Francisco De Vitoria’ s Jus Post Bellum and the Principle of Punitive Justice
Department of Philosophy, University of Vienna
This text examines Francisco de Vitoria’s punitive justice principle in the jus post bellum, presented mainly in his lectures De iure belli (1539) and De Indis (1539). According to Vitoria, post-war prosecution and other punishment measures aim to deter future armed conflicts but are limited by moral principles. However, focusing his jus post bellum solely on punitive victor’s justice overlooks Vitoria’s concept of the global community of peoples (totus orbis) that he develops in De potestate civili (1527). This text argues for an interpretation of his jus post bellum based on the totus orbis, where violations of international law are addressed by its own judicial system, reintegrating wrongdoers back into the global community. After war has ended, the totus orbis aims to restore negative peace among all peoples, emphasizing compensatory justice. I firstly provide a short outlay of Vitoria’s totus orbis concept and in a second step address the specifics of his jus post bellum. I explain that the punitive justice principle after war is rather a justice deriving from the global order than a victor’s justice. It is part of the totus orbis’ compensatory justice system.
Introduction
Francisco de Vitoria is a product of his time —16th century Spain — a time of political upheaval, confrontation between new peoples and continents, a time of church reform, and an era between the Middle Ages and the European modernity. This is also reflected in his lectures, which partly still contain strong scholastic thought and method, but also incorporate modern content.[1]
A debate around Vitoria has revolved around the foundations of the Just War Theory, arguing that Vitoria is considered one of the historical precursors of important principles of warfare and the morality of war. This has primarily been demonstrated through a thorough analysis of the ad bellum and in bello criteria, while a detailed outlay of his jus post bellum has only been partially explored.[2] In the following, I will focus on Vitoria’s post-war law and examine its principle of punitive justice in greater detail. I will argue for the connection between the global community and post-war law.
Vitoria has often been referred to as the ‘father of international law’[3]. Parts of his international law have been interpreted up to a secular war theory,[4] a claim widely contested and criticized, (not only) by proponents of a postcolonial interpretation of Vitoria.[5] While Vitoria keeps parts of his law of war and international law separate from missionary law,[6] it is essential to acknowledge that his work is deeply rooted in Christian values and scholastic methodology.[7] This non-secular foundation is crucial to understanding the essence of Vitoria’s legal philosophy and warrants further exploration. However, my primary objective is not to engage directly in the debate over the secularity of Vitoria’s theory of warfare. Rather, while acknowledging the profound influence of Christian principles on his work, I aim to investigate Vitoria’s post-war law with the central goal of critically assessing the theoretical and ethical dimensions of the principle of punitive justice.
In his extraordinary lectures (relectiones) held by the Dominican theology professor at the University of Salamanca, he reflects on political philosophy and current topics of the time.[8] In De potestate civili (1527)[9], Vitoria discusses the nature of state power and develops his idea of the global state community totus orbis, which forms the basis of his doctrine of international law. About twelve years later, around 1539, Vitoria delivers two of his most well-known lectures, De iure belli[10] and De Indis hispanorum in barbaros[11] (henceforth abbreviated as De Indis). In the former, he discusses the laws of war, in the latter, he examines legitimate and illegitimate reasons for Spanish rule in the newly ‘discovered’ indigenous territories of the past 50 years. The lectures De potestate civili and De iure belli will be of greater importance in the following text, as I will argue for their connection.
That Vitoria’s law of war and international law are linked is a broad consensus within his reception.[12] However, his jus post bellum, which tends to be under-examined,[13] has so far been interpreted as too one-sided in the sense of a victor’s punitive justice and not sufficiently connected to his concept of the community of peoples. Researchers such as Larry May and Daniel Schwartz have delved into Vitoria’s post-war law.[14] Alex Bellamy in his article ‘The Responsibilities of Victory: Jus Post Bellum and the Just War” (2008), however not focusing on Vitoria but the scholastic tradition in general, has argued that the concept of jus post bellum within the scholastic tradition is based on a punitive form of justice emanating from the victorious party.[15] He proposes an understanding of this post-war law as a minimalist approach to reconstructing peace. Vitorias jus post bellum would therefore be part of the minimalist tradition. While I do not disagree with this categorization here, I aim to contribute further nuances to the discussion. I argue that the insights of his jus post bellum deriving from the lectures De Indis and De iure belli (1539) must be read within the scope of his political philosophy deriving from his lecture De potestate civili (1529). The aim of this text is to connect the punitive justice principle within the jus post bellum with Vitoria’s totus orbis. In doing so, I examine in more detail what content emerges from his jus post bellum and how it relates to the concept of totus orbis.
In the following text, I aim to propose an understanding of his jus post bellum as a form of restricted victor’s justice within a framework of the world community’s compensatory justice system. Vitoria’s concept of punitive justice within the jus post bellum can be understood as a form of compensatory justice deriving from the global order. I argue that jus post bellum is not necessarily imposed by the victorious party alone, but rather rooted in the compensatory justice system of the totus orbis and executed by representatives of the global community of peoples. While Vitoria’s jus post bellum encompasses additional principles,[16] I will primarily focus on its core aspect: punitive justice. Therefore, a new interpretation of jus post bellum in the context of totus orbis is necessary in order to open a new perspective on Vitoria’s post-war law.
The following, second chapter deals with the foundations of Vitorian international law, in particular his concept of the global community of peoples (totus orbis). It first establishes the link between the global community in times of peace as well as in times of war. In the third chapter, the punitive justice principle of his jus post bellum is presented. It explains how the totus orbis lays the basis for the jus post bellum. The fourth chapter then clarifies in more detail how rulers of commonwealths are acting as executive powers of the totus orbis. In the concluding chapter, critical reflections are made on the Vitorian jus post bellum and its topicality.
- The Global Community of Peoples: Vitoria’s Totus Orbis
In this chapter, Vitoria’s concept of a natural and global community of peoples is explained first. Vitoria explains this notion within his lecture De potestate civili. It is argued that the totus orbis forms a global, yet invisible legal order that aims to 1. preserve global peace and 2. protect international rights among its equal members. First, the history of the emergence of the community of peoples is explained in more detail, before the two main purposes of the totus orbis are discussed.
