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Grotiana 30 (2009) 65–87
On Grotius’s Mare Liberum and Vitoria’s De Indis, Following Agamben and Schmitt1
Institute for Philosophy, Freie Universität, Berlin Email: email@example.com
Abstract The 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’. Keywords Hugo Grotius, Carl Schmitt, Giorgio Agamben, Francisco de Vitoria, Economic Theology, Mare Liberum
Introduction to subject matter and method As the recent ﬁnancial crisis has once again made all too clear, the concept of free trade is one of the most important – and most problematic – of our time. The necessity for greater regulation of trade, especially in the ﬁnancial sector,
1 I would like to thank everyone who has contributed to this paper. Katherine Hunt, Joe Holden, Gabriel Montua, and Anja Wiesinger concerning style and language, Gustaaf Van Nifterik, Christoph Stumpf, Peter Borschberg, and Martine Julia Van Ittersum, as well as an anonymous referee of Grotiana for helpful remarks concerning the content.
© Koninklijke Brill NV, Leiden, 2009
J. Thumfart / Grotiana 30 (2009) 65–87
has lately been emphasized by various political leaders, including German Chancellor Merkel, French President Sarkozy, and U.S. American President Obama. This is a cause for concern, and not just for the most outspoken of laissez-faire liberalists. Often presented as one of the basic pillars of modern liberal society, the liberty to trade freely, governed by one’s own responsibility, seems an unquestionable, undeniable and absolute prerequisite to the development of a global civilization. But rather than knowing exactly why free trade is so essential, one seems to associate it with a number of positive, mostly long-term eﬀects that are anything but easy to grasp. According to Viner, it has been common in intellectual history to attribute a ‘providential’ quality to free trade. Due to divine providence, the invisible hand of the market was expected not only to establish a balance of supply and demand, but also to turn private vices into public beneﬁts.2 Inasmuch as it enables the peoples of the world to exchange goods and services with each other on a free basis – that is, to interact globally in peaceful ways – the process of free trade is supposed to lead to stabilization of international relations, as Kant writes.3 Furthermore, the concept of free trade is eschatologically and teleologically charged, in that some believe an internationalization of economic struggle will naturally lead to an evolution of the quality of goods and methods of production, and to a more just distribution of wealth. All of these are hopes for the future that cannot immediately be veriﬁed. One rather simply has faith in them as if they were religious truths. The path of free trade seems inexorably to lead to the vague promise of a better world, a world that is more international, more eﬃcient and more just – a veritable ‘new heaven on earth’4 and even a ‘Sprengung des Himmels durch gesteigerte Menschhaftigkeit’ – brought about by the believers of the ‘capitalist religion’,5 if one follows Nelson’s or Benjamin’s polemics. This essay tries to elucidate the religious quality of free trade at its very origin. It addresses the theological connotation of the idea of free trade in
Jacob Viner, The Role of Providence in Social Order. An Essay in Intellectual History (Philadelphia: American Philosophical Society, 1972), pp. 55-85. 3 Immanuel Kant, Zum ewigen Frieden, Akademie Ausgabe VIII, p. 368; In this passage, Kant refers to the so-called doux-commerce-thesis that was prevalent during the seventeenth and eighteenth centuries. See: Laurence Dickey, ‘Doux-commerce and humanitarian values: free trade, sociability and universal benevolence in eighteenth-century thinking’, Grotiana 22/23 (2001/02), pp. 271-318. 4 Robert H. Nelson, Reaching for Heaven on Earth. The Theological Meaning of Economics (Maryland: Rowman Littleﬁeld, 1991), p. xxii. 5 Walter Benjamin, Kapitalismus als Religion, ed. by Dirk Baecker (Berlin: Kulturverlag Kadmos, 2004), p. 16.
See also: Gerhard Richter. Adam’s Fallacy. An economic theology in this sense is a secular or. 2005). This will be made clear by illuminating the theological background of Grotius’s Mare liberum.8 According to Agamben.9 Following both Schmitt and Agamben. Oikonomia. Agamben likewise shows the theological background of early-modern economic theorists such as Linnaeus. Thumfart / Grotiana 30 (2009) 65–87 67 Grotius’s Mare liberum. 35. Foley. bei den Kirchenvätern und in der theologischen Literatur bis ins 20. particularly by highlighting the impact of the Dominican friar Francisco de Vitoria’s Relectio de indis on Grotius’s ideas. Politische Theologie. Homo sacer. 2. Grotius and Vitoria: historical placement and economic-theological form In March 1609. Quesnay and Smith. 2006). pp. Hugo Grotius (1583–1645). revista internacional de fenomenología y hermenéutica 6 (2008). It will be demonstrated that the idea of free trade evolved as an ‘economic theology’ in the seventeenth century. Reaching for Heaven on Earth. 7 Carl Schmitt. Il regno e la gloria. 2004). Il regno e la gloria. the legal structure of state sovereignty appears to be derived from the theological concept of an omnipotent God. 306-310.J. To Schmitt. a term that was developed as an enhancement of Schmitt’s thesis of ‘political theology’. secularized concept of economy that has its roots in a theological idea.6 Schmitt’s thesis of political theology – that certain terms of political theory can be interpreted as ‘secularized theological concepts’ (‘säkularisierte theologische Begriﬀe’)7 – can also be applied to economy. in Alea. 8 Agamben. pp. 43.. 187-191.The term ‘economic theology’ can also be found in the discussion of theological implications of the ‘invisible hand’ at Adam Smith. one of the ﬁrst early-modern manifestos to advocate free trade. the New Testamentarian and patristic notion of a providential oikonomia had a considerable inﬂuence on the theory of economic laissez-faire. See: Duncan K. rather. Il regno e la gloria. Central to this interpretation is the application of Giorgio Agamben’s term ‘economic theology’ to Grotius. Grotius’s conception of the legal status of economy can be perceived as being theologically derived. and was connected to the principle of free mission in the canon law of the Middle Ages. Johannes Thumfart. Vier Kapitel zur Lehre von der Souveränität (Berlin: Duncker & Humblot. 6 . p. Der Gebrauch des Wortes Oikonomia im Neuen Testament. 9 Ibid. p. 14. who is today recognized as one of the fathers of international law. English review of Agamben. Per una genealogia teologica dell’economia e del governo. Nelson. A guide to Economic Theology (Harvard: Harvard University Press. p. pp 95-106. 2 (Vicenza: Neri Pozza. published a revised chapter of his legal Giorgio Agamben. Jahrhundert (Berlin: De Gruyter. 2007).
