Economic Theology

Grotiana 30 (2009) 65ndash87

copy Koninklijke Brill NV Leiden 2009 DOI 101163016738309X12537002674286

brillnlgrotG R O T I A N A

1 I would like to thank everyone who has contributed to this paper Katherine Hunt Joe Holden Gabriel Montua and Anja Wiesinger concerning style and language Gustaaf Van Nifterik Christoph Stumpf Peter Borschberg and Martine Julia Van Ittersum as well as an anonymous referee of Grotiana for helpful remarks concerning the content

On Grotiusrsquos Mare Liberum and Vitoriarsquos De Indis Following Agamben and Schmitt 1

Johannes Th umfart Institute for Philosophy Freie Universitaumlt Berlin

Email jthumfartfu-berlinde

Abstract Th e idea of free trade in Grotiusrsquos Mare liberum and his legal opinion De iure praedae has a strong theological basis Grotius called the right to travel and trade freely a ius sanctissimum a lsquosacro-sanct lawrsquo He also perceived the Freedom of the Seas as being a direct result of the will of God Th is theological background was strategically necessary because Grotius developed the Mare liberum and the De iure praedae to argue against Spanish-Portuguese claims to a trade monopoly that also had theological underpinnings But the theological aspect of Grotiusrsquos theory was also emphasized by the references he made to the Dominican friar Francisco de Vitoriarsquos ius commu-nicationis Th is precursor to Grotiusrsquos Freedom of the Seas which Vitoria had developed in his De indis is connected to the legal justifi cation of Christian mission and so has a clear theological connotation In Grotiusrsquos work Vitoriarsquos concept of a universal right to Christian mission super-vised by the pope was transformed into a theologically supported right to free trade With this transformation of the ius communicationis into the principle of the Mare liberum Grotius devel-ops a theological basis not for politics but for economics One can speak therefore following Giorgio Agamben of an lsquoeconomic theologyrsquo in regard to Grotius a term that is in turn derived from Carl Schmittrsquos notion of lsquopolitical theologyrsquo

Keywords Hugo Grotius Carl Schmitt Giorgio Agamben Francisco de Vitoria Economic Th eology Mare Liberum

Introduction to subject matter and method

As the recent fi nancial crisis has once again made all too clear the concept of free trade is one of the most important ndash and most problematic ndash of our time Th e necessity for greater regulation of trade especially in the fi nancial sector

66 J Th umfart Grotiana 30 (2009) 65ndash87

has lately been emphasized by various political leaders including German Chancellor Merkel French President Sarkozy and US American President Obama Th is is a cause for concern and not just for the most outspoken of laissez-faire liberalists Often presented as one of the basic pillars of modern liberal society the liberty to trade freely governed by onersquos own responsibility seems an unquestionable undeniable and absolute prerequisite to the devel-opment of a global civilization

But rather than knowing exactly why free trade is so essential one seems to associate it with a number of positive mostly long-term eff ects that are any-thing but easy to grasp According to Viner it has been common in intellectual history to attribute a lsquoprovidentialrsquo quality to free trade Due to divine provi-dence the invisible hand of the market was expected not only to establish a balance of supply and demand but also to turn private vices into public benefi ts 2 Inasmuch as it enables the peoples of the world to exchange goods and services with each other on a free basis ndash that is to interact globally in peaceful ways ndash the process of free trade is supposed to lead to stabilization of international relations as Kant writes 3 Furthermore the concept of free trade is eschatologi-cally and teleologically charged in that some believe an internationalization of economic struggle will naturally lead to an evolution of the quality of goods and methods of production and to a more just distribution of wealth

All of these are hopes for the future that cannot immediately be verifi ed One rather simply has faith in them as if they were religious truths Th e path of free trade seems inexorably to lead to the vague promise of a better world a world that is more international more effi cient and more just ndash a veritable lsquonew heaven on earthrsquo 4 and even a lsquo Sprengung des Himmels durch gesteigerte Menschhaftigkeit rsquo ndash brought about by the believers of the lsquocapitalist religionrsquo 5 if one follows Nelsonrsquos or Benjaminrsquos polemics

Th is essay tries to elucidate the religious quality of free trade at its very ori-gin It addresses the theological connotation of the idea of free trade in

2 Jacob Viner Th e Role of Providence in Social Order An Essay in Intellectual History (Philadelphia American Philosophical Society 1972) pp 55-85

3 Immanuel Kant Zum ewigen Frieden Akademie Ausgabe VIII p 368 In this passage Kant refers to the so-called doux-commerce- thesis that was prevalent during the seventeenth and eigh-teenth centuries See Laurence Dickey lsquoDoux-commerce and humanitarian values free trade sociability and universal benevolence in eighteenth-century thinkingrsquo Grotiana 2223 (200102) pp 271-318

4 Robert H Nelson Reaching for Heaven on Earth Th e Th eological Meaning of Economics (Maryland Rowman Littlefi eld 1991) p xxii

5 Walter Benjamin Kapitalismus als Religion ed by Dirk Baecker (Berlin Kulturverlag Kadmos 2004) p 16

J Th umfart Grotiana 30 (2009) 65ndash87 67

Grotiusrsquos Mare liberum one of the fi rst early-modern manifestos to advocate free trade It will be demonstrated that the idea of free trade evolved as an lsquoeconomic theologyrsquo in the seventeenth century and was connected to the principle of free mission in the canon law of the Middle Ages Th is will be made clear by illuminating the theological background of Grotiusrsquos Mare liberum particularly by highlighting the impact of the Dominican friar Francisco de Vitoriarsquos Relectio de indis on Grotiusrsquos ideas

Central to this interpretation is the application of Giorgio Agambenrsquos term lsquoeconomic theologyrsquo to Grotius a term that was developed as an enhance-ment of Schmittrsquos thesis of lsquopolitical theologyrsquo 6 Schmittrsquos thesis of political theology ndash that certain terms of political theory can be interpreted as lsquosecular-ized theological conceptsrsquo (lsquo saumlkularisierte theologische Begriff e rsquo) 7 ndash can also be applied to economy An economic theology in this sense is a secular or rather secularized concept of economy that has its roots in a theological idea To Schmitt the legal structure of state sovereignty appears to be derived from the theological concept of an omnipotent God Agamben likewise shows the theological background of early-modern economic theorists such as Linnaeus Quesnay and Smith 8 According to Agamben the New Testamentarian and patristic notion of a providential oikonomia had a considerable infl uence on the theory of economic laissez-faire 9 Following both Schmitt and Agamben Grotiusrsquos conception of the legal status of economy can be perceived as being theologically derived

Grotius and Vitoria historical placement and economic-theological form

In March 1609 Hugo Grotius (1583ndash1645) who is today recognized as one of the fathers of international law published a revised chapter of his legal

6 Giorgio Agamben Il regno e la gloria Per una genealogia teologica dellrsquoeconomia e del governo Homo sacer 2 2 (Vicenza Neri Pozza 2007) p 14 Johannes Th umfart English review of Agamben Il regno e la gloria in Alea revista internacional de fenomenologiacutea y hermeneacuteutica 6 (2008) pp 187-191Th e term lsquoeconomic theologyrsquo can also be found in the discussion of theo-logical implications of the lsquoinvisible handrsquo at Adam Smith See Duncan K Foley Adamrsquos Fallacy A guide to Economic Th eology (Harvard Harvard University Press 2006) Nelson Reaching for Heaven on Earth pp 95-106

7 Carl Schmitt Politische Th eologie Vier Kapitel zur Lehre von der Souveraumlnitaumlt (Berlin Duncker amp Humblot 2004) p 43

8 Agamben Il regno e la gloria pp 306-310 9 Ibid p 35 See also Gerhard Richter Oikonomia Der Gebrauch des Wortes Oikonomia im

Neuen Testament bei den Kirchenvaumltern und in der theologischen Literatur bis ins 20 Jahrhundert (Berlin De Gruyter 2005)

68 J Th umfart Grotiana 30 (2009) 65ndash87

10 Monica Brito Veira lsquoMare Liberum vs Mare Clausum Grotiusrsquo Freitasrsquo and Seldenrsquos debate on dominion over the seasrsquo Journal of the History of Ideas 64 3 (2003) 361-377 (p 361)

