In the first part of this essay we explained how conventional human rights theory is, in principle, incompatible with Catholic Social Thought (CST) because it is premised on individualism and rejects the common good. However, CST in fact engages and supports human rights discourse through official Vatican statements on socioeconomic and political matters. We then propose remedying this theoretical inconsistency by referring, instead of Enlightenment doctrines, to de Vitoria’s teachings on ius gentium as a source for a theory of human rights squarely within the Catholic social tradition.
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For the 16th Century theologian Francisco de Vitoria, ius gentium contains rights in which individuals and peoples are on equal standing because they are based on common human nature, not on religious, political, or cultural grounds. Further, these rights are reciprocal, meaning subjects can claim them from each other while affording them to one another.
The cornerstone right justifying European settlement in the New World is the ius communicationis (“right to communicate”), derived from the inherent sociability or relationality of human nature. More than just the freedom of speech, it entails the right to communicate meaningfully for mutual enrichment, as a way to discover the truth and to build a universal community of peoples (orbs). The ius communicationis implies, among others, the ius peregrinandi et degendi (“right to travel and to engage in business”), constituting a defense of free trade and markets prior to Adam Smith.
For de Vitoria, being a Dominican friar after all, it also includes a right to preach; but one which equally supports not only the proclamation of the Gospel, but also the propagation of other faiths, such as Native American beliefs, for no one in conscience can be forced to believe.
The ius gentium also provides for a right to self-rule among peoples and to choose those who govern. In de Vitoria’s understanding, once there were sufficient Christian converts in the New World, that would justify constituting a separate political community and choosing leaders from their own ranks. There is likewise a right to oppose tyranny and serious injustice. No ruler possesses absolute sovereignty over subjects as everyone is equally bound by Natural Law. Europeans would have a right to intervene and stop the practice of human sacrifices, for instance, despite being sanctioned by some Native American polities. Related is the right to form and preserve alliances, such as the one Spaniards formed with the Tlaxaltecs, which eventually led to war and the defeat of their common enemy, the Aztecs.
How is ius gentium related to other bodies of law? De Vitoria situates it between Natural Law and positive or man-made civil law. Ius gentium makes explicit certain demands of Natural Law, for example, the need for a just distribution of property, if people are to live in peace and harmony in communities, as they are naturally inclined. However, ius gentium does not specify how exactly the just distribution of resources is to be carried out, leaving that instead for civil law to determine. Unlike Natural Law, ius gentium also requires (near) universal consensus, while acknowledging that the nature and content of an agreement may undergo a certain evolution. Think of rights over commons such as the sea, to harness resources, for travel, and trade.
Similarly, ius gentium is considered a forerunner of International Law, albeit with notable differences. Firstly, ius gentium recognizes both individual persons and political communities as subjects, while modern International Law only recognizes States. Secondly, and in consequence, individuals are completely subject to state sovereignty, which according to International Law, at least in theory, is absolute.
This means States can do whatever they want with their citizens, even abusing them, and other States would have no right or duty to intervene. In principle absolute sovereignty indicates that States do not respond to any authority higher than themselves.
Certainly, this is not the case with ius gentium. There is no such thing as absolute sovereignty for States, because they are all equally bound in their actions and those of their leaders by the common good of the orbs, the universal family of peoples. Remember they belong to the orbs not by treaty but on account of common human nature. Moreover, the Natural Law acts as another safeguard or limit to what counts as legitimate or just state action.
Therefore, reliance on ius gentium as basis for human rights has numerous advantages compared to Enlightenment theories and the UN-sponsored universal declaration. And this is true for all, not only for Catholics.
Ius gentium furnishes human rights with a solid normative foundation (unlike the UN-sponsored declaration) which is not contractual (unlike Enlightenment theories). It acknowledges a personalist view of the human being as a free and rational subject who is not only individual, but also social or relational. Because of this, ius gentium puts forward a robust and authentic notion of the common good, as opposed to the mere satisfaction of individual, mainly material preferences. States are not just instruments or coordinating mechanisms to purportedly maximize individual wellbeing through an equitable distribution of resources. Rather, they are true political communities constituting the horizon for flourishing.
According to ius gentium, rights are not absolute powers individuals wield against each other, with the support or guarantee of States. They are, above all, the social recognition of needs based on nature for people to jointly achieve flourishing, freely and deliberately, as a common good. Neither do States possess absolute sovereignty, as they are all equally subject to the demands of the common good of the orbs.
Ius gentium respects the separation and autonomy of religious and temporal realms, and looks instead to human nature for its grounding. Because it is based on nature, insofar as ius gentium is concerned, all people and political communities are equal and possess the same rights. It encourages participation and acknowledges the value of consensus and agreement in formulating its precepts.
In advancing ius communicationis (“right to communication”) as the cornerstone right, ius gentium, among others, advocates a healthy and positive outlook for trade, business, and the economy. Markets are seen as institutions that promote the free circulation of people, ideas, and goods, all of which can foster a sense of community among humankind. Businesspeople can be understood to provide a service, such as preventing scarcity, whenever they engage in commerce free from force or fraud. Profits, then, are legitimate and form part of the “just price” of goods, which cover not only the costs of production, but also the opportunity costs (supply relative to demand, risks, and so forth) borne by entrepreneurs.
At this point, we can hardly grasp the import of human rights founded on ius gentium for the numerous global ethical issues we now face. In the case of Asia Bibi in Pakistan, it could argue against the mutual instrumentalization that occurs between political and religious institutions to maintain positions of power. Besides religious and conscience rights (especially of minorities), it could also demand equality with other faiths and reciprocity with other States. With regard to migration, ius gentium helps examine the phenomenon as a natural response to crises and an innate desire for peace, security, freedom and greater opportunities. Migrants are fellow human beings who need help, not political bargaining chips or weapons. They need to be welcomed, protected, promoted and integrated in their new communities. None of this precludes trying to solve the multiple problems (environmental, economic, social, and so forth) that led to migration at their source, or host countries renouncing peace and order in their own territories or giving up their cultural identities.
Perhaps the greatest stumbling block to a ius gentium-based human rights regime is the same one encountered by the drafters of the UN declaration. That is, the lack of agreement on the grounds of such teachings.
We are now aware of the limits of a pragmatic response as the need for a foundation of human rights continues to resurface, each time with greater urgency. The time may have come to shake-off the pervasive pessimism that holds us back. Instead, we should seriously consider the power of human reason to arrive at truths, not only theoretical, but also practical or moral, and begin to work on that premise. The Catholic social tradition of which ius gentium forms part has no other purpose than to help in these efforts. It may not be easy, but we first have to convince ourselves that it’s not impossible.
Alejo José G. Sison teaches at the School of Economics and Business at the University of Navarre and investigates issues at the juncture of ethics, economics and politics from the perspective of the virtues and the common good. For the academic year 2018-2019, he is a visiting professor at the Busch School of Business at the Catholic University of America. He is an editor of the recently published “Business Ethics: A Virtue Ethics and Common Good Approach” (Routledge 2018). He blogs at Work, Virtues, and Flourishing from which this article has been republished with permission.