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: firstname.lastname@example.org
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.
Politische Theologie. 2006). 35. 9 Ibid. Der Gebrauch des Wortes Oikonomia im Neuen Testament. 2 (Vicenza: Neri Pozza. 43. See also: Gerhard Richter. English review of Agamben. a term that was developed as an enhancement of Schmitt’s thesis of ‘political theology’.
. An economic theology in this sense is a secular or. pp. Il regno e la gloria. 306-310. Adam’s Fallacy. Quesnay and Smith.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..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. Reaching for Heaven on Earth. A guide to Economic Theology (Harvard: Harvard University Press. bei den Kirchenvätern und in der theologischen Literatur bis ins 20. published a revised chapter of his legal
Giorgio Agamben. Foley. secularized concept of economy that has its roots in a theological idea. 14.8 According to Agamben. Jahrhundert (Berlin: De Gruyter. 7 Carl Schmitt. and was connected to the principle of free mission in the canon law of the Middle Ages. Oikonomia. who is today recognized as one of the fathers of international law. pp. 8 Agamben. the legal structure of state sovereignty appears to be derived from the theological concept of an omnipotent God. Thumfart / Grotiana 30 (2009) 65–87
Grotius’s Mare liberum. Grotius’s conception of the legal status of economy can be perceived as being theologically derived. revista internacional de fenomenología y hermenéutica 6 (2008). See: Duncan K. pp 95-106. 2005). Vier Kapitel zur Lehre von der Souveränität (Berlin: Duncker & Humblot. Il regno e la gloria. To Schmitt. Per una genealogia teologica dell’economia e del governo. Nelson. 2007). 2. Agamben likewise shows the theological background of early-modern economic theorists such as Linnaeus.J. Central to this interpretation is the application of Giorgio Agamben’s term ‘economic theology’ to Grotius. p.9 Following both Schmitt and Agamben.
Grotius and Vitoria: historical placement and economic-theological form In March 1609. 187-191. Johannes Thumfart. p. particularly by highlighting the impact of the Dominican friar Francisco de Vitoria’s Relectio de indis on Grotius’s ideas. 2004). This will be made clear by illuminating the theological background of Grotius’s Mare liberum. the New Testamentarian and patristic notion of a providential oikonomia had a considerable inﬂuence on the theory of economic laissez-faire. Homo sacer. Il regno e la gloria. p. Hugo Grotius (1583–1645). in Alea. It will be demonstrated that the idea of free trade evolved as an ‘economic theology’ in the seventeenth century. rather.
by Antonio Truyol y Serra et al. including those of equality. See: Peter Dooley. Logic Metaphysics. ‘La Place de Francisco de Vitoria parmi les fondateurs du droit international’. ed. the latter seems more plausible. p. Both of these men arrived at similar conclusions.11 However. p. Although Grotius and Vitoria were probably born exactly one hundred years apart (1483 and 1583).
10 Monica Brito Veira. 361). reciprocity and private responsibility. Freitas’. Grotius’s assertion regarding the necessity of free trade was not without precedent. Francisco de Vitoria. 13 Although there is a debate about whether Vitoria’s date of birth was 1492 or 1483. The Spanish Origins of International Law. 3 (2003). 3. ‘Mare Liberum vs. 2005). in the latter passage. 147. in which Hutcheson probably indirectly draws on Grotius by way of Pufendorf. The Labour Theory of Value (London: Routledge. Vitoria oﬀered one of the ﬁrst arguments on international trade. Les origines du droit international (Brussels: Castaigne. 65. 1986). 11.14 However. pp. Teichengraeber. According to Peter Dooley. 2004). Id. pp. The anonymous publication. by Michael Silverthorne (Indianapolis: Liberty Fund. Rethinking the Sources of Adam Smith’s Wealth of the Nations (Durham: Duke University Press. In this regard. dissertatio. in Actualité de la Pensée juridique de Francisco de Vitoria. 56-60. by Luigi Turco. See: María del Carmen Rovira Gaspar. Hutcheson mentions Grotius in two prefaces as an important inﬂuence. Teichengraeber on Hutcheson’s statements concerning private property: ‘Both the language and the substance of … [his] statements identify Hutcheson as a follower of Grotius. who in his De iure praedae also dealt with overseas trade. Mare Clausum: Grotius’. Free Trade and Moral Philosophy. ed. 8. law. a passage on property. 2007). (Bruxelles: Bruylant. was the ﬁrst modern attempt to establish the legal status of the high seas. 11. Latin with English translation on facing pages (Indianapolis: Liberty Fund. pp. 21n3. 31). 14 Ernest Nys.10 It was in this text that Grotius substantiated the normative ideals of global free trade. Thumfart / Grotiana 30 (2009) 65–87
opinion on the ‘law of prize and booty’ (De iure praedae). Journal of the History of Ideas 64. 11 Richard F. Grotius relied heavily on the arguments for free trade put forth by Francisco de Vitoria nearly one century earlier. 1988). 20-26. It would prove instrumental for Grotius. In his De iure praedae. by James Moore and Michael Silverthorne. See: Francis Hutcheson. 2006). and Selden’s debate on dominion over the seas’.12 In his Relectio de indis of 1539. the full title of which is Mare liberum sive de iure quod Batavis competit ad Indicana commercia. who read and quoted Grotius. 27-80. and the Natural Sociability of Mankind.. See also p. James Brown Scott. p. Hutcheson refers explicitly to Grotius’s ‘law of nature and nations’. 361-377 (p. (p. 5.’. el poder y el hombre (México: Miguel Angel Porrua. Philosophiae Moralis Institutio Compendiara with A Short Introduction to Moral Philosophy. p. transl. and the implications of the Christian mission for Europe’s relationship to overseas territories.13 both are considered to be the father of international public law. España y América. Grotius’s thinking considerably inﬂuenced Adam Smith (1723–1790) by way of Smith’s mentor Francis Hutcheson (1694–1746). Travaux de la journée d’études organisée à Louvain-la-Neuve par le Centre Charles de Visscher pour le Droit International. 12 Peter Haggenmacher. ed. 1894). Hutcheson also paraphrases Grotius in his ‘Observations on “The Fable of the Bees” ’.68
J. Francisco de Vitoria and his Law of Nations
Firstly.). p. This concept can be called an economic theology in the Schmittian sense particularly with regard to Schmitt’s notion of political theology. for both Grotius and Vitoria.J. under the threat of a ‘just war’ (bellum iustum). 43. but extends further.