11 Richard F Teichengraeber Free Trade and Moral Philosophy Rethinking the Sources of Adam Smithrsquos Wealth of the Nations (Durham Duke University Press 1986) pp 20-26 pp 56-60 65 Teichengraeber on Hutchesonrsquos statements concerning private property lsquoBoth the language and the substance of hellip [his] statements identify Hutcheson as a follower of Grotiusrsquo Hutcheson mentions Grotius in two prefaces as an important infl uence See Francis Hutcheson Logic Metaphysics and the Natural Sociability of Mankind ed by James Moore and Michael Silverthorne transl by Michael Silverthorne (Indianapolis Liberty Fund 2006) p 8 Id Philosophiae Moralis Institutio Compendiara with A Short Introduction to Moral Philosophy ed by Luigi Turco Latin with English translation on facing pages (Indianapolis Liberty Fund 2007) pp 3 5 in the latter passage Hutcheson refers explicitly to Grotiusrsquos lsquolaw of nature and nationsrsquo See also p 147 a passage on property in which Hutcheson probably indirectly draws on Grotius by way of Pufendorf According to Peter Dooley Hutcheson also paraphrases Grotius in his lsquoObservations on ldquoTh e Fable of the Beesrdquo rsquo See Peter Dooley Th e Labour Th eory of Value (London Routledge 2005) p 11

12 Peter Haggenmacher lsquoLa Place de Francisco de Vitoria parmi les fondateurs du droit inter-nationalrsquo in Actualiteacute de la Penseacutee juridique de Francisco de Vitoria Travaux de la journeacutee drsquoeacutetudes organiseacutee agrave Louvain-la-Neuve par le Centre Charles de Visscher pour le Droit International ed by Antonio Truyol y Serra et al (Bruxelles Bruylant 1988) 27-80 (p 31)

13 Although there is a debate about whether Vitoriarsquos date of birth was 1492 or 1483 the lat-ter seems more plausible See Mariacutea del Carmen Rovira Gaspar Francisco de Vitoria Espantildea y Ameacuterica el poder y el hombre (Meacutexico Miguel Angel Porrua 2004) p 21n3

14 Ernest Nys Les origines du droit international (Brussels Castaigne 1894) p 11 James Brown Scott Th e Spanish Origins of International Law Francisco de Vitoria and his Law of Nations

opinion on the lsquolaw of prize and bootyrsquo ( De iure praedae ) Th e anonymous publication the full title of which is Mare liberum sive de iure quod Batavis competit ad Indicana commercia dissertatio was the fi rst modern attempt to establish the legal status of the high seas 10 It was in this text that Grotius sub-stantiated the normative ideals of global free trade including those of equality reciprocity and private responsibility In this regard Grotiusrsquos thinking consid-erably infl uenced Adam Smith (1723ndash1790) by way of Smithrsquos mentor Francis Hutcheson (1694ndash1746) who read and quoted Grotius 11

However Grotiusrsquos assertion regarding the necessity of free trade was not without precedent In his De iure praedae Grotius relied heavily on the argu-ments for free trade put forth by Francisco de Vitoria nearly one century ear-lier 12 In his Relectio de indis of 1539 Vitoria off ered one of the fi rst arguments on international trade law and the implications of the Christian mission for Europersquos relationship to overseas territories It would prove instrumental for Grotius who in his De iure praedae also dealt with overseas trade

Both of these men arrived at similar conclusions Although Grotius and Vitoria were probably born exactly one hundred years apart (1483 and 1583) 13 both are considered to be the father of international public law 14 However

J Th umfart Grotiana 30 (2009) 65ndash87 69

(New Jersey Th e Lawbook Exchange 2000 originally published Oxford Clarendon Press 1934)

15 In regard to Francisco de Vitoria this is an obvious statement Regarding the theological thought of Grotius see Henk J M Nellen and Edwin Rabbie (eds) Hugo Grotius Th eologian Essays in Honour of GHM Posthumus Meyjes Studies in the History of Christian Th ought 55 (Leiden Brill 1994) Christoph A Stumpf Th e Grotian Th eology of International Law Hugo Grotius and the Moral Foundations of International Relations (Berlin De Gruyter 2006)

16 Viner Th e role of Providence in social order p 37 Viner uses this term in respect to Libanius and early Christian theologians In the section of this essay subtitled lsquoTh e theology of free tradersquo it will be shown that Grotiusrsquos main theological argument in favour of free trade also stems from Libanius It is therefore possible to apply Vinerrsquos term to Grotius

17 Schmitt Politische Th eologie pp 43 50 18 Ibid p 43 Quote originally in German See supra n 7

the connection between Grotius and Vitoria is limited neither to their respec-tive historical impacts nor to the considerable degree to which Grotius quoted Vitoria but extends further to their common intellectual foundation

Grotius like Vitoria developed his arguments within the framework of the-ology 15 Accordingly the refl ections on the law and politics of free trade that Vitoria and Grotius present within the scheme of their conceptions of inter-national law can be interpreted as an economic theology

Th e form of economic theology underlying the arguments of Vitoria and Grotius has two important characteristics Firstly both develop the normative ideal of global free trade on the basis of the history of salvation In this respect one can speak of a tradition of the lsquoprovidential function of commercersquo within which Grotius and Vitoria operated 16 Th is position axiomatically assumes that there is a historico-teleological tendency inherent in global free trade such that the purpose of free trade is to unite the world in peace

Secondly the requisite openness of global exchange is for both Grotius and Vitoria an economic theology that can be understood within the framework of Schmittrsquos notion of political theology In the lsquosystematic structurersquo (lsquo system-atischen Struktur rsquo) of both global political conceptions the concept of free trade serves as the highest lsquolastrsquo (lsquo letzte rsquo) principle 17 to which political power has to subordinate itself under the threat of a lsquojust warrsquo ( bellum iustum ) for the cause of the maintenance of global free trade and open borders Th is con-cept can be called an economic theology in the Schmittian sense particularly with regard to Schmittrsquos notion of political theology As previously noted Schmitt defi ned political theology as lsquosecularized theological conceptsrsquo in the political realm 18 In the case of Vitoria and Grotius the great importance of free trade is the result of theological viewpoints that underwent a gradual secularization

70 J Th umfart Grotiana 30 (2009) 65ndash87

19 Max Weber lsquoDie protestantische Ethik und der Geist des Kapitalismusrsquo in Id Gesammelte Aufsaumltze zur Religionssoziologie I (Tuumlbingen Mohr Siebeck 1988) 17-206 (pp 84-87)

20 Lleana Porras lsquoConstructing International Law in the East Indian Seas Property in the East Indian Seas Property Sovereignty Commerce and War in Hugo Grotiusrsquo De iure praedae ndash Th e Law of Prize and Booty or ldquoon How to distinguish Merchants from Piratesrdquorsquo Brooklyn Journal of international law 31 3 (2006) 741-804 (pp 756 770) Carl Schmitt Der Nomos der Erde im Voumllkerrecht des Jus Publicum Europaeum (Berlin Duncker amp Humblot 1997) p 151

21 Eric Wilson lsquoErasing the Corporate Sovereign Inter-Textuality and an Alternative Explanation for the Publication of Hugo Grotiusrsquo Mare liberum (1609)rsquo Itinerario 30 2 (2006) 78-103 (p 78) With these fi tting words Wilson recapitulates the standard opinion on the subject which he then proceeds to put into perspective

Th e components of an economic theology understood in this way ndash as his-tory of salvation and universal politics ndash can neither be reduced to a renais-sance of antique models of cosmopolitanism nor be conceived of as a result of Weberrsquos famous notion of the Protestant economic theology of lsquoinner-worldly ascetismrsquo (lsquo innerweltliche Askese rsquo) 19 Grotiusrsquos and Vitoriarsquos economic theology is a genuine product of the Catholic-Christian tradition which the Protestant humanist Grotius inherited by way of among other sources the writings of Vitoria