In Times of Peace: A Global Order Securing International Law
The term totus orbis, translated as ‘whole earth’, refers here to a supranational community order that regulates the global common good of peace on a legal and moral level.[17] It is based on the common human history shared by all peoples. Vitoria derives this concept from God’s creation:
‘Omnis […] potestas, qua res publica saecularis administrator, non solum iusta et legitima est, sed ita Deum auctorem habet, ut nec orbis totius consensus tolli abrogari possit’[18]
For Vitoria, there is no force that does not derive from God’s creation.[19] The community of peoples emerged from the history of creation. According to this story, at the beginning of human history, all people shared goods, land, sea, and mineral resources.[20] The earth was the common property of all. It was only through the sharing of goods that inequalities, political structures, and thus different peoples emerged.[21] Although differences and disparities developed between the peoples, they did not lose their original rights despite the changed political structures. The historical origin secures a global legal basis for peoples to live together within an international, legal system, which is based on natural law. Vitoria explains that all people are entitled to rights based on their common creation, regardless of their culture or even religion. He assumes a substantial equality of human beings based on their community of nature.[22]
Peace is the bond that is holding the totus orbis together. In Vitoria’s understanding, peace represents the natural form of human coexistence,[23] as in the original state of human history, peace and equality prevailed between all peoples. Vitoria defines peace primarily as negative peace[24], which for him means the absence of military action and the securing of global security, as he mentions in his law of entry:
‘Secundo a principio orbis, cum omnia essent communia, licebat unicuique in quamcumque regionem vellet intendere et peregrinandi. Non autem videtur hoc demptum per rerum divisionem.’[25]
Peace is a shared common good from which every nation benefits because it is the precondition for international rights. Contrary to contemporary views, Vitoria does not understand peace primarily as respect for the territoriality of other commonwealths, as this is softened by the above-cited right of entry and hospitality (jus communicationis and jus peregrinandi).[26] Rather, he is concerned with global security and the possibility of exercising one’s rights without the use of force.
The legal order of the totus orbis is based on natural law, which, according to Vitoria, has existed since the beginning of human history.[27] Natural law ensures a global, moral, and legal equality of peoples of different faiths. It is implemented by the totus orbis, forming a supranational power based on natural consensus but subject to no direct rulers. It does not represent a contract-theoretical model of peace, but is a common natural, moral, and legal order, which applies equally to all rational people and polities, regardless of their origin or culture.[28]
In summary, Francisco de Vitoria’s concept of totus orbis is based on the notion that all the commonwealths of the world are bound together by a common moral and legal order rooted in human history. This idea manifests itself as an invisible institution as a global and universally valid principle of order. Through this existing commonality, all peoples are bound to maintain peace and respect the natural rights of all peoples that have prevailed since the beginning of history. The two principles of the totus orbis imply normative guidelines:
i. As a legal order, it is responsible for implementing the global common good peace,
ii. It secures universal rights among peoples.
So far, my analysis has primarily focused on the functioning of the global community of peoples during periods of peace. However, it is equally crucial to examine its role during times of war. The following subchapter argues that in times of war, the totus orbis proves to be an institution of compensatory justice.
In Times of War: An Institution of Compensatory justice
Vitoria’s international law is closely linked to his law of war. Firstly, the common good of peace has top priority in both areas:[29] ‘Sexto probatur, quia finis belli est pax et securitas rei publicae.’[30] Keeping the primary goal of peace in mind, the totus orbis proves secondly to be an institution of compensatory justice. This is demonstrated by the fact that violations of fundamental international rights can already constitute moral grounds for waging war.
Deterrence plays a big part in the negative peace that Vitoria imagines. He continues: ‘Esset enim omnino iniqua condicio belli, si hostibus invadentibus iniuste rem publicam solum liceret rei publicae avertere hostes nec posset ulterius perequi.’[31] If deterrence is not enough to keep enemy states from attacking, not only defensive warfare but also continued persecution is a form of punitive justice that is potentially legitimate after witnessing an injustice. For example, the denial of the international right to hospitality[32] could already justify some use of force,[33] since the law of war begins where the rights of the natural community of peoples are violated.[34]
Vitoria argues that it may be legitimate to punish communities that have violated international law to prevent further injustice. In order to protect the community, it may therefore be necessary to use force to punish wrongs that have been committed and to restore peace between all peoples.[35] A violation of natural law thus constitutes an inequality within the totus orbis that must be punished. The global community of peoples is responsible for punishing these violations. Prosecution serves to deter further injustices and to reintegrate wrongdoers back into the totus orbis.[36] It can be understood as a form of compensatory justice – the law violation by the wrongdoer gives rise to compensation. The at-fault party must be held accountable for its wrongdoing. In this context, the totus orbis can be seen as an institution of compensatory justice, as it aims for the preservation of global peace and the observance of universal rights between peoples.
This compensatory justice principle was explained here with the help of the jus ad bellum but has consequences both for the jus in bello and jus post bellum. While jus ad bellum decides to punish violations of international law that occurred in times of peace, in the post-war period, violations of jus in bello are punished. In the jus post bellum, a line is drawn by balancing the injustices committed by the losing side with a fair measure of punishment. Consequently, that also means that if there were a just war, (that is, if all soldiers fought according to just in bello principles), there would be no need for a jus post bellum.[37]
As stated in the previous text, it is up to the totus orbis to uphold international law. It is also upon the totus orbis to punish injustices. One difficulty, however, is that it has neither a ruling nor an executive power because it lacks global world supremacy. Due to the absence of a world monarch or global authority, there does not seem to be an institution capable of protecting the universal common good. Furthermore, the totus orbis does not have its own executive punitive power, such as neutral troops, to act against violations of international law. The question arises who can assume this punitive power?
In answering this question, Vitoria distinguishes between ecclesiastical and political power. While the Pope is the head in religious matters, the political rulers of the polities have secular power in political matters.[38] Since violations of international law concern secular matters, the Pope has no decision-making power here. Consequently, the Pope or other ecclesial powers are not responsible for securing the foundations of international law within the totus orbis.[39]
Both decision-making and executive power regarding the safeguarding of international law are transferred to the political heads of the affected commonwealths. In this context, the princes are assigned the decision-making power to protect the totus orbis from violations of international law.[40] They are also given the power of punishment with which they can act against injustice, deter and punish wrongdoers.[41] In their function, they have the task of restoring the global world order and the original state of peace between peoples[42] – in brief – protecting the interests of the totus orbis.
By virtue of their neutrality, rulers are obliged to treat all peoples equally and to grant them equal rights. As Vitoria points out, whatever the ruler is obliged to do for his own commonwealth, he is equally obliged to do for other peoples:[43] ‘Et in summa quidquid rex tenetur facere pro commodo suae patriae, idem tenetur facere pro barbaris.’[44] This principle of equality also means to include indigenous peoples and every commonwealth of another religion, which at that time, was a groundbreaking thought.
