Abstract
Francisco de Vitoria’s reflection on the role of the law is a key element of his work. The topic is the leitmotif of his oral and written legacy (See Langella in Teología y ley natural. Estudio sobre las lecciones de Francisco de Vitoria. BAC, Madrid, 99–152, 2011); with its various aspects, it was essential to the Master of Theology and Most Worthy Prime Professor at the University of Salamanca in solving a number of issues, ranging from the limits of civil and ecclesiastical powers to the question of Indians and their rights. This work aims to show that Vitoria, on the basis of his concept of the law, resolved a series of issues: not only those addressed by the relectio De Indis, to which he owes his fame, but also other serious matters, such as the limits of civil power—specifically of sovereignty, at a very delicate moment for nascent nation states—or of ecclesiastical power, with special regard to a spiritual reformation of the Church that the whole of Christianity perceived as necessary and indispensable.
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- 1.
See Langella 2013, 25–69.
- 2.
In his commentary to I–II, qq. 90–108, dating back to the academic year 1533–1534, Vitoria initially defined the very essence of the lex, a definition that, as such, may be applied to any kind of law. Just like Saint Thomas Aquinas, despite understanding thoroughly the etymology of the word lex defined by Isidore of Seville in his Etymologiae (II, 10), Vitoria states that the law is the rule and measure of human acts, and that the word ley (law) comes from Latin legare (to bond), as it poses an obligation. Therefore, it belongs to reason, as it is the duty of the reason to issue commands. In other words, law in itself carries the obligation to act, as it is the rule and measure of human acts. See Vitoria 2010, 88 (q. 90, a. 1). See also Vitoria 1991, 155–157.
- 3.
- 4.
During the academic year 1533–1534, Charles V visited the city of Salamanca and its University. Ramón Hernández Martín states that at the same time as the commentary to the De legibus, the Emperor attended a lectio given by Vitoria (precisely, on Friday 19th June 1534). See Hernández Martín 1995, 128–129. Indeed, Charles V spent a few days in Salamanca during that period, more precisely from 17th to 21st June 1534 (See De Foronda y Aguilera 1914, 389). According to Águeda M. Rodríguez Cruz, on the Friday following the eighth day of the festival of the Corpus Domini of 1534, Emperor Charles V listened to Francisco de Vitoria, sitting at one the desks, setting down one of the benches nearby. The scholar based herself on ms. 3825, Carlos I de España y V de Alemania. Varias noticias y documentos para su historia, f. 336v, preserved at the Biblioteca Nacional de Madrid (See Rodríguez Cruz 1990, 52). See also Heredia 1939, 119. Nevertheless, no record of this event can be found in the Libros de Claustros of 1534 (See Archivo de la Universidad de Salamanca, Libros de Claustros, libro XII, ff. 30–33), or in the side notes to Biblioteca Apostolica Vaticana, ms. Ott. lat. 1000, which includes the classes that Vitoria gave in 1533–1534.
- 5.
With regard to the issue as to whether or not the king is subject to the law, it should be remarked that only starting from the commentary De Legibus (academic year 1533–1534) Vitoria adopts Saint Thomas’ division between vis directiva and vis coactiva. As a matter of fact, in the relectio De potestate civili of 1528 Vitoria did not mention said distinction at all, although he already supported the theory according to which the legislator is also subject to the obligations set out by law. The arguments supporting this thesis were merely mentioned, and were basically limited to acknowledging that the obligatory character of the law is created by the king or the res publica. In the same way as the laws created by the res publica oblige all subjects, the laws created by the king also oblige the king himself. Vitoria also observed that the same occurs with the agreements, which are binding, although they are freely made: “Quia in aristocratico principatu senatus consulta obligant ipsos senatores auctores illorum, et in populari regimine plebiscita obligant ipsum populum. Ergo similiter leges regiae obligant ipsum regem. Et licet sit voluntarium regi condere legem, tamen non est in voluntate sua non obligari aut obligari. Sicut in pactis; libere enim quisquis paciscitur, pactis tamen tenetur”. Vitoria 1960, 191. “There is confirmation of this in the practice of aristocratic principates, where the decrees of the senate are binding on the senators who pass them, and in popular governments, where the decrees of the plebs are binding on the whole populace. Hence the laws of kings are also binding on the king. The king is free to make laws as he chooses, but cannot choose whether to be bound by the law or not. It is similar to a treaty: anyone may choose whether or not to sign the treaty, but once made he is not free to choose whether he will be bound by its terms”. Vitoria 1991, 40. These arguments are further developed and expanded in the relectio that Vitoria gave during spring 1534—De potestate Papae et Concilii-, precisely resorting to the distinction between vis directiva and vis coactiva, i.e. debating anew what he discussed during the classes he gave during that very same year.