In this context it should be noted that the reprise of Catholic-Iberian argu-ments was of practical use for Grotius 20 He employed these arguments as lsquoirrefutable propositionsrsquo 21 in the debate on the legitimacy of the VOCrsquos policy to secure its trading expeditions by military means which also included pre-emptive strikes Having been hired by the VOC directors Grotius promoted Dutch interests against the claims of the Portuguese and Spanish to trade monopolies in the East and West Indies Because the Spanish had themselves previously used the notion of a right to travel and trade freely in order to legitimize the conquista Grotius used the same argument to justify Dutch military aggression against the Portuguese in terms of a Dutch defence of their right to travel and trade freely against the Portuguese claims to a trade monopoly

Th e Mare liberum An argument on the law of prize

Less well-known than Grotiusrsquos discussion of Mare liberum in the twelfth chapter of the De iure praedae commentarius is the complete legal opinion itself Th is is because the full text was not published until 1868 Th is work De iure praedae commentarius was commissioned by the Verenigde Oost-Indische

J Th umfart Grotiana 30 (2009) 65ndash87 71

22 Th e debate about the historical context of the De iure pradae has led to a variety of diff erent interprations of the purpose of its publication See Martine Julia Van Ittersum Profi t and Principle Hugo Grotius Natural Rights Th eories and the Rise of Dutch Power in the East Indies 1595 ndash 1615 (Leiden Brill 2006) pp 108-188

23 Hugo Grotius De iure praedae I ed by H G Hamaker (Den Haag Nijhof 1868) p 5 24 Peter Borschberg lsquoTh e Seizure of the Sta Catarina Revisited Th e Portuguese Empire in

Asia VOC Politics and the Origins of Dutch-Johor Alliance (1602 ndash 1616)rsquo Journal of Southeast Asian Studies 33 1 (2002) 31-62 (p 35)

25 Porras lsquoConstructing International Law in the East Indian Seasrsquo p 755 Grotius De iure praedae VI pp 59-62 Hugo Grotius Commentary on the Law of Prize and Booty XII transl by Gwladys L Williams and ed by Martine Julia van Ittersum (Indianapolis Liberty Fund 2006) pp 127-142 [hereafter Commentary ]

26 Ute Schneider lsquoTordesillas 1494 ndash Der Beginn einer globalen Weltsichtrsquo Saeculum 54 I (2003) 39-62 (p 48) Juan Goti Ordentildeana Del Tratado de Tordesillas a la Doctrina de los Derechos

Compagnie (VOC) on the occasion of a trial concerning the law of prize 22 Th e trial dealt with the capture of the Portuguese merchant ship Santa Catarina by the Dutch admiral Van Heemskerck which took place in the early morning hours of February 25 th 1603 in the Strait of Malacca located between the Malayan peninsula and the island of Sumatra

Although the ndash not yet independent ndash Dutch provinces were at war with Spain and Portugal at the time both parties of confl ict were private ships that were not formally engaged in acts of war Th e complex question (lsquo multiplex disputatio rsquo 23 ) was whether the private trading company VOC for which Van Heemskerck had sailed was the rightful owner of the rich booty taken from the hold of the Santa Catarina a vast sum approaching three and a half mil-lion Dutch guilders 24 Th is could be the case only if Heemskerckrsquos attack that led to the prize could be considered as having been in the scope of the para-doxical concept of a bellum iustum privatum a legal act of private war 25

As was expected of him in his legal capacity the young lawyer Hugo Grotius defended the overseas interests of his nation and his employer VOC He char-acterized the capture of the Portuguese ship and the keeping of the prize as lawful

Grotiusrsquos fi rst line of argument denied the legitimacy of the Spanish and Portuguese trade monopoly on the worldrsquos seas an assertion he had developed mostly from an historical perspective Since the discovery of the Canary Islands in the fourteenth century and the discovery of the Americas from 1492 on the Spanish and the Portuguese had claimed trade and shipping monopolies as outlined in the treaties of Alcaacuteccedilovas (1479) Tordesillas (1494) and Saragossa (1526)

Despite the mostly secular character of the treaties of Tordesillas and Alcaacuteccedilovas 26 the Spanish and Portuguese claims can be interpreted as drawing

72 J Th umfart Grotiana 30 (2009) 65ndash87

from the tradition of papal grants concerning overseas territories In his bull Inter caetera of 1493 Pope Alexander VI divided the worldrsquos oceans donating half to the Spanish and half to the Portuguese 27 Such political-theological intertwining of papal power and Portuguese-Spanish claims can be traced back to among other sources those treaties which the Iberian kings and the papacy had concluded during the process of the reconquista of the Iberian Peninsula 28 Within the context of the reconquista and the conduct of a lsquojust warrsquo against the Muslims the validity of the papal grants had been based upon the concept of a theological and political supremacy of the pope over non-Christian terri-tories as had been put forward by Hostiensis during the thirteenth century 29 In the fourteenth century this concept had been employed to enable the pope not only to legitimize Portuguese crusades in North-West Africa but also to donate African land and trade monopolies to the Portuguese 30

In the case of non-Christian peoples such as the Canarian Guanches and the Amerindian tribes who had not engaged in a war against Christianity thus far the pope apportioned their lands as compensation for the duty of Christian mission in these territories which the secular kings were obliged to orga-nize and fi nance 31 As the fi rst Christian European countries to interact with

Fundamentales en Francisco de Vitoria (Valladolid Secretariado de Publicaciones e Intercambio Cientiacutefi co Universidad de Valladolid 1999) pp 20 149-165

27 Th e bull Inter caetera 4th of May 1493 in European Treaties Bearing on the History of the US and its Dependencies to 1648 Tome 1 ed by Frances Davenport (Washington DC Carnegie Institution of Washington publication 1917) pp 72-75

28 Carmen Bernand and Serge Gruzinski Histoire du nouveau monde De la deacutecouverte agrave la conquecircte (Paris Fayard 1991) pp 65-66 Odilo Engels Reconquista und Landesherrschaft Studien zur Rechts- und Verfassungsgeschichte Spaniens im Mittelalter (Paderborn Schoumlningh 1989) p 293 David Abulafi a Th e Discovery of Mankind Atlantic Encounters in the Age of Columbus (New Haven Yale University Press 2008) p 10

29 Hostiensis lsquoReduction of the Teachings of Innocent IV on the Legal Status of Infi delsrsquo in Fontes Historiae Iuris Gentium Quellen zur Geschichte des Voumllkerrechts ed by Wilhelm G Grewe (Berlin De Gruyter 1995) p 351 See also Id Summa Aurea De Treuga et Pace ed by F Martini Abbatis (Venice 1574) column 359 James A Brundage lsquoHoly War and the Medieval Lawyersrsquo In Id Th e Crusades Holy War and Canon Law (Aldershot Variorum 1991) pp 99-140 (p 114) Eberhard Straub Das Bellum Iustum des Hernaacuten Corteacutes in Mexico (Koumlln und Wien Boumlhlau 1976) p 37 Abulafi a Th e Discovery of Mankind p 72 Joumlrg Fisch Die europaumlische Expansion und das Voumllkerrecht (Stuttgart Franz Steiner 1984) pp 189-190

30 Eberhard Schmitt and Charles Verlinden (Ed) Die mittelalterlichen Urspruumlnge der europaumlis-chen Expansion - Dokumente zur Geschichte der europaumlischen Expansion Tome 1 (Muumlnchen Beck 1986) p 218 Goti Ordentildeana Del Tratado de Tordesillas a la Doctrina de los Derechos fundamen-tales en Francisco de Vitoria pp 61 32-41 Horst Gruumlnder Welteroberung und Christentum Ein Handbuch zur Geschichte der Neuzeit (Guumltersloh Guumltersloher Verlagshaus 1992) p 87

31 Abulafi a Th e Discovery of Mankind pp 82 89 72 Fisch Die europaumlische Expansion und das Voumllkerrecht p 48 Martin Van Gelderen lsquoGrotius and Vitoria on Natural Law and

J Th umfart Grotiana 30 (2009) 65ndash87 73

overseas peoples in this way the Spanish and the Portuguese benefi ted most from such donations Th e indigenous rulers of these territories the non-Christian princes were believed to be unfi t to be rightful owners ( veri domini ) because of their lack of faith and morals On the occasion of the donation of the Canary Islands Pope Clement VI wrote lsquo Forte enim infi deles ratione infi -delitatis merentur perdere omnem dominium rsquo 32 lsquo Nullum dominium debet esse sine virtute In infi delibus autem nulla est virtus sed ymago virtutis solum Ergo nec verum dominium cum sine fi de impossibile sit placere deo rsquo 33 lsquoBy reason of their infi delity non-Christians lose their right to dominium rsquo writes Clement Dominium presupposed morals which ndash in the eyes of Pope Clement ndash infi -dels could not possibly have

