22
ownership, be it private, public or political”, and added that the essential purpose of
Law is
“the dignity of the individual as a rational being. Men come to be moral persons and
subjects able to of have rights and obligations due to their rationality, for, by using
their rational capacity and their consequent freedom, they acquire control over their
own actions and are also free to choose their own destiny (…). Rational capacity is,
therefore, at the root of the formal grounds making man capable of acquiring dominion
and rights.”79
Eloquent in his defense of natural law80, F. de Vitoria contended that natural
law conforms to recta ratio, being therefore derived from reason and not from will
and aimed at achieving common good above all81. As I pointed out in a recent book,
even long before F. Vitoria, recta ratio was very well apprehended into a notion by
Plato and Aristotle and later, unsurpassedly, by Cicero and Tomás Aquinas, to be
right afterwards duly placed at the foundations of jus gentium, precisely by F.
Vitoria, besides F. Suárez and H. Grotius82. In effect, the common good imperative is
deeply rooted in the thinking of Francisco de Vitoria, for whom it constitutes a
"superior purpose" of the civitas maxima, and the very evolution of the law of
nations shall be the "collective work of the human community " as a whole83.
62.
63.
On his part, Bartolomé de las Casas, in his Doctrinal Treatises, written in the
same 16th century, denounced the “depopulation of over two thousand leagues of
land”, carried out with “cruelty and inhumanity” by “the Spanish in the Indies”,
brought about “the perdition and death of an infinite number of peoples,”84 in
addition to the
"destruction of their State and of all of the well-being of that world, and against the right
of private individuals, and against natural law, taking away and robbing and tyrannizing
not only property, but also the freedom, the lives and the people to give them to
85
others.”
According to the teachings of B. de las Casas, no person can lawfully
dispossess others, do others such wrong, thus infringing natural law and the law of
nations.86 This prompted the author to make a distinction between the primary law
64.
79
.
T. Urdanoz (ed.), Obras de Francisco de Vitoria - Relecciones Teológicas (Francisco de Vitoria’s
Works, Theological Lectures), Madrid, BAC, 1960, page 521, and cf. page 552.
80
.
Cf. ibid., pages 564 and 675.
81
.
F. de Vitoria, La Ley [De Lege - Commentarium in Primam Secundae, 1533-1534], Madrid,
Tecnos, 1995 [reed.], pages 5, 23 and 77. On recta ratio as the ultimate grounds of jus gentium, cf. A.A.
Cançado Trindade, A Humanização do Direito Internacional, Belo Horizonte/Brasil, Edit. Del Rey, 2006,
pages 3-29.
82
.
A.A. Cançado Trindade, A Humanização do Direito Internacional, Belo Horizonte/Brasil, Edit. Del
Rey, 2006, pages 3-29.
83
.
Yves de la Brière, "Introduction", in Vitoria et Suarez - Contribution des théologiens au Droit
international moderne, Paris, Pédone, 1939, pages 5 and 10.
84
.
B. de las Casas, Tratados (Treatises), Volume I, Mexico, Fondo de Cultura Económica, 1997
[reed.], page 219
85.
B. de las Casas, Tratados (Treatises), Volume II, Mexico, Fondo de Cultura Económica, 1997
[reed.], page 761.
86.
Ibid., Volume II, page 1249.