- 6.
- 7.
- 8.
- 9.
- 10.
- 11.
- 12.
“Non licet principi condere legem quae non spectet ad bonum commune, alias tyranna est lex, non iusta, quia est persona publica quae ordinatur ad bonum commune et est minister reipublicae”. Vitoria 2010, 92 (q. 90, a. 2). “A prince may not invent a law which has no regard for the common good, since otherwise the law will be tyrannical, not just. The prince fulfils a public role which is itself ordained for the public good, and he is a servant of the commonwealth”. Vitoria 1991, 157. Not only is he not entitled to create a law that is not aimed at the common good, but such an event could not take place as said law would not be a law: “Bene licet principi bonum privatum suum respicere, sed non per legem. Secundo dico quod non solum non licet, sed nec potest fieri, quia talis lex non esset lex, et si constaret quod nullo modo respicit bonum commune, non esset ei parendum”. Vitoria 2010, 92 (q. 90, a. 2). “A prince may of course look out for his own private good, but not through the law. Second, I assert that a law cannot be against the common good, not only de iure, but also de facto, because in that case the law would be no law. If it were established that a law in no way concerned the common good, that law should not be obeyed”. Vitoria 1991, 157.
- 13.
“Hoc enim interest inter regem legitimum et tyrannum, quod tyrannus ordinat regimen ad proprium quaestum et commodum, rex autem ad bonum publicum ut tradit Aristoteles 4 Politicorum c. 10”. Vitoria 1960, 824. “This is the difference between a legitimate king and a tyrant: the tyrant orders the government for this own profit and convenience, whereas the king orders it for the common good, as Aristotle demonstrates (Politics 1295a 19–21)”. Vitoria 1991, 303.
- 14.
Erasmus, in his Institutio principis christiani, also states that anarchy is far worse than tyranny: “Anarchia quavis tyrannide perniciosor”. Erasmus 1703, 594 f.
- 15.
“Certe videtur, quod leges, quae sunt convenientes rei publicae, obligent etiam si ferantur a tyranno, non quidem, quia a tyranno latae, sed ex consensu rei publicae, cum sanctius sit, ut serventur leges a tyranno latae, quam quod nullae serventur. Et profecto esset in apertam perniciem rei publicae, si principes, qui non habent iustum titulum, occuparent regnum, quod nulla essent iudicia nec aliquo modo possent malefactores puniri aut coerceri, cum non sit tyrannus iudex legitimus, si leges eius non obligant”. Vitoria 1960, 193. “It seems clear that laws which serve the commonwealth’s purposes are binding, even when passed by a tyrant; not, to be sure, because they are passed by the tyrant, but because they have the commonwealth’s consent, since utility and respect are better served by obedience to a tyrant’s laws than by disobedience to all law. It would obviously be to the detriment of the commonwealth, were some prince with no just title to topple the government, that there should be no courts, no way to arraign criminals, no punishment for those who commit injustice. Yet this would be the inevitable result if the law of a tyrant emperor were not binding”. Vitoria 1991, 42.
- 16.
