In 2024, the world could have celebrated the 75th anniversary of the Geneva Conventions. All states signed them on 12 August 1949. Together with other texts, they form the modern international humanitarian law. One year earlier, in 1948, the Universal Declaration of Human Rights was proclaimed, which is now part of customary international law and, for the first time in the history of Europe, guarantees freedom, equality and fraternity for all people:
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should treat one another in a spirit of brotherhood.”
The creators of the conventions had experienced the nights of bombing, the mass murders and the nuclear deserts first hand: never again. The graves of millions of their relatives were still fresh. And the terrible crime of the first atomic bombs gave them an idea of what could come after Auschwitz. How much heart and soul they put into it! How much hope the world drew from these promises of the natural rights of all. A consolation for the mourning of the millions murdered.
And today?
With over 120 wars raging around the world, it seems like a mockery to want to celebrate the 75th anniversary of international humanitarian law.
In the horrific rampage of genocide against the Palestinian people, to name but the worst, the belligerent Western elites have forgotten that we are human beings and act only according to the principle: “Anything goes.”
500 years of the history of modern international law in Europe have been erased from public life in the West. Unlike in the vast majority of the rest of the world.
Nevertheless, the 75th anniversary of international humanitarian law should be commemorated by recalling its 500-year history.
Against the arbitrariness
of the sheer power state
It was the natural law that, especially since the early modern period, brought about a human and international legal order in long disputes that since the early modern period in European history has resisted the sheer power state and its dogma that utility is the only and true reason for law.
With the late Roman Empire, Europe’s first imperial power state collapses due to its sick delusions of power and grandeur, scattering a “deadly seed”, as the great poet Reinhold Schneider from Baden-Baden writes in his essay “Macht. Die Rechtfertigung der Macht” (Power. The justification of power): Up to the present day, over the course of one and a half millennia, Europe has repeatedly experienced new attempts to copy or even surpass the “Caesarian power” of the Roman state – whose collapses brought and bring unending suffering to the peoples. Reinhold Schneider has described this impressively:
“Over a period of one and a half millennia, Europe offers the sight of empires blossoming and withering with tremendous speed; the aura of power that one after the other casts over the globe seems to be little more than a flash of lightning; after the disintegration of the empire [...] the change of supremacy takes place with ever more dangerous speed; the highest power: the empire, i.e. the legacy of Rome, comes alive as an impulse in all peoples; it is as if the long vanished Roman empire had still scattered deadly seeds in its decline: all peoples, even those whose natural habitat mocks such a succession, strive for Caesarian power. […] Lisbon at the time of the Portuguese Empire […] [claimed] to surpass Rome, which appeared to be both the city of the Caesars and the Pope. The architectural forms of Rome, which appear in almost all the centres of power in Europe and even America, express a succession not only in the artistic sense: they express the adoption of a dangerous legacy whose demonic compulsion the peoples could not resist as soon as their consciousness of power grew. [...] And Rome, however meagre are the remains of the walls left behind in the London area, did indeed grow through the English capital, re-emerging the forms that once expressed world domination […].” (Schneider, 1977, pp. 16-17)*
Resistance of the Dominicans
In the first third of the 16th century, the history of modern international law begins as a fierce confrontation with the bloody conquest and colonization of America by the Spanish and Portuguese empires. At the time, Spain was the only nation in which a group of influential Christians from the Dominican Order publicly opposed the injustice of colonialism: the School of Salamanca. It was primarily within its ranks that early modern international law emerged, which from the outset was applied natural law.
The Spanish legal scholars of this school of natural law confronted their Christian compatriots in the Central and South American colonies with the revolutionary demand that all people, including the pagan Indians, were born free and equal simply because they belonged to the human species (see de Vitoria 1952 and Fisch 1984). The right to life and liberty, they formulated around 200 years before the Enlightenment of the 18th century, was not dependent on whether one was baptized, but was a universally valid natural right.
The “new rights” fought for by the natural law scholars of the School of Salamanca applied to the Indians from 1542, but failed in 1545 due to resistance from the Spanish colonialists (cf. Neumann 1990). But it must be seen: With the resistance of the School of Salamanca against the injustice of emerging colonialism, the basic features were created which the Enlightenment of the 18th century only needed to implement politically, without adding anything fundamentally new to what Salamanca had created.
Alongside old legal structures such as constitutions, the right of succession to the throne, feudal law and canon law, “early modern international law” subsequently emerged as an independent special law between the independent secular and clerical ruling structures in Europe, the “early modern states” (cf. Oestreich 1969).
