De Vitoria’s principle of natural law and the rights of people also related to his scholarship on the theory of just war. The moral and religious justifications for war were fiercely debated at the time of the conquest of the New World. The central issue was how the teachings of Christ could be reconciled with political realities. Drawing from the works of Thomas Aquinas, who distinguished between just cause and just conduct of war, the School of Salamanca further developed this body of thought. De Vitoria did not accept religious arguments as justifications for war. War was not justified simply because people were unbelievers, or because they refused conversion. Belief could not be forced – it was an act of free will bestowed by God.
"Ownership and dominion are based either on natural law or human law; therefore they are not destroyed by want of faith."
Francisco de Vitoria
De Vitoria not only separated issues of justice and morality from religion, but also laid the foundation for future scholarship on international law and human rights. The doctrine that warring states have responsibilities, and that non-combatants have rights – enshrined in the Hague and Geneva conventions – can be traced back to his teachings. Today, de Vitoria’s doctrine is still quoted when discussing the rights of indigenous people in international law.
De Vitoria deplored the conquest of the Americas, rejecting the assumed superiority of the Christian conquistadors over the non-believing indigenous population.
FRANCISCO DE VITORIA
Francisco was born in the small Basque town of Vitoria. Prior to taking up his post at the university in Salamanca, de Vitoria spent 18 formative years in Paris, where he studied at the Sorbonne University and lectured in a Dominican college.
De Vitoria became a Dominican friar, a professor of theology at the University of Salamanca, and was elected prima chair of theology – the most senior position in the department – in 1526. He was the founding member of the School of Salamanca – an influential group of scholars that included Domingo de Soto, Martin de Azpilcueta, Tomas de Mercado, and Francisco Suárez – who strove to redefine man’s relationship with God within the Catholic tradition. De Vitoria studied the teachings of fellow Dominican and theologian Thomas Aquinas, whose work was a cornerstone of the School of Salamanca.
Key works
1532 Of Indians
1532 Of the Spanish War Against the Barbarians
1557 Theological Reflections
See also: Thomas Aquinas • Francisco Suárez • Hugo Grotius
IN CONTEXT
IDEOLOGY
Absolutism
FOCUS
Power of the sovereign
BEFORE
380 BCE In the Republic, Plato argues that the ideal state would be ruled by a philosopher king.
1532 CE Niccolò Machiavelli’s The Prince is published, providing practical advice to sovereigns.
AFTER
1648 The Peace of Westphalia creates the modern system of European nation-states.
1651 In Leviathan, Thomas Hobbes argues that rule by an absolute sovereign nonetheless involves a social contract with the people.
1922 Carl Schmitt insists that a sovereign ruler has the right to suspend law in exceptional circumstances, such as war.
The idea that states should be sovereign within their own territory owes much to the writing of French jurist Jean Bodin. After living through the French Wars of Religion (1562–98), a period of civil war fought primarily between Catholics and Huguenot Protestants, Bodin saw the dangers of the complex, overlapping power structures of his time. The Church, the nobility, and the monarch all competed for the allegiance of their subjects, and this struggle often resulted in civil war and disorder. The German theologian Martin Luther – and later thinkers such as English philosopher John Locke and American Founding Father Thomas Jefferson – argued for a separation of Church and state to avoid such conflict. To Bodin, however, a strong central sovereignty was the key to ensuring peace and prosperity.
In his treatise Six Books of the Republic, Bodin argued that sovereignty had to be absolute and perpetual to be effective. Absolute sovereignty would create a stronger central authority over its territory. To avoid conflict, the sovereign should not be bound by laws, obligations, or conditions, either from outside factions or from his own subjects. Bodin’s insistence on the need for absolute sovereignty formed an intellectual pillar supporting the rise of absolute monarchy in Europe. He also argued that sovereignty needed to be perpetual. Power could neither be granted to the sovereign by others nor be limited in time, as this would contradict the principle of absolutism. Bodin used the Latin term res publica (“république” in French, or “commonwealth” in English) for matters of public law, and believed that any political society must have a sovereign who is free to make and break the law for the commonwealth to prosper.
The divine right of kings
For Bodin, the source of legitimacy for the sovereign was rooted in natural law and the divine right of kings – society’s moral code and a monarch’s right to rule both came directly from God. In this, Bodin was opposed to the concept that a sovereign’s legitimacy arises from a social contract between ruler and subjects, an idea later developed by Enlightenment thinkers such as French philosopher Jean-Jacques Rousseau. Although Bodin disliked democracy as a form of popular government, he did not agree with the Machiavellian position that a sovereign could act and rule unconditionally. Rulers needed to have absolute power, but they in turn were accountable to God and natural law.
"The sovereign Prince is accountable only to God."
Jean Bodin
The Peace of Westphalia, a series of treaties agreed between European powers in 1648, was based on Bodin’s views on the primacy of sovereignty in each territory, and moved Europe from its medieval political system of a local hierarchy to the modern state system. The Westphalian system has been the organizing framework for international relations ever since, based on the principles of sovereign territories’ political self-determination, mutual recognition, and non-interference in the domestic affairs of other states.
