Just war: Catholicism's contribution to international law.

Gaffney, James

THAT THE MORAL AND THEOLOGICAL ISSUES discussed in what follows are not "academic" matters, we are reminded by an exchange that moved theater-goers four centuries ago. KING HENRY Methinks I could not die anywhere so contented as in the king's company,--his cause being just and his quarrel honourable. WILLIAM That's more than we know. BATES Ay, or more than we should seek after, for we know enough if we know we are the king's subjects: if his cause be wrong, our obedience to the king wipes the crime of it out of us. WILLIAM But if the cause be not good, the king himself hath a heavy reckoning to make when all those legs and arms and heads, chopped off in a battle, shall join together at the latter day and cry all, We died at such a place; some swearing; some crying for a surgeon; some upon their wives left poor behind them; some upon the debts they owe; some upon their children rawly left. I am afeared there are few die well that die in a battle, for how can they charitably dispose of anything when blood is their argument? Shakespeare, King Henry V, iv. i.

The Origins of Just War Theory

It has become a commonplace to assert that "just war theory" arose from a Christian tradition formulated by St. Augustine and St. Thomas Aquinas. This half-truth conceals both the indebtedness of each to earlier thinkers as well as the profound differences between them that have important consequences. It is also often claimed that just war theory has been developed in order to justify wars favored by authors of the theory. This claim is confuted by the historical circumstances in which Christian thinking on this subject reached its fullest development. In what follows, I hope to stimulate constructive doubt about these opinions. I wish to indicate that as just war doctrine matured it also progressively departed from Augustine's point of view. Augustine makes a significant contribution to moral wisdom about war, but he does not contribute to a theory of war's justice. I shall also suggest that just war doctrine was both a distinctively Catholic achievement and one that could, for that very reason, be appropriated by all conscientious persons.

Fatuous as it may be to assign provenance to great movements in human thought, international law has been repeatedly assigned either of two originators. The more widely known is the seventeenth-century Dutch Calvinist scholar, jurist, and diplomat, Hugo Grotius. (1) The other candidate is the sixteenth-century Spanish Dominican philosopher and theologian, Francisco de Vitoria. (2) By a winsome irony there exists at The Hague a plaque dedicated to "The Founder of International Law." The plaque was erected by the Grotius Society. The person it honors is Vitoria. My present interest in this amicable question of origins is the symbolic focus it provides. For between the sixteenth and seventeenth centuries, a progressive though erratic Catholic doctrinal development reached its maturity. It subsequently shed its ecclesiastical particularities and entered upon a new tradition, secular and juridical. (3) Finally, after two world wars, the theory has gained firmer footing in practice through the League of Nations and the United Nations.

I hope to indicate two things in this condensed account: first, how just war theory originated as a moral doctrine; and second, how it was modified by the principles of authoritative thinkers and refined in controversy generated by unforeseen events. I shall stop at the period commonly labeled Renaissance and Reformation because it was then that just war theory, in essence nearly complete, ceased to be part of specifically Christian intellectual history and became part of the new jurisprudence of international law. After that time, Catholic just war theory participated in a general stagnation of post-Reformation Catholic moral and political thought that continued to the nineteenth century. During the same period, mainstream Protestant religious thinkers paid it little attention beyond insisting, against Protestant pacifists, that wars certainly could be just and--at least when conducted by Protestant rulers--were best presumed to be so. (4) In Lutheran circles, the "Two Kingdoms" doctrine, often oversimplified, made possible the simultaneous acceptance of an eschatological renunciation of violence, and a this-worldly realism about political and military matters. (5)

The relative poverty of early mainstream Protestant thought about just war is partly due to the fact that Protestantism was still young when the topic was subsumed in the secular discipline of international law. Exclusive reliance on the Bible required ingenious justifications of wars divinely enjoined as genocidal massacres in the Old Testament as well as ingenious reinterpretations of teachings by Jesus that seemed to favor pacifism. Both of these tasks had been addressed by Augustine, and his answers were widely adopted by Protestants. Catholic moral tradition, relying more confidently on natural law, encouraged freer reasoning about these matters and freer use of pre-Christian moralists. Finally, Catholicism's moralizing about war had to come to terms with its own conscience in two great programs of aggression, against Muslims and Jews in the Crusades and Reconquista, and then against indigenous populations in lands newly discovered by Europeans.

Contributions from Classical Authorities

The pre-Christian writers most relied upon by Christians in matters of political morality were, for the fourth century, Cicero, and for the thirteenth, Aristotle. Aristotle observed that the legal enforcement of justice that secured civilization within states failed to span national frontiers so that conduct that would be thought criminal if perpetrated by one citizen on another was tolerated and indeed expected when done by one state to another. He suggested no remedy. After two millenia, Hobbes could still illustrate the law of the jungle by pointing to the anarchy of international affairs. (6) It should not be supposed that Athenians ignored international morality. A century before Aristotle, Thucydides recounted the military decision to ignore a treaty guaranteeing neutrality to the island state of Melos and to punish its noncooperation by devastation and enslavement. (7) This episode became a focus of intense moral and political debate. The historian reconstructs a dialogue between the aggressors' cynical reliance on might and their victims' conscientious appeal to right that has become a paradigm of the debate between "moralists" and self-styled "realists" over international behavior.

