The School of Salamanca

Project management: Prof. Dr. Dr. Matthias Lutz-Bachmann

The research background of the sub-project “The School of Salamanca” was the question of how international law is compatible with heterogeneous legal practices. To this end, the work of the sub-project “The School of Salamanca” focused on the beginnings and foundations of a global normative order and examined the development of the theory of the international legal order following Francisco de Vitoria (1483-1546). His reflections, inspired by the Reformation, humanism, the discovery and conquest of the “New World”, revolve around the conception of a new global normative order that takes into account the plurality of political forms of communitization. A differentiated understanding of the legal character of that order brings them into a tension between positive law and natural law: on the one hand, the substantive justification and the establishment of the binding force of the ius gentium is formulated in terms of rational law and every human subject is described as capable of understanding these norms and obliged to comply with them. On the other hand, a concept of positive law and a great sensitivity for the specificity of the legal form are (further) developed, which testify to a precise knowledge of factual legal relationships and processes. In the systematic discussion, however, it became apparent that the assumption of a rational-legal validity of the basic norms of international law collides with the fact of cultural difference and the heterogeneity of human legal practices. The idea of a positivization of the general law of reason also proved to be precarious, since essential institutions of positive law are lacking in the area of international law. Against this backdrop, a systematic examination of Vitoria’s theory appeared to be particularly important in addition to the theoretical-historical reconstruction of this powerful but as yet inadequately recognized theory. In addition to the fundamental questions about the infrastructure, conditions of validity and character of this normative order, a number of more specific questions arose, such as the concepts of statehood and legal subjectivity, the authority of law and various institutions, and the concept and role of human rights.

In the course of the project “The School of Salamanca”, two focal points crystallized: On the one hand, Francisco de Vitoria’s philosophy of law, in which the traditions of theology, humanism, political philosophy and jurisprudence come together in a unique way. In Vitoria’s work, the inclusion of secular and proto-positivist motifs is interwoven with a normative embedding in the context of a concern for the imperfection of man and for the necessary normative structures of legal systems in general. Against this background, it was worked out how Vitoria describes the object of regulation of law, its addressees and the institutional aspects of the administration of justice and the generation of law, as well as the overarching dimension of the validity of law as such. The second focus was on the relationship between the conceptualization of a legal community and the validity and binding force of the law applicable in this community, and this was related to international law and the conditions of validity in international relations. This connection was presented in several articles by various authors: Francisco de Vitoria’s is a republican concept, according to which the norms of international law must, as a rule, be adopted as positive resolutions of a worldwide assembly. In order to deal with the discrepancy between this validity structure and the de facto absence of a global legislator, Vitoria proposes a distinction between auctoritas and potestas, whereby the latter denotes a certain, also limited and legitimized official power, while the former refers to a relationship between the common good, collective practical rationality and the legal order. For Domingo de Soto, political-legal competences arise above all from the quasi-organic constitution of a collective body – such a constitution is not conceivable for international law, which is why it can only bind state leaders on the individual basis of an obligation of all rational beings. Finally, Alberico Gentili replaces this naturalistic perspective with Bodin’s theory of sovereignty; for him, too, the pinnacle of legal competence is already reached at the level of individual communities. The global community, which he also cites as justification, plays the role of a moral idea that has global implications, but which cannot be enforced by law. In both focal points, it was possible to trace revealing lines of the connection between legal norms, also in the modern sense, with the collective constitution of social practice and with normativity in general. In addition to insights into the normative internal structure of the systems of legal order, conclusions could also be drawn about the inherent logic of the legal order in comparison to other normative orders and their discourses – such as theology or politics.
The sub-project has demonstrated a close systematic connection between the legal and institutional constitution of a (global) legal community and the validity of the legal norms that apply within it, and it has shown that this connection was already perceived and discussed in the early modern period. However, the differentiated nature of the approaches at the time makes it clear that the early modern positions can by no means be identified so clearly with one another or with a simple distinction between “still medieval” and “already modern”. In terms of the history of ideas, the desideratum of an in-depth examination of the various currents of early modern legal philosophy, their internal structure and their respective relationship to other cultural, scientific and economic developments has clearly emerged and been confirmed by the scientific community. From a systematic point of view, in addition to the moral thesis of a global community of values, which is central to current discussions, alternative variants of the construction of a global legal community could be outlined, which do not already operate with the transfer of a model of sovereignty copied from the individual state to the global scale; the role of legal fictions could be considered here as well as that of intermittent institutions. While we certainly cannot claim any fully developed developments of these ideas in the early modern period that are sufficiently well-founded for today’s constellations, they were more than just hinted at and associated and discussed with a whole series of theoretical and practical problems. In this sense, research into the history of ideas also lends support and emphasis to systematic efforts to think further in these areas.

However, the aforementioned connections to the history of ideas and systematic considerations require further and deeper research before statements can be made about their entry into current fields of application. The long-term edition and dictionary project “The School of Salamanca. A digital source edition and a dictionary of its legal-political language” at the Academy of Sciences and Literature in Mainz is the result of this desideratum in terms of the history of ideas. Similar undertakings for other discourse traditions (e.g. Protestant natural law or the discourses of reason of state) as well as the networking of such projects are absolutely desirable. From a systematic point of view, the project suggests research into the constructive achievements of global legal discourse (as such) as well as the linking of intermittent, particular and imperfectly legitimized institutions back to the constitutional and legitimation structures of comprehensive communities. It would make sense to link these questions to the current discussions on weak statehood, compliance and constitutionalization.