According to Grotiusrsquos evaluation the Portuguese monopoly at the begin-ning of the seventeenth century was still based on the supra-territorial power of the papacy and concomitant political-theological ideas In the case of the East Indies in particular both lines of justifi cation ndash the lsquojust warrsquo against Muslims and the duty to convert the non-Christians ndash could be used because the Asian people were as Grotius wrote lsquo partim idolatrae partim Mahumetani rsquo 34 ndash lsquoin part idolaters in part Mohammedansrsquo 35

However Grotius quotes those historical justifi cations only in order to refute them According to Grotius the lsquojust warrsquo against infi dels is not a legiti-mate reason for conquest lsquoIt is heretical to hold that infi dels are not the owners of the property that belongs to them And the act of snatching from them on the sole ground of their lack of faith hellip is an act of thievery and rapine no less than it would be if perpetrated against Christiansrsquo 36 Grotius also refutes the raya of pope Alexander VI which granted non-Christian ter-ritories as compensation for the task of religious conversion According to Grotius the apportionment made by Alexander VI was illegitimate because

International Relationsrsquo Grotiana 1415 (199394) 3-37 (p 13) Diana Wood Clement VI the Pontifi cate and Ideas of an Avignon Pope (Cambridge Cambridge University Press 1989) pp 180 190 Schmitt and Verlinden (Ed) Die mittelalterlichen Urspruumlnge der europaumlischen Expansion pp 192 207 210 Gruumlnder Welteroberung und Christentum pp 87 93 Pedro Leturia lsquoDer heilige Stuhl und das spanische Patronat in Amerikarsquo Historisches Jahrbuch 46 (1926) 11-71 (pp 66-68)

32 Clement VI Sermon 45 Ste-G 240 fol 341r cited after Wood Clement VI p 193n83

33 Ibid fol 343r cited after Wood Clement VI p 194n90 See also Felipe Fernaacutendez-Armesto Before Columbus Exploration and Colonisation from the Mediterranean to the Atlantic 1229 ndash 1492 (Basingstoke Macmillan 1987) p 232

34 Grotius De iure praedae XII p 209 35 Id Commentary p 308 36 Ibid p 308

74 J Th umfart Grotiana 30 (2009) 65ndash87

37 Ibid p 309 38 Dig I85 see also Gai inst II1 Ernest Nys Les origines du droit international p 11 39 Grotius Commentary p 322 40 Porras lsquoConstructing International Law in the East Indian Seasrsquo p 755 See Grotius

De iure praedae VI p 59-62 chapter lsquo Quae justa sit causa effi ciens belli privati rsquo Grotius Commentary pp 127-142

41 To Grotius the criterion for a bellum iustum is the compensation for an unjust act for example the breach of a contract or a military aggression He quotes Augustinrsquos classic defi nition of the bellum iustum lsquo Justa autem bella defi niri solent quae ulciscuntur injurias rsquo see Grotius De iure praedae VIII p 68 Grotius interprets this right to compensate an unjust act as also extending to private persons which inevitably leads to the fi gure of a bellum iustum privatum a term however that Grotius himself does not use

42 Ibid VIII p 95 Commentary p 142 lsquoA private war is undertaken justly in so far as judi-cial recourse ( judicium ) is lackingrsquo

no one could grant what was not his and the pope did not own the non-Christian territories that he gave away in 1493 On the other hand Grotius concludes if the pope had acted only as lsquoarbiter between the two peoples hellip we must infer that the apportionment was drawn up only with reference to the Spaniards and the Portuguese and therefore will not aff ect the other peoples of the worldrsquo 37

In contrast to the Iberiansrsquo politically-theologically founded claims Grotius depicts a system of equal states legitimized by natural law He applies the principle of the Freedom of the Seas derived from Roman law to interna-tional maritime waters 38 lsquoTh e sea is an element common to allrsquo writes Grotius 39 So he concludes it can be sailed by everyone Th is is the basic argu-ment of the twelfth chapter of Grotiusrsquos legal opinion De iure praedae which was later reworked and separately published as Mare liberum

Following this principle of the Freedom of the Seas Grotius classifi ed the procedure of the VOCrsquos captain Van Heemskerck as a lsquoprivate just warrsquo ( bel-lum iustum privatum ) 40 Grotius argues that Van Heemskerck defended his natural right freely to travel and trade on the worldrsquos seas against illegiti-mate Portuguese claims 41 According to Grotius such an unusual act of private war could be justifi ed because in the Strait of Malacca Van Heemskerck had been far from the range of any state power that could have defended his natural rights Van Heemskerck therefore had to defend his natu-ral right himself lsquo Eatenus juste bellum privatum suscipitur quatenus judicium defi cit rsquo 42

According to Grotius such a defence of onersquos own natural right does not have to be a reaction to a concrete attack Van Heemskerckrsquos capture of the Santa Catarina had not been preceded by a Portuguese attack However the Santa Catarina and her crew could be rightfully punished due to their

J Th umfart Grotiana 30 (2009) 65ndash87 75

43 Ibid p 158 lsquoIndividual citizens are also bound by the act of the state Indeed it is in keeping with natural equity since we derive advantages from civil society that we should like-wise suff er its disadvantagesrsquo

44 Ibid XII p 363 lsquoSince it has been demonstrated hellip (with authoritative confi rmation drawn from Victoria and with the aid of examples) that a just cause of war exists when the free-dom of trade is being defended against those who would obstruct it we arrive at the conclusion that the Dutch had a just cause for war against the Portuguesersquo I will later come back to this passage

45 On Legal Positivism at Vitoria see Johannes Th umfart Die Begruumlndung der globalpoli-tischen Philosophie Zu Francisco de Vitorias relectio de indis recenter inventis von 1539 (Berlin Kulturverlag Kadmos 2009) Chapters lsquo ldquo Yo le compro llanamente rdquo ndash Vitorias Haltung zu con-quista und Sklaverei in den Briefenrsquo lsquo Lex divina und ius naturale rsquo

46 Francisco de Vitoria lsquoDe eo ad quo tenetur homo cum primum venit ad usum rationisrsquo II 9 edited by Ulrich Horst et al Latin with German translation on facing pages in Id Vorlesungen II Voumllkerrecht ndash Politik ndash Kirche (Stuttgart et al Kohlhammer 1997) pp 92-187 (p 160) lsquo Si vel Deus non esset vel nihil praeciperet ego non dubito quin nullum esset proprie pec-catum aut malum morale rsquo With these words Vitoria denies the possibility of a morality without the laws that are based upon the will of God If God did not exist Vitoria concludes there would be neither sin nor unethical acts Th is formula is however not explicitly applied to international law by Vitoria but can also be read as referring only to the theological categories of peccatum and malum morale

47 Georg Cavallar lsquoCosmopolis Supranationales und kosmopolitisches Denken von Vitoria bis Smithrsquo Deutsche Zeitschrift fuumlr Philosophie 53 (2005) 49-67 (p 55)

48 Hugo Grotius De jure belli ac pacis libri tres in quibus jus naturae et gentium item juris publici praecipua explicantur prolegomena ed by James Brown Scott reproduction of the edi-tion of 1646 (Washington DC Carnegie Institution of Washington 1913) p 5

belonging to Portugal 43 whose claim to a monopoly on traffi c on the world seas was itself in contradiction to natural law 44 Th erefore Grotius argues Van Heemskerckrsquos capture of the Santa Catarina was an act of bellum iustum priva-tum and the booty of three and a half million Dutch guilders from the hold of the ship was the legitimate property of the VOC

