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VITORIA AS A FOUNDATION FOR TRANSCENDENT HUMAN RIGHTS AND GLOBAL PEACE

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Copyright (c) 2004 Ave Maria School of Law

Ave Maria Law Review

Spring, 2004

2 Ave Maria L. Rev. 123

LENGTH: 11672 words

ARTICLE: THE ROOTS OF INTERNATIONAL LAWAND THE TEACHINGS OF FRANCISCO DE

VITORIA ASA FOUNDATIONFORTRANSCENDENTHUMANRIGHTS AND GLOBAL PEACE

NAME: Joseph M. de Torre+

BIO: + Professor Emeritus, University of Asia and the Pacific, Pasig City, Philippines. Portions of this article are

developed from Joseph M. de Torre, Generation and Degeneration: A Survey of Ideologies (Southeast Asia Science

Foundation 1995) and Joseph M. de Torre, Contemporary Philosophical Issues in Historical Perspective (University of

Asia and the Pacific 2001).

TEXT:

[*123]

Introduction

In announcing on July 17, 2003, the theme chosen for the next World Day of Peace (January 1, 2004), namely

"International Law: A Path for Peace," the Vatican Press Office stated that "humanity is facing a crucial challenge... . If

it does not succeed in giving itself truly effective institutions to eliminate the scourge of war, the risk exists that the law

of force will prevail over the force of law." n1 Echoing the teaching of Gaudium et Spes, n2 the Vatican statement

added that peace "is not simply the absence of war, nor can it be reduced only to make the balance of litigant forces

stable, nor is it the effect of a despotic domination, rather, it defines itself with all precision as a "work of justice.'" n3

[*124]

I. The Predicament of the Past

A spiral of wars throughout the centuries, activated by selfishness, greed, envy, pride, and economic fallacies, and duly

rationalized by nationalism, imperialism, racism, and other pseudo-religious degenerations, had finally crystallized in

the Marxist class struggle. That struggle itself was a confluence of Machiavellianism ("the end justifies the means"), n4

Hegelianism ("the soldier is the universal man"), n5 and Darwinism ("the survival of the strongest in the struggle for

life"). n6 The stage was thus set for the unprecedented bloodbaths, apocalyptic wars, and genocides of the twentieth

century, with the threat of the self-extermination of mankind. As the second millennium rolled over into the third, there

were approximately thirty-one wars raging worldwide. n7 This situation has provoked a pacifist backlash of "peace at

Page 1



all costs," "better red than dead," and all other neoteric aphorisms of the peace movement. n8

In order to restore the balance between these two vicious extremes, militarism and pacifism, the best approach is to

focus our [*125] metaphysical and empirical eye on the concept of peace. n9 From a phenomenological analysis,

history is always the "teacher of life," as recognized by the Romans. n10 It is the indispensable backdrop for the

understanding of any person or community, whose past shapes the present and preconditions the future. As Leibniz said,

"Everything in the universe is so connected that the present contains the future in its bosom." n11

History shows that at all times and in all nations there has been a continuous state of war. Peace seems to have been

the exception, and war the rule - a fact philosophers have utilized in their reasoning.

Hobbes described the natural state of society as "the war of all against all," n12 and a state of nature in which life is

"solitary, poore, nasty, brutish, and short." n13 He revived that famous formula of the Roman poet, Plautus: "homo

homini lupus" (man is a wolf to man). n14 The Chinese philosopher Han Fei Tz<cir u> had also declared that since man

is evil by nature, only brute force can restrain the masses. n15 Closer to our own time, the philosophies of Machiavelli

and Spinoza bolstered this gloomy view of man in an attempt to rationalize royal absolutism. n16 Similar to Locke's

reaction to Hobbes, n17 Rousseau rejected this view, affirming the natural goodness of man before he is corrupted by

society. n18

[*126] This interchange of ideas concerning humanity's intrinsic evil and good is a swinging pendulum, from

oppression to anarchy and back. Still, mankind suffered tyranny, torture, disease, poverty, and ignorance. War raged,

fomented, and was sought after by absolute rulers who were convinced that power comes from wealth, and wealth from

land. Such leaders were always looking for casus belli with adjacent nations, by land or sea, bringing a booty of land

and slaves with every new conquest. So this cycle continued, with more tyranny, torture, disease, poverty, and

ignorance. n19

A. The Rise and Effect of Religious Militarism

Concomitantly, the noble profession of defending one's country, the military profession, degenerated into militarism.

This was the result of the glorification of the warrior in ancient philosophies, and the terrifying escalation of war

technology that casts doubts on the validity of the principle of self-defense. It was this chronic state of affairs thatprovided the occasion for nations to turn to polytheism and idolatry in search of supernatural beings (the more the

better), who could assist them in their struggle against other nations. The manipulation of religion for selfish purposes

made it an accomplice of war rather than of peace.

The Bible religions, namely Judaism, Christianity, and Islam, have sustained the original monotheism of mankind

(as evidenced by modern anthropological research on primitive peoples). n20 Followers of these three religions, though,

also fell victim at times to a fanaticism that led them into war against each other, and even against members of their

own faith. Fanaticism (not to be confused tout court with fundamentalism or radicalism) does not distinguish between

the person and the idea, resulting in hatred and violence.

The notorious Thirty Years War of 1618-1648 was the climax of the "wars of religion," pitting Catholics,

Calvinists, Lutherans, and Orthodox against one another. Meanwhile, Anglicans and Calvinists were engaging in a civil

war in England. These wars were themselves [*127] preceded by Muslim conquests, the Spanish Reconquista, and the

Crusades. n21

The wars of religion, beginning with the Muslim Jihad, which Mohammed regarded as self-defense, were a

combination of religious fanaticism and political and economic greed under the dignified umbrella of nationalism and,

later, of racism. Thus, the religions themselves were not at fault for these wars. All true children of Abraham seek peace

as the supreme good on earth under God. Even the purpose of Jihad is to achieve total peace in submission to God. n22

Due to this, it is not a mistake to look to religion, to all religions, in search of that elusive universal peace and

Page 22 Ave Maria L. Rev. 123, *124



brotherhood, as the Pope has urged ever since that memorable speech on October 27, 1986, at Assisi. n23

The Edict of Nantes in 1598 and the Treaty of Westphalia in 1648 ushered in an age of religious "tolerance" by

ending the French Catholic-Calvinist conflict and the Thirty Years War, respectively. The religious groups were each to

be kept in its own territory (cuius regio eius religio), and in the meantime, pure "philosophers," not theologians, were to

engage in a dialogue in search of peace: the pax philosophica. This philosophical approach stemmed from a radical

skepticism regarding the failure of the aforementioned religions to attain peace, and their tendency towards a fanaticism

which led to war.

The partition of religions by territory was also a result of the Enlightenment, that rationalism, inaugurated by

Descartes, would discard religious faith as a source of rational knowledge. n24 This cult of the "natural law" declared

itself independent of all "revealed" religions: the battle cry of Freemasonry. n25 In practice, this position, [*128]

further articulated by such eminent philosophers as Spinoza, n26 Wolff, n27 Voltaire, n28 and Diderot, n29 as well as

by British Deists, was tantamount to religious indifferentism: all religions are the same and should be tolerated, as long

as they do not fall prey to dogmatism or cause social disturbance.

All of this was opposed, and still is, by the Catholic Church, which did not recognize the Treaty of Westphalia, and

maintained the right to religious liberty, not religious "toleration." Religious liberty is the right to worship God inaccordance with one's conscience, free of external coercion, and the duty to accept true religion in the same fashion. n30

II. Hope for the Future

These efforts in the past ended in failure precisely because the means employed were violent. This is revealed by

common sense and dispassionate reason. If violence is used to stop violence, it will, as a rule, generate more violence. If

you want to achieve peace, the first thing that must be done is to abstain from violence. The principle of answering

force with force in self-defense may at times be stretched to conceal other selfish motives. If we can agree on the

importance of banning violence from civilized society, as distinct from the Hobbesian jungle, then we can start a serene

dialogue, a reasoned negotiation, in cooperation and solidarity.

This dialogue must be based on the "truth about man." The dignity of the human person is rooted in his or her

transcendence, or capacity for self-surpassing through knowledge and love. This capacity is attested by the history of ideas, science, technology, [*129] political institutions, economic enterprise, poetry, and the fine arts, and makes the

human person a subject of rights. These "human rights" are at the very core of human essence, and thereby of human

existence. These rights are not conferred by society, the State, or any other human agency, but are God-given:

permanent and inalienable. No secularistic humanity can be their bedrock. This is the supra-political "natural law" that

must be recognized by and reflected in every man-made constitution or legislation. The recognition of this "truth about

man" at a metaphysical, ethical, and scientific level, is the only possible platform for a dialogue toward peace.