Aristotle's few comments on justice in warfare enter obliquely into his discussion of slavery in the Politics. (8) Here, he distinguishes between "natural slaves," whose supposed incapacity for self-government necessitates control by a master, and "legal slaves," who acquire servile status as war prisoners. Evidently aware that such enslavement is sometimes not merely a consequence but the very purpose of war, he insists that "wars may not be just in their origin." This appears to be the earliest reference to "just" war. Later, when criticizing the militarism and imperialism that he thinks are ruining Sparta, Aristotle contends that the only legitimate objectives in legislating about war are to secure leisure and peace. (9) Waging war may be justified to avoid enslavement, to gain leadership for the sake of those who are led (but not to oppress them), and to dominate those who deserve servitude--presumably his so-called "natural" slaves. It can be no surprise that these words would later be cited in support of Christian world powers seeking colonial domination over native peoples. And it may be appropriate to recall that Aristotle was tutor to the future Alexander the Great. Nevertheless, Aristotle deplored militarism as eroding the best qualities of civilization and hastening the demise of a state, and he warned of warfare's conduciveness to tyranny. Clearly for Aristotle, the distinction between just and unjust war was important and meaningful. It was an ethical distinction, not a legal one, founded in a definite philosophy of political life. In developing the distinction, it is evident that Aristotle uncritically accepted some conventional assumptions, especially about slavery.

Early Western Christianity received its Greek philosophy mostly secondhand in paraphrase or translation. Aristotle was not well known. There was great interest in Plato, but rather as a metaphysician and theologian than as a political or moral philosopher. Stoic writers, some of whom were esteemed as moralists, anticipated later thought in their conceptions of natural law and of a world citizenship transcending nationality.The two concepts are related in that natural law depended not on nationality but on rationality, the exercise of dispassionate right reason in moral matters. Also related to and supportive of this Stoic philosophy of law were legal developments that had begun a century earlier. At that time, the diversity of Rome's population led to the appointment of a special praetor to handle cases of those who were not Roman citizens. Given the diversity of these people's local laws and customs, it was necessary to adjudicate on the basis of common ideas of what constituted fair dealing. Collectively, these broad areas of agreement were called ius gentium, the law of peoples. It was natural to unite the concepts of ius gentium and ius naturale and insist that the former might exceed the latter but must not contradict it.

In the realm of political and legal morality, Cicero greatly influenced Christian writers. Indeed, the first Western Christian text-book on morality was an adaptation by St. Ambrose, with rather few changes, of his treatise De Officiis, including its teachings on justice in warfare. (10) Especially important on this subject was Cicero's philosophical dialogue, De Republica, of which no complete manuscript survived, thereby making it necessary to reconstruct the dialogue from fragmentary quotations by ancient authors. (11) Significantly, the best ancient source for the texts on war is Augustine. (12) Cicero stipulates two criteria for a just war. First, "no war can be justly waged except for the purpose of redressing an injury or driving out an invader." And second, "no war is held to be lawful unless it is officially announced, unless it is declared, and unless a formal claim for satisfaction has been made." Augustine cites from memory of this same work a "discussion of the proposition that no war is undertaken by a well-conducted state except in defense of its honor or for its security." Another reconstructed portion of the text calls "lawful war" that "which is formally declared and which is waged either to secure restitution of property for which a claim has been made, or to repel an invader." "Unlawful war" is less helpfully described as one "begun from a mad impulse and without legitimate cause." Cicero favors expansionism, which he sees as a function of natural superiority, beneficial to those who are weaker, but he does not explicitly approve military aggression to enlarge an empire.

In his treatise De Officiis, Cicero begins a discussion of "laws of warfare" by noting that "there are two ways of settling disputes, by reasonable discussion or by force." (13) Reasoning is the properly human way, and force can be only a last resort. War's only proper goal is being able "to live in peace, without wrongdoing." After victory, Cicero recommends gentle treatment of former foes who were not cruel or barbarous, thereby anticipating the modern distinction between mere combatants and war criminals. He insists on a settlement that advances peace without concealing any snare, which meant, apparently, any hidden incentive to resume hostilities. He warns against the evils of false promises, even by prisoners of war. Cicero's concern about terms of peace is farsighted and often overlooked by later writers. He writes, moreover, that Roman fetial law contains detailed prescriptions. This intriguing reference is to a priestly state institution overseeing procedural justice in international agreements, about which, most regrettably, we lack further information.

In reading Cicero on the subject of war, one finds his philosophic habits of mind blended with and organized by his juridical outlook. In the kind of war he mainly envisions, the battlefield resembles a court of last appeal in a kind of international civil (rather than criminal) litigation. To settle a dispute outside that bloody forum is always preferable. Failing that, due process becomes all-important. Once the trial ends and judgment is reached, emphasis should be on compensatory damages. Punitive damages should be minimized. More comparable to a criminal trial is the case of a war to repel actual invasion. Cicero is also aware of another kind of war, waged for "glory and supremacy." Such wars he neither attempts to justify nor explicitly condemns, but they are clearly irreconcilable with his criteria of justice.