. pp. Christoph A Stumpf. Hugo Grotius: Theologian. one can speak of a tradition of the ‘providential function of commerce’ within which Grotius and Vitoria operated. Hugo Grotius and the Moral Foundations of International Relations (Berlin: De Gruyter. The role of Providence in social order. 15 In regard to Francisco de Vitoria. originally published Oxford: Clarendon Press. it will be shown that Grotius’s main theological argument in favour of free trade also stems from Libanius. Regarding the theological thought of Grotius. 50. like Vitoria. The form of economic theology underlying the arguments of Vitoria and Grotius has two important characteristics.18 In the case of Vitoria and Grotius. 2000. developed his arguments within the framework of theology. The Grotian Theology of International Law. In this respect. this is an obvious statement. Essays in Honour of G.H. In the section of this essay. Studies in the History of Christian Thought 55 (Leiden: Brill. the great importance of free trade is the result of theological viewpoints that underwent a gradual secularization. see: Henk J. Secondly. 43. 18 Ibid. can be interpreted as an economic theology. subtitled ‘The theology of free trade’. 2006). Nellen and Edwin Rabbie (eds. 16 Viner. 1934)..15 Accordingly. the reﬂections on the law and politics of free trade that Vitoria and Grotius present within the scheme of their conceptions of international law. M. Posthumus Meyjes. See supra n. As previously noted. to their common intellectual foundation. In the ‘systematic structure’ (‘systematischen Struktur’) of both global political conceptions. Quote originally in German. the concept of free trade serves as the highest. It is therefore possible to apply Viner’s term to Grotius. 1994). an economic theology that can be understood within the framework of Schmitt’s notion of political theology. Politische Theologie.
(New Jersey: The Lawbook Exchange. ‘last’ (‘letzte’) principle17 to which political power has to subordinate itself. 17 Schmitt. for the cause of the maintenance of global free trade and open borders.16 This position axiomatically assumes that there is a historico-teleological tendency inherent in global free trade. Grotius.M. 7. p. such that the purpose of free trade is to unite the world in peace. both develop the normative ideal of global free trade on the basis of the history of salvation. Thumfart / Grotiana 30 (2009) 65–87
the connection between Grotius and Vitoria is limited neither to their respective historical impacts nor to the considerable degree to which Grotius quoted Vitoria. Viner uses this term in respect to Libanius and early Christian theologians. 37. the requisite openness of global exchange is. Schmitt deﬁned political theology as ‘secularized theological concepts’ in the political realm.
or “on How to distinguish Merchants from Pirates”’. 770). 84-87). Inter-Textuality and an Alternative Explanation for the Publication of Hugo Grotius’ Mare liberum (1609)’. ‘Die protestantische Ethik und der Geist des Kapitalismus’.70
J. Commerce and War in Hugo Grotius’ De iure praedae – The Law of Prize and Booty. 21 Eric Wilson. With these ﬁtting words. (p.
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. Because the Spanish had themselves previously used the notion of a right to travel and trade freely in order to legitimize the conquista. 17-206 (pp. Carl Schmitt. De iure praedae commentarius. it should be noted that the reprise of Catholic-Iberian arguments was of practical use for Grotius. Having been hired by the VOC directors. the writings of Vitoria. 756. among other sources. 1997). 1988). which he then proceeds to put into perspective. 78). 741-804 (pp. was commissioned by the Verenigde Oost-Indische
19 Max Weber. 20 Lleana Porras. 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. This work. ‘Erasing the Corporate Sovereign. Brooklyn Journal of international law 31. 3 (2006). 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. 151. Gesammelte Aufsätze zur Religionssoziologie I (Tübingen: Mohr Siebeck. which the Protestant humanist Grotius inherited by way of. In this context. Wilson recapitulates the standard opinion on the subject. This is because the full text was not published until 1868. in Id. nor be conceived of as a result of Weber’s famous notion of the Protestant economic theology of ‘inner-worldly ascetism’ (‘innerweltliche Askese’). Grotius promoted Dutch interests against the claims of the Portuguese and Spanish to trade monopolies in the East and West Indies. 2 (2006).. 78-103. Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Berlin: Duncker & Humblot. Sovereignty.19 Grotius’s and Vitoria’s economic theology is a genuine product of the Catholic-Christian tradition.
. ‘Constructing International Law in the East Indian Seas: Property in the East Indian Seas: Property. 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. Itinerario 30. which also included preemptive strikes.
23 Hugo Grotius. I. 48). Tordesillas (1494). 2006). Although the – not yet independent – Dutch provinces were at war with Spain and Portugal at the time. 1595 – 1615 (Leiden: Brill. G. which took place in the early morning hours of February 25th 1603. 59-62. located between the Malayan peninsula and the island of Sumatra. ‘Tordesillas 1494 – Der Beginn einer globalen Weltsicht’. 39-62 (p. 24 Peter Borschberg. 25 Porras. He characterized the capture of the Portuguese ship and the keeping of the prize as lawful. 5. 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. ‘The Seizure of the Sta. (Indianapolis: Liberty Fund. p. I (2003). Natural Rights Theories and the Rise of Dutch Power in the East Indies. ed. in his legal capacity. p.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.O. and Saragossa (1526). Hugo Grotius. Politics and the Origins of Dutch-Johor Alliance. Commentary on the Law of Prize and Booty. a legal act of private war. transl. pp. the young lawyer Hugo Grotius defended the overseas interests of his nation and his employer VOC. Saeculum 54. Proﬁt and Principle. De iure praedae. as outlined in the treaties of Alcáçovas (1479). 755. 31-62 (p. XII. Hamaker (Den Haag: Nijhof. (1602 – 1616)’.C. 35). Since the discovery of the Canary Islands in the fourteenth century and the discovery of the Americas from 1492 on. Del Tratado de Tordesillas a la Doctrina de los Derechos
. pp.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. for which Van Heemskerck had sailed. Grotius. Hugo Grotius. 1868). 2006). by Martine Julia van Ittersum. an assertion he had developed mostly from an historical perspective.22 The trial dealt with the capture of the Portuguese merchant ship Santa Catarina by the Dutch admiral Van Heemskerck. V. Grotius’s ﬁrst line of argument denied the legitimacy of the Spanish and Portuguese trade monopoly on the world’s seas.J. VI. Catarina Revisited: The Portuguese Empire in Asia. the Spanish and the Portuguese had claimed trade and shipping monopolies. 127-142 [hereafter: Commentary]. Juan Goti Ordeñana. The complex question (‘multiplex disputatio’23) was whether the private trading company VOC.25 As was expected of him. by Gwladys L. De iure praedae. 26 Ute Schneider. ‘Constructing International Law in the East Indian Seas’. Despite the mostly secular character of the treaties of Tordesillas and Alcáçovas. both parties of conﬂict were private ships that were not formally engaged in acts of war. in the Strait of Malacca. Thumfart / Grotiana 30 (2009) 65–87
Compagnie (VOC) on the occasion of a trial concerning the law of prize. 1 (2002). by H. See: Martine Julia Van Ittersum. pp. 108-188. Williams and ed. Journal of Southeast Asian Studies 33.
