De Indis Research Articles

Sexual Freedom and New World Conquest in Francisco de Vitoria’s de Indis and John Donne’s ‘To his Mistress going to bed’

Sexual Freedom and New World Conquest in Francisco de Vitoria’s <i>de Indis</i> and John Donne’s ‘To his Mistress going to bed’

“Humanizing the Indios” Early Spanish missionaries’ struggles for natives’ dignity: Influences and impact in 16th Century Philippines

“Humanizing the Indios” Early Spanish missionaries’ struggles for natives’ dignity: Influences and impact in 16th Century Philippines

Prefaces and Authorship in International Law. The Example of Vitoria’s De Indis

In this article, I study the role of prefatory texts in international law. Based on Gerard Genette’s analysis of paratexts, I examine how prefaces shape the expectations of the reader through indications of genre, method and authorship. The first section introduces the notion of ‘paratext’ and provides some illustrations in treaties and documents of the International Court of Justice. The second section focuses specifically on a work that has broadly been regarded as foundational for the discipline of international law: Vitoria’s De Indis Et De Iure Belli. Through its analysis of paratext, this article provides a new lens on textual products and the creation of authorship in international law.

Invincible Ignorance and the Americas: Why and How the Salamancan Theologians Made Use of a Medieval Notion

Invincible ignorance is defined as the state in which one cannot overcome his ignorance, despite one’s utmost diligence, and hence cannot be blamed for the acts resulting from that circumstance. It is particularly relevant with regard to law and principles that one is bound to know. The main problem with the admission that such a state may occur results from the difficulty of assessing the subjective element present in such a state: How can we know that one applied his diligence to the utmost extent? This notion emerged in the 12th century. But while medieval theologians elaborated such a notion, they nonetheless stressed that in reality no one could be guiltlessly ignorant of natural and divine law. The arrival of the Spaniards to the Americas triggered the awareness that entire nations could, in fact, be invincibly ignorant of Christianity. The Spanish theologians then started to use this notion, admitting the existence of invincible ignorance of some principles of divine and natural law. Their argumentative strategy rested on emphasising the subjective element of invincible ignorance. In this article, I examine Vitoria’s Relectio de Indis against the medieval doctrinal background. I also analyse Vitoria’s, Domingo de Soto’s and Juan Gil de Nava’s unedited lectures on Aquinas’s Summa theologiae as well as the works by Matias de Paz, Juan Lopez de Palacios Rubios, Juan de Celaya and Bartolome de Las Casas.

Punishment and Sovereignty in De Indis and De iure belli ac pacis

Grotius’s theory of punishment provides a unique lens through which to view his evolving thought on sovereignty between De Indis and De iure belli ac pacis and the implications of that evolution for Grotius’s theory of the ius in bello. Throughout both works, Grotius attempted to leave open the possibility of private punishment and private warfare, a position not easily squared with prevailing views of sovereign authority. Initially, Grotius was content with a theory marrying the private right of punishment with more traditional Scholastic views of sovereignty through a transfer of the private right from individuals into the hands of the sovereign. This theory also adopted traditional views of subject responsibility for sovereign acts—and, by extension, the exposure of subjects to punishment for the acts of their sovereign. By the time of his mature work, however, Grotius turned away from natural law justifications for collective responsibility and collective punishment, denying that subjects had to answer for the acts of their sovereign as a necessary incident of the compact creating civil society. This led Grotius to refer virtually all forms of collective responsibility, such as reprisal or punishment exacted through war, to the law of nations. This sharp reduction of the natural consequences of the creation of sovereign power also enabled Grotius’s argument that the private right of war, and in particular the private right of punishment, remained available after the creation of civil society.

