Political Theology, Ius Gentium, and Just War in Spanish Scholasticism

2020 ◽  
pp. 17-44
Author(s):  
Pablo Kalmanovitz
Keyword(s):  
Early Modern ◽  
Political Theology ◽  
Just War ◽  
Law Of Nations ◽  
The Law ◽  
Ius Gentium

Chapter 1 focuses on the early modern theologians and jurists of Spanish scholasticism. It begins by discussing the theological and metaphysical premises on which they built their doctrine of just war, and then turns to examine how they used the vocabulary of the Roman ius gentium in their construction. The chapter underscores the theologians’ self-understanding as providers of guidance for priests administering the sacrament of confession. The law of nations was central to their solution to the questions of whether and how war could be fought without sinning. Rulers who waged war to enforce their rights were free of sin, as were also soldiers who followed the command of legitimate rulers. While this solution worked for confession, it created a juridical problem the scholastics recognized but did not solve: rulers are judge and party in disputes that lead to war.

The School of Salamanca

2011 ◽  
Author(s):  
Anthony Pagden
Keyword(s):  
Early Modern ◽  
International Law ◽  
Modern World ◽  
Law Of Nature ◽  
Hugo Grotius ◽  
Law Of Nations ◽  
School Of Salamanca ◽  
The Law ◽  
Ius Gentium ◽  
Francisco De Vitoria

The members of the so-called School of Salamanca (or “Second Scholastic,” as it is sometimes called) were, for the most part, the pupils, and the pupils of the pupils—from Domingo de Soto and Melchor Cano to the great Jesuit metaphysicians Luís de Molina and Francisco Suárez—of Francisco de Vitoria, who held the Prime Chair of Theology at Salamanca between 1526 and his death in 1546. Although they are often described vaguely as “theologians and jurists,” they were all, in fact, theologians. In the early modern world, theology, the “mother of sciences,” was considered to be above all other modes of inquiry, and covered everything that belongs to what today is called jurisprudence, as well as most of moral and political philosophy, and what would later become the human sciences. This article focuses on the Salamanca theologians' discussion of the law of nature—the ius naturae—and of the law of nations (ius gentium), for which reason Vitoria has often been referred to (along with Hugo Grotius) as the “father of international law.”

Sources in the Modern Tradition

2018 ◽  
Author(s):  
Randall Lesaffer
Keyword(s):  
Early Modern ◽  
International Law ◽  
Roman Law ◽  
Grand Narrative ◽  
Historical Source ◽  
Law Of Nature ◽  
Modern Age ◽  
Law Of Nations ◽  
State Practice ◽  
The Law

This chapter considers how the modern historiography of international law has ascribed pride of place to the jurisprudence of the law of nature and nations of the Early Modern Age. Whereas the writers from this period have had a significant influence on nineteenth-century international law, their utility as a historical source has been far overrated. The development of the law of nations in that period was much more informed by State practice than historians have commonly credited. Moreover, historiography has overestimated the novelty of the contribution of Early Modern jurisprudence and has almost cast its major historical source of inspiration into oblivion: the late medieval jurisprudence of canon and Roman law. It is thus important to restore medieval jurisprudence to its rightful place in the grand narrative of the evolution of international law.

“Communis Hostis Omnium”: The Smerwick Massacre (1580) and the Law of Nations

2019 ◽  
Vol 58 (3) ◽  
pp. 473-493 ◽  
Author(s):  
D. Alan Orr
Keyword(s):  
Sixteenth Century ◽  
Early Modern ◽  
Present State ◽  
Elizabeth I ◽  
Queen Elizabeth I ◽  
Law Of Nations ◽  
Common Enemy ◽  
The Law ◽  
The Relationship

AbstractThis article examines the brutal massacre of up to six hundred Spanish and Italian papal troops on the order of the English Lord Deputy Arthur Grey, 14th Baron de Wilton (1536–1593), at Dún An Óir (Forto del Oro), Smerwick, County Kerry, on 10 November 1580. The article investigates the relationship between the religious and juridical rationales for the massacre, shedding new light on the broader relationship between the early modern law of nations, Protestantism, and what Brendan Bradshaw has characterized as “catastrophic violence” in the Elizabethan military conquest of Ireland. While Vincent Carey has emphasized the virulently anti-Catholic character of Grey's rationales for the massacre, my argument instead emphasizes the role of the received laws of nations and of war in justifying Grey's actions both to Queen Elizabeth I (1533–1603) and to the English public, from the period immediately following the massacre until the writing of Edmund Spenser's pro-Grey apologetic, A View of the Present State of Ireland (ca. 1596). On this view, the papal troops at Smerwick were considered brigands, pirates, or, in Marcus Tullius Cicero's words, “communis hostis omnium”—a common enemy to all—and enjoyed no standing as lawful enemies under the law of nations. In the sixteenth century, the established law of nations was hardly a seamless web but manifested significant cleavages and fissures allowing for the construction of localized spheres of legal exception in which the ordinary rules of warfare did not apply, thus providing a convenient juridical rationale for atrocity.

