Ave Maria Law Review

Spring 2004

Symposium: Just War in Modern Times

Article

*123 THE ROOTS OF INTERNATIONAL LAW AND THE TEACHINGS OF FRANCISCO DE VITORIA AS A FOUN-
DATION FOR TRANSCENDENT HUMAN RIGHTS AND GLOBAL PEACE

Joseph M. de Torre [FNd1]

Copyright (c) 2004 Ave Maria Law Review; Joseph M. de Torre

Introduction

In announcing on July 17, 2003, the theme chosen for the next World Day of Peace (January 1, 2004), namely “Interna-
tional Law: A Path for Peace,” the Vatican Press Office stated that “[h]umanity 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.” [FN1] Echoing the teaching of Gaudium et Spes, [FN2] 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.”’ [FN3]

*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”), [FN4] He-
gelianism (“the soldier is the universal man”), [FN5] and Darwinism (“the survival of the strongest in the struggle for life”).
[FN6] 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 ap-
proximately thirty-one wars raging worldwide. [FN7] This situation has provoked a pacifist backlash of “peace at all costs,”
“better red than dead,” and all other neoteric aphorisms of the peace movement. [FN8]

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. [FN9] From a phenomenological analysis, history is al-
ways the “teacher of life,” as recognized by the Romans. [FN10] 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, “[E]verything in the uni-
verse is so connected that the present contains the future in its bosom.” [FN11]

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,” [FN12] and a state of nature in which life is
“solitary, poore, nasty, brutish, and short.” [FN13] He revived that famous formula of the Roman poet, Plautus: “homo
homini lupus” (man is a wolf to man). [FN14] The Chinese philosopher Han Fei Tzû had also declared that since man is evil
by nature, only brute force can restrain the masses. [FN15] Closer to our own time, the philosophies of Machiavelli and Spi-
noza bolstered this gloomy view of man in an attempt to rationalize royal absolutism. [FN16] Similar to Locke's reaction to
Hobbes, [FN17] Rousseau rejected this view, affirming the natural goodness of man before he is corrupted by society. [FN18]

*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 con-
quest. So this cycle continued, with more tyranny, torture, disease, poverty, and ignorance. [FN19]

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 that provided
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). [FN20] 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, Lu-
therans, 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. [FN21]

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 su-
preme good on earth under God. Even the purpose of Jihad is to achieve total peace in submission to God. [FN22] Due to
this, it is not a mistake to look to religion, to all religions, in search of that elusive universal peace and brotherhood, as the
Pope has urged ever since that memorable speech on October 27, 1986, at Assisi. [FN23]

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 dia-
logue 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. [FN24] This cult of the “natural law” declared itself inde-
pendent of all “revealed” religions: the battle cry of Freemasonry. [FN25] In practice, this position, *128 further articulated
by such eminent philosophers as Spinoza, [FN26] Wolff, [FN27] Voltaire, [FN28] and Diderot, [FN29] 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 main-
tained the right to religious liberty, not religious “toleration.” Religious liberty is the right to worship God in accordance with
one's conscience, free of external coercion, and the duty to accept true religion in the same fashion. [FN30]
 II. Hope for the Future

These efforts in the past ended in failure precisely because the means employed were violent. This is revealed by com-
mon 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 nego-
tiation, 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 transcen-
dence, 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.
[FN31] “Man is the way of the Church,” he would state thirteen years later in Centesimus Annus, [FN32] but this idea was
already present in his first encyclical, Redemptor Hominis, early in 1979. [FN33] 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 recog-
nize 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. [FN34]

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 con-
cern 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. [FN35]

The Pope knew, of course, that the Bible provides the best testimony of the dignity of the human person [FN36] because
it shows the person is created and redeemed by God. [FN37] 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 communica-
tion 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 grad-
ual undermining of the Marxist regimes throughout the 1980s, ending in their mostly non-violent collapse in 1989. This pa-
pal 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 per-
son. [FN38]