“Man – State –
Community of Nations”
In 2011, Iris Glockengiesser’s book was published by Stämpfli-Verlag Bern: “Mensch – Staat – Völkergemeinschaft. Eine rechtsphilosophische Untersuchung zur Schule von Salamanca” (Man – State – Community of Nations. A legal-philosophical study of the School of Salamanca), in which she sheds new light on the historical significance of the School of Salamanca, namely as the founder
“of modern international law and a new concept of the community of nations – always based on the teachings of Thomas Aquinas and Aristotle – but adapted to the requirements of the dawning modern age, the discovery of new peoples and the issues associated with this. Within the framework of their basic Christian understanding of the world, the scholars of the School of Salamanca attempted to give the people of the newly discovered America the status they deserved as free and equal human beings.” (Glockengiesser, p. 1)
This necessitated a new concept of the world community, which was no longer limited to the Christian world, “but a totus orbis [...], that is, the world community as a moral person that encompasses all peoples on the basis of natural law.” (Glockengiesser, p. 1)
The scholars of the School of Salamanca were universal scholars: they had studied theology and also dealt with law and philosophy. The most important Spanish theologians and jurists of the siglo de oro, Spain’s “Golden Age” (beginning 1492, cultural heyday 1550–1660), were associated with the University of Salamanca, the intellectual centre of Spain at the time. This resulted in the name “School of Salamanca”. The founder of this school was Francisco de Vitoria (1483–1546), a Catholic moral theologian and teacher of natural law. Another important representative was Francisco Suárez (1548–1617), Jesuit, theologian and philosopher. Hugo Grotius and Samuel Pufendorf, in particular, referred to him in their work. The concept of the School of Salamanca dealt with the triad of man – state – community of nations, which are closely linked in terms of content.
The encounter with
previously unknown cultures
The School of Salamanca founded modern international law and formulated a new concept of an international community, a world community that encompasses all peoples on the basis of natural law. The discovery and conquest of South America provides the historical background for the reasoning and formulation of the basic ideas of human rights. The encounter of Christians with the Indians and their previously unknown cultures changed the medieval world view by raising completely new questions:
Are these beings, the Indians, human beings like us? What legitimacy do the Indian tribes have? Are these genuine state communities? Is it right to enslave these people, to simply take possession of their land? Do non-Christians/non-believers have full human rights?
Undoubtedly, the primary intention was to evangelise the Indians, and there was even a supposed duty to do so; at the same time, economic profit was also expected, whereby the Indians were at least expected to be treated humanely by the royal house.
The basic assumption of Francisco de Vitoria and Francisco Suárez is the innate equality of all human beings. They have the ability to reason, have a natural freedom and stand out as human beings by their community-building social nature.
I. Reasoning ability
It is fundamentally his reasoning ability that characterises man and marks him as the image of God, regardless of whether he believes in God or not. The differences in his ways of life, his belief, the forms of his coexistence and his customs are exclusively a matter of education and teaching.
The humanity of the indigenous peoples was fully present even before their discovery. They belong to the community of all peoples and they have human dignity by nature. The orderly forms of their coexistence also prove the fundamental rationality of the indigenous peoples.
The right to property is derived from the ability to reason. Accordingly, the Indians have the right to have full control over their own lives and everything that goes with it.
At the same time, however, there were also representatives of a counter-position who claimed that the Indians were not capable of reason and therefore, by nature, not equal, but inferior. Therefore, they claimed, they had the right to rule over them; indeed, they even needed to be subjected to the superior, higher-value (Christian) people.
II. Natural freedom
Man has a freedom that is given by nature and is therefore natural. By nature, there are no slaves, so there is no natural right to enslave people. In fact, a great debate arose at the time about the circumstances under which it might be possible to enslave people for their own good, or as a result of culpable behaviour or military conflict. It was said that there are certain situations in which there are legitimate reasons to enslave a person. But the claim of a natural slavery is denied here.
III. The social nature of man
Man is essentially characterised by his social nature. This entails the necessity of forming communities. Man seeks and needs community, on the one hand because he cannot survive alone, and on the other hand because he can only fully develop his abilities by living together.
