons for declaring
a war,
either because of an injury or to defend the innocent.
Like Vitoria, Suarez also recommended getting advice from good
men,
who should inquire diligently into the truth.
Common soldiers
are not required to make such an investigation,
though Sylvester
and Adrian held that they must do so
if they have reasons for
doubting the justice of the war.
Suarez also justified incidental
injuries to innocents in conducting the war,
and innocents he
defined as children, women, those unable to bear arms,
ambassadors,
and Christian clergy,
but he considered all others in the enemy
state guilty.
Vitoria and Suarez went so far as to allow capital
punishment
of the guilty individuals after victory.
Eméric Crucé (1590-1648) was a monk who taught
at a collège in Paris.
He was a classical scholar
little known except for his treatise on universal peace
entitled The New Cyneas, which was published in 1623
with a second
edition in 1624.
This work is the first practical proposal for
world peace
which does not aggrandize the power of a particular
nation, empire, or religion.
Crucé declared in the preface,
"No one can say that he has strayed from
the path of truth
out of love either for his country or his religion,
even though
these loves are so engraved on his soul
that death itself cannot
efface them."6
He wrote during the early years of the Thirty
Years' War,
and his ideas probably influenced the Peace of Westphalia
in 1648.
His concept of a universal and perpetual peace was adopted
by the Duke of Sully
in his description of Henri IV's "Grand
Design"
(for this idea did not appear in the 1620 edition
of Sully's work
but was fully treated in the 1638 edition), and
Hugo Grotius may have known of it
when he was in Paris writing The Law of War and Peace.
In an age of religious intolerance and fanatical wars over
conflicts
in theology and church ritual, Crucé put forward
a
tolerant and universal vision of peace and justice.
He stated
in the preface, "I know that heresies must be refuted,
but
I see none greater than the error made by those
who place injustice
above all else and who value only arms."7
When the house
of a neighbor is burning or falling down,
there is reason to feel
fear and compassion.
Because human society is one body in which
all the members are in sympathy,
it is impossible for the sickness
of any one part
not to be communicated to the others.
Not only was Crucé the first to suggest a political
solution,
whose primary aim was world peace, but also he was the
first to consider
the economic implications and goals as is indicated
by his subtitle:
"Discourse on Opportunities and Means for
Establishing a General Peace
and Freedom of Trade Throughout the
World."
He addressed himself to the current monarchs and
sovereign rulers,
and clearly his method was to reason with them
and institute his program from the top down.
He named his book
after the ancient Cyneas, who had advised
Pyrrhus of Epirus (319-272
BC) to make peace instead of war;
the rival of Macedonia and Rome
ignored his advice and won "Pyrrhic victories,"
but
their heavy losses made them as bad as defeats.
Crucé claimed
that he would show rulers ways to make their states secure
through
establishing universal peace, which is in the public interest,
and he begged them to have pity on the human race
and stop the
abuses of horrible wars.
He suggested offering clemency and even
farmland for privateers
who gave up piracy because it is cheaper
than suppressing them by force,
which he nonetheless advised for
those who refused to cooperate.
Crucé pointed out four main causes of war:
honor, profit,
righting some wrong, and exercise;
religion, he felt, usually
only served as a pretext.
Crucé criticized the common opinion
that the exercise of arms is noble and glorious.
Ordinary valor
is brute force, but magnanimity and steadfast courage
make for
true valor, which is to reject all wrongs and not do any.
Actually
there is more dishonor than honor to be found in war-insults
and
scorn to prisoners and ignominious death.
Princes ought to be
ashamed of warmongering and curtail their ambition.
As for profit,
more often than not the costs of war
are tremendously expensive,
even for the winning side.
The avenging of past wrongs is precarious,
because sovereigns rule by the grace of God.
Too often their attempts
to fight for what they think they have a right to
does not meet
with God's providence, and many kingdoms have been lost by rulers,
who tried to exterminate some other power they believed to be
unjust.
Long possession indicates God's favor, and therefore conquest
is not just.
Instead of resorting to arms to settle disputes,
they ought to submit their cases
to arbitration by sovereign rulers
not involved in the particular case.