Of all of man's freedoms, that which is most fundamental and the root of his greatness and dignity is his orientation to-
ward 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 the Pope of-
ten 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. [FN39]
 *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. [FN40] 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 greatest number,” 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, [FN41] and that of Pope Paul VI, Populorum Progressio. [FN42]

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 Tzû 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. [FN43] 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. [FN44] *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. [FN45] It has been followed by many other theologians and philosophers, such as Suárez, Molina, Bel-
larmine, 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.
[FN46] 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 who-
ever has more power. “Might is right” under legal positivism. [FN47]

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 every-
where on earth by peaceful and democratic means. In so doing, it promulgated a comprehensive Universal Declaration of
Human Rights [FN48] as a juridical guarantee of peace. The old formula “if you want peace, prepare for war” [FN49] 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 doubt-
less 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, ad-
dressing this encyclical in a ground-breaking fashion “to All Men of Good Will,” and not only to Catholics. [FN50] This was
an indication that his arguments would be purposefully philosophical, and not just Christian, biblical, or theological. 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. [FN51] 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 fa-
mously asked,

But I feel that the greatest destroyer of peace today is abortion, because it is a war against the child--a direct kill-
ing 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? [FN52]
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, [FN53] with “development” defined as the total promotion of man based on an “integral human-
ism.” [FN54] 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 accept-
able 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, [FN55] but complementary and harmonizable. What inequal-
ity 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. [FN56]

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, [FN57] cannot be brushed aside. He clarified this, however, by ex-
plaining that the “war” to be waged was not against others but against oneself. [FN58] 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. With-
out this, we cannot prevent ourselves from being aggressive with others.

This humanism that is open to transcendence, not secularism, [FN59] 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 patriot-
ism. The Catholic Church, as the name *137 “catholic” means, is universal in outlook, while at the same time deeply in-
volved in the reality of actual peoples and communities. [FN60]

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. [FN61] 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 re-
currence of tyrannies, together with the chronic poverty and squalor of the majority of the population. [FN62]

This Aristotelian economic fallacy was not refuted until the analysis of the Spanish sixteenth century theologians of the
School of Salamanca, [FN63] including Francisco de Vitoria, Tomás de Mercado, Martín de Alpizcueta, and Luis de Mariana.
Joseph Schumpeter has illustrated this in his classic work, History of Economic Analysis. [FN64] More recently, Alejandro
Chafuen, in Christians for Freedom, [FN65] 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 govern-
ment control and stimulation of private enterprise and wealth. [FN66] 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 econ-
omy), but also the rise of the British Empire, by way of contrast. [FN67] (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. [FN68] 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 con-
junction with the Catholic University of America, published a bilingual volume entitled The Rights and Obligations of Indi-
ans and Spaniards in the New World. This volume reconstructs and compiles all the relevant statements of Francisco de Vito-
ria on this issue. [FN69] 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 Bartolomé de Las Casas, who had started his peaceful crusade in fa-
vor of the Indios after listening to Antonio Montesinos preach at *139 Santo Domingo in 1511, Vitoria courageously ex-
pounded 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. [FN70] 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. [FN71]

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.
[FN72] 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 [FN73] similar to those formulated by Fran-
cisco de Vitoria.

Four years before Vitoria's death, Charles V did indeed issue The New Laws of the Indies in 1542, [FN74] which did not
come until the Council of Trent [FN75] was already in session. This Ecumenical Council, attended by many of Vitoria's fol-
lowers, such as Domingo de Soto and Melchor Cano, proclaimed the universality of the Christian religion and of human na-
ture, denouncing both the elitism of the Protestant Reformers and the claims of moral and racial superiority of the Iberian
conquistadores. [FN76] Controversy, though, raged in Spain. Vitoria's followers, led by Bartolomé de Las Casas, opposed
those in favor of conquest, led by Juan Ginés de Sapúlveda. This was not resolved until a formal session of debates was ar-
ranged by Emperor Charles V between these two leaders at the royal court of Villadolid in 1550 and 1551. Las Casas rebutted
Sepúlveda'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. [FN77]