“Just as man surpasses the other living beings in intellect, wisdom and language, has he been denied much of the guiding providence that has been granted to the remaining living beings. Right from the start, in fact, Nature, as mother, immediately assigned all other living creatures their protective clothing at birth, so that the integrity and protection of the animals would be taken care of [...] But man, even though endowed with reason and virtues, was left by Nature vulnerable, weak, destitute and unprotected, completely without means of support, in need everywhere, naked and hairless [...]. So that in such emergencies, relief was provided, it was now necessary that people did not wander around restlessly and scatter like wild animals in solitude, but that they provided each other with mutual assistance by living together in society.” (Vitoria, quoted from Glockengiesser, p. 31)
It is only within the human community that man can develop to his full potential, to all the possibilities of his existence. This in turn leads to the necessity of forming state communities.
“Since human communities were founded with the aim that one should bear the burden of the other and because of all societies, the state society is the one in which people most comfortably confront their emergencies, it follows that a community is, so to speak, the most natural form of mutual exchange and most appropriate to nature.” (Vitoria, quoted in Glockengiesser, p. 32)
Part of the whole human community
His social nature corresponds to his rational nature and his freedom; in this, man is part of the community of all people from birth, which he cannot escape from as the original social being. Man needs the counterpart both to perfect the spirit and to form friendships,
“Even if life were safe and sufficient unto itself, it could still only be unpleasant and unenjoyable in solitude.” (Vitoria, quoted in Glockengiesser, op. cit.)
“The social nature of man, which forms society, is consequently based on the pursuit of the satisfaction of his material needs, but also on the acquisition of language and intellectual education, as well as justice and friendship. The latter are an ornament of the human will, which, outside of a community, would remain completely uneducated and, so to speak, mutilated. Since even justice and friendship are always oriented towards the existence of fellow human beings; consequently, the human will also shows man is a ‘creature related to his fellow human beings’.” (Glockengiesser op. cit., p. 33)
Man therefore unites in (national) communities in order to be fully human. This is to be understood as an act of free will and does not mean that he thereby loses his freedom. But he does incur duties that arise from life in a community. Individual freedom requires integration into a state community, which at the same time entails the necessity of duties.
The purpose
of sociality: the common good
In addition to the purpose of mutual aid and the development of all forces, another purpose can be attributed to the formation of human communities: the preservation of social and political peace. Without the peaceful coexistence of people and thus also of nations, mutual aid is difficult to maintain.
The creation of the state is intended to serve this goal, and thus the overall purpose of the state is to enable people to live together peacefully in accordance with their nature. (cf. Glockengiesser op. cit. p. 35)
Communitas perfecta never demands that individuals submit to one another, but it means integration into the obligation of a community striving for perfection, i.e. a community of life that strives for the highest degree of justice and perfection.
Man is not a self-referential ego; he always has a social part within him that connects people with each other and obliges them to respect others. This respect obliges us to help and defend others. The good of man can only flourish in and through communities; accordingly, the individual good cannot be ascertained without considering the common good of all. (cf. Glockengiesser op. cit. p. 37)
The purpose of the state: the perfection
of man in peace and security
According to the idea of the School of Salamanca, the foundation of a political community, a state, is a combination of man’s social nature, his natural disposition to form a community and his free will: According to Vitoria, man joins together with others of his own free will and in knowledge of his nature in order to achieve his perfection and to be able to live in peace and security. A state therefore has two duties: the perfection of man and the promotion of the common good, the bonum commune. The state should guarantee the peaceful coexistence of the members of the community and establish unity and order. The state provides the conditions and the means by which citizens can achieve the common good. The laws of a state must be aimed at the common good, otherwise they cannot be just.
Thus, the state is no more than the best organized community of human beings. Since the citizens always remain the maintainer of state power, the basis of the state is democratic. The question of the best form of government – a ruler or a group of rulers – remains secondary as long as rule does not turn into tyranny. This is clearly detrimental to the common good. This means that all possible states or forms of government are equal (in value), and above all they are sovereign. No state is above another, just as no human being is above another: no nation can claim to be the ruler of another nation.