The danger of war from restless activity requires several remedies.
The sovereigns must maintain control of their armies
and not let
the militarists take over.
Princes ought to be proud of maintaining
peace and justice
rather than trying to aggrandize themselves
through conquest.
Games and hunting can exercise and release the
tensions of the more aggressive.
With universal peace agreed upon,
the army can be reduced greatly,
while at the same time bona
fide police and peace officers can be paid larger wages.
Manpower
can be put to work in agriculture, trade, and in building needed
canals.
Pirates and enemies can be given opportunities
to work
through public assistance programs.
Artists and craftsmen can
be encouraged by offering rewards for excellent work.
Crucé believed that religious conflicts could be overcome
by realizing the basic similarity of human nature,
which is the
true foundation of friendship and society.
Ultimately all religions
have the same goal of adoring God,
which is found in the heart.
True piety does not lead to animosity, malice, hostility, nor
slander.
We must be good and have charity, which makes faith possible.
Whoever lacks charity does not have religion in their heart.
Crucé
warned against the arrogance of trying to correct others' beliefs
by force.
Wrong actions may be punished by civil laws,
but only
God, who sees people's hearts and their secret thoughts,
can judge
questions of understanding.
The Emperor Charles V had attempted
to suppress Lutheranism in its beginnings,
but he was forced by
his new enemy to grant them freedom of conscience
in order to
preserve his own state.
Crucé proposed that there be an assembly of ambassadors
from every nation
in the world including Tartary, Persia, China,
Ethiopia, and the East and West Indies.
He suggested Venice as
the meeting place,
because it was neutral, central, and accessible.
Decisions were to be made by the whole assembly,
which could easily
bring violators "back to the path of reason."
Laws would
be passed by the majority of votes and would be enforced with
arms.
Princes must remain within their established boundaries
and must not go beyond them for any reason.
Complaints could be
presented to the general assembly, which would decide them.
Crucé
declared that the peace would be extremely valuable to all the
monarchs.
Then Crucé turned to the means necessary to
maintain
the domestic peace within each country.
The monarch must govern
moderately according to reason
and with care for all the people.
Vice and crimes must be justly punished, and the ruler must be
especially careful
to root out flatterers and financial schemers
from his own court.
Rewards of honor and profit may be used to
encourage good works.
They must provide for the poor; if they
are healthy, they may be taught trades.
Crucé is quite
critical of lawyers and legal tricks and formalities,
which delay
justice and make it expensive.
He recommended judges of integrity
and simplification of legal suits and processes.
Taxes, which
are necessary to the state,
ought to be based on land
and the
ability to pay,
and trade ought to be universal without restrictions
between nations.
Public grain ought to be stored up in case of
famine.
Crucé encouraged lawful recreation such as athletics,
theater, and music.
The power of censure ought to be used to regulate
morals,
and the influence of public opinion can keep people upright.
Those who lead dissolute lives may lose their privileges -
a senator
his position, a knight his title, a citizen his civic rights.
Crucé recommended education for the young, which includes
reading, writing, arithmetic, history and laws, languages, and
exercise.
Between states the borders are to be kept the same; trade may
be arranged;
and foreigners must be treated justly.
Weights, measures,
and money must be standardized to prevent cheating.
Crucé
concluded with a description of the horrors of war
that are caused
by the sins of arrogance and cruelty.
With little provocation
thousands of men clash with each other,
resulting in slaughter,
dismemberment, and misery.
Then innocent people are massacred,
women violated, and temples profaned;
famine and pestilence follow.
Cruce exhorted us to renounce arrogance and cruelty so that wars
will cease.
Huig de Groot, known by the Latin form Hugo Grotius,
was born
in Delft, Holland on April 10, 1583 during the era
in which the
Netherlands was attempting to free itself
from political and religious
domination by Spain.
His mother was Catholic, and his father was
a
Protestant burgomaster and curator of the University of Leyden.
By the age of eight Hugo was writing Latin poetry, and by the
time
he was twelve he had converted his mother and entered the
university,
studying under the great scholar, Joseph Scaliger.
