Este artigo tem como objetivo mostrar alguns aspectos do humanismo jurídico, tal qual desenvolvido por Francisco de Vitoria. Cabe-nos, ainda, a tarefa de investigar e reconstruir as contribuições filosóficas da Escolástica Tardia desenvolvida no escopo do humanismo jurídico que permitiram a sistematização do conceito de ius communicationis. Nossa reconstrução partirá de uma tríplice fundamentação epistemológica frequentemente utilizada pelo autor, a saber, o estatuto da dúvida, da certeza e da opinião. A discussão, prima facie, se concentra em duas de suas (...) principais conferências internacionalistas sobre o problema da colonização da América. Em primeiro lugar, sua aproximação do tema no De Potestate Civili ; em segundo lugar, no De indis recenter inventis relectio prior. (shrink)

The purpose of the present study is the understanding of Gentili's position on the law of the sea as expressed in his classic De iure belli . The key constitutive elements turn out to be: 1) the idea of the sea as 'res communis' to all mankind, which amounts to the concept of 'freedom of the sea'; 2) 'jurisdiction' of the coastal state on the adjacent sea, even on the high seas, in order to police crime and prevent/punish piracy. As (...) such these two key elements, if taken in isolation, are rooted in the civil law tradition, but their true meaning can only be captured by placing them in the intellectual framework of which they constitute an integral part. Firstly, the epistemic structure of discourse hinges on the new science of natural jurisprudence, as applied to the subject of 'ius gentium bellicum'; secondly, the constituent theoretical languages emanate from a distinctive combination of civil law, scholastic-theological and humanist traditions. This procedure enables us to highlight the strikingly original and distinctly modern traits of Gentili's perspective on the law of the sea, which emerges as a corollary of his project of international/global order. A project that is based on the crucial notion of 'respublica magna' of mankind, a notion encompassing the two notions of 'freedom' and 'jurisdiction' that constitute and define the legal regime of the sea.The Stoic humanist notion of universal human society as 'corpus unum' implies, first of all, 'freedom of intercourse', or 'ius communicationis', to start from 'free passage' and 'freedom of commerce'. It is in the context of his argument about these basic freedoms that Gentili is finally led to discuss the subject of the 'law of the sea'. But, not only the concept of 'res communis', or 'freedom of use', but also the concept of 'jurisdiction', or 'protection', are strictly related to the same foundational concept of 'respublica magna'. This is a crucial characteristic of Gentili's approach to world order that is proved by reference to two cardinal points of his new 'cosmopolitan justice': 1) the 'international right to punish', as exemplified by the legitimacy of the wars of 'humanitarian intervention' and of the wars in support of the 'common law of mankind'; 2) the 'occupation of vacant land', which again underlines the relevance of the principle of 'jurisdiction' by striking a balance between the principle of 'free use' of nature and the 'jurisdiction' of the local ruler.Such a reconstruction definitely rejects the traditional image of Gentili as a supporter of 'maritime protectionism', on the ground of his Advocatio Hispanica published posthumously in 1613 and containing his pleadings as Spanish advocate before the Court of Admiralty. The guiding assumption here is that the book is strictly of a forensic character and as such devoid of any coherent theoretical substance. To the contrary, in his De iure belli, far from anticipating the English position in favour of 'mare clausum', Gentili tends to anticipate the essentials of Grotius' position, especially at the level of the ethic of the 'modern cosmopolis' and the related theme of colonial empire. On this very plane of discourse, Gentili's thinking transcends the so-called battle of the books and emerges as especially significant in illuminating the wider and deeper intellectual currents that contributed to the development of what were to become basic standard positions of modern international theory. (shrink)

