Francisco de Vitoria and Luis de Molina on the Origin of Political Power (original) (raw)
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Luis de Molina on Rights as Limits for Legislation
Patristica et Mediaevalia, Vol. 38, 2017
Kaufmann, Matthias. Luis de Molina's Concept of Law shows similarities with aspects of R. Dworkin's Thought. In general, Modern discourse is useful for a proper analysis of Molina's rights-based legal theory, which, in turn, proves to be Modern. Thus, some elements of the present rights debate, for example between election theorists and interest theorists, are discussed with reference to Molina by showing how he uses ius in the sense of law as the basis of his legal theory. A central role is given to the concept of dominium, which helps to clarify what rights human beings can have and where their limits lie. At the same time, the way Molina uses that term also limits the power of human authorities over individuals, without claiming a human right to inalienable freedom: a person's freedom belongs to his dominium, so he can sell himself as a slave in certain circumstances.
“Francisco de Vitoria and the Problems of Dominion and Justice”
Anthropological foundations for old and new european challenges, Images of europe past, present, future, ISSEI 2014-conference proceedings Porto, Portugal, Yolanda Espiña (edição), Universidade católica editora. Porto, 2016, pp. 314-321, 2016
Recent decades have seen a new international line of research aimed at XVI and XVII century Hispanic thought (including, most notably, the authors associated with the School of Salamanca and their impact). The disciplines currently developing this line are mainly associated with the history and philosophy of law and economics. The former discipline deals with the formation of modern law and with the particular influence of ancient and medieval thought (especially in the concept of individual rights or human rights). The latter discipline is concerned with understanding the qualitative theory of money and new economic dynamics (new trade, exchange, and even financial tools). These studies converge in the development of several central notions in the field of a theory of justice: dominion, use and property. While these notions can be defined in very similar terms within modern thought, XVI and XVII century authors have their own philosophical background, reaching diverse implications and conclusions. Taking advantage of earlier anthropological richness, as developed by pre-modern authors, including sixteenth century Hispanic thinkers, it is worth looking into the link between human dominion over that which is real within a framework of justice as one of the ideas that could be used to meet particular post-modern challenges in which many have detected limitations and the need to overcome some of the concepts crystallized from modernity. Or that is my view, at least, such that failing to recognize a rich version of the dominion concept trips us up in ways that impede the adequate evaluation and understanding of these topics.
This article outlines Francisco de Vitoria’s conception of natural law and natural right in an effort to amend a number of interpretations in the academic literature on his political and international thought that misapprehend Vitoria’s iusnaturalism. In this view, his use of the Thomist doctrine of natural law and justice lays the foundation for his works on politics, society and international relations since the doctrine itself espouses equality and justice both within the domestic realm and between discrete communities. In an implicit appeal to the link between ethics and politics, his doctrine of natural law, moreover, fulfills a critical and constitutional role by designating justice and the common good as a pattern of order to which power and authority must conform in order to be legitimate.
On Profit and Violence: Francisco de Vitoria and the Foundations of Modern Political Order?
The contribution of Francisco de Vitoria to the development of “international” law, theory and the project of a liberal world order has been subject to thorough discussion. While there might be a line linking Vitoria with Grotius –and extending all the way down to Brierly and Bull– one that is well known in the liberal political imagination and the narratives of historians, lawyers and legal apologists; in this paper I will argue that there is another genealogy linking Vitoria with the political economy that has characterised the Modern world and the juridical-normative affirmation of political order on the basis of the notion of dominium, as private property, and violence. In other words, that the international law tradition deriving from the School of Salamanca (Vitoria, Soto and Suarez) and its influence on Grotius provided a legal language for the construction of a universal system and legitimised global (public and private) order on the basis of the relationship between property and violence. This is the notion of order underpinning the capitalist world-system and the inter-state system which first emerged in the 16th century and expanded around the globe.
