Following Thomas Aquinas the next major writer “to make an influential contribution to the doctrine of war” was Francis (Francisco) de Vitoria.[1] In the intervening time there had been writers on war but they had generally accepted the received tradition and made no significant elaboration on it. The major discussion during this intervening time was “on the precise nature of proper authority, and controversy between the champions of temporal and spiritual power.”[2] With the rise of fully independent monarchies, such as those in England, Spain and France, there really was no defending the position that just war was the sole province of either the Church or the Emperor. In discussing the development of the just war in the writings of Vitoria it will be acknowledged from that outset that, in a general nature, he accepted the outline principles given by Augustine. Tooke notes that;

“He accepted armed defence of property, life and honour as justifiable without question, but held that offensive war must fulfil the conditions of being declared by the right authority, being carried out in the right manner, and having a just cause.”[3]

Using these principles as a framework this chapter will examine the contribution which Vitoria made to just war thinking in relation to legitimate authority, just cause, just purpose and the conduct of a just war. Also to be examined will be how his changed social and political conditions impacted on his thinking. Alvarado notes, with regard to the new picture of society in Europe, that the defining event in this period was

“the discovery of the new World, the so-called ‘Indies’… (This) brought about a shift in perspective, a broadening of horizons, which reverberated throughout the West. At once Europe was on the world stage in a way it had never been, bringing a heady consciousness of globalism as yet unknown to medieval man.”[4]

This ‘globalism’ and discovery of new worlds will be seen to impact heavily on the writings of Vitoria as each section of just war thinking is examined.

Legitimate Authority

Vitoria wrote;

“… lesser subjects who are not invited to be heard in the councils of the prince nor in public council are not required to examine the causes of war, but may lawfully go to war trusting the judgement of their superiors. (Even so), there may be… arguments and proofs of the injustice of war so powerful, that even citizens and subjects of the lower class may not use ignorance as an excuse for serving as soldiers.”[5]

This is a departure from received tradition, generally the principle had been that serving under legitimate authority relieved the individual soldier of any responsibility if the war was unjust. This is, perhaps, a reflection of the influx of renaissance thought during the time of Vitoria. The Protestant Churches were moving away from an institutional hierarchy in religion, each person must take responsibility for his or her own actions. Living in Catholic Spain, it is possible that Vitoria was untouched by the thinking of the Protestant Churches but not by the responsibility of the individual to be found in the thought of the renaissance.. He could, however, have been responding to changes in society, that reflected a realism that the monarch’s actions were not always infallible, Vitoria himself “was troubled by many of the wars being fought by the conquistadors in their conquests in the Americas.”[6] He realised, with the brutality of some of these actions, that an individual’s responsibility cannot be taken away purely because he was following orders.

Realising the situation that this would place the individual ‘conscientious objector’ in, Vitoria extends his thinking further. The individual would be held accountable for his inaction by his superiors, and so Vitoria recognised

“that even if those of the lower orders perceived the injustice of a war they could not stop it, and their voice would not be heeded, so that any examination of its righteousness would be useless… (H)e did not think that subjects need be sure about the justice of a war before agreeing to take part in it… He though that although one is not justified in doing anything about which one’s conscience is in doubt, doubt about the justice of a war is accompanied by a certainty that it is right to fight for one’s prince, and this itself justifies participation.”[7]

This paradoxical position reflects the developing situation of the time. With the recognition that the state was not infallible came the traditional position of allegiance and obedience. To go against this would have incurred severe penalties. Vitoria tries to resolve this paradox by trying to write to both sides, however, all he ends up doing is recognising the conflict. But, as Tooke notes;

“This is here a conflict between two principles which cannot be solved merely by forgetting one of them.”[8]

 

Just Cause

Vitoria’s major development in this area of just war thinking was the differentiation between a war being subjectively just or objectively just- what Coates calls “bilateral justice.” Coates further notes that

“’Objective’ justice relates to the true or real moral state of things; ‘subjective’ justice to the moral perceptions or states of mind of the warring parties, both of whom can be (indeed are likely to be) convinced of the justice of their cause.”[9]

Vitoria, himself, alludes to the distinction;

“Let us suppose a clear case of ignorance (whether of the facts or of the law) then it can happen that on one side there is true justice, i.e. the war is really just, while on the other side the war is only just because good faith is an excuse for sin and invincible ignorance is an excuse.”[10]

For Vitoria the war could not be objectively just on both sides, however, for either, or both, of the sides it could be subjectively just. In all prior just war thinking, it would seem there was an underlying thought that war was only just on one side, there was no recognition that the ‘other side’ could feel themselves on the side of justice. The just ‘side’ in any prior thought seemed to be the Christian side, but with the realisation of a more global and universal community as the boundaries of the known world expanded, came a realisation that Christians did not have the sole claim on justice, more important than religious justice was moral justice- the universal rules of right and wrong.. The conquests of the Indian nations had been on the basis of Christian supremacy, these peoples held no rights to an independent civil existence. Vitoria writes against this, arguing;

“The aborigines undoubtedly had true dominion in both public and private matters, just like Christians.”[11]

Further;

“War is not an argument for the truth of Christianity; the Indians cannot be made to believe by war, only to pretend to believe and receive the Christian faith, which would be horrible and sacrilegious.”[12]

The just cause of war could no longer be determined by the declaration of the Christian country. If the war was detrimental to the community of the world it was not just. In this way a war that served only the glory of the state, or indeed, Christendom was rejected.

