Leading Figures in the “Secunda Scholastica”
In Spain of the Golden Age, Salamanca and its university served as the focal point for the new spiritual forces and the ideas that were turning the old Europe upside down.
In Salamanca, theology was the sovereign discipline, and Francisco de Vitoria emerged to head one leading school.
Probably born in Vitoria (in the province of Alava) about 1492, Vitoria spent much of the period of his cultural formation in Paris, where from 1506 to 1523 he studied theology in the tradition of the first scholasticism—that is, studying the Summa Theologica of Thomas Aquinas, a work composed long before, around 1265. He took it over as the basic text for the first great phase in a theological revival. Although important humanists were present in Paris at the time, Francisco de Vitoria was by and large unaffected by humanism. He was more sensitive to the religious ardor of Erasmus of Rotterdam (1466—1536) than to Erasmus’s thought and acts as a leading figure in European humanism. What he sought was a regeneration of civil customs and a restoration of the faith, the need for which seemed all the more acute as the preconditions for Martin Luther’s “protest” in 1517 intensified and as that “protest” raged. Luther was excommunicated in 1521, precisely during the time that Vitoria was in Paris.Francisco de Vitoria’s work was centered on quintessentially theological interests, but his theology was open to the world and he was intensely curious about the savage “souls” of populations little known at the time. As he wrote, “The office and calling of a theologian is so wide, that no argument on any subject can be considered foreign to his profession.”[245]
The investigation of nature was an investigation into the way in which God had modeled nature. The task of the jurist-theologian was to seek the will of God in nature, and to make himself its interpreter.
He must find ways to create social structures and set up legal norms for the legislator that corresponded to that nature.A theological basis of thought thus encouraged a vision of human law that was both a projection of divine will and a creation of man, but only to the extent that man was capable of receiving and interpreting the signs of the divine will that were impressed in nature: cThe primitive origin of human cities and commonwealths was not a human invention or contrivance to be numbered among the artefacts of craft [inter artificials], but a device implanted by Nature in man for his own safety and survival.”[246]
This central point in the legal theology of Salamanca had various consequences, and it was connected with a large number of solutions in the fields of both public and private law. Attentive observation of nature necessarily led, these jurists argued, to giving up the fantastic idea that all men were equal and might enjoy the same rights and powers: God had never willed that “all men are equal.” It followed that the more worthy and the more able should command and govern others who were by nature inferior. Divine will was providential: “If all members of society were equal and subject to no other person, each man would pull in his own direction as opinion or whim directed, and the commonwealth [respublica] would necessarily be torn apart. The civil community [civitas] would be sundered.”[247] In order to keep civitas from dissolving and the regnum (kingdom) from falling apart as a result of internal divisions, nature required a gubernator with the power to command and make appropriate decisions: “Such partnerships cannot exist without some overseeing power or governing force.”[248]
Furthermore, if, as some theologians held, it was by divine will that men were not equal, it followed that some men were of superior status and others of inferior status, some free and others slaves, some rich and others poor.
This provided a theoretical justification for dominium not only over things (which brought wealth to the more able and poverty to the less) but also over persons in the legal institution of slavery.Anchoring his argument in natura (a concept that would later be reinterpreted by the Dutch school of natural law) enabled Vitoria, as both theologian and jurist, to apply reason to an evaluation of what was in natura and to act as an interpreter of the divine will that had created that natura and given it specific form. Transporting the law into the vast, all-encompassing, and dominant field of theology had the effect (but was also a presupposition) of moving the jurist’s role into the spheres of religion and of the universal church that governed religion. Thus the jurist (and theologian) was in a position to support the actions and fortunes of the church in a world whose confines, both physical and ideal, were expanding extraordinarily and in which Christianity had become Cyazgrovineia of the terrestrial globe.
Francisco de Vitoria saw and understood the entire known world, old lands and new regions and continents alike, as a whole and as a entity consisting of Christian republics: “Any commonwealth is part of the world as a whole, and in particular... any Christian country is part of the Christian commonwealth.”[249]
The field of observation had been enlarged: this was the age in which the “Indians” had appeared, but also, after the fall of Constantinople in 1453, it was the age in which “barbarous” Turks loomed on the eastern horizon and threatened Europe.
In the “world-wide” perspective of Vitoria, of the famous Salamanca school that started with him, and of the current of thought that we call the “Secunda Scholastica,”[250] the system of the ius commune was inadequate to express and interpret the new notions elicited by a new world in formation. The world had previously been conceived of as an empire and a church with fixed confines, a closed world that embraced only the fideles Christi-, jurists had been indifferent to what was happening outside Christian lands and distrustful of anything new, or at most interested in “infidels” only in order to exclude them from both civil society and the religious community.