The idea of free trade in Grotius's 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 'sacrosanct law'. He also perceived the Freedom of the Seas as being a direct result of the will of God. This 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 Grotius's theory was also emphasized by the references he made to the Dominican friar Francisco de Vitoria's ius communicationis. This precursor to Grotius's Freedom of the Seas, which Vitoria had developed in his De indis, is connected to the legal justification of Christian mission and so has a clear theological connotation. In Grotius's work, Vitoria's concept of a universal right to Christian mission supervised 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 develops a theological basis not for politics but for economics. One can speak therefore, following Giorgio Agamben, of an 'economic theology' in regard to Grotius, a term that is, in turn, derived from Carl Schmitt's notion of 'political theology'. (shrink)

Background: The risk of surgery in eloquent areas is related to neuropsychological dysfunctions. Maximizing the extent of resection increases the overall survival. The onco-functional balance is mandatory when surgery involves cognitive areas, and maximal information on the cognitive status of patients during awake surgery is needed. This can be achieved using direct cortical stimulation mapping and, in addition to this, a neuropsychological monitoring technique called real-time neuropsychological testing. The RTNT includes testing protocols based on the area where the surgery is (...) performed. We reported on tests used for left temporal lobe surgery and our RTNT decision tree.Case Report: We reported our RTNT experience with a 25-year-old right-handed man with 13 years of schooling. He reported daily partial seizures. MRI revealed the presence of a low-grade glioma involving the temporo-insular cortex. The neuropsychological status presurgery which was within the normal range was combined with functional magnetic resonance imaging and diffusion tensor imaging information. Awake surgery plus RTNT was performed. Direct electrical stimulation during object naming elicited a motor speech arrest. Resection was continuously accompanied by the RTNT. The RTNT provided enriched information to the surgeon. Performance never dropped. A slight decrement in accuracy emerged for pseudoword repetition, short-term memory and working memory, phonological processing, and verbal comprehension. Total resection was performed, and the histological examination confirmed the nature of the lesion. Immediate postsurgery performance was within the normal range as it was the fMRI and DTI assessment.Conclusion: The RTNT provides essential information that can be used online, during surgery, for clinical aims to provide the surgeon with useful feedback on the cognitive status of patients. (shrink)

The paper examines Thomas Hobbes’s theory of the state and representation in light of the historical development of the idea of the people as a corporation and its use in late-medieval and early-modern theories of resistance. Consequently, it is argued that Hobbes’s use of a corporate metaphor for the state embodied a rejection of the ius gentium reading of the people as a corporate body that legitimised the right of resistance to the sovereign power. By incorporating the state, not the (...) people, and championing a single covenant of a dissociated multitude that leads to its generation, Hobbes undermined the basis on which advocates of popular sovereignty justified opposition to the sovereign; a prerogative derived in their eyes from a covenant between the people and the ruler. (shrink)