including those of equality. Rethinking the Sources of Adam Smith’s Wealth of the Nations (Durham: Duke University Press. pp. dissertatio. ‘La Place de Francisco de Vitoria parmi les fondateurs du droit international’. 20-26. Both of these men arrived at similar conclusions. The Labour Theory of Value (London: Routledge. España y América. 361). 11. James Brown Scott. 31). in Actualité de la Pensée juridique de Francisco de Vitoria. Freitas’. by Luigi Turco. 12 Peter Haggenmacher. p. 27-80. transl. 8. Thumfart / Grotiana 30 (2009) 65–87 opinion on the ‘law of prize and booty’ (De iure praedae). 1986).12 In his Relectio de indis of 1539. 2007). Travaux de la journée d’études organisée à Louvain-la-Neuve par le Centre Charles de Visscher pour le Droit International. It would prove instrumental for Grotius. 2005).13 both are considered to be the father of international public law. The Spanish Origins of International Law. pp. Hutcheson mentions Grotius in two prefaces as an important inﬂuence. and Selden’s debate on dominion over the seas’. p. According to Peter Dooley.10 It was in this text that Grotius substantiated the normative ideals of global free trade. 3 (2003). 1988). 56-60. Free Trade and Moral Philosophy. Les origines du droit international (Brussels: Castaigne. Although Grotius and Vitoria were probably born exactly one hundred years apart (1483 and 1583). (p. law. in the latter passage. In his De iure praedae. ed. p. Teichengraeber. See: Francis Hutcheson. Latin with English translation on facing pages (Indianapolis: Liberty Fund. In this regard. Logic Metaphysics. el poder y el hombre (México: Miguel Angel Porrua. 10 Monica Brito Veira. Hutcheson refers explicitly to Grotius’s ‘law of nature and nations’. Philosophiae Moralis Institutio Compendiara with A Short Introduction to Moral Philosophy.’. See: María del Carmen Rovira Gaspar. Grotius’s thinking considerably inﬂuenced Adam Smith (1723–1790) by way of Smith’s mentor Francis Hutcheson (1694–1746). 21n3. Grotius relied heavily on the arguments for free trade put forth by Francisco de Vitoria nearly one century earlier. ed. Grotius’s assertion regarding the necessity of free trade was not without precedent. 11. ed. Francisco de Vitoria and his Law of Nations . (Bruxelles: Bruylant. in which Hutcheson probably indirectly draws on Grotius by way of Pufendorf. See also p. reciprocity and private responsibility. 361-377 (p. 3. Journal of the History of Ideas 64.. Mare Clausum: Grotius’. p.68 J. Id. a passage on property. 147. the latter seems more plausible. who read and quoted Grotius. by Antonio Truyol y Serra et al. pp. 1894). the full title of which is Mare liberum sive de iure quod Batavis competit ad Indicana commercia. 2006). See: Peter Dooley. ‘Mare Liberum vs. who in his De iure praedae also dealt with overseas trade. 65. Vitoria oﬀered one of the ﬁrst arguments on international trade. Teichengraeber on Hutcheson’s statements concerning private property: ‘Both the language and the substance of … [his] statements identify Hutcheson as a follower of Grotius. The anonymous publication.14 However. by Michael Silverthorne (Indianapolis: Liberty Fund. by James Moore and Michael Silverthorne. Francisco de Vitoria. 13 Although there is a debate about whether Vitoria’s date of birth was 1492 or 1483. 2004). 11 Richard F. and the Natural Sociability of Mankind. and the implications of the Christian mission for Europe’s relationship to overseas territories. 5. Hutcheson also paraphrases Grotius in his ‘Observations on “The Fable of the Bees” ’. 14 Ernest Nys. was the ﬁrst modern attempt to establish the legal status of the high seas.11 However.
the great importance of free trade is the result of theological viewpoints that underwent a gradual secularization. 15 In regard to Francisco de Vitoria. Viner uses this term in respect to Libanius and early Christian theologians. like Vitoria. for both Grotius and Vitoria. Studies in the History of Christian Thought 55 (Leiden: Brill. This concept can be called an economic theology in the Schmittian sense particularly with regard to Schmitt’s notion of political theology. p. see: Henk J. Christoph A Stumpf. . Thumfart / Grotiana 30 (2009) 65–87 69 the connection between Grotius and Vitoria is limited neither to their respective historical impacts nor to the considerable degree to which Grotius quoted Vitoria. the concept of free trade serves as the highest.J. developed his arguments within the framework of theology. Firstly. under the threat of a ‘just war’ (bellum iustum). Grotius.18 In the case of Vitoria and Grotius. to their common intellectual foundation. 37. ‘last’ (‘letzte’) principle17 to which political power has to subordinate itself.16 This position axiomatically assumes that there is a historico-teleological tendency inherent in global free trade. Essays in Honour of G. Regarding the theological thought of Grotius. 16 Viner. As previously noted. The role of Providence in social order. Posthumus Meyjes.M. 18 Ibid. the requisite openness of global exchange is.H. can be interpreted as an economic theology. originally published Oxford: Clarendon Press. it will be shown that Grotius’s main theological argument in favour of free trade also stems from Libanius. the reﬂections on the law and politics of free trade that Vitoria and Grotius present within the scheme of their conceptions of international law. Quote originally in German. The form of economic theology underlying the arguments of Vitoria and Grotius has two important characteristics. one can speak of a tradition of the ‘providential function of commerce’ within which Grotius and Vitoria operated. Hugo Grotius: Theologian. 43. 2000. but extends further. this is an obvious statement. for the cause of the maintenance of global free trade and open borders. It is therefore possible to apply Viner’s term to Grotius. In this respect. Hugo Grotius and the Moral Foundations of International Relations (Berlin: De Gruyter. In the ‘systematic structure’ (‘systematischen Struktur’) of both global political conceptions. p.15 Accordingly. (New Jersey: The Lawbook Exchange. such that the purpose of free trade is to unite the world in peace. The Grotian Theology of International Law. 17 Schmitt. subtitled ‘The theology of free trade’.). In the section of this essay. both develop the normative ideal of global free trade on the basis of the history of salvation. 1934). Nellen and Edwin Rabbie (eds. Schmitt deﬁned political theology as ‘secularized theological concepts’ in the political realm. 2006). M. an economic theology that can be understood within the framework of Schmitt’s notion of political theology. 1994). pp.. See supra n. 7. Secondly. 50. Politische Theologie. 43.
which the Protestant humanist Grotius inherited by way of. or “on How to distinguish Merchants from Pirates”’. ‘Erasing the Corporate Sovereign. ‘Constructing International Law in the East Indian Seas: Property in the East Indian Seas: Property. p. Sovereignty. Itinerario 30. 78). which he then proceeds to put into perspective. it should be noted that the reprise of Catholic-Iberian arguments was of practical use for Grotius. Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Berlin: Duncker & Humblot.70 J. 21 Eric Wilson. Grotius used the same argument to justify Dutch military aggression against the Portuguese in terms of a Dutch defence of their right to travel and trade freely against the Portuguese claims to a trade monopoly. (p.20 He employed these arguments as ‘irrefutable propositions’21 in the debate on the legitimacy of the VOC’s policy to secure its trading expeditions by military means. Inter-Textuality and an Alternative Explanation for the Publication of Hugo Grotius’ Mare liberum (1609)’. This work. nor be conceived of as a result of Weber’s famous notion of the Protestant economic theology of ‘inner-worldly ascetism’ (‘innerweltliche Askese’). 741-804 (pp. 2 (2006). Wilson recapitulates the standard opinion on the subject. Brooklyn Journal of international law 31. 151. Gesammelte Aufsätze zur Religionssoziologie I (Tübingen: Mohr Siebeck. Grotius promoted Dutch interests against the claims of the Portuguese and Spanish to trade monopolies in the East and West Indies. was commissioned by the Verenigde Oost-Indische 19 Max Weber. In this context. 17-206 (pp. This is because the full text was not published until 1868. 78-103. 84-87). 1997). which also included preemptive strikes. 756. in Id. 770). Because the Spanish had themselves previously used the notion of a right to travel and trade freely in order to legitimize the conquista. Having been hired by the VOC directors. . Carl Schmitt. With these ﬁtting words. ‘Die protestantische Ethik und der Geist des Kapitalismus’.19 Grotius’s and Vitoria’s economic theology is a genuine product of the Catholic-Christian tradition. 20 Lleana Porras. De iure praedae commentarius. Thumfart / Grotiana 30 (2009) 65–87 The components of an economic theology understood in this way – as history of salvation and universal politics – can neither be reduced to a renaissance of antique models of cosmopolitanism. 1988). Commerce and War in Hugo Grotius’ De iure praedae – The Law of Prize and Booty. The Mare liberum: An argument on the law of prize Less well-known than Grotius’s discussion of Mare liberum in the twelfth chapter of the De iure praedae commentarius is the complete legal opinion itself. 3 (2006). the writings of Vitoria.. among other sources.