Th e theology of free trade

Grotiusrsquos predecessor Vitoriarsquos concept of the source of law can be regarded as theological voluntarism In Vitoriarsquos thought even natural law bears traces of positivism inasmuch as its content is dependent upon the will of God in his function as universal legislator 45 lsquoIf god did not existrsquo said Vitoria in one of his relectiones lsquothere would be no sin nor a moral fl awrsquo 46 In contrast to Vitoriarsquos position Grotiusrsquos conception of natural law can be interpreted as a secular-ized one 47 In his chef drsquooeuvre De iure belli ac pacis Grotius applied Gregory of Riminirsquos famous notion ndash lsquo etiamsi daremus hellip non esse deum rsquo ndash to natural law 48 to make the argument that natural law would still be valid even if lsquogod

76 J Th umfart Grotiana 30 (2009) 65ndash87

49 Gregory of Rimini Lectura super primum et secundum sententiarum dist 34-37 qu1 art2 ed by A Damasus Trapp and Venicio Marcolino (Berlin and New York De Gruyter 1980) p 235 Paola Negro lsquoA Topos in Hugo Grotius ldquoEtiamsi daremus non esse Deumrdquo rsquo Grotiana 19 (1989) 3-23 (p 12) Ernst Wolfgang Boumlckenfoumlrde Geschichte der Rechts- und Staatsphilosophie (Tuumlbingen Mohr Siebeck 2006) p 341n4

50 Th is paper deals with the secularization in De iure praedae from the point of view of the history of legal ideas For a discussion of this thesis that is more focused on theology see Mark Somos lsquoSecularization in De Iure Praedae from Bible Criticism to International Lawrsquo Grotiana 2628 (20052007) 147-191

51 Schmitt Der Nomos der Erde pp 59-69 Grewe Epochen der Voumllkerrechtsgeschichte pp 181-193

52 Peter Borschberg lsquoHugo Grotius East India Trade and the King of Johorrsquo Journal of Southeast Asian Studies 30 2 (1999) 225-248 (p 244) Id lsquoTh e Seizure of the Sta Catarina Revisited Th e Portuguese Empire in Asia VOC Politics and the Origins of Dutch-Johor Alliance (1602 ndash 1616) rsquo Journal of Southeast Asian Studies 33 1 (2002) 31-62 (p 35)

53 Christoph A Stumpf lsquoVoumllkerrecht unter Kreuz und Halbmond Muhamaad al-Shaybani und Hugo Grotius als Exponenten religioumlser Voumllkerrechtstraditionenrsquo Archiv des Voumllkerrechts 41 (2003) 83-100 (p 95)

did not existrsquo In itself however this formula does not necessarily imply a secularization but it can be regarded as an intellectual formula that follows the medieval tradition of the discussion of impossible hypotheses just as the phrase lsquo si per impossibile hellip deus ipse non esset rsquo is used by Gregory of Rimini 49

In De iure praedae however the secularization that Grotius undertakes seems immediately more obvious 50 Against an international order dominated and regulated by the papacy and the monopolies it granted he presents an international order of free commerce and traffi c With his apologia of the bel-lum iustum privatum Grotius gave the anarchic competition of private trading companies and pirates on the oceans of the seventeenth century the fi rst inter-nationally recognized legal justifi cation On this count Grotius cannot be considered to be simply the father of public international law but also the father of the delimitation of European public law beyond the line of amity which legally separated the high seas from the European continent 51 Th is is particularly true in regard to coophandel met force (lsquotrade supported by the force of armsrsquo 52 ) the policy of the VOC which Grotius qualifi ed as a bellum iustum privatum

While Grotiusrsquos formulation of the Freedom of the Seas seems on the surface to be a recipe for mere anarchy on closer examination the Grotian principle of the Freedom of the Seas appears to represent a monist universalist line of legal thought In this case too Grotiusrsquos role must be conceived as a lsquoconnectorrsquo between traditional Christian international law and modern inter-national law (lsquo Bindeglied rsquo) 53 By developing his principle of the Freedom of the

J Th umfart Grotiana 30 (2009) 65ndash87 77

54 lsquoWe will lay this certain rule of the law of nations (which they call primary) as the founda-tion the reason whereof is clear and immutable that it is lawful for any nation to go to any other and to trade with itrsquo Hugo Grotius Th e Freedom of the Seas or Th e Right which Belongs to the Dutch to take part in the East Indian Trade I ed by James Brown Scott and transl by Ralph Van Deman Magoffi n Latin with English translation on facing pages (New Jersey Th e Lawbook Exchange 2001 repr of New York Oxford University Press 1916) p 7 Th e version in the De iure praedae diff ers See De iure praedae XII p 205 Instead of lsquo licere cuivis genti rsquo Grotius only writes lsquo licere Batavis rsquo I therefore quote the Mare liberum version

55 Id De iure praedae XII p 206 56 Ibid 57 Id Commentary p 304 58 Viner Th e role of Providence in Social Order pp 40-54

Seas Grotius not only negated the principle of papal supremacy on which the Iberian claims to a monopoly of trade had originally rested He also developed and expanded upon the rhetoric and structure of the international law of the Middle Ages insofar as he was occupied with the problem of an equivalent to replace the supra-territorial power of the pope

To Grotius the principle of the Mare liberum is essentially of the same value and strength as the papal dominium orbis of the middle ages Th e Freedom of the Seas is depicted by Grotius as a supreme lsquomost secure and unchangingrsquo principle ndash regula certissima cuius perspicua atque immutabilis est ratio lsquo Fundamentum struemus hanc iuris gentium quod primarium vocant regulam certissimam cuius perspicua atque immutabilis est ratio licere cuivis genti quam-vis alteram adire cumque ea negotiari rsquo 54

In Grotiusrsquos conception this principle of natural law is truly meta-political inasmuch as it cannot be abrogated by any political force such as a republic or a prince (lsquo ullam rempublicam aut principem rsquo) 55 Th is absolute truly meta-political quality of Grotiusrsquos conception of free trade is also very clearly refl ected in the language he chooses to use Grotius himself referred to a lsquo jus hellip sanctis-simum rsquo 56 a lsquosacrosanct lawrsquo 57

Th is choice of words and the structural conception of the Freedom of the Seas as a supreme principle clearly points to an analogy between Grotiusrsquos concept of international law and the Iberian medieval one against which he argues Whilst papal blessing had legitimized the global Iberian trade monopoly Grotius secures an absolute truly meta-political validity of the Mare liberum through the connection of his principle of free trade to theologi-cal premises

Grotius legitimizes his principle of free trade by the use of a providen-tial argument that was to become a locus classicus in the later modern debate on the subject 58 Th e regional continental and national diff erences and the

78 J Th umfart Grotiana 30 (2009) 65ndash87

59 Porras lsquoConstructing International Law in the East Indian Seasrsquo pp 756 761 60 Grotius Th e Freedom of the Sea p 7 Th is passage is formulated slightly diff erently and less

sharply in De iure praedae which is why I use the Mare liberum version here again 61 Id Commentary pp 302-303 62 Viner Th e role of Providence in Social Order pp 36-37 42 Douglas A Irwin Against the

Tide An Intellectual History of Free Trade (Princeton Princeton University Press 1996) pp 16-17

63 Grotius De iure praedae III p 33 lsquo Jus est semperetiam post Christum rsquo Id Commentary pp 54-55 lsquoLaw is valid for all times it is valid even for times after the advent of Christrsquo

64 Dickey for example links Grotiusrsquos understanding of free trade to the Stoic notion of oikeio-sis which is an important aspect of Grotiusrsquos doctrine of free trade although not the only one Dickey lsquo Doux commerce and humanitarian valuesrsquo p 280

respective lacks and surpluses of resources forced humankind to maintain global economic contact with one another argues Grotius Inasmuch as the Christian God is conceived as the creator of nature he is also the creator of those regional continental and national diff erences which ultimately force mankind to maintain economic global contact 59 Th e logic inherent in cre-ation which Grotius like all theorists of natural law was preoccupied with deciphering therefore points directly towards an openness of global trade lsquo Deus hoc ipse per naturam loquitur rsquo lsquoGod himself says this speaking through the voice of naturersquo wrote Grotius in Mare liberum 60

lsquoFor God has not willed that nature shall supply every region with all the necessities of life and furthermore He has granted pre-eminence in diff erent arts to diff erent nations Why are these things so if not because it was His Will that human friendships should be fostered by mutual needs and resourcesrsquo 61