This paper seeks to challenge the long-standing interpretation of the ius vitae necisque as a formal legal right of Roman fathers. It offers a review and critique of the evidence upon which the claim of ancient origin is founded and highlights the consequent problems in comprehending late Republican and Imperial references to the killing of sons by fathers. An alternative and more satisfactory understanding is to be found in sociological thinking and it is argued that the comprehension of the ius (...) vitae necisque as a formal right is not only invalid but obscures the real significance of its promotion as a political phenomenon in the age of Augustus and the early emperors of Rome. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Ius Gentium as Publicly Articulated Moral ScienceMatthew K. MinerdAmong the various types of law discussed in St. Thomas's theological "treatise on law"—questions 90–108 of Summa theologia [ST] I-II—the classification known as the "law of nations" (ius gentium) holds an ambiguous epistemological position. Marking a kind of halfway point between the natural law and civil law, it seems to straddle both domains. In fact, in a particularly important text dedicated (...) to this topic in the ST (I-II, q. 95, a. 4), Aquinas classes the ius gentium as being closely connected to the natural law, though in a way that is somewhat derivative, not as immediately flowing from human nature (especially in its animality) as does the natural law, but also not as marked by human contingency as is human civil law.As was recently discussed in a well-documented and insightful article by Barrett H. Turner in The Thomist, there have historically been two main lines of Thomist interpretation concerning the exact character of the "law of nations." Very broadly stated, what he refers to as the "Salamancan" line, indebted to Francisco de Vitoria, "interprets Thomas's doctrine of the ius gentium as a body of universal positive institutions (that is, specifications, determinationes) added to the natural law by agreement of the human race."1 [End Page 1043] This position, which would be common for several centuries among members of the Thomist school, would locate the law of nations essentially in the domain of nearly universally adopted customs and institutions, not strictly deduced from the natural law, but rather grounded on "the quasi-political authority of the entire human race, which promulgates the ius gentium by customs whose utility for attaining the ends of the natural law under a certain set of social conditions is easily recognized by rational creatures."2Turner calls the other line of thought "Maritain's Neo-Thomist Line,"3 an outlook that would be shared with various nuances by thinkers like Jean-Marie Aubert, Yves Simon, Marie-Michel Labourdette, John Finnis, and others. Setting aside my qualms about his appellation "neo-Thomist," which does more to obscure than to illumine (for it covers a host of Thomistic figures who have significantly different views on what constitutes "Thomism"), Turner does fairly lay out the major lines of Jacques Maritain's position, which is most directly articulated in Man and the State and La loi naturelle ou loi non-écrite.4 Basing himself on his particular view of knowledge of the natural law through connaturality,5 Maritain contrasted this sort of moral cognition with that which develops in the line of conceptual articulation, thus having a different "gnoseological" character from our knowledge of the natural law, while nonetheless still sharing the same "ontological" foundation. Such conceptually articulated law would be the ius gentium.Rather than add my voice to the dialectic of the various thinkers arrayed by Turner into the two aforementioned camps, I would like to propose a slightly different approach to the "moral epistemology of the law of nations," though one that I believe lies in line with the best aspects of Maritain's approach. Continuing a series of reflections that I have undertaken [End Page 1044] concerning moral epistemology during the past few years,6 I propose that it is most helpful to consider the "law of nations" as being a form of reasoning pertaining to what Scholastic vocabulary would refer to as "moral science,"7 namely discursive philosophical reasoning concerning the essences, properties, effects, and various other essential relationships that belong to a human acts, morally considered (the principal subject of moral philosophy), along with other subjects that are studied in relation to this principal subject (e.g., the principles of human acts, most particularly, the structure of human acts and the moral virtues). Moral science is the activity of reasoning that can be undertaken by knowing agents living together in community, seeking to discursively articulate and explain the moral truth that forms the essential basis for the contingent determinations that will then be codified in particular civil laws, the latter of which are not concerned with questions like "what are the ultimate foundations for property... (shrink)

Este artículo estudia críticamente el concepto de Ius Constitutionale Commune Latinoamericanum como fenómeno de judicialización de la política a nivel regional. Partiendo de la afirmación de que el derecho constitucional es político, se analizan algunos rasgos del ICCAL como la ideología que lo inspira, la teoría en que se apoya el concepto y el arreglo institucional que lo sostiene, para problematizar su carácter "común". Bajo el entendido que cualquier proyecto constitucional está indisolublemente ligado a un diseño institucional que lo lleva (...) a cabo, se critica la apuesta por un modelo juricentrista, anclado en la interpretación que la Corte Interamericana de Derechos Humanos hace de los derechos reconocidos como universales, para proponer un sistema basado en procedimientos deliberativos e igualitarios que fortalezcan la democratización de la región. This article critically examines the concept of Ius Constitutionale Commune Latinoamericanum as a phenomenon of judicialization of politics at the regional level. To problematize its "common" character and based on the assertion that constitutional law is political, some features of the ICCAL are analyzed: the ideology that inspires it, the theory in which the concept is supported and the institutional arrangement that sustains it. Under the understanding that every constitutional project is inextricably linked to an institutional design that carries it out, the commitment to a jury-centered model, anchored in the interpretation that the Inter-American Court of Human Rights makes of the rights recognized as universal is criticized. Proposing, in contrast, a system based on deliberative and egalitarian procedures that strengthen the democratization of the region. (shrink)