Augustine's Punitive Paradigm

Since much of what we know about Cicero on the subject of war comes to us from Augustine, since Augustine admired both Cicero's thought and his style, and since Augustine would be, for many centuries, Western Christianity's most cited authority on the ethics of war, one might expect Christian just war doctrine to be harmoniously built on Cicero's impressively humane foundations. That this is not true results from Augustine's preoccupation with theological issues that had no place in Cicero's world--in particular the biblical assessment of war and the coercive repression of heresy. It was these preoccupations that gave Augustine's teaching on this subject a very distinctive slant that would diminish in later Christian tradition and largely disappear from its most mature formulations. The often-repeated claim that Augustine was the founder of Christian just war doctrine is less than a half-truth. But that Augustine's peculiar slant contains a valuable moral wisdom of its own--too often neglected--is a topic I shall postpone to an epilogue.

Among the Manichean doctrines Augustine had to confront was rejection of the Jewish Bible. As evidence of its evil inspiration, Manicheans pointed to immoral directives attributed to God, including aggressive military campaigns of ruthless extermination. (It may be noted in passing that the Manicheans themselves must have possessed at least enough just war doctrine to support their indictment of these wars.) Augustine's theological commitment to the divine inspiration of the Old Testament moved him to defend the wars. That task, difficult in itself, was further complicated by the Gospels' account of Jesus's seemingly pacifist teaching, especially in the Sermon on the Mount, and by a strong tradition in the early church of refusing military service on religious grounds.

The Roman Empire had been Christian for only twenty-five years when Augustine was born. Previously, Christian writings were typically antimilitary and Christian soldiers were uncommon. Accordingly, Augustine's justification of war laid part of the groundwork for a new order. In Western Christian churches and traditionally Christian nations, Augustine's acceptance of justifiable war generally prevailed. But strong objections have persisted in pacifist churches, especially since the Radical Reformation, as well as in vigorous Christian minority movements. Pacifism, which has coexisted with just war tradition and has sometimes had a moderating influence on it, constitutes a theological and moral alternative that will require separate discussion.

Augustine's defense of Old Testament wars had the twofold effect of establishing "holy war" as a Christian concept and of effectively disallowing what we have come to call "conscientious objection." The basic argument is simple. (14) "When war is undertaken in obedience to God, who would rebuke, or humble, or crush the pride of man, it must be allowed to be a righteous war." Augustine does not mean that, where God is concerned, might is right. He means that moral standards, which all derive from God as imperfect reflections of his perfect wisdom and goodness, cannot be turned against their author.

But Augustine's argument takes an additional turn that would have serious consequences. He introduces an a fortiori argument. Since a righteous man, serving it may be under an ungodly king, may do the duty belonging to his position in the State by fighting by the order of his sovereign--for in some cases it is plainly the will of God that he should fight, and in others where this is not so plain, it may be an unrighteous command on the part of the king, while the soldier is innocent, because his position makes obedience a duty--how much more must the man be blameless who carries on war on the authority of God [who] can never require what is wrong.

Thus Augustine does not argue but merely takes for granted that the justice of war is a moral question for sovereigns but not for subjects. The morality of the divine sovereign is beyond question. Thus the morality of subjects engaged in war is determined in the first place by their obedience to legitimate authority. But it has another determinant as well. What that is, Augustine discloses in dealing with the seeming pacifism of Jesus Christ.

Augustine's adversaries pointed to Jesus's seemingly antimilitary injunction to "turn the other cheek" and "resist not evil" and other sayings to similar effect. Augustine replies by citing Gospel passages in which soldiering seems to be accepted as a legitimate occupation. But then what did Jesus mean by those sayings? "The answer is," says Augustine, "that what is here required is not a bodily action, but an inward disposition. The sacred seat of virtue is in the heart." In the same vein, Augustine asks What is the evil in war? Is it the death of some who will soon die in any case, that others may live in peaceful subjection? The real evils in war are love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance, and the lust of power and such like; and it is generally to punish these things when force is needed to inflict the punishment, that, in obedience to God or some lawful authority, good men undertake wars.

On this basis it appears that just war is largely a matter of good people chastising bad attitudes while exaggerated concern over the body-count arises from a misunderstanding.

One can see in this argument a feature of Augustine's thought that would greatly influence Western Christianity. It derives from Augustine's stress on the interiority of moral values. With its shift of emphasis from visible actions and palpable consequences to invisible passions, Augustine's thought departs widely from Cicero's perspective and from the realm of enforceable legislation. At risk of oversimplifying, one may relate this feature to Augustine's well-known founding of Christian morality on well-ordered love. To behave morally is to behave in ways that express the love of God and of the neighbor for God's sake. By this standard all claims to virtue are assessed. But it is this admirable doctrine that underlies most of what has been thought least admirable in Augustine's theological justifications of coercive force. For Augustine, force is applied morally when it is applied lovingly by appropriate persons. And one could scarcely do anything more loving for sinners than correct their sinfulness, gently if possible, but forcibly if necessary. That action taken on this basis should appear at times self-righteous and overbearing is hardly surprising.