It was Vitoria, therefore, who set in motion the “revolution of human rights,” which has crystallized in modern democra-
cies and contemporary international organizations. [FN78] 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 [FN79] and Yves
R. Simon [FN80] have explained so well. Rather, it is bestowed by the people as a community of persons aware of their sub-
jective 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. [FN81]
 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 phi-
losophy of power continued through the French Revolution, on to modern liberal individualism (the “democracy of the indi-
vidual”), and finally achieved totalitarian socialism. Meanwhile, the more moderate individualism of Locke, influenced by
the Scholastics (especially the Dominicans), [FN82] was foremost in the thought of Thomas Jefferson and *142 the framers
of the American Constitution. [FN83] Jefferson, of course, is well known as the drafter of the American Declaration of Inde-
pendence 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. [FN84] He iterated what Aquinas had said many times: “No one is a slave by nature.” [FN85] 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. [FN86] He rebuffed the “divine right of kings” then claimed by absolutist monarchs, instead as-
serting the right of the people to depose tyrants when reasonable. [FN87] 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. [FN88] 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 head-
quarters in New York calls him “Founder of the Law of Nations,” and the “Francisco de Vitoria Hall” at the UN Geneva Of-
fices 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. [FN89] 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. [FN90] On
the evidence of his writings, Grotius cannot be said to have started the process that secularized the natural law tradition. Nei-
ther 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 Pufen-
dorf (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 Vito-
ria's title, a candid reading of his capital works, De iure naturae et gentium libri octo [FN91] and De officio hominis et civis
secundum legem naturalem libri duo, [FN92] reveals his great dependence on Grotius, [FN93] 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
Suárez, 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. [FN94] Positive law, by contrast, is not
founded on the general constitution of human nature, but purely on the will of the lawgiver. [FN95] As a result of this, he
does not distinguish between ius gentium and positive law as clearly as Suárez does. [FN96]

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. [FN97] (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. [FN98]
• To seek one's esteem and honor. (In other words, to be aware of one's human dignity.) [FN99]
• To seek wealth with moderation. (This is a new way of expressing Vitoria's right of all men to engage in busi-
 ness *145 enterprise and acquire private property, always taking into account the common good, or “with modera-
tion.”) [FN100]
• To subject the passions to reason. (That is to say, to be fully human in accord with natural law.) [FN101]
• To exercise just self-defense. [FN102] (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, [FN103] Francisco Suárez, [FN104]
Luis de Molina, [FN105] Robert Bellarmine, [FN106] Jean Bodin, [FN107] Richard Hooker, [FN108] Alberico Gentilis,
[FN109] and generally all late Scholastics. With the rise of Deism in England and with the German Enlightenment, the inter-
est 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, [FN110] as well as in the rise of utilitarian ethics in England with Hutcheson,
[FN111] *146 Hume, [FN112] and Bentham. [FN113] Such thinkers were prone to interpret Jefferson's “pursuit of happi-
ness” [FN114] 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 re-
affirmed by George Washington [FN115] and Abraham Lincoln, [FN116] the Whig Tradition of England, and Continental
thinkers such as Montalembert, [FN117] Juan Donoso Cortés, [FN118] and Frédéric Bastiat, [FN119] and, more recently,
Lord Acton [FN120] and Jacques Maritain. [FN121] 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. [FN122]

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,” [FN123] i.e., not a “rational”
ordering. This is what leads to the “democracy of tyranny” described by Tocqueville. [FN124] 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 refer-
ence beyond and above themselves, men now turn to one another as wolves (Hobbes) and will try either to create a Levia-
than, 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.” [FN125] In this way, the “general will” of Rousseau [FN126] was first claimed by the French Revolution, and
later by Bolshevism, [FN127] *148 Fascism, [FN128] and Nazism, [FN129] the collectivist or socialist forms of the philoso-
phy 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. [FN130]

