THE SHIELD OF ACHILLES

by Bobbitt, Philip

  CONSTITUTIONAL INTERPRETATION:

  THE FIRST INTERNATIONAL LAWYERS

  In August 1584 four Japanese emissaries arrived in Lisbon and immediately generated enormous excitement. In the following weeks they were conducted to the court of Philip II and then to Pisa, Florence, Venice, and finally Rome, where they were entertained by the Pope. At each of these places the Japanese were greeted with enormous pomp and lavish ceremonies in which the visitors were presented to the public. Contemporary accounts dwell on the great crowds that greeted them on their arrival in each large city. In Rome, where the Japanese were preceded by the entire papal cavalry, the Swiss guard, and musicians playing drums and trumpets, “the streets, the windows, the doors and even the piazze where they had to pass were full of men of every type and condition.”13

  The visitors created a sensation, but these four young men were not the first Japanese to come to Europe. Bernard of Kagoshima, one of Francis Xavier's first Japanese converts, had visited in the 1550s. He, however, had hardly caused a ripple of interest as he traveled through Portugal, Spain, and Italy. Contemporary sources suggest that he was allowed to visit various well-placed officials, possibly even the pope, but no great crowds and no retinues of bureaucrats and retainers greeted him; no state dinners honored him and no letters or treatises made him the subject of discussion among large circles of Europeans.

  “What had changed in the decades since Bernard's visit?” asked one historian, and she concluded that it was

  not that Europeans had become more curious about outsiders but that [politics] had changed…. In the 1550s the pope and emperor had been battling heretics within Europe. But after the Treaty of Cateau Cambre-sis, the Peace of Augsburg and the Council of Trent had drawn the confessional and political lines more clearly within Europe, both Philip II and the pope could turn their attention to extending their powers outside.14

  And so it was: the definition of what counted as a possible solution to the problems of dynastic aggrandizement and religious counterrevolution, the same problems with which Charles V had had to deal, had fundamentally changed.

  In the following section, we will examine the defining legal form of the new society of princely states in Europe by looking at the works of the first international lawyers. Had Charles V achieved his goals, had the Peace of Augsburg ratified an imperial constitutional form of the state instead of the archetype of the princely state, there would have been no international law (as we understand it) and no society of states predicated on the equality of state sovereignty. Every state has law, but only a society of states that recognizes the autonomy of its members can have the kind of legal rules that we call “international law.” When states share a common commitment15 to the maintenance of a common constitutional form that implies autonomy and equality, they have created a constitution for modern public international law.

  The following discussion of modern international law belongs therefore to the very beginning of that subject. Four writers typify this period and are usually taken as laying the earliest foundations of the discipline: the Dominican theologian and law professor Francisco de Vitoria, writing on the eve of the Peace of Augsburg; the Jesuit counter-Reformationist Francisco Suarez, attempting to hold the theological line after Augsburg; the military figure Balthazar Ayala, who writes after the Dutch revolt in 1567, which began the movement toward the constitutional archetype of the kingly state, and who struggles to reinforce the princely state; and finally the magisterial Alberico Gentili, whose works already look forward to a new constitutional form and the new society of which it will be the constituent element.

  VITORIA

  Francisco de Vitoria was born sometime around 1483 in Burgos. He studied philosophy and theology in Paris from 1507 to 1522 and returned to Spain in 1523. Three years later he obtained a chair as professor of theology at Salamanca and remained there until his death in 1546. None of his lectures nor anything else of his work was published during his lifetime, though he was an important advisor to the Spanish crown on public matters, including the divorce of Henry VIII and Spanish rights over the Indians of the Americas. But notes from his lectures were transcribed by devoted students, and in 1557, ten years after his death, the greatest part of his Relectiones—special lectures given by each professor annually—was published at Lyons. Two of these relectiones were of significant importance for the development of international law: the lecture on the American Indians (de Indis) and that on the law of war (de jure belli), both from 1539.

  It is in some ways a misnomer to call Vitoria the father of international law”16 because he wrote in a period before the Peace of Augsburg, when an international society of princely states was just beginning to form. Perhaps “forefather” would be more apt. Certain ideas that do not seem to have been crucial to his thought—the change in the Gaian definition of ius gentium (the law of nations), the concept of totus orbis (a universal jurisdiction)—became crucial once a society had formed that could use these concepts. This accounts for the appearance (or illusion) of Vitoria's curiously modern ideas in the context of a rather conventionally Thomistic theology. Vitoria writes lucidly and provocatively of political communities that they are perfected when they can act independently of another political community, have their own laws, their own council, and their own bureaucracy (and thus may include pagan nations)—a very modern list of criteria for the legal recognition of states. At the same time, however, he makes the Church the arbiter of whether the conduct of a state is lawful, there being no society of states yet capable of making this judgment.