Grotius and Empire

This article reviews Andrew Fitzmaurice’s recent book Sovereignty, Property and Empire 1500–1800 with a critical examination of the author’s analysis of Hugo Grotius. Unlike other works of intellectual history that focus on the relationship between empire and political theory, this book offers a refreshing account of how Western political thought also provided a critique of empire. Using the law of occupation to explain the origin of property and political society, Fitzmaurice demonstrates how ‘occupation’ was used to both justify and criticise extra-European imperial expansion. His analysis of Grotius is centred on ‘occupation’, explaining that even though Grotius’s political thought supports an imperialistic thesis, there is also evidence of anti-imperialist sentiments running through his works. I argue, however, that whilst Fitzmaurice provide a sound and interesting account of the role occupation plays in explaining Grotius’s two different accounts of property in De Indis and De jure belli ac pacis, he disregards the broader philosophical implications this has for Grotius’s theory of property.

EMPIRE, SOVEREIGNTY, AND JUSTICE IN FRANCISCO DE VITORIA'S INTERNATIONAL THOUGHT: A RE-INTERPRETATION OF DE INDIS (1532)

Resumen en: This article attempts to offer an alternative interpretation of Francisco de Vitoria’s international thought. Much of the literature on his De Indis (153...

Del Viejo al Nuevo Mundo: el tránsito de la noción de dominio y derecho natural de Francisco de Vitoria a Alonso de la Veracruz / From Old to New World: the Transition of the Concept on Dominium and Natural Rights in Francisco de Vitoria and Alonso de la Veracruz

This article studies Francisco de Vitoria´s relectio De Indis and Alonso de la Veracruz´s Speculum Coniugiorum relectio proving important differences on either texts. Both authors disert on dominium and natural rights, but Vitoria recognizes a more important influence of the authority and external causes on moral acts whereas de la Veracruz gives all the importance to intrinsic principles of human decisions. Aspe argues that these differences are due to two different elements involved on Alonso´s arguments: his direct contact within american indians, while Vitoria never came to America and didn´t experienced the encounter of «the others», and, a more profound philosophical influence from Escoto and moderate nominalist Jean Charlier Gerson.

The savage republic: De Indis of Hugo Grotius, republicanism, and the Dutch hegemony within the early modern world-system (c. 1600–1619)

The savage republic: De Indis of Hugo Grotius, republicanism, and the Dutch hegemony within the early modern world-system (c. 1600–1619)

On Grotius's Mare Liberum and Vitoria's De Indis, Following Agamben and Schmitt

AbstractThe idea of free trade in Grotius's Mare liberum and his legal opinion De iure praedae has a strong theological basis. Grotius called the right to travel and trade freely a ius sanctissimum, a 'sacrosanct law'. He also perceived the Freedom of the Seas as being a direct result of the will of God. This theological background was strategically necessary because Grotius developed the Mare liberum and the De iure praedae to argue against Spanish-Portuguese claims to a trade monopoly that also had theological underpinnings. But the theological aspect of Grotius's theory was also emphasized by the references he made to the Dominican friar Francisco de Vitoria's ius communicationis. This precursor to Grotius's Freedom of the Seas, which Vitoria had developed in his De indis, is connected to the legal justification of Christian mission and so has a clear theological connotation. In Grotius's work, Vitoria's concept of a universal right to Christian mission supervised by the pope was transformed into a theologically supported right to free trade. With this transformation of the ius communicationis into the principle of the Mare liberum, Grotius develops a theological basis not for politics but for economics. One can speak therefore, following Giorgio Agamben, of an 'economic theology' in regard to Grotius, a term that is, in turn, derived from Carl Schmitt's notion of 'political theology'.

