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THE IMAGE OF GOD, CHRISTIAN RIGHTS TALK, AND THE SCHOOL OF SALAMANCA

Published online by Cambridge University Press:  16 March 2016

David M. Lantigua*
Affiliation:
Assistant Professor of Moral Theology and Ethics, The Catholic University of America
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Abstract

The salience of rights talk in Western cultures has generated constructive responses from various religious traditions. This article contributes to this religious hermeneutic by turning to the first-generation Spanish theologians of the sixteenth-century School of Salamanca, Francisco de Vitoria and Domingo de Soto, as important resources for Christian rights talk. These late scholastic thinkers made the image of God doctrine, as transmitted by Thomas Aquinas, the basis for affirming the worth and human natural rights of Amerindian peoples. To highlight the contemporary relevance of the school, the article engages Nicholas Wolterstorff's recent work on rights and his twofold critique of a capacities approach to human dignity and a virtues approach to justice. The School of Salamanca not only addresses the important concerns raised by Wolterstorff but uniquely offers a view of rights inextricably linked to human capacities and Christian virtue that highlights both the patient and agential dimensions of justice. They provide a critical theological challenge to the dominant secular liberal view of rights in a way that Wolterstorff's account does not.

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Copyright © Center for the Study of Law and Religion at Emory University 2016 

INTRODUCTION

This article critically engages contemporary rights discourse by turning to the early modern School of Salamanca and its first-generation theologians. The Spanish theologians made an important contribution to the development of rights discourse in the West by identifying the image of God, primarily transmitted through the scholastic thought of Saint Thomas Aquinas, as its theological basis.Footnote 1 Furthermore, they applied their scholastic apparatus to address innocent peoples oppressed on the margins of colonial Christendom during the sixteenth century—the Amerindians. The imago Dei teaching, along with a scholastic-juristic concept of natural law, supplied an ineradicable and universal ground for articulating the ontological and moral dignity of individual persons deserving respect, and the basic rights of peoples demanding protection.

To situate the School of Salamanca within a contemporary religious hermeneutic of rights, this article evaluates the recent work on justice by Christian philosopher Nicholas Wolterstorff. In the first part of this article, I consider Wolterstorff's critique of the dominant secular liberal view of human rights today, which often grounds dignity in requisite human capacities. I then discuss how the School of Salamanca defended the natural rights of Amerindian peoples by recognizing their capacities as persons made according to God's image. This modest retrieval of the late scholastic Spanish theologians not only addresses the concerns raised by Wolterstorff regarding a capacities approach to human dignity, it also points to a weakness in his account of rights.

The article demonstrates how the Spanish scholastic account of the image of God provides constructive resources for a Christian theory and practice of rights attentive to a fuller range of the spiritual and moral life that can affirm both the patient and agential dimensions of justice and dignity. The ontological worth of innocent persons capable of suffering injury, and the elevated moral status of persons who grow in perfection through acts of virtue, jointly disclose the late scholastic view of dignity expressed in the image of God. The Spanish theologians present a critical Christological grounding to contemporary rights discourse that goes beyond Wolterstorff's philosophical theism.

WOLTERSTORFF'S CHRISTIAN “RIGHTS TALK”

Beginning with Justice: Rights and Wrongs, Wolterstorff has made an impressive scholarly effort to articulate a Christian theory of justice and political authority by providing a theistic ground for human rights and a Protestant defense of liberal democracy.Footnote 2 Wolterstorff's concerns as a Christian philosopher are both ad intra and ad extra to the church community. On the one hand, he engages other Christian thinkers who exhibit a deep suspicion, if not opposition, towards the liberal polity and its alleged ever-expanding list of subjective rights founded on an ontology of individual difference, rather than human likeness.Footnote 3 On the other hand, he also responds to dominant secular justifications for human rights made by liberal theorists who attempt to ground the dignity of rights bearers on specific human capacities and the expression of normative agency. Wolterstorff's intra-ecclesial and extra-ecclesial concerns can effectively orient a retrieval of the Salmantine theologians as a Christian resource for contemporary discussions about the theory and practice of human rights.

Rights have an ineluctably social dimension according to Wolterstorff. They are normative social relationships or bonds uniting members of society that establish legitimate claims determining what one can do and must refrain from doing to others. They have peremptory, “trumping” force and enable persons and even social entities to enjoy those goods constitutive of flourishing, or a “well-going life and history” testified by the Christian scriptures.Footnote 4 At bottom, a right is a legitimate claim to be treated a certain way that respects one's worth and the good of oneself. Rights talk brings to speech the patient- or recipient-dimension of the moral order when someone's worth has been disrespected, or how one is wrongly treated by others.Footnote 5

Despite the salience of rights talk in liberal societies, Wolterstorff worries that the contemporary moral subculture of rights will collapse or deteriorate without a critical philosophical grounding. Of course, not every liberal citizen has been troubled by such rootlessness. Consider the postmetaphysical assertion of Richard Rorty, who abandoned any search for the foundations of human rights: “We pragmatists argue from the fact that the emergence of the human rights culture seems to owe nothing to increased moral knowledge, and everything to hearing sad and sentimental stories.”Footnote 6 Rorty placed his hope in the practice of sentimental education and the reading of books afforded by a liberal culture. Contrary to Rorty, Wolterstorff argues that social practices alone, no matter how entrenched or taken for granted in a culture, are insufficient for promoting human rights and protecting the most vulnerable.Footnote 7 Furthermore, the social instinct of sympathy informing contemporary modes of secular humanism requires a deeper belief about someone's intrinsic worth, which, for Wolterstorff, must rest on an orthodox conviction “that this human being has great worth.”Footnote 8 What is critically needed, then, is not merely a fundamental account of moral rights, but natural human rights.

Inherent Rights and Human Dignity

Wolterstorff introduces the idea of natural inherent (or subjective natural) rights as the foundation for his theory of justice. Natural inherent rights provide the framework and critical grounding necessary for evaluating and revising those social practices and laws conferring rights within political society.Footnote 9 To bolster his argument, Wolterstorff presents a genealogy of inherent rights that makes a provocative claim upon which his thesis rests: the recognition of natural inherent rights goes as far back as the Hebrew Bible and the New Testament.Footnote 10 The biblical inheritance was reflected in the Christian Latin West through the affirmation of rights for the poor, aliens, and others recognized by church fathers, and especially medieval canonists.Footnote 11 Biblical justice is said to affirm inherent rights because Scripture is permeated by “moral victims, persons who have been wronged.”Footnote 12

In a compelling way, Wolterstorff argues that wronging—or the failure to render people certain life goods—is the source of rights.Footnote 13 The ancient legal definition most amenable to Wolterstorff's Christian account of inherent rights comes from the third-century Roman jurist Ulpian, who defined justice as “the constant and perpetual will to render to each one his own right.”Footnote 14 For Wolterstorff, crucially, the accent of justice falls on the person enjoying that to which he possesses a right. Inherent rights place the brunt on the one who deserves to enjoy the good that is due (the patient), rather than simply on the one who renders what is due (the agent).Footnote 15 On the basis of this patient-agent axis, Wolterstorff is able to distinguish his theory of justice as inherent rights from “right order” theorists.Footnote 16

Wolterstorff critiques the classical construal of justice as right order for its tendency to privilege the agential dimension of justice by focusing on reason, duty, obligation, and virtue at the expense of moral victims and the patient's intrinsic worth. The just society under the classical view is the rightly ordered one whose citizens conform themselves to some objective standard promoting well-being or happiness realized in and through the polis or state.Footnote 17 Politically speaking, justice as right order amounts to a perfectionist rendering of the state concerned with making citizens virtuous rather than a protectionist (or rights-limited) view of the state concerned with curbing wrongdoing. On this score, Wolterstorff contrasts Saint Paul's Letter to the Romans with the political writings of Plato and Aristotle, the latter of which demonstrate a right order conception of justice.Footnote 18

Wolterstorff affirms the inherent value of a liberal polity when its focus, like St. Paul, is on the God-given responsibility to protect the inherent rights of citizens by restraining injustice.Footnote 19 This is a marked difference from Christian opponents of liberal democracy who still, according to Wolterstorff, adhere to an idea of justice as right order and a eudaimonistic ethic of virtue. Right order theorists of the contemporary Christian variety speak of objective obligations founded on a permanent natural law and reflected by political society.Footnote 20 They especially resist the language of modern rights attaching to an individual's powers and wants prior to the subject engaging in society.Footnote 21 Although Wolterstorff is attentive to certain abuses of rights language in liberal cultures—which is why he is so adamant about articulating a philosophical theistic ground—he does not believe rights talk inevitably devolves into possessive individualism pitting every subject against the other.

Wolterstorff isolates the ethical purchase between the two conceptions of justice by addressing the difference it makes for moral agency: “Rights de-center the agent. Instead of the agent's happiness determining his action, the worth of the recipient and of those others who will be affected by the action is to determine what the agent does.”Footnote 22 Simply put, justice as inherent rights is patient centered. He concludes that eudaimonism, or the belief that one's own happiness is the overarching aim of a life well lived—whether an impoverished hedonic notion or a sophisticated philosophical one—cannot serve as a true and consistent basis for inherent rights and intrinsic human worth.

Wolterstorff rebuts right order theorists on Christian terms, using scripture, ecclesial tradition, and an alternative historical narrative in which “the idea of natural rights originated in the seedbed of medieval Christendom.”Footnote 23 But his greater philosophical task is to supply a critical theistic ground for engaging contemporary rights discourse. He turns to Immanuel Kant as the representative philosophical defender of the liberal theory of rights. Kant's theory resonates with the UN Universal Declaration of Human Rights and many contemporary secular views because it provides a dignity-based conception of rights. Wolterstorff strongly endorses Kant's moral formula for human dignity, which is understood as noninstrumental or incommensurate worth demanding respect.Footnote 24 As Kant so tersely put it in the Groundwork of the Metaphysics of Morals, “every rational being exists as an end in himself, not merely as a means for arbitrary use by this or that will.”Footnote 25 Wolterstorff supports this view of human beings as ends in themselves with one major caveat: he takes issue with Kant's ground of dignity—that is, the rational being capable of morality.

