De Restitutione: the Iberian School of Peace and the idea of justice in the occupation of America (16th century)

Principal Investigator:

Pedro Calafate

Funding Institution: FCT
Date: 2016-2019

Description

FCT Project PTDC/MHC-FIL/4671/2014

We intend to rescue unpublished Latin manuscripts on the issue of Restitution written by masters of the University of Coimbra and Évora (16th century) applied to the ethical-juridical debates on the occupation of America in dialogue with the masters of Salamanca.

The Iberian School of Peace (ISP), founded in peninsular universities during the period of edification of the Iberian empires, headed a series of debates on the rights of the human person and the right to the domain of jurisdiction and of property of the different peoples in the globe.

It was establishes that men of all races were created free and were naturally equal; that political power has immediate origin in natural communities of men, giving it a democratic foundation; that the right to domain did not depend on religion or the degree of development of a civilization; that there was no natural slavery; that the power of pagan princes, in itself and in its nature, had the same lawfulness of the power of Christian princes; that the Christian empire was a juridical expectation dependent on a free pact between peoples.

The articulation between law and ethics, between peace and justice, was reinforced and the supremacy of the Reason of Mankind over the Reason of the State, of solidarity over sovereignty, and of conscience over the will was established. The supranational ownership of the rights of the human person was defended in light of the universal authority of the orb because the jus gentium was not strictly inter-states; the dignity of the human being as foundation of the international community as conceived; juridictional immunities of the crown regarding the natural rights of men and their communities was rejected; it was defended that the right to citizenship depended on membership to a community of equals and not, as was the case later on, on the individualist concept of property (locke); and that the right of domain did not depend on greater effectiveness of work (Vattel), but on actual politically organized occupation if not in optimal terms, at least in good terms. An objective justice above the will of princes and a guaranty of reciprocity of human rights asserting itself as a matter of conscience and not of consent were established, and the importance of Universal Principles, as well as attention to rights and duties of all inter se, because imperial laws could not contradict natural dispositions.

This is the contexto of the core question of the project: De Restitutione, resumed by these authors from the II.ae II.ae, q, 62, of the Sum. Theol. and applied to the ethical bases of the just construction of the Iberian empires, protecting them from the furto et rapina.

Under this light, the owners of violated rights worthy of reparation were the subjects of the universal jus gentium, princes, peoples and individuals, and since the basis of this jus gentium was the universal juridical conscience (the recta ratio and international sociability), the duty of Restitution was tantamount to a need of ethica-juridical order also at the scale of Mankind and its peoples.

Considering that, in the terms of Aquinas’ legacy, the rules of Law emerged from conscience and not from the will, the compulsory nature of Restitution emanated from the ethical standards of the conscience of what is right as the Natural Law’s own vision.

In the case of the just Christian empire we would have to equate, secundum arbitrium sapientis and for each case: the Restitution of the right to domain; the Restitution and reparation of natural freedom to enslaved people without lawful ownership; reparation of damages caused by unjust war; Restitution od material goods unjustly appropriated.

We will carry out the paleographic transcription, the translation from Latin, the annotation and edition (Latin/Portuguese) of these as yet unpublished manuscripts corresponding to the lectures of the Professors from Coimbra and Évora, most of which in danger of evident degradation and irreversible loss, studying them and integrating them into the issues of the ISP and the question of the eventual abandonment or continuation of the colonial project (Las Casas vs Vitoria). We will research the presence of the matter of Restitution in the legislation of the colony of Brazil and in American ground to our days through the recent experience of the Inter-American Court of Human Rights, where the echo of this 16th century tradition has been making itself explicitly heard. We will thus rescue their memory and put these writings in a dialogue with the future.

We will show the topicality of a tradition in which States are not the exclusive subjects of International Law, ain in which a new jus gentium for the XXI century can be affirmed as truly universal and not as a fragmentary jus inter gentes protected by consent.

 

Research Team

Pedro Calafate; Margarida Seixas; António Martins; Beatriz Perrone-Moisés; Carlos Zeron; Filipa Afonso; Joana Serafim; José Miranda; José Pedro; Viriato Soromenho-Marques; Leonel Ribeiro dos Santos; Luís Miguel Nogueira de Brito; Manuel de Sousa Barbosa; Maria Beatriz Miranda; Maria Leonor Xavier; Madalena Brito; Ricardo Ventura; Sílvia Loureiro.

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