Spanish School of International Law (c. 16th and 17th Centuries)

by

Pablo Antonio Fernández-Sánchez

• LAST REVIEWED: 30 September 2013
• LAST MODIFIED: 30 September 2013
• DOI: 10.1093/obo/9780199796953-0082

Introduction

The most important contribution to the development of modern international law was made by the so-called School of Salamanca (16th and 17th centuries). It was not a “school” in the classic sense. The different scholars were educated in various European universities, although their teaching and thinking were mainly developed at the University of Salamanca (Spain) and other European universities such as Coimbra (Portugal). They were the first who spoke out on rights, the first who wanted to establish norms for the conquest of America, and the first who defended the human rights of all human beings, including Indians. Among them, Francisco de Vitoria and Francisco Suárez were the main contributors to the Law of Nations. Spanish scholars considered the foundations of modern international law based upon a universalistic interpretation of the old roman ius gentium, which must be observed by peoples and nations. Of course, they made this new interpretation of the roman ius gentium knowing the both concept had not direct equivalence. The old roman ius gentium was divided between ius inter gentes and ius intra gentes. The first is the law of nations, and the second is the civil law. According to Spanish scholars, native people have right to the property of their lands; no prince has the right to the possessions of the conquest territories. The scholars defended intercultural coexistence and stated that all entities have the same right of equal sovereignty. Ius inter gentes (international law) is a positive law created by man, including individuals and nations. Vitoria’s idea of totus orbis was the revolutionary idea of a unique international community. The Spanish School was the first to proclaim the innate dignity of human beings, the right of indigenous peoples to their properties, the right to self-government, and the international obligation to cooperate among states. The contributions of the School of Salamanca are part of a long tradition of just war theory in Christian thought. Spanish scholars included customs as a real source of international law and considered that the rights of human beings go beyond the borders of the states. They believed that the objective should not justify the means. For this reason they thought idolatry was not a just cause for Christians to wage war on the Indians. They defended freedom of the seas and opposed any monopoly of them. They considered war inevitable when solidarity was removed from the relations between men. International law was born to regulate the global community.

General Overviews

The texts included here provide a comprehensive overview on the main contributions to international law by the Spanish School (Brown Scott 2008). In general, they analyze those common principles regarding international law (Alves and Moreira 2009) as the existence of an international community (totus orbis; Mangas Martín 1993), to which belong all sovereign states, European or not (Barcia Trelles 1939). This community is a natural and organic product, based on solidarity between states, including church–state relations (Hamilton 1963). The sovereign equality of states is the initial principle of the positive law of nations or ius gentium (Macedo 2009), and human rights have their ground in natural law. Truth and justice are the basic principles of positive international law (Barcia Trelles 1939). See also Gómez 1989 and Hanke 2002.

• Alves, André A., and José M. Moreira. The Salamanca School. Edited by John Meadowcroft. Major Conservative and Libertarian Thinkers 9. London: Continuum, 2009.

  This book explains the meaning of the Salamanca School, its political and intellectual context, and indicates some of its key authors: Francisco de Vitoria, Domingo de Soto, Martín de Azpilcueta, Diego de Covarrubias y Leva, Tomás de Mercado, Bartolomé de Las Casas, Luis de Molina, Juan de Mariana, and Francisco Suárez. The book offers a critical exposition on the most relevant theories on international law.

• Barcia Trelles, Camilo. “Fernando Vazquez de Menchaca (1512–1569): L’école espagnole du droit international du XVIe siècle.” Recueil des Cours 67 (1939): 430–534.

  This is a classic work on the Spanish School of international law. Barcia Trelles presents, in French, the main juridical ideas of the different members of the school. It was a subject taught by Professor Barcia Trelles at The Hague Academy of International Law. He dedicates several analyses to Vitoria’s thought and the foundations of his ideas on international law. Available online by subscription.

• Brown Scott, James. The Spanish origin of international law: Francisco de Vitoria and his law of nations. Vol. 1. Union, NJ: Lawbook Exchange, 2008.

  Reprint of the original version published in 1934 (London: Clarendon). Presents the historical background of the Spanish School, the process of Vitoria’s academic life and analysis of his reading on the Indians, his concept of natural law, the scholastic doctrine of the law of war, and the Vitoria’s contribution to international law. It has appendixes with translations into English of Vitoria’s Relectiones, including an index of names and voices.

• Gómez Robledo, Antonio. Fundadores del derecho internacional: Vitoria, Gentili, Suárez, Grocio. Mexico City: Universidad Nacional Autónoma de México, 1989.

  This publication contains a study on the four main internationalist of their times. In a memorable phrase, the author simplifies that “the moment of creation of international law corresponds to Francisco de Vitoria and the reflection to Francisco Suarez” (“En la génesis del Derecho Internacional el momento de la creación corresponde a Francisco de Vitoria y el de la reflexión a Francisco Suárez,” p. 72).

• Hamilton, Bernice. Political Thought in Sixteenth-Century Spain: A Study of the Political Ideas of Vitoria, De Soto, Suárez, and Molina. Oxford: Clarendon, 1963.

  Hamilton shows the major ideas of the Spanish scholars, especially emphasizing four of them. We can find approaches of Vitoria and Suárez to church–state relations, and the quotations are many. She appreciates the elaborations of the different concepts. The volume offers an appendix with short biographies and a major bibliography.

• Hanke, Lewis. The Spanish Struggle for Justice in the Conquest of America. Dallas, TX: Southern Methodist University Press, 2002.

  This new edition contains an introduction by Susan Scafidi and Peter Bakewell and previously unpublished personal and professional reminiscence by the author. Hanke shows the moral and legal questions arising during the meeting of Spanish with Native Americans, defending the role of Spain in the encounter with the Indians. Originally published in 1949 (Philadelphia: University of Pennsylvania Press).

• Macedo, Paulo E. B. O Nascimento do direito internacional. São Leopoldo, Brazil: Editora Unisinos, 2009.

  Francisco Suárez and Hugo Groccio are the most important scholars studied by Paulo Marcedo. He analyzes the ius gentium as a law between natural law and positive law and examines the different concepts of ius gentium before both studied authors. He focuses his study on the grounds of ius gentium according to Suárez and Groccio.

• Mangas Martín, Araceli, ed. La Escuela de Salamanca y el derecho internacional en América: Del pasado al futuro; Jornadas Iberoamericanas de la Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales, Salamanca, 5–7 noviembre. Salamanca, Spain: Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales, 1993.

  This book contains the papers presented by the Latin American community of internationalists around the main topics of the Spanish Classical School of International Law. This publication marks the five-hundredth anniversary of the discovery of America and contains new and interesting contributions (i.e., Antonio Truyol and Serra, “El derecho de gentes como orden universal” [The Law of Nations as Global Order], pp. 17–25).