CIVIL LAW AND NATURAL LAW

Apart from the use of the ius commune in court practice, the civil law con­tinued to form part of a Christian literary amalgam including also canon law and theology. The sixteenth century saw the appearance of unprec­edented problems, which had to be confronted against the background of this thought.

Hitherto the legal community conceived by scholars was confined to Christian countries under the twin powers of emperor and Pope. Vitoria rejected the claim of Pope Alexander VI in 1493 to have the power to divide the newly discovered lands between Spain and Portugal. In his view the emperor could not validly claim sovereignty over the whole world and the temporal sovereignty of the Pope did not extend to bar­barians. Vitoria argued that the ius gentium of the Roman texts, in which it meant the law shared by all peoples, should be understood also as ius inter gentes, that is, a set of rules governing the relations between one people and another. This law was based not on a sharing of religious belief but on the nature of mankind. For ius gentium is defined, in Institutes 1.21, as what natural reason has laid down among all peoples. In Vitoria's view, therefore, the relations between Spain and her newly acquired dominions had to be governed by this general law of nations.

Vitoria rejected the argument, also based on Roman law, that these lands were res nullius, belonging to no one, and so available to the first occupier. On the contrary, the local Indians had full ownership of their land under natural law, although they were pagan. For even heretics do not lose their rights of ownership.

Vitoria's championing of the rights of the indigenous peoples of the New World was primarily based on justice and morality but his key argu­ments owed much to ideas derived from Roman law. They were devel­oped by his successor at Salamanca, the Dominican Domenico Soto, by Diego Covarruvias, bishop of Segovia, who was both civilist and canon­ist, and particularly by the Jesuit Francisco Suarez. The latter's treatise De legibus, published in 1612, is the most sophisticated statement of the Spanish neo-Scholastic school. He asserted that the obligatory force of natural law was based on reason rather than on God's will (11.6), but observed that in practice what reason prescribed might vary according to the circumstances (11.14.12). Suarez rejected the Bartolist view that the prince was the delegate of the people and only held power according to the people's will. In his view the people transferred power to the prince absolutely and irrevocably (111.4). Logically the prince must be legibus solutus and cannot be bound even by his own laws. These Spanish scho­lastics developed the union of Aristotelian methods and Roman law begun by Aquinas. This enabled them to produce general theories, for example in regard to contractual liability, which had great influence on later writers. Their views had, however, very little effect on the actual practice of the colonists in the New World.

Later writers continued to separate the more general propositions to be found in the Roman texts from statements which were clearly appli­cable only to the civil law in its narrow sense. The more general propo­sitions were identified with the law of nature and of nations and indeed several had been expressly attributed in the original texts to ‘natural reason'.

In the context of the law of nature and of nations a new importance was given to the maxims collected in the last title of the Digest (50.17): for example, no one ought to be enriched to the detriment of another (206); no one can transfer to another a better right than he has himself (54); no one is guilty of dishonesty who is exercising his own right (55); he who suffers loss due to his own fault is not considered to have suffered loss (203); in an equal case, the possessor must be considered the stronger party (128). Many of these remarks had been made by classical jurists as part of their justification of a particular ruling and had been converted into general maxims by the simple expedient of removing them from their context. As such they expressed truths that did not need to be justified; as when in English a statement is introduced by ‘it stands to reason that', they were regarded as self-evident. Such maxims were highly regarded by those who wanted to present the law as a rational dis­cipline, for they could serve as the general principles from which the logical deduction of detailed rules could be made. They provided a ready-made quarry from which moral philosophers could draw propo­sitions with centuries of authority to support them.

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