Shortly after elected pope on October 16, 1978, John Paul II sounded a keynote of his pontificate: the truth about

man. n31 "Man is the way of the Church," he would state thirteen years later in Centesimus Annus, n32 but this idea

was already present in his first encyclical, Redemptor Hominis, early in 1979. n33 After his visit to Mexico in January

of that year, where he confronted the problem of a "liberation theology" inspired by Marxism, he visited his own native

Poland in June, then under a Marxist regime. He emphasized in speech after speech the obligation of society and

government to recognize this truth about human rights, just as he had done earlier as Archbishop of Krakow in close

collaboration with Cardinal Wyszynski and the entire Polish hierarchy. n34

On October 5, 1995, John Paul II addressed the United Nations at its headquarters in New York. The subject of his

speech was again this truth about man: the inseparable link between peace and human rights. He emphasized that this

truth is a common patrimony of mankind; it is a philosophical, metaphysical, ethical, and natural truth. It is not the

exclusive concern of any particular religion, but the common possession of all religions open to the transcendence of

God. Even atheists and agnostics, he said, had to be open to this truth and [*130] recognize the right to religious




freedom for every person and community. n35

The Pope knew, of course, that the Bible provides the best testimony of the dignity of the human person n36

because it shows the person is created and redeemed by God. n37 However, this biblical argument would convince only

Jews, Christians, and Muslims, who together do not comprise an overwhelming majority of mankind. Knowing the

limitations of a biblically based argument, John Paul II chose an argument based on reason and a democratic philosophy

appropriate to that forum in which all nations, all cultures, and all religions were represented. It alone could provide the

medium of communication for a world conference on peace.

The effectiveness of this papal speech and of his many other pronouncements along this line can be gauged by the

gradual undermining of the Marxist regimes throughout the 1980s, ending in their mostly non-violent collapse in 1989.

This papal discourse directly combated the core of Marxist ideology: the suppression of individual personal freedom

and the total absorption of man into the community. For this reason, Marxism is unable to recognize the transcendence

of the human person. n38

Of all of man's freedoms, that which is most fundamental and the root of his greatness and dignity is his orientation

toward infinity and boundless creativity. God, though, and not man, is the source of this freedom and creativity. Hence,

the fundamental right to religious freedom must include openness to a transcendent, personal Creator. This is what thePope often refers to as freedom of thought and of conscience, not to be confused with the false autonomy of a human

reason that is not ruled by truth, but by its own subjective preference. n39

[*131] True freedom consists not in boundless omnipotence, but in the power to choose without external coercion.

Such freedom must be ordered by the golden lamp of law, an idea the Statue of Liberty has immortalized. n40 This

freedom must be balanced by justice, even as rights must be balanced by duties. To the extent that this balance is

achieved, there will first be economic prosperity, followed by cultural prosperity, and finally, the total development of

man in a society at peace.

Although freedom is indispensable for peace, it is not alone sufficient. It unleashes man's creativity, but also his

selfishness. Western materialism is notoriously rampant with hedonism and consumerism. This is not the direct effect of

the capitalist and democratic systems, but it often accompanies them. Freedom naturally entails the risk of misuse, but it

is a risk that must be taken [*132] for man to achieve the common good. (This is not "the greatest good for the greatestnumber," as utilitarianism and hedonism might suggest, but the good for "every" man and the "whole" man.) This link

between peace and complete human development, i.e., the common good, was the theme of two great encyclicals on

peace, that of Pope John XXIII, Pacem in Terris, n41 and that of Pope Paul VI, Populorum Progressio. n42

In light of these truths, is there any justification for claiming along with Hobbes and Plautus that "man is a wolf to

man," or sharing a belief similar to that of Han Fei Tz<cir u> and Machiavelli? It cannot be denied that man does much

evil if he is left free, but he also does much good if he is educated in the use of his freedom. Man is neither an angel nor

a devil, though surely at times he may have borne a resemblance to either. Moreover, he is not a freedom-less animal

nor a lifeless machine. The Bible has revealed that man is free in his boundless love, but still bound to the truth that

liberates. n43 Our ability to overcome our evil tendencies lies in truth and openness to He who is Truth, God. That is

our dignity, and we must respect its development in each of us from the moment of conception. We must trust in our

capacity to overcome all evils with the aid of God, with solidarity, and in cooperation with one another.

III. Recent Attempts to Promote an Institution of Peace

In 1976, the United Nations paid official tribute to Francisco de Vitoria as its precursor and the Father of International

Law. n44 [*133] Vitoria's teaching, as discussed below, is rooted in that of St. Thomas Aquinas and has been affirmed

by all popes since Paul III. n45 It has been followed by many other theologians and philosophers, such as Suarez,

Molina, Bellarmine, Grotius, Pufendorf, Leibniz, Locke, and Kant. Vitoria's emphasis on human rights as the condition

for peace and order was partially reflected in the American Declaration of Independence, which recognized rights




derived from God. n46 The French Constitution, framed shortly thereafter, failed to include a derivation of rights from

God, thus initiating modern secularism which provides no basis for human rights except positive human law. Hence, all

are at the mercy of whoever has more power. "Might is right" under legal positivism. n47

The first truly international attempt to institutionalize the ideas of Francisco de Vitoria, and thus surpass the era of

mere pacts or treaties between individual nations (which only led to further wars between blocs of nations) came with

the League of Nations, founded in Geneva shortly after the First World War. This dismal effort had lasted barely

[*134] twenty years when the Second World War heralded its end. Nevertheless, hope was not extinguished, and the

United Nations was founded after World War II as a reaction to that most terrible of all wars. It was begun with the firm

determination to promote peace everywhere on earth by peaceful and democratic means. In so doing, it promulgated a

comprehensive Universal Declaration of Human Rights n48 as a juridical guarantee of peace. The old formula "if you

want peace, prepare for war" n49 was replaced by a new one: "if you want peace, respect human rights." The UN has

proven to be far from perfect, but it is doubtless a giant step in the right direction, and has never lacked the

encouragement and support of the popes (from Pius XII to the present one).

As mentioned earlier, John XXIII issued Pacem in Terris in 1963 while the Second Vatican Council was in session,

addressing this encyclical in a ground-breaking fashion "to All Men of Good Will," and not only to Catholics. n50 This

was an indication that his arguments would be purposefully philosophical, and not just Christian, biblical, ortheological. He stated that the way to build and secure "peace on earth" is to respect the human rights grounded in the

"dignity of the human person," and proceeded, in the tradition of Francisco de Vitoria, to enumerate one of the most

comprehensive lists of human rights ever put forward. n51 This list begins with the right to life of the unborn, the most

defenseless and vulnerable of human beings. This is where the aforementioned abolition of violence has to begin since,

as Mother Teresa of Calcutta famously asked,

But I feel that the greatest destroyer of peace today is abortion, because it is a war against the child - a direct killing of

the innocent child - murder by the mother herself. And if we accept that a [*135] mother can kill her own child, how

can we tell other people not to kill one another? n52

Four years after Pacem in Terris, Paul VI enriched this concept in Populorum Progressio with the idea that

development is the new name for peace, n53 with "development" defined as the total promotion of man based on an

"integral humanism." n54 This is a philosophical basis that can be accepted by all religions and cultures for an

"international law" that strives to defend and preserve global peace. It is not the secularist pax philosophica of the

Enlightenment, but a truth acceptable to and supported by all religions. It is manifested in fundamental ethical values

rooted in the dignity of the human person and spelled out in the universally accepted list of human rights.

The equality of human nature also creates a "universal brotherhood" of mankind; not a secularist brotherhood, but

one under God. The obvious existing inequalities among human beings and communities are not supposed to be

antagonistic, adversarial, or even "dialectical" in the Hegelian-Marxist sense, n55 but complementary and harmonizable.

What inequality of individual persons there is [*136] must be understood in light of the underlying unity of all

mankind, as the Confucian tradition has also maintained. n56

Cooperation and solidarity are a natural extension of this unity. These should not be confused with the "pacifism"

of "peace at all costs," or the "irenecism" (from the Greek Irene meaning "peace") of compromise at the expense of

truth. In fact, the sacredness of truth carries a moral obligation to sacrifice one's life in its defense. For a Christian, the

paradox of Christ, that He came not to bring peace on earth, but war, n57 cannot be brushed aside. He clarified this,

however, by explaining that the "war" to be waged was not against others but against oneself. n58 Only in this way can

the peace of Christ be offered to others, by channeling all of our aggressiveness toward ourselves in the struggle against

selfishness. Without this, we cannot prevent ourselves from being aggressive with others.