Eberhard Straub. 61.29 In the fourteenth century. Universidad de Valladolid. 48. p. 1989). Tome 1. p. Abulaﬁa. Die mittelalterlichen Ursprünge der europäischen Expansion . those treaties which the Iberian kings and the papacy had concluded during the process of the reconquista of the Iberian Peninsula. 72..72
J. p. who had not engaged in a war against Christianity thus far. Tome 1. James A. 65-66.31 As the ﬁrst Christian European countries to interact with
Fundamentales en Francisco de Vitoria (Valladolid: Secretariado de Publicaciones e Intercambio Cientíﬁco. The Discovery of Mankind. and its Dependencies to 1648. 1991). Reconquista und Landesherrschaft. p. pp. Summa Aurea. 351.28 Within the context of the reconquista and the conduct of a ‘just war’ against the Muslims. De Treuga et Pace. (München: Beck. ‘Grotius and Vitoria on Natural Law and
. by Wilhelm G. The Discovery of Mankind.). 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. 1995). Goti Ordeñana. Welteroberung und Christentum. 293. 30 Eberhard Schmitt and Charles Verlinden (Ed. ed. p. 2008). ‘Holy War and the Medieval Lawyers’ In Id. In his bull Inter caetera of 1493. p. by Frances Davenport (Washington D.C. 89. The Crusades. Ein Handbuch zur Geschichte der Neuzeit (Gütersloh: Gütersloher Verlagshaus. p.27 Such political-theological intertwining of papal power and Portuguese-Spanish claims can be traced back to. ‘Reduction of the Teachings of Innocent IV on the Legal Status of Inﬁdels’. pp.S. Del Tratado de Tordesillas a la Doctrina de los Derechos fundamentales en Francisco de Vitoria. 37. 10. in Fontes Historiae Iuris Gentium. Martini Abbatis (Venice 1574). by F. pp. ed. column 359. Horst Gründer. Brundage. Jörg Fisch. ed. Grewe (Berlin: De Gruyter. European Treaties Bearing on the History of the U. David Abulaﬁa. 149-165. Die europäische Expansion und das Völkerrecht. Holy War and Canon Law (Aldershot: Variorum. See also: Id. 218. 87. Das Bellum Iustum des Hernán Cortés in Mexico (Köln und Wien: Böhlau.30 In the case of non-Christian peoples. 72. 27 The bull Inter caetera. 1917). 114). which the secular kings were obliged to organize and ﬁnance. Histoire du nouveau monde. 189-190.: Carnegie Institution of Washington publication. such as the Canarian Guanches and the Amerindian tribes.. 1992). pp. 31 Abulaﬁa. 99-140 (p.und Verfassungsgeschichte Spaniens im Mittelalter (Paderborn: Schöningh. in. The Discovery of Mankind. 1976). Studien zur Rechts. 1991). Atlantic Encounters in the Age of Columbus (New Haven: Yale University Press. pp.. 29 Hostiensis. Thumfart / Grotiana 30 (2009) 65–87
from the tradition of papal grants concerning overseas territories. 1999). as had been put forward by Hostiensis during the thirteenth century. 20.Dokumente zur Geschichte der europäischen Expansion. pp. Martin Van Gelderen. Quellen zur Geschichte des Völkerrechts. De la découverte à la conquête (Paris: Fayard. 28 Carmen Bernand and Serge Gruzinski. 1986). among other sources. the pope apportioned their lands as compensation for the duty of Christian mission in these territories. 72-75. p. 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. 32-41. Die europäische Expansion und das Völkerrecht (Stuttgart: Franz Steiner. pp. 4th of May 1493. Pope Alexander VI divided the world’s oceans. Fisch. Odilo Engels. 82. 1984). donating half to the Spanish and half to the Portuguese.
87. De iure praedae. Schmitt and Verlinden (Ed. 34 Grotius. Clement VI: the Pontiﬁcate and Ideas of an Avignon Pope (Cambridge: Cambridge University Press. Grotius quotes those historical justiﬁcations only in order to refute them. Exploration and Colonisation from the Mediterranean to the Atlantic. writes Clement. p. p. were believed to be unﬁt to be rightful owners (veri domini) because of their lack of faith and morals. XII. the apportionment made by Alexander VI was illegitimate because
International Relations’. 93. fol. 308. Grotiana 14/15 (1993/94). the nonChristian princes. Ste-G. non-Christians lose their right to dominium’. 13). pp. 341r. Gründer. 1989).. in part Mohammedans’. Diana Wood. p. Thumfart / Grotiana 30 (2009) 65–87
overseas peoples in this way. cited after: Wood. Clement VI. which – in the eyes of Pope Clement – inﬁdels could not possibly have. sed ymago virtutis solum. 210..’32 ‘Nullum dominium debet esse sine virtute. See also: Felipe FernándezArmesto. Commentary. 190.).. partim Mahumetani’34 – ‘in part idolaters. 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.’36 Grotius also refutes the raya of pope Alexander VI. pp. 207. Sermon 45. 194n90. p. Historisches Jahrbuch 46 (1926). Ergo nec verum dominium cum sine ﬁde impossibile sit placere deo. 343r. 35 Id. p. cited after Wood.
. And the act of snatching from them. 240. According to Grotius. In the case of the East Indies in particular. 180. Clement VI. 209.35 However. According to Grotius. as Grotius wrote. (pp. 192. which granted non-Christian territories as compensation for the task of religious conversion. Before Columbus. 308. Pedro Leturia. Pope Clement VI wrote: ‘Forte enim inﬁdeles ratione inﬁdelitatis merentur perdere omnem dominium. 193n83. 33 Ibid.’33 ‘By reason of their inﬁdelity. 11-71. 32 Clement VI. p. 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. 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. ‘partim idolatrae. Die mittelalterlichen Ursprünge der europäischen Expansion. 3-37 (p. ‘Der heilige Stuhl und das spanische Patronat in Amerika’. According to Grotius’s evaluation.. 66-68). Dominium presupposed morals. Welteroberung und Christentum. 36 Ibid. 1987). 1229 – 1492 (Basingstoke: Macmillan. pp.J. the Spanish and the Portuguese beneﬁted most from such donations. 232. The indigenous rulers of these territories. fol. 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. In inﬁdelibus autem nulla est virtus. On the occasion of the donation of the Canary Islands.