Los dos aspectos de la teoría del dominium y el valor de la tradición jurídica en Tomás de Aquino
Rivista di Filosofia Neo-Scolastica, 2017
In the nowadays research about medieval philosophy and theology it is admitted that the Augustinian and Aristotelian traditions were the two main trends in the theory of dominium. Then, to obtain a certain model of medieval dominium, it depends on which order the relation between both traditions relies: for while the Augustinian model remarks the question of property, the Aristotelian one puts the question of power in first place. It is not hard to admit that within the works of Thomas Aquinas, according to a rational explanation, the explanations of Aristotle are preferred over that of Augustine. Now, it seems that Aquinas’ theory of dominium not only derives from Aristotle, but also from the Justinian’s Corpus Iuris Civilis and its Italian glossators. So, in order to discuss the Augustinian Medieval theory of dominium, Aquinas not only has turned to the Greek Philosopher, but also to the Roman Juristic Tradition.
SPINOZA E O PODER CONSTITUINTE - UM ENSAIO DE FILIPPO DEL LUCCHESE
This article considers Baruch Spinoza's contribution to a theory of constituent power. Modern theories of constituent power generally agree on its paradoxical essence: a power that comes before the law and founds the law is at the same time a power that, once the juridical sphere is established, has to be obliterated by the law. Spinoza's ontology has been recognised as one of the early modern sources of constituent power, yet he argues for a strict equivalence between law and power. This article argues that by reading Spinoza's political theory through the lens of a radical immanence between ontology and history, we can understand him as a source for a theory of constituent power. It also argues that, through this immanence, Spinoza's thought offers a solution to the paradox of constituent power and enriches contemporary discussions on the origin of juridical sphere and the relationship between politics and law. The online version of this article is available Open Access Since the foundation of early modern sovereignty, juridical science has tackled the problem of establishing a solid ground for authority. However, far from finding a stable solution, the problem has become more serious during the centuries of bourgeois revolutions, when new forms of power took the place of older ones and the search for a new foundation began in the nature and attributes of the new revolutionary subjects. This problem has gradually assumed a definite legal form and has taken the name of 'constituent power'. By constituent power, modern juridical science means the factual and political power that establishes a new legal order, assigning to it validity and efficacy. The constituent power is therefore pre-ordered and super-ordered vis-à-vis the constituted power: it founds and precedes the establishment of law. Modern scholars who, especially after World War II, have developed this concept, highlight the ambiguous (Böckenförde, 1991), extreme (Schmitt, 2008) and seemingly contradictory (Mortati, 1972) character of constituent power.
El declive de la Teoría del Poder Constituyente Originario
2015
Resumen El presente trabajo versa sobre el articulo del profesor Eduardo Piacenza en el cual presenta un analisis de la Sentencia de la Corte Suprema de Justicia que abrio el camino en 1999 a la convocatoria de una Asamblea Nacional Constituyente en Venezuela. Se destaca el rol del filosofo ante las situaciones criticas que se generan en la sociedad y se senalan elementos que demuestran el declive de la Teoria del Poder Constituyente Originario, avalada en la mencionada Sentencia. Abstract The present work is abour the article of Professor Eduardo Piacenza in which he presents an analysis of the Judgment of the Supreme Court of Justice that led in 1999 the summons of a National Constituent Assembly in Venezuela. The role of the philosopher in society´s critical situations is outlined and elements showing the decline of Constituen Original Power Theory supported in the mentioned Judgment are pointed out.
The close reading of newspaper articles for the construction of law may seem really interesting, but it is not certainly a sociological common practice in the legal studies. As part of society, journalists can be considered actors of a privilege point of view in delineating the boundaries of a social system and its surroundings based on selectiveness. We have tried to make evident the definition of the right to property and the critical paradox involving its social function. There is also an attempt to make clear a very biased discussion on the effects of what would be social in an urban country, but with strong traditional forces of large rural property owners. For that, we created a set of concepts strongly recommended to shed light on what we define as supra and meta-party during the 1987-88 Brazilian Constituency. The selection of discourses, personal relations, informality and parallel legislative mechanisms were common practices only during the anti-democratic periods as barons used to have in the Brazilian society. The national dimensions of singular structures of the re-democratic legislatures and the logic to capture the legal order in the right to property are essential as well. The objective of the present article is the analysis of forty-seven pieces of newspaper articles to show how the idea of selectiveness structured the legislative work in the making of the 1988 Federal Constitution. We collected documents from 1985 to 1988 period related to the tension on the right to property and the fights for what would mean “social function” in the Magna Chart.