This humanism that is open to transcendence, not secularism, n59 includes the universal equality of all persons and

peoples, and is therefore opposed to any form of racism or chauvinism. It is in accord with this universal

equality/humanism that the Catholic Church is one of the most consistent and adamant opponents of racism. In

countries deeply affected by the Catholic ethos, racism is, as a rule, less frequent. No other institution has more strongly

condemned the evils and errors, both philosophical and scientific, of racism. On the other hand, no other institution has

more highly praised the virtue of patriotism. The Catholic Church, as the name [*137] "catholic" means, is universal in

outlook, while at the same time deeply involved in the reality of actual peoples and communities. n60

The advent of Christianity, with its radical natural law affirmation of the fundamental equality and dignity of all

men, fermented social change in a Roman Empire which had fully established and legalized the institution of slavery,

just as the Greek city-states had done. The institution of slavery was largely based on the economic fallacy, espoused by

Aristotle, that natural resources (soil and sub-soil) and forced labor (slavery) were the sole sources of wealth. n61 This

way of thinking made war an economic necessity as well; wars were needed for the conquest of new lands and the

enslavement of peoples. It also made mercantilism and a static economy the prevailing doctrines, allied to the

absolutism of rulers and the endemic recurrence of tyrannies, together with the chronic poverty and squalor of the

majority of the population. n62

This Aristotelian economic fallacy was not refuted until the analysis of the Spanish sixteenth century theologians of the School of Salamanca, n63 including Francisco de Vitoria, Tomas de Mercado, Martin de Alpizcueta, and Luis de

Mariana. Joseph Schumpeter has illustrated this in his classic work, History of Economic Analysis. n64 More recently,

Alejandro Chafuen, in Christians for Freedom, n65 traced the decline of the Spanish Empire to the failure to recognize

that the real source of wealth is not land or labor, but the "free" creativity of the human mind. For a dynamic and

growing economy, this creativity must be allowed to express itself in agriculture, industry, commerce, and finance with

a minimization of government control and stimulation of private enterprise and wealth. n66 The ideas underlying

[*138] this economic rebirth were fully developed and systematized by Adam Smith. Smith explained not only the

decline of the Spanish Empire (a static economy), but also the rise of the British Empire, by way of contrast. n67

(Smith's work appeared in 1776, the same year as the American Declaration of Independence, which affirmed the

universal equality and freedom of all men under God.)

The cultural, economic, political, yet peaceful revolution of Christianity was not able to flourish initially due to

universal acceptance of the Aristotelian fallacy. Christianity commenced a process of cultural transformation, gradually

humanizing slavery, war, poverty, disease, and political absolutism, by favoring the introduction of practices and laws

to this effect. In this endeavor, it always defended and protected the dignity of man and his labor. After the European

colonization of the Americas, this new consciousness of universal equality and freedom fomented its own science of

economics at which time there was no longer any excuse to maintain the aberrations that had been tolerated for

centuries.

The origin of these revolutionary ideas was not Locke's liberal reaction to Hobbes's absolutism. n68 To say this is a

flagrant oversimplification. Rather, as already stated, the origin is in the work of the sixteenth century Spanish

economists.

IV. The Work of Francisco de Vitoria

To celebrate the fifth century of Christopher Columbus's arrival in the New World, the University of Salamanca, in

conjunction with the Catholic University of America, published a bilingual volume entitled The Rights and Obligations

of Indians and Spaniards in the New World. This volume reconstructs and compiles all the relevant statements of

Francisco de Vitoria on this issue. n69 Included in this are a long series of lectures given to large audiences at the

University of Salamanca throughout the 1530s. Deeply stirred by briefings from Bartolome de Las Casas, who had

started his peaceful crusade in favor of the Indios after listening to Antonio Montesinos preach at [*139] Santo

Domingo in 1511, Vitoria courageously expounded the fundamental equality of all human beings and acknowledged

that the ultimate sovereignty of the people is given to them by God. He spelled out the inviolable rights to life, to




liberty, and to self-rule, including the right to private economic initiative and to participation in public life. n70 In

Francisco de Vitoria's writings, we find the first virtually complete enumeration of human rights and the principles of

democratic government and law, both on a national and on an international level, long before the American Declaration

of Independence and Thomas Paine's The Rights of Man. n71

As a result of the reverberations caused by Vitoria's lectures at Salamanca, Pope Paul III issued two Briefs in 1537

in which he authorized the excommunication of those colonists in the New World who deprived the natives of life,

liberty, or property. In these he proclaimed the fundamental equality of all human beings, regardless of their race,

religion, or culture. n72 Emperor Charles V requested that the Pope withdraw these Briefs of excommunication,

pledging that he [*140] would promulgate the New Laws of the Indies as soon as possible to guarantee rights n73

similar to those formulated by Francisco de Vitoria.

Four years before Vitoria's death, Charles V did indeed issue The New Laws of the Indies in 1542, n74 which did

not come until the Council of Trent n75 was already in session. This Ecumenical Council, attended by many of Vitoria's

followers, such as Domingo de Soto and Melchor Cano, proclaimed the universality of the Christian religion and of

human nature, denouncing both the elitism of the Protestant Reformers and the claims of moral and racial superiority of

the Iberian conquistadores. n76 Controversy, though, raged in Spain. Vitoria's followers, led by Bartolome de Las

Casas, opposed those in favor of conquest, led by Juan Gines de Sapulveda. This was not resolved until a formal sessionof debates was arranged by Emperor Charles V between these two leaders at the royal court of Villadolid in 1550 and

1551. Las Casas rebutted Sepulveda's theses with Vitoria's ideas, which had been adapted from those of St. Thomas

Aquinas. Las Casas was considered to have won the debate. n77

It was Vitoria, therefore, who set in motion the "revolution of human rights," which has crystallized in modern

democracies and contemporary international organizations. n78 His doctrine on the [*141] fundamental equality of all

persons and peoples, and on their right to self-rule, rooted in their national subjectivity, was based on a Christian

theology that illuminated the natural law witnessed to by human reason, and most thoroughly analyzed by St. Thomas

Aquinas. Vitoria's philosophy focused on the human person and human society; therefore, it can be called a "philosophy

of order" in which authority and law (a rational ordering, i.e., one not arbitrary or voluntaristic) are the basis and

justification for the power to govern. This power is bestowed on the rulers by the people, but not by the people as

"numbers," a fact Jacques Maritain n79 and Yves R. Simon n80 have explained so well. Rather, it is bestowed by the

people as a community of persons aware of their subjective responsibility and dignity as beings open to infinite

transcendence and objective values. This philosophy of order, based on the natural law, was continued by a long chain

of theologians and philosophers. n81

In contrast to this philosophy of order, which builds up a "democracy of the person," is the "philosophy of power,"

started by Ockham, and later further developed by Marsilius of Padua, Machiavelli, Luther, Hobbes, and Rousseau. This

philosophy of power continued through the French Revolution, on to modern liberal individualism (the "democracy of

the individual"), and finally achieved totalitarian socialism. Meanwhile, the more moderate individualism of Locke,

influenced by the Scholastics (especially the Dominicans), n82 was foremost in the thought of Thomas Jefferson and

[*142] the framers of the American Constitution. n83 Jefferson, of course, is well known as the drafter of the American

Declaration of Independence and its testament to self-evident natural law.

The genesis of much of this human rights thinking had been in those acclaimed lectures at Salamanca. There,Vitoria put the dignity of the human person, regardless of race, culture, or religion, on center stage, together with the

need for a juridical order to safeguard it. n84 He iterated what Aquinas had said many times: "No one is a slave by

nature." n85 All men and women are equal by nature, in spite of their existential inequalities, and they can never lose

their fundamental rights even if they fall into sin. Vitoria rejected the Roman ius belli and declared there to be no such

thing as a "right to war," but rather only a right to self-defense. n86 He rebuffed the "divine right of kings" then claimed

by absolutist monarchs, instead asserting the right of the people to depose tyrants when reasonable. n87 He rejected

theocratic imperialism, advocating in its place a universal community of nations ruled by a natural law common to all

cultures (an ius gentium or "law of nations") and delineated in a "declaration" of human rights. n88 For this reason, the




United Nations considers Vitoria its precursor, and international jurists generally regard him as their "father." The bust

erected in his memory at the United Nations headquarters in New York calls him "Founder of the Law of Nations," and

the "Francisco de Vitoria Hall" at the UN Geneva Offices testifies to Vitoria's leadership in the march toward

democracy and liberty.