Summing up, with the idea of the totus orbis, Vitoria strives for a global community of peoples based on a state of peace and equality between all peoples. The totus orbis goes back to the original state of human history and still forms a natural legal order between all peoples, granting them natural international rights. If one of the commonwealths commits an injustice, and thus breaks peace within the legal order, these violations of international law are to be punished by the totus orbis itself – by military means if necessary. When war has ended, Vitoria’s punitive justice principle aims at punishing injustices that occurred during the war, then reintegrating the wrongdoers into the totus orbis, and restoring a negative peace between peoples. The following text develops on how the rulers can offer satisfaction to their own aggrieved commonwealth as well as the totus orbis. Before the responsibilities of the rulers are explained in more detail, the following third chapter takes a closer look at the punitive justice principle during the post-war period.
- Francisco de Vitoria’s Jus post bellum
Whereas Vitoria develops his political philosophy in the relectio De potestate civili, he presumes these foundations within his more applied lectures De Indis and De iure belli. However, his political bases still play a great role in his law of war.
In the context of presenting Vitorias punitive justice principle within his jus post bellum, some central questions arise: What exactly does the punishment look like? To what extent are the political rulers entitled to it? In order to answer these questions, I will first draw on three moral principles that are applicable to the time after war as well as some more concrete examples, which Vitoria elaborates on mainly in De iure belli and De Indis. I will then link these considerations to the concept of totus orbis and argue that rulers have a dual role as leaders of a polity and as representatives of the totus orbis. My aim here is to emphasize that Vitoria advocated for a limited prosecution of the defeated party. His focus lies rather on compensatory justice, advocating for punitive means, in the sense of reintegrating the wrongdoers into the global community of peoples.
The Principle of Punitive Justice
At first glance, Vitorias jus post bellum resembles a punitive justice. Here, the question arises as to whether the punitive measures of the totus orbis have individual or collective consequences.[45] It also serves as deterrence and establishes negative peace.[46] By punishing individual soldiers on the opposing side, collective suffering is inflicted upon the enemy. The principle of punishment also destroys the enemy’s personnel capacities to wage war.
Vitoria argues that combatants are guilty when fighting the wrong, unjust side of a war.[47] Their goodwill and strong dutiful bond with their ruler make them responsible for fighting on that side. The targeted killing of enemy soldiers is therefore not a punishment of the individuals, but rather a punishment of their people by hurting them.[48] It is aimed at punishing the collective but can take place on an individual level. According to Vitoria, when individual soldiers are harmed, it is the collective that suffers. Consequently, individual soldiers can be punished for the wrongdoing of their collective, even if they were only minimally involved as individuals in committing the injustice.[49]
Punishment within the jus post bellum becomes a corrective measure if the injustices of the opposing party have not yet been punished for during the war. It also gives an opportunity to punish in bello injustices. Consequently, the punishment principle serves to fulfill the objectives of war in the last instance.[50] Imposing punishment could be done by the following means: It is not only done by killing the opponents but also includes the payment of reparations by paying taxes. It seeks to implement the recovery of the costs of war, as well as the prosecution of the wrongdoers to serve a lasting security to the just winners.[51]
Vitoria gives several examples of post-war punitive justice, such as punishing some of the defeated soldiers, confiscating and executing property, deposing the enemy ruler, looting, killing, penalties, and enslaving. Vitoria concedes a potential justification for all these acts.[52] However, these measures are controlled by three meta-principles of war. Punitive justice can be executed as long as the principles of proportionality, necessity, and discrimination are met (see chapter 3.2). Post-war punitive actions, such as killing, levying taxes, looting and occupation must be carefully examined for their moral legitimacy first.
Prosecution of individual wrongdoers as a form of punitive justice after victory serves above all to deter future wars in order to achieve the goal of peace within the global community of peoples. In terms of negative peace, punitive justice aims to limit the opposing party in its military means (soldiers, weapons and ammunition, money) in such a way that further wars are prevented. Vitoria’s most important principle of punitive justice within his jus post bellum comes closest to a limited victor’s justice[53] if read without the idea of his totus orbis. Post-war punishment serves to correct past injustice, in the sense of compensatory justice with the aim of reintegrating the defeated into the community of peoples (see second chapter).
However, Vitoria’s punitive justice principle within his jus post bellum seems outdated in various aspects. He argues in his work for certain morally permissible actions after the end of war, which are highly disputed today.[54] For example, Vitoria’s jus post bellum allows looting, slavery, and even killings as punishments within a moral scope.[55] This view was based on a widespread right to punishment, which in the 16th century was usually associated with the right after the end of a war.[56]
Several points speak against the topicality of Vitoria’s post-war law. His jus post bellum offers only limited protection for individuals and relies mainly on collective punitive measures as well as negative peace. It does not offer a framework for the rights of the defeated – aspects that are now considered fundamental to modern international law.[57] Compared to current maximalist approaches, which impose obligations on winners after the end of the war, post bellum minimalists, mainly scholastics, tend to advocate concessions to the winners.[58] Permissions dictate to the winning side what they may do after a victory. Most minimalist accounts of jus post bellum limit the winners’ rights to acts that protect themselves, that were taken unlawfully, and punish the perpetrators. This means that the winners secure the just cause of war and deter future aggression by punishing the aggressors.[59] However, I contend that Vitoria’s post-war legal framework encompasses more than mere punishment and criminal justice. It also includes other forms of post bellum reconstruction, even though the punitive justice principle seems to be the most important aspect.[60] Even though it has been recognized that forms of reconstruction and criminal justice also appear in variants of the minimalist position,[61] Vitoria’s jus post bellum should be explored from aspects outside of the minimalist categories.[62]
Three Moral Principles Post Bellum
In the Conclusiones of the lecture De iure belli, Vitoria reminds that after war, rulers are first and foremost obliged to keep peace according to Paul Rom. 12:18:
‘Supposito, quod principes habent auctoritatem gerendi bellum, primum omnium debent non quaerere occasiones et causas belli, sed, fieri potest, cum omnibus cupiant pacem habere’[63]
This is the highest and unconditional priority, which concerns not only bordering peoples but all peoples of the global community. War is waged with the aim of re-implementing peace and security, as elaborated in chapter 2.
In the Vitorian jus post bellum, the classical three normative principles of the just war doctrine are applied to assess the legitimacy of an action. These principles also play a significant role the jus in bello:
- Proportionality:
After war has ended, the principle of proportionality applies as a limitation for killing for punishment purposes. In this context, the total punishment must be in proportion to the initial wrong done by the enemy state. The level of punishment should correspond to the wrong committed that served as a just cause for entering war in the first place. After war has ended, punishment is allowed under the principle of proportionality: ‘servata autem humanitate et aequitate, quia poena debet esse proportionate culpae.’[64]This principle is intended to ensure that the level of punishment is proportionate to the suffering endured. An unrestricted killing of enemy soldiers could therefore be considered too great an intrusion into the common good peace and not be proportionate to the degree of guilt under the proportionality principle.