At fifteen he left the university, and serving the statesman
Johan
van Oldenbarnevelt, he traveled on a diplomatic mission to France,
where Henri IV called him the "Miracle of Holland."
He was admitted to the bar and in 1600 settled at The Hague
to
practice law with Oldenbarnevelt and the Dutch East India merchants.
In 1604 Grotius was asked to defend the United East India Company
after one of its ships captured a richly laden Portuguese ship
in the Straits of Melaka, where the Portuguese were trying to
exclude the Dutch.
After the Prize Commission decided in favor
of the Company,
a leading Anabaptist, opposed to violence, sold
his stock.
Grotius developed his ideas on international law by writing
a long
Commentary on the Law of Prize; the complete manuscript
was not discovered and published until 1868, though he anonymously
published its twelfth chapter in 1609 as Mare Liberum (Freedom
of the Seas).
In this book he challenged the claims of England,
Spain, and Portugal
to rule over portions of the ocean, arguing
that the liberty of the sea
is essential to the right of nations
to communicate with each other
and that no nation can monopolize
ocean highways because of
the immensity of the sea and its lack
of stability and fixed limits.
Grotius married in 1608 after he became official historian
of the United Provinces
and advocate-general of the Fisc of Holland
and Zeeland.
The next year the Dutch made a twelve-year truce
with Spain,
and in 1610 Grotius justified their revolt against
Spain's Philip II
in his history of Holland entitled The Antiquity
of the Batavian Republic.
In that work he also presented skillful
arguments for a Dutch monopoly
on East Indian trade even though
this advocacy directly contradicted
the principles he formulated
in his Mare Liberum.
In 1613 he was appointed to the high
legal office of pensionary of Rotterdam,
becoming its chief magistrate
and representative
in the States General of the United Netherlands.
Grotius went to England on a diplomatic mission concerning the
freedom of the sea.
Speaking for a group from his country, Grotius
urged King James I
to convene
an international council to work
on reuniting the divided Christian churches.
In Holland again, Grotius became involved in the Arminian controversy
under
the leadership of Oldenbarneveldt in a political
struggle
against more conservative Calvinists.
He took the side of free
will against the theory of predestination.
Grotius wrote a passionate
appeal in support of the
Edict of Pacification, which recommended
tolerance.
However, the political leader Maurice allied himself
with
the Church and fanatical peasants against the Edict of Pacification.
Representing the States of Holland, Grotius publicly addressed
the authorities
of Amsterdam in favor of tolerating the two theological
opinions;
considering the political danger to the country and
the religious danger
to Protestantism, he pleaded for toleration
and peace.
But these were intolerant times, and his address was
treated with contempt and suppressed by force.
Though his family
and friends advised him to give up the struggle,
he devised a
new formula for peace to be signed by both parties
that did not
contradict Calvinism and proposed a council to settle the question
peacefully.
This also was rejected by the fanatics and Maurice.
In 1618 the orthodox Calvinists took control of the government,
and Oldenbarnevelt and Grotius were arrested for treason against
the state.
The next year Oldenbarnevelt was executed,
and Grotius
was sentenced to life imprisonment.
His wife was allowed to live
with him in the fortress castle of Loevestein
and to provide him
with writing materials and books.
While imprisoned, Grotius began
writing an Introduction to Dutch Jurisprudence,
which was
published in 1631 and became a standard textbook in Holland
and
the law code for South Africa from 1859 to 1901.
In 1621 his wife
concealed him in a chest for books, and he escaped to Paris,
where
she later joined him.
He then wrote a letter to the Netherlands
authorities,
declaring that no one had been bribed to aid his
escape,
that he did not consider himself guilty of any crime against
his country,
and that nothing had happened to cause him to love
his country any less.
Barely surviving on a small and irregular pension from Louis
XIII,
Grotius began in 1623 his great work, De Jure Belli ac
Pacis
(The Law of War and Peace), which was published in 1625.
The Catholic Church proscribed the work on the index in 1627.
The influence of the work spread though,
as the Thirty Years'
War was in midstream.
Grotius and his wife returned to Holland
in 1631;
but another decree by the States General offered a reward
for his arrest,
causing them to leave Amsterdam and go to Hamburg.