Thus for Augustine, the persecution of heresy, deemed both sin and crime, is justified as a kind of moral surgery to destroy an infection that resists less invasive treatment. There may be fanaticism but there is no hypocrisy in Augustine's response to Donatist heretics whom he caused to be imprisoned that "it is fitting that you should be drawn forcibly away from a pernicious error, in which you are enemies to your own souls, and brought to acquaint yourselves with the truth." (15) To the Donatists' objections, Augustine replies that "the aim towards which a good will compassionately devotes its efforts is to secure that a bad will be rightly directed." In this struggle of good wills to rectify bad ones, the possessor of the good will must act from love uncorrupted by malevolent passions. Similarly, a magistrate may be morally constrained to inflict torture but, as Augustine concedes, he may appropriately shed tears in doing so.

It is from the point of view I have just described that one can best appreciate the shift in Augustine's thought about just war from defensive to punitive considerations and from a violent dispute over conflicting interests to a purgative vindication of good against evil. War against malicious adversaries, if lovingly carried out, not only guards and repairs national interests, but inflicts wholesome punishment to vindicate justice and morally rehabilitate the wicked. To carry out such warfare is to have one's violence not only justified by legitimate self-interest, but ennobled by altruism. For, as Augustine explains, "many things have to be done with a certain kind of benign asperity to those who must, however unwillingly, be punished. And indeed one is happily vanquished from whom there is removed a freedom to do wrong." (16) Phrases like "benign asperity" and "happily vanquished" capture a distinctively Augustinian flavor of paradox. (17)

Augustine does venture a definition of just wars that he says is the "usual" one. (18) They are "wars that avenge wrongs, when a people or state must be chastised for neglecting to punish wrongdoings of their own citizens, or to restore something that has been wrongfully taken away." Here we see Augustine's habitual view of war as vindictive and punitive loosely supplemented by a practical objective of repossessing lost goods. Taken up in the Decretum of Gratian, this flimsy and flexible definition would occupy pride of place in Christian law for many ensuing centuries. (19)

However unwittingly, Augustine's statements about war are the remote ancestors of that sanctimonious militancy we continue to hear in Christian political rhetoric. They exclude the very thought that there might be justice or injustice on both sides. Nor does their emphasis on punitive moral cleansing encourage tolerance or compromise. Augustine's enormous prestige caused his moral theology of war to go largely unquestioned. Christian jurists commonly combined it, not very smoothly, with secular norms drawn from Roman law. Papal decrees, using that combination opportunistically, became themselves components of the law. In a Scholastic writer like Aquinas, all these elements can be detected, disposed in a variety of contexts. But whereas Augustine discussed war unsystematically and incidentally to other concerns, Aquinas treated it as one topic within an organized and comprehensive ethical treatise. As a result, although his explicit treatment of warfare is scanty, he provides general principles that have proved highly relevant to the moral assessment of warfare, furnishing resources for more complete ethical analyses by some of his followers.

Thomas Aquinas's Defensive Paradigm

The main features of Augustine's thought about justice in warfare do reappear in the writings of Aquinas, but systematically redistributed and detached from any current polemic. Aquinas's principal explicit discussion of the subject is in his Summa theologiae as one of four "vices" opposed to peace, namely, schism, brawling, sedition, and warfare. (20) Evidently, war is not a big issue for Aquinas. Part of the reason may be that Peter Lombard's Sententiae, the collection of texts that constituted a syllabus for medieval theologians, does not deal explicitly with war. Aquinas's own treatment comprises four headings (two of which I shall ignore as having only ecclesiastical relevance): (1) whether war is always sinful; (2) whether fighting is licit for bishops and clergy; (3) whether deceptions may be used in war; and (4) whether warring is permissible on holy days. (21) It is the first of these articles that recalls, but significantly modifies, the main opinions of Augustine, concisely arranged in what would later be transmitted as a kind of compact, three-part formula.

Aquinas disposes of Christian pacifist interpretations of Jesus's teaching by citing Augustine on the Gospels' seemingly contrary sayings implying approval of the military. However, Aquinas does not embrace Augustine's view that the Sermon on the Mount pertains only to interior dispositions rather than external actions. Perhaps partly for that reason, he does not adopt Augustine's interpretation of just warfare as doing the enemy a spiritual service by correcting their moral delinquency. This difference has very substantial consequences.

Having disposed of the main theological objections to admitting the very possibility of a just war, Aquinas sets down three requirements: right authority, just cause, and right intention. Authority to command the waging of war belongs to the ruler, or "prince," and to no private person. The reason for this already expresses what Aquinas understands to be war's legitimate purpose. For the prince is committed to protect the commonwealth by force of arms from both domestic malefactors and foreign foes. Clearly, therefore, Aquinas understands just war as self-defense by a political community, a radically different idea from Augustine's salutary chastising of the bad by the good. This difference is blurred, however, when Aquinas deals explicitly with the second requirement, just cause. Here he defers to Augustine's so-called usual definition of just war. Those who are warred against must deserve it for "some guilt," and the war finds its just cause in "avenging wrongs" or restoring misappropriated goods. Again, in a passing reference to just war in discussing the virtue of courage, Aquinas defines such a war as one that "defends the common good." Finally, he explains that what he means by a "right intention" is one that intends to promote good and avert evil. He contrasts this with bad intentions, adopting verbatim Augustine's list of those evil dispositions for which Augustine considers war the corrective punishment.