In the post-war period,[65] the victorious side virtually sets off the injustice suffered. It then measures the punishment based on the severity of the crime and makes sure that the punishment corresponds to the injustice committed by the enemy. Vitoria explains, based on the occupation of France, that the penalty should be assessed according to the proportionality principle. From this example, he derives that a punitive action by the winning side is unjust if the principle of proportionality is not observed. Vitoria illustrates the example that it would be unbearable to occupy all of France, if the French had taken livestock from Spanish herds as loot or set a single district on fire.[66]
- Necessity:
Necessity is another normative principle of the jus post bellum that all war agents have the obligation to uphold.[67] Accordingly, the use of force should be limited to the minimum in order to achieve the overall goal of war, which is peace and the reintegration of the wrongdoers back into the totus orbis.[68] Accordingly, any punishment must be assessed based on the principle of necessity. According to this necessity calculus, not all crimes necessarily require the highest possible punishment:‘Et si necessitas et ratio belli postulet, ut maior pars agri hostium occupetur aut quod plures civitates capiantur, oportet, ut compositis rebus et peracto bello restituantur tantum retinendo, quantum sit iustum pro impensatione damnorum et impensarum et pro vindicta iniurae’[69]
The Christian value of moderation allows the winners to only punish the most fundamental war crimes. Some punishments can be avoided if the actions were not crucial for the injustice suffered. For example, because of their non-knowledge of a legitimate warfare and their citizen duty to serve,[70] not all soldiers need to be punished for fighting on the wrong side.
- Discrimination:
Regarding punitive justice, a third moral principle also derives from Vitoria’s lectures, which is applied in the jus post bellum – the principle of discrimination. The discrimination principle, also relevant during warfare, also becomes important in post-war law. It requires a distinction between legitimate and illegitimate goals:‘Solum ad vindicandam iniurium non semper licet interficere omnes nocentes. Probatur, quia etium inter cives non liceret, si etiam esset delictum totius civitatis, interficere omnes delinquentes’[71]
Based on this principle, it needs to be distinguished between innocent citizens and soldiers.[72] Unjust combatants on the losing side can be killed under criminal law, while innocent persons, including children, must be protected.[73]
If the three moral principles restrict a large part of the punishment measures, what types of punishments are still allowed in post-war law? Vitoria gives concrete examples: Criminal killing is allowed in principle on condition that it follows the three moral principles. He does not completely rule out the possibility of a complete extermination of the opposing collective, assuming that only guilty people are among the opposing side and that their initial wrongdoing was large enough for drastic countermeasures.[74] Reparations can also be implemented according to jus post bellum principles through taxes, looting or transitional governments. Vitoria argues that imposing fiscal levies on the enemy also serves to compensate and punish for damage.[75] This, he argues, is an appropriate form of punitive justice. A more extreme approach to raising funds is plunder. Unjust combatants would have to return all property confiscated during the war, while the victorious party could retain property as part of a war estate as compensation for costs incurred during the war. With regard to Vitoria’s last punishment measure concerning a regime change, the winners are allowed to change the political ruler of the opposing party if the preservation of order cannot otherwise be ensured.[76] The implementation of transitional governments after the end of the war may be necessary as a last resort to prevent the parties from reverting to a state of war.[77] However, the occupation of cities is only justified if the inhabitants have previously committed a corresponding grave injustice. It that case, deterrence may be necessary to not fall back into warfare.[78]
From the last paragraphs, it became clear that the opposing side must be treated with respect, (not only) after war has ended. Punishments are restricted by three normative principles which Vitoria derives from Christian virtues like humility, moderation, and charity.[79] In summary, punitive justice should only be exercised after an armed conflict when it responds to an injustice inflicted on the entire totus orbis. The goal here is to restore security and integrate the former enemy collective into the global community of peoples. Even harsh forms of punishment are potentially legitimate if they respect the normative principles proportionality, necessity, and discrimination.
- The Role of the Ruler
In the second chapter, I shorty described the responsibility to punish the wrongdoers befall the ruling powers after the end of a war. However, further investigations are necessary to outline the rulers’ tasks and functions. I further stated that punitive measures primarily serve to redress the injustice inflicted by the enemy state, thus fulfilling a higher purpose by ensuring the reintegration of the enemy commonwealth into the totus orbis. Nevertheless, the exact role that falls upon the ruling powers after war remains unclear. This fourth chapter explains in more detail how the rulers of a commonwealth ought to act and decide after war has ended.
An Executive Power of Totus orbis
It was already argued that there exists no special executive power within the totus orbis in the contemporary sense of a shared military or an executive body. Initially, in the scope of 16th-century politics, it is not implausible that another commonwealth within the totus orbis, on behalf of the aggrieved peoples, may engage in warfare to stop the committed injustice. But it is not the most evident outcome that another nation assumes the executive authority of the totus orbis. Additionally, forming alliances among nations could be another option to wage war to collectively punish the totus orbis’ injustices through coalition wars. However, Vitoria does not address these two possibilities in his lectures. He primarily focuses on the perspective of the winning party. The responsibilities for punitive justice are bestowed upon the ruling powers of the winner, to exert the totus orbis’ will.
Wars constitute a state of exception that significantly threatens the usual state of a peaceful global community. The emergency arising from this acute threat necessitates an adaptation of the legal framework to ensure social order and security. In this context, fundamental rights of citizens can be restricted, such as the limitation of freedom of movement by the involvement of armed forces, for example through a compulsory military service. Such a state of exception facilitates temporary changes in the legal system. As a result, new tasks and responsibilities emerge for certain segments of society, particularly for the political powers in a state of war but also for soldiers and civilians. In this chapter, it is argued that the ruling powers have a dual role during times of war.
According to Vitoria, with the switch from international to martial law, rulers get new tasks, which involve the observation of the morality of war. On the one hand, they are responsible for upholding the morality of war in the interest of the totus orbis, and on the other hand, they act as the political leaders of their own people. In their dual role as the political leaders of a nation and as the executive body of the totus orbis, they represent a neutral entity that must consider the moral aspects of warfare. When a political and legitimate authority wages war, it operates in two capacities. On the one hand, the ruling powers are the heads of their own people, and on the other hand, they assume the role of a neutral entity as the executive body of the totus orbis. In several instances in De iure belli, Vitoria emphasizes the necessity of absolute neutrality on the part of the ruling powers: A high-ranked ruler and lawful judge[80] possesses the power of punishment, bestowed upon them by the emergency of the law of war. He asserts the neutrality of the ruling powers in relation to the jus post bellum. Vitoria suggests that the winner assumes the role of a judge, positioned between two communities: the harmed community and the community responsible for the wrongdoing. Instead of acting as an accuser, the winner acts as a judge, aiming to offer satisfaction and restitution to the aggrieved community (being his own nation).[81]
An Impartial Judge
According to Vitoria’s understanding, the victorious powers have a special role. After the conclusion of an armed conflict, they are called upon as neutral entities to make decisions regarding further actions as objectively as possible.