With this argument Grotius invoked a pre-Christian tradition of economic theology that reaches from Philo of Alexandria and Libanius to early fathers of the church such as John Chrysostom and Origen 62 Th is pre-Christian line of thought seems to be an important aspect of Grotiusrsquos economic theology which inasmuch as it is based upon natural law does not necessarily depend on Christian narratives Grotius himself wrote that natural law is independent from the events of the Christian history of salvation 63

However Grotiusrsquos principle of free trade cannot be fully understood when thought of as being derived solely from Stoic or other pre-Christian concepts 64 His ideas are strongly connected to the Christian history of salvation inas-much as they can be conceived teleologically Th e assumption that global trade is founded on divine providence seems to imply that it would be morally good to bridge successively the diff erences between the peoples of the Earth by trad-ing According to Grotius God has unequally distributed the goods of the Earth because lsquoit was his will that human friendships should be fostered by

J Th umfart Grotiana 30 (2009) 65ndash87 79

65 Id Commentary p 303 Latin phrase Id De iure praedae XII p 205 Porras lsquoConstructing International Law in the East Indian Seasrsquo p 763

66 Ibid p 760 67 Isaiah 23 18 Grotius De iure praedae XV p 321 Commentary p 468 lsquoIsaiah prophe-

sied that all merchandise and all profi t shall be consecrated to the Lordrsquo 68 Ibid XII pp 303-304 69 Jacob Viner lsquoEarly Attitudes towards Trade and the Merchantrsquo in Id Essays on the

Intellectual History of Economics (Princeton Princeton University Press 1991) 39-45 (pp 39-41) Porras lsquoConstructing International Law in the East Indian Seasrsquo p 761

70 Aristotle Politics 1257 b 22 71 Seneca Naturales Questiones tome II V 18 4-5 ed and transl by Th omas H Corcoran

Latin with English translation on facing pages (Cambridge MA Harvard University Press 1972) pp 114-115

mutual needs and resources ( voluit mutua egestate et copia humanas foveri amicitias )rsquo 65 Seen from this perspective an intensifi cation of global trade can also fortify friendships among human beings and is therefore desirable from a historico-philosophical point of view

In line with these teleological dynamics of free trade Grotius conceives an eschatology of economy according to which the accumulation of goods by means of trade will one day comprise a great gift for God 66 Grotius writes lsquo Fiet ita quod apud prophetam est ut negotiatio et quaestus omnis Deo consecretur rsquo 67

Indeed Grotius also quotes Seneca in order to legitimize the providential aspect of his economic theology lsquoIn Senecarsquos opinion the supreme blessing conferred by nature resides in these facts that by means of the winds she brings together peoples who are scattered in diff erent localities and that she distributes the sum of her gifts throughout various regions in such a way as to make reciprocal commerce a necessity for the members of the human racersquo 68

But a Stoic origin of this justifi cation of trade is not ultimately plausible According to Viner the ideal of economic expansion was unknown to antiq-uity Th e antique conception of economy was mostly oriented towards the ideal of autarkeia or self-suffi ciency 69 It was along these lines that Aristotle for example expressed his strong critique of trade in general 70

As for the passage from Senecarsquos Naturales quaestiones which Grotius quotes in order to strengthen his economic-theological thesis it is obvious that he is using Senecarsquos words selectively To Seneca international trade was not at all an entirely positive phenomenon While Seneca does praise divine providence which enables man to trade globally and traffi c goods he is also careful to add that lsquothe madness of mankindrsquo ( generis humani dementia ) 71 is to blame for the fact that this pursuit of global traffi c can so easily become a cause of war

80 J Th umfart Grotiana 30 (2009) 65ndash87

72 Francisco de Vitoria Relectio de indis recenter inventis III1 ed by James Brown Scott (Washington DC Carnegie Institute of Washington 1917) p 257

73 For Vitoria himself this connection is however not so clear because Vitoria demands that the Spaniards try to convince the Amerindians by peaceful means before waging war against them lsquo Hispani primo debent ratione et suasionibus tollere scandalum rsquo See Vitoria Relectio de indis III1 p 260 Unlike Grotiusrsquos position in Mare liberum Vitoriarsquos focus lies not only on global economics but also on global politics See Th umfart Die Begruumlndung der globalpolitischen Philosophie Id lsquoDas ius gentium als Form der translatio imperii Francisco de Vitorias Legitimation des spanischen Kolonialismus im Kontext der Arbeiten Miguel de Ulzurruns Hernaacuten Corteacutesrsquo und Bartolomeacute de las Casasrsquo in Verfassung jenseits des Staates - Von der europaumlischen zur globalen Rechtsgemeinschaft ed by Ingolf Pernice et al (Berlin Nomos Verlag 2009) pp 15-39

Grotius and Vitoria

Grotius wrote his legal opinion De iure praedae after 1576 the year in which Jean Bodin published his Six livres de la reacutepublique Th e primacy of universal principles over local sovereignties which Grotius defended was therefore out-dated in the larger context of European political theory But this did not nec-essarily devalue Grotiusrsquos position for Grotius did not conceive his principle of free trade for the European continent alone outside of which the principle of territorial or state sovereignty did not play a great role until at least 1945 On the contrary it was exactly the outdatedness of Grotiusrsquos theory of the Freedom of the Seas that determined its extreme strategic value in the specifi c debate in which he employed it For in some respects it was a locus classicus especially for the Spaniards against whom Grotius made his case using this very argument

As Grotius never ceases to mention the Spaniards themselves had used the justifi cation of the Mare liberum approximately 60 years before Th e right freely to travel and trade had been used by the Spaniards in order to legitimize Spanish colonialism in South and Central America In his Relectio de indis of 1539 Francisco de Vitoria argued along similar lines to those later taken up by Grotius Vitoria declared an unchangeable right to travel and trade freely which allowed the Spaniards and any other nation to trade with any people they wanted and to travel wherever they pleased Vitoria called this principle the ius communicationis literally the lsquoright of communicationrsquo 72

According to Grotiusrsquos interpretation of Vitoria the latter accused the indios of having denied the Spaniards their right to travel freely on their land by try-ing to expel them Th us in Grotiusrsquos interpretation of Vitoria Vitoria granted the Spaniards the right to defend their natural right to travel and trade freely in a lsquojust warrsquo ( bellum iustum ) 73 In this way Spanish colonialism could be justifi ed as a bellum iustum which served the defence of the natural right of

J Th umfart Grotiana 30 (2009) 65ndash87 81

74 Grotius De iure praedae XII pp 206-207 It is necessary to quote the Latin version here because Vitoriarsquos terms lsquo peregrinare rsquo lsquo participatio rsquo lsquo commercium rsquo to which Grotius refers are not fully translatable with all of their complex philosophical and theological connotations Commentary p 304 lsquoVitoria holds that if the Spaniards should be prohibited by the American Indians from travelling or residing among the latter or if they should be prevented from sharing in those things which are common property under the law of nations or by custom ndash if in short if they should be barred from the practice of commerce ndash these causes might serve them as just grounds for war against the Indiansrsquo

75 Ibid XII p 363 76 Vitoria Relectio de indis II3 p 240 77 Grotius Commentary p 310 78 Vitoria Relectio de indis II1 p 235 79 Ibid II 3 p 240 Vitoria lsquoOn the Indians Lately Discoveredrsquo II3 p xxi lsquoTh e pope is

not civil or temporal lord of the whole world in the proper sense of the terms lsquolordshiprsquo and lsquocivil powerrsquo

the Spaniards Grotius argued lsquo Castellanis etiam in Americanos has justas potuisse belli causas esse hellip Victoria putat si peregrinari et degere apud illos pro-hiberentur si arcerentur a participatione earum rerum quae jure gentium aut moribus communia sunt si denique ad commercia non admitterentur rsquo 74

It is of great historical irony that in his defence of Van Heemskerckrsquos bellum iustum privatum Grotius turned Vitoriarsquos argument against the Iberians them-selves He wrote lsquoSince it has been demonstrated hellip (with authoritative con-fi rmation drawn from Victoria and with the aid of examples) that a just cause of war exists when the freedom of trade is being defended against those who would obstruct it we arrive at the conclusion that the Dutch had a just cause for war against the Portuguesersquo 75

