O conceito de ius gentium em Tomás de Aquino e Francisco de Vitoria

• Autor(a) principal: Barretto, Rafael Zelesco
• Data de Publicação: 2016
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9334
• topic: Ius gentium; Natural Law; Thomas Aquinas; Francisco de Vitoria; Direito das gentes; Direito natural; Tomás de Aquino; Francisco de Vitoria; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO INTERNACIONAL PUBLICO

This thesis focuses on the birth process of modern International Law, by comparing Thomas Aquinas idea of ius gentium with Francisco de Vitoria s. It aims at establishing the changes this concept has undergone between those two authors, in order to ascertain if International Law so as it is known nowadays has its origin in the gap between Aquinas and Vitoria. Therefore, this thesis employs the method of the historiography of concepts, endeavouring to read each author in the context of both his own time and purposes. In Aquinas work, ius gentium assumes an hybrid nature, positioning itself between natural and positive law, while lacking an definitive assessment about his belonging. However, drawing upon his general theory on law, it is possible to identify his ius gentium with an initial adequation between natural law and the realities of different peoples. It shall be determined by means of a proportion between natural law abstract parametres and the basic circumstances under which different societies exist. Although Vitoria does not deny such reasoning, his own ius gentium displays some more positive and subjective features. He felt compelled to work with clear concepts, in order to play an effective role in his time s controversies, which ranged from the conquest of America to European religious s wars. In this way, the Spanish theologian took advantage of the lack of determination of Aquinas s ius gentium and employed it almost as a law, dividing it between an universal concept, which can be understood by everyone thorough use of reason, and a particular one, whose contents can be freely chosen by the nations that will be bound by it. But Vitoria s view is considerably dependent on his intellectual reference, Aquinas, and his ius gentium aims chiefly at the individual, not at the political community. Both authors place ius gentium, as well as law as a whole, fully inside the domain of morality. As theologians, their main concern is with the salvation of the soul, not with justice requirements. Even in an mostly unconscious way, Francisco de Vitoria sets the ground for modern International Law, by arguing for the reality of universal faculties enjoyed by all men, and by employing ius gentium as a common language that can be understood even by the most distinct people. Now, some core features of contemporary International Law, such as the concept of sovereignty, the idea of an interstate community, or a global governance perspective, are absent from both authors.