‘Parta victoria et complete bello oportet moderate et modestia Christiana voctoria uti. Et oportet victorem existimare se iudicem sedere inter duas res publicas: alteram, quae laesa est, alteram, quae iniuriam fecit, ut non tanquam accusator sententiam ferat, sed tanquam iudex satisfaciat quidem lease’[82]
Vitoria implies that the victorious powers should not be tempted into unlawful actions.[83] Due to their neutrality, they are obligated to treat all peoples equally and grant them equal rights.[84] The just judge must carefully examine the situation and make determinations with certainty about the actual actions. In doing so, he must accurately examine the legal situation and seek to ascertain the truth.[85] The objectivity of their actions poses a great challenge to the ruling powers, not least because they simultaneously entail moral decisions.[86]
Secular rulers, such as princes, dukes, and kings, bear the responsibility for conducting warfare justly and ensuring the morality of war.[87] They must not only uphold the morality of their actions but also enact laws for implementation and ensure their compliance. However, in this task, they are not alone. Rulers possess the personal means to meet the demanding political and moral requirements. They are provided help in their two areas of responsibility: 1. Their officials are responsible for the implementation of laws,[88] while 2. a consultative body of theologians is entrusted with examining the morality of wars. They, along with other knowledgeable experts, are tasked with assessing the legality of wars.[89]
For the explanation of the morality of post-war actions, the second body is more interesting for this investigation. Rulers establish a consultative body consisting of theologians, jurists, and other experts.[90] Vitoria conceives of this body, possibly, as a contemporary form of advisory bodies such as the Council of the Indies, which since 1492 served as advisors to the Spanish rulers. It was a place for discussing political and moral issues, such as the treatment of slaves from overseas territories and questions of warfare, including the legitimacy of armed conflicts. The Junta de Burgos from 1512 as well as the Junta de Valladolid served similar purposes – to discuss the indigenous rights for salary, and the more humane treatment of slaves among other things. These discussions and consultative bodies served to inform the rulers but also had the role of holding them accountable to act morally, which had long-term effects on Spanish colonial politics and the treatment of indigenous peoples in the 16th century.[91]
On a political level, the dual role of the ruling powers presents a complex and problematic issue that Vitoria may not fully capture. By acting in their dual role, the ruling powers expose themselves to the risk of morally elevating and justifying their acts of war. Within the framework of jus ad bellum, the ruling powers begin by seeking to redress the injustice committed by them. In jus post bellum, however, they act as judges in their own cause, as they not only consider the injustice committed prior to the onset of war but also determine the morality of their own actions throughout the course of the war. In doing so, they can hardly escape subjectivity, even if they rely on the alleged neutrality of the consultative body, which also consists of scholars from the victorious side.
Concluding Remarks
Vitoria has often been referred to as the ‘father of international law’, or at least as a significant proponent of the laws of war and international relations within the framework of the Just War Theory.[92] He established and systematized important moral foundations relating to martial and international law that are still relevant today. Some have depicted Vitoria’s ideas on international law and disputes as secular. However, I find this portrayal somewhat exaggerated, especially when considering his historical background as a Dominican monk who provides a deep understanding of missionary law in some of his lectures. Most of his law principles can be traced back to Christian origins, for instance, exemplified by the values of modesty, mercy, or fraternity.[93] This profound influence serves as a cornerstone for his legal philosophical framework.
Although this designation as a pre-secular founder of international law has been somewhat relativized in the academic debates of the 20th and 21st centuries, there remains a consensus that some ideas such as the concept of totus orbis and his idea of the equality of peoples within international law were ahead of its time. Furthermore, Vitoria argued for humanitarian interventions based not on religious differences but on violations of international law.[94] Likewise, parts of his law of war are still relevant today, as the three moral principles of war continue to shape the debates within Just War Theory.[95] His jus ad bellum and jus in bello contain fundamental principles that are still used to justify wars, not only in academic discussions but also in political speeches or legal frameworks such as the UN Charter.[96]
The introductory first chapter highlighted the necessity to read Vitorias jus post bellum within the scope of his lecture De potestate civili. Herein, I firstly assumed that Vitoria’s post-war law is based on the concept of totus orbis. In the second chapter, it was emphasized that the totus orbis is responsible for restoring justice. Punitive measures serve primarily to redress the wrongs of the hostile state and thus serve a higher purpose by ensuring the reintegration of wrongdoers back into the totus orbis. In summary, Vitoria’s conception of the global community of peoples, the totus orbis, envisages a punitive power that, in the name of compensatory justice, ensures that members of the totus orbis are punished for their violations of international law and subsequently reintegrated as equal members of the global community of peoples – ensuring negative peace, the absence of military force. The third chapter established the connection between the jus post bellum and the totus orbis. It showed that punitive measures within the post-war period are determined by the executive of the totus orbis, (de facto) the victorious side. The fourth chapter provided the rationale for the rulers acting as commanders of the totus orbis. Since the totus orbis has no decision-making or executive power, political state powers, i.e., princes and kings, are entrusted with both tasks. In their role, they must determine the morality of war. I argued that rulers have a dual role during times of war – as holders of political power and as representatives of the restorative justice power of the totus orbis. It is the ruler’s responsibility to exercise restorative justice on behalf of the global community. In their role, rulers must determine the morality of punitive justice based on the aforementioned moral criteria proportionality, necessity, and discrimination.
Summing up, Francisco de Vitorias jus post bellum that he develops maily in his relectio De iure belli (1539), while focusing mainly on the rights of the winning side, is not to be equated with unrestricted victor’s justice. While Vitoria mainly advocates for collective punitive measures, he also stresses in De iure belli that the winners should not engage in unreasonable acts of domination or exploitation by considering the moral principles of war. I argued that the post-war law must be read with the political foundations of the relectio De potestate civili (1527). All actions after the end of war serve to reintegrate the losing side back into the totus orbis. The highest goal of the post-war period is the restoration of negative peace within the global community of peoples.