As is the case for all other laws, the “natural law” also partakes in and is a reflection of the eternal law. In this regard, it must be stressed that despite the fact that all laws, in essence, participate in the eternal law, there is no doubt that the lex naturalis boasts a privileged relationship with it. See Vitoria 2010, 118 (q. 93, a. 3). See also Vitoria 1991, 168. Because of this, it has the nature of law to the highest degree. Finally, the natural law, although ignored, is in any case a real law and does not require to be promulgated in order to be obliging—see Francisco de Vitoria 2010, 98 (q. 90, a. 4). See also Vitoria 1991, 158–163—and, hence, it cannot be dispensed or revoked. The natural law is a reflection of the primordial needs of human nature, and therefore, it is just like nature itself: single, universal and immutable. See Lottin 1948, 97–100. All precepts contained therein are inscribed in a first, universal principle: Bonum est amandum et malum fugiendum. Moreover, as far as the first principles are concerned, the natural law is the same for everyone, both as regards its knowledge, and as regards the validity and truth of its principles. With regard to these, indeed, it is known by all men and is always true and just. In the same way as the first speculative principles are known by everyone, and are always valid, the same must be said for the first practical principles, due to their similarity with the speculative principles. However, as regards the conclusions that can be drawn from the first principles of the natural law, they are not always known by men, be it because of ignorance, or owing to the many circumstances that must be taken into account in order to know what is right and what is not. This means that the further the conclusions are from the first principles, the more mistaken the intellect can be about them. Indeed, drawing universal conclusions from some principles, to be applied to specific actions, requires the taking into account of several circumstances that may invalidate the correctness of the reasoning and is therefore the prerogative of the wise man. This leads to the acceptance of a progress in the knowledge of the natural law, in terms of clarification, that does not demonstrate an alteration in the lex naturalis but rather, a development in the knowledge that humans have of it. See García 1978, 124. Finally, as concerns the immutability of the natural law, it should be stated that it may change by “addition” only, this meaning that only circumstances may be added to it to improve it. On the contrary, it cannot be changed by “subtraction”, this meaning that no principle can ever be abolished. Indeed, the first principles can never be altered by subtraction, although the secondary principles can vary. An instance of this can be seen in the conclusions drawn from the first principles. In actual fact, however, also concerning the secondary principles, the change does not properly concern the law; rather, the change takes place because of the variability of the matter to which it applies. The third property of the natural law implies that human or divine authorities cannot dispense with it. See Vitoria 2010, 194 (q. 100, a. 8).
- 17.
Through human reason, the eternal law reveals itself as natural and human law. It is the source and origin of all right laws, as they receive their mandatory force and normative character from the eternal law. The eternal law, the ratio governing the universe, governs all rational and irrational beings with its wisdom. However, if everything is subject to the eternal law by its own inclination, as far as knowledge is concerned, only the rational creatures are subject to it. See Vitoria 2010, 120 (q. 93, a. 6). See also Vitoria 1991, 168–169. Therefore, men are subject to the law in two different ways: by nature and because they are rational beings. This latter aspect is the basis of the lex naturalis. Strictly speaking, it not only belongs to reason, but it is naturally inscribed in the minds and hearts of men (the evidence of this existence was not only the authority of Saint Paul’s, Rom 2:14, who spoke of a Law written on the hearts of men, but, more importantly, the promulgation of God’s Decalogue, whose principles, according to Saint Thomas, Summa Theologiae, II–II, q. 122, a. 1, all belong to justice or to judicial precepts). Hence, not only does it conform to reason, but it is also intrinsically related to the same needs of human nature: reason, by examining the natural inclination of men, prescribes what men must or must not do to be fulfilled.
- 18.