In the French Wars of Religion, Catholic forces saw the pope as the ultimate power, while Protestants backed the authority of the king.
JEAN BODIN
The son of a wealthy tailor, Jean Bodin was born near Angers in northwest France in 1529. He joined the Carmelite religious order when still very young, and travelled to Paris in 1545 to study under the philosopher Guillaume Prévost. He then studied law in Toulouse, returning to Paris in 1560, where he was made a counsel to the king, and later became the king’s prosecutor.
Bodin wrote on a wide range of subjects, including history, economics, natural history, law, witchcraft, and religion. His works were influential in his lifetime and long after his death, but his religious views were far from orthodox and much debated. Although Bodin was a Catholic, he questioned the authority of the pope and, in later years, attempted to start a constructive dialogue with other faiths.
Key work
1576 Six Books of the Republic
See also: Plato • Thomas Aquinas • Niccolò Machiavelli • Thomas Hobbes • John Locke • Carl Schmitt
IN CONTEXT
IDEOLOGY
Philosophy of law
FOCUS
Natural and human law
BEFORE
1274 Thomas Aquinas distinguishes between natural law and human law in his Summa Theologia.
1517 The Protestant Reformation questions the doctrines of the Catholic Church, and is used to justify the divine right of kings.
AFTER
1613 King James I of England bans Suárez’s treatise against Anglicanism, since it criticizes the divine right of kings.
1625 Hugo Grotius writes the first systematic treatise on international law.
1787 The Constitution of the United States refers to natural law as the basis for positive law.
In 16th-century Europe, events such as the Protestant Reformation, the discovery of the Americas, and the r
ise of humanism made the question of whether laws were derived from nature, God, or fellow human beings particularly topical. Thomas Aquinas had linked natural law with divine law, saying that human laws should be judged by their conformity to natural law, which in turn should be understood in the context of divine law. Natural law refers to universal rules of morality that can be derived by analysing nature – including humans, as part of nature – whereas human law (also called positive law) refers to the man-made laws of a particular society.
Breaking human laws
Spanish philosopher Francisco Suárez continued in Aquinas’s tradition, arguing that natural law is the foundation of human law. He described how human laws could be unjust, and placed a greater emphasis on individual liberty and freedom. Man-made laws could, in the view of Suárez, be broken in certain cases. For example, power and authority can be conferred on a ruler by the people, but can also be taken away from the ruler if their laws are unjust. No man-made laws should override people’s natural rights to life and liberty. And since the origin of the state’s authority and power is human, it should be secondary to sacred authority.
"There is no doubt that God is the sufficient cause and, as it were, the teacher of the natural law. But it does not follow from this that He is the lawgiver."
Francisco Suárez
The University of Salamanca was home to the School of Salamanca, a group of theologians that included Suárez, who sought to square the ideas of Aquinas with a changing world.
A divine right?
Suárez’s ideas were controversial, as monarchs across northern Europe claimed divine and absolute authority – the so-called “divine right” of kings. Suárez’s conclusions challenged the notion that the ruler was accountable only to God, and not to the Church or to his or her subjects. By distinguishing between different sources of laws – natural, divine, and human – Suárez rejected the mixing of the secular and the sacred, and separated the realms of power. He also introduced the notion of the social contract, proposing that the ruler governs by the consent of the people, who can also legitimately withdraw their consent if the ruler does not respect the demands of natural law.
International law
Suárez made a distinction between international law and natural law, seeing the former as primarily based on custom and positive law rather than universal rules. Today, the distinction between natural law and positive law remains, both in national jurisdictions and international law. English common law has been greatly influenced by natural law theories, while the US Declaration of Independence and its Constitution refer to natural law.
FRANCISCO SUÁREZ
Suárez was born in the south of Spain and became a Jesuit student in Salamanca at the age of 16. As a theologian and philosopher, he wrote in the same scholastic tradition as Thomas Aquinas, and had considerable influence on the development of international law and the theory of just war. His most influential work was his 1597 Metaphysical Disputations, but he was a productive scholar who wrote many other significant treatises on the relationship between natural law, the state and Church, and theology. Suárez was a dedicated Jesuit – hardworking, disciplined, humble, and pious. He was regarded by contemporaries as one of the greatest living philosophers. Pope Paul V called him Doctor Eximius et Pius, an honorary title, and Pope Gregory XIII is said to have attended his first lecture in Rome.
Key works
1597 Metaphysical Disputations
1612 On Laws
1613 Defence of the Catholic and Apostolic Faith against the Errors of Anglicanism
See also: Thomas Aquinas • Francisco de Vitoria • Hugo Grotius • John Locke
IN CONTEXT
IDEOLOGY
Federalism
FOCUS
Consociation
BEFORE
c.350 BCE Aristotle argues that humans are naturally sociable beings.