5. De iure praedae. both parties of conﬂict were private ships that were not formally engaged in acts of war. 39-62 (p. V. and Saragossa (1526). De iure praedae. He characterized the capture of the Portuguese ship and the keeping of the prize as lawful. by H.22 The trial dealt with the capture of the Portuguese merchant ship Santa Catarina by the Dutch admiral Van Heemskerck. 1595 – 1615 (Leiden: Brill. Catarina Revisited: The Portuguese Empire in Asia. ‘The Seizure of the Sta. p. ‘Tordesillas 1494 – Der Beginn einer globalen Weltsicht’. Del Tratado de Tordesillas a la Doctrina de los Derechos . 59-62. ed. 1868). Although the – not yet independent – Dutch provinces were at war with Spain and Portugal at the time.25 As was expected of him. was the rightful owner of the rich booty taken from the hold of the Santa Catarina: a vast sum approaching three and a half million Dutch guilders. Since the discovery of the Canary Islands in the fourteenth century and the discovery of the Americas from 1492 on. See: Martine Julia Van Ittersum. (1602 – 1616)’. Juan Goti Ordeñana. 2006). Hugo Grotius. in his legal capacity. Despite the mostly secular character of the treaties of Tordesillas and Alcáçovas. in the Strait of Malacca. the Spanish and the Portuguese had claimed trade and shipping monopolies. transl. Politics and the Origins of Dutch-Johor Alliance. by Martine Julia van Ittersum. Williams and ed. the young lawyer Hugo Grotius defended the overseas interests of his nation and his employer VOC.J. 25 Porras. Grotius’s ﬁrst line of argument denied the legitimacy of the Spanish and Portuguese trade monopoly on the world’s seas. Hugo Grotius. The complex question (‘multiplex disputatio’23) was whether the private trading company VOC. 24 Peter Borschberg.24 This could be the case only if Heemskerck’s attack that led to the prize could be considered as having been in the scope of the paradoxical concept of a bellum iustum privatum.C. 755. ‘Constructing International Law in the East Indian Seas’. pp. Tordesillas (1494). by Gwladys L. 35). 108-188. Hamaker (Den Haag: Nijhof. Proﬁt and Principle.26 the Spanish and Portuguese claims can be interpreted as drawing 22 The debate about the historical context of the De iure pradae has led to a variety of diﬀerent interprations of the purpose of its publication. an assertion he had developed mostly from an historical perspective. I (2003). Thumfart / Grotiana 30 (2009) 65–87 71 Compagnie (VOC) on the occasion of a trial concerning the law of prize. 23 Hugo Grotius. I. 48). Commentary on the Law of Prize and Booty. (Indianapolis: Liberty Fund. pp. XII. G. Grotius. as outlined in the treaties of Alcáçovas (1479). Journal of Southeast Asian Studies 33. 26 Ute Schneider. 31-62 (p. p. 1 (2002). a legal act of private war. located between the Malayan peninsula and the island of Sumatra. which took place in the early morning hours of February 25th 1603. 127-142 [hereafter: Commentary].O. 2006). VI. Saeculum 54. pp. for which Van Heemskerck had sailed. Natural Rights Theories and the Rise of Dutch Power in the East Indies.
99-140 (p.S. p. James A. Brundage. De la découverte à la conquête (Paris: Fayard.: Carnegie Institution of Washington publication. See also: Id. who had not engaged in a war against Christianity thus far. 114). Summa Aurea. Holy War and Canon Law (Aldershot: Variorum. such as the Canarian Guanches and the Amerindian tribes.. 149-165. Das Bellum Iustum des Hernán Cortés in Mexico (Köln und Wien: Böhlau. 31 Abulaﬁa. European Treaties Bearing on the History of the U. 1917). 48. (München: Beck. 32-41. The Discovery of Mankind. pp. Martini Abbatis (Venice 1574). Abulaﬁa. 189-190. 37. 1991). 28 Carmen Bernand and Serge Gruzinski. p. 293. 65-66. p. 10.28 Within the context of the reconquista and the conduct of a ‘just war’ against the Muslims. 89. De Treuga et Pace. pp. Die europäische Expansion und das Völkerrecht. Die europäische Expansion und das Völkerrecht (Stuttgart: Franz Steiner. donating half to the Spanish and half to the Portuguese. 82. Pope Alexander VI divided the world’s oceans. 20.C. 1999). 72. p. by F. ‘Grotius and Vitoria on Natural Law and . 351. 1976).und Verfassungsgeschichte Spaniens im Mittelalter (Paderborn: Schöningh. 1991). as had been put forward by Hostiensis during the thirteenth century. those treaties which the Iberian kings and the papacy had concluded during the process of the reconquista of the Iberian Peninsula. Grewe (Berlin: De Gruyter. 27 The bull Inter caetera. Welteroberung und Christentum.31 As the ﬁrst Christian European countries to interact with Fundamentales en Francisco de Vitoria (Valladolid: Secretariado de Publicaciones e Intercambio Cientíﬁco.72 J.Dokumente zur Geschichte der europäischen Expansion. p. Quellen zur Geschichte des Völkerrechts. pp. Tome 1. 1989). pp. The Discovery of Mankind. in Fontes Historiae Iuris Gentium. p. and its Dependencies to 1648. Eberhard Straub. Goti Ordeñana. 1984). Jörg Fisch. In his bull Inter caetera of 1493.. ‘Holy War and the Medieval Lawyers’ In Id. Studien zur Rechts.29 In the fourteenth century. Histoire du nouveau monde. ed. The Crusades. 2008). ed.27 Such political-theological intertwining of papal power and Portuguese-Spanish claims can be traced back to. Reconquista und Landesherrschaft. pp. which the secular kings were obliged to organize and ﬁnance. this concept had been employed to enable the pope not only to legitimize Portuguese crusades in North-West Africa but also to donate African land and trade monopolies to the Portuguese. David Abulaﬁa. 72. column 359. Tome 1. in. Atlantic Encounters in the Age of Columbus (New Haven: Yale University Press. the validity of the papal grants had been based upon the concept of a theological and political supremacy of the pope over non-Christian territories. ed. 1995). 30 Eberhard Schmitt and Charles Verlinden (Ed. p. the pope apportioned their lands as compensation for the duty of Christian mission in these territories. 1986). Del Tratado de Tordesillas a la Doctrina de los Derechos fundamentales en Francisco de Vitoria. by Frances Davenport (Washington D. pp..). 1992). 4th of May 1493. Thumfart / Grotiana 30 (2009) 65–87 from the tradition of papal grants concerning overseas territories. ‘Reduction of the Teachings of Innocent IV on the Legal Status of Inﬁdels’. Die mittelalterlichen Ursprünge der europäischen Expansion . Horst Gründer. 29 Hostiensis. 72-75. p. Universidad de Valladolid. among other sources. Ein Handbuch zur Geschichte der Neuzeit (Gütersloh: Gütersloher Verlagshaus. Martin Van Gelderen. by Wilhelm G. pp. The Discovery of Mankind. Odilo Engels.30 In the case of non-Christian peoples. Fisch. 61. 87. 218.