Natural law enunciates the intrinsic needs of the human being. Civil positive laws, or ecclesiastical laws, instead, indicate what is right, as it has been ordered or determined by the human will for the purpose of the good operation of the res publica or of the common good. Also in human positive laws, this is about an activity of reason (ordinatio rationis) that enunciates a norm or rule having a mandatory character. Civil law, in fact, is the result of human reason, just like natural law. The latter, however, is prior to positive law, and is the basis of the civil human law. Not only does this origin have an impact on the moral and juridical value of civil laws, but also on the very mandatory nature of their character; these, in actual fact, are not authentic laws if they are not derived from natural law. In the case of civil law, this is a determination or application of the common principles of natural law to specific actions. Therefore, by way of example, the right to property is derived from natural law, but the act of determining how to share the goods of the earth is not clear within this natural law; hence, with regard to the common good, human law will choose, among several determinations, the best one. See Francisco de Vitoria 1934, 74–75 (q. 62, a. 1).
- 19.
See Seel 1989, 70.
- 20.
See Aristotle, Politics, III, 10, 1281a 35–40. See also Aristotle, Politics, III, 11, 1282b 5–6.
- 21.
See Aristotle, Politics, III, 13, 1283b 40–45.
- 22.
See Aristotle, Politics, III, 16, 1287a 20–35.
- 23.
Vitoria also states that it is not only the intention of every legislator to make men good, but that it is the very quality of the law that makes subjects good. In doing so, however, he also highlights that the common good is made by private goods, and that it is impossible for somebody to behave with regard to the common good and, at the same time, to behave badly with regard to themselves. Hence, the aim of the prince is to make men good, and to induce them to virtue, as the common good is the aim of the legislator and the ultimate aim of the law. Thus, it is necessary that the law be especially aimed at the common good, which is happiness. This is the reason why Aristotle states that the right laws produce happiness. However, most of happiness is virtue, and one cannot be a good citizen simply by being wealthy, if one does not love virtue. In this way, the legislator intends to make men good. Without a doubt, this does not mean that, for Vitoria, the various authorities are no different: as a matter of fact, the civil princes wish to make men good within the limits of human happiness, while the ecclesiastic princes mean to lead them to eternal happiness. See Vitoria 2010, 114 (q. 92, a. 1). See also Vitoria 1991, 164–167. In this regard, in q. 10, a. 8, of II–II, he states: “Disputando an lex civilis habeat solum reddere homines pacificos et ponere pacem inter cives, an etiam cum hoc debeat intendere homines esse bonos, determinavimus quod intentio principis condentis legem est et debet esse facere homines bonos”. Vitoria 1932, 192 (q. 10, a. 8).
- 24.
For the law to be applied, its promulgation is necessary. Positive human law does not oblige anyone if it is not promulgated, and has no strength or validity. Vitoria demonstrates this by asserting that issuing a law is ordering, but ordering is promulgating. If the prince issued a law that was obliging from the very moment of its creation to, for instance, sell the primogeniture, and somebody had sold it before, the contract would not be valid. On the contrary, the law would have been valid if it had been promulgated. The legislator is a public representative and cannot create a law without publicly promulgating it. For the human law to oblige, it is not sufficient that it is promulgated privately in a group, or among wise men. It needs to be solemnly promulgated. The prince only has the authority to create the law due to him being a public representative. Vitoria demonstrates this with an argument of reason: as a matter of fact, human laws must be aimed at easing the salvation of souls. If a private promulgation was sufficient, this would represent a great obstacle for men, as the obligations set forth could be ignored due to the ignorance of many. In any case, although a solemn promulgation is necessary for the human law to oblige, it is not necessary that it be promulgated before the whole community. See Vitoria 2010, 102–105 (q. 90, a. 4). See also Vitoria 1991, 158–163.
- 25.
As a matter of fact, comparing the classes that Vitoria dedicated to the explanation of prudence (See Vitoria 1932, 352–389, qq. 47–56) and those dedicated to justice, it is evident that Vitoria was more interested in this latter virtue (See Vitoria 1934–1935, vol. III, IV, and part of vol. V). About the application of the law and the “supra iustitiam” or “epiqueya” in Vitoria see Cruz 2009, 81.
