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Francisco de Vitoria and Just War |
This is a brief sketch outlined for a now aborted collection of writings (no one was interested before Sept 11th 2001 but I have since reviewed others' attempts at compiling the classics in just war theory). This was written in 1998 before I gave up hope of finding a publisher for the collection, which still sits on my shelves, and moved onto other projects. (Sept 2004)
Francisco de Vitoria
(1492/3-1546) was born in the Basque province of Alava, Spain. He
earned a doctorate in theology in 1522 and held a chair in the subject
at the University of Salamanca until his death expounding the philosophies
of Aquinas and Peter Lombard; however, he soon went beyond the mere
expositor in applying traditional political philosophy to contemporary
European issues. Among his most famous contributions were those to
international law, found in De Indis ("On the American Indians") and De Jure Belli (On the Law of War). In his
lectures he applied the Thomist just war tradition to the theoretical
problems generated by Spain's activities in the New World. Emperor
Charles V consulted him in 1539 and 1541.
In his
application of the just war tradition to the contemporary world, Vitoria
offers a systematic account of just war. In doing so he offers the
world what is now a very modern view of rights and responsibilities
in war. He rejects religious differences as a just cause, emphasises
that war should always be a last resort after much negotiation, and
in explicating the problem of defining the justice of a cause he focuses
on the need to ensure that a war is fought justly with all due considerations
of Christian charity, mercy, and forgiveness. Within the double effect
framework, which he considers indispensable for war, the rights of
non-combatants clearly begin to emerge. For his
application of the Thomist position to contemporary events and for
his analysis of international problems, Vitoria is held as the founder
of modern international law, an intellectual trend that continues
through his student Suarez and later to Grotius.
Vitoria's political philosophy, which
is relevant to the study of just war, is based on the natural rights
traditions in which a social existence is a logical requisite for
the development of human nature, morals and laws. This stands in contradistinction
to contractarians who assert an individualist state of nature in which
mutually beneficial self-interest prompts people to form a society
and government (Cf. Hobbes, Rousseau, etc.). For Vitoria, the purpose
of government is to promote the common good, the virtuous life of
citizens, and to protect their rights. Accordingly, the best form
of government, he asserts, is monarchy, since monarchy is removed
from the political dissents and frictions intrinsic to democracy.
Vitoria begins in the Thomist just
war tradition, the essence of which is that a just war may be waged
against a wrongdoing and that peace should be the purpose of war.
The just war can only be declared by the proper authority, but should
always be the last resort after intensive diplomatic efforts to avoid
conflict. Authority, Vitoria asserts, resides properly in the sovereign
power of a nation. However, individuals do have the right to act in
self-defence to stop an aggressor, but they do not have to right to
claim restitution for a wrongdoing. That right should only rest with
the state. All violations are to be referred to the institutions of
the state, which implicitly increase the inviolability of the apparatus
of government. To mitigate this power, Vitoria is keen to limit the possible range
of just causes. He asserts that religious differences do not constitute
a sound reason for just cause, nor does personal glory or the convenience
of the prince.
[i]
War should only be waged against aggressors, for
aggression constitutes the only cause of just war. Yet not every injury
to a nation is sufficient to provoke just cause,
[ii]
for the principle of proportionality must also
be abided by and wars are not to be entered into lightly. Vitoria
comments on potential threats, but insists that to strike at a potential
threat is wrong: "It is never right to commit evil, even if to
avoid greater evil."
[iii]
This last
argument discloses that Vitoria's concern for just cause is predominantly
intrinsicist in nature. Intrincism holds that notions of good and
evil emanate from intent rather than from the consequences of an action,
from which it follows that going to war to avoid future wars or striking
heavily into the enemy's forces to avoid projected suffering are not
ethically acceptable actions; only when a harm has been committed,
can just cause arise. Intrinsicist ethics also emphasise punishment
for wrong-doings for its own sake, rather than in terms of punishing
for the sake of consequentialist considerations such as deterring
the aggressor (or others) in the future or for rehabilitating the
offender. If it
is held that the principle of proportionality is consequentialist
in nature (a moot point), it is evident that Vitoria errs on the side
of intrinsicist considerations over consequentialist concerns. Vitoria believes that
once war commences anything should be permitted to defend the public
good and to seize reparations for damage. The costs of the war may
justly be demanded from an enemy, as well as punitive measures to
guarantee no further transgressions, and fighting a just war gives
the defending nation the right to enter the aggressor's territory,
if that secures peace. The intrinsicist foundation of Vitoria's just
war theory allows the use of any means to secure the right. This is further emphasised by Vitoria's
belief that an enemy's property may justly be plundered and that civilians
may be taken for purposes of gaining ransom –potential profit in war!