What made Vitoriarsquos argument interesting to Grotius and so appropriate to his attack on Iberian claims to monopoly was the fact that the Catholic Vitoria also refuted the papal claim to be lsquothe lord of the worldrsquo (lsquo dominus hellip totius orbis rsquo) 76 Vitoria therefore provided Grotius with the line of argument he needed to refute the Iberian claims of monopoly that were based on papal authority In fact Grotius seems to have quoted Vitoriarsquos refutation of world-wide papal authority 77

However to Vitoria both the universal validity of the right to free trade and the refutation of papal authority were subject to signifi cant constraints Although Vitoria disagreed with the emperorrsquos claims of world domination in simple unambiguous terms ndash lsquoImperator non est dominus totius orbisrsquo (the emperor is not the lord of the world) 78 ndash he signifi cantly mitigated his refuta-tion of papal authority formulating his relatively complex opinion thus lsquoPapa non est dominus civilis aut temporalis totius orbis loquendo proprie de dominio et potestate civilirsquo 79

82 J Th umfart Grotiana 30 (2009) 65ndash87

80 Ibid III10 p xli 81 Ibid p xlii 82 Arthur F Utz lsquoWeltliche und kirchliche Gewalt bei Francisco de Vitoriarsquo Die neue Ordnung

50 6 (1996) 455-464 (p 461) Ptolomaei Lucensis Continuatio S Th omae De regno III 13 in Corpus Th omisticum S Th omae de Aquino Opera Omnia ed by Enrique Alarcoacuten (Navarra Universitatis Studiorum Navarrensis 2000) httpwwwcorpusthomisticumorgxrphtml lsquo Dominium Christi ordinatur ad salutem animae et ad spiritualia bona ut iam videbitur licet a temporalibus non excludatur eo modo quo ad spiritualia ordinantur rsquo

83 Vitoria lsquoOn the Indians Lately Discoveredrsquo II3 p xli 84 Ibid

To Vitoria the pope was therefore not the lord of the world in regard to actual political power But strangely enough this did not mean to Vitoria that the pope was not allowed to grant monopolies of trading to the Spanish and Portuguese lsquoTh e pope [could] forbid others hellip to tradersquo wrote Vitoria in the third section of his Relectio de indis 80 And furthermore lsquoInasmuch as the sov-ereigns of Spain were the fi rst to patronize and pay for the navigation of the intermediate ocean and as they then had the good fortune to discover the New World it is just that this travel should be forbidden to others and that the Spaniards should enjoy alone the fruits of their discoveryrsquo 81 According to Vitoria the raya of 1493 was therefore fully justifi ed

Th e restriction of the freedom to trade by Vitoria does not however oppose the line of economic-theological thought such as is to be found in Grotiusrsquos Mare liberum Rather the reason for Vitoriarsquos stance on the supremacy of the pope over global trade lay exactly in the theological function which Vitoria believed trade to have To Vitoria global trade was powerfully connected to the global Christian mission which was entrusted to the supervision of the pope According to Vitoria the pope did not have direct political power over the world but following the pseudo-Th omist tradition Vitoria perceived the pope as having a potestas indirecta 82 an indirect power Th is meant that the pope had temporal power inasmuch as the temporal concerns the spiritual lsquoTh e pope is not temporal lord yet he has power in matters temporal when this would subserve matters spiritualrsquo

Th e global Christian mission was a task born of profound spiritual con-cerns which is why Vitoria fi nally drew the following conclusion lsquoIt is the popersquos concern to bestow especial care on the propagation of the Gospel over the whole worldrsquo 83 According to Vitoria the pope could therefore lsquoentrust it to the Spaniards to the exclusion of all others if the sovereigns of Spain could render more eff ective help in the spread of the Gospel in those partsrsquo 84

Since the aforementioned papal grants of overseas territories and trade monopolies were traditionally given as compensation for fulfi lling the duty of Christian mission one can also easily interpret the text of the bull of 1493

J Th umfart Grotiana 30 (2009) 65ndash87 83

85 lsquoTh e bull Inter Caetera 3 rd of May 1493rsquo in Davenport European Treaties pp 58-67 (pp 62-63)

86 Vitoria lsquoOn the Indians Lately Discoveredrsquo II 3 p xli 87 Ibid p xlii 88 Ibid III6 p xxxix 89 Innocent IV Apparatus super quinque libris decretalium Quod super his PDF Version

Gallica (Venice 1481) p 505 Id lsquoPope Innocent IV on the Legal Status of Infi delsrsquo in Fontes Historiae Iuris Gentium Quellen zur Geschichte des Voumllkerrechts ed by Wilhelm G Grewe 348-350 (p 350)

90 Vitoria lsquoOn the Indians Lately Discoveredrsquo I 24 p xiv

from this perspective Th e papal grant addressed the kings of Castile in the following way It is lsquoyour duty to lead the peoples dwelling in those islands to embrace the Christian profession hellip In order that you may enter upon so great an undertaking with greater readiness and heartiness hellip we hellip give grant and assign forever to you and your heirs hellip the aforesaid countries and islandsrsquo lsquoWe strictly forbid all persons of no matter what rank hellip without your special permit hellip to go for the sake of trade or any other reason hellip to the said islands and countriesrsquo 85

For Vitoria as well the Spanish trade monopoly was compensation of a kind for the Spanish duty to preach the gospel Since the pope was according to Vitoria entitled to supervise the mission he could lsquonot only hellip forbid others to preach but also to trade hellip if this would further the propagation of Christianity for he can order temporal matters in the manner which is most helpful to spiritual mattersrsquo 86 Reasoning why it might not be benefi cial for the Christian mission if all nations were allowed to go to America Vitoria sketches the following scenario lsquoIf there was to be an indiscriminate in-rush of Christians from other parts to the part in question they might easily hinder one another and develop quarrels to hellip the disturbance of the concerns of the faith and of the conversion of the nativesrsquo 87 To Vitoria as to Grotius trade was therefore a meta-political spiritual procedure which did not belong to the secular realm of politics so much as to the theological realm of matters spiritual

Vitoriarsquos assertion that only the pope could deny the ius communicationis clearly illustrates that the ius communicationis was for Vitoria ultimately a principle that belonged to the domain of the spiritual power If however the ius communicationis was denied by somebody else Vitoria envisaged the same punishment as the traditional canonical doctrines had decreed for anyone who prevented missionaries from preaching the gospel ndash the bellum iustum 88 In Pope Innocent IVrsquos much cited comment on the subject one fi nds for exam-ple the following line of thought lsquo Mandare potest Papa infi delibus quod admit-tant praedicatores rsquo 89 Although Innocent IV ndash as later did Vitoria 90 ndash granted

84 J Th umfart Grotiana 30 (2009) 65ndash87

91 Ibid III9 pxli 92 Ibid III2 p xxxvi 93 Eberhard Straub Das Bellum Iustum des Hernaacuten Corteacutes in Mexico p 15 Djelal Kadir

Columbus and the Ends of the Earth Europersquos Prophetic Rhetoric as Conquering Ideology (Berkeley University of California Press 1992) p 32

94 Vitoria lsquoOn the Indians Lately Discoveredrsquo frontpage of Appendix A no page number between p 288 and i Matt 28 19

95 Id 2414 96 Vitoria Relectio de indis II3 p 241 John 10 16

the non-Christians the right to be the legitimate owners ( veri domini ) of their lands he also granted the pope the right to command the non-Christians to admit Christian priests among them If they failed to admit these priests the pope would have to punish the non-Christians (lsquo puniendi sunt rsquo) writes Innocent Clearly Vitoria enhanced this ius praedicandi which he also defends 91 to a legal title of secular commerce the ius communicationis In respect to the sanction of the bellum iustum and their close connection to the papacy trade and mission have the same legal status in Vitoriarsquos De indis

As with Grotius trade also had an important function in the Christian his-tory of salvation according to Vitoria It was after all the biblical narrative of the common Adamitic ndash or Noahic ndash origin of all mankind on which Vitoria based his notion of ius communicationis the right to travel and trade freely 92