Before Columbus.. 308. 207. 13). In the case of the East Indies in particular. Sermon 45. 240. In inﬁdelibus autem nulla est virtus. 66-68).).’36 Grotius also refutes the raya of pope Alexander VI. p.’33 ‘By reason of their inﬁdelity. Grotiana 14/15 (1993/94). (pp. 210. sed ymago virtutis solum. p. 232. were believed to be unﬁt to be rightful owners (veri domini) because of their lack of faith and morals. fol. on the sole ground of their lack of faith … is an act of thievery and rapine no less than it would be if perpetrated against Christians. in part Mohammedans’. pp. p. Schmitt and Verlinden (Ed.35 However. pp. the apportionment made by Alexander VI was illegitimate because International Relations’. pp. 1987). See also: Felipe FernándezArmesto. According to Grotius. 33 Ibid. cited after: Wood. Clement VI. 341r. 308. And the act of snatching from them. Die mittelalterlichen Ursprünge der europäischen Expansion. Dominium presupposed morals. 93. Exploration and Colonisation from the Mediterranean to the Atlantic. De iure praedae. 35 Id. Pedro Leturia. The indigenous rulers of these territories. Clement VI: the Pontiﬁcate and Ideas of an Avignon Pope (Cambridge: Cambridge University Press. 3-37 (p. which granted non-Christian territories as compensation for the task of religious conversion. 1989). According to Grotius’s evaluation. 87. 192. non-Christians lose their right to dominium’. Grotius quotes those historical justiﬁcations only in order to refute them.’32 ‘Nullum dominium debet esse sine virtute. Ergo nec verum dominium cum sine ﬁde impossibile sit placere deo. Thumfart / Grotiana 30 (2009) 65–87 73 overseas peoples in this way. Clement VI. Ste-G. 180. 209. Welteroberung und Christentum. writes Clement. Gründer. Commentary. Pope Clement VI wrote: ‘Forte enim inﬁdeles ratione inﬁdelitatis merentur perdere omnem dominium. According to Grotius. partim Mahumetani’34 – ‘in part idolaters. Historisches Jahrbuch 46 (1926).. as Grotius wrote. the ‘just war’ against inﬁdels is not a legitimate reason for conquest: ‘It is heretical to hold that inﬁdels are not the owners of the property that belongs to them. cited after Wood. both lines of justiﬁcation – the ‘just war’ against Muslims and the duty to convert the non-Christians – could be used because the Asian people were. p.. the Portuguese monopoly at the beginning of the seventeenth century was still based on the supra-territorial power of the papacy and concomitant political-theological ideas. p. 190. the nonChristian princes. 11-71. p.J.. 36 Ibid. On the occasion of the donation of the Canary Islands. which – in the eyes of Pope Clement – inﬁdels could not possibly have. 194n90. the Spanish and the Portuguese beneﬁted most from such donations. 343r. 34 Grotius. XII. ‘Der heilige Stuhl und das spanische Patronat in Amerika’. 193n83. fol. 1229 – 1492 (Basingstoke: Macmillan. 32 Clement VI. ‘partim idolatrae. . Diana Wood.
for example the breach of a contract or a military aggression. He applies the principle of the Freedom of the Seas. p.40 Grotius argues that Van Heemskerck defended his natural right freely to travel and trade on the world’s seas against illegitimate Portuguese claims. On the other hand. Grotius concludes. p. 42 Ibid. VIII. Grotius classiﬁed the procedure of the VOC’s captain Van Heemskerck as a ‘private just war’ (bellum iustum privatum). Dig. p. such an unusual act of private war could be justiﬁed because in the Strait of Malacca. II. 142: ‘A private war is undertaken justly in so far as judicial recourse (judicium) is lacking. I. and the pope did not own the nonChristian territories that he gave away in 1493. to international maritime waters. p.’42 According to Grotius.38 ‘The sea is an element common to all’. which was later reworked and separately published as Mare liberum..41 According to Grotius. see: Grotius. p. which inevitably leads to the ﬁgure of a bellum iustum privatum. legitimized by natural law. if the pope had acted only as ‘arbiter between the two peoples …. He quotes Augustin’s classic deﬁnition of the bellum iustum: ‘Justa autem bella deﬁniri solent. p.. 59-62.5. quatenus judicium deﬁcit. 41 To Grotius. the Santa Catarina and her crew could be rightfully punished due to their Ibid. a term however that Grotius himself does not use. Grotius interprets this right to compensate an unjust act as also extending to private persons. This is the basic argument of the twelfth chapter of Grotius’s legal opinion De iure praedae.’. Commentary. p. ‘Constructing International Law in the East Indian Seas’. VIII..’37 In contrast to the Iberians’ politically-theologically founded claims. Following this principle of the Freedom of the Seas. 40 Porras. VI. 39 Grotius.39 So. Van Heemskerck’s capture of the Santa Catarina had not been preceded by a Portuguese attack. pp. Grotius. Van Heemskerck therefore had to defend his natural right himself: ‘Eatenus juste bellum privatum suscipitur. 755. Commentary. he concludes. 309. 68.1. Grotius depicts a system of equal states. Commentary. Thumfart / Grotiana 30 (2009) 65–87 no one could grant what was not his. 11. quae ulciscuntur injurias. Les origines du droit international. 95. such a defence of one’s own natural right does not have to be a reaction to a concrete attack. inst. Van Heemskerck had been far from the range of any state power that could have defended his natural rights. See: Grotius. De iure praedae. the criterion for a bellum iustum is the compensation for an unjust act. Ernest Nys. see also: Gai. it can be sailed by everyone. derived from Roman law. De iure praedae. writes Grotius. However. p. chapter: ‘Quae justa sit causa eﬃciens belli privati’.’ 38 37 .8. we must infer that the apportionment was drawn up only with reference to the Spaniards and the Portuguese and therefore will not aﬀect the other peoples of the world.74 J. 322. 127-142.
‘Lex divina und ius naturale’. pp. Grotius argues. Grotius’s conception of natural law can be interpreted as a secularized one. De jure belli ac pacis libri tres. 363: ‘Since it has been demonstrated … (with authoritative conﬁrmation drawn from Victoria and with the aid of examples) that a just cause of war exists when the freedom of trade is being defended against those who would obstruct it.44 Therefore.J. Chapters: ‘ “Yo le compro llanamente” – Vitorias Haltung zu conquista und Sklaverei in den Briefen’. Zu Francisco de Vitorias relectio de indis recenter inventis von 1539 (Berlin: Kulturverlag Kadmos. 9. 46 Francisco de Vitoria. 47 Georg Cavallar. Vitoria concludes. ‘De eo. we arrive at the conclusion that the Dutch had a just cause for war against the Portuguese. in Id. in quibus jus naturae et gentium. ‘Cosmopolis. cum primum venit ad usum rationis’. Die Begründung der globalpolitischen Philosophie.. Grotius applied Gregory of Rimini’s famous notion – ‘etiamsi daremus … non esse deum’ – to natural law. Völkerrecht – Politik – Kirche (Stuttgart et al. Deutsche Zeitschrift für Philosophie 53 (2005). With these words.. This formula is however not explicitly applied to international law by Vitoria. Vorlesungen II. quin nullum esset proprie peccatum aut malum morale’. p.. Vitoria denies the possibility of a morality without the laws that are based upon the will of God. . but can also be read as referring only to the theological categories of peccatum and malum morale. 49-67 (p. De iure belli ac pacis. 55). 160): ‘Si vel Deus non esset vel nihil praeciperet. If God did not exist. edited by Ulrich Horst et al.48 to make the argument that natural law would still be valid even if ‘god 43 Ibid. even natural law bears traces of positivism inasmuch as its content is dependent upon the will of God in his function as universal legislator. The theology of free trade Grotius’s predecessor Vitoria’s concept of the source of law can be regarded as theological voluntarism. by James Brown Scott. since we derive advantages from civil society. II. Van Heemskerck’s capture of the Santa Catarina was an act of bellum iustum privatum and the booty of three and a half million Dutch guilders from the hold of the ship was the legitimate property of the VOC. ed. 1913). 5. p.C. 1997). 45 On Legal Positivism at Vitoria see: Johannes Thumfart. Supranationales und kosmopolitisches Denken von Vitoria bis Smith’.43 whose claim to a monopoly on traﬃc on the world seas was itself in contradiction to natural law. ‘there would be no sin nor a moral ﬂaw’. 92-187 (p.: Kohlhammer.. ad quo tenetur homo. 158: ‘Individual citizens are also bound by the act of the state. 48 Hugo Grotius.46 In contrast to Vitoria’s position. Latin with German translation on facing pages. p. reproduction of the edition of 1646 (Washington D.’ 44 Ibid. that we should likewise suﬀer its disadvantages.47 In his chef d’oeuvre. said Vitoria in one of his relectiones. ego non dubito.’ I will later come back to this passage. prolegomena. 2009). item juris publici praecipua explicantur. XII. In Vitoria’s thought. it is in keeping with natural equity.: Carnegie Institution of Washington. Thumfart / Grotiana 30 (2009) 65–87 75 belonging to Portugal. Indeed.45 ‘If god did not exist’. there would be neither sin nor unethical acts.