“Since one nation is a part of the whole world, and since the Christian province is a part of the whole Christian State… if any war should be advantageous to one province or nation but injurous to the whole or to Christendom, it is my belief that, for this very reason, that war is unjust.”[13]

Vitoria’s experiences of the wars of conquest will have influenced him thus. As he saw the rights of these ‘people’ being flouted he will have formulated his views that such campaigns that seek the glory of the few are to be rejected. The Christians may feel themselves just, but in his eyes, they are only subjectively just. Vitoria’s social and political situation led him to the conclusions that wars could be considered just on both sides, but only one could be objectively just- he saw the Christian nations fighting the ‘barbarians’ in an apparent ‘just’ war, but surely the ‘barbarians’ war of defence could be considered just. He applied the concept of the unity of mankind, that no one race/ country has supremacy- therefore the cause of Christianity could not be used to justify war.

 

The Purpose of a Just War

For Vitoria the purpose of a just war had not changed much from the time of Ambrose (even through the seeming silence of Augustine and Aquinas)- a just war must end in a just peace;

“When the war is won and finished… victory should be pursued with moderation and Christian humility; the victor ought to think of himself rather as a judge between two states (the wronged and the wrong-doer) and to deliver the judgement through which the injured state can obtain satisfaction as judge rather than as accuser, so that the aggressor state may, as far as possible, be spared the worst calamities and misfortunes, and the offending individuals be penalised only within the lawful limits.”[14]

Vitoria, here, recognises the importance of good relations, and further develops the concept of bilateral justice. Both sides apparently sought war for ‘just’ means, therefore, justice and peace should be the outcome- no matter who the victor.

In achieving this peace- he sought the first attempts at international law. This peace could only be found through arbitration- as a separate world power, Vitoria saw the Church as being able to fulfil that role.

“It is the role of the Church to watch over the way in which the secular power carries its God-given duties and ensure compliance with the law of God. the theocratic basis of Vitoria’s exposition is thus crucial. The Church mediates between the nations in the interest of that law, both for the good of the Church and for the good of all peoples…”[15]

This is another of Vitoria’s great developments. Any previous efforts at peace were through negotiation- he changed it to arbitration, to almost an international court;

“His definition of International Law, its nature, its origin and its application, should not be looked upon as pedantry on the part of the Spaniard; it goes to the genesis of our international law…”[16]

This is, again, a reflection of the global community in which Vitoria now found himself. There was not an Empire any longer, with it was gone any semblance of allegiance by individual states to any greater power. The only superior power left was God (and by extension, the Church)- now that the Church occupied an independent (apparently) moral high ground Vitoria extended their role in just war thinking to one of referee or arbiter. This conclusion, and apportioning of roles can be seen as a reaction to the wars of conquest in the Indies which so horrified Vitoria, he saw the horrors as results of “the lack of attention paid to ecclesiastical authority in the whole affair of the conquest…”[17]

 

The Conduct of a Just War

Jones argues that in relation to the doctrine of just war;

“A fourth condition was added early in the sixteenth century by Francisco de Vittoria, a Spanish moralist troubled by many of the wars being fought by the conquistadors in their conquests in the Americas. There were two elements in this; the war must not directly involve non-combatants, and there must be proportion in the means used.”[18]

Prior to Vitoria, warfare had been limited, somewhat to the battlefield. With the invention of gunpowder warfare was revolutionised. Dupuy observes that “During this century, gunpowder domination of the battlefield became complete…”[19] This included small arms, but large artillery weapons. With these developments the involvement and potential harm of non-combatants became a real possibility. Vitoria’s actual attitude to non-combatant immunity is slightly more complex than Jones would suggest. Rather than forbidding any non-combatant involvement Vitoria acknowledges that

“It is occasionally lawful to kill the innocent not by mistake, but with full knowledge of what one is doing, if this is an accidental effect for example, during the justified storming of a fortress or city, where one knows there are many innocent people, but where it is impossible to fire artillery and other projectiles or set fire to buildings without crushing or burning the innocent along with the combatants.”[20]

This reflects the nature of siege warfare which had developed with the advances in artillery. Dupuy notes that such sieges and their resultant struggles were “long, laborious, costly, and bloody…”[21] It will also have been in response to the excesses committed by the conquistadors. As allowable as this ‘collateral damage’ is to Vitoria it is important to clarify that