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 Uni-
versity 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 in-
cluding Emperor Charles V, who promulgated the New Laws of the Indies, as stated above. [FN131] 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. [FN132]

As mentioned by Ernest Nys, the Law of War is a continuation of the previous Praelectio “On the American Indians” (De
Indis). [FN133] 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 ofjust 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 ajust 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 tothe 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. [FN134]

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. [FN135]

However, the end envisioned still has not become a reality. A “new world” is once again burgeoning, reshaping the rela-
tionships 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 com-
plicated 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 hu-
man rights, universally valid and inherent to human nature. One such unchanging guideline is that the formation of con-
science requires consideration of the formal object or end of the moral act, the *151 intention of the agent, and the circum-
stances. 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 em-
phasis 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 ap-
proach 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 that provide grounds for
hope.
[FNd1]. 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).

[FN1]. Zenit News Agency, 2004 World Day of Peace to Emphasize International Law: Humanity Facing a Crucial Chal-
lenge, 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).

[FN2]. 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).

[FN3]. Id. (quoting Isaiah 32:17).

[FN4]. 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.”).

[FN5]. 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 this crisis 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).

[FN6]. 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.).

[FN7]. Weather Wreaked Havoc, Aids Killed Millions, Fast Food Boomed, Smoking Declined and Conflicts Increased, The
Indep. (London), Aug. 21, 1999, at 7.

[FN8]. 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).

[FN9]. See Joseph M. de Torre, Contemporary Philosophical Issues in Historical Perspective (2001) [hereinafter Contempo-
rary Philosophical Issues].

[FN10]. 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?”).

[FN11]. Jerome Rosenthal, Attitudes of Some Modern Rationalists to History, 4 J. Hist. Ideas 429, 449 (1943) (quoting Gott-
fied Wilhelm Leibniz, Hauptschriften zur Grundlegung oer Philosophie (E. Cassirer, ed., Philosophische Bibliothek 1966)
(1717)).

[FN12]. Thomas Hobbes, On the Citizen P 13 (Richard Tuck & Michael Silverthorne eds. & trans., Cambridge Univ. Press
1998) (1651).

[FN13]. Thomas Hobbes, Leviathan 104 (Am. ed. 1950) (1651).

[FN14]. Titus Maccius Plautus, Asinaria 72 (R.A.D.A.R. Padova 1968).

[FN15]. 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).

[FN16]. See generally Contemporary Philosophical Issues, supra note 9.

[FN17]. G.A.J. Rogers, John Locke, in The Columbia History of Western Philosophy 388 (Richard H. Popkin et al. eds.,
1999) (“[A]lthough 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.”).

[FN18]. Jean-Jacques Rousseau, Émile, 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 the source 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.”).

[FN19]. See generally Contemporary Philosophical Issues, supra note 9.

[FN20]. 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.

[FN21]. See, e.g., Joseph M. de Torre, The Humanism of Modern Philosophy (2d ed. 1997) [hereinafter Humanism].

[FN22]. See generally Asghar Ali Engineer, Islam and Liberation Theology 7 (1990) (“[J]ihad in Islam is to be primarily
waged either for protecting the interests of the oppressed and the weak or to defend oneself against aggression.”).

[FN23]. 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).

[FN24]. See Humanism, supra note 21.

[FN25]. 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 Freema-
sonry 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).
[FN26]. See generally Leo Strauss, Spinoza's Critique of Religion (E.M. Sinclair trans., 1965).

[FN27]. See generally Manfred Kuehn, Christian Thomasius and Christian Wolff, in The Columbia History of Western Phi-
losophy 472-75 (Richard H. Popkin et al. eds., 1999).

[FN28]. See generally 2 Francois Voltaire, The Philosophical Dictionary 437-48 (Peter Gay trans., Basic Books 1962) (1764)
(expressing skepticism toward traditional religious beliefs).

[FN29]. See generally Denis Diderot, Rameau's Nephew and D'Alembert's Dream (L.W. Tancock trans., Penguin Books
1966) (1762).