Kant's view is paradigmatic of a capacities approach to dignity, which holds that “the worth that grounds human rights supervenes on a certain capacity that human beings have.”Footnote 26 The dominant secular account indebted to Kant has come to define human worth in terms of one's capacity to exercise autonomous agency expressed through one's rationality, moral freedom, or holistic, existential awareness. For Wolterstorff, the contemporary philosopher James Griffin offers a secular view of human rights grounded in a capacities approach to dignity.Footnote 27 Griffin's On Human Rights defends a substantive account that distinguishes human life from other animals by virtue of personhood. On Griffin's view, personhood status hinges “on our being agents—deliberating, assessing, choosing, and acting to make what we see as a good life for ourselves.”Footnote 28

According to Griffin, the personal dignity that grounds human rights supervenes on “our capacity to choose and pursue our conception of a worthwhile life.”Footnote 29 In other words, human rights safeguard the highly prized status of normative agency exercised through living and pursuing a meaningful life. With roots in the Christian West, Griffin identifies autonomy as a key value in his account of normative agency.Footnote 30 Christianity's belief in the elevated status of humans made equally in God's image allegedly reset the moral stage because of its “new confidence in human capacities” and “new expectation of a more active and independent humankind.”Footnote 31 However, the unintended consequence of this Christian theological view culminated in Enlightenment conceptions of autonomy evident in Kant and Jean-Jacques Rousseau, which shifted the purview of morality away from obedience to God's revealed law to a self-given law. For Griffin, this secular conception of autonomy as self-decision, or an ethics without need for God, is precisely what has ubiquitous value today as a basis for human dignity.

Wolterstorff affirms the importance of normative agency made by secular theorists, but he does not think their definitive appeal to this rational capacity sufficiently accounts for the worth of the rights holder himself. He points out that “threshold properties” like the capacity to pursue a worthwhile life or to act in accordance with self-given moral imperatives by itself rules out certain individuals on the periphery of society such as children or the elderly, for example, who might suffer from severe mental impairment or will never have the ability to exercise normative agency. A secular grounding of human rights in requisite capacities is unable to affirm the full scope of dignity.Footnote 32

Alternatively, Wolterstorff proposes a theistic ground that accounts for the uniqueness and ineradicability of human dignity.Footnote 33 Crucial to Wolterstorff's theistic account is the belief that incommensurable worth is something bestowed directly by God on all persons. Though the image of God doctrine is altogether significant for Wolterstorff's theory of justice, it must be appropriately understood. Like secular accounts of human dignity, traditional Christian patristic and scholastic accounts of the imago Dei are problematic to Wolterstorff. A classic expression of this doctrine comes from the Summa theologiae of Thomas Aquinas, where the scholastic theologian referred to eighth-century Greek Father John of Damascus, who taught that “the image implies an intelligent being endowed with free-will and self-movement.”Footnote 34 Wolterstorff avers that any understanding of the image of God consisting in a resemblance to God according to capacities like reason and moral freedom, or role in creation such as having lordship, runs into the same limit of the secular approaches: some human beings will not possess the relevant capacity or power for bearing the image of God.Footnote 35

The essential property of the image of God therefore cannot be some thing residing within, but rather, the love of God attached to some one. Wolterstorff explains his theistic ground of rights in terms of a “worth-imparting relation of human beings to God that does not in any way involve a reference to human capacities.”Footnote 36 More specifically, “being loved by God is such a relation; being loved by God gives a human being great worth.”Footnote 37 God's redemptive love for human beings as such can and does affirm equal worth, especially of those least among us. Recently, Wolterstorff has elaborated this idea of equally bestowed worth by identifying God's loving desire for friendship with human beings.Footnote 38 Since “every human being has the honor of being chosen by God as someone with whom God desires to be friends and that this desire endures,” bestowed worth is both ineradicable and uniquely human.Footnote 39 The potential for friendship between God and every single human being supplies the fundamental constituent grounding inherent rights in Wolterstorff's account.

The Christian rights talk of Wolterstorff raises important objections to both contemporary Christian opponents of inherent rights in liberal polities and secular accounts of human dignity exclusively derived from rational moral capacities. He rightly acknowledges the important legacy of natural subjective rights in the ecclesial tradition and the centrality of the image of God for affirming the worth of every human person, which extends to the defenseless and the vulnerable. But there are certain aspects of Wolterstorff's argument and antinomies that detract from those aspects of the Christian moral tradition that do not simply fit in either the inherent rights versus right order categories of justice, or the capacities versus bestowed worth models of human dignity. The Salamanca School of the sixteenth century and its appropriation of both Aquinas's teaching on the image of God and the broader legal tradition of the Latin West generates a distinctive theological perspective on justice and dignity that goes beyond Wolterstorff. The remainder of this article shows how a modest retrieval of the Salmantine theologians can respond to Wolterstorff's concerns regarding capacities-based accounts while revealing a weakness in his own theory—the absence of a dynamic model of God's image able to encompass a more robust Christian ethic of rights.

Justice and the Dynamism of God's Image: The Case of Aquinas

Before we turn specifically to the discourse of rights in the Salamanca School, it is worth considering what Wolterstorff thinks of Aquinas, the single most important figure in the Salmantine renewal of scholastic theology with respect to justice and the imago Dei. Wolterstorff is ambivalent towards Aquinas given his typology of justice into two neatly opposed categories.Footnote 40 At the end of his enriching personal narrative from the perspective of the wronged in his Journey toward Justice, he distinguishes Aristotle and Ulpian who offer two very different conceptions of justice in the West, comparable to the difference between right order and inherent rights in his genealogy.Footnote 41 If this antinomy is applied to what Aquinas had to say about the virtue of justice, there emerges a seeming paradox. Aquinas held that the definitions of justice in Aristotle and Ulpian were almost the same since both of them identified the constancy or habit of the will in performing just actions.Footnote 42

Unsurprisingly, Wolterstorff views Aquinas with ambivalence saying that the scholastic thinker, and his students by association, must choose between justice as right order and inherent rights. Wolterstorff observes that Aquinas was able rise above eudaimonism when, for example, the theologian taught that “the equality of distributive justice consists in allotting various things to various persons in proportion to their personal dignity.”Footnote 43 Wolterstorff sees, in this instance, an inherent view of distributive justice that “employs the idea of a person having a right to a good on account of that befitting the person's worth.”Footnote 44 However, for Wolterstorff this is an isolated example in the Summa because Aquinas apparently did not explain the idea of a good that is due to someone or that belongs to someone by right.Footnote 45

But Aquinas did, in fact, say more about the link between justice and the good due to someone proportionate to the person's bestowed nature and dignity.Footnote 46 The metaphysics of the justice and mercy of God in the first part of the Summa provided precisely the explanation that goes uncredited in Wolterstorff. Aquinas used the Aristotelian category of distributive justice to analogically account for what is naturally due to each creature without making God a debtor to creation. Like a ruler who gives to each subject according to his or her worth, God's justice is exhibited by giving “to all, according to the dignity [dignitatem] of each thing that exists.”Footnote 47 Further on, Aquinas bridged scholastic metaphysical and Roman legal vocabularies when he explained that “to each one is due what is his own,” and what is one's own is that which is ordered to one's own preservation in teleological terms.Footnote 48 For Aquinas, God's superabundant mercy has given to all persons what is due according to their natural dignity and for the sake of their flourishing, which means possessing hands and ruling animals so as to serve humanity's basic needs.Footnote 49

The reference to using hands and having dominion over animals may seem unremarkable, but it is quite significant to Aquinas's metaphysical scheme. As he later proposes in his question discussing the injustice of theft, both of these aforementioned activities denote the characteristic power, or dominium, communicated to human creatures reflecting God's image.Footnote 50 This is not a raw assertion of power, but an ordained “power of using” (potestatem utendi) the things of the earth for human sustenance and flourishing.Footnote 51 The image of God is expressed through human reason and the freedom of the will whereby each person has dominium over external things and over non-human creatures. The power or capacity of the will to use something for a specific purpose is therefore a chief distinguishing mark of the rational creature.Footnote 52

The image of God doctrine spanned the entirety of Aquinas's Summa. The divine image points to the origin and end of humanity, but also everything in between. Aquinas specifically devoted Question 93 in the first part of the Summa to the topic, where he presented the image of God as a dynamic spiritual tendency.Footnote 53 Aquinas captured this spiritual dynamism of the image and likeness of God by using the Latin preposition “ad” to describe human beings as creatures made toward God's image.Footnote 54 His rationale was biblical since the Latin Vulgate used the preposition in both verses of Genesis 1:26 and 27, which read, “Let us make man to our image and likeness” and “God created man towards his own image.”Footnote 55 For Aquinas this part of speech illustrated movement rather than stasis.Footnote 56 He further explained the divine image in metaphysical terms according to the exitus-reditus scheme of going out and returning to God: “man is not simply called the image, but ‘to the image’ [ad imaginem], whereby is expressed a certain movement of tendency to perfection.”Footnote 57

The inherent dynamism of the imago Dei is illustrated by a threefold spiritual orientation according to nature, grace, and glory. Human beings are not self-sufficient, but always already in need of healing and the attainment of perfection through greater participation in divine likeness. The divine image thereby points to the unmistakable fact of insufficiency and dependence on God for growth in virtue. In Article 4 of Question 93, Aquinas considers the sense in which human beings participate in the image and likeness of God by using the medieval gloss on Psalm 4:7, “The light of thy countenance, O Lord, is signed upon us.”Footnote 58 There is a threefold understanding of the image that corresponds to the dynamic participation and growth in nature, grace, and glory. The image according to glory pertains to the blessed in heaven. The image according to grace belongs to the just, or those transformed by divine grace. And the image according to nature, which refers to a natural aptitude or fittingness to know and love God, inheres in everyone. The “capacity for the highest good” conjoined to this aptitude is what constitutes the rational and spiritual nature of every human being.Footnote 59

Human capacities and powers only make sense on the basis of the irrevocable image-bearing aptitude to know and love God. But Aquinas's vision is not merely theistic in this regard—it is Christological. At the beginning of his discussion of Jesus Christ in the third part of the Summa, he proposed that the Incarnation had the instructive purpose of revealing the great “dignity” of human nature.Footnote 60 Reflecting further on the meaning of this dignity, Aquinas taught that human nature was fittingly made to receive the Word in the person of Christ through its aptitude for knowing and loving God.Footnote 61 This means that the image belongs to the very dignity of human nature precisely because we are capable of God.Footnote 62 Morally considered, it also means that among terrestrial creatures only the human soul is capable of grace (capax gratiae) and capable of growing in the virtues of faith, justice, and charity.Footnote 63 The capacity for God and for grace is what makes possible a friendship and union with God, which is the highest attainable good of the individual person. Though Wolterstorff identifies the potential for friendship as constitutive of our divinely bestowed worth, he does not ground this potential in a human capacity for God and grace like Aquinas. As a result, he undercuts deeper resources for a Christian ethic of rights according to the dynamism of God's image.