. see: Grotius. which inevitably leads to the ﬁgure of a bellum iustum privatum. derived from Roman law. such an unusual act of private war could be justiﬁed because in the Strait of Malacca. However. 309. He applies the principle of the Freedom of the Seas. 68.40 Grotius argues that Van Heemskerck defended his natural right freely to travel and trade on the world’s seas against illegitimate Portuguese claims. p. pp.. Grotius concludes. he concludes. Grotius. inst. Following this principle of the Freedom of the Seas. VIII. which was later reworked and separately published as Mare liberum. I. such a defence of one’s own natural right does not have to be a reaction to a concrete attack. De iure praedae. a term however that Grotius himself does not use. Les origines du droit international. See: Grotius.74
J. He quotes Augustin’s classic deﬁnition of the bellum iustum: ‘Justa autem bella deﬁniri solent. Commentary. if the pope had acted only as ‘arbiter between the two peoples …. Thumfart / Grotiana 30 (2009) 65–87
no one could grant what was not his. Van Heemskerck had been far from the range of any state power that could have defended his natural rights. chapter: ‘Quae justa sit causa eﬃciens belli privati’. Commentary.’37 In contrast to the Iberians’ politically-theologically founded claims.’. for example the breach of a contract or a military aggression. 11. Grotius interprets this right to compensate an unjust act as also extending to private persons. 42 Ibid. 142: ‘A private war is undertaken justly in so far as judicial recourse (judicium) is lacking.38 ‘The sea is an element common to all’. p.39 So. writes Grotius.’42 According to Grotius. see also: Gai. p. p. De iure praedae. 322. II. the criterion for a bellum iustum is the compensation for an unjust act. Grotius classiﬁed the procedure of the VOC’s captain Van Heemskerck as a ‘private just war’ (bellum iustum privatum). quatenus judicium deﬁcit. p.’
. ‘Constructing International Law in the East Indian Seas’. p. p. VIII. to international maritime waters. Ernest Nys. Van Heemskerck therefore had to defend his natural right himself: ‘Eatenus juste bellum privatum suscipitur. the Santa Catarina and her crew could be rightfully punished due to their
Ibid. 127-142. 95. 41 To Grotius. it can be sailed by everyone. Dig. p. quae ulciscuntur injurias. Van Heemskerck’s capture of the Santa Catarina had not been preceded by a Portuguese attack. Commentary. This is the basic argument of the twelfth chapter of Grotius’s legal opinion De iure praedae. Grotius depicts a system of equal states. 40 Porras. legitimized by natural law.5.1. 59-62.41 According to Grotius. 39 Grotius. 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.8. and the pope did not own the nonChristian territories that he gave away in 1493. On the other hand. VI. 755..
44 Therefore. ad quo tenetur homo. 160): ‘Si vel Deus non esset vel nihil praeciperet. II.
. 46 Francisco de Vitoria. 49-67 (p. Grotius’s conception of natural law can be interpreted as a secularized one. Die Begründung der globalpolitischen Philosophie. Grotius applied Gregory of Rimini’s famous notion – ‘etiamsi daremus … non esse deum’ – to natural law. since we derive advantages from civil society. cum primum venit ad usum rationis’. Supranationales und kosmopolitisches Denken von Vitoria bis Smith’.. 9.48 to make the argument that natural law would still be valid even if ‘god
43 Ibid. ‘De eo. Zu Francisco de Vitorias relectio de indis recenter inventis von 1539 (Berlin: Kulturverlag Kadmos. Chapters: ‘ “Yo le compro llanamente” – Vitorias Haltung zu conquista und Sklaverei in den Briefen’.43 whose claim to a monopoly on traﬃc on the world seas was itself in contradiction to natural law. but can also be read as referring only to the theological categories of peccatum and malum morale.. 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. in quibus jus naturae et gentium. 48 Hugo Grotius. ‘Cosmopolis.J. there would be neither sin nor unethical acts.45 ‘If god did not exist’. ‘Lex divina und ius naturale’.: Carnegie Institution of Washington. 158: ‘Individual citizens are also bound by the act of the state.’ I will later come back to this passage. that we should likewise suﬀer its disadvantages. Völkerrecht – Politik – Kirche (Stuttgart et al. De jure belli ac pacis libri tres. Vitoria concludes. In Vitoria’s thought. said Vitoria in one of his relectiones. Deutsche Zeitschrift für Philosophie 53 (2005).C. quin nullum esset proprie peccatum aut malum morale’. in Id. p. 92-187 (p. Latin with German translation on facing pages. 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. p. pp. If God did not exist. item juris publici praecipua explicantur.. 1913).46 In contrast to Vitoria’s position. ‘there would be no sin nor a moral ﬂaw’.47 In his chef d’oeuvre. reproduction of the edition of 1646 (Washington D. This formula is however not explicitly applied to international law by Vitoria. Vorlesungen II.. 55).’ 44 Ibid. ego non dubito. even natural law bears traces of positivism inasmuch as its content is dependent upon the will of God in his function as universal legislator. it is in keeping with natural equity. by James Brown Scott. Indeed. Grotius argues.: Kohlhammer. Vitoria denies the possibility of a morality without the laws that are based upon the will of God. 1997). 2009). p. we arrive at the conclusion that the Dutch had a just cause for war against the Portuguese. Thumfart / Grotiana 30 (2009) 65–87
belonging to Portugal. 47 Georg Cavallar. prolegomena. XII. With these words. De iure belli ac pacis. edited by Ulrich Horst et al. 45 On Legal Positivism at Vitoria see: Johannes Thumfart. The theology of free trade Grotius’s predecessor Vitoria’s concept of the source of law can be regarded as theological voluntarism. 5.