[*143] Despite this, some authors have erroneously attributed the title of "Father of International Law" to Hugo

Grotius (1583-1645), born thirty-seven years after Vitoria's death. However, Grotius himself utilized Vitoria's thesis on

just war, as found in Grotius's capital work De iure belli ac pacis in 1625. n89 Following Vitoria's thought, Grotius also

roots the natural law on God as the author of human nature and natural sociability. This is notwithstanding his

misunderstood remark that the natural law would be valid even if we were to admit that God does not exist nor care

about human affairs. n90 On the evidence of his writings, Grotius cannot be said to have started the process that

secularized the natural law tradition. Neither can he be considered the "father" of international law. He followed Vitoria

and further elaborated on his philosophy.

Other false claimants to the title of father of modern human rights rooted in the natural law tradition are Samuel

Pufendorf (1632-1694) and his contemporary, John Locke. We have already noted how the latter was indebted to the

Dominican theologians, and how he subsequently influenced the thought of Thomas Jefferson. In dismissing

Pufendorf's claim to Vitoria's title, a candid reading of his capital works, De iure naturae et gentium libri octo n91 andDe officio hominis et civis secundum legem naturalem libri duo, n92 reveals his great dependence on Grotius, n93 and,

thereby, on the Vitoria tradition. Admittedly, he is also somewhat affected by the more individualistic outlook of

Hobbes, but only in some empirical observations which do not modify the substance of his doctrine, and in a greater

emphasis on [*144] the will, rather than on reason, regarding the nature of positive law. Pufendorf roots natural law in

man's rationality and sociability. Thus, following Suarez, Grotius, and Vitoria, he defines natural law as that which fits

the rational and social nature of man so necessarily that without its observance there could be no honest and peaceful

society in mankind. n94 Positive law, by contrast, is not founded on the general constitution of human nature, but purely

on the will of the lawgiver. n95 As a result of this, he does not distinguish between ius gentium and positive law as

clearly as Suarez does. n96

Pufendorf most clearly shows his relation to the Vitoria tradition in his enumeration of the "natural duties of man."

. As regards his soul, to know God as the Supreme Being, Intelligent, Free, Ruler of the Universe, and worship Him.

n97 (This is clearly not the Supreme Being (the "Great Architect") of the Deists and the French Revolution, but the

Provident God of Locke, Montesquieu, Jefferson, and the American Revolution).

. To know himself and his own nature well. To acknowledge his dependence on God, his duties toward Him and toward

other men; to act with prudence, equity and moderation. To use well what depends on us. n98

. To seek one's esteem and honor. (In other words, to be aware of one's human dignity.) n99

. To seek wealth with moderation. (This is a new way of expressing Vitoria's right of all men to engage in business

[*145] enterprise and acquire private property, always taking into account the common good, or "with moderation.")

n100




. To subject the passions to reason. (That is to say, to be fully human in accord with natural law.) n101

. To exercise just self-defense. n102 (As we have seen, he follows Vitoria in the application of this general duty as a

replacement for the "right to war.")

Along with Grotius, Pudendorf, and Jefferson, one can make mention of many other theologians and philosophers who

followed Vitoria's natural law doctrine, such as Locke, Montesquieu, Domingo de Soto, n103 Francisco Suarez, n104

Luis de Molina, n105 Robert Bellarmine, n106 Jean Bodin, n107 Richard Hooker, n108 Alberico Gentilis, n109 and

generally all late Scholastics. With the rise of Deism in England and with the German Enlightenment, the interest

shifted to man's happiness without relation to God. This can be seen in the work of a number of Pufendorf's followers in

Germany, such as Christian Thomasius, n110 as well as in the rise of utilitarian ethics in England with Hutcheson, n111

[*146] Hume, n112 and Bentham. n113 Such thinkers were prone to interpret Jefferson's "pursuit of happiness" n114 in

hedonistic terms and to secularize the natural law tradition.

The natural law, as exemplified in the American Declaration of Independence and in the American Constitution,was reaffirmed by George Washington n115 and Abraham Lincoln, n116 the Whig Tradition of England, and

Continental thinkers such as Montalembert, n117 Juan Donoso Cortes, n118 and Frederic Bastiat, n119 and, more

recently, Lord Acton n120 and Jacques Maritain. n121 This natural law is God and liberty-centered in the tradition of

Francisco de Vitoria. It is a philosophy of order, and of ordered liberty. It is the cultural core of a republic (or a

constitutional monarchy) organically composed of free persons under [*147] God, for the transcendent common good

of society. This is the "democracy of liberty" suggested by Alexis de Tocqueville. n122

In contrast, the philosophy of power, of the self-affirmation of the individual and autonomous will, whether singly

or collectively, found political expression in the French Revolution of 1789. In that government's Declaration of the

Rights of Man and the Citizen, Article VI, it is stated that "the law is an expression of the general will," n123 i.e., not a

"rational" ordering. This is what leads to the "democracy of tyranny" described by Tocqueville. n124 The God of the

Deists and of the Jacobins is the Great Architect who has left the world "entirely" in the hands of man. Thus, deprived

of a point of reference beyond and above themselves, men now turn to one another as wolves (Hobbes) and will try

either to create a Leviathan, an absolute State to impose order on all, or to seek power-mechanisms in a free-for-all

society to secure the "survival of the fittest." n125 In this way, the "general will" of Rousseau n126 was first claimed by

the French Revolution, and later by Bolshevism, n127 [*148] Fascism, n128 and Nazism, n129 the collectivist or

socialist forms of the philosophy of power. At the other end of the secularist spectrum, utilitarian and pragmatic trends

favored its individualistic form. This has historically outlived the collectivist form and plunged humanity into the global

crisis we are now experiencing in the awesome confrontation of a culture of life and a culture of death, a philosophy of

love and a philosophy of hate. n130

V. Vitoria on the Laws of War

In 1991, Cambridge University Press published a volume entitled Vitoria: Political Writings as part of a series of texts

in the history of political thought. Edited by Anthony Pagden of the University of Cambridge and Jeremy Lawrance of the University of Manchester, the volume contains an excellent translation of the famous Praelectiones (end-of-term

comprehensive lectures) delivered by Vitoria from 1528 to 1539 at the University of Salamanca to jam-packed

audiences, on occasion including Emperor Charles V, who promulgated the New Laws of the Indies, as stated above.

n131 These Praelectiones contain the groundwork for all subsequent elaboration by his numerous followers, beginning

with the Scholastics, Grotius, Pufendorf, and later Locke. It focused on civil power, the sovereignty of the people, the

equality of all men before the law, the role of religion, and the enumeration of basic human rights. n132

As mentioned by Ernest Nys, the Law of War is a continuation of the previous Praelectio "On the American




Indians" (De Indis). n133 Vitoria expounded at length on the previous war theory since the time of St. Augustine. In

Scholastic fashion, he divided the discussion into questions and articles.

[*149]

Question 1:

Article 1: Whether it is lawful for Christians to wage war.

Article 2: On what authority may war be declared or waged.

Article 3: What are the persuasive reasons and causes of just war?

Article 4: What and how much may be done in the just war?

Question 2:

Article 1: Whether it is enough for the just war that the prince should believe that his cause is just.

Article 2: Whether subjects are required to examine the causes of war.

Article 3: What is to be done when the justice of war is undecided?

Article 4: War cannot be just on both sides.

Article 5: If a belligerent discovers that his cause is unjust, must he make restitution?

Question 3:




Article 1: Whether one may kill innocent people in a just war.

Article 2: Whether one may plunder innocent people in a just war.

Article 3: Whether one may enslave the innocent in a just war.

Article 4: Whether one may execute hostages.

Article 5: Whether one may execute all the enemy combatants.

Article 6: Whether one may execute those who have surrendered or been taken prisoner.

[*150]

Article 7: Whether all the booty taken in war belongs to the captors.

Article 8: Whether one may impose tribute on a defeated enemy.

Article 9: Whether one may depose the enemy's princes and set up new ones.

Conclusion: The rules of war summarized in three canons. n134

Conclusion

Goaded by developments in the New World, Vitoria took great pains to lay down norms of international law. Those

that followed his example, (beginning with Grotius) were prompted by the "Wars of Religion" and the escalation of imperialistic conflict, along with a desire for the realization of Vitoria's ideal: a community of nations in pursuit of

peace. Their endeavors finally culminated in the formation of the United Nations. n135

However, the end envisioned still has not become a reality. A "new world" is once again burgeoning, reshaping the

relationships of nations and their citizens. This time it does not arise from the discoveries of explorers, but of scientists.