- 26.
See Francisco de Vitoria 1934, 25 (q. 58, a. 6). As has already been stated, according to Aristotle, the laws must be supreme, provided that they were perfectly created. Of course, the one or more persons holding the power are supreme in all those cases where the laws cannot rule with precision because, as also stated by the Stagirite, it is not easy to give general rules that may apply to all cases (See Aristotle, Politics, III, 11, 1282b 5–10). Vitoria appears to be well aware of the difficulty pointed out by Aristotle while stating that the king, first of all, must acquire the virtue of justice as a habitus.
- 27.
“Et sic patet iustitiam esse perfectiorem”. See Vitoria 1934, 27 (q. 58, a. 12).
- 28.
See Vitoria 1934, 27 (q. 58, a. 12).
- 29.
See Urdánoz 1960, 412.
- 30.
See Vitoria 1960, 445.
- 31.
See Vitoria 1960, 484.
- 32.
Vitoria reflects also on the topic of the mutability of the human laws, especially by means of repeal and dispensation. He states that repealing a law means to annul it, while the dispensing with a law means the competent authority being exempt from the obligation to comply with a law because of reasonable cause: “dispensare est tollere obligationem et relegare ius ad quod quis tenebatur”. Vitoria 2010, 164 (q. 97, a. 4). See also Vitoria 1991, 187. In other words, “dispensing” actually means to remove an obligation and to set aside the right to which someone was subject. The reason on which the law is based, however, remains invariable because, should it vary, the reason of the law would cease. Vitoria also states that in the case of the natural right or the divine right, a dispensation cannot be obtained if it is not based on a rational cause. With regard to the human right, however, the dispensation annuls the obligation of the positive law, while the obligation set out by the natural right remains: those who resort to a dispensation of this kind, therefore, avoid their part of the responsibility and offend those who do comply with the law. See Vitoria 2010, 166 (q. 97, a. 4). See also Vitoria 1991, 186–189. Moreover, one thing is the dispensation with the law, which still requires a part of the community to comply with it, and quite another is its repeal, which applies to the whole community. As a consequence, the legislator should pay more attention to dispensation, where a limited number of people are exempt from complying with the law, rather than on repeal where, since the law is no longer, no guilt is present. See Vitoria 2010, 160 (q. 97, a. 2). See also Vitoria 1991, 184–185.
- 33.
See Vitoria 1960, 451.
- 34.
See Vitoria 1960, 447.
- 35.
See Vitoria 1960, 472.
- 36.
See Vitoria 1960, 451.
- 37.
See Urdánoz 1960, 420.
- 38.
See Vitoria 1960, 453.
- 39.
Of course, the immutability of the natural law implies that human or divine authorities cannot dispense with it. Vitoria points out that, as for human authority, it is clear that it is in charge of the custody and safeguarding of the natural and divine laws and, consequently, does not have the competence to modify them. See Vitoria 2010, 194 (q. 100, a. 8).
- 40.
See Vitoria 1960, 454.
- 41.
See Vitoria 1960, 454–455.
- 42.
- 43.
Vitoria states that in the case of natural right or divine right, a dispensation cannot be obtained if it is not based on a rational cause. With regard to human right, however, the dispensation annuls the obligation of positive law, while the obligation set out by natural right remains: those who resort to a dispensation of this kind, therefore, avoid their part of the responsibility and offend those who do comply with the law. See Vitoria 2010, 166 (q. 97, a. 4). See also Vitoria 1991, 186–189.
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One thing is the dispensation from the law, which still requires a part of the community to comply with it, and quite another is its repeal, which instead applies to the whole community. As a consequence, the legislator shall pay more attention in the case of dispensation, where a limited number of people do not comply with the law, rather than in the case of repeal where, since the law is no longer, no guilt is present: “Quando autem omnes sunt exempti, nulli fit iniuria”. Vitoria 2010, 160 (q. 97, a. 2) and also Vitoria 1991, 185 (“but when all are exempted, no one is offended”). See also Vitoria 1960, 455.