.O. East India Trade and the King of Johor’. Der Nomos der Erde. Geschichte der Rechts. which Grotius qualiﬁed as a bellum iustum privatum. however. ‘Secularization in De Iure Praedae: from Bible Criticism to International Law’. Grotiana 19 (1989).50 Against an international order dominated and regulated by the papacy and the monopolies it granted.C. Id. Paola Negro.49 In De iure praedae. 53 Christoph A. 2 (1999). Epochen der Völkerrechtsgeschichte. Archiv des Völkerrechts 41 (2003).1. universalist line of legal thought. which legally separated the high seas from the European continent. Damasus Trapp and Venicio Marcolino (Berlin and New York: De Gruyter. 225-248 (p.und Staatsphilosophie (Tübingen: Mohr Siebeck. ‘The Seizure of the Sta. pp. but it can be regarded as an intellectual formula that follows the medieval tradition of the discussion of impossible hypotheses. the policy of the VOC. On this count. 2006). p. to be a recipe for mere anarchy. ed. 35). Thumfart / Grotiana 30 (2009) 65–87
did not exist’. (1602 – 1616) ’. 1 (2002). Grotius’s role must be conceived as a ‘connector’ between traditional Christian international law and modern international law (‘Bindeglied ’). 244). 235. V. 52 Peter Borschberg. With his apologia of the bellum iustum privatum. Ernst Wolfgang Böckenförde. this formula does not necessarily imply a secularization. but also the father of the delimitation of European public law beyond the line of amity. Grotiana 26/28 (2005/2007). 50 This paper deals with the secularization in De iure praedae from the point of view of the history of legal ideas. 83-100 (p. 341n4. qu. 12). While Grotius’s formulation of the Freedom of the Seas seems. ‘Hugo Grotius. In this case too. he presents an international order of free commerce and traﬃc. on the surface. Lectura super primum et secundum sententiarum. 147-191. 31-62 (p. 1980).51 This is particularly true in regard to coophandel met force (‘trade supported by the force of arms’52).2. p. 3-23 (p. 34-37. Catarina Revisited: The Portuguese Empire in Asia. Grotius cannot be considered to be simply the father of public international law. 59-69. on closer examination. by A. Muhamaad al-Shaybani und Hugo Grotius als Exponenten religiöser Völkerrechtstraditionen’.76
J. 51 Schmitt. ‘Völkerrecht unter Kreuz und Halbmond. ‘A Topos in Hugo Grotius: “Etiamsi daremus non esse Deum” ’. the Grotian principle of the Freedom of the Seas appears to represent a monist. Grewe. In itself. 95).53 By developing his principle of the Freedom of the
49 Gregory of Rimini. just as the phrase ‘si per impossibile … deus ipse non esset’ is used by Gregory of Rimini. Journal of Southeast Asian Studies 30. Grotius gave the anarchic competition of private trading companies and pirates on the oceans of the seventeenth century the ﬁrst internationally recognized legal justiﬁcation.
. Journal of Southeast Asian Studies 33. For a discussion of this thesis that is more focused on theology. art. Stumpf. pp. 181-193. see: Mark Somos. Politics and the Origins of Dutch-Johor Alliance. the secularization that Grotius undertakes seems immediately more obvious. dist. however.
licere cuivis genti quamvis alteram adire.
. 206. Commentary.J. this principle of natural law is truly meta-political inasmuch as it cannot be abrogated by any political force. on which the Iberian claims to a monopoly of trade had originally rested. The role of Providence in Social Order. 7. 58 Viner. 56 Ibid. I. p. 2001. ed. by James Brown Scott and transl. cumque ea negotiari.’. 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. 55 Id. ‘most secure and unchanging’ principle – regula certissima. Grotius only writes ‘licere Batavis’. The Freedom of the Seas is depicted by Grotius as a supreme.’54 In Grotius’s conception. the principle of the Mare liberum is essentially of the same value and strength as the papal dominium orbis of the middle ages. 40-54. 1916). Grotius secures an absolute. De iure praedae XII. cuius perspicua atque immutabilis est ratio. repr. The Freedom of the Seas or The Right which Belongs to the Dutch to take part in the East Indian Trade. the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it. 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. I therefore quote the Mare liberum version.. 57 Id. Grotius himself referred to a ‘jus … sanctissimum’. To Grotius. See: De iure praedae. Grotius not only negated the principle of papal supremacy. 205: Instead of ‘licere cuivis genti’.55 This absolute.58 The regional. Hugo Grotius. truly meta-political validity of the Mare liberum through the connection of his principle of free trade to theological premises. The version in the De iure praedae diﬀers. p. pp. quod primarium vocant regulam certissimam. cuius perspicua atque immutabilis est ratio: ‘Fundamentum struemus hanc iuris gentium..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. Whilst papal blessing had legitimized the global Iberian trade monopoly. Thumfart / Grotiana 30 (2009) 65–87
Seas. truly metapolitical quality of Grotius’s conception of free trade is also very clearly reﬂected in the language he chooses to use. of: New York: Oxford University Press. 304. such as a republic or a prince (‘ullam rempublicam aut principem’). p. Latin with English translation on facing pages (New Jersey: The Lawbook Exchange. by Ralph Van Deman Magoﬃn. p. XII.56 a ‘sacrosanct law’. 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.
Commentary. does not necessarily depend on Christian narratives. Douglas A. which is why I use the Mare liberum version here again. Grotius himself wrote that natural law is independent from the events of the Christian history of salvation. God has unequally distributed the goods of the Earth because ‘it was his will that human friendships should be fostered by
Porras.. 61 Id. Id. 33: ‘Jus est semper.
. which is an important aspect of Grotius’s doctrine of free trade. Against the Tide. p.78
J. 1996). 280. Inasmuch as the Christian God is conceived as the creator of nature. which Grotius like all theorists of natural law was preoccupied with deciphering. 756. pp. continental and national diﬀerences. According to Grotius. if not because it was His Will that human friendships should be fostered by mutual needs and resources. 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. Irwin.’ 64 Dickey for example links Grotius’s understanding of free trade to the Stoic notion of oikeiosis. The Freedom of the Sea. This passage is formulated slightly diﬀerently and less sharply in De iure praedae. pp.etiam post Christum’. p. 761. he is also the creator of those regional. Commentary. Grotius. ‘Constructing International Law in the East Indian Seas’. p. argues Grotius. ‘Deus hoc ipse per naturam loquitur’. De iure praedae III. wrote Grotius in Mare liberum:60 ‘For God has not willed that nature shall supply every region with all the necessities of life. 302-303.. 36-37. pp. He has granted pre-eminence in diﬀerent arts to diﬀerent nations.’61 With this argument. An Intellectual History of Free Trade (Princeton: Princeton University Press. 42. 63 Grotius. The role of Providence in Social Order.64 His ideas are strongly connected to the Christian history of salvation inasmuch as they can be conceived teleologically. ‘Doux commerce and humanitarian values’. Dickey. and furthermore.59 The logic inherent in creation. therefore points directly towards an openness of global trade. ‘God himself says this speaking through the voice of nature’. 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.62 This pre-Christian line of thought seems to be an important aspect of Grotius’s economic theology which. Why are these things so. 62 Viner.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. which ultimately force mankind to maintain economic global contact. 7. it is valid even for times after the advent of Christ. 16-17. although not the only one. pp. inasmuch as it is based upon natural law. 54-55: ‘Law is valid for all times. pp. Thumfart / Grotiana 30 (2009) 65–87
respective lacks and surpluses of resources forced humankind to maintain global economic contact with one another.