49 In De iure praedae. on closer examination. Politics and the Origins of Dutch-Johor Alliance. Epochen der Völkerrechtsgeschichte.51 This is particularly true in regard to coophandel met force (‘trade supported by the force of arms’52).50 Against an international order dominated and regulated by the papacy and the monopolies it granted.1. 341n4. 31-62 (p. he presents an international order of free commerce and traﬃc. Damasus Trapp and Venicio Marcolino (Berlin and New York: De Gruyter. Grotius gave the anarchic competition of private trading companies and pirates on the oceans of the seventeenth century the ﬁrst internationally recognized legal justiﬁcation. 244).C. ed. For a discussion of this thesis that is more focused on theology. pp. Grotiana 19 (1989). 235. however. Thumfart / Grotiana 30 (2009) 65–87 did not exist’. ‘The Seizure of the Sta. but it can be regarded as an intellectual formula that follows the medieval tradition of the discussion of impossible hypotheses.. While Grotius’s formulation of the Freedom of the Seas seems. 2 (1999). universalist line of legal thought. V. 181-193. ‘Secularization in De Iure Praedae: from Bible Criticism to International Law’.2. the policy of the VOC. Journal of Southeast Asian Studies 30. to be a recipe for mere anarchy. p.53 By developing his principle of the Freedom of the 49 Gregory of Rimini. Grotius’s role must be conceived as a ‘connector’ between traditional Christian international law and modern international law (‘Bindeglied ’). East India Trade and the King of Johor’. 34-37. but also the father of the delimitation of European public law beyond the line of amity. just as the phrase ‘si per impossibile … deus ipse non esset’ is used by Gregory of Rimini. Ernst Wolfgang Böckenförde. (1602 – 1616) ’. which legally separated the high seas from the European continent. . however. Archiv des Völkerrechts 41 (2003). 3-23 (p. 83-100 (p. on the surface. 53 Christoph A. 225-248 (p. Journal of Southeast Asian Studies 33. Stumpf. which Grotius qualiﬁed as a bellum iustum privatum. this formula does not necessarily imply a secularization. 147-191. 50 This paper deals with the secularization in De iure praedae from the point of view of the history of legal ideas. Lectura super primum et secundum sententiarum. qu.76 J. p.und Staatsphilosophie (Tübingen: Mohr Siebeck. ‘Völkerrecht unter Kreuz und Halbmond. 2006). by A. ‘Hugo Grotius. In this case too. Der Nomos der Erde. pp. 12). Id. Geschichte der Rechts. 52 Peter Borschberg. Paola Negro. art. With his apologia of the bellum iustum privatum. ‘A Topos in Hugo Grotius: “Etiamsi daremus non esse Deum” ’. 59-69. Catarina Revisited: The Portuguese Empire in Asia. Muhamaad al-Shaybani und Hugo Grotius als Exponenten religiöser Völkerrechtstraditionen’. the secularization that Grotius undertakes seems immediately more obvious.O. the Grotian principle of the Freedom of the Seas appears to represent a monist. Grotiana 26/28 (2005/2007). dist. 1980). Grotius cannot be considered to be simply the father of public international law. 1 (2002). On this count. 35). Grewe. 51 Schmitt. 95). see: Mark Somos. In itself.
The Freedom of the Seas is depicted by Grotius as a supreme.. cuius perspicua atque immutabilis est ratio. 58 Viner. Grotius legitimizes his principle of free trade by the use of a providential argument that was to become a locus classicus in the later modern debate on the subject. licere cuivis genti quamvis alteram adire.J. De iure praedae XII. Grotius secures an absolute. I. 1916). He also developed and expanded upon the rhetoric and structure of the international law of the Middle Ages insofar as he was occupied with the problem of an equivalent to replace the supra-territorial power of the pope. Grotius himself referred to a ‘jus … sanctissimum’. 7. on which the Iberian claims to a monopoly of trade had originally rested. Latin with English translation on facing pages (New Jersey: The Lawbook Exchange. Whilst papal blessing had legitimized the global Iberian trade monopoly. continental and national diﬀerences and the 54 ‘We will lay this certain rule of the law of nations (which they call primary) as the foundation. Grotius only writes ‘licere Batavis’.. ed. the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it. The version in the De iure praedae diﬀers.56 a ‘sacrosanct law’. 56 Ibid. pp. cumque ea negotiari. Grotius not only negated the principle of papal supremacy. 206.’54 In Grotius’s conception. I therefore quote the Mare liberum version. 40-54. truly metapolitical quality of Grotius’s conception of free trade is also very clearly reﬂected in the language he chooses to use. 2001.57 This choice of words and the structural conception of the Freedom of the Seas as a supreme principle clearly points to an analogy between Grotius’s concept of international law and the Iberian medieval one against which he argues. XII. 55 Id. Thumfart / Grotiana 30 (2009) 65–87 77 Seas. such as a republic or a prince (‘ullam rempublicam aut principem’). truly meta-political validity of the Mare liberum through the connection of his principle of free trade to theological premises. Hugo Grotius. quod primarium vocant regulam certissimam. 205: Instead of ‘licere cuivis genti’. p. ‘most secure and unchanging’ principle – regula certissima.58 The regional.55 This absolute. by Ralph Van Deman Magoﬃn. . To Grotius. Commentary. the principle of the Mare liberum is essentially of the same value and strength as the papal dominium orbis of the middle ages. by James Brown Scott and transl. See: De iure praedae. repr. The Freedom of the Seas or The Right which Belongs to the Dutch to take part in the East Indian Trade. of: New York: Oxford University Press. p. 304. p.’. cuius perspicua atque immutabilis est ratio: ‘Fundamentum struemus hanc iuris gentium. The role of Providence in Social Order. 57 Id. this principle of natural law is truly meta-political inasmuch as it cannot be abrogated by any political force. p.
Grotius. 63 Grotius. An Intellectual History of Free Trade (Princeton: Princeton University Press. The assumption that global trade is founded on divine providence seems to imply that it would be morally good to bridge successively the diﬀerences between the peoples of the Earth by trading. pp. 1996). 280. This passage is formulated slightly diﬀerently and less sharply in De iure praedae. it is valid even for times after the advent of Christ. Commentary. 62 Viner. which Grotius like all theorists of natural law was preoccupied with deciphering.64 His ideas are strongly connected to the Christian history of salvation inasmuch as they can be conceived teleologically. p. Grotius invoked a pre-Christian tradition of economic theology that reaches from Philo of Alexandria and Libanius to early fathers of the church such as John Chrysostom and Origen. which is an important aspect of Grotius’s doctrine of free trade. therefore points directly towards an openness of global trade. which is why I use the Mare liberum version here again. pp. although not the only one. 7. Inasmuch as the Christian God is conceived as the creator of nature. 756. 761. 42. ‘Constructing International Law in the East Indian Seas’. ‘God himself says this speaking through the voice of nature’. Dickey.62 This pre-Christian line of thought seems to be an important aspect of Grotius’s economic theology which.59 The logic inherent in creation.etiam post Christum’. p. pp. 60 59 .’ 64 Dickey for example links Grotius’s understanding of free trade to the Stoic notion of oikeiosis. and furthermore. continental and national diﬀerences.63 However Grotius’s principle of free trade cannot be fully understood when thought of as being derived solely from Stoic or other pre-Christian concepts. Thumfart / Grotiana 30 (2009) 65–87 respective lacks and surpluses of resources forced humankind to maintain global economic contact with one another. does not necessarily depend on Christian narratives. 36-37. 61 Id. if not because it was His Will that human friendships should be fostered by mutual needs and resources. Commentary. Douglas A. He has granted pre-eminence in diﬀerent arts to diﬀerent nations. Irwin. argues Grotius. Id. ‘Doux commerce and humanitarian values’. God has unequally distributed the goods of the Earth because ‘it was his will that human friendships should be fostered by Porras. De iure praedae III. which ultimately force mankind to maintain economic global contact. 16-17. Against the Tide.. Grotius himself wrote that natural law is independent from the events of the Christian history of salvation. p. Why are these things so.78 J. 302-303.’61 With this argument. pp. 33: ‘Jus est semper. ‘Deus hoc ipse per naturam loquitur’. 54-55: ‘Law is valid for all times. The role of Providence in Social Order. he is also the creator of those regional. inasmuch as it is based upon natural law. According to Grotius.. pp. The Freedom of the Sea. wrote Grotius in Mare liberum:60 ‘For God has not willed that nature shall supply every region with all the necessities of life.