[1] Vitoria was described as ‘a towering figure of traditionalism in a time of tumult and discovery’. Alex Bellamy, ‘Francisco De Vitoria (1492‐1546),’ Daniel R. Brunstetter, Cian O’Driscoll (ed.), Just War Thinkers: From Cicero to the 21st Century. (Abingdon, New York: Routledge 2018), 77.
[2] As highlighted by Larry May, ‘Jus Post Bellum, Grotius and Meionexia,’ Carsten Stahn, Jennifer S. Easterday, Jens Iverson, Jus post bellum: Mapping the Normative Foundations. (Oxford: Oxford University Press 2014), 15–25.; Daniel Schwartz, ‘Jus post bellum,’ Harald Ernst Braun, Erik De Bom, and Paolo Astorri, A Companion to the Spanish Scholastics. (Leiden; Boston: Brill 2022), 390 and Švaňa, Lukáš, ‘Jus post bellum and Global Responsibility for Peace,’ Profil 21, 2 (2020), 28; Bass, Gary, ‘Jus post bellum,’ Philosophy & Public Affairs, 32. (2004): 384–412.
[3] Around the 400th anniversary of Vitoria’s death, his figure and philosophy resurfaced within an academic debate of James Brown Scott. In this debate, the Dominican was referred to as the ‘father of international law’. Alex Bellamy, ‘The Responsibilities of Victory: Jus post bellum and the Just War.’ Review of International Studies 34, 4 (2008): 601–625.
[4] Norbert Campagna, Francisco de Vitoria: Leben und Werk: zur Kompetenz der Theologie in politischen und juridischen Fragen. (Wien/Berlin: Lit Verlag 2010), 36.
[5] Fundamental texts of these critiques are Antony Anghie, ‘Francisco de Vitoria and the colonial origins of international law,’ Social & Legal Studies 5, 3 (1996): 321–336.; Martti Koskenniemi, ‘Colonization of the ‘Indies’: The origin of international law,’ Yolanda Gamarra Chopo, (ed.), La idea de la América en el pensamiento jus internacionalista del siglo XXI. (Zaragoza: Institución Fernando el Católico 2010), 43–63; Anthony Pagden, ‘Conquest and the Just War,’ Muthu Sankar (ed.): Empire and Modern Political Thought (Cambridge, Cambridge University Press 2012), 30–60.; Karma Nabulsi, ‘Conceptions of justice in war: from Grotius to modern times,’ Richard Sorabji, David Rodin (ed.), The Ethics of War. (London: Routledge 2020), 44–60. Fitzmaurice provides a clear overview of this discussion. See Andrew Fitzmaurice, ‘The Problem of Eurocentrism in the Thought of Francisco De Vitoria’, José María Beneyto, Justo Corti Varela (ed.): At the Origins of Modernity: Francisco De Vitoria and the Discovery of International Law. (Cham: Springer International Publishing 2017), 81-91.
[6] For instance, this becomes evident when Vitoria asserts that religion does not constitute a legitimate basis for waging war (Francisco de Vitoria, ‘De iure belli. Über das Kriegsrecht,’ Ulrich Horst; Heinz-Gerhard Justenhoven, Joachim Stüben (ed.): Vorlesungen II. Völkerrecht, Politik, Kirche = Relectiones. (Stuttgart/Berlin/Köln: Kohlhammer 1997), 557). Similarly, he does not acknowledge the papal bull Inter Caetera of 1493 as a legitimate justification for the annexation of indigenous territories by the Spaniards (Francisco de Vitoria, ‘De Indis. Über die Indianer.’ Ulrich Horst, Heinz-Gerhard Justenhoven, Joachim Stüben (ed.): Vorlesungen II. Völkerrecht, Politik, Kirche = Relectiones. (Stuttgart/Berlin/Köln: Kohlhammer 1997), 431). Heinz-Gerhard Justenhoven, Francisco de Vitoria zu Krieg und Frieden. (Köln: Bachem 1991) 79; Mariano Delgado, Gott in Lateinamerika: Texte aus fünf Jahrhunderten. Ein Lesebuch zur Geschichte. (Düsseldorf: Patmos-Verlag 1991), 29.
[7] James Muldoon, „Francisco De Vitoria and Humanitarian Intervention“, Journal of Military Ethics 5 (2), 2006, 133.
[8] The relectiones at the University of Salamanca were extraordinary lectures held on holidays and addressed a specific critical audience. They provide a glimpse into the vibrant intellectual discourse among prominent scholars in 16th century Spain. The School of Salamanca, renowned for its scholarly engagement, witnessed a prolonged debate spanning several decades, in the early discussions between intellectuals like Bartolomé de Las Casas, Hernán Cortéz, Ginés de Sepulveda and Francisco de Vitoria. This debate unfolded against the backdrop of colonial conquests and the grave atrocities committed against indigenous populations, prompting discussions regarding the moral and theological justifications for colonial practices. Theologians alike engaged in deliberations concerning moral-philosophical dilemmas, including the validation of an international natural law and the ethical considerations surrounding missionary activities. Anthony Pagden, ‘Conquest and the Just War,’ 32, Anthony Pagden, ‘The School of Salamanca’, George Klosko (ed.): The Oxford Handbook of the History of Political Philosophy. (Oxford: Oxford University Press 2010), 248.
[9] Francisco de Vitoria, ‘De potestate civili. Über die politische Gewalt,’ Ulrich Horst, Heinz-Gerhard Justenhoven, Joachim Stüben (ed.): Vorlesungen I. Völkerrecht, Politik, Kirche. (Stuttgart/Berlin/Köln: Kohlhammer 1995), 114–161.
[10] Vitoria, De iure belli, 542–605.
[11] Vitoria, De Indis, 370–541.
[12] Kirstin Bunge, ‘Das Verhältnis von universaler Rechtsgemeinschaft und partikularen politischen Gemeinwesen. Zum Verständnis des totus orbis bei Francisco de Vitoria,’ Kirstin Bunge, Anselm Spindler, Andreas Wagner (ed.), Die Normativität des Rechts bei Francisco De Vitoria. Politische Philosophie und Rechtstheorie des Mittelalters und der Neuzeit. (Stuttgart: Frommann-holzboog 2011), 224.
[13] Lukáš Švaňa, ‘Jus post bellum and Global Responsibility for Peace,’ 19.
[14] Both argue that his proposed measures of jus post bellum are charged to the losing side in the form of burdens instead of making it a positive duty for the winners. Larry May, After War Ends. (Cambridge: Cambridge University Press 2012). Daniel Schwartz, ‘Jus post bellum,’ 390–410.
[15] Alex Bellamy, ‘The Responsibilities of Victory: Jus post bellum and the Just War,’ 606.