Ciceronian Ius Gentium and World Legislation

2011 ◽  
Vol 8 (1) ◽  
pp. 225-239
Author(s):  
Gary Remer
Keyword(s):  
Ideal Theory ◽  
United Nations Security Council ◽  
Legal Norms ◽  
Global Institutions ◽  
Middle Range ◽  
Law Of Nations ◽  
The Law ◽  
Ius Gentium ◽  
Global Law ◽  
Domestic Law

AbstractOnly recently have world global institutions, like the United Nations Security Council, assumed the role of world legislator. The past few decades, however, have witnessed the appearance of grand normative theories of global law, the most significant recent example being John Rawls's The Law of Peoples (1999), in which Rawls applies many of the same (or similar) abstract, universalizable concepts that are found in his earlier works on political theory to global law and presents an "ideal theory" for a "Society of Peoples". Although I do not oppose full-blown theorizing about international lawmaking, I contend that a middle-range approach is a useful complement to a broad-range approach because of the incipient character of global law, and I further argue that Cicero's ius gentium, the law of nations, provides the basis for such a mid-range approach. Since ius gentium is connected to domestic law and values, it can accommodate the practical necessities of today's world legislation, i.e., necessities resulting from the absence of extensive, long-standing global legal norms and of international institutions to enforce world legislation. Ciceronian ius gentium, however, is not confined to domestic law. The link between Cicero's "law of nations" and his "natural law" points to the possibilities of a more progressive legal future, not yet realized.

Early “Italian” Scholars of Ius Gentium

2020 ◽  
pp. 19-47
Author(s):  
Claudia Storti
Keyword(s):  
Roman Empire ◽  
Middle Ages ◽  
Legal Order ◽  
Roman Law ◽  
Legal Tradition ◽  
Shared Set ◽  
Law Of Nations ◽  
International Legal Order ◽  
The Law ◽  
Ius Gentium

Between the twelfth and fifteenth centuries several issues led jurists to rethink the international legal order established in the Roman Empire and the Early Middle Ages. The first was the need to update the list of the law of nations legitimate subjects after the birth of the commune that had not been accounted for in Roman-law sources. The second was to recreate a superior and universally shared set of ‘public’ law rules for international relations to counteract the tendency of communal and monarchical governments to consider the law inter gentes as a form of internal law. In order to address this issue Bartolus of Sassoferrato adapted the Roman category of ius gentium to the features of the medieval geopolitical context. Other topics focused on defining the enemy, freedom of peoples, and treaties among unequal subjects, while the theory of ius gentium of Alberico Gentili was fully rooted in the medieval and early modern legal tradition.

1. Introduction

2019 ◽  
pp. 3-17
Author(s):  
James Crawford
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
International Organizations ◽  
Use Of Force ◽  
Late Medieval ◽  
Public International Law ◽  
Law Of Nations ◽  
The Law ◽  
Ius Gentium

This introductory chapter discusses the development of the international law. It begins by tracing the development of the law of nations, now known as (public) international law, which grew out of the tradition of the late medieval ius gentium. Over the course of the twentieth century, international law underwent a profound process of expansion. Developments included, inter alia, the creation of international organizations of universal membership with treaty-making powers, a detailed elaboration of the law of the sea, the establishment of permanent bodies for the settlement of international disputes, the prohibition on the use of force by states, and the emergence of various sub-disciplines or specialist areas of work and study.

Hugo Grotius on Solemn War and the Difference Sovereignty Makes

2020 ◽  
pp. 45-68
Author(s):  
Pablo Kalmanovitz
Keyword(s):  
Just War ◽  
Corrective Justice ◽  
Just Cause ◽  
Hugo Grotius ◽  
Law Of Nations ◽  
The Law ◽  
The Difference ◽  
Effects Of War

Chapter 2 turns to the work of Hugo Grotius, specifically to his account of solemn war in De iure belli ac pacis. The chapter examines why Grotius introduced the solemn war concept alongside his version of the scholastic concept of just war. While just wars are constrained by principles of just cause and corrective justice, solemn wars are eminently permissive affairs, really a sovereign prerogative to use force against all enemy subjects. The chapter discusses why Grotius thought solemn wars should be the exclusive privilege of sovereigns and why they could be so permissive. It argues that for him the rules of solemn war governed the foreseeable effects of war, and their value rested in their power to minimize the lethality, extension, and duration of war. If justice mandates that rulers wage only just wars, prudence dictates that only the rules of solemn war be included in the law of nations.

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