THE SALAMANCA SCHOOL ON THE IMAGE OF GOD AND RIGHTS

A closer analysis of Aquinas's teaching on the dynamism of the divine image uncovers richer theological grounds for identifying the agential and patient dimensions of justice. Respectively, this refers to the inherent goodness of the rational creature capable of God, as well as his moral and spiritual growth in perfection. And it was Aquinas's teaching on the image of God as a basis for human natural dominium over actions and external things that emerged as the primary object of theological and ethical inquiry into natural rights at Salamanca.Footnote 64

The first generation of the School of Salamanca in sixteenth-century Castile comprises the three Dominicans who inhabited the prima chair of theology at the University of Salamanca consecutively for three decades: Francisco de Vitoria (1526–1546), Melchor Cano (1546–1551), and Domingo de Soto (1552–1556). Vitoria, above all, was considered a master teacher, and considered the founder of the school by his students. One scholar has identified the distinctive style and method of the Salamanca School as a speculative theology grounded in the scholastic-juristic tradition, open to practical considerations, and shaped by the historical and critical concerns of Renaissance humanism.Footnote 65 Salamanca experienced a conscientious renewal of scholastic theology open to new questions and problems, at once sensitive to its critics and allergic to theological rationalism and biblical absolutism.

Though it may be more accurate to describe the School of Salamanca as a scholastic renewal than a Thomistic renewal per se, the medieval Dominican friar left an unmistakable mark on the Salmantine theologians. After Vitoria was appointed prima chair at Salamanca in 1526, he replaced Peter Lombard's Sentences with Aquinas's Summa theologiae as the principal textbook of the theological curriculum.Footnote 66 Aquinas provided the School of Salamanca with a blueprint for doing theology in a scientific mode. Consequently, Vitoria understood sacred theology as a science “without limits,” because it considered human problems in light of revelation's knowledge of the infinite God.Footnote 67

There are two initial points on the subject of rights in the School of Salamanca: first, Aquinas's scholastic theology provided a capacity approach to grounding rights with a far more inclusive and expansive scope inhering in every creature capable of God; secondly, the dignity intrinsic to the imago Dei pertained to both the fundamental dignity of human nature and the dynamic spiritual magnitude open to greater moral perfection that builds upon a natural capacity for grace. These points were relevant since it was conflict over the interpretation of the fundamental capacity for God, above all, which set the terms for the early sixteenth-century Spanish debates concerning the rationality and rights of Amerindian peoples.

Human Capacities and Natural Rights in the Context of the Indies

The entire project of legitimating Spain's political authority in the New World rested upon the belief in the Amerindian capacity for conversion.Footnote 68 If the Amerindian peoples were merely brute animals or somehow subhuman creatures lacking a rational nature, then it would be impossible for them to receive a revealed teaching meant for a person made in God's image. Conversion of the natives was the strict spiritual purpose and legal justification for Spanish presence across the Atlantic following Inter caetera, the 1493 bull of Pope Alexander VI.Footnote 69 Yet none of this hindered European theologians and chroniclers from calling the Amerindians irrational beasts incapable of self-rule. The Order of Preachers (Dominicans) in Spain was at the center of this debate about the rational spiritual nature of Amerindian peoples and their capacity to receive the Gospel and govern themselves.Footnote 70

The Dominican theologians of Salamanca were especially committed to defending the native peoples from unjust Spanish enslavement and political subjugation, which led them to formulate a critical discourse of natural rights attentive to the oppression of innocent Amerindians. In fact, the first friars to preach against the forced labor and conquests of the Taíno natives of Hispaniola were from the same Dominican priory of San Esteban in Salamanca later inhabited by Vitoria, Soto, and Cano.Footnote 71 During an Advent sermon in 1511, the friar Antón Montesino condemned the Spanish abuses and inaugurated a discourse of rights in the New World: “By what right and by what law do you hold these Indians in such cruel and horrible servitude? By whose authority have you made such detestable war on these people who lived peacefully in their lands?” and “Are these not men? Do they not have rational souls? Are you not obliged to love them as yourselves[?]”Footnote 72

Following Francisco Pizarro's brutal conquest of the Incas in 1533, the Dominican theologians of Salamanca began to teach and address the affair of the Indies. The question regarding the Amerindian capacity to receive the faith had already been settled by a theological junta at Salamanca in 1517.Footnote 73 Hence Vitoria, Soto, and Cano were more interested in the ramifications of this teaching as it pertained to the natural rights of the Amerindians and the alleged legitimacy of war against them. For the theologians, the human capacity for God—expressed in the use of reason and receptivity to the faith—set the parameter for affirming the possessions and political sovereignty of Amerindian peoples. The primary vehicle for expressing their teachings on the Indies came through their classroom lectures and, especially, the practice of delivering a formal university-wide address known as the relectio on a contemporary ecclesiastical or social-political issue.Footnote 74 In this vein, Cano defended the Amerindians accordingly in his Relectio de dominio Indorum: “they (the Indians) are not ignorant but have ordinary use of reason. They have their laws and are capable of receiving the teaching of the Gospel. Therefore they have dominium over their political affairs.”Footnote 75

One of the key concerns of the Spanish scholastic discourse of rights in the context of the Indies was to demonstrate that the Amerindians were true owners (veri domini) upon which their legal claims could be asserted and enforced. According to the legal tradition of the Latin West appropriated by the Salmantine theologians, there were three general senses of dominium: political rule (dominium iurisdictionis), property (dominium rerum), and, relatedly, a power or faculty of using something (facultas utendi re). Since political rule and the division of things belonged to the realm of positive law or the law of nations (ius gentium) for determination, only the latter expression of dominium pertained directly to the nature of things in the order of creation as safeguarded by the image of God. The power to use or not use a thing and the capacity to do or not do an act exhibited the basic rationality and freedom inherent to human agents vis-à-vis other subjects. This provided the conceptual space for the Salamanca School to develop ideas of subjective natural right within the scholastic-juristic tradition of natural law.Footnote 76 If the theologians could demonstrate that Amerindians have true dominium according to natural right, then infidel property and political rule could additionally be protected as legitimate and just.

The Salmantine shift from the Aristotelian-Thomistic conception of ius as the “just thing” (or the object of justice) to subjective natural rights has been sufficiently addressed by other Anglophone scholars, especially with respect to Vitoria's commentary on the Summa of Aquinas.Footnote 77 However, my limited focus here differs somewhat from these other studies because it specifically considers how Aquinas's teaching on the image of God and dominium provided the touchstone for linking endowed human capacities (or powers) with natural rights. The starting point to this discussion began with two early works: Vitoria's commentary on Question 62 of the Summa on the topic of restitution taken from his classroom lectures in 1535 and Soto's Relectio de dominio delivered the same year. Both contributions from the School of Salamanca explicitly reworked Thomistic ideas on justice and the image of God to supply theological reflections on the affair of the Indies with moral and legal relevance. This theo-political task would find its clearest and most succinct presentation in Vitoria's Relectio de Indis (1539).

Vitoria and Soto began these aforementioned works with their belief in God as the ultimate Dominus, or Lord of creation. The image of God communicates dominium to human beings through a participation in the likeness of God. Evidently, in Aquinas, that image and likeness provides everyone with an objective safeguard for recognizing the good that is due to each person possessing the ordained “power of using” the things of the earth that have been subjected to humanity according to the divine testimony of Scripture. Soto and Vitoria appealed to Aquinas's teaching on the image of God in order to identify the ontological and moral basis upon which the possession of things, and political self-rule, could be asserted legally—that a human person is dominus actionem, or owner of his act.Footnote 78

The Spanish theologians secured this primary dominium of directed action, which designated the rational power to freely use something for a certain end, by adhering to a strong doctrine of rights applicable to all peoples on individual and political levels. In this way, their general definition of individual right was expressed as a “licit subjective power.”Footnote 79 Following Aquinas, Soto's relectio on dominium affirmed that only human beings can be considered true owners because they have the power of using a thing (potestas utendi re): “there is no dominium over something unless it is with regard to one's own power to use or not use something. Among creatures only man has this power through his free choice.”Footnote 80 From this scholastic standpoint, Soto extracted the theological meaning of Genesis 1 by positing that the image of God is the very foundation of dominium.Footnote 81

Vitoria's discussion of true dominium and the image of God in his Aquinas commentary also addressed the subjective power of use within a legal framework.Footnote 82 Vitoria observed, “there has never been a nation so barbarous that does not believe it is lawful for humans to use things.”Footnote 83 All peoples know the legitimacy of this kind of dominium by which humans are able to conserve themselves in being. According to natural right and, more specifically, the “right of using” (ius utendi) things, human beings can claim what is necessary since God and nature do not fail to give what is due to them for preservation.Footnote 84 The subjective force of this claim stood out when Vitoria stressed that every dominus has the power to use and even abuse such things as he pleases “provided that he does not harm other men or himself.”Footnote 85