[FN30]. See Second Vatican Council, Dignitatis Humanae [Declaration on Religious Freedom] (1965), reprinted in The Six-
teen Documents of Vatican II 397-413 (Nat'l Catholic Welfare Conference trans., St. Paul ed. 1967).

[FN31]. 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).

[FN32]. Pope John Paul II, Centesimus Annus [On the Hundredth Anniversary of Rerum Novarum] PP 53-62 (St. Paul ed.
1991).

[FN33]. Pope John Paul II, Redemptor Hominis [Encyclical Letter, The Redeemer of Man] P 14 (St. Paul ed. 1979).

[FN34]. See, e.g., George Weigel, Witness to Hope: The Biography of Pope John Paul II (1999) [hereinafter Witness to
Hope].

[FN35]. 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 rela-
tionships. 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).

[FN36]. Genesis 1:26-27 (“Then God said: ‘Let us make man in our image, after our likeness. Let them have dominion 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.”).

[FN37]. 1 Corinthians 1:30.

[FN38]. See, e.g., Witness to Hope, supra note 34.

[FN39]. 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 intelli-
gence, 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 oth-
ers.”
 Pope John Paul II, Fides et Ratio [Encyclical Letter on the Relationship Between Faith and Reason] P 98 (St. Paul ed.
1998).

[FN40]. 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).

[FN41]. 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.”).

[FN42]. 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.”).

[FN43]. 1 Corinthians 13:6 (“[Love] does not rejoice over wrongdoing but rejoices with the truth.”); John 8:32 (“[T]he truth
will set you free.”).

[FN44]. 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), avail-
able at http:// www.un.org/News/Press/docs/1999/19990412.sgsm6958.html (on file with the Ave Maria Law Review).

[FN45]. 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 hemi-
sphere 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).

[FN46]. 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 de-
clare 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 cer-
tain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Gov-
ernments 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 the People 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.

[FN47]. See, e.g., Joseph M. de Torre, Person, Family and State: An Outline of Social Ethics 29-45 (1991).

[FN48]. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).

[FN49]. 3 Flavius Vegetius Renatus, Epitoma Rei Militaris P 1 (circa 375) (“Igitur qui desiderat pacem, praeparet bellum....”
( “ T h e r e f o r e , h e w h o l o n g s f o r p e a c e , l e t h i m m a k e r e a d y f o r w a r. ” ) ) , a v a i l a b l e a t h t t p : / /
www.gmu.edu/departments/fld/CLASSICS/vegetius3.html (on file with the Ave Maria Law Review). The phrase is some-
times 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).

[FN50]. Pacem in Terris, supra note 41, pmbl.

[FN51]. Id. at PP 11-27.

[ F N 5 2 ] . M o t h e r Te r e s a , N a t i o n a l P r a y e r B r e a k f a s t S p e e c h ( F e b . 5 , 1 9 9 4 ) , a v a i l a b l e a t
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 (“...
[t]he greatest destroyer of peace today is abortion, because it is a direct war, a direct killing--a direct murder by the mother
herself.”).

[FN53]. 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.”).

[FN54]. 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 to find himself anew by em-
bracing the higher values of love and friendship, of prayer and contemplation. This is what will permit the fullness of authen-
tic 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).

[FN55]. 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 under-
goes change. The difference is the fact that the Hegelian dialectic is idealist 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 addi-
tion of materialism. See The Oxford Companion to Philosophy 198 (Ted Honderich ed., 1995) (defining “dialectic” and “dia-
lectical materialism”).

[FN56]. As Professor Irene Bloom writes,

The idea of a fundamental similarity among human beings is a new development in China during the period from
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 Confu-
cianism and Human Rights 94, 98 (Theodore de Bary & Tu Weiming eds., 1998).

[FN57]. Matthew 10:34.

[FN58]. 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.”).

[FN59]. See, e.g., Joseph M. de Torre, Openness to Reality: Essays on Secularism and Transcendence 5-20 (1995) [hereinaf-
ter Openness to Reality].