A poem he had written in prison, he translated
into Latin in 1627
as The Truth of Christianity.
It was enormously popular
among Catholics and various Protestant sects
because it focused
on the essential teachings of Christianity
rather than the sectarian
questions, which divided Christians.
This Latin book was translated
into French five times,
into German three times, and into English,
Swedish, Danish,
Flemish, Greek, Chinese, Malay, Persian, Arabic,
and Urdu.
The monarch of Sweden, Gustavus Adolphus, kept a copy of
The
Law of War and Peace next to his Bible
under his soldier's
pillow during the campaigns of the war.
He commended Grotius before
his death on the battlefield in 1632,
and Grotius was selected
as an ambassador of Sweden
to help Chancellor Oxenstierna negotiate
a new alliance with France.
Preoccupied with writing religious
dramas and poetry,
Grotius was put off by Cardinal Richelieu's
arrogance,
and they quarreled over precedence and court etiquette.
Grotius tried but failed to negotiate a treaty to end the Thirty
Years' War.
In 1641 he wrote his brother that Richelieu hated
him
solely because he loved peace; he suggested that if Christian
princes
would choose fair arbitrators, there would be no more
war among them.
In 1644 he was recalled to Stockholm by Queen
Christina,
who liked to patronize scholars and philosophers.
However,
Grotius decided to go home; his ship was caught in a storm,
and
he fell ill and died at Rostock on August 28, 1645.
Although he believed that there could be a "just war"
(unlike Erasmus and other pacifists), Grotius made a tremendous
contribution
toward international law and to more just and moral
conduct during wars.
Living during an age of cruel and lawless
religious and national warfare,
The Law of War and Peace delineated
codes of justice for protecting
innocent non-combatants, discerning
rights of persons and property,
and arranging methods for truces,
treaties,
and humane treatment of hostages and prisoners.
In the
Prolegomena, Grotius suggested that there is a
common law among
nations that is valid for war.
Then he asserted the need for these
principles.
Throughout the Christian world I observed
a lack of restraint in relation to war,
such as even a barbarous race should be ashamed of;
I observed that men rush to arms for slight causes,
or no cause at all,
and that when arms have once been taken up
there is no longer any respect for law, divine or human;
it is as if , in accordance with a general decree,
frenzy had openly been let loose
for the committing of all crimes.8
Grotius began by noting that "controversies among those
who
are not held together by the common bond of municipal law"9
are questions of war and peace.
These occur when people either
have not yet
formed a nation or belong to different nations.
The
law of nations that is beyond the municipal law, as Dio Chrysostom
noted,
evolves over time and is customary.
Grotius quoted numerous
classical and biblical sources but derived his principles
using
human reason from natural law and
the law of nations, which are
universally accepted.
A civil right derives from the laws of a
sovereign state;
he asserted that the law of nations is a
more extensive right because
it derives its authority from the
consent of all, or at least of many, nations.
Grotius believed
that if authorities issue an order that is contrary to natural
law,
it should not be carried out.
Grotius distinguished public wars from private wars but noted
that
some wars are a combination of the two; he held that
any
of them could be justified in some circumstances.
However, in
any war no more than one side can be in the right,
and in some
wars neither side is justified.
He delineated three justifiable
causes for war.
The first is self-defense; the second is defense
of property;
and third, serious offenses may justify punishment
through war.
Every effort should be made for a peaceful settlement,
including arbitration.
Especially in doubtful cases, we must listen
to our conscience,
which can guide human actions in accordance
with justice and reason.
He quoted Cicero to show that the failure
to use human reason
reduces humans to the violence of brutes.
Wars over religion cannot be justified, because religion is a
question
of conscience and inner conviction which cannot be forced
on anyone.
Therefore wars against infidel nations or heretics
are unjust,
and no law can make a belief or disbelief a crime.
Grotius acknowledged the historian Polybius as the first
to
distinguish justifiable causes for war from
persuasive arguments
that he considered mere pretexts.
Thus those who go to war without
a justifiable cause,
such as Alexander did against the Persians,
are actually robbers.