“by ‘accidental’ Vitoria does not mean ‘fortuitous’. Since the agent acts ‘with full knowledge of what he is doing’ this sense is ruled out. Rather ‘accidental’ signifies ‘not essential to the act’.”[22]

The nature of warfare had changed, and therefore, Vitoria realised that a re-examination of the principles of just war was necessary. Finding nothing in received tradition to help him, he seemingly related his situation to Christian principles in the way he thought best. Acknowledging accidental deaths of civilians enables warfare to be carried out in a modern way in the sixteenth century, with some restrictions but no hindrance. It should also be acknowledged that in other passages Vitoria says it is wrong to kill innocents under any circumstances, but Regout “reckons that these passages are vague and do not balance the others where such killing is permitted. But these passages remain and suggest that Vitoria never really reconciled the issue…”[23]

With regard to proportionality Vitoria wrote;

“No war is just… the conduct of which is manifestly more harmful to the State than it is good and advantageous; and this is true regardless of other claims or reasons advanced to make of it a just war.”[24]

The participants in a war must consider whether the action they are to undertake represents a fitting and proportionate response to the injury received. “Such a war should be the only and the ultimate means of repressing the injustice, and there should be a proportion between the evils let loose by the war and the good one hopes to attain by it.”[25] In this way the decision to go to war would be taken more seriously, and the means incorporated into its fulfilment would be moderated. This development could be in response to wars of repression, and their horrors during Vitoria’s lifetime that led him to call for moderation.

 

Conclusion

Francis de Vitoria took the doctrine of just war out of the fifth century and placed it firmly in the new world order of the sixteenth. For so long the doctrine had been clung to and change, and development, had been alien concepts to it. However, with the new military developments, and the new social and political conditions the time was ripe for a re-evaluation. Vitoria kept the existing framework but applied his new situation when it came to cause- he recognised that all were alike and a person’s country did not automatically make them more right and deserving. He was able to appreciate in a time of greater toleration that the opposition were not evil incarnate- rather people who themselves though they were fighting in a just cause (even if this was subjective). The groundwork he laid for the development of international law was perhaps his greatest legacy, but in terms of just war returned to the principle of last resort. His choice of the Church as arbiter reflects the religious nature of his society, but also the relative decline in the Church’s secular power as they were seen to be above these secular interests, and the only true impartial observers. With regard to Legitimate authority he, again, reflected the changing nature of society as the individual became more responsible for his actions. Finally, in the manner of right conduct he calls on his experiences and knowledge of the conquistadors to develop the doctrine of just war. This is his most innovative development, because it is completely new- the question of non-combatants had never been raised before.

Overall, Vitoria’s experiences of the conquistadors led him to re-examine traditional attitudes with regard to war, and led to a thorough and refreshing development of the doctrine of just war.

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[1] Joan D. Tooke The Just War in Aquinas and Grotius p183.

[2] Ibid. p182.

[3] Ibid. p183.

[4] Ruben C. Alvarado “Vitoria’s New World Order The Great Commission and the Discovery of the New World.” in Contra Mundum. No. 2. Winter 1992 p1.

[5] Francis de Vitoria Political Writings (Cambridge University Press. 1991) p308.

[6] Richard G. Jones Groundwork of Christian Ethics p88.

[7] Joan D. Tooke The Just War in Aquinas and Grotius p185

[8] Ibid. p185.

[9] A.J. Coates The Ethics of War (Manchester University Press. 1997) p148.

[10] cited in B. Hamilton Political Thought in Sixteenth Century Spain (Clarendon Press, 1963) pp145-146.

[11] quoted in J.A. Fernandez-Santamaria The State, War and Peace (Cambridge University Press. 1977) p79.

[12] quoted in B. Hamilton Political Thought in Sixteenth Century Spain p124.

[13] quoted in J.A. Fernandez-Santamaria The State, War and Peace p141.

[14] quoted in B. Hamilton Political Thought in Sixteenth Century Spain p157.

[15] Ruben C. Alvarado “Vitoria’s New World Order The Great Commission and the Discovery of the New World.” p8.

[16] J.B. Scott quoted in J.D. Tooke The Just War in Aquinas and Grotius p188.

[17] Ruben C. Alvarado “Vitoria’s New World Order The Great Commission and the Discovery of the New World.” p4.

[18] Groundwork of Christian Ethics p88.

[19] R.E. Dupuy & T.N. Dupuy The Collins Encyclopedia of Military History. From 3500BC to the Present. Fourth Edition. (BCA. 1993) p490.

[20] Francis de Vitoria Political Writings p315.

[21] R.E. Dupuy & T.N. Dupuy The Collins Encyclopedia of Military History. p496.

[22] A.J. Coates The Ethics of War p264.

[23] J.D. Tooke The Just War in Aquinas and Grotius p301.

[24] quoted in J.A. Fernandez-Santamaria The State, War and Peace p139.

[25] J.D. Tooke The Just War in Aquinas and Grotius p183.