  Verhoeven has written with insight that Vitoria's thought was structured by three facts: that it originated with issues arising from the discovery of America, that it was the work of a theologian-confessor, and that it had a single theme, war.17 These three facts “set the stage,” in Verhoeven's phrase, for the development of international law. This strikes me as pre-cisely right: writing before Augsburg, Vitoria could do no more than anticipate international law, set the stage, as it were, but the peculiar collection of subjects he dealt with prompted him to proffer rules that would provide a structure for further development once the society of states got underway, because he was called upon to write on issues of strategy (war) and law (the rights of Indians and the legal obligations owed to them), and the relation between the two.

  Vitoria was occupied with the question of the extent to which Spain could claim the resources of the Indians and subjugate them. The Dominicans had tried to protect the Indians from exploitation. The Dominican priest Bartholomew de las Casas (1474 – 1566), a contemporary of Vitoria's, was the principal early evangelist among the Indians and lobbied ceaselessly for their humane treatment.18 Vitoria sought a solution in the doctrine of just war developed by the Dominican scholastic Thomas Aquinas. In order to apply this doctrine, Vitoria crafted an argument that, though in service to scholasticism, yielded elements we now regard as essential to international law. His argument had five steps.

  First, Vitoria courageously rejected the claims of his king, Charles V, to global supremacy, 19 correctly observing that the political world was becoming one composed of separate princely states. Second, he shrewdly defined ius gentium (the law of nations) as the law inter omnes gentes (the law among all nations) as opposed to the construction provided by Gaius, whom Vitoria purported to be explicating, which held this law to be inter omnes homines (among all men). Third, thus armed, he was now able to bring Thomas Aquinas's doctrine of just war to bear on the problem, because this doctrine applied only among sovereigns, not among persons generally. Fourth, he associated natural law with the ius gentium, as Aquinas had held that the natural law was divinely inspired, in order that fifth, he might finally conclude that the Church was the ultimate arbiter of whether a war was just between two states. The Church, with its divine source of authority, would be the appropriate institution to apply international law (ius gentium).

  Based on this argument, Vitoria could bring the Indians within the benign emb
race of the Church by observing that they were distributed among states. As an almost inadvertent consequence, the fundamental ideas of a world composed of equal, separate sovereignties under law were laid out. Vitoria had expanded a law for a society (not an empire) composed of states (not princes).

  Although Vitoria wished to treat the Indians humanely, his conclusions are hardly those of a humanist.20 While holding that Spain had no right to the property of the Indians, he nevertheless justified Spanish violence against them on the grounds that the Indians had no right to reject commerce, nor to impede the travel of the Spaniards wherever they might wish to go or to develop commerce. The Spanish freedom to join in activities undertaken by the natives, like the mining of gold, or tilling the earth, was “violated” if the natives did not permit such foreign participation and amounted to a kind of “banishment” which, as a punishment only justifiable in case of crime, was therefore the basis for a just war against them. This brought the conquistadores within the Thomist rule: “Unica est et sola iusta inferendi bellum, iniuria accepta.”21

  SUAREZ

  Vitoria's successor as the pre-eminent Spanish explicator of international law, Francisco Suarez, wrote after the Peace of Augsburg and therefore dealt with the reality of an international society and its law. Though he was scarcely sympathetic to this development, we can learn a good deal from his commentary about what his contemporaries regarded as the content of this law.

  Suarez was born a Spanish aristocrat and became, like Vitoria, a professor of theology. In 1596, after the Spanish conquest of Portugal, Philip II arranged for the appointment of Suarez to the chair of theology at the Portuguese University of Coimbra. Unlike Vitoria in many respects, Suarez was a Jesuit, a prolific writer whose works in a nineteenth century edition fill twenty-eight volumes, and an aggressive polemicist. A great many biographies have been devoted to him, and his renown does not rest on his contributions to international law.*

  His most famous work is the Defense of the Faith against the Errors of the Anglican Sect (1613), commissioned by Pope Paul V. In the course of arguing that the pope possesses powers that include the right to put a heretic king to death in order to protect the Catholic faith, Suarez offered a novel argument: because political power arises from the sociability of man and therefore resides originally in the people, it must be delegated to the prince by “human law”; if the prince turns out to be a tyrant, the pope may assert the rights of the people. Because the source of the pope's power is divine and does not come from the people, this theory gives papal authority a certain supremacy over lay rulers.

  It is interesting to note that it is just this move, this particular argument, that constitutes Suarez's principal contribution to international law. He is the first writer to show clearly the ambiguity in the term ius gentium, an ambiguity that often bedevils the first-year student of international law who must confront Article 38 of the statute setting up the jurisdiction of the International Court of Justice, which provides in part that the court will apply general principles of law common to all states. This could reasonably be taken to mean either the universal principles of international law, which must necessarily be common to all states, or principles of domestic law that states happen to have in common (it is the latter).