When causes are doubtful, war should be
obviated by a conference
in which the adversaries may negotiate
a settlement
or secondly by arbitration through a compromise
or
thirdly by lot or single combat.
When the doubts on either side
are equal,
the one with possession has the greater claim.
He advised
that it is often better to relinquish a right than to try to enforce
it.
In arbitration he emphasized that it is important
to choose
a just judge who has integrity.
In the third book Grotius discussed the general rules derived
from natural law as to what is permissible in the conduct of war.
He allowed the means to the end and for other
justifiable causes
that may develop during the war.
He found deceit allowable in
some circumstances of war,
but falsehood is not justifiable in
making promises or in oaths.
He required a formal declaration
for a public war, and it may be conditional.
Grotius considered
it a violation to poison weapons or waters.
By the law of nations
he considered those captured in war to be slaves,
though he noted
that Christians and Muslims do not treat them as slaves
but may
sell them for ransom or make the captives work.
Grotius advised
moderation in killing and destroying during a just war.
Finally
he discussed the making of truces and peace treaties to end war,
and he noted the rights of those not involved in the war.
He urged
that peace be kept and concluded his work with a prayer to God.
Samuel Pufendorf was born on January 8, 1632 in Saxony
in the
family of a poor Lutheran pastor;
but a rich nobleman helped him
get a good education,
and Pufendorf studied theology at Leipzig
University.
In 1656 he went to Jena, and he was influenced by
the
writings of Grotius, Hobbes, and Descartes.
While he was tutoring
the family of the Swedish ambassador in Denmark,
war broke out
between the two countries,
resulting in his being imprisoned with
them for six months.
Having developed his own philosophy, in 1660
Pufendorf published
Two Books on the Elements of Universal
Jurisprudence.
This gained attention and earned him a position
at Heidelberg University,
making him the first professor of international
law.
In 1667 he published under a pseudonym an attack
on the constitution
of the Holy Roman Empire.
After being banned, this book was widely
translated and spread abroad.
The next year Pufendorf left Heidelberg,
and he then taught for twenty years
at the new University of Lund
in Sweden.
In 1672 he published his major work,
Eight Books
on the Law of Nature and of Nations.
As the royal historiographer
in Stockholm,
Pufendorf wrote a 33-volume history of Sweden.
He
went to Berlin in 1688 and wrote a 19-volume history on the life
and reign of the elector of Brandenburg before he died in 1694.
Pufendorf based his legal theories of natural law
on the social
nature of human experience,
and he believed in human freedom and
equality.
Although humans are naturally sociable,
their unsocial
behaviors need to be regulated by law.
Humans often go beyond
the nature of other animals
in their greed, lusts, vanity, and
competitiveness.
From natural law reason indicates that humans
have
duties to God, to oneself, and to others.
For mutual advantage
and to gain protection from others,
humans organize themselves
in communities.
Pufendorf believed that civil government is more
effective
in restraining abusive behavior than either God or conscience.
He defined the three causes of a just war
and differentiated defensive
and offensive wars as follows:
The causes of just war may be reduced to these three heads.
First, to defend ourselves and properties
against others that design to do us harm,
either by assaulting our persons,
or taking away or ruining our estates.
Secondly, to assert our rights when others,
who are justly obliged, refuse to pay them to us.
And lastly, to recover satisfaction
for damages we have injuriously sustained,
and to force the person that did the injury,
to give caution for his good behavior for the future.
And hence arises the division of just wars
into offensive and defensive.
The latter of which I take to be those sorts of wars,
in which men endeavor to defend and keep what is their own.
The former are, when men extort their rights
that are denied by force,
attempt to recover what has been unjustly taken from them,
and require caution for the future.10
In international law Pufendorf was concerned that nations had
begun to believe
they had a right to go to war without considering
the ethical issues;
so he argued that following natural law by
means of reason is preferable
to the precedences of past customs
and treaties.
Christian Wolff was born on January 24, 1679 in Breslau,
and
his father vowed to dedicate his son's life to study.
Christian
studied mathematics at the University of Jena
and received a master's
degree at Leipzig.
With a recommendation from the renowned philosopher
and
mathematician Leibniz, Wolff began teaching at Halle in 1707.