Aquinas disposes briefly of the question concerning the legitimacy of deception in warfare. Here again he quotes Augustine who, deferring to the God of the Old Testament who is said to have ordered an ambush, concludes that once a war is just, it makes no moral difference whether the fighting is carried out openly or by deceit. Aquinas, however, insists on a distinction. Secrecy about military preparations may be justifiable in a just war. But outright lies and the breaking of agreements remain immoral even between belligerents.

Aquinas's article on sedition argues, not surprisingly, that sedition is sinful. But quite surprisingly he does not leave it at that. He goes on to maintain that the term sedition is not applicable to revolt against tyranny. Such a revolt is a defense of the common good. It is the tyrant who betrays the common good who is really seditious. (22)

It should be clear from even this brief summary that in the teaching of Aquinas two quite different notions of a just war coexist without ever being explicitly contrasted. One is Augustine's notion, guaranteed its place by its author's prestige and its regular inclusion in ecclesiastical documents over the course of eight centuries. It makes war an exercise of virtue in the chastisement and, ideally, eradication of vice, an affliction of bodies for the improvement of souls moved from start to finish by love. It supposes warriors know both that their own motives are good and that those of their foes are bad. It is "tough love" on a grand scale.

The other, very different notion brings us much closer to the pre-Christian thought of moralists like Aristotle and Cicero. It is the last resort of self-defense by a political community seeking to regain its violated security and to do so in such a way that future conditions will favor lasting peace. Here there is no attribution of vicious motives nor any claim that sufferings inflicted in battle are harsh medicines lovingly bestowed on ailing souls. Love is certainly involved, but it makes no claim to be purely altruistic. It is innocent, plain, ordinary collective self-love, the protective love of an endangered common good. Since what matters are the foe's outward actions rather than their inward dispositions, it should be apparent when the goal has been achieved and it is time to stop fighting and start working to stabilize peace. Perhaps enough has been said about these contrasting approaches to suggest which of them could be effectively adopted as a basis for international law.

Aquinas's approach to just war has the additional advantage of bringing certain neglected aspects of the problem onto already charted moral ground where they can be subjected to familiar ethical arguments. For if just war is self-defense writ large, familiar norms of both law and morality become applicable. It has often been pointed out that the great omission from most medieval discussions of just war is the morality not of going to war (ius ad bellum) but of how the war is waged (ius in bello). When the Augustinian tradition insisted on moderation, it was primarily the moderation of a just warrior's internal feelings, which must remain loving and the warrior even saddened by any damage he is compelled to inflict. Moderation of the damage inflicted, its scope, intensity, and duration, seldom came into the picture. But the already standard ethics of individual self-defense, reflected in Aquinas's own teaching, had long since set rational limits to the use of force--limits, for the most part, of proportionality between what was being defended and what was damaged in the process of defending it. (23) The paradigm of legitimate self-defense, which would shape the later development of just war doctrine, was unavailable to Augustine because he denied any individual moral right to kill in self-defense. He disallowed it on the grounds that, unlike war, it could not be exercised lovingly. (24)

Aquinas did not provide us with a fully articulated just war doctrine but transmitted in fragments two different and loosely articulated just war doctrines.Yet he also provided many ethical resources for developing one of those doctrines and this in a way that could offer guidelines for public law. Aquinas was not unique in this respect, but he was uniquely important because it would be his followers who chiefly pursued that development and who did so in urgent practical circumstances hardly amenable to the Augustinian approach. These developments took place two and a half centuries after Aquinas's death and two centuries after his canonization guaranteed his authority among Catholic thinkers. It was a very different time with Europe politically and religiously fractured, culture transformed by Renaissance learning and art, and a world map that exhibited vast new continents ripe for commerce, empire, and evangelization. It was also a time when Catholic ecclesiastical scholarship exhibited an impressive renascence of its own, especially in Spain and Portugal.

Because pacifists reject the very possibility of just war, an account of just war theory does not include the very rich tradition of Christian pacifism. There is, however, a kind of virtual pacifist who, on applying just war theory to the real world, concludes that real wars hardly ever make the grade. For them, wars are prima facie unjust, deemed guilty until proved innocent. The most outstanding Catholic representative of this position was the Dutch humanist Erasmus, respected for his piety and erudition and relished for his satirical wit. One of his satires, Querela pacis, personifies peace as a butt of cynicism, trying naively to find a place in the world, but always repulsed by the self-interests of the powerful in Church and State. (25) Erasmus, since he disliked Scholasticism and sympathized with certain views of the Reformers, was distrusted by many fellow Catholics. But the popularity of his work among liberal academics and university students, especially in Spain, helped to break down moral apathy about war and dispel the aura of nobility surrounding Spanish militancy.

Francisco de Vitoria's New and Larger Battleground

It was in this Spain, whose glorification of military conquest was threatened by criticism and mockery, that consciences were further assailed by news of recurrent atrocities perpetrated by Spanish traders and settlers, soldiers and officials, against native peoples in the lands first made known by Columbus. Reports of torture, enslavement, and slaughter, often inflicted under religious pretext, reached Spain mainly from missionaries. (26) The earliest missionaries were Dominicans, and the earliest reports were examined by the illustrious Dominican faculty at the University of Salamanca. There, and at other universities, protests were generated among students, while scholars took sides for and against Spain's conduct and policies in the New World. Debates over the matter were encouraged and at times sponsored by the crown and subsequently by the emperor.

