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Published online by Cambridge University Press: 01 January 2024
Under the heading ‘Vitoria, Founder of International Law’ Blackfriars of October 1946 devoted a whole issue to the Spanish Dominican who had died 400 years earlier. The timing could not have been more appropriate: what one might call the ‘legal audit’ of the Second World War was in full swing. Uppermost in the minds of the contributors were the Nuremberg Trials (verdicts delivered that month). Article 6 of the Tribunal Charter defined crimes against ‘humanity’ (the contemporary, secularized version of natural law) in terms that would have been recognizable to Vitoria, and indeed—via 400 years of development—owed much to his original concept of the law of nations. Then there were the atomic bombs used the previous year. The end of the world war had left a legacy of guilt about the practice of destroying whole cities by strategic bombing, culminating at Hiroshima and Nagasaki. This put the principle of non-combatant immunity—fully integrated with just war theory for the first time by Vitoria—at the centre of the arguments for and against the new weapons. Further, the revival of international law in the first half of the twentieth century had issued the previous October in the United Nations Charter and would lead in 1948 (just 50 years ago last month) to the signing of the Declaration of Human Rights and the Genocide Convention; and three years later, in 1949, there was to be the first of the Geneva Conventions on the limitation of warfare.
1 ‘Crimes against Humanity: namely murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.’ See Adam Roberts and Richard Guelff, Documents on the Laws of War (Oxford: Oxford University Press, 1982), p. 155. The point is that in the natural law tradition, to which both Vitoria and the Nuremberg Tribunal belong (despite the 400 years and a change of vocabulary), it is individuals–not only States–whose rights are to be protected in law, and individuals who must be held responsible when these are violated.
2 International law has several such ‘founding fathers’ who took it new directions, most notably the Spanish Jesuit, Francisco Suarez (1548–1617), and the Dutch Calvinist, Hugo Grotius (1583–1645), both of whom acknowledged a debt to Vitoria.
3 A lot more attention has been paid to Vitoria and other great figures of the Salamanca school in other European countries, Spain in particular, and of course in Latin America, with critical editions of his works, institutes of human rights named after him, international congresses on his thought, etc. It is a pity that, apart from the excellent translations of Pagden and Lawrence (see below), not much of this activity is finding its way into English.
4 Vitoria himself was well aware of the difficulties: ‘The office and calling of a theologian is so wide, that no argument or controversy on any subject can be considered foreign to his profession. perhaps this is the reason why there are now, to put it no more strongly, so few really good and solid theologians.’(On the Civil Power, Prologue, Anthony Pagden and Jeremy Lawrance, Francisco Vitoria Political Writings (Cambridge: Cambridge University Press, 1991), p. 3.)
5 In this broad and mighty field of universal theology, whose acres are infinite, I have chosen for myself a single little corner…. My subject is the commonwealth (res publico)' (Ibid.).
6 On Civil Power 3.4, Pagden and Lawrance, p. 40.
7 Letter to Miguel de Arcos OP. Salamanca, 8 Nov. 1534, in Pagden and Lawrance, pp. 331–2.
8 I and II On the Power of the Church (1532 and 1533), texts in Pagden and Lawrance.
9 On the American Indians, Introduction, Pagden and Lawrance, pp. 237–8.
10 Ibid., 1.6, p. 251.
11 Ibid., 2.4, p. 271.
12 Ibid., 3.1, p. 282.
13 See, for example, Johnson, James Turner, Ideology, Reason and the Limitation of War, and Just War Tradition and the Restraint of War (Princeton, NJ: Princeton University Press, 1975 and 1981)Google Scholar.
14 Just War Tradition, p. 96.
15 On the Law of War 1.3.4, Pagden and Lawrance, p. 303.
16 He does not have the space for a proper examination of biblical texts, but simply opposes the Joshua texts with one from Exodus 23.7: ‘the innocent and righteous slay thou not’. This may look like a piece of prooftexting, but in its context it simply demonstrates that the case for holy war is thrown into doubt by its own single resource, the Old Testament, whereas the more theological argument of Vitoria, which opposes holy war, does not need to put all its eggs in one basket.
17 On the Law of War 3.1, Pagden and Lawrance, p. 314.
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