Later, Locke's argues for the prohibition against touching the enemy's
property, and Vitoria's proposal expands the sphere of warfare to
include non-combatants directly. Perhaps in Vitoria's mind this reasoning
can be justified by the principle of double effect, which he uses
elsewhere to explain the argument that using hostages does not entail
directly targeting them personally but is targeting the enemy's capabilities
to wage war. Ransoms were common at the time of his writing; it was
considered fair on capturing people to profit from demands for their
release. Nonetheless, Vitoria's assertion is consistent with his initial
premise that state's rights are the focal point for just war theory,
and through implication not the rights of individuals, which allows
people to be taken for ransom to secure the state's interests. If a government has a right to defend
its peoples and to exact revenge and punishment on aggressors, the
problem arises of the need to define what constitutes a people. Here
Vitoria defers to the Aristotelian notion of self-sufficiency. What
is meant by self-sufficiency by Aristotle is that a nation is economically
self-sufficient. However, few nations ever have been self-sufficient,
since the intricate divisions and specialisations of labour required
for the support of a large population almost necessarily entail external
trade, without which the nation would be highly impoverished and unable
to support its population above anything but mere subsistence. Only
the smallest of communities can be economically self-sufficient. A
better criterion emerges if the notion of self-sufficiency implies
a political entity, whose members see themselves as unique and wish
to govern their own affairs (as argued for by John Stuart Mill). The
right to self-determination is a consequence of the desire to be self-governing,
but although this is a more fruitful theory for Vitoria's own analysis,
I believe Vitoria is hinting at the Aristotelian definition, unaware
of the economic problems that beset autarky. Vitoria allows the exacting of revenge
on aggressors, but not after the war has terminated. This is because
the reason for just cause has now terminated and the public good no
longer requires defending. However, during the war acts of revenge
are permissible, so long as they remain proportional to the ends of
war and are without inhumanity. Ex-soldiers remain legitimate targets,
presumably for the duration of the war, but once a person no longer
poses a threat he ought no to be targeted. Vitoria is inconsistent
in his exposition: an ex-soldier is considered to have laid down his
arms and therefore poses no threat and his status ought to return
to that of non-combatant. Regardless of that inconsistency, Vitoria's
analysis steadfastly emphasises the intrinsicist notions of just war
rather than the consequentialist aspects. His rules on the treatment
of non-combatants capture this: they are judged according to the overriding
demands for justice, rather than those of proportionality. But above
all, it is the princes who are to be completely blamed for war, and
subjects usually fight in good faith for their prince.
[iv]
The
most important contribution to the just war theory Vitoria offers
is his argument that both sides could, in good faith, be said to be
fighting a just war. This is not to be construed as a form of cultural
relativism which would have notions of truth and justice as pluralistic
and non-universal, for Vitoria believes that there is a truth and
a right notion of justice which holds true for all people. His point
here is that human opinion is fallible, and ascertaining on what side
justice lies is not an easy task. Given that we may err, sometimes
it is better to give the benefit of the doubt to both parties. This
allows flexibility in the just war theory, which is a mature and useful
development. In conflicts that have extended over decades or over
generations the original just causes may become forgotten or confused
in the legends formed from history. People may forget what they are
fighting; hence it may in such circumstances be more profitable to
assume justice lie with both parties. However, Vitoria asserts that if it
is obvious that one's nation is engaged in an unjust war, it is incumbent
on the individual to refuse to fight. Yet, Vitoria is eager to recognise
that not all citizens are capable of ascertaining whether a war be
just or not. Those who hold positions of greater responsibility are,
de facto, in a better position to know of the justice of a cause,
whereas those further removed from political intricacies are deemed
less responsible, and they must trust their leaders. If there is a
doubt as to war’s justice, the civilian must follow the commands of
his superiors, and is thus relieved from moral censure.
[v]
Vitoria also employs the principle
of double effect. According to double effect theory, the killing of
non-legitimate targets may be excused if and only if their deaths
were not the intended goal
[vi]
. Vitoria believes the principle to be necessary
for war otherwise fighting would be impractical. But the evil consequences
of employing double effect must not outweigh the benefits. “[I]t does
not seem to me permissible to kill a large number of innocent people
by indiscriminate bombardment in order to defeat a small number of
enemy combatants.”
[vii]
Although he accepts double effect theory
for contemporaneous innocents caught up in the wave of the threatening
activities of war, it cannot be extended to civilians who are merely
potential threats. Children who have the potential to grow into enemy
soldiers must not be targeted.
[viii]
To those who argue that God in the Old Testament
ordered the destruction of innocents in cities, Vitoria interestingly
responds that He was not invoking a general principle of conduct for
humans to follow but was reacting to a specific circumstance. Vitoria
holds that on the actual battlefield, “it is lawful to kill indiscriminately
all those who fight against us”
[ix]
, which surely, by virtue of their actual threatening
activity defines them as combatants; yet when besieging a city, Vitoria
agrees that killing all the adult males (regardless of combatant status)
in a city is morally acceptable, if the innocents cannot be distinguished
from the guilty. (recall: “The innocent must fall with the guilty”
–PhD) Again this reasoning employs double effect, for the assumed
direct target is the enemy combatant, and if the combatants cannot
be physically distinguished from the non-combatants, it follows that
killing a male adult stems from the intention to kill a threat rather
than any intention to kill an innocent. The reasoning is highly problematic;
recently Walzer in his Just
and Unjust Wars clarifies that, in the analogous case of guerrilla
warfare, an army does not have the right to kill indiscriminately,
rather the burden remains to attempt to distinguish between the two
categories. Once victory is achieved, the victors retain the right
to kill all enemy combatants
[x]
, which is fully consistent with intrinsicist ethics.
But then he invokes the humanitarian (even consequentialist) principle
that the public good must also be considered. Quoting Cicero (“punish
wrong doers only so far as justice and humanity permit”) permits his
theory to be implicitly tempered by consequentialist considerations
that to avoid future evils, mercy may presently be a good policy. To conclude, Vitoria's theory of just
war takes a different turn from his predecessors and those following
him. Although his analysis is prima facie Thomist, relying on the
premises of natural law assumptions, his reasoning emphasises firstly
the doctrine of right and justice over that of proportionality or
consequences, and secondly asserts the possibility of ostensible simultaneous
justice (Johnson?). Nonetheless the trappings of Aquinas’s thought
are still evident in Vitoria’s world, which was only beginning to
undergo and come to terms with the renaissance.
[i]
Sect.10
[ii]
Sect.14,5
[iii]
Sect.
38
[iv]
Sect. 60
[v]
Sect. 31
[vi]
Sect. 35, 37
[vii]
Sect. 37
[viii]
Sect. 38
[ix]
Sect 45
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