One of the most reluctant participants in these debates was the distinguished scholar Vitoria, a man whose habitual environment was lecture halls and libraries and who shunned political activism. There is real pathos in the letter he wrote to his superior, acknowledging that what he had learned of Spanish treachery and cruelty no longer allowed him in good conscience to avoid the public controversy. (27) He entered the debate on his familiar ground with lectures to his students circulated as notes and later published. The lectures followed time-honored Scholastic form--enunciating theses, citing and answering objections, reviewing traditional authorities, and arguing to an affirmation or denial of each thesis. The brief survey of this material that follows must be confined mainly to its conclusions. Taken together, they probably represent the most comprehensive statement of just war principles in Christian tradition before the modern era.

The first question for Vitoria is what entitles Spaniards to take control of lands occupied by peoples called Indians. (28) His answers, which may seem to us obvious, were at the time revolutionary. On grounds drawn from accepted traditions in law and morality he concludes that the Spaniards have no right to invade, much less to rule. He refutes the claims that popes can give away continents that do not belong to them, that "discovery" of occupied lands, or the natives' rejection of Christianity, or misgivings about their personal morality, or ambitions for imperial expansion, give legitimate moral claim to them. He notes other traditional grounds considered to justify defensive war but shows that none of them apply to the Indians. He wryly observes that no free elections have been held resulting in an Indian majority opting for Spanish rule or even a mutual defense treaty with Spain. And he notes that credible reports offer no support to the claim that Indians are an inferior race of mental defectives, incapable of civilization, and therefore eligible for "natural" enslavement. He even addresses the submoral claim that Spain's status as a major power simply demands economic aggrandizement by riches extracted from the New World. Perhaps so, says Vitoria, but then why not just encourage fair commercial trade with the Indians and tax imports? In short, Vitoria vindicates both the sovereignty of non-Christian peoples and their religious freedom to accept or reject Christianity.

Throughout these arguments, Vitoria contends that Indians and Spaniards are equally subject to the law of nations and to the law of nature. He observes that "there are certainly many things which are clearly to be settled on the basis of the law of nations (ius gentium), whose derivation from natural law is plainly sufficient to enable it to enforce binding rights. But even on the occasions when it is not derived from natural law, the consent of the greater part of the world is enough to make it binding, especially when it is for the common good of all men." (29)

Vitoria does agree with his predecessors that war can sometimes be justified. In cases of urgent self-defense he even concedes that private citizens may take military action. As for the authority of the ruler, he wields it only as chosen representative of the commonwealth. Here a more republican view has clearly replaced the monarchical assumptions of Augustine and Aquinas. A just war can never be based on religious differences, imperial expansion, or a ruler's self-glorification, nor may it be undertaken unless nonviolent alternatives are exhausted. There can be no just cause unless harm has been wrongfully inflicted. And not just any wrongful harm will suffice. The response must not be disproportionate to the injury, for, he observes, "all the effects of war are cruel and horrible." Given adequate cause and due proportionality, what may be done in war? Basically, one may do what is necessary to defend the commonwealth. One may reclaim what has been misappropriated and claim indemnity for the costs of war. One may prevent a resumption of hostilities by destroying offensive fortifications and establishing surveillance. And one sometimes may and even must, as in judicial sentence for a crime, impose punishment.

Although Vitoria's account of a just cause (ius ad bellum) offers no grounds for warring justly against the Indians, he goes on to discuss hypothetically how, if it did have a just cause, it would be waged justly (ius in bello). By so doing he takes up the moral questions about war most habitually overlooked by his predecessors. For example, Vitoria pays considerable attention to noncombatants, their lives, property, and personal freedom. Intentional killing of the innocent is never admissible, and actions that foreseeably threaten their lives are lawful only in a just war that would otherwise be hopeless. Even then, foreseen but unintended injuries must not be disproportionate to the advantages gained.

A biblical precedent had often been alleged for killing male children, inasmuch as they would mature into enemy soldiers. Vitoria anticipates the issue of preemptive warfare, observing that it is intolerable to kill someone for an offense he has yet to commit. Plundering the innocent is not acceptable unless the war's progress necessitates it. Enslaving prisoners and holding them hostage is allowed only if indispensable. But Vitoria notes a general agreement that Christians may not enslave one another. In dealing with questions concerning hurtful actions outside of actual combat, Vitoria's arguments are generally based on considerations of fair indemnification and preservation of peace. While allowing that punishment may sometimes be in order, he repeatedly insists that punishments must not exceed crimes and urges that punitive measures be mitigated out of mercy. He is opposed to a just victor's deposing an enemy ruler unless future security would be impossible without such "regime change."

It has already appeared that, for Vitoria, rulers are conceived, at least ideally, as responsible representatives of their people. That notion is consistent with his rejection of Augustine's teaching that war is a moral question for rulers alone, whose subjects must simply obey. For Vitoria, "if the war seems patently unjust to the subject, he must not fight even if he is ordered to do so by the prince." If there are doubts that only detailed study could hope to resolve, subjects may trust their superiors. But senators and ministers are obliged to undertake the requisite study, and "wars should not be declared on the sole dictates of the prince, nor even on the opinion of the few, but on the opinion of the many and of the wise and reliable."