Este artículo se centra en The Law of Peoples (1999), libro con el que John Rawls cierra el tríptico de su concepción socio-democrática de la justicia dentro de la tradición liberal, iniciada a principios de la década de los ‘70 con A Theory of Justice (1971), donde describe la justicia como equidad como un ideal moral universal al que deben aspirar todas las sociedades, y continuada dos décadas más tarde con Political Liberalism (1993), obra en la que el pensador estadounidense (...) abunda en su idea de extender una concepción política de la justicia al Derecho de los pueblos y a su función reguladora de las relaciones justas entre los pueblos. De cualquier modo, pese a que Rawls admite expresamente la ascendencia que tienen sobre su idea de justicia el contractualismo y el iusnaturalismo kantianos, así como la influencia que ejerce sobre su estudio dedicado al Derecho de gentes la doctrina universalista e iusirenista del Derecho internacional público, veremos hasta qué punto satisfizo o defraudó Rawls con su visión pluralista del orden mundial las expectativas de quienes esperaban que hiciera una defensa firme de la justicia universal y de la democracia cosmopolita. (shrink)

Según la noción clásica el derecho es el objeto de la justicia; también clásicamente se dice que el ius es lo justo, lo debido. Según esto, el ius naturale es lo justo que se funda en la naturaleza y es lo debido por naturaleza. Frente a estas nociones clásicas Thomas Hobbes define al ius naturale como la libertad que cada hombre tiene de usar su propio poder como quiera, para la conservación de su propia naturaleza, es decir, de su vida. (...) También podemos marcar la diferencia entre la concepción clásica de la ley natural como dictamen de la razón práctica que ordena al hombre hacia el fin inscripto en su naturaleza, permitiendo reconocer el bien y el mal afin de realizar el primero y evitar el último, de la noción moderna hobbesiana que concibe la lex naturalis como norma general que obliga a realizar lo que preserve mejor su vida u omitir lo que pueda destruirla o privarle de los medios de conservarla. El objetivo de este artículo es mostrar cómo y porqué se llega a estas diferencias tan marcadas. (shrink)

Grotius’s discussion on slavery exhibits a dual character, as it is based on natural law on the one hand, and on ius gentium on the other. This article focuses on the sources used by Grotius in his search for the rules of ius gentium on war slavery, and compares Grotius’s insights with the works of some of his contemporaries. After briefly discussing Grotius’s introduction to ius gentium and its sources, his references to three themes concerning war slavery are analyzed. The (...) research shows that, if need be, Grotius works according to his own rules even though it seems difficult for him to leave Greco-Roman antiquity and Europe behind; it also shows that he is content with flimsy evidence. In addition, analyzing his sources informs us about Grotius’s personal input regarding the legitimacy of war and slavery. It turns out that with regard to one of the most far-reaching principles concerning war slavery, Grotius’s insight is consistent with what seems to have been generally accepted among (European) scholars from antiquity to his own time. Another lesson learned: natural rights are not safe with Grotius, since ius gentium as presented by him is a serious threat to such rights. (shrink)

This paper explores the presence of late medieval ius commune in Grotius’s thought on the use of force in internal strife and war, based on De iure belli ac pacis. To this end, it examines Grotius’s use of ius commune sources, and considers some similar sources, which he does not actually cite, but which relate to his discussion. By clarifying Grotius’s selection and use of ius commune sources, the paper intends to contribute to the achievement of a double aim: firstly, (...) to determine the place of rebellion and civil war in De iure belli ac pacis, especially in relation to war; and, secondly, to assess Grotius’s approach to the two former issues, particularly with regard to the criteria by which a distinction between rebellion and civil war can be drawn, and to the effects of this distinction. (shrink)

This article intends to argue that Francisco de Vitoria’s conception of the Spanish Conquest of America is based upon notions that stem from various sources of the 14th and 15th Century. One of his most important source is the Opus septipertitum de contractibus, written by the German theologian Conradus Summenhart, whom Vitoria quotes frequently. By comparing both thinkers it can be shown that Vitoria’s basic terminology concerning rights and dominion is in greatly indebted to Summenhart’s account.