V. To Seneca. 39-45 (pp. 468: ‘Isaiah prophesied. In line with these teleological dynamics of free trade. by Thomas H. 66 Ibid. Grotius also quotes Seneca in order to legitimize the providential aspect of his economic theology: ‘In Seneca’s opinion.’ 68 Ibid. an intensiﬁcation of global trade can also fortify friendships among human beings and is therefore desirable from a historico-philosophical point of view. Commentary. the ideal of economic expansion was unknown to antiquity. which enables man to trade globally and traﬃc goods. 65 Id. the supreme blessing conferred by nature resides in these facts: that by means of the winds she brings together peoples who are scattered in diﬀerent localities. international trade was not at all an entirely positive phenomenon. De iure praedae XII. that all merchandise and all proﬁt shall be consecrated to the Lord.70 As for the passage from Seneca’s Naturales quaestiones.’67 Indeed. ‘Constructing International Law in the East Indian Seas’. 67 Isaiah: 23. p. 4-5. ed. ‘Early Attitudes towards Trade and the Merchant’. pp. 71 Seneca.’65 Seen from this perspective. p. or self-suﬃciency. Essays on the Intellectual History of Economics (Princeton: Princeton University Press.. Latin phrase: Id. for example. MA. Corcoran.66 Grotius writes: ‘Fiet ita quod apud prophetam est.’68 But a Stoic origin of this justiﬁcation of trade is not ultimately plausible. 18.. pp. 69 Jacob Viner. and transl. While Seneca does praise divine providence. 39-41).69 It was along these lines that Aristotle. The antique conception of economy was mostly oriented towards the ideal of autarkeia. and that she distributes the sum of her gifts throughout various regions in such a way as to make reciprocal commerce a necessity for the members of the human race. 321. Latin with English translation on facing pages (Cambridge. which Grotius quotes in order to strengthen his economic-theological thesis. 303. 303-304. Naturales Questiones. it is obvious that he is using Seneca’s words selectively. ut negotiatio et quaestus omnis Deo consecretur. 205. p. ‘Constructing International Law in the East Indian Seas’. Commentary. 760. 18. in Id. p. . 1991). 70 Aristotle: Politics. p. expressed his strong critique of trade in general.J. p.: Harvard University Press. 114-115. De iure praedae XV. Porras. tome II. 761. Grotius conceives an eschatology of economy according to which the accumulation of goods by means of trade will one day comprise a great gift for God. 1257 b 22.. he is also careful to add that ‘the madness of mankind’ (generis humani dementia)71 is to blame for the fact that this pursuit of global traﬃc can so easily become a cause of war. Grotius. p.. According to Viner.. Thumfart / Grotiana 30 (2009) 65–87 79 mutual needs and resources (voluit mutua egestate et copia humanas foveri amicitias). 1972). Porras. 763. XII.
Hernán Cortés’ und Bartolomé de las Casas’. See: Thumfart. The right freely to travel and trade had been used by the Spaniards in order to legitimize Spanish colonialism in South and Central America. which allowed the Spaniards and any other nation to trade with any people they wanted and to travel wherever they pleased. 260. outside of which the principle of territorial or state sovereignty did not play a great role until at least 1945.73 In this way. p. The primacy of universal principles over local sovereignties. In his Relectio de indis of 1539. which served the defence of the natural right of 72 Francisco de Vitoria. it was exactly the outdatedness of Grotius’s theory of the Freedom of the Seas that determined its extreme strategic value in the speciﬁc debate in which he employed it. 15-39. Relectio de indis. ed. Relectio de indis recenter inventis. 73 For Vitoria himself. p. Vitoria declared an unchangeable right to travel and trade freely. Vitoria granted the Spaniards the right to defend their natural right to travel and trade freely in a ‘just war’ (bellum iustum). As Grotius never ceases to mention. Die Begründung der globalpolitischen Philosophie. 2009). Unlike Grotius’s position in Mare liberum. For in some respects it was a locus classicus. On the contrary. literally the ‘right of communication’. the latter accused the indios of having denied the Spaniards their right to travel freely on their land by trying to expel them. Vitoria called this principle the ius communicationis. pp. for Grotius did not conceive his principle of free trade for the European continent alone. Id. But this did not necessarily devalue Grotius’s position.1. was therefore outdated in the larger context of European political theory. the Spaniards themselves had used the justiﬁcation of the Mare liberum approximately 60 years before. which Grotius defended.1. especially for the Spaniards. this connection is however not so clear. al. by James Brown Scott (Washington D. III. ‘Hispani primo debent ratione et suasionibus tollere scandalum.C. ed. in Verfassung jenseits des Staates . Spanish colonialism could be justiﬁed as a bellum iustum. Vitoria’s focus lies not only on global economics. (Berlin: Nomos Verlag. ‘Das ius gentium als Form der translatio imperii. III. 257. . Thus. but also on global politics. the year in which Jean Bodin published his Six livres de la république.80 J. Francisco de Vitoria argued along similar lines to those later taken up by Grotius. Thumfart / Grotiana 30 (2009) 65–87 Grotius and Vitoria Grotius wrote his legal opinion De iure praedae after 1576. See: Vitoria.72 According to Grotius’s interpretation of Vitoria.: Carnegie Institute of Washington 1917). Francisco de Vitorias Legitimation des spanischen Kolonialismus im Kontext der Arbeiten Miguel de Ulzurruns.Von der europäischen zur globalen Rechtsgemeinschaft. against whom Grotius made his case using this very argument. in Grotius’s interpretation of Vitoria.’. because Vitoria demands that the Spaniards try to convince the Amerindians by peaceful means before waging war against them. by Ingolf Pernice et..
Thumfart / Grotiana 30 (2009) 65–87 81 the Spaniards. p. II. Relectio de indis. It is necessary to quote the Latin version here. Vitoria. Grotius argued. II.’ 75 Ibid. if the Spaniards should be prohibited by the American Indians from travelling or residing among the latter.79 74 Grotius. are not fully translatable with all of their complex philosophical and theological connotations. XII. both the universal validity of the right to free trade and the refutation of papal authority were subject to signiﬁcant constraints.. p.’75 What made Vitoria’s argument interesting to Grotius and so appropriate to his attack on Iberian claims to monopoly was the fact that the Catholic Vitoria also refuted the papal claim to be ‘the lord of the world’ (‘dominus … totius orbis’). In fact. .J. De iure praedae XII. 235.3. Relectio de indis.77 However. 310.’74 It is of great historical irony that. to which Grotius refers. formulating his relatively complex opinion thus: ‘Papa non est dominus civilis aut temporalis totius orbis. Commentary. loquendo proprie de dominio et potestate civili’. p.76 Vitoria therefore provided Grotius with the line of argument he needed to refute the Iberian claims of monopoly that were based on papal authority. 77 Grotius. ‘Castellanis etiam in Americanos has justas potuisse belli causas esse … Victoria putat. in short. 206-207. 363. 240. ‘commercium’. pp. 240. He wrote: ‘Since it has been demonstrated … (with authoritative conﬁrmation drawn from Victoria and with the aid of examples) that a just cause of war exists when the freedom of trade is being defended against those who would obstruct it.1. ‘On the Indians Lately Discovered’.3. 76 Vitoria. Although Vitoria disagreed with the emperor’s claims of world domination in simple. Grotius turned Vitoria’s argument against the Iberians themselves. if they should be barred from the practice of commerce – these causes might serve them as just grounds for war against the Indians. 3. Grotius seems to have quoted Vitoria’s refutation of worldwide papal authority. in his defence of Van Heemskerck’s bellum iustum privatum. because Vitoria’s terms ‘peregrinare’. si denique ad commercia non admitterentur. p. 304: ‘Vitoria holds that. 79 Ibid. si peregrinari et degere apud illos prohiberentur. quae jure gentium aut moribus communia sunt. p. ‘participatio’. II. unambiguous terms – ‘Imperator non est dominus totius orbis’ (the emperor is not the lord of the world)78 – he signiﬁcantly mitigated his refutation of papal authority. p. p. Commentary. to Vitoria. xxi: ‘The pope is not civil or temporal lord of the whole world in the proper sense of the terms ‘lordship’ and ‘civil power’. si arcerentur a participatione earum rerum. or if they should be prevented from sharing in those things which are common property under the law of nations or by custom – if.. II. we arrive at the conclusion that the Dutch had a just cause for war against the Portuguese. 78 Vitoria.