[FN60]. See generally Contemporary Philosophical Issues, supra note 9.

[FN61]. 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).

[FN62]. 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).

[FN63]. See generally Juan Belda, La Escuela de Salamanca y la Renovación de la Teología en el Siglo XVI (2000).

[FN64]. See generally Joseph A. Schumpeter, History of Economic Analysis 51-378 (Elizabeth Boody Schumpeter ed.,
1954).

[FN65]. Alejandro Antonio Chafuen, Christians For Freedom: Late-Scholastic Economics (1986).

[FN66]. 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).

[FN67]. 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).

[FN68]. Cf. Joseph M. de Torre, Generation and Degeneration: A Survey of Ideologies 87-92 (1995).

[FN69]. The Rights and Obligations of Indians and Spaniards in the New World (Luciano Pereña Vicente ed., 1992) [herein-
after Rights and Obligations].

[FN70]. 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... [s]uch slavery is a civil and legal condition, to which no man can belong by na-
ture.”). See generally Rights and Obligations, supra note 69.

[FN71]. 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.”).

[FN72]. 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 are truly 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).

[FN73]. Cf. Enchiridion Symbolorum Definitionum et Declarationum: de Rebus Fidei et Morum 362 (Henricus Denzinger &
Adolfus Schönmetzer, 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. Belén 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 Tomás, Manila) (on file
with the Ave Maria Law Review).

[FN74]. “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).

[FN75]. See Canons and Decrees of the Council of Trent 11 (H. J. Schroeder trans., 1978).

[FN76]. See Modern History Sourcebook, supra note 74.

[FN77]. See Lewis Hanke, All Mankind Is One: A Study of the Disputation Between Bartolomé de Las Casas and Juan Ginés
de Sepúlveda in 1550 on the Intellectual and Religious Capacity of the American Indians 82-99 (1974).

[FN78]. 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 Ramón Hernández, O.P., Derechos
Humanos en Francisco de Vitoria (1984); Ramon Hernandez, O.P., Francisco de Vitoria: Vida y pensamiento internacionalista
(1995).

[FN79]. 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: conse-
quently, 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).
[FN80]. 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 elec-
toral body.”).

[FN81]. See discussion infra.

[FN82]. See generally 1 & 2 William A. Hinnebush, O.P., The History of the Dominican Order (1966).

[FN83]. See generally Adrienne Koch, The Philosophy of Thomas Jefferson (1943).

[FN84]. 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: “[I]ndeed, there are many things in this connection which issue from the law of na-
tions, which, because it has a sufficient derivation from natural law, is clearly capable of conferring rights and creating obli-
gations.”).

[FN85]. 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.

[FN86]. Francisco de Vitoria, On the Law of War, in Political Writings 293, 303 (Anthony Pagden & Jeremy Lawrance eds.,
1991) (“[T]he sole and only just cause for waging war is when harm has been inflicted.”).

[FN87]. Francisco de Vitoria, On Law: Lectures on ST I-II. 90-105, in id. at 153, 200 (“But it remains true that if 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.”).

[FN88]. Francisco de Vitoria, I On the Power of the Church, in id. at 45, 84 (“[T]he pope is not the lord of the whole
world.”).

[FN89]. Hugo Grotius, 2 De Jure Belli Ac Pacis Libri Tres 550-53 (Francis W. Kelsey trans., William S. Hein 1995) (1925).

[FN90]. 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.

[FN91]. Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (C.H. Oldfather & W.A. Oldfather trans., William S. Hein
1995) (1688) [hereinafter De Jure].

[FN92]. 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].

[FN93]. As one modern editor writes of Pufendorf in an introduction to his work, “[i]t is, however, to be admitted that Pufen-
dorf 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.

[FN94]. Id. at 166-232.

[FN95]. Id. at 1132 (Pufendorf writes, “A law is civil with respect to its origin, which arises purely in the will of the supreme
civil power.”).