In the course of the sub-project’s research, an intensive dialog developed with international researchers in the specialist field of the “School of Salamanca”. Various conferences and workshops were held to facilitate in-depth collaboration. The work on the main topic of the sub-project was reflected not only in the concrete research results of the participating academics, but also in several publications based on individual conferences on the topic. The conference “Francisco de Vitoria and the Normativity of Law” held in Frankfurt am Main in December 2008 was followed by the volume: Bunge/Spindler/Wagner (eds.), Die Normativität des Rechts bei Francisco de Vitoria, Stuttgart-Bad Cannstatt 2011. The conference “Die Normativität des Rechts in der spanischen Spätscholastik” held in Bad Homburg in December 2009 was followed by the publication Bunge/Schweighöfer/Spindler/Wagner (eds.), Kontroversen um das Recht, Stuttgart-Bad Cannstatt 2013.
Thanks to close cooperation with the Interdisciplinary Research Cluster on “Human Interactions and Normative Innovation” at the University of Washington and the sub-project, several workshops and working meetings were held in Frankfurt and Seattle. This collaboration resulted in the volume: Matthias Lutz-Bachmann/Amos Nascimento (eds.) “Human Rights, Human Dignity, and Cosmopolitan Ideals. Essays on Critical Theory and Human Rights”, Ashgate 2014.

For the young researchers, the dialog and scientific collaboration with other junior research groups was of great importance for the further development of their research projects. By forming a research network around the questions of beginnings and the foundations of a global normative order, a lively exchange was initiated in the form of workshops and meetings. The working group was made up of young researchers from the “Interdisciplinary Center for the Study of the European Enlightenment” at the Martin Luther University Halle-Wittenberg, the Otto Friedrich University in Bamberg and the Institute for Theology and Peace in Hamburg. A lasting collaboration was formed, which resulted in the conference “The Concept of Law between Metaphysics, Theology and Political Philosophy” from 10 to 13 September 2013 in Bamberg.

The formation of these various research networks has not led to a deviation from the initial question, but rather to a significant expansion of the research horizon of the sub-project staff and to an enrichment of the original concept in terms of content.
Cooperation partners during the project period were: Prof. James Bohman, Professor of Philosophy at Saint Louis University, USA, Mr. Bohman’s stay as a Fellow of the Cluster of Excellence at the Forschungskolleg Humanwissenschaften from June-July 2010, topic of the collaboration: “Normative Problems of Complex Political Systems”; Prof. Bill Talbott, Professor of Philosophy at the University of Washington in Seattle, USA, Mr. Talbott’s stay as a Fellow of the Cluster of Excellence at the Forschungskolleg Humanwissenschaften from April-May 2011, topic of the collaboration: “The Normative Ground of the Validity of Human Rights”; Prof. Merio Scattola, Universita degli Studi di Padova, Bogota, Colombia, Fellow of the Cluster of Excellence from October-December 2010, topic of the collaboration: “The Normative Ground of the Validity of Human Rights”. Merio Scattola, Universita degli Studi di Padova, Bogota, Colombia, Fellow of the Cluster of Excellence from October-December 2010, topic of the collaboration: “A Model History of Natural Law in the Early Modern Period” and Prof. Amos Nascimento, University of Washington, Tacoma, USA, topic of the collaboration: “The Normative Ground of the Validity of Human Rights”.

The qualifications achieved in the course of the projects are Mr. Andreas Wagner’s doctorate in 2008 on the topic “Recht, Macht, Öffentlichkeit. Democratic Theory between Institutions and Communication” (published in 2010 as Law – Power – Public. Elements of democratic statehood in Jürgen Habermas and Claude Lefort Series: “Staatsdiskurse”, Volume 8, Stuttgart: Franz Steiner Verlag) and Ms. Kirstin Bunge’s doctorate in 2013 on the topic: “Rechte zwischen Gleichmaß und Gleichheit. On Francisco de Vitoria’s philosophy of law” (published in 2017 as Equality and Equitability. Equality and Equitability. On Francisco de Vitoria’s philosophy of law , in the series: “Politische Philosophie und Rechtstheorie des Mittelalters und der Neuzeit”, Reihe II, Band 7, Stuttgart: frommann-holzboog.).

Other key publications of the project were: M. Lutz-Bachmann, “Das Recht der Autorität – die Autorität des Rechts. Rechtsphilosophische Überlegungen im Anschluss an Francisco Suárez”, in: Gideon Stiening, “Auctoritas omnium legum” Francisco Suárez’ ‘De Legibus’ zwischen Theologie, Philosophie und Jurisprudenz’, Stuttgart Bad Cannstatt 2012, 139-156; A. Wagner, “Zum Verhältnis von Völkerrecht und Rechtsbegriff bei Francisco de Vitoria”, in: Bunge/Spindler/Wagner (eds.), Die Normativität des Rechts bei Francisco de Vitoria, frommann-holzboog, 2011, 255-286; A. Wagner, “Die Theologie, die Politik und das internationale Recht. Vitoria’s Speaker and Actor Roles”, in: N. Brieskorn/G. Stiening (eds.), Francisco de Vitoria’s De Indis in interdisciplinary perspective. Stuttgart: frommann-holzboog, 2011, 153-170; A. Wagner, “Francisco de Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth”, in: Oxford Journal of Legal Studies 2011/3; K. Bunge, “Das Verhältnis von universaler Rechtsgemeinschaft und partikularen politischen Gemeinwesen: Zum Verständnis des totus orbis bei Francisco de Vitoria’, in: Bunge/Spindler/Wagner (eds.), Die Normativität des Rechts bei Francisco de Vitoria, frommann-holzboog 2011, 201-227