Problems of religious transgression had arisen only within the compass of the church, where they were viewed and judged as problems of heresy and deviations from orthodoxy. Now, just as the religious “protest” of Martin Luther and John Calvin was exploding throughout Europe and offering alternative projects for the religious governance of humanity to those of the Roman Catholic Church, Europe became aware of the great masses of the “Indians,” the Africans, and the Turks, scattered and “savage” peoples who were presented and conceived of as hostile and violent. They raised problems, however: By what law had those masses lived and did they continue to live? Above all, by what law could and should they live in the future?Thus the missionary movement was unleashed. The faith and the “Holy Inquisition” became more intransigent. The models for a plurality of Christian iura, propria that could be (and had been) connected with a Christian ius commune disappeared from the spiritual and cultural horizon.
Now, almost Lmexpectedly but hardly by chance, after centuries in which the laws of Justinian had been not only accepted but regarded as sacred texts, authoritative, complete, and perfect (that is, without real internal Contrarietatcs—contradictions), the content of those laws was discovered to have defects and their organization was denounced as chaotic (a criticism that to some extent echoed the conclusions of legal humanism).
A return to natura and a trust in reason to interpret that “nature” became the guidelines of the new political and spiritual reality. The “Secunda Scholastica” developed precipitously on this front. Its leading figures, beside Francisco de Vitoria (who died young in 1546), were Domingo Soto (1495—1560), Martin Aspelcueta, called Doctor Navarrus (1493—1586), and Melchior Cano (1509—60), whose interests were more strictly juridical, Fernando Vasquez (d. 1568), and in particular Diego Covarruvias (1512-77).
Juan de Sepulveda (1490-1573) and Bartolome de Las Casas (1474-1566) also played important roles in defining the cultural scenario of the “Secunda Scholastica.”Juan Gines de Sepulveda was both a courtier and a man of the church. Historian to Charles V, preceptor to Philip II, in 1547 he offered a radical solution to the problem of the conversion of the “Indians” to Catholicism. He wrote a work whose long and eloquent subtide gave a foretaste of conclusions Suflficiendy harsh to lead to the work’s being censured by the Academy of Alcala and the University of Salamanca. The book’s themes were typical of the “Secunda Scholastica”: its subtitle began, “Whether it is Just to Continue the War Against the Indians, and Take their Dominions and Possessions and Worldly Goods, and to Kill Them if they Offer Resistance.” The continuation of the subtitle hinted that the author’s answer was affirmative, justifying the greatest atrocities by the end that violence against persons and things should serve: “... in Order that They [the “Indians”], Despoiled of their Things and Subjected, Will be Persuaded more Easily to the Faith and be Converted by the Work of the Preaching Fathers.”[251]
It is undeniable that Sepulveda grasped the true nexus of the great debate that shook and involved the conscience and the thought of his century. The ensuing events were further proof of this, and they offer an excellent means for understanding the general atmosphere that pervaded sixteenth-century Europe, turning it toward problems that either did not exist before that time or had gone unnoticed.
Juan de Sepulveda was convinced that men were unequal, that their inequality was willed by God and was God’s work, that it was therefore just that different legal systems should give concrete form to that diversity, and that slavery was a just legal consequence of the inherent natural defects of the slaves. Up to this point he interpreted the classical themes of the “Secunda Scholastica” in orthodox fashion.
He then took several steps beyond the accepted limits by proposing cruel and extreme solutions. He stated that it was just to wage war against the “Indians” because they were inferior beings; that it was just to strip them of all they owned; that it was necessary and licit to use every means, even violence, to compel their primitive minds to try to understand the grandeur of the Catholic faith and the Catholic Church; that it was licit to kill those who resisted evangelization. The easiest way to reach the goal of converting to Catholicism entire populations of savages and infidels was by the example of depriving the “Indians” of their goods, throwing them into subjection as slaves, and, failing all else, by the extreme example of inflicting death on all who resisted.Juan de Sepulveda expressed similar ideas in an important work, Apologia pro Iibro de iustis belli causis, published in Rome in 1550. In this work he defended the theses he had expressed in 1547 in the earlier work that the Academy had blocked. The Apologia gave Domingo Soto the opportunity to organize a public debate in Rome between Juan de Sepulveda and Bartolome de Las Casas, an adversary of Sepulveda’s and a critic of his ideas. Other persons were also named to defend the opposing theses. Sepulveda was considered the loser in the debate, but he was defended with such great skill by Bernardino Arevalo that the confrontation ended with no victor and no vanquished—further confirmation of how intensely felt and how widely diffused Sepulveda’s radical and violent ideas were in the mind-set and the shared culture of the times.
There is a sequel to the story. In 1552 Bartolome de Las Casas wrote up his response to Sepulveda in a work that is important in itself but that also offers important proof of the vitality of the ideas that Las Casas opposed. A balanced and incisive work, the Brevisima relation de la destruction de las Indias is justly considered one of the bulwarks of political and religious culture in sixteenth-century Spain.[252] Once more the attention, the thought, and the conscience of Europe was focused on the “Indies” and the war on the “Indians.”
13.