School of Salamanca: Encyclopedia II - School of Salamanca - Law and justice

School of Salamanca - Law and justice

The juridical doctrine of the School of Salamanca represented the end of medieval concepts of law, with a revindication of liberty not habitual in Europe of that time. The natural rights of man came to be, in one form or another, the center of attention, including rights as a corporeal being (right to life, economic rights such as the right to own property) and spiritual rights (the right to freedom of thought and to human dignity).

School of Salamanca - Natural law and human rights

The School of Salamanca reformulated the concept of natural law: law originating in nature itself, with all that exists in the natural order sharing in this law. The obvious conclusion is that, given that all humans share the same nature, they also share the same rights, such as equality or liberty. Counter to the view then predominant in Spain and Europe that viewed the people indigenous to the Americas as children or as incapable, the recognition of their rights — such as a right to reject forcible religious conversion or the right to their own land — constituted a novelty in European thought.

Given that we all live not isolated but in society, natural law is not limited to the individual. Thus, for example, justice is an example of natural law realized in society. For Gabriel Vázquez (1549–1604) natural law dictates an obligation to act in accord with justice.

School of Salamanca - Sovereignty

The School of Salamanca distinguished two realms of power, the natural or civil realm and the realm of the supernatural, which were not differentiated in the Middle Ages. One direct consequence of the separation of realms of power is that the king or emperor does not legitimately have jurisdiction over souls, nor does the Pope have legitimate temporal power. This included the proposal that there are limits on the legitimate powers of government. Thus, according to Luis de Molina a nation is analogous to a mercantile society (the antecedent of a modern corporation) in that those who govern are holders of power (effectively sovereigns) but a collective power, to which they are subject, derives from them jointly. Nonetheless, in de Molina's view, the power of society over the individual is greater than that of a mercantile society over its members, because the power of the government of a nation emanates from God's divine power (as against merely from the power of individuals sovereign over themselves in their business dealings).

At this time, the monarchy of England was extending the theory of the divine right of kings — under which the monarch is the unique legitimate recipient of the emanation of God's power — asserting that subjects must follow the monarch's orders, in order not to contravene said design. Counter to this, several adherents of the School sustained that the people are the vehicle of divine sovereignty, which they, in turn, pass to a prince under various conditions. Possibly the one who went furthest in this direction was Francisco Suárez, whose work Defensio Fidei Catholicae adversus Anglicanae sectae errores (The Defense of the Catholic Faith against the errors of the Anglican sect 1613) was the strongest defense in this period of popular sovereignty. Men are born free by their nature and not as slaves of another man, and can disobey even to the point of deposing an unjust government. As with de Molina, he affirms that political power does not reside in any one concrete person, but he differs subtly in that he considers that the recipient of that power is the people as a whole, not a collection of sovereign individuals.

For Suárez, the political power of society is contractual in origin because the community forms by consensus of free wills (see social contract). The consequence of this contractualist theory is that the natural form of government is democracy, while oligarchy or monarchy arise as secondary institutions, whose claim to justice is based on being forms chosen (or at least consented to) by the people.

School of Salamanca - The law of peoples and international law

Francisco de Vitoria was perhaps the first to develop a theory of ius gentium (the rights of peoples), and thus is an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to society at the international level, concluding that this scope as well ought to be ruled by just forms respectable of the rights of all. The common good of the world is of a category superior to the good of each state. This meant that relations between states ought to pass from being justified by force to being justified by law and justice. Francisco de Vitoria essentially invented international law.

Francisco Suárez subdivided the concept of ius gentium. Working with already well-formed categories, he distinguished between ius inter gentes and ius intra gentes. Ius inter gentes corresponded to modern international law, and was something common to the majority of countries (although being positive law, not natural law, it was not necessarily universal); ius intra gentes or civil law is specific to each nation.

School of Salamanca - Just war

Given that war is one of the worst evils suffered by mankind, the adherents of the School reasoned that it ought to be resorted to only when it was necessary in order to prevent an even greater evil. A diplomatic agreement is preferable, even for the more powerful party, before a war is started. Examples of just war are:

• In self-defense, as long as there is a reasonable possibility of success. If failure is a foregone conclusion, then it is just a wasteful spilling of blood.

• Preventive war against a tyrant who is about to attack.

• War to punish a guilty enemy.

A war is not legitimate or illegitimate simply based on its original motivation: it must comply with a series of additional requirements:

• It is necessary that the response be commensurate to the evil; use of more violence than is strictly necessary would constitute an unjust war.

• Governing authorities declare war, but their decision is not sufficient cause to begin a war. If the people oppose a war, then it is illegitimate. The people have a right to depose a government that is waging, or is about to wage, an unjust war.

• Once war has begun, there remain moral limits to action. For example, one may not attack innocents or kill hostages.

• It is obligatory to take advantage of all options for dialogue and negotiations before undertaking a war; war is only legitimate as a last resort.

Under this doctrine, expansionist wars, wars of pillage, wars to convert infidels or pagans, and wars for glory are all inherently unjust.

School of Salamanca - The conquest of America

In this period, in which colonialism began, Spain was the only European nation in which a group of intellectuals questioned the legitimacy of conquest rather than simply trying to justify it by traditional means.

Francisco de Vitoria began his analysis of conquest by rejecting "illegitimate titles". He was the first to dare to question whether the bulls of Alexander VI known collectively as the Bulls of Donation were a valid title of dominion over the newly discovered territories. In this matter he did not accept the universal primacy of the emperor, the authority of the Pope (because the Pope, according to him, lacked temporal power), nor the claim of voluntary submission or conversion of the Native Americans. One could not consider them sinners or lacking in intelligence: they were free people by nature, with legitimate property rights. When the Spanish arrived in America they brought no legitimate title to occupy those lands and become their master.

Vitoria also analyzed whether there were legitimate claims of title over discovered lands. He elaborated up to eight legitimate titles of dominion. The first and perhaps most fundamental relates to communication between people, who jointly constitute a universal society. Ius peregrinandi et degendi is the right of every human being to travel and do commerce in all parts of the earth, independently of who governs or what is the religion of the territory. For him, if the "Indians" of the Americas would not permit free transit, the aggrieved parties had the right to defend themselves and to remain in land obtained in such a war of self-defense.

The second form of legitimate title over discovered lands also referred back to a human right whose obstruction is a cause for a just war. The Indians could voluntarily refuse conversion, but could not impede the right of the Spanish to preach, in which case the matter would be analogous to the first case. Nonetheless, Vitoria noted that although this can be grounds for a just war, it is not necessarily appropriate to make such a war, because of the resulting death and destruction.

The other cases are:

• If the pagan sovereigns force converts to return to idolatry.
• If there come to be a sufficient number of Christians in the newly discovered land that they wish to receive from the Pope a Christian government.
• In the case of overthrowing a tyranny or a government that is harming innocents (e.g. human sacrifice)
• If associates and friends have been attacked — as were the Ttlaxcaltecas, allied with the Spanish but subjected, like many other people, to the Aztecs — once again, this could justify a war, with the ensuing possibility of legitimate conquest as in the first case
• The final "legitimate title"m although qualified by Vitoria himself as doubtful, is the lack of just laws, magistrates, agricultural techniques, etc. In any case, title taken according to this principle must be exercised with Christian charity and for the advantage of the Indians.

This doctrine of "legitimate" and "illegitimate" titles was not agreeable to Emperor Charles V, then ruler of Spain, in that they meant that Spain had no special right; he tried without success to stop these theologians from expressing their opinions in these matters.

Adapted from the Wikipedia article "Law and justice", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki