1 Topic, Method, Aims
This book covers four different areas: classical studies, history, theology, and legal philosophy. Its genesis was the translation of Latin manuscripts which I developed within two academic projects devoted to sixteenth-century Portuguese intellectual history.1 These projects aimed to unveil a wide corpus of Latin manuscripts on juridical and political topics: the limits of dominium, the definition of ownership, the conception of ius under a subjective sense, war, slavery, tyranny, etc. These matters were the object of moral, religious and juridical concern of the Iberian scholastic community. In this study, I want to make that school’s doctrines known through examining the work of Fernão Pérez who, in spite of being greatly unknown, was one of its most prominent figures. The appeal of perennial topics such as individual rights and slavery led me to carry out a monographic introductory study on this theologian-jurist, on his doctrines and historic and intellectual context.
I highlight not only the cultural weight of the Iberian Scholastic School – whose great lines of thought are systematized in Pérez’s work – but I also emphasise how Portugal was a substantial part of this community.
The research around Pérez and his thought turned this book into a case study, and a subsidy for the understanding of the contribution offered by this monumental school of thought not only to the Iberian but also to the rest of the European intellectual world.
The first aim of this study is therefore to turn accessible a relevant object of the Iberian, European and Portuguese intellectual culture to a wide public of the academic community and to anyone who is interested in these topics filled with anthropologic significance. The second aim was to present a preliminary study about Pérez, his doctrines, intellectual filiation and cultural and historical background. As far as we know, this is the first time that a biographic and intellectual narrative of this theologian-jurist is offered to the academic world. To the present day there is only scattered information and dispersed documents of various kinds about this figure. On the other hand, I tried to frame Pérez’s thought within the wide intellectual Iberian community by reflecting on his particular contribution and on the contribution of the theologian-jurists based in Portugal in general. This study describes some of the topics contained in the manuscripts in light of the great controversies that triggered their development since the medieval ages. It concludes with answers to questions that occurred throughout the research, specifically about the reason for two realities that became evident: 1) the pronounced intersection between moral theology and juridical science in sixteenth-century in Portugal, and 2) the centrality and the unique role of moral theology in the critical questioning of slavery in this period.
I accepted the risks of a study in which various scientific areas mingle, preferring to make use of one of the fortunes of being a classicist: a particular ability to build bridges between various fields of knowledge and to open the way to academics who are willing to explore the material which they are not able to access by not being familiar with Latin and palaeography. This study took me on a journey with multiple avenues: legal philosophy, history, palaeography, philosophy and theology. Therefore, it only attempts to present a preliminary study, carried out by a classicist committed to prepare the ground to be explored by other researchers in its many different angles. In my opinion, this is one of the great privileges of the professionals of ancient languages, namely to make accessible to other areas of the humanities documents which remain in the shade and are waiting for an appropriate reading and evaluation.
2 Literature Review
Research on the Iberian Scholastic School Developed Outside Portugal
The translation of sixteenth-century Iberian scholastic literature has been developed with some systematization in the Spanish field, based on the set of authors and works collected in the Corpus Hispanorum de Pace, subsidized by the CSIC since 1963. In Latin America there has also been research in this direction. In Peru, the University of San Marcos, founded in 1551, has translated sixteenth and seventeenth-century scholastic treatises. More recently, in Frankfurt, at the Max Planck Institute for Legal History and Legal Theory in collaboration with the Mainz Academy of Sciences and Literature and the Goethe University of Frankfurt – a project has been promoted to create a digital library and a dictionary of juridical-political language of the Salamanca School. This project concentrates on works produced in Spain and not Portugal. However, the first volume which appeared in the recent methodological series of the Max Planck Institute contains a major plea to abandon the exclusive focus on Salamanca and Spain in studies about early modern scholasticism and the relationship between theology and law more broadly speaking.2
I will now mention some of the scholars who made relevant contributions around the topic of slavery and dominion in early modern scholastic authors. Luciano Pereña (La idea de justicia en la conquista de America, 1992); Jesús García Añoveros (Argumentos de esclavitud, 2000); Alejandro Guzmán Brito (El derecho como facultad en la Neoescolástica Española del siglo XVI, 2009); Francisco Carpintero Benítez (Del derecho natural medieval al derecho natural modern, 1977); Venancio Carro (La teología y los teólogos-juristas españoles ante la conquista de América, 1951); Lewis Hanke (The Spanish struggle for justice in the conquest of America, 2002); Anthony Pagden (The fall of natural man: the American Indian and the origins of comparative ethnology, 1982); James Muldoon (Popes, Lawyers, and Infidels. The Church and the Non-Christian World, 1250–1550, 2015; Canon law, the expansion of Europe, and world order, 1998); Mathias Kaufmann (“Slavery between law, morality and economy”, 2014); Danae Simmermacher (“Eigentum als ein subjektives recht bei Luis de Molina (1535–1600): dominium und sklaverei in De Iustitia et Iure”, 2018), and Jörg Tellkamp (A companion to early modern Spanish imperial political and social thought, 2020).
There is, however, very little reflection on what was produced in Portugal within the context. José María Díez Alegría draws attention to this reality in his work La ley natural en Luis de Molina y en la Escuela de Évora.3
Research on the Iberian Scholastic Literature Produced in Portugal and Brazil
The early modern scholastic literature produced in Portugal has not been the object of in-depth research, neither in Portuguese or in international historiography until very recently, as it will be shown shortly. In this sense, it is of the utmost importance to carry out a more intensive specialised approach where it is also possible to attend to terminological problems from the perspective of Latin philology, which is particularly suited to provide editions and translations.
Stegmüller, in his work Filosofia e Teologia nas universidades de Coimbra e Évora no século XVI, offers an indispensable sourcebook where he identifies unpublished manuscripts on philosophy and moral theology written in the context of early modern scholasticism in Portugal.4 By looking at such material it becomes obvious that there is a glaring absence of editions, translations and monographic studies concerning the Portuguese contribution within early modern scholasticism. Two projects have made headway in this, carrying out a survey of unknown Latin sources in the area of Portuguese legal history, philosophy and theology. These projects – Corpus Lusitanorum De Pace and De Restitutione5 – enabled the opening of new research paths, such as the one behind this book.
Four important works have been published in this context. On the subject of war and peace: A Escola Ibérica da Paz nas Universidades de Coimbra e Évora (século XVI) (English: The Iberian School of Peace in the universities of Coimbra and Évora). This volume presents a bilingual edition (Latin and Portuguese) of excerpts of unpublished treatises by Fernão Pérez, António de São Domingos (1531–1596), Pedro Simões (1539–1619), and Luis de Molina (1535–1600). On justice, power and slavery: The Iberian School of Peace at the Universities of Coimbra and Évora (sixteenth and seventeenth centuries): Writings on Justice, Power and Slavery.6 This work presents a brief introductory study and the edition and translation of unpublished texts by Fernão Pérez, Martín de Azpilcueta or Dr Navarrus (1492–1586), Fernão Rebelo (1547–1608) and Martín de Ledesma (?-1574).7 Another work is A Escola Ibérica da Paz, a consciência crítica da conquista e colonização da América, with a compilation of excerpts from lessons of these theologians and an extensive introductory study by António Cançado Trindade.8 Finally, more recently, a volume on the topic of restitution has been published with some unedited excerpts of Pérez’s De restitutione. The edition and translation included in that volume connects to the work of edition and translation included at greater length in this present book.9
Another visible result of these projects was also the awarding of the Capes Prize 2015 to a professor of International Law at the Amazonas State University, with a thesis defended at Rio de Janeiro Pontifical Catholic University.10 The designation ‘Iberian School of Peace’ was consecrated in the title of this thesis: The reconstruction of the collective subjectivity of Indigenous peoples in international human rights law. The rescue of the thought of the Iberian School of Peace (sixteenth and seventeenth centuries) towards a new ius gentium for the twenty-first century.11
Some legal theory works approach the contribution of theologians-jurists from Coimbra and Évora. Gradually it has become more recognised that when we speak of ‘School of Salamanca’ we refer to the group of theologians both from the University of Salamanca and from other universities in the Iberian Peninsula whose doctrines were closely linked, such as Évora and Coimbra. This group of theologians, from both Spain and Portugal, was for some time exclusively designated under the expressions ‘School of Salamanca’ and ‘Spanish School (or Scholasticism)’.12 Nevertheless, Martim de Albuquerque was one of the first historians, if not the first, who brought back to legal history the recognition of the strong Lusitanian presence in this school.13 When defending his doctoral thesis in Madrid, he was so keen to start using the expression ‘Peninsular School’ that a more comprehensive tone was gradually given to this expression, which identifies a community of masters and a body of doctrines shared by theologians in Spain and Portugal. In his work, O Poder Político no Renascimento Português (Political Power in the Portuguese Renaissance), Albuquerque identifies some of the theologians of the Peninsular School who taught in Portugal and he uses their texts on legal theory.14 In Jean Bodin in the Iberian Peninsula (1973) he explains the choice of this expression:
(…) there existed in the Peninsula, in political matters, an essential coherence of thought during the Golden Century which overflowed into the following century. The theological-legal school is there as a document. It is enough to recall in this regard (…) the significant fact that Aires Pinhel, Soares da Ribeira and Jerónimo Osório attended the university of Salamanca, where the first two also lectured, as well as the fact that our universities and our culture are indissolubly linked to three exponents of Spanish theological-legal thought: Martim de Azpilcueta Navarro, Luís de Molina and Francisco Suárez. The Spanish school of the Golden Century would be better called the Peninsular school, which, besides being more truthful, would have the virtue of highlighting the Hispanic ideological cohesion in the five hundredth era, a time when ‘the whole of Europe bowed its head and applauded the genius of the Iberian civilisation’, to use the words of Oliveira Martins.15
Ruy de Albuquerque, in his doctoral thesis (1972), deals with early modern Portuguese Scholasticism in depth, focusing on the specific matter of retaliation.16 He analyses these doctrines through direct contact with primary sources. In fact, according to a testimony transmitted by Martim de Albuquerque, Ruy de Albuquerque had the help of Latinists and palaeographers for the translation and transcription of the two codices in question. In this way, he presents considerable unpublished texts. Moreover, he is in a position to criticise historiographic studies on retaliation for their neglection of primary sources. This criticism is in line with the still-current need for legal historiography to rely on primary sources. This situation is typical of Portuguese archives, which hold documents of undeniable historical importance, but which remain in the shadows. In this sense, Ruy de Albuquerque qualifies the thinkers he addresses as the “forgotten ones of legal history”.17 Among the war theorists that Albuquerque mentions, Pérez is one of the internationalist jurists of the sixteenth century who defined the notion of retaliation and refuted pacifist doctrines, such as those of Luther. According to Luther, retaliation and war would be a revolt against God and a refusal of the divine punishments intended for the correction of men. Luther explicitly condemned even a defensive war. On the contrary, Pérez clearly opposed this view, supporting the right of retaliation in case of defensive war. Around this topic, Albuquerque cites Pérez’s De Bello and the commentary on questions 41 and 42 (II.II) of Aquinas’ Summa, together with the works of other theologians such as Pedro Simões and Luis de Molina.
Margarida Seixas’ thesis inserts the thought on slavery within the scope of labour law presenting several elements relevant to this study.18 Her work focuses mainly on the period between 1750 and 1878, but she also describes and analyses the sixteenth-century scholastic doctrines on slavery. Unlike other legal historians, Seixas recognises numerous elements of continuity between the early modern scholasticism and later doctrines and legislation. She supports such study by abundant historiographical documentation and provides elements of high interest for understanding the theological and legal debates on slavery. Another particularly useful element is the exhaustive survey of Portuguese legislation concerning slavery from 1211 to 1876 from which we perceive a relationship between theological-legal theory and norms concerning slave trade, not only in the colonies but also in the metropolis. As for Fernão Pérez, however, there is only one brief reference in Seixa’s work relating to one of his opinions on cases of conscience raised in Brazil. Although Pérez was one of the initiators of such reflection, the theologian is not even mentioned in the list of Iberian theologians who thought critically about slavery from the point of view of natural law and Christian morality.
Still within the scope of legal history, Ana Fouto dedicated her PhD to the genesis of fundamental rights in the discourse of the early modern Portuguese scholasticism.19 She offers an in-depth and innovative study on the contribution of this school to legal science, with ample and direct recourse to primary sources. Her pioneering approach was particularly useful for this work, especially as it takes into account the progressive way in which the doctrine of subjective law was formed from the Middle Ages to the Modern Ages. There are two references to Pérez which, although brief, are significant. He is mentioned among the masters of Évora whose work had a tangible weight in modern theological and legal dogmatics on war and slavery. Fouto refers specifically to a definition of dominium as potestas moralis present in the treatise De restitutione that was inherited from Francisco Suárez (1548–1617). This had already been noted by Diéz Alegría.20 Based on Guzmán Brito’s study, she comments on Pérez’s use of the definition of dominium developed by Gerson (1363–1429) and Summenhart (1455–1511).21 The reference to Pérez is accompanied by a biographical summary and by a survey of his treatises, based on the information provided by Stegmüller and Díez Alegría.22
In the philosophical field, I would like to highlight two studies. Firstly, in the work Da Origem Popular do Poder ao Direito de Resistência [From the Popular Origin of Power to the Right of Resistance], Pedro Calafate reflects at length on seventeenth-century Portuguese political doctrines.23 Although the work focuses primarily on the democratic origin of power and on resistance, it still provides relevant elements for the framework of the sixteenth-century theological-legal doctrines on dominion and slavery. Secondly, Paula Oliveira e Silva has an important article in which she analyses some sixteenth-century commentaries on the Summa on issues related to the ius gentium.24 Among the Iberian theologians, she addresses the still little-known work of two masters from Coimbra and Évora: António de São Domingos and Fernão Pérez.
In the area of history, a doctoral thesis was published in Brazil which analyses in depth the heated debates held by Jesuit theologians and missionaries in Portugal and Brazil in the sixteenth century (by Carlos Zerón, Line of faith, the Society of Jesus, and slavery in the formation process of the colonial society (Brazil, sixteenth and seventeenth centuries)).25 This was the only work I found with an in-depth and documented study completely focused on early modern Portuguese debates on slavery. It focuses mainly on the case of indigenous slavery in Brazil and less so in the metropolis. It includes a transcription, in the appendices, of one of Pérez’s written opinions that had been kept unpublished until then in the Library of Évora. This opinion is very briefly mentioned by Machado Cabral (2020) in a book published by Brill.26 Zeron’s study and the article by Santos,27 which we will refer to later, are to our knowledge the only academic works in which Pérez’s thought is discussed in depth, referring specifically to the De restitutione and not only to the De bello, as is more often the case in other studies.
Zeron (2011) places Pérez at the beginning of the theological-legal debates about dominium and seruitus in Portugal. He analyses in depth how this debate developed in the Portuguese context, identifying Martín de Ledesma28 and Martín de Azpilcueta as its initiators. He stresses, however, that their contribution consisted mainly in the fact that they were the first vehicles of the Salmantine influence in Portugal, considering that their reflection had focused only on marginal aspects of slavery. It is in this respect that he goes so far as to state that “it was only with the Jesuit Fernão Pérez (…) that a Portuguese tradition of reflection on both theological and juridical aspects of dominion and slavery really began, his doctrine having caused a lasting echo throughout the whole of the seventeenth century, thanks to the return of his theses in the treatises on the laws of Fernão Rebelo and Luis de Molina”.29 Although Zeron’s study makes good use of manuscript sources and knowledge from them, the historian shows he is unaware of other works by theologians contemporary to Pérez who approached the same subject in the same way. This was the case of António de São Domingos (1531–1596), Pedro Simões, and Cosme de Magalhães (1551–1624), in their treatises De restitutione preserved in the BN.30 It would then be more accurate to look at Pérez as having been one of the initiators, in Portugal, of a tradition of thought on seruitus that was both theological and juridical. Although we cannot consider Pérez alone as the first theologian to introduce such reflection, we can nevertheless state that, if we base ourselves on a comparison of the De restitutione treatises of the theologians mentioned, his manuscripts certainly occupy the most substantial part regarding the specific matter of servitus. Regarding the manuscripts which survived, while Cosme Magalhães and António de S. Domingos devote eleven folios to this subject, and Pedro Simões only six folios, Pérez devotes fifty-eight folios to it, distributed between the two manuscripts.
Maurício dos Santos (1977) refers to Pérez stressing precisely the need of studying him. He is specifically interested in Pérez’s thought on slavery, transmitted in De restitutione. In fact, almost all the authors who have come into contact with the work of this theologian-jurist emphasise that slavery occupies a significant place in what has come down to us from his teaching in the treatises on restitution. Santos underlines Pérez’s influence on Fernão Rebelo and Luis de Molina and even considers him the probable initiator of a doctrine and scheme that would be preserved for a long time at the University of Évora. In his article “The University of Évora and Slavery”, Santos highlights the role of scholars like Pérez in the “peaceful revolution of mentality” carried out at the time when slavery was a widespread phenomenon. He also refers to Pérez as the “probable initiator of a doctrine that will be maintained for two centuries in the great University of Alentejo”.31 He places the Cordovan master among the leading figures of the school of Alentejo, alongside Luis de Molina, Fernão Rebelo, Estevão Fagundes and João Baptista Fragoso.
Most of those who look into the teachings of early modern scholasticism in Portugal only mention Luis de Molina and Francisco Suárez, although Pérez had undeniable weight. He exerted influence on various masters of the Iberian school, such as Luis de Molina and Fernão Rebelo, and when he moved to Coimbra, his doctrine continued to be the object of attention of the masters and students of Évora.32 Although he is practically unknown, even within legal history, he is at the beginning of the tradition of theological and legal reflection on dominion and slavery,33 and he influenced legal, philosophical, and theological debates in the sixteenth and seventeenth centuries.
José María Díez Alegría analysed the doctrine of natural law in the work of some masters of the University of Évora contemporary to Molina,34 including the manuscripts with treatises De restitutione by Pérez. He explains that, although these treatises were not taught in Évora, they maintained a close relationship with the school of Évora. Pérez not only taught at that university for a significant period of time, but the fact that these manuscripts belonged to the University of Évora shows the interest that the doctrine of the Cordovan theologian continued to arouse in that milieu and the influence it continued to exert on the Évora academy. Díez Alegría, however, regrets the lack of originality and the conservative spirit of Pérez in his treatment of the doctrine of natural law by limiting himself almost exclusively to reproducing the teachings of Domingo de Soto.
Paula Oliveira e Silva refers briefly to Pérez’s thought in an article in which she analyses works commenting on Thomas Aquinas’ Summa Theologica, specifically, II. II, q. 57. She briefly notes that the theme of slavery was developed in a particularly substantial way in Pérez’s De restitutione. However, she is particularly interested in one detail: the change in the subject of the natural or positive foundation of the ius gentium. In this regard she refers to Fernão Pérez, Francisco de Vitoria, Melchor Cano, Domingo de Soto and Antonio de São Domingos. Nevertheless, her reading of Pérez’s doctrine does not correspond exactly to his thinking on a point that I consider central to the assessment of his contribution. Contrary to what she affirms, Pérez clearly states that the ius gentium belongs to positive law and not to natural law, which marks a significant difference with Vitoria’s doctrine.
On the Relationship Between Theology and Law
Paolo Prodi’s A History of Justice offers a very complete study on the relationship between theology and law in the European tradition over a period of two millennia.35 He describes in detail how, within this school of thought “a vast system of interpretations produced a very refined casuistry and put into circulation the great notions around illegal action, the concept of guilt, the cases of exemption from liability.”36 Prodi notes how Francisco Suarez, defining “civil jurisprudence as an extension of moral philosophy, destined to govern the customs of the republic”, attributed to moral theology the task of resolving all matters related to natural law, i.e., everything that would serve to “discern the honest from the trivial”.37
This phenomenon, in the early modern period, more specifically, has been the object of many of Wim Decock’s publications, where deep attention has been given to the way in which early modern moral theologians shaped western legal history. His book Theologians and Contract Law (2013) shows how commercial transactions were systematically regulated in early modern moral theology, and it describes in detail the idiosyncratic, syncretic, sophisticated and complex work of the moral theologians, explained by their concern for the salvation of souls. The book analyses legal principles developed by the moral theologians, such as ‘freedom of contract’.38 An article by the same author focusses on the specific role of the theologians in market regulation – e.g., by fixing prices and laws about importation and exportation – and in “enforcing obedience to temporal authorities” (Decock, 2017).39 Another study by Decock is dedicated to the impact that the early modern scholastics had on private law in the western world through their treatment of principles around property and obligations. Focussing on the specific contribution of Leonardus Lessius, Decock shows that the current scholarship on legal history has not been able to do enough investigation “on the reception of scholastic discussions on property, torts and contracts”,40 and on the “more technical-juridical questions in the field of property law that were thoroughly discussed by the scholastics”.41 The study is included in a chapter of The Oxford handbook of European legal history (2018).42
Also very valuable is Duve’s and Danwerth’s book Knowledge of the Pragmatici. Legal and Moral Theological Literature and the Formation of Early Modern Ibero-America (2020).43 They stress the pragmatic nature of moral theology in the sixteenth century, showing why such production was “of special significance for governing an empire (…)”, “for the everyday administration of justice and decision-making”, how it contributed to build an immense body of normative knowledge in the Western tradition, how the early modern scholastics were “deeply immersed with practice and real life”44.
Barbas Homem (2015) also lists some specific features of the dynamics that we will be observing: the “priority of theology over law”, the “primacy of duties over rights, therefore of morality over law” and the “real impact of these authors on everyday life and law.”45 He observes the continuity with a procedure already verified in the Middle Ages, “how in the Western legal tradition, since the Middle Ages, natural law had been invoked as a ground for revoking ancient social customs and practices, but which were nonconforming to legal rationality.”46
Vera Cruz Pinto (2005) notes how the Iberian scholastic doctrines “gave primacy to ethics and morality over politics and affirmed the primacy of justice in the realisation of law.”47 Relating such doctrines to the context of expansion, he argues that such doctrines consisted of the “theorization of the legal order of an international community based on new ethical assumptions opened by the Caravels”.48
The intimate union between theological science and legal science, very well reflected in Pérez’s treatises, led my attention to the expression “theologian-jurists” used by Venancio Carro – in a study confined to the Hispanic sphere49 – and which Barbas Homem also applied to the Portuguese part of the Iberian Scholastic School.50 In these terms, both authors referred, not to mere theologians, but to masters of moral theology who, from that same discipline, “occupy themselves of juridical subjects, under the justification that positive law is bound to natural law and that this in turn is based on the eternal law perpetually instituted by God over all things.”51 Pimentel (1995) and Fonseca (2010), in a similar sense, alluded to “theojurists”, an expression that in my opinion does not seem so appropriate since the first root of the word – ‘theo’ – only means ‘God’ and not ‘those who study God.’52 The former term more accurately expresses that those who studied both God and morality, were simultaneously studying law. In both cases, however, the intention is to highlight the contribution of these masters who did not merely become theologians, but who, in their academic teachings of moral theology, created a broad doctrinal framework about institutions and concepts that are central and structuring to modern legal dogmatics.
Carl Schmitt observed this same phenomenon commenting on the opinions of some contemporary philosophers such as Gottfried Leibniz (1646–1716), Hans Kelsen (1881–1973) and John Stuart Mill (1806–1973). These philosophers also noticed the many similarities and analogies between theology and legal science, the “double principle” of both sciences (reason and scripture), and their same reasoning pattern. Schmitt, in observing the proximity between the two sciences in this way, had in mind precisely the specific contribution of the Iberian Scholastic School.53 He considers that the early modern scholastic concepts continued to operate in a latent way, in an already secularised sphere and that they lost some of their strength along this process.54
In his doctoral thesis The conscience of an empire (2012), Giuseppe Marcocci takes a broad approach to some aspects of the overseas experience, including slavery. He looks at the events of the expansion looking at the critical awareness that they raised in the main Portuguese intellectual centres between the end of the fifteenth to the middle of the sixteenth centuries. He reacts to the scant research on the Portuguese Empire that he considers to be verified to date, in contrast to the abundance of studies on the Spanish experience. In his opinion, specifically in Portuguese studies, there are important overviews of Portuguese expansionism, but these efforts are still quite insufficient. I agree with the idea that the intellectual history of the Modern Age would deserve a greater number of wide-ranging reflections and new investigations that relate such fundamental elements as the relationship between religion and conquest, conscience and politics, faith and empire. In fact, the intimate relationship, and almost fusion, between the civil and ecclesiastical spheres and the feeling of strong belonging to Catholicism felt by the monarchy had decisive consequences in defining the legal bases of a vast Empire, and in the intellectual history not only of Portugal but also of Europe.55 Moreover, Marcocci mentions a characteristic of Portuguese sixteenth-century society which seems relevant to understand the prominence of theologians in the debates about slavery, the phenomenon of “regulated communication” (2012). The Portuguese court, being one of the main intellectual centres of the country, interfered much more than the Spanish one in the production of ideas. Moreover, in the context of religious zeal professed at court, and of inquisitorial censorship, written production about the empire was almost restricted to the work of theologians or to the poets and chroniclers of the court, that is, only to a cultural elite.56 This phenomenon of the regulation of communication and servility in the production of ideas is more thoroughly explored in Marcocci’s work with regard to the theologians of the court and not so much with regard to the writings produced within the Iberian Scholastic School, which would deserve a separate investigation.
Although the thought of the scholars of the early modern Iberian Scholastic School proved decisive in the emergence of modern natural law and in the affirmation of a universal legal consciousness, their mention is still often neglected in historiographical narratives explicitly devoted to human rights. Sometimes the common sequence in the human rights research – Magna Carta, Bill of Rights and the Enlightenment – is referred without mentioning the contribution of early modern scholasticism. Scholars sometimes mention, at least, Bartolomé de Las Casas (1484–1566), Francisco Vitoria (1483–1546), and, occasionally, other figures of the early modern scholastic school, but normally the ones who were based in Spain. In fact, in general, even in texts which do not omit the Iberian contribution, there seems to be an ignorance of scholastic sources produced in Portugal. As we saw earlier, also among the abundance of Spanish research on early modern scholasticism, references to the Portuguese contribution are almost generally restricted to Francisco Suárez, sometimes including Luis de Molina and Fernando Vázquez de Menchaca.
A study by Decock and Birr (2016) provides a wealth of information on what has been recognised in modern scholarship regarding the contribution of the early modern scholastics in areas which undoubtedly connect to current issues of human rights, such as immigration, cosmopolitanism, state sovereignty, and global capitalism.57 Decock and Birr refer to a broader list of early modern scholastics than what is usually presented in other bibliographies of the same kind. They mention the theologians who taught in Spain, Portugal, Low Countries, and Italy: Francisco Vitoria, Diego de Covarrubias y Levya (1512–1577), Martín de Azpilcueta, Fernando Vázquez de Menchaca (1512–1569), Francisco Suárez, Luis de Molina, Leonardus Lessius (1554–1623), and Roberto Bellarmine (1542–1621). This study shows how the early modern scholastics shaped different legal spheres: international law (law of war, slavery), private and commercial law (restitution, contracts, liability, tort law, borrowing, insurance services), criminal and public law (principles of guilt, public punishment, crime, penal laws), political thought (legitimation of tyrannicide, the right to resist, ecclesiastic power in temporal affairs), etc.58
Other important scholars in this field deserve being mentioned: Nils Jansen (Theologie, Philosophie und Jurisprudenz in der spätscholastischen Lehre von der Restitution. außervertragliche Ausgleichsansprüche im frühneuzeitlichen Naturrechtsdiskurs, 2013), Lidia Lanza and Marco Toste (Summistae, the commentary tradition on Thomas Aquinas’ Summa Theologiae from the 15th to the 17th centuries, 2021), James Gordley (The jurists: a critical history, 2014), and Luisa Brunori (“Late scholasticism and commercial partnership: persons and capitals in the sixteenth and seventeenth centuries”, 2017).