71 Seneca. 70 Aristotle: Politics. expressed his strong critique of trade in general. which enables man to trade globally and traﬃc goods. MA. in Id..66 Grotius writes: ‘Fiet ita quod apud prophetam est. p. it is obvious that he is using Seneca’s words selectively..’68 But a Stoic origin of this justiﬁcation of trade is not ultimately plausible. and transl. 66 Ibid. 760. 18. Corcoran. p. De iure praedae XII.J. the ideal of economic expansion was unknown to antiquity. Naturales Questiones.’65 Seen from this perspective. 1972). p. 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. 69 Jacob Viner.. by Thomas H. Grotius. p..’ 68 Ibid. 1257 b 22. or self-suﬃciency. 763. De iure praedae XV. ‘Constructing International Law in the East Indian Seas’. According to Viner. an intensiﬁcation of global trade can also fortify friendships among human beings and is therefore desirable from a historico-philosophical point of view. Grotius also quotes Seneca in order to legitimize the providential aspect of his economic theology: ‘In Seneca’s opinion. To Seneca. 303. that all merchandise and all proﬁt shall be consecrated to the Lord. 303-304. for example.
65 Id. pp. Porras. ‘Early Attitudes towards Trade and the Merchant’. ‘Constructing International Law in the East Indian Seas’. Latin with English translation on facing pages (Cambridge. p. The antique conception of economy was mostly oriented towards the ideal of autarkeia. 114-115. pp.: Harvard University Press. In line with these teleological dynamics of free trade. international trade was not at all an entirely positive phenomenon.70 As for the passage from Seneca’s Naturales quaestiones. tome II. 18. 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. 468: ‘Isaiah prophesied. V. which Grotius quotes in order to strengthen his economic-theological thesis. 39-41). ed. Commentary. p. Porras. 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.
. 67 Isaiah: 23. XII. 4-5. Essays on the Intellectual History of Economics (Princeton: Princeton University Press. 321.. 761.69 It was along these lines that Aristotle. While Seneca does praise divine providence. 1991). 205. Latin phrase: Id. Thumfart / Grotiana 30 (2009) 65–87
mutual needs and resources (voluit mutua egestate et copia humanas foveri amicitias). p. ut negotiatio et quaestus omnis Deo consecretur. 39-45 (pp. Commentary. 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.’67 Indeed.
Thus. the year in which Jean Bodin published his Six livres de la république. The right freely to travel and trade had been used by the Spaniards in order to legitimize Spanish colonialism in South and Central America. 15-39. In his Relectio de indis of 1539. 2009). p. the Spaniards themselves had used the justiﬁcation of the Mare liberum approximately 60 years before.: Carnegie Institute of Washington 1917).1. ‘Das ius gentium als Form der translatio imperii. 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. ed. by Ingolf Pernice et. III. ‘Hispani primo debent ratione et suasionibus tollere scandalum.80
J. the latter accused the indios of having denied the Spaniards their right to travel freely on their land by trying to expel them. but also on global politics. literally the ‘right of communication’. Vitoria’s focus lies not only on global economics. because Vitoria demands that the Spaniards try to convince the Amerindians by peaceful means before waging war against them. pp. which allowed the Spaniards and any other nation to trade with any people they wanted and to travel wherever they pleased. On the contrary. p. 257.72 According to Grotius’s interpretation of Vitoria. Spanish colonialism could be justiﬁed as a bellum iustum. 73 For Vitoria himself. III. in Grotius’s interpretation of Vitoria.Von der europäischen zur globalen Rechtsgemeinschaft. Vitoria called this principle the ius communicationis. As Grotius never ceases to mention. The primacy of universal principles over local sovereignties. Die Begründung der globalpolitischen Philosophie. which served the defence of the natural right of
72 Francisco de Vitoria. Id. But this did not necessarily devalue Grotius’s position. Vitoria granted the Spaniards the right to defend their natural right to travel and trade freely in a ‘just war’ (bellum iustum). al. (Berlin: Nomos Verlag. which Grotius defended. Vitoria declared an unchangeable right to travel and trade freely. against whom Grotius made his case using this very argument. outside of which the principle of territorial or state sovereignty did not play a great role until at least 1945. especially for the Spaniards. See: Thumfart. for Grotius did not conceive his principle of free trade for the European continent alone.
.1. Francisco de Vitorias Legitimation des spanischen Kolonialismus im Kontext der Arbeiten Miguel de Ulzurruns. Hernán Cortés’ und Bartolomé de las Casas’. Thumfart / Grotiana 30 (2009) 65–87
Grotius and Vitoria Grotius wrote his legal opinion De iure praedae after 1576. For in some respects it was a locus classicus. Relectio de indis. this connection is however not so clear. Relectio de indis recenter inventis.C. by James Brown Scott (Washington D. See: Vitoria. 260. Unlike Grotius’s position in Mare liberum.73 In this way. ed. was therefore outdated in the larger context of European political theory. Francisco de Vitoria argued along similar lines to those later taken up by Grotius.. in Verfassung jenseits des Staates .’.
if they should be barred from the practice of commerce – these causes might serve them as just grounds for war against the Indians. Grotius seems to have quoted Vitoria’s refutation of worldwide papal authority.. 78 Vitoria. It is necessary to quote the Latin version here. De iure praedae XII. 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.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. to Vitoria. in his defence of Van Heemskerck’s bellum iustum privatum. formulating his relatively complex opinion thus: ‘Papa non est dominus civilis aut temporalis totius orbis. si peregrinari et degere apud illos prohiberentur. to which Grotius refers. p. II. 240. 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.3.’74 It is of great historical irony that. XII. 77 Grotius.79
74 Grotius. p. both the universal validity of the right to free trade and the refutation of papal authority were subject to signiﬁcant constraints. Commentary. pp. II.77 However.1. p. Relectio de indis. p.
. 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. II.. si arcerentur a participatione earum rerum. p. xxi: ‘The pope is not civil or temporal lord of the whole world in the proper sense of the terms ‘lordship’ and ‘civil power’. ‘Castellanis etiam in Americanos has justas potuisse belli causas esse … Victoria putat. 310. Grotius turned Vitoria’s argument against the Iberians themselves. in short. we arrive at the conclusion that the Dutch had a just cause for war against the Portuguese. loquendo proprie de dominio et potestate civili’. Although Vitoria disagreed with the emperor’s claims of world domination in simple. In fact. 76 Vitoria. 3. Relectio de indis. Commentary. 79 Ibid. 304: ‘Vitoria holds that. si denique ad commercia non admitterentur. ‘commercium’. because Vitoria’s terms ‘peregrinare’. Vitoria. quae jure gentium aut moribus communia sunt. Thumfart / Grotiana 30 (2009) 65–87
the Spaniards.J. if the Spaniards should be prohibited by the American Indians from travelling or residing among the latter.’ 75 Ibid. Grotius argued. 235.3. p. are not fully translatable with all of their complex philosophical and theological connotations. 240. ‘participatio’.’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’). 363. 206-207. p. ‘On the Indians Lately Discovered’.