As conventional claims to just war against the Indians diminished in plausibility, a new justification was alleged that called for special treatment. Vitoria produced two treatises: one, De Indis, defending the natives' claim to their lands, and a second, De iure belli, refuting Spanish claims to war justly against them. A third treatise bears the whimsical title, De usu ciborum, "On dietary practices." (30) There were reports that Indians practiced and consumed human sacrifices, though the extent of this abuse was disputed. Vitoria concedes that cannibalism is a sin against nature, but argues that no such offenses, including sexual ones, committed by citizens of one nation fall under the jurisdiction of another. However, the case of human sacrifice is not that simple. Here there are victims. Harm was certainly done by Indians, and therefore, although it was not done to Spaniards, it could be argued that Spaniards might justly intervene to protect Indian victims, just as an individual might be justified in forcibly repelling an attack on another person. Here he anticipates what modern usage calls wars of humanitarian intervention to curb violations of human rights. Vitoria does not reject such warfare in principle, but knowing that in this case it is a pretext for plunder, he merely points out that such a war would have to cease as soon as the victims were rescued and would provide no justification for seizure of property or land. Rescue missions that remain faithful to their purpose are never profitable and usually costly. They are, however, the only kind of war by Spaniards against Indians for which Vitoria offers any hope of a just cause.

The writings of Vitoria I have summarized represent a great advance over his predecessors, but they also remain within their intellectual tradition. (31) Their modernity reflects the cultural trans-formations of his day. The historic crisis that prompted them gave them realistic complexity and moral urgency. But what gave them cogency was not only Vitoria's skill and care in ethical argument, but his persistent efforts to draw his principles from respected traditions, to treat adversaries with courtesy and thoroughness, and to refrain from tendentious rhetoric.

Toward A Public Synthesis

It is the set of principles and arguments that Vitoria brought to this vast and complex case of international conscience that has established him as a major contributor to international law. His moral principles lead to practical conclusions readily translatable into public law that bridges religious and cultural differences as wide as those between Spanish imperialists and the American native population. Though he was a devout Catholic who died on his way to assume theological duties at the Council of Trent, his arguments about war dispense with all claims to divine prerogative, whether of papal authority or of evangelistic urgency. He abandons without polemic the Augustinian concept of waging war to make the enemy as right-minded as oneself. He understands just war as exclusively defensive and as subject to the same moral restraints as all self-defense. He recognizes politically organized resident communities, however exotic, as having equal claims to self-determination with the greatest nations of Europe, undiminished by racial and social differences.

It is natural to ask whether the intellectual achievement of Vitoria and others like him did any real good. The answer must be yes and no. The no is the sad admission that the Indians were not suddenly rescued from assault, exploitation, and oppression. The yes is the gratifying recognition that the arguments were not ignored by king, emperor, or pope, but eventually made the basis of serious legal reforms. (32) These measures came too late to restrain traders, settlers, and adventurers from often continuing their predations beyond the reach of legal enforcement. But it would be in the development of international law that the moral wisdom brought to bear on the tragedy of the Indians would find its future opportunities.

We live at a time when international law exists and functions but remains harder to enforce than to evade. It is a time when most nations have freely joined a world organization and assumed its obligations but continue to neglect them. It is a time when alleged offenses by one nation against another can be tried by a jury more impartial than the plaintiff. It is a time when nations can be protected by neighbor nations on grounds transcending national expedience. Such circumstances offer unprecedented hope of restraining war and assessing its justice. But we Americans live in a nation whose positivistic traditions of legal education blur the very concepts of natural law or a law of nations, and whose preoccupation with military supremacy discourages compromise and encourages preemption. We live under the shadow of morally suspect wars waged in our name. Augustine might have comforted us with assurance that only heads of state need trouble their consciences over war. Vitoria denies us such comfort, admitting no surrogate for personal conscience. And by his own reluctant participation in political controversy he acknowledged the duty of scholars to discharge their own small moral ministry, confronting unconscionable ignorance with unwelcome facts and arguments.

Epilogue: Appreciating Augustine's Contribution

In the previous discussion it has been intimated that Augustine's typical approach to the question of justice in warfare was unhelpful in establishing practical moral guidelines for international law and even dangerous as fostering self-righteous religious or ideological persecution. However much or little Augustine can be blamed for it, sanctimonious claims to wage war as a pure instrument of goodness and godliness persist to this day with appalling consequences.