While the language concerning one's own power to use, or even abuse, things may ring of possessive individualism, the Salmantine contextualization of rights within the affair of the Indies resists such misinterpretation and anachronism. It is crucial to note that the theological reflections on the image of God, dominium, and natural rights in these early works of Vitoria and Soto both terminated in a discussion of the rights of both Europeans and Amerindians. Although Vitoria did provide grounds for debating European intervention across the Atlantic, he did so strictly in accordance with the law of nations (ius gentium) and a Christian doctrine of just war, as his Relectio de Indis would consider in terms of possible titles by which Spain could legitimately rule overseas. Nevertheless, Vitoria's Summa commentary had already supplied an important constraint at the end of his discussion of dominium and natural right:

Christians are unable to occupy the lands of unbelievers … inasmuch as they are true owners [veri domini], if they are unwilling to grant their lands to us, then we cannot retain and capture them. Like the case with the Amerindians, certainly no one can seize lands from them. That is because no Christian ruler is superior to them. Nor is the pope superior to them in either temporal or spiritual matters, if they have not been baptized.Footnote 86

Vitoria's early argument was a clear criticism of the Spanish legal document of the Requirement used by European colonizers in the conquests of the Aztecs and Incas.Footnote 87 Contrary to the Requirement, neither secular nor papal power had the authority to violate the legal rights of the Amerindians over their lands, possessions, and governments. Vitoria's claim was nothing short of radical within a Christian colonial culture captive to theocratic and imperial humanist claims—infidels are prima facie true owners having use of reason and protected from injustice. Soto echoed his teacher on this exact point: “the Emperor has neither the right nor dominium over the lands of unbelievers … from the fact that they (the newly discovered peoples) are infidels does not mean they lose their goods or cease to have their political rule, for the same reason that they do not lose it on the basis of grave sins.”Footnote 88 In other words, the unbelief of natives does not remove a “right over their goods” (ius bonorum suorum). Soto saw no purported Spanish right to take away the possessions of the Amerindians or submit them to foreign political rule.Footnote 89

The Salmantine theologians held to Aquinas's view that dominium only applies to human beings at the exclusion of non-human animals in virtue of the image of God.Footnote 90 And it was this theological anthropological view that enabled them to generate a discourse concerning human natural rights. From this standpoint, they turned to the most relevant human capacity for strengthening the moral force of rights discourse applicable to the Amerindians—the capacity to commit and receive injury. This capacity for injury—inseparable from the human capacity for God, grace, and conversion—would expand the patient dimension of justice in novel ways.

Injury and the Threshold of Human Dignity

The capacity for injury (capax iniuriae) grounded in the image of God was a significant contribution of the School of Salamanca to Western rights talk.Footnote 91 Although injury—defined as the violation of the will of an owner (dominus) to his possession—was a key dimension of casuistic literature on restitution ever since the Middle Ages, the early modern Salmantine theologians identified it in robust metaphysical terms pertaining to all rational creatures made to God's image. The capacity to suffer injury, or to have one's rights violated (in-iuria) by another, brought the recognition of injury to the forefront in addressing unjust violence perpetrated during the Spanish conquests across the Atlantic. This established a normative framework for bringing objective natural norms to bear on facile interpretations of rights, as claimed especially by European imperialists alleging a right of conquest on the basis of papal or imperial superiority, or alleged Amerindian irrationality and sinfulness. If someone made to God's image has been denied the good to which he has a natural right, then an injury has clearly been committed.

Soto's later theological work On Justice and Right, composed in the 1550s, described this normative dimension by providing an explanation of the good due to someone according to natural right. After citing Genesis 1:26–28 as the basis for human natural dominium over the things of the earth, Soto brought together a scholastic metaphysics of creation with subjective natural right:

Insomuch as man is corporeal, he is owed all the things necessary for the sustenance of life. For this reason, Aristotle understood that all material things are for the sake of man. Accordingly, just as man's limbs and natural powers are becoming of his nature (even though God miraculously created humans), so too dominium over things was a certain explication of natural right as something owed to human nature, its individual existence, which God had freely bestowed through the act of creation.Footnote 92

Soto explicitly connected the Thomistic notion of human natural dominium grounded in divine bestowal with a subjective claim of natural right.

Like Soto, Vitoria also accounted for the good of each individual on account of what was due to them. In Vitoria's Summa commentary on Question 64 concerning homicide, he analyzed the good that belongs to an innocent person by right. Here he addressed the possibility of killing an innocent person for the sake of saving the republic, which he altogether rejected like Aquinas.Footnote 93 The human being in the context of the good of the republic is not like a member or limb of the body that can simply be removed for the sake of protecting the health of the whole body. The reason the analogy does not work is this: “a member cannot suffer injury, since it does not have its own proper good to which it has a right. But a man has a proper good to which he has a right.”Footnote 94 Vitoria then made the point that one may lawfully cut off a limb not because it is a good in itself but a good in relation to the whole man. In contrast, “an innocent person is his very own good [bonum suiipsius] and alone he suffers.” The category of innocence supplied the Salmantine theologians with a privileged way of describing the intrinsic worth and goodness of a human being capable of suffering injury.

The significance of this teaching on innocence and injury comes to light in Vitoria's explicit reflection on the Spanish conquest of the Inca Empire. Vitoria referred to the conquest of Peru as “corrupt” in a letter to the Dominican provincial of Spain in 1534.Footnote 95 The theologian explicitly condemned the injustice of Pizarro's wars and other conquests. Of the Amerindians, he wrote: “They are most certainly innocents in this war.”Footnote 96 Undoubtedly aware of the diatribe leveled against the natives for their supposed inhumanity and irrationality, Vitoria turned the logic around: “if the Indians are not men but monkeys, they are incapable of injury. But if they are men, and our neighbors, and as they claim vassals of the emperor, I cannot see how to excuse these conquistadors of utter impiety and tyranny.”Footnote 97 In view of Vitoria's teaching on the innocent person as his own good, it is clearer how he and the School of Salamanca could recognize the injuries against the Amerindians on the basis of a divinely bestowed worth communicated to them through the image of God.

The minimum threshold of human life accounted for in terms of the capacity to suffer injury brings into relief the crucial and overlooked scholastic concept of dignitas. On this account, which resists circular reasoning, the capacity for injury belongs specifically to human beings who have natural rights because they alone have the dignity of being made to God's image and the final end correlative to it. In particular, the Spanish scholastics adopted Aquinas's definition of dignity as “something's goodness on account of itself.”Footnote 98 The Latin term repeatedly used by Aquinas and the Salamanca School was “propter seipsum,” which referred to the good of the individual person existing for his own sake, or on account of himself, and not for another's sake. The concept thereby expressed noninstrumental worth.

The Salmantine theologians transformed the image of God into a juridical category safeguarding human dignity by appealing to propter seipsum as a philosophical bridge concept.Footnote 99 They were indebted to Aquinas here despite the fact that the theologian never developed a scholastic-juristic account of natural rights as did medieval canon lawyers. Nevertheless, in light of the Incarnation and the capacity for God intrinsic to everyone noted earlier, Aquinas accounted for the sacredness of the human person: “Reverence is due to the rational creature for its own sake.”Footnote 100 And this reverence or honor is shown precisely because the person bears the image of his or her Maker's goodness.Footnote 101

The scholastic theology of Aquinas afforded conceptual resources linking the divine image with a basic reverence towards the dignity, or intrinsic goodness, of humanity and its end in God. Vitoria and Soto introduced the capacity for injury into this conceptual scheme thereby opening the door to the idea of human natural rights pertaining to the good of a person in his own right. They specifically bridged the scholastic concept with the capacity for injuring rational creatures—considered good in themselves—who are loved by God and have the capacity for friendship with God. Vitoria's juridical point indebted to Aquinas's teaching stands out here: “brutes are incapable of (committing and receiving) injury, since they have no right in themselves [ius in se]. But a man has such a right. For we have said that only a rational nature is capable of dominium [capax dominii]; since man alone is master of himself and of his members.”Footnote 102

On a theoretical level, the capacity for committing and receiving injury discloses the philosophical and legal dimensions of the divine image. Annabel Brett observes that in the thought of Soto this yields an important recognition of the individual's right of immunity from injury by the republic.Footnote 103 Soto writes: “a man, although he is part of the commonwealth, is nevertheless also an individual existing for the sake of himself [propter se], and thereby per se capable of injury [capax iniuriae], which the commonwealth cannot visit upon him.”Footnote 104 In this way, Soto protects undue danger to the life of innocent citizens in a commonwealth while still acknowledging the public responsibility of a ruler to expose someone to risk, if necessary, in order to protect the common good.

Soto teased out the philosophical and legal implications of the image of God for human natural rights with even greater appraisal for freedom as the metaphysical ground of dominium: “Whosoever has dominium of a thing [dominium rei] suffers injury while it is taken from him. Brute animals are neither capable of justice, nor injury, for they are unable to know happiness (Aristotle, Ethics 10.8). The reason is that since they are not free, they are not of their own right [sui iuris].”Footnote 105 Only human beings can be considered in their own right, juridically speaking, since they are made free as creatures towards God—the source of happiness. It is for this reason that Soto could also say that freedom is the foundation of dominium.Footnote 106 With respect to foreign unbelievers like the Amerindians, Soto went so far as to defend their immunity from forcible coercion in religious matters, remarkably, on the basis of their “natural right of freedom” (naturale ius libertatis).Footnote 107

The discussion of human capacities, dignity, and the image of God in the Salamanca School also provides a firm basis for recognizing the intrinsic goodness of human beings on the periphery of society. Vitoria's famous Relectio de Indis is a viable resource on this point. The relectio on the Amerindians presented seven absolutely unjust titles and eight possible or arguable titles for Spanish rule over the Indians according to the law of nations.Footnote 108 Yet even before Vitoria delved into the just and unjust titles, he recognized the terrible fact of “bloody massacres and of innocent individuals pillaged of their possessions and dominions.”Footnote 109 From this awareness of the injured innocents, he defended the Amerindians as true owners of their lands and possessions against any royalist-papalist claims to the contrary. Irrespective of whether the Indians were considered sinners or infidels, they were still true owners, just as he argued in his Summa commentary. More remarkable was that he extended this category of true ownership to include children and the severely mentally impaired, neither category of which was applicable to the Amerindians anyhow.Footnote 110

In the Relectio de Indis Vitoria argued in the strongest terms that dominium is grounded in the imago Dei and that “man is the image of God by nature, that is, by his rational powers.”Footnote 111 However, it was significant that true dominium for him did not rest on the person in question exhibiting full rational agency.Footnote 112 Vitoria made the obvious point that children, even before the use of reason, are still formed to the image of God. Likewise, the severely mentally impaired (amentes), or those “who can neither have nor expect ever to have the use of reason,” can also be considered true owners.Footnote 113 What matters from a moral and legal standpoint in the instances of children and the irreversibly amentes is not that they exhibit rational agency, or even possess the capability. Rather it is that they can “suffer injury” as innocent persons made according to God's image whose rights have been violated.Footnote 114 This lends greater force to the interpretation that, for Vitoria, “man is capax dominii precisely because he is capax Dei.”Footnote 115 Thus humanity's ontological equality and spiritual moral magnitude guarded by the capacity for God establishes the creaturely parameters for recognizing what is owed to each and every true dominus as a requirement of justice regardless of social or cognitive status.