He became interested in philosophy and theology, and his lectures
on those
subjects were popular but aroused jealousy from Halle
theology professors.
Wolff aimed to apply the methods of science
to theology.
In 1711 he was elected into the Royal Society in
London, and he became
a member of the Berlin Society of Science
and the Academy of Science in Paris.
Wolff was a champion of academic
freedom and the unhampered search for truth;
but Pietist theologians
objected to his new philosophy examining the highest questions,
and they tried to confine him to teaching mathematics.
When Wolff became Pro-Rector in 1721, he gave a lecture that
emphasized the importance of Confucius and his idea that
one may
attain happiness without revelation.
Two years later military
officers persuaded King Friedrich Wilhelm I
to dismiss Wolff for
teaching doctrines opposed to religion.
Those reading Wolff's
writings might be punished with servitude.
Wolff went to Marburg
and got an increase in salary too.
He began writing in Latin instead
of German
so that he could influence all of Europe.
In 1736 a
society of the friends of truth struck medals stamped with the
heads of Leibniz and Wolff and followed Wolff's dictum that they
should
not hold anything as true or false unless they are convinced
by sufficient reason.
When Friedrich II became king in 1740, he
invited Wolff back to Halle
as professor of law and vice-chancellor
of the university.
Three years later Wolff was made chancellor,
and in 1745 he was proclaimed a baron of the empire.
He died of
arthritis in 1754.
Wolff is recognized for systematizing philosophy with scientific
logic.
After writing extensively on mathematics, logic, ontology,
cosmology,
physics, psychology, and theology, he turned to ethics
and natural law.
His work on natural law (Jus Naturae Methodo
Scientifica Pertractatum)
in eight volumes was written between
1740 and 1748.
A ninth volume on international law was completed
in 1749 and was given
the long title: The Law of Nations Treated
According to a Scientific Method:
In which the Natural Law of
Nations is carefully distinguished from that
which is voluntary,
stipulative, and customary.
This was followed in 1750 by Wolff's Institutiones Juris Naturae et Gentium.
In The Law of Nations Wolff defined his terms
and
explained his general principles in the Prolegomena.
He followed
Grotius in defining the necessary law of nations
as what binds
nations in conscience, and as
part of natural law he considered
it immutable.
Humans are naturally social and are bound
to preserve
society for the common good.
All the nations together make up
the supreme state, which
should have its own right to promulgate
laws for the good of all.
Individual states are bound to the whole
because
they wish to promote the common good;
they have the right
to coerce individual nations that are
unwilling or negligent in
performing their obligations.
Wolff wrote that all nations are
equal because they are like free persons,
who are also equal before
the law.
Thus all nations have the same rights and obligations.
Since the supreme state is made up of many individual nations,
its government is naturally democratic;
its sovereignty rests
with humanity as a whole.
What seems best to the majority must
be considered the will of all humanity.
Since they are not all
able to meet,
leadership may be provided naturally by right reason.
Following Grotius, Wolff defined the voluntary
law of nations
as equivalent to civil law.
Agreements between nations create
what is called stipulative law,
which is not universal but particular.
The customary law of nations is also particular
and is based on
the tacit consent of nations.
These three kinds of law - voluntary,
stipulative, and customary -
deriving from the will of nations,
Wolff called the positive law of nations,
and he distinguished
it from the natural or
necessary law of nations that is immutable.
Next Wolff described in detail the duties and rights
of nations
to themselves and to each other.
Contrary to Vitoria and Suarez,
Wolff argued that
the ruler of a territory can prohibit missionaries
from entering.
Wolff also analyzed treaties and other agreements
of nations
as to their obligations in various circumstances.
In
his chapter on the methods of settling controversies of nations
Wolff acknowledged that retaliation may be customary;
but he argued
that it is unjust by natural law, and
therefore the right of retaliation
is unjust customary law.
When a nation suffers an irreparable
injury, it should try to find out
if an agreement can be made
concerning payment.
Wolff differentiated reasons that justify
a war from
"persuasive reasons" derived from utility
or advantage,
both of which he considered made the war unjust.