Ptolomaei Lucensis.’ The global Christian mission was a task born of profound spiritual concerns.corpusthomisticum. 455-464 (p. in Corpus Thomisticum.3. The restriction of the freedom to trade by Vitoria does not. ed.10. the pope did not have direct political power over the world but. 84 Ibid. xli. ‘On the Indians Lately Discovered’. Die neue Ordnung 50.’83 According to Vitoria. ‘The pope [could] forbid others … to trade. this did not mean to Vitoria that the pope was not allowed to grant monopolies of trading to the Spanish and Portuguese. strangely enough. Continuatio S.’81 According to Vitoria. wrote Vitoria in the third section of his Relectio de indis. According to Vitoria. if the sovereigns of Spain could render more eﬀective help in the spread of the Gospel in those parts. 461). ut iam videbitur. III. p. which is why Vitoria ﬁnally drew the following conclusion: ‘It is the pope’s concern to bestow especial care on the propagation of the Gospel over the whole world. III.org/xrp. licet a temporalibus non excludatur. Rather. one can also easily interpret the text of the bull of 1493 Ibid. however. 81 80 .82 J. Utz. xli. S. the pope was therefore not the lord of the world in regard to actual political power. Thomae De regno.82 an indirect power. 82 Arthur F. II. following the pseudo-Thomist tradition.. 13. it is just that this travel should be forbidden to others and that the Spaniards should enjoy alone the fruits of their discovery. the raya of 1493 was therefore fully justiﬁed. p. To Vitoria. 2000). p. 6 (1996). http://www. This meant that the pope had temporal power. inasmuch as the temporal concerns the spiritual: ‘The pope is not temporal lord.’. Ibid. which was entrusted to the supervision of the pope. ‘Weltliche und kirchliche Gewalt bei Francisco de Vitoria’. Vitoria perceived the pope as having a potestas indirecta.’84 Since the aforementioned papal grants of overseas territories and trade monopolies were traditionally given as compensation for fulﬁlling the duty of Christian mission. Thomae de Aquino Opera Omnia. Thumfart / Grotiana 30 (2009) 65–87 To Vitoria. But. yet he has power in matters temporal when this would subserve matters spiritual. the pope could therefore ‘entrust it to the Spaniards to the exclusion of all others. xlii. global trade was powerfully connected to the global Christian mission.’ 83 Vitoria. eo modo quo ad spiritualia ordinantur. and as they then had the good fortune to discover the New World. oppose the line of economic-theological thought such as is to be found in Grotius’s Mare liberum. the reason for Vitoria’s stance on the supremacy of the pope over global trade lay exactly in the theological function which Vitoria believed trade to have.80 And furthermore: ‘Inasmuch as the sovereigns of Spain were the ﬁrst to patronize and pay for the navigation of the intermediate ocean. by Enrique Alarcón (Navarra: Universitatis Studiorum Navarrensis..html: ‘Dominium Christi ordinatur ad salutem animae et ad spiritualia bona.
24. ‘On the Indians Lately Discovered’. . the ius communicationis was denied by somebody else. xiv. one ﬁnds for example the following line of thought: ‘Mandare potest Papa inﬁdelibus quod admittant praedicatores. p. 58-67 (pp. 89 Innocent IV. in Fontes Historiae Iuris Gentium. for he can order temporal matters in the manner which is most helpful to spiritual matters. according to Vitoria. If.’87 To Vitoria as to Grotius. Grewe.’89 Although Innocent IV – as later did Vitoria90 – granted 85 ‘The bull Inter Caetera. Quod super his.6. 90 Vitoria. 350). if this would further the propagation of Christianity. I. ‘Pope Innocent IV on the Legal Status of Inﬁdels’. spiritual procedure which did not belong to the secular realm of politics so much as to the theological realm of matters spiritual. p.’85 For Vitoria as well. Thumfart / Grotiana 30 (2009) 65–87 83 from this perspective. 87 Ibid. European Treaties. xxxix. 3. xlii. Vitoria sketches the following scenario: ‘If there was to be an indiscriminate in-rush of Christians from other parts to the part in question. Quellen zur Geschichte des Völkerrechts. 348-350 (p. Vitoria’s assertion that only the pope could deny the ius communicationis clearly illustrates that the ius communicationis was. for Vitoria. PDF Version Gallica (Venice 1481). in Davenport. 3rd of May 1493’. In order that you may enter upon so great an undertaking with greater readiness and heartiness … we … give.. p. ‘We strictly forbid all persons of no matter what rank … without your special permit … to go for the sake of trade or any other reason … to the said islands and countries.’86 Reasoning why it might not be beneﬁcial for the Christian mission if all nations were allowed to go to America. II. xli. p.. they might easily hinder one another and develop quarrels.88 In Pope Innocent IV’s much cited comment on the subject. trade was therefore a meta-political. the Spanish trade monopoly was compensation of a kind for the Spanish duty to preach the gospel. by Wilhelm G. entitled to supervise the mission. grant and assign forever to you and your heirs … the aforesaid countries and islands’. Since the pope was. ‘On the Indians Lately Discovered’. Apparatus super quinque libris decretalium. Id. Vitoria envisaged the same punishment as the traditional canonical doctrines had decreed for anyone who prevented missionaries from preaching the gospel – the bellum iustum. pp. he could ‘not only … forbid others to preach. 62-63). however. but also to trade ….. p. to … the disturbance of the concerns of the faith and of the conversion of the natives. ed. The papal grant addressed the kings of Castile in the following way: It is ‘your duty to lead the peoples dwelling in those islands to embrace the Christian profession …. ultimately a principle that belonged to the domain of the spiritual power. 505.J. III. 86 Vitoria. 88 Ibid.
xli. after all. Ibid. 16. no page number. ‘On the Indians Lately Discovered’.93 The paragraph of the Bible on which Vitoria based his Relectio de indis deals directly with the Christian missionary imperative: ‘Go and make disciples of all nations. the history of salvation was expected to be fulﬁlled by the ‘conversion of all peoples’ to Christianity. III. Das Bellum Iustum des Hernán Cortés in Mexico. 24.’94 This passage from Matthew is intimately related to a similar verse in a preceding chapter. 95 Id. trade and mission have the same legal status in Vitoria’s De indis. To Vitoria.96 If the pope had. 93 Eberhard Straub. trade also had an important function in the Christian history of salvation according to Vitoria. xxxvi.’95 To Vitoria. 1992).92 Vitoria’s conception of trade also shares with Grotius’s its historico-teleological aspect. p. 96 Vitoria. Europe’s Prophetic Rhetoric as Conquering Ideology (Berkeley: University of California Press. 94 Vitoria..91 to a legal title of secular commerce. which he also defends. the right to travel and trade freely. Vitoria perceived ‘the end of time’ as being dominated by the pope as ‘one shepherd’ of ‘one ﬂock’: ‘In ﬁne saeculi ﬁet unum ovile et unum pastorem’. It was. Clearly Vitoria enhanced this ius praedicandi. To Vitoria. he also granted the pope the right to command the non-Christians to admit Christian priests among them. III. p.2. as to other contemporary Iberian authors.14. John 10. trade was a temporal instrument that concerned the spiritual realm because it helped to achieve the conversion of all peoples assumed in the Christian conception of the fulﬁlment of history. between p. the connection between the global Christian mission and eschatology is expressed even more succinctly: ‘This gospel of the kingdom shall be preached in all the world for a witness unto all nations. p. If they failed to admit these priests. Here. the pope would have to punish the non-Christians (‘puniendi sunt’).. Djelal Kadir. the ius communicationis. 15. p. 19. frontpage of Appendix A.9. II. It also fulﬁlled an important function regarding the future of the history of salvation. Thumfart / Grotiana 30 (2009) 65–87 the non-Christians the right to be the legitimate owners (veri domini) of their lands. the right to trade was not based upon the history of salvation alone. p. Relectio de indis. Matt. baptising them in the name of the Father and of the Son and of the Holy Spirit. 92 91 .84 J. In respect to the sanction of the bellum iustum and their close connection to the papacy. 288 and i.. and then shall the end come.3. Ibid. 28. In this sense. with its hypothesis of the common origin of all men. Columbus and the Ends of the Earth. 241. writes Innocent. As with Grotius. 32. the biblical narrative of the common Adamitic – or Noahic – origin of all mankind on which Vitoria based his notion of ius communicationis.