The capacity for God's human creatures to suffer injury widened the scope of dignity's threshold. And it did so according to the philosophical claim that humans exist on account of themselves; or as the legal vocabulary specifies—a person is his “own right” or has a “right of himself” (ius suum; sui iuris; ius in se). Vitoria concluded that, being made to God's image, “the child does not exist for another's sake, but for his own sake.”Footnote 116 Children, like those with severe cognitive disability, as well as infidels and Christians, are all good for their own sake being made to God's image. The late scholastic turn to the human capacity to suffer injury is an example of what theologian Jean Porter has called a de-centering of rationality for the sake of privileging relatedness and receptivity.Footnote 117 Subjective natural rights grounded in the image of God identify the boundary protecting everyone, most clearly the innocent, from undue harm.

Importantly, even the most violent criminal is not excluded from this Salmantine account of injury. Following Aquinas, Soto, for example, rightly has harsh words for the vicious criminal who has fallen from “his proper dignity” and becomes like a “senseless beast,” after harming the innocent through a violent misuse of free will.Footnote 118 But the fact remains that these violent individuals always retain the image of God and a respective capacity for God by their nature. No matter how brutal and inhuman their sinful actions, malefactors are not animals “by nature.”Footnote 119 Soto cannot deny that even the worst sinner, insofar as he is God's image, deserves to be loved.Footnote 120 This points to a healthy tension in Soto's thought between two kinds of worth—the ontological and moral—which is often elided in contemporary discussions of dignity.Footnote 121 The malefactor's fall from dignity denotes the moral dimension of agency that nevertheless presupposes the ontological dimension of him existing for his own sake, and therefore capable of suffering injury. On this basis, Soto argued that everyone, including the accused, has a natural right to a fair hearing before the judgment made by public authority.Footnote 122

The Salmantine theologians understood injury in terms of a distinctive human capacity that could take legal expression through courts by the protection of rights such as liberty, natural consumables, fair hearing, and property. In the Amerindian case, they supported the native rights of self-defense, freedom, material possessions, and self-government. This was upheld by the firm belief that as spiritual and rational creatures made to God's image, all human beings—unbelievers and mortal sinners, children and the mentally impaired, even slaves—exist for their own sake before God, which means that injury may never be committed against them. Overall, the image of God teaching among these Spanish theologians contributed to an “equalizing tendency” unprecedented in Western rights talk.Footnote 123

BEYOND WOLTERSTORFF: THE CHALLENGE OF CHRISTIAN VIRTUE TO RIGHTS TALK

I conclude by returning to Wolterstorff's account of justice and identifying its area of weakness. Wolterstorff's juxtaposition of opposing accounts of justice and dignity—Aristotle vs. Ulpian, right order vs. inherent rights, capacities vs. bestowed worth, eudaimonistic vs. biblical—serve his theoretical aim of more fully recognizing the recipient dimension of justice. So far, I have complicated this typology of justice by considering how the Salamanca School appropriated and developed scholastic concepts of the image of God and dignity to better account for the recipient dimension of justice applicable, for example, to the concrete injuries suffered by Amerindians denied their human natural rights.

What remains, however, is an argument for how the retrieval of the Salmantine theologians generates constructive resources for contemporary rights discourse in a way that Wolterstorff's view of justice does not. Wolterstorff's false dichotomy between an ethic of virtue and an ethic of rights can be challenged by the Spanish theologians, who articulate an account of human injury without abandoning the importance of virtue as a reliable norm critical to their Christian ethic. In order to move beyond the limits of Wolterstorff's philosophical theism, further attention, albeit briefly, must be given to both the image of God as a dynamic spiritual moral concept and the Christian virtue of charity.Footnote 124

Wolterstorff's important task is to identify the biblical vision of justice as a ground for inherent rights. This leads him to conclude that the Christian teaching on love and forgiveness affirms, rather than supplants, justice. He makes an important distinction between primary rights and reactive (or retributive) rights relevant to the practice of Christian love through forgiveness of one's wrongdoers.Footnote 125 One cannot forgive unless there is first recognition that a wrong has been committed. The wrong addresses the realm of primary rights. On the other hand, reactive rights refer to claims or permissions acquired in response to having one's primary rights denied, which may lead to a right to be angry or a right to punish and support the punishment of the wrongdoer.Footnote 126 Wolterstorff sees here the distinctively religious contribution to his theory of rights: “To forgive the person who has wronged one is to forgo exercising some or all of one's retributive rights. But one can genuinely forgo exercising one's retributive rights only if one recognizes that one has them.”Footnote 127

By turning to the practice of forgiveness, Wolterstorff's moral victim becomes an active participant who has the ability to effect healing and restoration amidst profound grief, suffering, and righteous indignation. It is quite notable that Wolterstorff in this instance moves beyond the dominant language of claiming, and instead proposes forgoing, one's rights. However, by restricting the response of forgiveness to reactive rights, his analysis undercuts a deeper critical grounding for a Christian theory and practice of justice. Wolterstorff misses a unique opportunity to say more about what forgiveness, as well as other central acts of Christian love such as mercy, sacrifice, and solidarity can uniquely offer contemporary rights discourse.

Wolterstorff appears to foreclose such a possibility because his typology of justice fails to grant theoretical weight to theological resources supplied by virtue ethics. The School of Salamanca and its reflection on the theological virtue of charity presents a model of love in justice that is not merely theistic, but Christological. Beyond Wolterstorff, the late scholastic theologians offer a rich ethical possibility to Christian rights talk: that a virtuous person may forgo a human natural right (or what Wolterstorff calls a primary right) in order to protect the good of another and to demonstrate love for his friends, even his enemies. The virtue of charity provides a critical grounding for the renunciation of rights.

The Spanish theologians were able to fuse charity with their account of subjective natural rights thereby establishing a spiritual depth to moral agency. In this regard, they spoke of sacrificing one's rights as something virtuous. Nevertheless, the focus on the agent's virtue was inseparable from recognizing and alleviating the suffering of those most in need of justice. This interconnection between the agent and patient expresses the biblical command to love one's neighbor as oneself witnessed, for example, among the first Spanish Dominicans in the New World who renounced their right to property and became poor in strict observance of their spiritual vows. From the perspective of solidarity and sacrifice, these friars could see and hear the cries of the oppressed Amerindians, and intervene to defend them. This mendicant spiritual practice of renunciation was entirely consistent with Aquinas's evangelical teaching that the perfection of charity entails loving one's neighbor more than one's own body.Footnote 128

On this point, Vitoria's relectio on homicide supplies constructive resources for a Christian theory and practice of rights. Vitoria praised someone who, though having a right over his own body, gives it up by not exercising his right to defend himself, and thus patiently bears a noble death. According to Vitoria, the freedom of being made to God's image entails the freedom “to cede my own right” (cedere iuri meo), and not always claim it.Footnote 129 Such an action is not an abandonment of one's personal freedom but a greater spiritual expression of it.Footnote 130 From this theistic standpoint, no one possesses the Lord's absolute dominium over life and death; however, an individual person has the freedom to renounce his primary right to defend bodily life in order to die for his friends.

Notably, Vitoria does not restrict the virtuous act of sacrificing one's rights to those under religious vows or even to Christians. The discussion of friendship in Book 9 of the Nicomachean Ethics led Vitoria to conclude Aristotle virtually taught the same thing: “that it is a most honorable thing to die for one's friends, and for a son to redeem his father rather than himself, and that it is more honorable for children to give food to their parents rather than themselves.”Footnote 131 But that kind of love, seen among genuine friends or faithful children, though virtuous, reaches new spiritual heights for Vitoria in the perfect love of God. Citing the First Epistle of John 3:16 Vitoria identified sacrifice as praiseworthy according to the teaching and example of Christ. “In this we have known the charity of God, because he hath laid down his life for us: and we ought to lay down our lives for our brethren.”Footnote 132

Christians are to love one another as Jesus loves, which is to say, they are called to love even persecutors. For Vitoria, this means that someone may even give up his life for the spiritual good of an enemy aggressor without relinquishing his concern for eternal life. Vitoria's point is decisive: “the fact that one is my enemy does not take away from me the liberty of being able not to kill him.”Footnote 133 Domingo de Soto, with a keener accent on freedom in justice, writes that “the attacked not only has a right of defending himself, but also the freedom to renounce this right out of charity.”Footnote 134 To allow death at the hands of an aggressor by giving up the natural right of self-defense so that one's enemy still has a chance for spiritual conversion through mercy is the dying hope of a Christian martyr, classically understood.

The saying still etched on the walls of the Dominican cloister of San Esteban in Salamanca where Vitoria and Soto once lived and prayed succinctly reflects this Christian spiritual legacy of rights: “it is better to renounce the right itself than to violate someone else's.”Footnote 135 If justice is about giving to each his or her due, then charity concerns the gift of self to offer what is due to another in need, especially directed at the poor, innocent, and oppressed. That is the paradigmatic expression of Christian neighbor-love in the context of rights talk relevant to contemporary debates. The moral agent's virtues of justice and charity, which entail heroic and even saintly acts of courage and sacrifice, bring about an even greater recognition of injured persons. Though this argument receives only brief treatment here, it highlights an area of future theological inquiry.