- 45.
See Vitoria 1960, 454.
- 46.
See Thomas Aquinas, Summa Theologiae, I–II, q. 96, a. 5. See also Francisco de Vitoria 2010, 150–154 (q. 96, a. 5) and Vitoria 1991, 180–182. Vitoria clarified that there are two ways in which one can be subject to the law: the first way is the way of the vis directiva, to which everyone is subject; the second way is the way of the vis coactiva, to which not everyone is subject. The legislator is not obliged by the coercive force, nor could he be punished by a superior for not complying with the law. In fact, according to Vitoria, one cannot oblige oneself. However, as regards directive force, it obliges everyone. See also Vitoria 1960, 455–456.
- 47.
See Vitoria 1960, 456.
- 48.
- 49.
Moreover, “Facta tali declaratione et decreto concilii, si Summus Pontifex contrarium mandaret, possent vel episcopi, vel concilium provinciale etiam implorare principes ut quilibet eorum resisteret Summo Pontifici, impediendo mandata eius”. Vitoria 1960, 486.
- 50.
See Juan de Jesús María 1947, 118.
- 51.
See Vitoria 1960, 488. It should be noted that, except for this proposition, Vitoria always refers to the legitimate Council, convened with the authority of the Pope.
- 52.
See Vitoria 1960, 460.
- 53.
This is how he completed his reasoning in proposition no. 14: “Ergo si non obstante tali decreto concilii, adhuc Papa posset dispensare, in quo salvatur ista superioritas concilii supra Papam? Respondetur quod satis est ad hoc ut Papa teneretur, et male facit contraveniendo decreto concilii, vel sufficit iterum quod Papa non possit tollere talem legem nec irritare si concilium prohiberet, sed posset dispensare quia, manente tali lege, spectat ad eum omnis actus iurisdictionis in Ecclesia”. Vitoria 1960, 473.
- 54.
See Vitoria 1960, 482.
- 55.
Due to this strong criticism against the Roman Curia, Pope Sixtus V ordered this relectio to be included in the Index Librorum Prohibitorum. See Beltrán de Heredia 1939, 124.
- 56.
Vitoria 1960, 467. This is how he concluded this twelfth proposition: “distinguendo tempora, ut dicunt iuristae, et concordando iura. Tempore Conciliorum antiquorum erant Pontifices similes Patribus Conciliorum, quod ad retinendum et revocandum ab inmoderata et effusa licentia dispensandi non erat opus huiusmodi decreto. Immo si bene revolvantur iura et historiae apud antiquos patres non praesumebant Pontifices decreta Conciliorum ita faciliter et passim dispensare, sed tanquam oracula divina observabant. Nec solum non ita temere, sed fortasse nec semel dispensabant contra statuta Conciliorum, maxime circa leges graviores”. Vitoria 1960, 471.
- 57.
Vitoria bases himself on the authority of Thomas Cajetan in asserting that the Pope, in dispensing with laws and decrees of the Council or of another Pope, may fail and commit a mortal sin, as he is not entitled to dispense “pro suo arbitrio et sine causa rationabili, etiam ubi nihil continent iuris divini”. Vitoria 1960, 453.
- 58.
See Vitoria 1960, 458.
- 59.
See Vitoria 1960, 460.
- 60.
Vitoria 1960, 461.
- 61.
However, in proposition 13, while recommending moderation, Vitoria points out that this order “non deberet apponi in multis legibus, sed solum in paucis, hisque gravissimis et valde necessariis”. Vitoria 1960, 471.
- 62.
“Tale decretum non facit per se quod Papa non possit dispensare, sed solum quod non liceat hoc”. Vitoria 1960, 472. This order does not breach his authority, which is overarching. Moreover, Vitoria states that for the Pope, this decree is a tool against the impertinence of princes and insolent men, and in this way scandal and gossip by many who speak negatively about the Roman Curia would be avoided. See Francisco de Vitoria 1960, 482–483.