In the conduct of war Wolff held that it is not allowable to kill
or enslave
those captured unless they have committed specific
crimes liable to punishment.
He recognized the right of nations
to contract treaties of neutrality.
In the chapter on peace and treaties Wolff emphasized that
it is the obligation of rulers "to strive in every way to
preserve peace"
for the sake of their subjects.
If nations
fear a disturber of the public peace, they should make
treaties
of war at the proper time and may ally themselves
with the one who is being harassed by the disturber's attacks.
He also discussed
how peace treaties could be made to end war.
Emerich de Vattel was born on April 25, 1714
at Couvet in Neuchatel,
Switzerland.
His father was a clergyman of the Reformed Church
but died in 1730.
Then Emer excelled at the University of Bale
until he went to Geneva in 1733.
He liked literature and philosophy,
and in 1741
Vattel published a Defense of the Leibnizean System.
He went to Dresden, and in 1747 he received a pension in Saxony.
In 1758 during the Seven Years' War he published his Law of
Nations
and was appointed a privy councilor by King Augustus
III of Saxony.
His last work in 1762 was on the natural law philosophy
of Wolff.
Vattel's health declined, and he died of edema in 1767.
Vattel was much influenced by Leibniz and Wolff,
and he wanted
to bring the benefits of philosophy to politics.
Believing that
the Latin of Wolff's 1749 Law of Nations was obscure,
he
began translating it into French but added his own ideas.
The
work became his influential Le Droit des Gens,
the complete
title being translated as The Law of Nations
or the Principles
of International Law Applied to the Conduct
and to the Affairs
of Nations and of Sovereigns.
In his preface Vattel reviewed
concepts of the law of nations
from the Roman law of Justinian
and the definitions of Grotius.
In order to increase human happiness
Vattel aimed to promote political liberty,
mutual aid among nations,
and the diminution and mitigation of wars.
He wrote,
The end or aim of civil society is to procure for its citizens
the necessities, the comforts, and the pleasures of life,
and in general their happiness;
to secure to each the peaceful enjoyment of his property
and a sure means of obtaining justice;
and finally to defend the whole body against all external violence.11
Vattel argued that a state is not and cannot be the patrimony
of a despotic prince,
because the sovereignty of the people is
inalienable.
A nation has the right to change its constitution,
and those who dissent are free to leave the country.
A nation
is a political body or society of people,
"who have united
together and combined their forces
in order to procure their mutual
welfare and security."12
Like Wolff, Vattel asserted the
equality and sovereign independence of states.
Just as individuals
aim to perfect themselves,
nations are obligated to mutual assistance
in perfecting themselves.
For Vattel self-preservation is the most basic obligation,
but helping to promote and protect the welfare of others comes
next.
The first book of his Law of Nations delineates the
obligations a nation has to itself,
and the second book discusses
its rights and duties in relation to other nations.
He wrote that
these latter duties include assisting a nation against a powerful
enemy
that threatens to oppress it, giving aid during a famine,
imparting laws,
not monopolizing trade, not taking possession
of vacant lands, engaging in commerce,
instituting consuls for
trade, rendering justice regardless of nationality, giving aid
when requested to carry out justice in its jurisdiction, opening
one's borders to foreigners
provided they observe the laws of
the country, not restraining them if they wish to leave,
not preventing
the right of inheritance, and even in civil war aiding those with
justice
on their side or protecting people from unjust tyranny.
Thus Vattel argued that each state owes to other states what it
owes itself.
Respecting the liberty of nations, Vattel argued against attempting
to benefit natives
against their will, and he specifically condemned
the Europeans for attacking the
American nations and subjecting
them to their avaricious rule in order to "civilize"
them,
a pretext he considered both unjust and ridiculous.
A nation
must request duties of humanity before receiving them.
Vattel
defined the rights of necessity and primitive community,
and he
distinguished perfect rights from imperfect rights.
Necessity
may make some actions right that would otherwise be unlawful,
when not doing so would mean one would not be fulfilling an indispensable
obligation.
He gave the example that a nation in desperate need
of food
can force a neighbor with an over-supply to furnish food
at a fair price.