CONCLUSION

By recognizing the innocence of Amerindians on the margins of empire, the late scholastic Spanish theologians contributed to the development of rights discourse in the West: they connected the image of God with a minimum threshold of human dignity immune from injury pertaining equally to every individual existing for his or her own sake irrespective of social or cognitive status. The theologians also disclosed the Christological dimension of dignity as growth in moral excellence through one's virtuous desire to protect and defend others out of charity at the risk of one's own material comforts, bodily needs, and even physical life. They envisioned human natural rights according to an incarnational logic whereby the virtue of charity prompts greater sacrifice on the part of the agent and deeper solidarity with recognized victims of injury denied what was owed to them as rational creatures loved by God, and capable of receiving divine grace. This charity also brings the gift of forgiveness, which extends even to unjust enemies, or those who have fallen from their dignity in a moral sense.

Beyond Wolterstorff, the Spanish theologians demonstrate that virtue ethics and a capacities approach are not only compatible with an ethic of rights, but can strengthen the recognition of the patient dimension of justice expressed through rights talk without neglecting the agent who attains greater perfection through moral excellence. This theory and practice of Christian rights derived from the image of God offers constructive resources for a much-needed critical grounding in contemporary liberal societies and elsewhere. Christians are certainly not alone in risking their well-being to defend the rights of others and give what is due to them. Nevertheless, Christians must strive to become like the perfect image of the Father by practicing the virtues of solidarity and charity, which promote greater maturity in self-giving toward the least of God's children in society.

ACKNOWLEDGEMENTS

The author would like to personally thank the editors of the journal and the anonymous reviewers for providing substantive feedback regarding the content and structure of this article at various points. Special thanks are also due to Jennifer Herdt and Siobhan Benitez, both of whom read earlier drafts of this article and offered helpful comments and suggestions.

References

1 John Witte has highlighted the historical significance of these thinkers: “the formulations of the Spanish neo-scholastics in the sixteenth century, most of them Dominicans, were of monumental importance to the evolution and expansion of Western rights talk.” John Witte, Christianity and Human Rights: An Introduction (New York: Cambridge University Press, 2010), 22. Despite such acknowledgement, no chapter in the volume is dedicated to tracing the important legacy of the Spanish scholastics.

2 Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton: Princeton University Press, 2008); Justice in Love (Grand Rapids: Wm. B. Eerdmans, 2011); The Mighty and the Almighty: An Essay in Political Theology (New York: Cambridge University Press, 2012); Understanding Liberal Democracy: Essays in Political Philosophy, ed. Terence Cuneo (Oxford: Oxford University Press, 2012); Journey toward Justice: Personal Encounters in the Global South (Grand Rapids: Baker Academic, 2013).

3 Christian critics of subjective rights language in liberal democracies include Joan Lockwood O'Donovan, “The Concept of Rights in Christian Moral Discourse,” in A Preserving Grace: Protestants, Catholics, and Natural Law, ed. Michael Cromartie (Grand Rapids: Wm. B. Eerdmans, 1997), 143–56, and Natural Law and Perfect Community: Contributions of Christian Platonism to Political Theory,Modern Theology 14, no. 1 (1998): 1942CrossRefGoogle Scholar; O'Donovan, Oliver, “The Language of Rights and Conceptual History,The Journal of Religious Ethics 37, no 2 (2009): 193207CrossRefGoogle Scholar; Milbank, John, “Against Human Rights: Liberty in the Western Tradition,Oxford Journal of Law and Religion 1, no. 1 (2012): 132CrossRefGoogle Scholar.

4 Wolterstorff distinguishes two conceptions of human flourishing in the task of pursuing justice: one conception is that of philosophical eudaimonism, which is encapsulated by the ancient traditions of Greece and Rome; the other biblical conception is described in terms of “shalom” or “eirenéism,” which upholds the view of divine peace found in the Hebrew and Christian scriptures. This biblical conception of flourishing covers a wider range of human relations that includes our relations to God, fellow human beings, ourselves, and creation in general. As I understand Wolterstorff, the main difference between a philosophical and a biblical conception of flourishing is that the latter goes beyond justice to include love for one's neighbor. Furthermore, the enjoyment of the goods to which we have rights (such as food and shelter) is not merely instrumental but constitutive of human flourishing, or a well-going life and history. See Wolterstorff, Justice: Rights and Wrongs, 222–26; Journey toward Justice, chapter 18.

5 Wolterstorff, Justice: Rights and Wrongs, 7–8. Wolterstorff describes the importance of rights talk further in Journey toward Justice, 53: “The language of rights, and its companion language of being wronged, is for bringing to speech the recipient- or patient-dimension of the moral order, the dimension of how we are done unto. In thinking about the moral order, the philosophical tradition has focused all of its attention on the agent dimension. Thereby it has, in my judgment, given us a seriously incomplete and distorted picture of the moral order as a whole.”

6 Richard Rorty, “Human Rights, Rationality, and Sentimentality,” in On Human Rights, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 118–19.

7 Wolterstorff, Justice: Rights and Wrongs, 319–21, 391–93.

8 Ibid., 393 (emphasis added).

9 Ibid., 386. As Wolterstorff highlights in the epilogue, “we are appealing to a framework of justice that lies behind or above the rights conferred by legislation or social practice; we are appealing to a system of rights by reference to which those laws and social practices that confer rights can themselves be evaluated and by reference to which our departures from those laws and practices can be evaluated. Such rights are natural rights.” Ibid. (Wolterstorff's emphasis).

10 Ibid., 64.

11 Wolterstorff, Justice: Rights and Wrongs, part 1. Wolterstorff is especially indebted to Brian Tierney's pioneering work on subjective natural rights in the Latin West. See generally Brian Tierney, The Idea of Natural Rights (Grand Rapids: Wm. B. Eerdmans, 2001).

12 Wolterstorff, Justice: Rights and Wrongs, 68.

13 Ibid., 293.

14 Ulpian, as quoted in Justinian, Digest, 1.1.10, prologue (“Iustitia est constans et perpetua voluntas ius suum cuique tribuendi.”).

15 Wolterstorff, Justice: Rights and Wrongs, 22–26.

16 Ibid., 43 (“For the right order theorist, the violation of someone's natural rights is never, in itself and as such, the treating of a human being with less than due respect. It is always instead an indicator of the fact that some natural law of objective obligation has been disobeyed. A partisan of right order may point to the plight of the poor, he may say their rights are being violated. But pointing to the victims is for him a roundabout way of calling attention to the more fundamental fact that the powerful and well-to-do are not living up to their obligations.”).

17 Ibid., 28. With reference to Plato's classical view of justice, Wolterstorff says, “What makes a social order of that sort right and just is that it measures up to the objective norm for the right and just social order, that objective norm being understood by Plato as one among the Forms.” Ibid.

18 Wolterstorff, The Mighty and the Almighty, 101–2. Wolterstorff argues that Paul's view of political authority in Romans 13 contrasts with the classical view (in this specific instance Aristotle) in the following way: “These are two very different ways of thinking about the task of the state. One says that the task of the state is to promote virtue in the citizens. The other says that the God-given task of the state is to protect citizens from being wronged, this having the effect of encouraging a certain minimal virtue in the citizens. The former view is often called a perfectionist view of the task of the state; the latter might be called a protectionist view.” Ibid.

19 Ibid.; Wolterstorff, Understanding Liberal Democracy, chapter 13.

20 Wolterstorff, Justice: Rights and Wrongs, 29–30.

21 According to Oliver O'Donovan, under the modern view “right is a primitive endowment of power with which the subject first engages in society, not an enhancement which accrues to the subject from an ordered and politically formed society.” The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge: Cambridge University Press, 1996), 262. The historical narrative of decline regarding rights among Christian theorists has been deeply influenced by Michel Villey and Leo Strauss, who viewed, respectively, William of Ockham and Thomas Hobbes as the “nominalist” and “modern” inventors of a rampant individualistic freedom spawning subjective rights according to personal desires.

22 Wolterstorff, Justice: Rights and Wrongs, 178.

23 Ibid.; Wolterstorff, Journey toward Justice, 60.

24 Wolterstorff, Justice: Rights and Wrongs, 309–10.

25 Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. H. J. Paton (New York: Harper & Row, 1964), 95.

26 Wolterstorff, Understanding Liberal Democracy, 186.

27 Ibid., chapter 8. Elsewhere, Wolterstorff casts his critique of secular views of rights even wider when he points out that the legal philosophy of the late Ronald Dworkin “falls prey to the same difficulties that beset capacities accounts,” Justice: Rights and Wrongs, 334. Like Kant, Dworkin had “his eye on mature properly formed human beings: such beings are creative masterpieces of natural creation and self-creation.” Ibid.

28 James Griffin, On Human Rights (New York: Oxford University Press, 2008), 32.

29 Ibid., 45.

30 Griffin also draws attention to liberty and welfare along with autonomy for his trio of high-level values supporting his substantive account of human rights grounded in normative agency. See Ibid.

31 Ibid., 150.

32 Wolterstorff, Understanding Liberal Democracy, chapters 7–8.

33 Ibid., 184.

34 Thomas Aquinas, Summa theologiae 1a2ae, Prologue. All English translations of the Summa theologiae are taken from those by the Fathers of the English Dominican Province unless noted otherwise.

35 Wolterstorff, Understanding Liberal Democracy, 194 (“[W]hatever functions of personhood or capacities of agency are required to possess the image of God, some human beings do not yet have those, some no longer have them, and some never have them … If the image of God is understood in the traditional way, then some human beings lack the image of God.”).

36 Wolterstorff, Justice: Rights and Wrongs, 352.

37 Ibid.

38 The source of Wolterstorff's view here is twentieth-century Swiss Reformed theologian Karl Barth, who taught that “The will for fellowship [is God's] very being.” Church Dogmatics, vol. 2, The Doctrine of God, part 2 (cited in Wolterstorff, Understanding Liberal Democracy, 198n17).