- 63.
See Juan de Jesús María 1947, 131.
- 64.
- 65.
See Thomas Aquinas, Summa Theologiae, I–II, q. 96, a. 4.
- 66.
In the same way as the law must be created for the common good, the dispensation must also exist for the common good: “Secundo probatur. Quia sicut leges debent fieri pro bono communi, (debet enim lex nullo privato commodo, sed pro utilitate omnium conscribi, c. Erit autem lex 4 d., ut ait Isidorus) ita etiam dispensatio, quae est quasi lex quaedam, debet habere rationem boni communis, alias erit dissipatio et non dispensation”. Vitoria 1960, 454–455.
- 67.
See Vitoria 1960, 478.
- 68.
See Thomas Aquinas, Summa Theologiae, I–II, q. 96, a. 4.
- 69.
- 70.
According to Vitoria, “dispensatio, quae est quasi lex quaedam, debet habere rationem boni communis, alias erit dissipatio et non dispensation”. Vitoria 1960, 454–455.
- 71.
See Urdánoz 1960, 138–139.
- 72.
See Langella 2014, 57–85.
- 73.
- 74.
- 75.
See Vitoria 1934, 82 (q. 62, a. 1).
- 76.
- 77.
Vitoria 1934, 7 (q. 57, a. 2).
- 78.
Vitoria 1934, 14 (q. 57, a. 2).
- 79.
See Vitoria 1934, 13–14 (q. 57, a. 2).
- 80.
“Ius naturale est bonum de se sine ordine ad aliud”. Vitoria 1934, 14 (q. 57, a. 3).
- 81.
See Pereña Vicente 1952, 620.
- 82.
See Pizzorni 1988, 575.
- 83.
- 84.
See Urdánoz 1960, 598–600.
- 85.
- 86.
“Apud omnes enim nationes habetur inhumanum sine aliqua speciali causa hospites et peregrinos male accipere. E contrario autem humanum et officiosum habere bene erga hospites; quod non esset si peregrini male facerent, accedentes ad alienas nationes. Secundo, a principio orbis (cum omnia esset communia) licebat unicuique in quamcumque regionem vellet, intendere et peregrinari. Non autem videtur hoc demptum per rerum divisionem”. Vitoria 1960, 706. See also Vitoria 1991, 278.
- 87.
- 88.
“Ut vim atque iniuriam propulsemus: nam iure hoc evenit, ut quod quisque ob tutelam corporis sui fecerit. Iure fecisse existimetur, et cum inter nos cognationem quandam natura constituit, consequens est hominem homini insidiari nefas ese”. Digesta I, 1, 3.
- 89.
- 90.
- 91.
See Vitoria 1960, 720–721. See also Vitoria 1991, 287–288. According to Vitoria, a serious breach of natural right is just cause for an intervention, known as intervention humanitatis causa. In this regard, in the commentary to the De Legibus of 1534, q. 105, a. 2, an affirmation is present, concerning respect for the life of innocents, that allowed Vitoria to perform a more in-depth analysis: “Rex pro nulla causa et pro nulla utilitate reipublicae potest condere legem quod occidantur innocentes, etiam contra infedeles, quia est contra praeceptum iuris naturalis”. Vitoria 2010, 270 (q. 105, a. 2). See also Vitoria 1991, 204.
- 92.
See Todorov 1982, 191.