Children of their time …
On some issues, the scholars of the School of Salamanca remained children of their time:
It has remained a task for subsequent generations to develop this further. However, the view that all people – Spaniards, Christians and the people of the New World – were born equal and free was a revolutionary idea at the time. Just as revolutionary were the thoughts on the state and the community of nations: a universal international community forms the basis in which all states, regardless of their religious or cultural orientation, are seen as part of a whole, as part of the international community, which must ensure the promotion of the common good of all people. In this sense, we agree with the closing words of Iris Glockengiesser:
“Peace, security and the granting of human rights as the supreme goals of every individual, but also of every state and the entire community of nations, can only be achieved together. But only if we are all ready to contribute to the bonum commune and the bonum totius orbis – in the spirit of the School of Salamanca.” (Glockengiesser, p. 110)
Natural Law –
‘Basic science of social life’
Since the School of Salamanca, modern natural law had been emerging from Christian culture in Europe in the early modern period. It was based on human social nature, i.e. anthropology, and culminated in the mid-17th century with Hugo Grotius and Samuel Pufendorf in the project of a ‘basic science of human social life’ (Wolf, p. 260). Not in opposition to Christian doctrine or in a clash with it. Nor as an application of the new physical or mathematical methods of the emerging natural sciences. It is an independent empirical science that derives inherent principles of social coexistence from human social nature. Samuel Pufendorf formulated this more concisely than almost anyone else:
“Man is therefore the creature that is most concerned with self-preservation. However, he is completely helpless on his own. He is unable to survive without the support of his own kind, but is also ideally suited to mutual support. […] From this follows that man, in order to survive, must lead a life in community, i.e. he must unite with his fellow men and behave towards them in such a way that they, for their part, do not seize every pretext to harm him, but are instead prepared to protect and promote his advantage. The rules of this community life, or the teachings on how everyone must behave in order to be a useful member of human society, are known as natural law. This leads to the following basic rule of natural law: everyone must protect and promote the community to the best of their ability. According to the principle: ‘Anyone who pursues a goal necessarily also wants the means without which the goal cannot be achieved’, it follows that the commandment of natural law is everything that is necessary and useful for life in community; what disturbs and harms is forbidden. All other rules, the correctness of which is immediately obvious in the light of the natural reason given to man, are only deductions from this supreme principle. […] The nature of man is such that humanity cannot exist without life in community. And man is also capable, with the help of his reason, of recognising the commandments that belong here.” (Pufendorf, 1994, Chapter 3)
Christians within Christianity in accordance with the Bible have developed this project of a science of man. However, it is not considered to be theology, but rather the application of reasonable rational thought and concluding on the nature of man. There grew what emerged in the 18th century as political enlightenment: natural law. Pufendorf outlines it somewhat simplified as follows: “Theology teaches us about life after death, natural law gives us the rules of community life on this earth before death.”
The development of modern international law with its natural law concept of human rights began with the School of Salamanca. Around 250 years before the declarations of human rights in the Age of Enlightenment of the 18th century. It referred to the innate freedom and equality of all people and developed – within Christianity – into a movement against the oppression of foreign peoples by Christian nations, among other things. •
* Translation of all quotes by Current Concerns
Literature
Frisch, Jörg. Die europäische Expansion und das Völkerrecht. Die Auseinandersetzungen um den Status der überseeischen Gebiete vom 15. Jahrhundert bis zur Gegenwart, (European Expansion and International Law. The disputes over the status of overseas territories from the 15th century to the present), Stuttgart 1984
Glockengiesser, Iris. Mensch – Staat – Völkergemeinschaft. Eine rechtsphilosophische Untersuchung zur Schule von Salamanca (Man – State – International Community. A legal-philosophical study of the School of Salamanca), Bern 2011
Neumann, Martin. Las Casas. Die unglaubliche Geschichte von der Entdeckung der Neuen Welt (Las Casas. The Incredible Story of the Discovery of the New World), Freiburg/Br. 1990, pp. 177–186
Oestreich, Gerhard. Geist und Gestalt des frühmodernen Staates. Ausgewählte Aufsätze (The Spirit and Form of the Early Modern State. Selected Essays), Berlin 1969
Pufendorf, Samuel. Über die Pflichten des Menschen und des Bürgers nach dem Gesetz der Natur (Of the duties of man and citizen according to the law of nature), Frankfurt am Main 1994, chapters 3, § 7, § 8, § 9, § 11
Schneider, Reinhold. “Macht. Die Rechtfertigung der Macht”, in: Schneider, Reinhold. Gesammelte Werke (Power. The Justification of Power), in: Schneider, Reinhold. Collected Works, edited by Edwin Maria Landau, Volume 8, Frankfurt/Main 1977, pp. 16–17
de Vitoria, Franciscus. De Indis recenter inventis et de jure belli Hispanorum in Barbaros relectiones, 1539, (Lecture on the recently discovered Indians and the right of the Spaniards to wage war against the barbarians), edited and translated by Walter Schätzel, Tübingen 1952.
Wolf, Erik. Grosse Rechtsdenker der deutschen Geistesgeschichte (Great Legal Thinkers in German Intellectual History), fourth edition, Tübingen 1963, p. 260
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