39 Wolterstorff, Understanding Liberal Democracy, 199.

40 Ibid., 217. Regarding the legacy of Aquinas today for thinking about dignity, Wolterstorff says: “The idea that personhood consists in the capacity for normative or rational agency has a long and honorable pedigree; it goes back to Aristotle. Its most vocal present-day representatives tend to identify themselves as Thomistic Aristotelians.” Ibid. He does not mention any specific representatives here.

41 Wolterstorff, Journey toward Justice, 246–47.

42 “If anyone would reduce it [justice] to the proper form of a definition, he might say that justice is a habit whereby a man renders to each one his due by a constant and perpetual will: and this is about the same definition as that given by the Philosopher (Ethics V) who says that justice is a habit whereby a man is said to be capable of doing just actions in accordance with his choice.” Aquinas, Summa theologiae 2a2ae, q. 58. a. 1.

43 Ibid., 2a2ae, q. 63, a. 1.

44 Wolterstorff, Justice: Rights and Wrongs, 178.

45 Ibid., 42, 179.

46 For a helpful presentation of Aquinas on this point, as well as the other-regarding nature of the classical virtue of justice, see Josef Pieper, Justice, trans. Lawrence Lynch (New York: Pantheon Books, 1955).

47 Aquinas, Summa theologiae 1a, q. 21, a. 1. Aquinas refers here to the Divine Names (chapter 8, section 4) of Pseudo-Dionysius: “quod omnibus tribuit propria, secundum uniuscuiusque existentium dignitatem.” The Fathers of the English Dominican Province translate dignitatem as “condition,” though it is more suitable to translate it as “dignity” or “worth” to better account for the goodness ascribed to the divine effect.

48 Ibid., q. 21, a. 1 ad 3.

49 Ibid.

50 Ibid., 2a2ae, q. 66, a. 1.

51 Ibid., q. 66, a. 1 ad 1.

52 Ibid., 1a2ae, q. 16, a. 2.

53 For a concise overview of Aquinas's account of the image of God along these lines, see Joseph P. Wawrykow, The Westminster Handbook to Thomas Aquinas (Louisville: Westminster John Knox Press, 2005), 73–75.

54 Aquinas, Summa theologiae 1a, q. 93, a. 1.

55 “Faciamus hominem ad imaginem et similitudinem nostram” and “Et creavit Deus hominem ad imaginem suam.”

56 Jean-Pierre Torrell describes the dynamism of the divine image: “This man … is not considered in a static way, like inanimate matter. But, if it can be put this way, he is a being in the process of becoming.” St. Thomas Aquinas, vol. 2, Spiritual Master, trans. Robert Royal (Washington: Catholic University of America Press, 2003), 81.

57 Aquinas, Summa theologiae 1a, q. 35, a. 2 ad 3.

58 Aquinas reads this biblical verse through the glossa ordinaria, a standard biblical commentary used in the Middle Ages containing the interpretations of scripture according to church fathers. He later employs the verse to account for the inherence of natural law thus showing an important conceptual link between it and the image of God, Summa theologiae 1a2ae, q. 91, a. 2. Jaime Brufau Prats claims that this connection reveals an “inalienable natural right” in Aquinas understood in this qualified sense: “El hombre es su providencia, pero no en términos absolutos, sino en cuanto participa de la Providencia divina … Se trata de un dominio participado y, por tanto, con el carácter de limitación y dependencia.” Jaime Brufau Prats, La Escuela de Salamanca ante el descubrimiento del Nuevo Mundo (Salamanca: Editorial San Esteban, 1989), 36.

59 Aquinas, Summa theologiae 1a, q. 93, a. 2 ad 3. The source of this teaching linking the image of God directly with a capacity for the highest good (or God) was St. Augustine and his work On the Trinity. Augustine taught that despite the soul's corruptibility, it “is a great nature … because it is capable of the highest nature and can be a sharer in it.” See Augustine, On the Trinity, ed. Gareth Matthews (Cambridge: Cambridge University Press, 2002), book 14, chapter 4.

60 Ibid., 3a, q. 1, a. 2.

61 Ibid., q. 4, a. 1.

62 Ibid., q. 4, a. 1 ad 2 (“The likeness of image is found in human nature, forasmuch as it is capable of God, viz. by attaining to Him through its own operation of knowledge and love.”).

63 Ibid., 1a2ae, q. 113, a. 10.

64 For more on the connection between Aquinas and the School of Salamanca regarding the image of God doctrine and dominium, see Brufau Prats, La Escuela de Salamanca ante el descubrimiento del Nuevo Mundo, chapter 1.

65 Juan Belda Plans, La Escuela de Salamanca y la renovación de la teología en el siglo XVI (Madrid: Biblioteca Autores Cristianos, 2000), 157.

66 Vitoria learned this from his Dominican teacher Peter Crockaert at the Collège of Saint-Jacques during his studies in Paris.

67 Simona Langella, La Ciencia Teológica de Francisco de Vitoria y la “Summa Theologiae” de Santo Tomás de Aquino en el siglo XVI a la luz de textos inéditos (Salamanca: San Esteban, 2013), 72–73.

68 Seed, Patricia, “‘Are These Not Also Men?’: The Indians' Humanity and Capacity for Spanish Civilization,Journal of Latin American Studies 25, no. 3 (1993): 640CrossRefGoogle Scholar. Though an otherwise illuminating article, Seed's revisionist history inaccurately projects imperial domination into the Spanish Dominicans, thereby overlooking their rich discourse of natural rights. Ibid.

69 For a translation of the text, see W. Eugene Shiels, King and Church: The Rise and Fall of the Patronato Real (Chicago: Loyola University Press, 1961), 78–81.

70 It is worth noting that not all Spanish Dominicans shared such a positive view of Amerindian capacities. Seed, “‘Are These Not Also Men?,’” 642–45.

71 Hernández, Ramón, “Primeros dominicos del convento de San Esteban en América,Ciencia Tomista 113, no. 2 (1986): 317–42Google Scholar.

72 Lawrence A. Clayton, Bartolomé de las Casas and the Conquest of the Americas (Malden: Wiley-Blackwell, 2011), 42.

73 Ibid., 65–66.

74 Vitoria and Soto delivered some twenty-five relectiones between 1526 and 1554 at the University of Salamanca.

75 Melchor Cano, “De dominio indorum,” in Juan de la Peña, De bello contra insulanos: Intervención de España en América. Escuela Española de la Paz, segunda generación, 1560–1585, ed. Luciano Pereña et al., Corpus Hispanorum de Pace 9 (Madrid: Consejo Superior de Investigaciones Científicas, 1982), 559 (“Cum tamen illi non sint stulti, sed habent mediocrem usum rationis, quoniam leges suas habent et susceptibiles sunt evangelicae doctrinae, ergo habent dominium iurisdictionis.”). All Latin translations of Salmantine thinkers are the author's own unless noted otherwise.

76 My analysis is indebted to the thorough and nuanced treatment comparing and distinguishing Vitoria's and Soto's respective accounts of subjective rights in the work of Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997), 124–64. I also benefit from Tierney's superb narrative and his identification of subjective right in Vitoria with permissive law, or “a license to act within the framework of law.” Idea of Natural Rights, 259.

77 Tierney, Idea of Natural Rights, 258–65; Brett, Liberty, Right and Nature, 126–32.

78 Francisco de Vitoria, Comentarios a la Secunda secundae de Santo Tomás, ed. Vicente Beltrán de Heredia, 6 vols. (Salamanca, 1932–52), 62.1, §11; Domingo de Soto, De dominio, in Relecciones y opusculos, trans. Jaime Brufau Prats (Salamanca: San Esteban, 1995), §§10–11.

79 This terminology is from Brett, Liberty, Right and Nature, 150.

80 Soto, De dominio, §10 (“Nullus est dominus alicuius rei nisi sit in potestate sua ea uti et non uti; sed solus homo inter creaturas habet hanc potestatem per liberum arbitrium; ergo.”). It is worth mentioning that the biblical teaching on lordship over the earth in Genesis 1:28 supplied the hermeneutical starting point (or locus relegendus) of Soto's theological treatment of dominium in this relectio.

81 Ibid., §11 (“fundamentum dominio est imago Dei ad quam solus homo creatus est”).

82 One important point of contrast worth mentioning is that for Vitoria dominium is coterminous with subjective right whereas for Soto dominia are a species of right, which means the latter is a wider and more expansive notion that does not necessarily imply the former. Soto gives the example of children and legal slaves who, though they do not have superior power (dominium) over their parents or masters, still have a right to be protected and nourished by them. Ibid., §2.

83 Vitoria, Comentarios, 62.1, §13 (“quia nulla fuit nec est gens tam barbara quae non credat ese licitum homini uti rebus”).

84 Ibid. (“[Q]uia Deus et natura nihil faciunt frustra. Cum ergo Deus omnia alia fecerit, dicendum est quod illa fecit propter hominis conservationem. Ergo habet jus utendi ominibus illis.”).

85 Ibid., §16 (“[P]osset uti qualibet re et etiam abuti pro libito suo, dummodo non noceret aliis hominibus vel sibi.”).

86 Ibid., §28 (“[Q]uod christiani non possunt occupare terras infidelium … cum ergo illi sint veri domini, si ipsi nolunt illas nobis dare, sequitur quod non possumus illas retinere et capere. Sicut de istis indis certe nullus posset capere terras ab eis. Item, quia nullus princeps christianus est superior ad illos. Item, nec papa est superior ad illos in temporalibus nec in spiritualibus, si non sunt baptizati.”). While it is true that Vitoria goes on to say that it might be lawful to wage war in self-defense against Amerindians if they obstruct preachers, he appeals here to the law of nations (iure gentium), which is formally applicable to either Europeans or Amerindians. Ibid. He makes virtually the same argument in Relectio de Indis on the basis of the right of travel (ius pereginandi) but only as a matter of possible debate about, rather than certainty over, war. See Vitoria, “On the American Indians,” in Political Writings, ed. Anthony Pagden and Jeremy Lawrence (Cambridge: Cambridge University Press, 1991), 278–86.