Nevertheless, Augustine focused on a moral concern that should not be overlooked. His main preoccupation was not the physical damage war causes to human beings and their environments, but the moral damage it entails. His remedy for this, an injunction to wage war lovingly, like a fair-minded judge sadly imposing a painful sentence, has disconcerted many readers by its seeming blend of smugness and unreality, but this should not be allowed to discredit his message. The important fact remains that war foments and feeds on hatred and this hatred is often intensified by deceit. Combat training has always valued and fostered the volatility of rage against an adversary. Nationalist propaganda ingeniously demonizes the foe. Postwar psychological studies find again and again currents of inward and outward aggression traceable to wartime experience. Augustine's fear is validated by experience. War damages not only bodies but souls. But to take this into account is not to adopt Augustine's impossible agenda of tormenting people because we love them. It is rather to add this terrible personal and moral harm to the weight of other evils that the objectives of a just war are obliged to overbalance. The sanitary concept of "collateral damage" must extend even beyond severed lives, broken bodies, and ravaged lands to include hardened hearts, despairing spirits, and embittered minds. Such consequences must never be ignored or minimized in those tortuous calculations of proportionality that continue to deprive most wars of any claim to justice.

Notes

(1.) Hugo Grotius (1583-1645), a man of immense erudition and poignant political experience, whose masterpiece De Iure Belli et Pacis comprises a critical synthesis of traditional teachings detached from but not uninfluenced by theology and based on natural law.

(2.) Francisco de Vitoria (1485-1546), Dominican theologian who made Salamanca the center of European Scholasticism. For a scholarly appreciation see Ernest Nys, ed., Francisci de Victoria de Indis et de Iure Belli Relectiones (Washington, DC: Carnegie Institution, 1917), 9-53.

(3.) Just when this transition occurred is arguable. The mid-seventeenth century, when Grotius died, is proposed by Oliver O'Donovan and Joan Lockwood O'Donovan, ed., From Irenaeus to Grotius: A Sourcebook in Christian Political Thought (Grand Rapids, MI: Eerdmans, 1999), 787.

(4.) Typically and classically, John Calvin, Institutes, IV, xx, 11.Q

(5.) Practical interpretation of Luther's "Two Kingdoms" teaching remains controversial. It excludes violence from the Kingdom of Christ, and therefore from the Church, while endorsing a more or less Augustinian ethic of just war in the secular sphere. Perhaps his clearest account is the treatise "Secular Authority" addressed in 1523 to the Duke of Saxony.

(6.) Thomas Hobbes, Leviathan, pt. I, ch. 13.

(7.) Thucydides, History of the Peloponnesian War, III, 36-49. For a timely discussion of this episode, see Michael Walzer, Just and Unjust Wars, 4th ed. (NY: Basic Books, 2006), 4-13.

(8.) Aristotle, Politics, I, ii.

(9.) Ibid., VII, xiii.

(10.) Ambrose, De officiis ministrorum, I, xxix, citing Cicero, De officiis, I, ii.

(11.) Cicero, De republica, III, xxxiv. See Augustine, De civitate dei, 22.6.

(12.) Indeed the best, though incomplete, manuscript was found underneath a copy of Augustine's commentary on the Psalms at the monastery of Bobbio. Important passages are cited from memory in De civitate dei.

(13.) Cicero, De officiis, I, xxxiv-xl.

(14.) Augustine, Contra Faustum, XXII, 74-79.

(15.) Augustine, Epistolae, CLXXIII.

(16.) Ibid., CXXVIII.

(17.) C. S. Lewis memorably labeled this doctrine "The Mournful Magistrate Theory" in Mere Christianity (San Francisco: Harper Collins, 1952), 120 f.

(18.) Augustine, Quaestiones in Heptateuch, in Iosue, 9. 10.

(19.) Decretum Gratiani, C. 23, q. 1, c. 6.

(20.) Thomas Aquinas, Summa theologiae (ST) II-II, qq. 39-42.

(21.) ST II-II, q. 40, aa. 1-4.

(22.) ST II-II, q. 42.

(23.) ST II-II, q. 64, a. 7. Aquinas invokes the principle of double effect, citing the accepted juridical principle of proportional moderation of force from Decretal. Gregor., IX, l. 5, tit. 12, c. 18.

(24.) Augustine, Epistolae, 47.5. And see De libero arbitrio, I, v.

(25.) Desiderius Erasmus, "The Complaint of Peace," in The Essential Erasmus, ed. J. P. Dolan (NY: New American Library, 1964), 174-205.

(26.) European awareness of the situation began with the famous sermon, "A Voice Crying in the Wilderness," preached by Fra Antonio de Montesinos in Santo Domingo, denouncing Spanish atrocities.

(27.) Francisco de Vitoria, Francisco de Vitoria, Political Writings, ed. Anthony Pagden (Cambridge: Cambridge University Press, 1991), 331-33. To situate Vitoria in his intellectual milieu, see B. Hamilton, Political Thought in Sixteenth Century Spain: A Study of the Political Ideas of Vitoria, De Soto, Suarez, and Molina (Oxford: Clarendon, 1963).

(28.) Vitoria, Francisco de Vitoria, 233-91.

(29.) Ibid., 280-281. Vitoria's reference here to a universal common good anticipates the perspective of international law, one which has only recently become prominent in Roman Catholic social teachings.

(30.) Ibid., 205-30.

(31.) Vitoria's most distinguished successor in the next generation of that tradition was the Jesuit Francisco Suarez (1548-1617), also of Salamanca. See Hamilton, Political Thought.

(32.) Las leyes de Burgos of 1512, under King Ferdinand, first gave some protection to the native peoples. More thoroughgoing and humane were Las leyes nuevas of 1542-1543, under Emperor Charles V.