With many benefits there also come many dangers. Technological advancement in warfare has presented new perils that

have complicated the just war issue. Even if inadvertent, progress has increased the havoc of war, extending the reach of

dehumanising ideologies and their dreadful offspring: genocide. Coming to terms with the question of just warfare




today requires a mature reconsideration of its underlying principles and goals in light of the modern situation.

This is not to advocate yielding to a relativistic, or purely pragmatic ethic. Moral principles and guidelines are like

human rights, universally valid and inherent to human nature. One such unchanging guideline is that the formation of

conscience requires consideration of the formal object or end of the moral act, the [*151] intention of the agent, and

the circumstances. These are the rules of jurisprudence, and they govern the application of the law to practical

judgements, including the ius ad bellum and ius in bello. With the proliferation of weapons of mass destruction, the

"circumstances" have become the most relevant factor in that analysis. The "circumstances" of any war have the

potential to be broader in their effect than at any time in the past and any just war analysis must pay heed to them in an

international light. This insight motivated the emphasis placed by the Holy Father on international law, the need to

strengthen the United Nations, and the role of international diplomacy.

To achieve these goals, an in-depth study of the concept of law must be undertaken with a thorough knowledge of

history. This is a central theme of Vitoria's thought. The analysis of moral principles should not be undertaken blindly

and without reference to the past anymore than technological study should ignore prior contributions. A historically

blind approach not only fails to capitalize on the achievements of the past, it also forgoes the best defense against the

repetition of error. Prudently approaching the question of just war requires the exercise of memory, circumspection, and

foresight. Even with all three no one can forecast the future, but an understanding of the past fosters the conditions thatprovide grounds for hope.

Legal Topics:

For related research and practice materials, see the following legal topics:

TortsNegligenceDutyAnimal OwnersScienter

FOOTNOTES:

n1. Zenit News Agency, 2004 World Day of Peace to Emphasize International Law: Humanity Facing aCrucial Challenge, Says Vatican (July 17, 2003), available at

http://www.zenit.org/english/visualizza.phtml?sid=38984 (Code: ZE03071712) (on file with the Ave Maria Law

Review).

n2. See generally Second Vatican Council, Gaudium et Spes [Pastoral Constitution on the Church in the

Modern World] (1965), reprinted in The Sixteen Documents of Vatican II 513 (Nat'l Catholic Welfare

Conference trans., St. Paul ed. 1967).

n3. Id. (quoting Isaiah 32:17).

n4. 1 Niccolo Machiavelli, The Discourses of Niccolo Machiavelli 234 (Leslie J. Walker, S.J. trans., W.

Stark ed., 1975) ("It is a sound maxim that reprehensible actions may be justified by their effects, and that when

the effect is good ... it always justifies the action.").




n5. William Turner, Hegelianism, in 7 The Catholic Encyclopedia 193 (Charles G. Herbermann et al. eds.,

2d ed., The Encyclopedia Press, Inc. 1913) ("War, he [Hegel] teaches, is an indispensable means of political

progress. It is a crisis in the development of the idea which is embodied in the different States, and out of thiscrisis the better State is certain to emerge victorious."). As Frederick Copleston described Hegel's thought on

war:

It should be noted that Hegel is not simply saying that in war a man's moral qualities can be displayed on an

heroic scale, which is obviously true. Nor is he saying merely that war brings home to us the transitory character

of the finite. He is asserting that war is a necessary rational phenomenon. It is in fact for him the means by

which the dialectic of history gets, so to speak, a move on. It prevents stagnation and preserves, as he puts it, the

ethical health of nations. It is the chief means by which a people's spirit acquires renewed vigour or a decayed

political organism is swept aside and gives place to a more vigorous manifestation of the Spirit.

7 Frederick Copleston, S.J., A History of Philosophy 217-18 (1963).

n6. See generally Charles Darwin, The Origin of Species by Means of Natural Selection, or the Preservation

of Favoured Races in the Struggle for Life (6th ed. 1872) (Darwin discusses this theory fully in Chapter III:

Struggle for Existence and Chapter IV: Natural Selection; or the Survival of the Fittest.).

n7. Weather Wreaked Havoc, Aids Killed Millions, Fast Food Boomed, Smoking Declined and Conflicts

Increased, The Indep. (London), Aug. 21, 1999, at 7.

n8. See generally George Weigel, Tranquilitas Ordinis: The Present Failure and Future Promise of

American Catholic Thought on War and Peace (1987) [hereinafter Tranquilitas Ordinis] (containing a thorough

review of the phenomenon of the peace movement).

n9. See Joseph M. de Torre, Contemporary Philosophical Issues in Historical Perspective (2001)

[hereinafter Contemporary Philosophical Issues].

n10. See Marcus Tullius Cicero, De Oratore, Liber Secundus 225 (E.W. Sutton trans., 6th ed. 1942) (55

B.C.) ("And as History, which bears witness to the passing of the ages, sheds light upon reality, gives life to the

recollection and guidance to human existence, and brings tidings of ancient days, whose voice, but the orator's,

can entrust her to immortality?").




n11. Jerome Rosenthal, Attitudes of Some Modern Rationalists to History, 4 J. Hist. Ideas 429, 449 (1943)

(quoting Gottfied Wilhelm Leibniz, Hauptschriften zur Grundlegung oer Philosophie (E. Cassirer, ed.,

Philosophische Bibliothek 1966) (1717)).

n12. Thomas Hobbes, On the Citizen P 13 (Richard Tuck & Michael Silverthorne eds. & trans., Cambridge

Univ. Press 1998) (1651).

n13. Thomas Hobbes, Leviathan 104 (Am. ed. 1950) (1651).

n14. Titus Maccius Plautus, Asinaria 72 (R.A.D.A.R. Padova 1968).

n15. See Fung Yu-Lan, 1 A History of Chinese Philosophy: The Period of the Philosophers 312-35 (Derk

Bodde trans., 2d ed., Princeton Univ. Press 1983) (1931).

n16. See generally Contemporary Philosophical Issues, supra note 9.

n17. G.A.J. Rogers, John Locke, in The Columbia History of Western Philosophy 388 (Richard H. Popkin

et al. eds., 1999) ("Although Locke shares with Hobbes a commitment to a social contract as the moral rationale

of society, he was very keen to distance himself from Hobbes's philosophy.").

n18. Jean-Jacques Rousseau, Emile, in 20 International Education Series 212 (William T. Harris ed.,

William H. Payne trans., 1892) ("Let him know that man is naturally good; let him feel it; let him judge his

neighbors by himself; but let him see how society depraves and perverts men; let him find in their prejudices thesource of all their vices; let him be inclined to esteem each individual, but let him despise the multitude; let him

see that all men wear nearly the same mask, but let him know also that there are faces more beautiful than the

mask which covers them.").





n20. See, e.g., P.W. Schmidt, Der Ursprung der Gottesidee: Eine Historisch-Kritische und Positive Studie

[The Origin of the Idea of God: A Historical Critique and Positive Study] (Aschendorffsche 1926) (1912).

Translation from the German is by Meggan Mikula.

n21. See, e.g., Joseph M. de Torre, The Humanism of Modern Philosophy (2d ed. 1997) [hereinafter

Humanism].

n22. See generally Asghar Ali Engineer, Islam and Liberation Theology 7 (1990) ("Jihad in Islam is to be

primarily waged either for protecting the interests of the oppressed and the weak or to defend oneself against

aggression.").

n23. See Antonio M. Rosales, O.F.M., October 1986: The Day Assisi Became the "Peace Capital" of the

World, at http://www.americancatholic.org/Features/Assisi/PeaceCapital.asp (on file with the Ave Maria Law

Review).

n24. See Humanism, supra note 21.

n25. Freemasonry lacks the basic elements of religion:

(a)It has no dogma or theology, no wish or means to enforce religious orthodoxy.

(b)It offers no sacraments.

(c) It does not claim to lead to salvation by works, by secret knowledge, or by any other means. The secrets

of Freemasonry are concerned with the modes of recognition, not with the means of salvation.