  Suarez saw that ius gentium might be given either of two meanings: in one sense it is the law that all peoples and nations (populi et gentes) observe in their mutual relations (inter se); in another sense, it is the law that various states (civitates vel regna) observe within themselves (intra se). The first concept is, for Suarez, the proper ius gentium, and this distinction, so important for the development of international law, also supports the international application of Suarez's deprecation of the power of princes within the princely state. (Note that the Peace of Augsburg, which was otherwise so offensive to the Catholic Church because it replaced the medieval paradigm of a single European polity, was nevertheless crucial to Suarez's argument: Augsburg's recognition of the status of the princely state allowed Suarez to distinguish between the power held by the prince in trust to the State, and his dynastic, personal power.)

  In his most famous passage—and one frequently characterized as a hymn to international law22—Suarez sets out his view that the origin of international law lies in the society of states. If we read this passage carefully, however, and bear in mind his arguments in The Defense of the Faith, a somewhat less admiring view of the post-Augsburg world emerges than might at first appear.

  The human race, though divided into different nations and states, still has a certain unity, not only as a species but, as it were, politically and morally as is indicated by the precept of mutual love and charity which extends to all, even to strangers of any nation whatsoever. Therefore, though each perfect polity, republic or kingdom is in itself a perfect community, consisting of its members, nevertheless each of these communities, inasmuch as it is related to the human race, is in a sense also a member of this universal society. Never, indeed, are these communities, singly, so self-sufficient unto themselves as not to need a certain mutual aid and association and communication, sometimes for their welfare and advantage, sometimes because of a moral necessity or indigence, as experience shows. For this reason they need a law by which they are guided and rightly ordered in respect to communication and association. To a great extent this is done by natural reason but not so sufficiently and directly everywhere. Hence, special rules could be established by the customs of these nations.23

  Rather than exalting a new “world made of law,” in fact Suarez is eager to explain how natural law can account for legal events like the Peace of Augsburg, and the various practices of states that flow from their formal relationships. This enables him to demote, not exalt, the ius gentium (international law) as a mere supplement to natural law. The only treaties Suarez discusses are peace treaties: the observance of these he attributes to the law of nature because they (unlike the rest of international law) are the consti-tutional source of the law among states. Whether or not treaties are to be entered into in the first place Suarez carefully makes a mere matter of the ius gentium. By this characterization he ascribes the actions of the society of states to mere human law, and thus renders those actions susceptible to a superior theological judgment.

  Thus so much of what is hailed in Suarez—and we must remember that his work in international law is a small part of the corpus of his writing—is truly important, but not quite in the way it is anachronistically praised.24 Suarez's commentary reflects the dramatic change in European public affairs, not out of sympathy, however, but rather in an effort to contain and limit the significance of what has occurred.

  This can be seen in Suarez's attitude toward what we would call today humanitarian intervention—the right of one state to use force to relieve the suffering inflicted on a people by its own state. Suarez clearly apprehends the new community of princely states and does not pretend that the medieval order of a single political jurisdiction still persists. Accordingly he writes that the “assertion made by some writers that sovereign kings have the power of avenging injuries done in any part of the world is entirely false, and throws into confusion all the orderly distinction of jurisdiction.”25 There is one situation, however, that does permit the prince to wage war without the pretext of an injury to his interests or an invitation from the state concerned and that is when “a state worshipping the one God inclines toward idolatry through the wickedness of its prince.” In this we hear the spirit of the Counter-Reformation, of which Suarez was a notable leader, and which was to provoke the Dutch revolt that marked a decisive movement away from the princely state and toward the kingly state. This revolt gave rise to the interpretive work of Ayala.

  AYALA

  Balthazar Ayala was born in 1548 in Antwerp to a Spanish noble family. He served in the Spanish Netherlands during the Dutch rebellion and the savage repression of that rebellion by the Duke of Alba, and was auditor-general, a sort of military judge, in Philip II's armies. He publi
shed his book, De Jure et Officis Bellicis et Disciplina Militaris, in 1582; two years later he died, only thirty-six. Thus his entire adult life was spent in the service of Philip of Spain.

  Philip II had effected the transition to the princely state, the most powerful in Europe, with deceptive ease. The abdication of his father, Charles V, amounted to the abandonment of the imperial constitutional model. Now Philip, with a dynastic state unencumbered by the Empire, with increasing revenues from the Americas and a dynamic military force, provided the model to which other princes looked. Ironically, the princely state was to receive mortal blows while in his hands, for he more than any other prince embodied two traits of that state that would be shed by the kingly state: first, even if the society of states no longer belonged to a particular sect, the princely state itself was intensely sectarian—that was the outcome of the settlement at Augsburg—and there was no constitutional state more sectarian than the Catholic regime in Madrid. Second, the princely state was dynastic, and although Charles's will had bifurcated the continental holdings of the Habsburgs, the realm inherited by Philip gave him responsibilities for a wealthy and self-confident territory with which he had no national identification. He was seen as a Castilian, not as a Burgundian,* and he governed with a bureaucracy sent from Madrid. Both of these shortcomings came into play when he decided to divide the four existing bishoprics in the Netherlands into eighteen in order to combat heresy.