Vitoriarsquos conception of trade also shares with Grotiusrsquos its historico-teleological aspect To Vitoria the right to trade was not based upon the history of salvation alone with its hypothesis of the common origin of all men It also fulfi lled an important function regarding the future of the history of salvation To Vitoria as to other contemporary Iberian authors the history of salvation was expected to be fulfi lled by the lsquoconversion of all peoplesrsquo to Christianity 93 Th e paragraph of the Bible on which Vitoria based his Relectio de indis deals directly with the Christian missionary imperative lsquoGo and make disciples of all nations baptis-ing them in the name of the Father and of the Son and of the Holy Spiritrsquo 94 Th is passage from Matthew is intimately related to a similar verse in a preceding chapter Here the connection between the global Christian mission and escha-tology is expressed even more succinctly lsquoTh is gospel of the kingdom shall be preached in all the world for a witness unto all nations and then shall the end comersquo 95

To Vitoria trade was a temporal instrument that concerned the spiritual realm because it helped to achieve the conversion of all peoples assumed in the Christian conception of the fulfi lment of history In this sense Vitoria per-ceived lsquothe end of timersquo as being dominated by the pope as lsquoone shepherdrsquo of lsquoone fl ockrsquo lsquo In fi ne saeculi fi et unum ovile et unum pastorem rsquo 96 If the pope had

J Th umfart Grotiana 30 (2009) 65ndash87 85

97 Porras lsquoConstructing International Law in the East Indian Seasrsquo p 771 98 Th e quoting of Seneca was essential to the argument of the Mare liberum See supra n74

for Stoic thought and Grotius in general see Hans Blom and Laurens Winkel (eds) Grotius and the Stoa Grotiana 2223 (200102)

according to Vitoria a lsquopower in matters temporal when this would subserve matters spiritualrsquo this meant that the popersquos power extended to everything which served to put an end to lsquotemporal historyrsquo that is to fulfi l the history of salvation To Vitoria controlling and fostering trade was a means to reach this much-desired culmination of the Christian history of salvation

As this examination of the role of trade in Vitoriarsquos conception reveals Grotiusrsquos quotation of Vitoriarsquos ius communicationis has far-reaching implica-tions For Grotius had also inherited Vitoriarsquos idea of an intrinsic Christian morality of global trade and the connected notion of a possible punishment of restrictions of trade with a bellum iustum Grotius was not the fi rst to assign to trade a specifi c function in the history of salvation as Porras suggests in her examination of the matter lsquoUnlike Grotius hellip Vitoria had not based his claim on a strong version of the doctrine of the providential function of commercersquo 97 More likely Grotius had derived this spiritual concept of trade from Vitoriarsquos allocation of trade to the spiritual domain of the pope As the papal authority was erased in Grotiusrsquos Protestant conception it was the theological function of trade itself that remained

Conclusion

Th e principle of the Mare liberum in Grotiusrsquos conception can undoubtedly be deduced from similar principles in Roman law and from the cosmopolitan thought of the Stoics 98 Grotiusrsquos underlying assumption that trade was an inherently positive and moral phenomenon can however not be traced back to these sources Particularly in regard to its historico-philosophical implications such a perception of trade can only be understood as stemming from the Christian tradition of associating trade with the mission of conversion In this respect a transmission of Christian economic theology from Vitoria to Grotius can be clearly demonstrated Th is is especially true in regard to the sanction of bellum iustum for the punishments of political acts against the principle of free trade and in regard to an eschatological function of global trade

In Mare liberum Grotius dissolved the connection between the economic-theological conception of trade and papal authority which was extant in

86 J Th umfart Grotiana 30 (2009) 65ndash87

99 Hermann Luumlbbe Saumlkularisierung Geschichte eines ideenpolitischen Begriff s (Freiburg im Breisgau Alber 1975) p 23 lsquo Entzug oder die Entlassung einer Sache eines Territoriums oder einer Institution aus kirchlich-geistlicher Observanz und Herrschaft rsquo

100 Schmitt Politische Th eologie p 43 quote originally in German Concerning this compari-sion between lsquoeconomic theologyrsquo and lsquopolitical theologyrsquo see Agamben Il regno e la gloria p 14

101 Peter Sloterdijk Im Weltinnenraum des Kapitals Fuumlr eine philosophische Th eorie der Globalisierung (FrankfurtM Suhrkamp 2005) p 92 lsquo saumlkulare hellip Missionswissenschaft rsquo

102 Karl Loumlwith Meaning in History Th e Th eological Implications of the Philosophy of History (Chicago Th e University of Chicago Press 1957) p 203

103 In the German version the provocative conclusion is omitted See Karl Loumlwith Weltgeschichte und Heilsgeschehen Die theologischen Voraussetzungen der Geschichtsphilosophie (Stuttgart Metzler 2004) p 218

Vitoriarsquos Relectio de indis Th is signifi ed a secularization in the very literal sense of the word In respect to its original historical meaning Luumlbbe defi ned secu-larization as a lsquodeprivation or release of a thing a territory or an institution from spiritual-ecclesiastical observance and dominionrsquo 99

However Grotiusrsquos secularization of global free trade did not involve any form of de-sacralisation Rather Grotius replaced the absolute supreme authority of the institution of the papacy with the absolute meta-political authority of the principle of free trade Although the concept therefore under-went a gradual secularization the theological structure of free trade remained intact Applying Schmittrsquos notion of lsquopolitical theologyrsquo ndash that certain terms of political theory can be interpreted as lsquosecularized theological conceptsrsquo 100 ndash one can also interpret Grotiusrsquos conception of free trade as a secularized theological conception of economy It follows therefore that one can speak of an lsquoeco-nomic theologyrsquo regarding Grotiusrsquos conception of free trade in De iure praedae and Mare liberum

Grotiusrsquos economic theology in the Mare liberum is of interest because it seems to be an example par excellence of what Sloterdijk in his refl ection on globalization has labelled a lsquosecular missionary sciencersquo of early modern global trade 101 It also seems to be an illustration of the connection between Christian mission and globalization that Loumlwith sketched in the last remarks of his Meaning in History Th ere Loumlwith asked rhetorically lsquoIs it perhaps that hellip the hope in a future Kingdom of God and the Christian command to spread the gospel to all the nations for the sake of salvation have turned into the secular presumption that we have to transform the world into a better world in the image of man and to save unregenerate nations by Westernization and re-educationrsquo 102

It is only in the original English version of the book 103 that Loumlwith also provocatively answers lsquoTh ere are in history not only ldquofl owers of evilrdquo but also

J Th umfart Grotiana 30 (2009) 65ndash87 87

104 Loumlwith Meaning in History p 203 105 Wilson lsquoErasing the Corporate Sovereignrsquo p 78

evils which are the fruit of too much good will and of a mistaken Christianity that confounds the fundamental distinction between redemptive events and profane happenings between Heilsgeschehen and Weltgeschichte rsquo 104 In regard to economic theology Loumlwithrsquos question about the lsquogoodrsquo or lsquoevilrsquo of theology is probably the wrong question to ask It is indisputable that trust in the posi-tive dynamics of free trade brought with it a global community of merchants more widespread more manifold and also more pleasant than any religious community of the past Nevertheless unregulated markets do not necessarily transform private vices into public benefi ts by divine providence but private vices can also simply lead to public and private disasters Further inquiries into the nature of economic theology may provide more clarity Reading Grotius from the point of view of a history of legal ideas at least makes visible how missionary principles transformed into international law

It remains to be remarked however that Grotius himself utilized Vitoriarsquos economic theology for reasons neither intellectual nor theological but rather tactical Grotiusrsquos text Mare liberum must be interpreted within the context of his legal opinion De iure praedae within which it was originally developed Th e Protestant Dutchman quoted the opinions of the Catholic Spaniard Vitoria because Grotius assumed Vitoriarsquos argument would have a great impact on the Spaniards and Portuguese against whom he argued lsquoCentral to Grotiusrsquos strat-egy was his reliance upon Iberian scholastics as a means of providing a series of irrefutable propositions to the Spaniardsrsquo writes Wilson summarizing the standard opinion 105 Finally Grotiusrsquos economic theology especially in regard to its theological tradition was an argument developed in order to defend the economic interests of Grotiusrsquos employers If one should dare to answer the broad question of which came fi rst ndash an economic theology or economic inter-est ndash at least for Grotius the answer can be found on the solid ground of materialism