Masonic Information Center, Statement on Freemasonry and Religion (Dec. 1993), available at

http://www.rsm-mi.org/stmt.html (on file with the Ave Maria Law Review).

n26. See generally Leo Strauss, Spinoza's Critique of Religion (E.M. Sinclair trans., 1965).




n27. See generally Manfred Kuehn, Christian Thomasius and Christian Wolff, in The Columbia History of

Western Philosophy 472-75 (Richard H. Popkin et al. eds., 1999).

n28. See generally 2 Francois Voltaire, The Philosophical Dictionary 437-48 (Peter Gay trans., Basic Books

1962) (1764) (expressing skepticism toward traditional religious beliefs).

n29. See generally Denis Diderot, Rameau's Nephew and D'Alembert's Dream (L.W. Tancock trans.,

Penguin Books 1966) (1762).

n30. See Second Vatican Council, Dignitatis Humanae [Declaration on Religious Freedom] (1965),

reprinted in The Sixteen Documents of Vatican II 397-413 (Nat'l Catholic Welfare Conference trans., St. Paul

ed. 1967).

n31. Pope John Paul II, Message to the Secretary General of the United Nations (Dec. 2, 1978), at

http://www.vatican.va/holy father/john paul ii/speeches/1978/documents/hf jp-ii spe 19781202 segretario-onu

en.html (on file with the Ave Maria Law Review).

n32. Pope John Paul II, Centesimus Annus [On the Hundredth Anniversary of Rerum Novarum] PP 53-62(St. Paul ed. 1991).

n33. Pope John Paul II, Redemptor Hominis [Encyclical Letter, The Redeemer of Man] P 14 (St. Paul ed.

1979).

n34. See, e.g., George Weigel, Witness to Hope: The Biography of Pope John Paul II (1999) [hereinafter

Witness to Hope].

n35. Pope John Paul II, Visit to the United Nations and the United States: Greeting to the United Nations

Staff (Oct. 5, 1995) ("For you, it means being resolutely committed to honesty and personal integrity in your

work and professional relationships. It means respecting the religious and cultural traditions of others, and even

protecting and promoting them when necessary. It means applying to yourselves the same standards of conduct

and courtesy which you expect from others."), available at http://www.ewtn.com/library/PAPALDOC




/JP2US95C.htm (on file with the Ave Maria Law Review).

n36. Genesis 1:26-27 ("Then God said: "Let us make man in our image, after our likeness. Let them havedominion over the fish of the sea, the birds of the air, and the cattle, and over all the wild animals and all the

creatures that crawl on the ground.' God created man in his image; in the divine image he created him; male and

female he created them.").

n37. 1 Corinthians 1:30.

n38. See, e.g., Witness to Hope, supra note 34.

n39. As John Paul II writes in Fides et Ratio,

In the Encyclical Letter Veritatis Splendor, I wrote that many of the problems of the contemporary world stem

from a crisis of truth. I noted that "once the idea of a universal truth about the good, knowable by human reason,

is lost, inevitably the notion of conscience also changes. Conscience is no longer considered in its prime reality

as an act of a person's intelligence, the function of which is to apply the universal knowledge of the good in a

specific situation and thus to express a judgment about the right conduct to be chosen here and now. Instead,

there is a tendency to grant to the individual conscience the prerogative of independently determining the criteria

of good and evil and then acting accordingly. Such an outlook is quite congenial to an individualist ethic,

wherein each individual is faced with his own truth different from the truth of others."

Pope John Paul II, Fides et Ratio [Encyclical Letter on the Relationship Between Faith and Reason] P 98 (St.

Paul ed. 1998).

n40. The text on a plaque mounted in the base of the Statue of Liberty states the following:

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;




Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

"Keep, ancient lands, your storied pomp!" cries she

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.




Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

Emma Lazarus, The New Colossus, available at http://usinfo.state.gov/usa/infousa/facts /democracy/63.htm (on

file with the Ave Maria Law Review) (citing 1 Emma Lazarus, The Poems of Emma Lazarus 2 (1889).

n41. Pope John XXIII, Pacem in Terris [Encyclical Letter on Establishing Universal Peace in Truth, Justice,

Charity, and Liberty] P 12 (St. Paul ed. 1963) [hereinafter Pacem in Terris] ("By the natural law every human

being has the right to respect for his person, to his good reputation; the right to freedom in searching for truth

and in expressing and communicating his opinions, and in pursuit of art, within the limits laid down by the

moral order and common good; and he has the right to be informed truthfully about public events.").

n42. Pope Paul VI, Populorum Progressio [Encyclical Letter on The Development of Peoples] P 15 (St. Paul

ed. 1967) [hereinafter Populorum Progressio] ("In the design of God, every man is called upon to develop and

fulfill himself, for every life is a vocation... . Endowed with intelligence and freedom, he is responsible for his

fulfillment as he is for his salvation. He is aided, or sometimes impeded, by those who educate him and those

with whom he lives, but each one remains, whatever be these influences affecting him, the principal agent of his

own success or failure. By the unaided effort of his own intelligence and his will, each man can grow in

humanity, can enhance his personal worth, can become more a person.").

n43. 1 Corinthians 13:6 ("[Love] does not rejoice over wrongdoing but rejoices with the truth."); John 8:32

("The truth will set you free.").

n44. See Press Release, United Nations, Kofi Annan Stresses Importance of Universality of Human Rights,

Soundness of Rule of Law, For Common Understanding Among Governments and People, U.N. Doc.

SG/SM/6958 (Apr. 12, 1999), available at http://www.un.org/News /Press/docs/1999/19990412.sgsm6958.html

(on file with the Ave Maria Law Review).

n45. In particular, Paul III followed Vitoria in espousing equal human rights for the native peoples of the

New World. See, e.g., Catholic League for Religious and Civil Rights, Catholicism and Slavery ("In the Spanish

colonies of the western hemisphere Catholic missionaries, supported by Pope Paul III, were outspoken in

advocating for the human rights of Native American slaves, and decrying their harsh treatment by Spanish

settlers. Their efforts prompted the New Laws of the Indies, a royal proclamation from Charles V of Spain

banning all future enslavement of Indians, and mandating humane treatment of those already enslaved."), at




http://www.catholicleague.org/catholicism and slavery/stopskyconclhtm.htm (on file with the Ave Maria Law

Review).

n46. The Declaration of Independence para. 1-2 (U.S. 1776). Specifically, the document states,

WHEN in the Course of human events, it becomes necessary for one people to dissolve the political bands

which have connected them with another, and to assume among the powers of the earth, the separate and equal

station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of

mankind requires that they should declare the causes which impel them to the separation.

WE hold these truths to be self-evident, that all men are created equal, that they are endowed by their

Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That

to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of

the governed, -- that whenever any Form of Government becomes destructive of these Ends, it is the Right of thePeople to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and

organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

n47. See, e.g., Joseph M. de Torre, Person, Family and State: An Outline of Social Ethics 29-45 (1991).

n48. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).

n49. 3 Flavius Vegetius Renatus, Epitoma Rei Militaris P 1 (circa 375) ("Igitur qui desiderat pacem,

praeparet bellum... ." ("Therefore, he who longs for peace, let him make ready for war.")), available at

http://www.gmu.edu/departments/fld/CLASSICS/vegetius3.html (on file with the Ave Maria Law Review). The

phrase is sometimes given as "Si vis pacem, para bellum" ("If you desire peace, make ready for war."). See list

of Latin Proverbs at http://en.wikipedia.org/wiki/Latin proverbs (on file with the Ave Maria Law Review).

n50. Pacem in Terris, supra note 41, pmbl.

n51. Id. at PP 11-27.




n52. Mother Teresa, National Prayer Breakfast Speech (Feb. 5, 1994), available at

http://www.worldnetdaily.com/news/article.asp?ARTICLE ID=36681 (on file with the Ave Maria Law Review).

See also Mother Teresa, Nobel Lecture (Dec. 11, 1979), available at

http://www.nobel.se/peace/laureates/1979/teresa-lecture.html ("... the greatest destroyer of peace today is

abortion, because it is a direct war, a direct killing--a direct murder by the mother herself.").

n53. Populorum Progressio, supra note 42, P 87 ("With a full heart We bless you, and We appeal to all men

of good will to join you in a spirit of brotherhood. For, if the new name for peace is development, who would

not wish to labour for it with all his powers? Yes, We ask you, all of you, to heed Our cry of anguish, in the

name of the Lord.").

n54. Id. P 20 ("If further development calls for the work of more and more technicians, even more necessary

is the deep thought and reflection of wise men in search of a new humanism which will enable modern man tofind himself anew by embracing the higher values of love and friendship, of prayer and contemplation. This is

what will permit the fullness of authentic development, a development which is for each and all the transition

from less human conditions to those which are more human." (internal citations omitted)). See, e.g., Jacques

Maritain, Integral Humanism: Temporal and Spiritual Problems of a New Christendom (Joseph W. Evans trans.,

English trans. 1968).

n55. Hegel employed the dialectic as a way of explaining the process through which history resolves

conflicts and changes, and, although Marx himself never used it, his followers arrogated the term "dialectical

materialism" to describe his philosophy. Speaking superficially, the similarity between the two theories is the

dialectical aspect, whereby the world undergoes change. The difference is the fact that the Hegelian dialectic isidealist and focuses on a supernatural consciousness that created matter, while the Marxian dialectic is

concerned with matter without reference to any higher reality, hence, the addition of materialism. See The

Oxford Companion to Philosophy 198 (Ted Honderich ed., 1995) (defining "dialectic" and "dialectical

materialism").

n56. As Professor Irene Bloom writes,

The idea of a fundamental similarity among human beings is a new development in China during the periodfrom the sixth to the third centuries B.C.E. closely identified with Confucius, and even more with Mencius, it

sets the classical Confucian tradition apart from certain other traditions that were also evolving during the "axial

age.' ... The emphasis on a common human moral potential implies a respect for persons that goes beyond, and

tends to undermine, class distinctions.