References
Cruz JC (2009) Fragilidad humana y ley natural. Cuestiones disputadas en el siglo de Oro. University of Navarra, Pamplona
Cruz R, María Agueda (1990) Historia de la Universidad de Salamanca. Fundación Ramón Areces, Congregación de Santo Domingo, Salamanca
de Foronda y Aguilera M (1914) Estancias y viajes del Emperador Carlos V, desde el día de su nacimiento hasta el de su muerte. Sucesores de Rivadeneyra, Madrid
de Heredia VB (1939) Francisco de Vitoria. Labor, Barcelona-Madrid-Buenos Aires-Rio de Janeiro
de Jesús María J (1947) ¿Francisco de Vitoria, conciliarista? Ephemerides carmeliticae 1:103–148
de Vitoria F (1932–1935) Comentarios a la Secunda secundae de Santo Tomás. In: de Heredia VB (ed) vol I–V. Biblioteca de Teólogos Españoles, Salamanca
de Vitoria F (1960) Obras de Francisco de Vitoria: Relecciones Teológicas. Critical edition of the Latin text. Spanish version, general introduction and introduction of the juridical-theological doctrine by Father Teófilo Urdánoz. Ed. Católica BAC, Madrid
de Vitoria F (1991) Political writings. In: Pagden A, Lawrance J. (eds) Cambridge University Press, Cambridge
de Vitoria F (2010) De legibus. Introduction by Langella S transcription and notes by García JB, Langella S translated into Spanish by García PC and translated into Italian by Langella S. Ediciones Universidad de Salamanca, Salamanca
Erasmus D (1703) Opera omnia. Lugduni Batavorum: Petrus Vander (reprint 1961–1962. Hildesheim: Georg Olms)
García JB (1978) El tratado ‘De iustitia et iure’ (1590) de Pedro de Aragón. Ediciones Universidad de Salamanca, Salamanca
Langella S (2011) Teología y ley natural. Estudio sobre las lecciones de Francisco de Vitoria. Madrid, BAC
Langella S (2013) La ciencia teológica de Francisco de Vitoria y la Summa theologiae de santo Tomás de Aquino en el siglo XVI a la luz de textos inéditos. SEE, Salamanca
Langella S (2014) Capax dei, capax dominii: la questio de indis en Francisco de Vitoria. In: JM Beneyto, Román Vaca C (eds) New perspectives on Francisco de Vitoria. Does international Law lie at the heart of the origin of the modern world? CEU Ediciones, Madrid, pp 57–85
Lottin O (1948) La loi en général, La définition thomiste et ses antécédents. In: Psychologie et morale au XIIe et XIIIe siècles. Problèmes de morale. Abbaye du Mont César-Duculot, Louvain, Gembloux, pp 97–100
Martín RH (1995) Francisco de Vitoria. Vida y pensamiento internacionalista. Madrid, BAC
Pizzorni R (1988) Lo ius gentium nel pensiero del Vitoria. In: I diritti dell’uomo e la pace nel pensiero di Francisco de Vitoria e Bartolomé de las Casas. Massimo, Milan, pp 569–583
Seel G (1989) La giustificazione del dominio nella Politica di Aristotele. In: Berti E, Valditara LMN (eds) Etica, Politica, Retorica. Studi su Aristotele e la sua presenza in età moderna. Japadre Editore, L’Aquila-Rome, pp 57–73
Todorov T (1982) La conquête de l’Amérique, La question de l’autre. Éditions du Seuil, Paris
Torres M (1931–1932) La sumisión del soberano a la ley en Vitoria, Vázquez de Menchaca y Suárez. Anuario de la Asociación Francisco de Vitoria 4:129–154
Urdánoz T (1960) Introducción. In: Obras de Francisco de Vitoria: Relecciones Teológicas, critical edition of the Latin text, Spanish version, general introduction and introduction of the juridical-theological doctrine by Father Teófilo Urdánoz. Ed. Católica BAC, Madrid
Vicente LP (1952) El concepto del derecho de gentes en Francisco de Vitoria. Revista española de Derecho internacional 5:603–628
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Langella, S. (2017). The Sovereignty of Law in the Works of Francisco de Vitoria. In: Beneyto, J., Corti Varela, J. (eds) At the Origins of Modernity. Studies in the History of Law and Justice, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-319-62998-8_3
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