[16] Cécile Fabre, Cosmopolitan Peace. (Oxford: Oxford University Press 2019), 15.
[17] Kirstin Bunge, ‘Das Verhältnis von universaler Rechtsgemeinschaft und partikularen politischen Gemeinwesen. Zum Verständnis des totus orbis bei Francisco de Vitoria,’ 202.
[18] ‘Any power […] by which the temporal polity is governed is not only just and lawful, but has God for its author in such a way that it cannot be abrogated or abolished even with the consent of the whole world.’ Vitoria, De potestate civili, 119. This and the following translations are translated from German to English by me, with the help of DeepL. More thoughts on the German translation of Vitorias original texts are found in: Joachim Stüben, ‘Wie soll man Vitoria übersetzen? Einige Gedanken zu Sprache und Inhalt der Relektion De potestate civili und des Kommentars zu den Quästionen De lege des hl. Thomas,’ Kirstin Bunge, Anselm Spindler, Andreas Wagner, (ed.): Die Normativität Des Rechts Bei Francisco De Vitoria. Politische Philosophie und Rechtstheorie des Mittelalters und der Neuzeit. (Stuttgart: Frommann-holzboog Verlag 2011), 3–40.
[19] Vitoria De potestate civili, 119.
[20] Ulrich Horst , ‘Leben und Werke Francisco de Vitorias,’ Ulrich Horst; Heinz-Gerhard Justenhoven, Joachim Stüben (ed.): Vorlesungen I. Völkerrecht, Politik, Kirche = Relectiones. (Stuttgart/Berlin/Köln: Kohlhammer 1995), 90.
[21] Vitoria, De Indis, 461; Kirstin Bunge, ‘Das Verhältnis von universaler Rechtsgemeinschaft und partikularen politischen Gemeinwesen. Zum Verständnis des totus orbis bei Francisco de Vitoria,’ 202.
[22] He attributes to all human beings an innate ability to reason, which enables them to understand natural law. Vitoria, De potestate civili, 125.
[23] Kirstin Bunge, ‘Francisco de Vitoria: A Redesign of Global Order on the Threshold of the Middle Ages to Modern Times,’ Stefan Kadelbach, Thomas Kleinlein, David Roth-Isigkeit (ed.), System, order, and international law. The early history of international legal thought from Machiavelli to Hegel. (Oxford: Oxford University Press 2017), 49.
[24] Michael Allen Fox, Understanding Peace. A comprehensive introduction. (New York/London: Routledge 2014), 178–179.
[25] ‘Secondly, at the beginning of the world, when everything was common to all, everyone was allowed to move and travel to any territory he wished. But this does not seem to have been abolished by the division of goods.’ Vitoria, De Indis, 461.
[26] Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c.1500-c.1800. (New Haven: Yale University Press 1995), 80. On the jus peregrinandi building on the totus orbis: Kirstin Bunge, ‘Francisco de Vitoria: A Redesign of Global Order on the Threshold of the Middle Ages to Modern Times,’ 38–55.; Kirstin Bunge, ‘Das Verhältnis von universaler Rechtsgemeinschaft und partikularen politischen Gemeinwesen. Zum Verständnis des totus orbis bei Francisco de Vitoria,’ 201–227.; Johann Schelkshorn, Entgrenzungen. Ein europäischer Beitrag zum Diskurs über die Moderne. (Weilerswist: Velbrück 2009), 283.
[27] Heinz-Gerhard Justenhoven, Francisco de Vitoria zu Krieg und Frieden, 177.
[28] In short, all the peoples of the totus orbis. Joseph Höffner, Kolonialismus und Evangelium. (Trier: Paulinus 1969), 320–321.
[29] ‘The highest goal of every war is peace, which is why every act of war should be judged by it. All wars serve the goal of peace.’ Vitoria, De iure belli, 547.
[30] ‘Sixthly, the sentence is proved because the aim of war is peace and the security of the commonwealth.’ Vitoria, De iure belli, 547.
[31] ‘But there cannot be security within the community without instilling fear of war in the enemies and discouraging them from committing injustice. For there would be a totally unjust starting position for war if a community, when unjustly attacked by enemies, were only allowed to repel these enemies and not to pursue them further.’ Vitoria, De iure belli, 556–548.
[32] Vitoria, De Indis, 461–462.
[33] Höffner, Joseph, Kolonialismus und Evangelium, 411; Johann Schelkshorn, Entgrenzungen. Ein europäischer Beitrag zum Diskurs über die Moderne, 286.
[34] At this juncture, it must be added that not all injustices warrant punishment. Vitoria, employing the principle of proportionality, argues that it is not always necessary to respond to injustices with military means. Instead, he advocates for the practice of Christian values such as mercy and forgiveness. Vitoria, De iure belli, 602–603. Further elaboration on this matter can be found towards the end of this article.
[35] Heinz-Gerhard Justenhoven, Francisco de Vitoria zu Krieg und Frieden, 72.
[36] Integration is understood here in a broader sense, in the sense of the re-implementation of a negative peace.
[37] Vitoria demonstrates a pragmatism that acknowledges that we can’t always assume that the defending side will act justly in war. As a result, it’s likely that soldiers will face legal consequences after the war has ended.
[38] Vitoria, De Indis, 421.
[39] Heinz-Gerhard Justenhoven, Francisco de Vitoria zu Krieg und Frieden, 170.
[40] Vitoria, De iure belli, 547.
[41] Heinz-Gerhard Justenhoven, Francisco de Vitoria zu Krieg und Frieden, 73.
[42] Heinz-Gerhard Justenhoven, Francisco de Vitoria zu Krieg und Frieden, 71.
[43] Vitoria, De Indis, 509.
[44] ‘And in general, whatever the king is obliged to do for his fatherland, he is equally obliged to do for the barbarians.’ Vitoria, De Indis, 509.
[45] This differentiation goes back to the different roles of soldiers and rulers. While rulers are responsible for judging the morality of the war and making decisions on the further course of the war, soldiers fight in ‘good faith’ for their people and are bound by the decisions of their political leaders (Vitoria, De iure belli, 605). However, they themselves are also responsible for assessing the morality of the war (Vitoria, De iure belli, 553).
[46] Negative peace in the sense of the absence of armed military violence can also be accompanied by other types of violence, for example structural violence as emphasized by Johan Galtung in ‘Violence, Peace, and Peace Research,’ Journal of Peace Research, 6, 3 (1969), 167–191.
[47] Vitoria, De iure belli, 605.
[48] They can be punished even if their wrongdoing is based on their ruler’s responsibility. Vitoria, De potestate civili, 139.