Irene Bloom, Fundamental Intuitions and Consensus Statements: Mencian Confucianism and Human Rights, in

Confucianism and Human Rights 94, 98 (Theodore de Bary & Tu Weiming eds., 1998).




n57. Matthew 10:34.

n58. Cf. Matthew 10:37-38; Matthew 10:39 ("Whoever finds his life will lose it, and whoever loses his life

for my sake will find it."); John 12:25-26 ("Whoever loves his life loses it, and whoever hates his life in this

world will preserve it for eternal life.").

n59. See, e.g., Joseph M. de Torre, Openness to Reality: Essays on Secularism and Transcendence 5-20

(1995) [hereinafter Openness to Reality].


n61. See generally Aristotle, Politics (H. Rackham trans., Harvard Univ. Press rev. ed. 1998); Aristotle, The

Nicomachean Ethics (H. Rackham trans., Harvard Univ. Press rev. ed. 1998).

n62. The author has also pursued this point in depth in Joseph M. de Torre, Natural Law and Human Rights:

Francisco de Vitoria (1486-1546), XV Vera Lex, Nos. 1 & 2, 2 (1995).

n63. See generally Juan Belda, La Escuela de Salamanca y la Renovacion de la Teologia en el Siglo XVI

(2000).

n64. See generally Joseph A. Schumpeter, History of Economic Analysis 51-378 (Elizabeth Boody

Schumpeter ed., 1954).

n65. Alejandro Antonio Chafuen, Christians For Freedom: Late-Scholastic Economics (1986).

n66. See generally Joseph M. de Torre, Freedom, Truth and Love: The Encyclical Centesimus Annus




151-65 (1992) (grounding the idea of a dynamic economy and democracy in the Catholic understanding of the

dignity of the human person whose intelligence applied to resources toward the common good is the real source

of wealth); Marjorie Grice-Hutchinson, The School of Salamanca: Readings in Spanish Monetary Theory

1544-1605 (1952).

n67. 1 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (R.H. Campbell et al.

eds., Liberty Fund 1981) (1776).

n68. Cf. Joseph M. de Torre, Generation and Degeneration: A Survey of Ideologies 87-92 (1995).

n69. The Rights and Obligations of Indians and Spaniards in the New World (Luciano Pere<tild n>a

Vicente ed., 1992) [hereinafter Rights and Obligations].

n70. Cf. Francis de Vitoria, De Indis, in Political Writings 231, 251 (Anthony Pagden & Jeremy Lawrence

eds., 1991) ("Aristotle certainly did not mean to say that such men thereby belong by nature to others and have

no rights of ownership over their own bodies and possessions ... such slavery is a civil and legal condition, to

which no man can belong by nature."). See generally Rights and Obligations, supra note 69.

n71. See International Law, in 21 The New Encyclopedia Britannica 789, 790 (15th ed. 2002) ("When in the

late 15th and 16th centuries Spain became the leading Western power, Francisco de Vitoria ... founded the

Spanish school of international law.").

n72. Pope Paul III wrote,

We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those

sheep of His flock who are outside into the fold committed to our charge, consider, however, that the Indians aretruly men and that they are not only capable of understanding the Catholic Faith but, according to our

information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, We define

and declare by these Our letters, or by any translation thereof signed by any notary public and sealed with the

seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that,

notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people

who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of

their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and

legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved;




should the contrary happen, it shall be null and have no effect.

Pope Paul III, Sublimus Dei, P 4 (1537) (discussing the enslavement and evangelization of the Indies natives),

available at http://www.papalencyclicals.net/Paul03/p3subli.htm (on file with the Ave Maria Law Review).

n73. Cf. Enchiridion Symbolorum Definitionum et Declarationum: de Rebus Fidei et Morum 362 (Henricus

Denzinger & Adolfus Sch<um o>nmetzer, S.J. eds., 1965) [hereinafter Enchiridion]. Spain did not withdraw

from the new lands, but pledged to implement those "Laws of the Indies" guaranteeing the equality of all.

Subsequently, Philip II, in accordance with those Laws, prohibited any further "conquest" by Spain, so that

when Legazpi reached the Philippines in 1565 he simply offered a friendship treaty by blood-compacts with the

chieftains of the archipelago and a peaceful evangelization. Cf. Belen L. Tangco, Contemporary Philippine

Democracy (1986-1989) in the Light of the Political Thought of St. Thomas Aquinas (a doctoral dissertation

approved with the degree of Meritissimus by the Pontifical University of Santo Tomas, Manila) (on file with the

Ave Maria Law Review).

n74. "The Laws and ordinances newly made by His Majesty for the government of the Indies and good

treatment and preservation of the Indians created a set of pro-Indian laws--so pro-Indian that they some [sic] had

to be revoked in Mexico and in Peru due to settler opposition, where the viceroy was killed when he attempted

to enforce them." Modern History Sourcebook, The New Laws of the Indies, available at

http://www.fordham.edu/halsall/mod /1542newlawsindies.html (on file with the Ave Maria Law Review).

n75. See Canons and Decrees of the Council of Trent 11 (H. J. Schroeder trans., 1978).

n76. See Modern History Sourcebook, supra note 74.

n77. See Lewis Hanke, All Mankind Is One: A Study of the Disputation Between Bartolome de Las Casas

and Juan Gines de Sepulveda in 1550 on the Intellectual and Religious Capacity of the American Indians 82-99

(1974).

n78. Cf. Francisco de Vitoria, De Indis Et De Jure Belli Reflectiones: Being Parts of Reflectiones

Theologicae XII, in The Classics of International Law (Ernest Nys & James Brown Scott eds., 1917); see

generally Ramon Hernandez, O.P., Derechos Humanos en Francisco de Vitoria (1984); Ramon Hernandez, O.P.,

Francisco de Vitoria: Vida y pensamiento internacionalista (1995).




n79. As Jacques Maritain said,

There is no need to add that the will of the people is not sovereign in the vicious sense that whatever would

please the people would have the force of law. The right of the people to govern themselves proceeds from

Natural Law: consequently, the very exercise of their right is subject to Natural Law. If Natural Law is

sufficiently valid to give this basic right to the people, it is valid also to impose its unwritten precepts on the

exercise of this same right. A law is not made just by the sole fact that it expresses the will of the people. An

unjust law, even if it expresses the will of the people, is not a law.

Jacques Maritain, Man and the State 48 (Catholic Univ. of Am. Press 1998) (1951).

n80. Yves R. Simon, Philosophy of Democratic Government 99 (1951) ("The danger of oppression by the

majority is so obvious that the history of modern democracy is haunted by the ambition of including the

minority in the controlling electoral body.").

n81. See discussion infra.

n82. See generally 1 & 2 William A. Hinnebush, O.P., The History of the Dominican Order (1966).

n83. See generally Adrienne Koch, The Philosophy of Thomas Jefferson (1943).

n84. See generally The Principles of Political and International Law in the Work of Francisco de Vitoria

64-65 (Antonio Truyol Serra ed., 1946) (Vitoria writes: "Indeed, there are many things in this connection which

issue from the law of nations, which, because it has a sufficient derivation from natural law, is clearly capable of

conferring rights and creating obligations.").

n85. Thomas Aquinas, Summa Theologica, Part I-II, Question 57, Article 3 (Fathers of the English

Dominican Province trans., Christian Classics 1981). Aristotle, on the contrary, had affirmed that some men are

"born slaves." Id.

n86. Francisco de Vitoria, On the Law of War, in Political Writings 293, 303 (Anthony Pagden & Jeremy




Lawrance eds., 1991) ("The sole and only just cause for waging war is when harm has been inflicted.").

n87. Francisco de Vitoria, On Law: Lectures on ST I-II. 90-105, in id. at 153, 200 ("But it remains true thatif a king proves to be a tyrant in government the commonwealth can depose him, because even if the

commonwealth has given away its authority it keeps its natural right to defend itself; if there is no other way, it

may reject its king.").

n88. Francisco de Vitoria, I On the Power of the Church, in id. at 45, 84 ("The pope is not the lord of the

whole world.").