Primitive community of ownership is the duty
to give assistance
that causes no harm or inconvenience, such
as allowing the use
of coastal waters, rivers, or roads for commerce.
Perfect rights compel the fulfillment of corresponding obligations
and can be enforced.
Imperfect rights request an optional obligation,
which may be declined.
If a perfect right is refused, it is an
injury; but an imperfect right is doubtful.
However, a doubtful
or imperfect right may be
made obligatory or perfect by means
of a treaty.
Vattel followed Wolff in separating the natural law of ethical
conscience,
which he called internal, from the positive or external
law,
which he classified as voluntary, conventional, and customary.
Voluntary law comes from presumed consent, conventional law
from
expressed consent, and customary law from tacit consent.
For Vattel
just as the conventional law of a treaty may transform
a doubtful
obligation into a perfect right so too customary law
may remove
doubt so that a sovereign need not submit his case to arbitration.
Vattel defined war as prosecuting our rights by force.
He believed
that if men were reasonable, they would settle their quarrels
by appealing to justice and equity for deciding judgment;
but
using force is a sad expedient that is used against those
who
despise justice and will not listen to reason.
A wise nation will
only use it as a last resort
after all other methods have failed.
He noted that humanity revolts against a ruler who goes to war
without necessity,
for an unjust war leads to innumerable crimes
and disasters.
Such a ruler is responsible before God and answerable
to humanity.
For war to be endured, a nation must want it, and
the cause must be just.
Nations that use arms for gain are unjust
plunderers and enemies of humanity.
Other nations then are justified
in uniting together to punish the offending nation.
So for Vattel a war is only justified if a right needs to be
protected,
and if there is no other method than by force of arms
to secure that right.
In a doubtful case he recommended that the
dispute be settled by compromise.
If one side refuses a fair compromise,
the other side may be justified in enforcing it.
However, he considered
it pernicious and absurd to think
that war should be used to decide
controversies, because
victory usually goes to the stronger and
more skillful,
not to those with justice on their side.
He also
believed that both sides in a war cannot be just.
Although Vattel
did not believe in the supreme state of Wolff and Vitoria,
he
did recommend that confederations can maintain a balance of power
and may preserve the liberties of nations.
Vattel emphasized the
independence of nations, but he has been criticized for
failing
to provide effective ways to keep the peace and assure justice.
He did suggest that nations could join together
to put down a
violator of international law.
Vattel argued that a declaration of war is necessary as the
last attempt
to settle the dispute without bloodshed.
The arguments
for the war being just should be presented.
A conditional declaration
threatens war if specific obligations are not met.
Vattel reminded
people at war not to forget the humanity of their enemies
and
never to abandon the charity that binds the human race.
During
war the nation must always consider the legality of the means
employed.
The Swiss Confederation had been following the maxim
of neutrality for two centuries,
and Vattel contributed to clarifying
these rights and legal principles.
Vattel was the first to suggest
that neutrality does not mean
equality of assistance to both sides
but rather giving no help to either side.
1. Apologetica Historia by Bartolomé de Las Casas
p. 127-129 quoted in
The Spanish Struggle for Justice in the
Conquest of America by Lewis Hanke,
p. 126.
2. Indian Freedom: The Cause of Bartolomé de Las Casas
ed. Francis Patrick Sullivan,
p. 354.
3. Ibid., p. 354.
4. De jure belli, 23 by Francisco de Vitoria, tr. José
Maria Gimeno.
5. Ibid., 35.
6. The New Cineas Preface by Emeric Crucé, tr. C.
Frederick Farrell, Jr. and Edith R. Farrell.
7. Ibid.
8. On the Law of War and Peace Prolegomena 28 by Hugo Grotius,
tr. Francis W. Kelsey,
p. 20.
9. Ibid., Book 1, Chapter 1, §1, p. 33.
10. The Law of Nature and of Nations Book 8, Chapter 6,
§3 by Samuel Pufendorf,
tr. Basil Kennett, p. 834.
11. The Law of Nations, Book 1, Chapter 2, § 15 by
Emerich de Vattel,
tr. Charles G. Fenwick, p. 13.
12. Ibid., Introduction, § 1, p. 3.
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