[49] The individual actions of the combatant fighting on the wrong side are decisive for his criminal liability, while the actions of his people determine the extent of the liability attributed to them. Daniel Schwartz, ‘Jus post bellum‘, 392.
[50] Helen Frowe, The Ethics of War and Peace. An Introduction. (New York: Routledge 2015), 242.
[51] Vitoria, De iure belli, 591.
[52] Vitoria, De iure belli, 597–599.
[53] Helen Frowe, The Ethics of War and Peace. An Introduction, 240; Larry May, After War Ends, 45.
[54] Brian Orend, The Morality of War. (Peterborough: Broadview Press 2006), 20; Larry May, After War Ends, 46.
[55] Daniel Schwartz, The Political Morality of the Late Scholastics: Civil Life, War and Conscience. Cambridge University Press 2019), 192.
[56] Daniel Schwartz, ‘Jus post bellum’, 390.
[57] Larry May, After War Ends, 46.
[58] Larry May, ‘Jus Post Bellum, Grotius and Meionexia’, 22; Alex Bellamy, ‘The Responsibilities of Victory: Jus post bellum and the Just War.’, 602.; Larry May, After War Ends, 47.
[59] Helen Frowe, The Ethics of War and Peace. An Introduction, 240; Brian Orend, The Morality of War, 612.
[60] Brian Orend, ‘Jus post bellum: The Perspective of a Just-War Theorist,’ Leiden Journal of International Law, 20 (2007), 573.
[61] Larry May, ‘Jus Post Bellum, Grotius and Meionexia,’ 22; Alex Bellamy, ‘The Responsibilities of Victory: Jus post bellum and the Just War.’, 602.
[62] Moreover, Vitoria‘s post-war law is associated with a minimalist position. I do not aim to criticize this categorization, however, it is worth noting at this point that Vitoria’s post-war law encompasses additional elements that, while not rendering it a maximalist concept, are also grounded in principles of restoration and reparation, as emphasized by Larry May, After War Ends, 47 and Cécile Fabre, Cosmopolitan Peace, 15.
[63] ‘Suppose that rulers have the authority to wage war. Their very first duty is not to look for opportunities and reasons for war, rather they must strive to keep peace with all, if possible.’ Vitoria, De iure belli, 602–603.
[64] ‘Of course, with due regard for humanity and justice; the punishment must be measured according to the degree of guilt.’ Vitoria, De iure belli, 598–599.
[65] The principle does not only apply to killing after was but to punishment measures more generally, also during warfare (in bello) – it thus restricts killing for punishment. Daniel Schwartz, ‘Jus post bellum,‘ 395.
[66] Vitoria, De iure belli, 599.
[67] Vitoria, De iure belli, 599.
[68] James Muldoon, ‘Francisco De Vitoria and Humanitarian Intervention,’ 137.
[69] ‘And if the necessity and nature of the war require that the greater part of the enemy’s country should be occupied, or that several cities should be taken, they must, when an agreement has been reached and the war ended, be returned, retaining as much as may be lawful to retain for the payment of damages and expenses, and for the punishment of wrongs.’ Vitoria, De iure belli, 599.
[70] Vitoria, De iure belli, 605.
[71] ‘Merely to punish injustice, it is not always permissible to kill all the guilty. The sentence is proved because it would also not be permissible to kill all offenders among the citizens, even if the whole citizenry were guilty of an offence.’ Vitoria De iure belli, 590–583.
[72] Furthermore, only crimes that have been committed may be punished, not those that merely have a high probability of being committed. Vitoria stresses that it is not permissible to kill someone for their future sin (Vitoria, De Indis. 584–585). This principle makes pre-emptive wars impossible, as sometimes advocated by contemporary philosophers. Brian Orend, The Morality of War, 17.
[73] Vitora, De iure belli, 583 (jus in bello); Vitoria, De iure belli, 591 (jus post bellum).
[74] Therefore, it is not always permitted to kill all the guilty, but the sentence should be proportional to the crime. Following Vitoria, it may not always be permitted to kill all the guilty just in the sake of punishing injustice. Vitoria, De iure belli, 591.
[75] Vitoria, De iure belli, 590.
[76] Cécile Fabre, Cosmopolitan Peace, 14.
[77] Vitoria, De iure belli, 565.
[78] Vitoria also employs this argument to rationalize the expansion of the Roman Empire. He draws a parallel: The Romans expanded their dominion by means of martial law, occupying cities that had previously wronged the Roman Empire. Vitoria, De iure belli, 599.
[79] Vitoria, De iure belli, 602–603.
[80] Vitoria, De iure belli, 599.
[81] Vitoria, De iure belli, 603.
[82] ‘After achieving victory and after the end of the war, one must use one’s own victory prudently and with Christian moderation. The victor must see himself as a judge who sits between two communities: between the one that was wronged and the other that committed the wrong. Consequently, he does not pass sentence as a prosecutor, but as a judge he provides satisfaction to the wronged community.’ Vitoria, De iure belli, 602–603.
[83] Brian Orend, The Morality of War. (Peterborough: Broadview Press 2006), 17.
[84] As emphasized in an earlier chapter about the equality of the totus orbis members. Vitoria, De Indis, 509.
[85] Vitoria, De iure belli, 573.
[86] Brian Orend, The Morality of War, 16.
[87] Francisco de Vitoria, ‘De bello,’ Heinz-Gerhard Justenhoven, Joachim Stüben (ed.): Kann Krieg erlaubt sein? Eine Quellensammlung zur politischen Ethik der Spanischen Spätscholastik. (Stuttgart: Kohlhammer 2006), 80.
[88] Vitoria, De Indis, 509.
[89] Vitoria, De iure belli, 547; Brian Orend, The Morality of War, 17.
[90] Vitoria probably envisions a consultative body composed of both theologians and jurists. Historians like Pagden emphasize that in the historical reality, these kinds of discussions were mostly held by theologians. Anthony Pagden, Conquest and the Just War, 32.
[91] Anthony Pagden, Conquest and the Just War, 33.
[92] Ulrich Horst, ‘Leben und Werke Francisco de Vitorias’, 73-74.
[93] Larry May, After War Ends, 46.
[94] James Muldoon, ‘Francisco De Vitoria and Humanitarian Intervention,’ 130; Johann Schelkshorn, Entgrenzungen. Ein europäischer Beitrag zum Diskurs über die Moderne, 286.
[95] Michael Walzer, in his most influencial work Just and Unjust Wars has not specifically mentioned the jus post bellum in his work but pointed the connection between the ad bellum and post bellum. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books 1992), 123.
[96] Alex Bellamy, World Peace (And How We Can Achieve It). Oxford/NY: Oxford University Press 2019, 209.