Francisco De Vitoria and Humanitarian Intervention

Humanitarian intervention is a staple of current discussions about relations among states. Should powerful states interfere in the internal affairs of weaker ones, particularly those identified as failed states, in order to bring peace and stability when it is clear that the existing government can not do so? The concept is an old one, not a new one. European nations that engaged in overseas expansion generally justified their conquests on the grounds that they would seek to civilise and Christianise the peoples whom they encountered. The most extensive discussion of the right – or the responsibility – of strong states to intervene on a humanitarian basis occurred among sixteenth- and seventeenth-century Spanish intellectuals who sought to justify the Spanish conquest of the Americas. The most famous of these figures was Francisco de Vitoria (1485–1546) whose De Indis outlined all of the arguments that could be raised for and against such intervention. His line of argument suggests that in the long run, intervention even with the best of intentions, may well lead to tragic consequences. It may even be hubris, the sin of those who would play God.

Francisco de Vitoria in 1934, Before and After

Why would the Andrew Carnegie Endowment for International Peace, founded in 1910, one of the many charitable trusts sponsored by the Carnegie Steel Company, have an interest in promoting legal scholarship about the Spanish colonial legacy, some 158 years after US independence? Why wouldJames Brown Scott (1866-1943), Secretary of the Carnegie Endowment and also professor of International Law and Foreign Relations at Georgetown University, have any interest in joining the anniversary celebrations of Francisco de Vitoria (14861546), a prestigious, if obscure Dominican friar, professor of theology and law at the University of Salamanca? Why bother remembering the lectures On the American Indians (or De Indis, 1537-1539), 36 years after

Francisco De Vitoria and the Colonial Origins of International Law

Sir, As I know you will be pleased at the great victory with which Our Lord has crowned my voyage, I write this to you, from which you will learn how in thirty-three days, I passed from the Canary Islands to the Indies with the fleet which the most illustrious king and queen, our sovereigns, gave to me. And there I found many islands filled with people innumerable, and of them all I have taken possession for their highnesses, by proclamation made and with royal standard unfurled and no opposition was offered to me. Introduction While Hugo Grotius is generally regarded as the principal forerunner of modern international law, historians of the discipline trace its primitive origins to the works of Francisco de Vitoria, a sixteenth-century Spanish theologian and jurist. Consequently, it is entirely appropriate that the Carnegie endowment commenced its renowned series of Classics of International Law with Vitoria's two famous lectures, De Indis Noviter Inventis and De Jure Bellis Hispanorum in Barbaros. Traditional approaches to Vitoria's work and his place within the discipline pointed, among other things, to Grotius' indebtedness to the teachings of Vitoria, to Vitoria's identification of certain fundamental theoretical issues confronting the discipline and to the enduring significance of Vitoria's thinking on the law of war and on the rights of dependent peoples. Vitoria's two lectures, as their titles suggest, are essentially concerned with relations between the Spanish and the Indians.

Human Dignity in the Thought of Vitoria

Without falling into the detestable errors of racialism, we can say that national cultures enshrine, at least in a measure, qualities both good and bad truly characteristic of the nation. Thus we may see in Spanish history, literature and art, a great emphasis on man’s natural dignity, an emphasis which at times passes from virtue to vice in the pride which is at present so curiously insisted on by some who pretend to a special understanding of things Spanish. The great Spaniard, Francisco de Vitoria, although far from approving an unhealthy national pride, does in fact bring out very clearly that man, by his own proper nature, is invested with a dignity which is involved in the moral consideration of the most diverse activities.In his day the Spanish tendency to boasting—pilloried in the Rodomontades—had real and marvellous achievements to rest on, and the reconquest of Christian Spain was at last an accomplished deed. Moralists and theologians were imbued with a feeling for man’s greatness. Vitoria in particular was concerned in his thought with the dignity of man as such, rather than man as Spaniard. In the Relectio de Indis he brings out most clearly that the treatment of barbarians must be governed by what is worthy of man in himself. Nothing does so much credit to Spanish culture as that, even while the baroque style in sentiment and manners was elaborating its less admirable features—ostentatious display, excess of pride, of panache, and the absurdities of pundonor—Spain could still produce a man like Vitoria whose simplicity, austerity, and firm adherence to principle give us the Spanish feeling for dignity in its best form, as expressed by gravedad.