1576 Jean Bodin advocates state sovereignty across Europe, centralizing power and authority in the monarch.
AFTER
1762 Jean-Jacques Rousseau claims that the central idea of the social contract must be that sovereignty belongs to the people.
1787 The last four articles of the Constitution of the United States of America express the principles of its federalist system of government.
1789 The French Revolution overthrows the king and claims sovereignty for the people.
Political thinkers have long pondered the balance of power between government, communities, and individuals. In the 16th and 17th centuries the prevailing idea was of a centralized state with power vested in a sovereign. However, the radical views of Calvinist political philosopher Johannes Althusius on the role of the state, sovereignty, and politics paved the way for the modern concept of federalism.
Althusius redefined politics from an activity relating only to the state, to one that permeates many aspects of social life and unfolds in political associations well below the level of the state. In the first chapter of his major work, Politica, he introduces the idea of “consociation”, which has formed the basis of federalist thinking ever since.
Althusius claimed that human communities – from private ones, such as families and guilds, to public ones, such as cities – are autonomous entities that came into being through a form of social contract. Like Aristotle, Althusius believed that people are sociable, and in order to live peaceably together, they are happy to share goods and services and respect one another’s rights. Each consociation of individuals begins when someone recognizes a shared need, service, or set of values, and is willing to contribute to the welfare of a group.
Bottom-up, not top-down
Absolute sovereignty, as advocated by Bodin and Hobbes, was seen by Althusius as illogical and repressive. He believed power and authority should move upwards via consociations, not down from a sovereign. While consociations are independently subordinate to the state, collectively, they are superior to the state. The government sits at the top of a hierarchy of consociations, and its task is to administer the commonwealth made up of the various interacting groups. It, too, is a part of the social contract, recognizing and sharing the aims, values, goods, and services of its people and coordinating their communications.
In Althusius’s theory, sovereignty belongs to the people, not the monarch. The elected representatives of the government do not represent individuals or a single common will, but a plurality of wills – of all the communities that exist within the one larger community of the nation.
"This mutual communication, or common enterprise, involves things, services, and common rights."
Johannes Althusius
Althusius’s focus on symbiotic associations distinguishes his idea of federalism from the federal governments that we know today, such as that recognized in the US Constitution. Modern federalism is based on individualism, not social groups. However, both concepts see the state as a political association, not a single entity independent of its constituent units.
The communal aspects of village life, such as dances, are an example of Althusius’s idea of a consociation: individuals forming a group based on shared needs, services, or values.
JOHANNES ALTHUSIUS
Althusius was born in 1557 in Diedenshausen in Westphalia, a Calvinist area of Germany. Under the patronage of a local count he studied law, philosophy, and theology in Cologne from 1581. After a series of academic appointments, in 1602 he became president of the College of Herborn. In 1604, a year after the publication of Politica, his most important work, he was elected a municipal trustee of the city of Emden.
Althusius later became a council member and city elder, acting as a diplomat and lawyer for the city until his death in 1638. Although Politica was widely popular in Althusius’s time, his work was overlooked for the next two centuries since it contradicted the prevailing principle of absolute sovereignty. In the 19th century, Otto von Gierke revived interest in Althusius’s ideas, and today he is considered the forefather of federalism.
Key works<
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1603 Politics: A Digest of its Methods (also known as Politica)
1617 Dicaelogicae
See also: Aristotle • Jean Bodin • Thomas Hobbes • Jean-Jacques Rousseau • Thomas Jefferson • Michel Foucault
IN CONTEXT
IDEOLOGY
Natural law
FOCUS
Individual rights
BEFORE
1517 The protection of liberty is seen as the fundamental political task of a republic by Niccolò Machiavelli in his Discourses.
1532 Francisco de Vitoria lectures on the rights of peoples at the University of Salamanca.
AFTER
1789 The French Revolution – with its demands for liberty, equality, and fraternity – transforms France and the rest of Europe.
1958 Political theorist Isaiah Berlin lectures on the Two Concepts of Liberty: negative liberty (non-interference and the opportunity to be free) and positive liberty (the ability to be one’s own master).
The notions of individual liberty and individual rights came to the fore relatively late in human history. During the medieval era, rights were collective and judged in relation to natural or divine law. Individuals did not possess rights: rights flowed from nature or God. Liberty was rarely discussed in relation to individuals; rather, individuals had a duty to carry out God’s plan. In the 16th century, at the University of Salamanca, first Francisco de Vitoria and later Francisco Suárez had begun to theorize on the natural rights of individuals. However, it was Hugo Grotius who decisively changed medieval thinking, by clearly asserting that liberty and rights were in the possession of individuals. Grotius redefined natural law, and laid out a new conception of rights and liberty. The idea of divine influence on natural law was discarded. Instead, the study of human nature was seen as sufficient to inform law- and policy-makers. Put simply, human behaviour produces the natural law. People have certain natural rights that are intrinsic to them, and which are not bestowed by God or the sovereign. Rather, liberty is a natural right.
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