Thomae de Aquino Opera Omnia. Continuatio S. Ptolomaei Lucensis. in Corpus Thomisticum. this did not mean to Vitoria that the pope was not allowed to grant monopolies of trading to the Spanish and Portuguese. by Enrique Alarcón (Navarra: Universitatis Studiorum Navarrensis. Thumfart / Grotiana 30 (2009) 65–87
To Vitoria. licet a temporalibus non excludatur. the pope did not have direct political power over the world but. it is just that this travel should be forbidden to others and that the Spaniards should enjoy alone the fruits of their discovery. eo modo quo ad spiritualia ordinantur. Ibid. yet he has power in matters temporal when this would subserve matters spiritual. p. one can also easily interpret the text of the bull of 1493
Ibid. inasmuch as the temporal concerns the spiritual: ‘The pope is not temporal lord.’84 Since the aforementioned papal grants of overseas territories and trade monopolies were traditionally given as compensation for fulﬁlling the duty of Christian mission. S. ut iam videbitur. if the sovereigns of Spain could render more eﬀective help in the spread of the Gospel in those parts.
. ‘On the Indians Lately Discovered’.82
J. strangely enough.’ The global Christian mission was a task born of profound spiritual concerns.80 And furthermore: ‘Inasmuch as the sovereigns of Spain were the ﬁrst to patronize and pay for the navigation of the intermediate ocean. xlii. But. the pope was therefore not the lord of the world in regard to actual political power. According to Vitoria. xli. Vitoria perceived the pope as having a potestas indirecta. p. wrote Vitoria in the third section of his Relectio de indis. 455-464 (p. http://www. ‘The pope [could] forbid others … to trade. ed. 13. the pope could therefore ‘entrust it to the Spaniards to the exclusion of all others. oppose the line of economic-theological thought such as is to be found in Grotius’s Mare liberum.’83 According to Vitoria..’81 According to Vitoria. II. 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. 2000). 84 Ibid. III. following the pseudo-Thomist tradition. xli. Thomae De regno. This meant that the pope had temporal power.82 an indirect power.’ 83 Vitoria. 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. 6 (1996). Utz.’.html: ‘Dominium Christi ordinatur ad salutem animae et ad spiritualia bona. global trade was powerfully connected to the global Christian mission. ‘Weltliche und kirchliche Gewalt bei Francisco de Vitoria’. 82 Arthur F. III.corpusthomisticum. Die neue Ordnung 50. Rather. however. To Vitoria. and as they then had the good fortune to discover the New World.. 461). the raya of 1493 was therefore fully justiﬁed.org/xrp. p.3. which was entrusted to the supervision of the pope.10. The restriction of the freedom to trade by Vitoria does not.
I.’86 Reasoning why it might not be beneﬁcial for the Christian mission if all nations were allowed to go to America. xiv. ‘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. to … the disturbance of the concerns of the faith and of the conversion of the natives.’89 Although Innocent IV – as later did Vitoria90 – granted
85 ‘The bull Inter Caetera. Since the pope was. If. Vitoria envisaged the same punishment as the traditional canonical doctrines had decreed for anyone who prevented missionaries from preaching the gospel – the bellum iustum.’87 To Vitoria as to Grotius. Quellen zur Geschichte des Völkerrechts.. 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 ….
. 3rd of May 1493’. Vitoria’s assertion that only the pope could deny the ius communicationis clearly illustrates that the ius communicationis was. Apparatus super quinque libris decretalium. 90 Vitoria. ‘On the Indians Lately Discovered’.. 348-350 (p. pp. xlii.. the Spanish trade monopoly was compensation of a kind for the Spanish duty to preach the gospel. ultimately a principle that belonged to the domain of the spiritual power. if this would further the propagation of Christianity. 350). for Vitoria. III. 86 Vitoria. xxxix. In order that you may enter upon so great an undertaking with greater readiness and heartiness … we … give. entitled to supervise the mission. 505. Grewe.88 In Pope Innocent IV’s much cited comment on the subject. 89 Innocent IV. ed. for he can order temporal matters in the manner which is most helpful to spiritual matters. trade was therefore a meta-political.6. p.J. Vitoria sketches the following scenario: ‘If there was to be an indiscriminate in-rush of Christians from other parts to the part in question. p. according to Vitoria. they might easily hinder one another and develop quarrels. 87 Ibid.’85 For Vitoria as well. xli. 24. one ﬁnds for example the following line of thought: ‘Mandare potest Papa inﬁdelibus quod admittant praedicatores. PDF Version Gallica (Venice 1481). grant and assign forever to you and your heirs … the aforesaid countries and islands’. ‘On the Indians Lately Discovered’. p. European Treaties. he could ‘not only … forbid others to preach. 62-63). p. but also to trade …. in Fontes Historiae Iuris Gentium. 3. ‘Pope Innocent IV on the Legal Status of Inﬁdels’. II. 88 Ibid. Thumfart / Grotiana 30 (2009) 65–87
from this perspective. by Wilhelm G. the ius communicationis was denied by somebody else. p. however. Id. 58-67 (pp. in Davenport. spiritual procedure which did not belong to the secular realm of politics so much as to the theological realm of matters spiritual. Quod super his.
Columbus and the Ends of the Earth. 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. 95 Id. which he also defends. no page number. To Vitoria. p. trade and mission have the same legal status in Vitoria’s De indis. p.’94 This passage from Matthew is intimately related to a similar verse in a preceding chapter. Europe’s Prophetic Rhetoric as Conquering Ideology (Berkeley: University of California Press. 32. In this sense. 288 and i.84
J. the history of salvation was expected to be fulﬁlled by the ‘conversion of all peoples’ to Christianity. xxxvi. 24.92 Vitoria’s conception of trade also shares with Grotius’s its historico-teleological aspect.9. 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.3. 96 Vitoria. ‘On the Indians Lately Discovered’. 93 Eberhard Straub. It also fulﬁlled an important function regarding the future of the history of salvation.. p. 19. Das Bellum Iustum des Hernán Cortés in Mexico.xli. baptising them in the name of the Father and of the Son and of the Holy Spirit. the biblical narrative of the common Adamitic – or Noahic – origin of all mankind on which Vitoria based his notion of ius communicationis. III.’95 To Vitoria. the right to trade was not based upon the history of salvation alone. frontpage of Appendix A. the right to travel and trade freely. Here. II. the ius communicationis. Ibid. p. 1992).91 to a legal title of secular commerce.. If they failed to admit these priests. and then shall the end come. 94 Vitoria. Djelal Kadir. John 10.96 If the pope had.