n89. Hugo Grotius, 2 De Jure Belli Ac Pacis Libri Tres 550-53 (Francis W. Kelsey trans., William S. Hein

1995) (1925).

n90. Edward Dumbauld, The Life and Legal Writings of Hugo Grotius 73-74 (1969) ("For the law of nature

Grotius found a basis in human nature. This foundation would remain firm even if it should wickedly be

supposed that God does not exist or takes no concern in human affairs."). See also id. at 74 n.97.

n91. Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (C.H. Oldfather & W.A. Oldfather trans.,William S. Hein 1995) (1688) [hereinafter De Jure].

n92. Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature (Ian Hunter & David

Saunders eds., Andrew Tooke trans., 2003) (1673) [hereinafter The Whole Duty of Man].

n93. As one modern editor writes of Pufendorf in an introduction to his work, "it is, however, to be admitted

that Pufendorf was not in the domain of international law a pioneer to the same extent as, for instance, Francisco

de Vitoria or Hugo Grotius." De Jure, supra note 91, at 11a. Later in the same introduction it is said that,

although not denying the contribution of his own work, "[Pufendorf] mentions with expressions of veneration

the name of Hugo Grotius... ." Id. at 18a. The rest of the introduction is a short discussion of the particular views

Pufendorf takes up in his work, the greater number of which seem to be in accord with or drawn from the views

of Grotius.




n94. Id. at 166-232.

n95. Id. at 1132 (Pufendorf writes, "A law is civil with respect to its origin, which arises purely in the willof the supreme civil power.").

n96. See, e.g., Francisco Suarez, S.J., De Legibus, Ac Deo Legislatore (1612), reprinted in 2 The Classics of

International Law: Selections From Three Works 336 (James Brown Scott ed., Gwladys L. Williams et al. trans.,

William S. Hein & Co. 1995) ("The law in question does spring from the force of natural reason alone; yet it is

fitted, not for men in an absolute sense, but for men as congregated in some human society; and, consequently, it

is distinguished from the primary natural law as a secondary phase (so to speak) and is called the ius gentium.").

Clearly then, for Suarez the ius gentium is a part of the natural law and distinguished from a law arising from the

will of the lawgiver.

n97. The Whole Duty of Man, supra note 92, at 71-73.

n98. Id. at 73-75.

n99. Id. at 75-76.

n100. Id. at 76-77.

n101. Id. at 77-80.

n102. Id. at 80-94.

n103. See generally Vicente Beltran de Heredia, Domingo de Soto: Estudio biografico documentado (1961).




n104. See generally Suarez, supra note 96.

n105. See generally Luis de Molina, La Teoria Del Justo Precio (Francisco G. Camacho ed., 1981).

n106. See generally James Brodrick, The Life and Work of Blessed Robert Francis Cardinal Bellarmine,

S.J. 1542-1621 (1928).

n107. See generally Jean Bodin, Colloquium of the Seven About Secrets of the Sublime (Marion Leathers

Daniels Kuntz trans., 1975).

n108. See generally Richard Hooker, Tractates and sermons (W. Speed Hill ed., Harvard Univ. Press 1990)

(1553).

n109. Alberici Gentilis, 3 De Iure Belli 37 (Thomas Erskine Holland ed., London, Clarendoniano 1877)

("Sed hanc sententiam, de bello propter religionem non mouendo, probatam omnibus, nemine excepto, testatur

doctissimus a Vitoria." ["But in fact this way of thinking, concerning not going to war on account of religion,

[that is] approved by all [and] excluded by no one, was attested to by the most learned Vitoria."]). He also cites

Vitoria for several other propositions, including, inter alia, "Et subditus non iuste interficit innocentem exmandato principis." ("And the subject does not rightfully kill the innocent by reason of a prince's command.") Id.

at 120. Translation from the Latin is by Albert Anthony Starkus.

n110. See generally Rolf Lieberwirth, Christian Thomasius (Nachfolger 1955).

n111. See generally Francis Hutcheson, On Human Nature (Thomas Mautner ed., 1993).

n112. See generally David Hume, A Treatise of Human Nature (L.A. Selby-Bigge & P.H. Nidditch eds., 2d

ed. 1978).




n113. See generally Jeremy Bentham, The Limits of Jurisprudence Defined (Charles Warren Everett ed.,

1945).

n114. The Declaration of Independence para. 2 (U.S. 1776) ("We hold these truths to be self-evident, that

all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among

these are Life, Liberty and the pursuit of Happiness.").

n115. See, e.g., George Washington, Farewell Address (Sept. 19, 1796), in The American Republic:

Primary Sources 72, 76 (Bruce Frohnen ed., 2002) ("Of all the dispositions and habits which lead to political

prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of

Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties

of Men and citizens.").

n116. Lincoln stated in the Gettysburg Address,

It is rather for us to be here dedicated to the great task remaining before us - that from these honored dead we

take increased devotion to that cause for which they gave the last full measure of devotion - that we here highly

resolve that these dead shall not have died in vain - that this nation, under God, shall have a new birth of

freedom - and that government of the people, by the people, for the people, shall not perish from the earth.

Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863), in Three Lincoln Masterpieces 144, 144 (BenjaminBarondess ed., 1954) (emphasis added).

n117. See generally Andre Trannoy, Montalembert (1947).

n118. See generally Juan Donoso Cortes, Selected Works of Juan Donoso Cortes (Jeffrey P. Johnson ed. &

trans., 2000).

n119. See generally Frederic Bastiat, Providence and Liberty (Raoul Audouin trans., 1991).

n120. See generally Roland Hill, Lord Acton (2000); John Emerich Edward Dalberg-Acton, First Baron




Acton, Selected Writings of Lord Acton: Essays in Religion, Politics, and Morality (J. Rufus Fears ed., 1988).

n121. See generally Jacques Maritain, An Essay on Christian Philosophy (Edward H. Flannery trans., 1955).

n122. See generally Alexis de Tocqueville, Democracy in America (Alfred A. Knopf 1994) (1835).

n123. Declaration of the Rights of Man and of the Citizen art. 6 (Fr. 1789) (emphasis added).

n124. Tocqueville writes,

I hold it to be an impious and an execrable maxim that, politically speaking, a people has a right to do

whatsoever it pleases; and yet I have asserted that all authority originates in the will of the majority. Am I then

contradicting myself?

A general law - which bears the name of Justice - has been made and sanctioned, not only by a majority of this

or that people, but by a majority of mankind. The rights of every people are consequently confined within thelimits of what is just. A nation may be considered as a jury which is empowered to represent society at large,

and to apply the great and general law of Justice.

Alexis de Tocqueville, The Tyranny of the Majority, in On Democracy, Revolution, and Society 99, 99 (John

Stone & Stephen Mennell eds., 1980).

n125. See supra notes 6, 13, 14 and accompanying text.

n126. Stephen Ellenburg, Rousseau's Political Philosophy: An Interpretation from Within (1976). Ellenburg

writes,

Like a natural body, a body politic has its own "life." Its life is "the self common to the whole [le moi commun

au tout], the reciprocal sensibility and internal correspondence of all its parts." Its common self is a "will," a




given "general will" comprising the social identity shared by all mutually dependent members of a determinate

common life.

Id. at 101-02 (alteration in original).

n127. See generally V.I. Lenin, What Is to Be Done? (S.V. Utechin ed. & trans., Patricia Utechin trans.,

1963); see also Robert Service, Lenin: A Biography (2000).

n128. See generally Nicholas Farrell, Mussolini: A New Life (2003).

n129. See generally Klaus P. Fischer, Nazi Germany: A New History (1998); John Toland, Adolf Hitler

(Anchor Books 1992) (1976).

n130. See generally Openness to Reality, supra note 59, at 11-19 (tracing American and international trends

toward pragmatism to the psychology of William James and its effect on culture, human rights, and particularly

the university where the fundamental and natural question, "what is truth," now arouses perplexity and

indifference, weakened by a pragmatic inquiry into the question of "what is the use of truth?" which becomes an

extremely dangerous ground for solving legal, economic, and political problems in the world).

n131. See Enchiridion, supra note 73.

n132. See Contemporary Philosophical Issues, supra note 9.

n133. Ernest Nys, Le Droit de guerre et les precurseurs de Grotius, 15 Revue de Droit international et legal

comparee (1882).

n134. See Vitoria, supra note 86.




n135. See Tranquilitas Ordinis, supra note 8, at 40 (highlighting Vitoria's seminal contribution to these

ethical issues with his conception of a "community of nations" as a framework for international law and the

forum for universal consensus through dialogue on the basis of equality).




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