In Historia de los derechos fundamentales, Gregorio Peces refers to the contribution of sixteenth-century Spanish theologians, inserting it specifically into the history of human rights and focusing on Francisco de Vitoria and Bartolomé de Las Casas. In my opinion, some of his statements could also be applied to those scholastics who taught in other different points of Europe. It was common to early modern scholastic legal-theological culture in general, to “affirm that order of values and principles prior to positive law, which must underpin, guide and critically limit all legal norms”.59 For Peces, “what makes the legacy of our classics of legal-political thought more valuable and valid (…) is their outstanding contribution to the development of a rationalist and humanist iusnaturalism of democratic nature, which made possible the genesis of modern human rights and the rule of law”.60 As a consequence of this, the author stresses the importance of proceeding to a fair evaluation of these authors in order to invalidate the claims of those who, “from a supposedly progressive position, accept those preconceived stereotypes and advocate making a clean sweep of our past, to seek in imported models a legitimisation of freedoms and democracy, which their short-sightedness makes them discard from our authentic tradition”.61
Corpus Lusitanorum de Pace: a contribuição de Portugal para a Escola Peninsular da Paz (séculos XVI e XVII)” (PTDC/FIL-ETI/119182/2010); “De Restitutione: A Escola Ibérica da Paz e a ideia de Justiça na Ocupação da América” (PTDC/MHC-FIL/4671/2014), com apoio de fundos nacionais da FCT, Fundação para a Ciência e a Tecnologia, I.P.
Decock and Birr 2016, 3–31, 97–100.
Diez-Alegría 1951.
Stegmüller 1959.
Corpus Lusitanorum de Pace: a contribuição de Portugal para a Escola Ibérica da Paz (séculos XVI e XVII), coordenação de Pedro Calafate, FCT/CFUL: PTDC/FIL-ETI/119182/2010; De Restitutione: a Escola Ibérica da Paz e a ideia de justiça na ocupação da América (século XVI), coordenação de Pedro Calafate, FCT/CFUL, PTDC/MHC-FIL/4671/2014. Both directed by Pedro Calafate and coordinated by Ana María Sánchez Tarrío (University of Lisbon).
Calafate 2015.
In the Bibliotheca Hispana Nova only the date of death is indicated. We cannot find the date of birth either in this work or in any other source. Antonio 1783, 386.
Calafate and Mandado Gutiérrez 2014.
Calafate and Ventura (eds) 2020.
Award for the best PhD thesis in Law defended in Brazil.
Loureiro 2015.
Carpintero Benítez 2003, 341–73.
Albuquerque 1978.
Ibid.
Albuquerque 1978, 73.
Albuquerque 1972.
Albuquerque 1972, 78.
Seixas, 2016.
Fouto 2016.
Diez-Alegría 1951
Guzmán Brito 2009.
Stegmüller 1959.
Calafate 2012.
Silva 2011.
Zeron 2011.
Machado Cabral 2020, 174.
Santos 1977.
With his work Secunda quartae (Coimbra, 1560).
Zeron 2011, 268.
See: António de São Domingos, Cod. 5256, Tractatus de Restitutione et de Uoto. (1591); Cosme Magalhães, Cod. 5995, Compendium de Materia Restitutionis (1589); Pedro Simões, Cod. 3858, In Materiam de Restitutione (1577).
On biographical data see: Machado, vol. I and II, 1965; Calafate and Gutiérrez, 2014.
Santos 1977, 164–166.
Diez-Alegría 1951.
Santos 1977; Zeron 2011.
He discusses the work of Luis de Molina, Inácio Martins, Pedro Luis, Gaspar Gonçalves and Luis Cerqueira. About Pérez see: José María Díez-Alegría, 1951, 130–37; 26.
Prodi 2002.
Prodi 2002, 358.
Prodi 2002, 380.
Decock 2013, 21–104.
Collaborative Legal Pluralism, confessors as law enforcers in Mercado’s advice on economic governance (1571) 2017, 101–113.
Decock 2018, 629.
Ibid., 614.
Ibid. The chapter is entitled “Law of property and obligations, neoscholastic thinking and beyond”, 611–631.
Duve, Thomas, Danwerth, Otto 2020, 1–39.
Ibid., 3, 17.
Barbas Homem and Brandão 2015, 75.
Ibid., 84.
Pinto 2005, vol. II, 261.
Ibid., 265.
Carro 1951.
Barbas Homem and Brandão 2015.
Ibid., p. 76.
Pimentel 1995, 134–43; Fonseca 2010, 39.
Schmitt, 2005, 37–38, XXIV, XXV.
Ibid., 37–38, 40–41.
Marcocci 2012; Decock 2017, 103–114.
Marcocci 2012, 33, 426, 225.
Decock and Birr 2016, 77–97.
Ibid., 79.
Peces-Barba Martínez et al. 1998, 512.
Peces-Barba Martínez et al. 1998, 555.
Ibid., 561.