Ibid. as to other contemporary Iberian authors. with its hypothesis of the common origin of all men. 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’. writes Innocent. Matt. between p. Thumfart / Grotiana 30 (2009) 65–87
the non-Christians the right to be the legitimate owners (veri domini) of their lands.
.14. It was. after all. trade also had an important function in the Christian history of salvation according to Vitoria. he also granted the pope the right to command the non-Christians to admit Christian priests among them. III. In respect to the sanction of the bellum iustum and their close connection to the papacy. p. 28. 241. To Vitoria.2. As with Grotius. Relectio de indis. 15. the pope would have to punish the non-Christians (‘puniendi sunt’). 16.93 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. Clearly Vitoria enhanced this ius praedicandi..
Thumfart / Grotiana 30 (2009) 65–87
according to Vitoria. and in regard to an eschatological function of global trade. to fulﬁl the 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. controlling and fostering trade was a means to reach this much-desired culmination of the Christian history of salvation. Grotius and the Stoa. This is especially true in regard to the sanction of bellum iustum for the punishments of political acts against the principle of free trade. 771. and from the cosmopolitan thought of the Stoics. this meant that the pope’s power extended to everything which served to put an end to ‘temporal history’. a ‘power in matters temporal when this would subserve matters spiritual’. 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. In this respect.’97 More likely. it was the theological function of trade itself that remained. Grotiana 22/23 (2001/02).). As the papal authority was erased in Grotius’s Protestant conception. As this examination of the role of trade in Vitoria’s conception reveals. a transmission of Christian economic theology from Vitoria to Grotius can be clearly demonstrated. In Mare liberum. See supra n74. Vitoria had not based his claim on a strong version of the doctrine of the providential function of commerce.J.
Conclusion The principle of the Mare liberum in Grotius’s conception can undoubtedly be deduced from similar principles in Roman law. ‘Constructing International Law in the East Indian Seas’. for Stoic thought and Grotius in general see: Hans Blom and Laurens Winkel (eds. Grotius dissolved the connection between the economictheological conception of trade and papal authority. that is. Particularly in regard to its historico-philosophical implications. Grotius had derived this spiritual concept of trade from Vitoria’s allocation of trade to the spiritual domain of the pope. Grotius’s quotation of Vitoria’s ius communicationis has far-reaching implications. The quoting of Seneca was essential to the argument of the Mare liberum. Grotius was not the ﬁrst to assign to trade a speciﬁc function in the history of salvation. which was extant in
Porras. p. To Vitoria.98 Grotius’s underlying assumption that trade was an inherently positive and moral phenomenon can however not be traced back to these sources. as Porras suggests in her examination of the matter: ‘Unlike Grotius ….
Although the concept therefore underwent a gradual secularization.’ 100 Schmitt. p. therefore. p. 23. p. eines Territoriums oder einer Institution aus kirchlich-geistlicher Observanz und Herrschaft.: ‘Entzug oder die Entlassung einer Sache. 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. 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. There. quote originally in German. Im Weltinnenraum des Kapitals. 103 In the German version. Löwith asked rhetorically: ‘Is it perhaps that … the hope in a future Kingdom of God. supreme authority of the institution of the papacy with the absolute. Lübbe deﬁned secularization as a ‘deprivation or release of a thing. 92: ‘säkulare … Missionswissenschaft’. p. 101 Peter Sloterdijk. 203. Grotius replaced the absolute. Weltgeschichte und Heilsgeschehen. 2004). Geschichte eines ideenpolitischen Begriﬀs (Freiburg im Breisgau: Alber.86
J. 1957).’99 However. Concerning this comparision between ‘economic theology’ and ‘political theology’ see: Agamben. Für eine philosophische Theorie der Globalisierung (Frankfurt/M: Suhrkamp. the theological structure of free trade remained intact. 102 Karl Löwith. Säkularisierung. Politische Theologie. 43. 2005). meta-political authority of the principle of free trade. This signiﬁed a secularization in the very literal sense of the word. p. Meaning in History. 218. Thumfart / Grotiana 30 (2009) 65–87
Vitoria’s Relectio de indis. 1975). Die theologischen Voraussetzungen der Geschichtsphilosophie (Stuttgart: Metzler.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. Grotius’s secularization of global free trade did not involve any form of de-sacralisation. Rather. 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. The Theological Implications of the Philosophy of History (Chicago: The University of Chicago Press. It follows. the provocative conclusion is omitted. 14. In respect to its original historical meaning. p. Il regno e la gloria. See: Karl Löwith. a territory or an institution from spiritual-ecclesiastical observance and dominion. that one can speak of an ‘economic theology’ regarding Grotius’s conception of free trade in De iure praedae and Mare liberum.
J. the answer can be found on the solid ground of materialism.’104 In regard to economic theology. unregulated markets do not necessarily transform private vices into public beneﬁts by divine providence. ‘Erasing the Corporate Sovereign’.’ writes Wilson. It is indisputable that trust in the positive dynamics of free trade brought with it a global community of merchants more widespread. but private vices can also simply lead to public and private disasters. Wilson. that Grotius himself utilized Vitoria’s economic theology for reasons neither intellectual nor theological. If one should dare to answer the broad question of which came ﬁrst – an economic theology or economic interest – at least for Grotius. Grotius’s text Mare liberum must be interpreted within the context of his legal opinion De iure praedae within which it was originally developed. but rather tactical. p. between Heilsgeschehen and Weltgeschichte. Löwith’s question about the ‘good’ or ‘evil’ of theology is probably the wrong question to ask. Grotius’s economic theology. It remains to be remarked. was an argument developed in order to defend the economic interests of Grotius’s employers. more manifold and also more pleasant than any religious community of the past.
. Meaning in History. Further inquiries into the nature of economic theology may provide more clarity. ‘Central to Grotius’s strategy was his reliance upon Iberian scholastics as a means of providing a series of irrefutable propositions to the Spaniards. Reading Grotius from the point of view of a history of legal ideas at least makes visible how missionary principles transformed into international law. summarizing the standard opinion. Thumfart / Grotiana 30 (2009) 65–87
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.
Löwith. p. however. 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.105 Finally. Nevertheless. especially in regard to its theological tradition. 78. 203.