87 The legal document was read aloud by the Spaniards before conquest and it “required” natives to recognize the alleged sovereignty of the Spanish crown granted by the papacy or risk being subjugated through war and enslavement. For a helpful discussion of the Requirement (or Requerimiento) within its political and theological context, see Luis Rivera Pagán, A Violent Evangelism (Louisville: Westminster/John Knox Press, 1992), 32–41.

88 Soto, De dominio, §32 (“Imperator ad terras infidelium nullum ius habet nec dominium … ex eo enim quod sunt infideles non amittunt bona sua nec dominium quod habent iurisdictionis, sicut non amittitur ob maiora peccata.”). Notably, Soto cited Aquinas as an authority to make this point about infidel dominium. He referred to the Summa theologiae 2a2ae, q. 10, a. 10 to make an important scholastic political point: “dominium and authority are institutions of human law, while the distinction between faithful and unbelievers arises from the Divine law. Now the Divine law which is the law of grace, does not do away with human law which is the law of natural reason.” For more on Soto's application of this scholastic teaching on natural law (as well as Bartolomé de las Casas) to address the affair of the Indies, see the author's “The Freedom of the Gospel: Aquinas, Subversive Natural Law, and the Spanish Wars of Religion,” Modern Theology 31, no. 2 (2015): 312–37.

89 Ibid., §34 (“[A]ccipere ultra hoc bona illorum aut subiicere imperio nostro, non video unde habeamus tale ius.”).

90 Roger Ruston, Human Rights and the Image of God (London: SCM Press, 2004), 85–86. Ruston identifies the political significance of this teaching in Vitoria: “If we must deny that non-human creatures have rights and a capacity for dominion (freedom over their acts), then the corollary of this is that we must attribute it to all humans. Vitoria, in arguing the case for the Indians, is the first to make this connection clear, and establish the idea of rights belonging to human beings as such. It was a significant conclusion because it rescued the concept of natural rights—which had been around for a long time in the writings of scholastics and lawyers—from being a general term which applied to every nature in the universe and focused it on human beings, allowing it to become a politically useful concept.” Ibid, 86.

91 Alejandro Guzmán Brito, El derecho como facultad en la neoescolástica Española del siglo XVI (Madrid: Iustel, 2009), 52–53. Although Guzmán Brito acknowledges the novelty of Vitoria's turn to the capacity for injury as a way of establishing the natural rights of humans, he does not think the theologian provided sufficient explanation of the concept. This article's focus on the imago Dei in Vitoria and Soto offers at least one explanation.

92 Domingo de Soto, De iustitia et iure (Madrid: Instituto de Estudios Politicos, 1967), book 4, question 2, article 1 (“Nam quatenus homo, corporeus est, debentur illi ea quae ad vitam eius sunt necessaria. Haec enim ratione collegit Aristoteles, omnia corporea esse facta propter hominem. Itaque quem admodum licet Deus per miraculum creavenit homines nihilominus membra et potentiae naturales naturae suae debita sunt: sic illa collatio dominii rerum fuit explicatio quedam naturalis iuris, veluti debiti humanae naturae, supposita eius existentia, quam ei per creationem gratis contulerat.”).

93 Aquinas, Summa theologiae 2a2ae, q. 64, a. 6.

94 Vitoria, Reflection on Homicide and Commentary on “Summa Theologiae” II–II Q.64, trans. John P. Doyle (Milwaukee: Marquette University Press, 2008), 187.

95 Letter to Miguel de Arcos, O.P. (1534), Appendix A, in Political Writings, 331.

96 Ibid., 332.

97 Ibid., 333.

98 Michael Rosen provides this citation from Aquinas's commentary on the Sentences in Dignity: Its History and Meaning (Cambridge: Harvard University Press, 2012), 16–17 (“quia dignitas significat bonitatem alicujus propter seipsum”).

99 See Brett's attention to this important concept in Soto in Liberty, Right and Nature, 158–59.

100 Aquinas, Summa theologiae 3a, q. 25, a. 3 ad 3 (“quod creaturae rationali debetur reverentia propter seipsam”).

101 Ibid., 2a2ae q. 103, a. 3 ad 3.

102 Vitoria, Commentary on “Summa theologiae” IIII Q.64, 121. None of this denies the possibility that non-human creatures can be harmed, even according to a violation of natural right. However, the understanding of right is not a human natural right grounded in the imago Dei and the intrinsic worth of the human being existing propter seipsum. Soto, for example, leaves open such a possibility since right is not coterminous with human dominium thus allowing for a wider range of applicability. On this distinction, see Brett, Liberty, Right and Nature, 154.

103 Brett, Liberty, Right and Nature, 160–61.

104 Soto, De iustitia et iure, book 5, question 1, article 7. See also Vitoria's discussion of innocent unbelievers in his commentary on Aquinas's treatise on law: “A king may on no account, and for no considerations of utility to the commonwealth, enact laws stipulating the death of innocents, even against unbelievers, since this is against the express precept of the natural law. Those who execute the innocent are simple murderers. Only God is the master of life and death.” Ibid., “On Law,” 204.

105 Ibid., De iustitia et iure, book 4, question 1, article 2 (“Quicunque; dominium habet cuius libet rei, iniuria afficitur dum illi auferetur. Bruta autem animalia neque; iustitiae capaces sunt, neque, iniuriae, neque quam non cognoscunt felicitatis.10.Ethico.cap.8. Cuius ratio est quod cum non sint libera, non sunt sui iuris.”).

106 Ibid., book 4, question 1, article 1; question 2, article 2.

107 Ruston, Human Rights, 111; Brufau Prats, La Escuela de Salamanca, 115.

108 Vitoria's follow-up relectio on just war makes the crucial claim that the grave injury or harm of innocent persons is the only valid cause for war. See Vitoria, “On the Law of War,” in Political Writings, 303.

109 Vitoria, “On the American Indians,” in Political Writings, 238. For Latin references to Vitoria's Relectio de Indis I rely on Obras de Francisco de Vitoria, ed. Teofilo Urdanoz (Madrid: Biblioteca de Autores Cristianos, 1960).

110 This point is underappreciated by scholars who overstate Vitoria's controversial eighth possible title to rule based on the mental incapacity of subjects. He proposed the title merely “for the sake of argument” having already established earlier in the relectio that the Amerindians exhibit use of reason in their social life. Vitoria, “On the American Indians,” 237.

111 Ibid., 242.

112 Ruston makes the relevant point: “[T]he image of God in terms of the possession of reason does not put human beings on some kind of sliding scale by which some can be reckoned more rational than others and thus claim more rights.” Human Rights, 87.

113 Vitoria, “On the American Indians,” 249.

114 “Videtur adhuc quod possint esse domini quia possunt pati iniuriam. Ergo habent ius.” Obras, 664.

115 Simona Langella, Teología y ley natural: estudios sobre las lecciones de Francisco de Vitoria, trans. Juan Montero Aparicio (Madrid: Biblioteca de Autores Cristianos, 2011), 155.

116 Vitoria, “On the American Indians,” 249 (“puer non est propter alium sed propter se”).

117 Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids: Wm. B. Eerdmans, 2010), 333. For Porter's own theological account of the image of God and its relationship to subjective natural rights indebted to the scholastic tradition, see 328–39.

118 Soto, De iustitia et iure, book 5, question 1, article 2. Cf. Aquinas, Summa theologiae 2a2ae, q. 64, a. 2 ad 3.

119 See Annabel S. Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011), 35–36, where the author contrasts Soto's account with John Locke's less salubrious view of a violent criminal in the Second Treatise of Government.

120 Soto, De iustitia et iure, book 5, question 1, article 7: (“iniquissima etiam peccatoris natura, quatenus Dei figmentum, diligenda est”).

121 Thomas D. Williams, Who Is My Neighbor? Personalism and the Foundations of Human Rights (Washington: Catholic University of American Press, 2005), 156.

122 Soto, De iustitia et iure, book 5, question 1, article 3 (“Est enim contra ius naturae ut contra inauditam partem, indictaque causa, sententia feratur.”).

123 This expression comes from Jeremy Waldron, “The Image of God: Rights, Reason, and Order,” in Witte, Christianity and Human Rights, 225.

124 Wolterstorff's philosophical limit may have to do with his desire to present an ecumenical theistic grounding for rights that can be supported by Jews and Muslims. Nevertheless, I think there is a way to affirm an ecumenical ground for rights through a virtues approach open to non-theists and all people of good will according to an incarnational or Trinitarian logic. Wolterstorff seems very much attracted to this prospect of high Christology as the following comment indicates, but he never theoretically pursues the stronger implications of this additional grounding: “To each of us the Second Person of the Trinity pays the honor of assuming our nature, thereby sharing our nature with us. We each have no greater dignity than that.” See Journey toward Justice, 139.

125 I wish to thank the individual who brought this important distinction to my attention at the 2014 annual meeting of the Society of Christian Ethics in Seattle, Washington. Unfortunately, I did not catch her name, but her point, I hope, has been duly noted.

126 Wolterstorff, Justice in Love, 54; Journey toward Justice, 22–23.

127 Wolterstorff, Justice: Rights and Wrongs, 106.

128 Aquinas, Summa theologiae 2a2ae, q. 26, a. 5.

129 Vitoria, On Homicide, 95.

130 Annabel Brett identifies the mendicant view of Aquinas on this point from his De perfectione spiritualis vitae. The dominium that is freedom of one's own actions is a kind of spiritual reflexivity that is constitutive of humanity as such. To relinquish it is to deny one's own humanity. See Liberty, Right and Nature, 13–14.

131 Vitoria, On Homicide, 97.

132 Ibid.

133 Ibid, 199 (emphasis added).

134 Soto, De iustitia et iure, book 5, question 1, article 8 (“[I]us habet invasus quisque defendendi se: nihilominus ei liberum est propter charitatem iuri eiusmodi renuntiare.”).

135 “Es mejor renunciar al propio derecho que violentar el ajeno.” This classic statement in Spanish is taken from Vitoria's Relectio de Indis.