The Law of Nations and the Salamanca School of Theology

THE LAW OF NATIONS AND THE SALAMANCA SCHOOL OF THEOLOGY* T HE Salamancan theologians followed faithfully the teachings of the Angelic Doctor on the concept of law in general and of the natural law in particular. They were able to give a new actuality to both of them by their dynamic incorporation of the ethical-juridical problems of their time. But their progressive labor and creative genius are most manifest in the field of the law of nations. For here they were able not only to contribute developments and applications in close conformity with Thomistic principles, but to make original advances as well in a doctrine that has always been embodied in philosophical-juridical studies. The names of these great theologians will always be associated with the problems of the law of nations and with international law, since their intellectual fostering of these sciences is universally recognized. To call Vitoria the founder or the father of the law of nations and of international law may perhaps meet with some opposition , since the famous " jus gentium " has been spoken of from the days of antiquity. Therefore, to evaluate the doctrinal originality of the classical theologians it is necessary to compare their interpretations with those that preceded them. As signposts along the way we shall briefly indicate the Roman, Isidorian and Thomistic ideas pertaining to our subject. HmTORICAL ANTECEDENTs t RomanLaw In the Pandects of Justinian, edited in the middle of the sixth century (533), is found the very same matter which had been inherited from the Roman jurists of classical times. One can *In tribute to Francis de Vitoria, 0. P., Founder of International Law, on the occasion of the fourth centenary of his death (August 1~, 1546) . 186 THE LAW OF NATIONS 187 easily recognize a twofold division of law in the doctrine of these jurists, with distinct concepts..in the terms employed. Gaius (160?) established the first twofold division: "All peoples who are governed by laws and customs utilize a law which is partly proper, partly common to all mankind. That law which each people establishes for themselves is proper to each city and it is called civil law, because it is proper to the city itself. But that which constitutes the natural law among all men and which is equally observed by all is called the law of nations, since it governs almost all peoples." 1 Now we have indicated the first distinction between civil law, which is proper to each city, and the law of nations, which is the common inheritance of all mankind, dictated by natura] reason and commonly used in almost an identical manner among all peoples. In this twofold division we see that the law of nations is almost identical with natural law, since it proceeds from natural reason as the directive of a natural order of juridical relations coetaneous with humanity itsel£.2 By nature alone all peoples have been led to give almost identical solutions to the fundamental problems of life before any legislator had established laws in the strict sense. These solutions were the product of natural reason and they remained separate from the domain of positive law.3 The Roman jurist presents varioul;l examples which in our modern terminology have sometimes 'been included in natural law and at other times in the law of nations in the strict sense; for example, the appropriation of abandoned property, the spoils of war, servitude, imprisonment of the conquered, etc., which are commonly considered to be governed by the law of nations.4 Almost a century later Ulpian {228) proposed a new threefold division, which finds foundation in Cicero: natural law, 1 Dig. L. 1, tit. 1, 9. • Dig. L. 41, tit. I, 1: "Antiquius jus gentium cum ipso genere humano proditum est." • Dig. L. 7, tit. 5, 2: "Nee enim naturalis ratio auctoritate Senatus commutari potuit." Dig. L. 4, tit. 5, 8: " Civilis ratio naturalia jura corrumpere non potest." • Dig. L. 41, tit. 1, I & S; L. 41, tit. 1, 5 & 7; L. 1, tit. 6, 1. , 188 JOSE MANUEL DE AGUILAR the law of nations, and civil law. The law of nations as Gaius conceived it, i.e., as distinct from civil law...