Grotius had derived this spiritual concept of trade from Vitoria’s allocation of trade to the spiritual domain of the pope. that is. Vitoria had not based his claim on a strong version of the doctrine of the providential function of commerce. In this respect. In Mare liberum. Particularly in regard to its historico-philosophical implications. 771. This is especially true in regard to the sanction of bellum iustum for the punishments of political acts against the principle of free trade. for Stoic thought and Grotius in general see: Hans Blom and Laurens Winkel (eds. Grotius was not the ﬁrst to assign to trade a speciﬁc function in the history of salvation. Grotiana 22/23 (2001/02). As this examination of the role of trade in Vitoria’s conception reveals. Thumfart / Grotiana 30 (2009) 65–87 85 according to Vitoria. To Vitoria. For Grotius had also inherited Vitoria’s idea of an intrinsic Christian morality of global trade and the connected notion of a possible punishment of restrictions of trade with a bellum iustum. Grotius dissolved the connection between the economictheological conception of trade and papal authority. a ‘power in matters temporal when this would subserve matters spiritual’. 98 97 . ‘Constructing International Law in the East Indian Seas’. to fulﬁl the history of salvation. this meant that the pope’s power extended to everything which served to put an end to ‘temporal history’. controlling and fostering trade was a means to reach this much-desired culmination of the Christian history of salvation. such a perception of trade can only be understood as stemming from the Christian tradition of associating trade with the mission of conversion. The quoting of Seneca was essential to the argument of the Mare liberum. a transmission of Christian economic theology from Vitoria to Grotius can be clearly demonstrated. Grotius’s quotation of Vitoria’s ius communicationis has far-reaching implications. as Porras suggests in her examination of the matter: ‘Unlike Grotius …. See supra n74. which was extant in Porras. Conclusion The principle of the Mare liberum in Grotius’s conception can undoubtedly be deduced from similar principles in Roman law.). p.J. it was the theological function of trade itself that remained. Grotius and the Stoa. As the papal authority was erased in Grotius’s Protestant conception.98 Grotius’s underlying assumption that trade was an inherently positive and moral phenomenon can however not be traced back to these sources. and from the cosmopolitan thought of the Stoics.’97 More likely. and in regard to an eschatological function of global trade.
203.’ 100 Schmitt. Grotius’s economic theology in the Mare liberum is of interest because it seems to be an example par excellence of what Sloterdijk in his reﬂection on globalization has labelled a ‘secular missionary science’ of early modern global trade. p. Politische Theologie. Geschichte eines ideenpolitischen Begriﬀs (Freiburg im Breisgau: Alber. 43. Rather. 99 . therefore. It follows. 102 Karl Löwith. There. Concerning this comparision between ‘economic theology’ and ‘political theology’ see: Agamben. Although the concept therefore underwent a gradual secularization. Meaning in History.101 It also seems to be an illustration of the connection between Christian mission and globalization that Löwith sketched in the last remarks of his Meaning in History. The Theological Implications of the Philosophy of History (Chicago: The University of Chicago Press. Für eine philosophische Theorie der Globalisierung (Frankfurt/M: Suhrkamp. 2004). Die theologischen Voraussetzungen der Geschichtsphilosophie (Stuttgart: Metzler.86 J. 23. Säkularisierung. 2005). Applying Schmitt’s notion of ‘political theology’ – that certain terms of political theory can be interpreted as ‘secularized theological concepts’100 – one can also interpret Grotius’s conception of free trade as a secularized theological conception of economy. Il regno e la gloria.: ‘Entzug oder die Entlassung einer Sache. meta-political authority of the principle of free trade. 14. See: Karl Löwith. 1975). supreme authority of the institution of the papacy with the absolute. Grotius’s secularization of global free trade did not involve any form of de-sacralisation. 103 In the German version. p. 101 Peter Sloterdijk. p. Lübbe deﬁned secularization as a ‘deprivation or release of a thing. the provocative conclusion is omitted. p. Im Weltinnenraum des Kapitals. quote originally in German. 218. that one can speak of an ‘economic theology’ regarding Grotius’s conception of free trade in De iure praedae and Mare liberum. Löwith asked rhetorically: ‘Is it perhaps that … the hope in a future Kingdom of God. p. Weltgeschichte und Heilsgeschehen. This signiﬁed a secularization in the very literal sense of the word. Grotius replaced the absolute.’99 However. In respect to its original historical meaning. Thumfart / Grotiana 30 (2009) 65–87 Vitoria’s Relectio de indis. p. the theological structure of free trade remained intact. and the Christian command to spread the gospel to all the nations for the sake of salvation have turned into the secular presumption that we have to transform the world into a better world in the image of man and to save unregenerate nations by Westernization and re-education?’102 It is only in the original English version of the book103 that Löwith also provocatively answers: ‘There are in history not only “ﬂowers of evil” but also Hermann Lübbe. 92: ‘säkulare … Missionswissenschaft’. eines Territoriums oder einer Institution aus kirchlich-geistlicher Observanz und Herrschaft. a territory or an institution from spiritual-ecclesiastical observance and dominion. 1957).
Nevertheless. Reading Grotius from the point of view of a history of legal ideas at least makes visible how missionary principles transformed into international law. ‘Erasing the Corporate Sovereign’. Further inquiries into the nature of economic theology may provide more clarity. summarizing the standard opinion. Grotius’s economic theology. p. unregulated markets do not necessarily transform private vices into public beneﬁts by divine providence. 104 105 Löwith. 78.105 Finally. . Thumfart / Grotiana 30 (2009) 65–87 87 evils which are the fruit of too much good will and of a mistaken Christianity that confounds the fundamental distinction between redemptive events and profane happenings. but rather tactical.J. If one should dare to answer the broad question of which came ﬁrst – an economic theology or economic interest – at least for Grotius. Löwith’s question about the ‘good’ or ‘evil’ of theology is probably the wrong question to ask. between Heilsgeschehen and Weltgeschichte. The Protestant Dutchman quoted the opinions of the Catholic Spaniard Vitoria because Grotius assumed Vitoria’s argument would have a great impact on the Spaniards and Portuguese against whom he argued. ‘Central to Grotius’s strategy was his reliance upon Iberian scholastics as a means of providing a series of irrefutable propositions to the Spaniards. It is indisputable that trust in the positive dynamics of free trade brought with it a global community of merchants more widespread.’ writes Wilson. especially in regard to its theological tradition. that Grotius himself utilized Vitoria’s economic theology for reasons neither intellectual nor theological.’104 In regard to economic theology. Meaning in History. Grotius’s text Mare liberum must be interpreted within the context of his legal opinion De iure praedae within which it was originally developed. more manifold and also more pleasant than any religious community of the past. was an argument developed in order to defend the economic interests of Grotius’s employers. but private vices can also simply lead to public and private disasters. It remains to be remarked. Wilson. however. the answer can be found on the solid ground of materialism. 203. p.
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