THE SHIELD OF ACHILLES (84 page)
Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
Medieval treatises on government dealt with what kings should do in order to be good. Commynes in his
Memoires
(finished by 1498, first published 1524) and Machiavelli in his
Prince
(written in 1513, published 1532) tried to deal with something different, what kings found it most advantageous to do in order to be effective rulers
.
1
T
HIS CHANGE
in attitude on the part of monarchs and their counselors reflected the constitutional changes underway at the end of the fifteenth century.
The Hundred Years' War with the Lancastrian kings of England had required reforms in the Valois administration of France that greatly strengthened the French state. In particular, changes in finance and the organization of the army that had been introduced by Charles VII
2
to compete militarily with England had prepared the dynasty to make the transition from princes to princely state. Such reforms enabled France to organize the invasion of Italy in order to vindicate French claims to Naples and Milan. These dynastic claims assumed a greater importance under Charles VIII, when the imposition of permanent taxes in areas without provincial estates and the establishment of something like a standing army provided the foundation for the French attack at the end of the century. It is estimated that by 1494 the king of France had the largest army and the greatest annual revenue of any European monarch.
3
Moreover, political stability achieved through the strengthening of the apparatus of provincial government provided the conditions for civil peace necessary for agricultural improvement, the engine of economic prosperity. A generation of civil peace thus made possible the armed intervention in Italy, beginning the struggle that ended with the Peace of Augsburg.
THE PEACE OF AUGSBURG
It was not the Treaty of Cateau-Cambrésis in 1559 that ended the Valois-Habsburg struggle, but rather the Peace of Augsburg four years earlier, which set the constitutional terms of the new society of states that emerged from this epochal war. Charles V's campaign for a single Christendom foundered not so much on French victories as on the advent and growing strength of the new princely states.
Indeed at first sight, the phenomenon appears to be universal in Europe. One finds it spreading to Scandinavia, where the Reformation provided Danish and Swedish kings with the means of establishing strong rule; even in Russia, Ivan III and Ivan IV seem almost to duplicate the work of England's Henry VII and Henry VIII, of France's Louis XI and Francis I.
4
What is sometimes less appreciated is that the principle that was the basis of Augsburg—the famous
cuius regio eius religio
—transformed this multilateral treaty into a constitution for the new society of princely states. This principle may be roughly translated as “he who rules, his is the religion”; it provides that the religion of a state is determined by the choice of the sovereign, with free immigration to all his subjects. It was an imaginative concept, although it had its roots in the prior practices of princes attempting to keep outside interference from complicating their relations with their subjects. Most significantly,
cuius regio eius religio
implied a “theory of sovereignty by the states of Europe that permitted no distinction in law between a Catholic and a Protestant country.”
5
Thus the basis for a comprehensive society of states was formed.
The defeat of the Habsburg bid for empire
6
had destroyed Charles's hopes for a
Respublica Christiana
; the Peace of Augsburg ratified this failure and introduced instead the notion of individual state supremacy. Implicit in the principle of
cuius regio eius religio
is the territorial delimiting of sovereignty and the notion of state supremacy within that sovereignty. “There was thenceforth [after the Peace of Augsburg] to be no lord of the world, imperial or otherwise, for the simple reason that there was no single world. There were England, France, and Spain. The life of each was to be centralized within its ultimate sovereign.”
7
Medieval Christendom had known no society of politically distinct states.
8
After princely states first appeared in Italy,
9
they gradually spread throughout Europe, replacing the universal, overlapping structures of ecclesiastical, feudal society
10
with a discrete, territorial pattern of states. Latin, once learned by everyone in the learned classes, was replaced as the
bureaucratic language of officials by increasingly standardized vernaculars. Adam Watson has observed that although at the time of the Peace of Augsburg, “the principle of
cuius regio eius religio
applied formally only to the Holy Roman Empire,… the practice quickly extended throughout the Christian commonwealth of Europe. It carried, as a corollary, another principle which rulers readily acknowledged and proclaimed though they did not always scrupulously observe it: non-interference by one state in the affairs of another.”
11
This doctrine of the essential separateness of the new states into which Christendom was now divided was indeed the result of the principle of Augsburg. This principle, which enshrined the legitimacy of state sovereignty, and denied the universal order of the
Respublica Christiana
, replaced that order with the society of princely states whose horizontal relationship indicated their mutual sovereignty. Thus the principle of Augsburg not only excluded the imperial state sought by Charles, but gave a constitutional foundation to the society of princely states.
12
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 commitment
15
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.
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 embrace 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