[FN96]. See, e.g., Francisco Suárez, 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 Suárez the ius gentium is a part of the
natural law and distinguished from a law arising from the will of the lawgiver.

[FN97]. The Whole Duty of Man, supra note 92, at 71-73.

[FN98]. Id. at 73-75.

[FN99]. Id. at 75-76.

[FN100]. Id. at 76-77.

[FN101]. Id. at 77-80.

[FN102]. Id. at 80-94.

[FN103]. See generally Vicente Beltrán de Heredia, Domingo de Soto: Estudio biográfico documentado (1961).

[FN104]. See generally Suárez, supra note 96.

[FN105]. See generally Luis de Molina, La Teoría Del Justo Precio (Francisco G. Camacho ed., 1981).

[FN106]. See generally James Brodrick, The Life and Work of Blessed Robert Francis Cardinal Bellarmine, S.J. 1542-1621
(1928).

[FN107]. See generally Jean Bodin, Colloquium of the Seven About Secrets of the Sublime (Marion Leathers Daniels Kuntz
trans., 1975).

[FN108]. See generally Richard Hooker, Tractates and sermons (W. Speed Hill ed., Harvard Univ. Press 1990) (1553).

[FN109]. Alberici Gentilis, 3 De Iure Belli 37 (Thomas Erskine Holland ed., London, Clarendoniano 1877) (“Sed hanc sen-
tentiam, 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 ex mandato 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.

[FN110]. See generally Rolf Lieberwirth, Christian Thomasius (Nachfolger 1955).

[FN111]. See generally Francis Hutcheson, On Human Nature (Thomas Mautner ed., 1993).

[FN112]. See generally David Hume, A Treatise of Human Nature (L.A. Selby-Bigge & P.H. Nidditch eds., 2d ed. 1978).
[FN113]. See generally Jeremy Bentham, The Limits of Jurisprudence Defined (Charles Warren Everett ed., 1945).

[FN114]. The Declaration of Independence para. 2 (U.S. 1776) (“We hold these truths to be self-evident, that all men are cre-
ated equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness.”).

[FN115]. 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 Pil-
lars of human happiness, these firmest props of the duties of Men and citizens.”).

[FN116]. 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 (Benjamin Baron-
dess ed., 1954) (emphasis added).

[FN117]. See generally André Trannoy, Montalembert (1947).

[FN118]. See generally Juan Donoso Cortés, Selected Works of Juan Donoso Cortés (Jeffrey P. Johnson ed. & trans., 2000).

[FN119]. See generally Frédéric Bastiat, Providence and Liberty (Raoul Audouin trans., 1991).

[FN120]. 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).

[FN121]. See generally Jacques Maritain, An Essay on Christian Philosophy (Edward H. Flannery trans., 1955).

[FN122]. See generally Alexis de Tocqueville, Democracy in America (Alfred A. Knopf 1994) (1835).

[FN123]. Declaration of the Rights of Man and of the Citizen art. 6 (Fr. 1789) (emphasis added).

[FN124]. 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 the limits 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 gen-
eral 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).

[FN125]. See supra notes 6, 13, 14 and accompanying text.

[FN126]. 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).

[FN127]. 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).

[FN128]. See generally Nicholas Farrell, Mussolini: A New Life (2003).

[FN129]. See generally Klaus P. Fischer, Nazi Germany: A New History (1998); John Toland, Adolf Hitler (Anchor Books
1992) (1976).

[FN130]. See generally Openness to Reality, supra note 59, at 11-19 (tracing American and international trends toward prag-
matism 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).

[FN131]. See Enchiridion, supra note 73.

[FN132]. See Contemporary Philosophical Issues, supra note 9.

[FN133]. Ernest Nys, Le Droit de guerre et les precurseurs de Grotius, 15 Revue de Droit international et legal comparée
(1882).

[FN134]. See Vitoria, supra note 86.

[FN135]. 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).

2 Ave Maria L. Rev. 123

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