Teoria de la Guerra en Francisco Suarez.

by Luciano Perena Vicente

Review by: Josef L. Kunz
The American Journal of International Law, Vol. 49, No. 3 (Jul., 1955), pp. 429-430
Published by: American Society of International Law
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 BOOK REVIEWS AND NOTES 429

positive internationallaw, they were at least rules of positive ethics ac-

cepted by eivilised men everywhere,to which the accused could properly
be held in the forumof ethics."
In general throughthis Book III, the treatmentof economicwarfare
in its relation particularly to the law of neutral rights and duties is a
mostuseful contribution,as for example Discourse 24, analyzingthe effect
on the law of neutralityof the increase in state trading. See also Dis-
course 30 for its discussionof the errorsof Captain Mahan. On the other
hand some generalizationsseem to be so exclusivelybased on the history
of United States-European relations as to be deprived of global validity.
On page 528 and in Discourse 28 one finds a brief but interesting
analysis of the old question whetherprize courts actually apply interna-
tional law as such. The treatmentsof new problemsin warfare such as
those created by new weapons and air developmentsand the status of
"unprivileged belligerency" (Major R. R. Baxter's term which Stone
adopts) are helpful leads in fields where the older literature can con-
tributelittle. Discourse 32 on postwarrepatriationof unwillingprisoners
will not be agreed to by all, but it properlystressesthe need for clarifica-
tion of the 1949 convention.
On all the subjects it treats and on many which are not obviously in-
cluded under the title and chapter headings,this volume is an extremely
useful referencebook both for the author's views and for the guide to the
literature which the footnotesafford.
PHILIP C. JESSUP

Teorta de la Guerra en Francisco Suairez. 2 vols. By Luciano Perefna

Vicente. Madrid: Instituto Francisco de Vitoria, 1954. pp. xvi, 333;
355. Indices.
The book under review, honored by the Menendez Pelayo Prize, is a
scholarly investigation,built on years of work in the archives of many
Spanish and Portuguesecities and makinguse of the whole existinglitera-
ture. It is based on many new documents,hithertounpublished, and
reaches new results. The second volume gives a critique of the printed
editions and manuscriptsof Suarez' Disputatio XIII de Bello, the text
(in Latin and Spanish) as well as the text of citations,related to the
theoryof war, from all the other works of Suarez. The firstvolume is
dedicated to a critical analysis of Suarez' theoryof war.
A study of this work shows again how fundamentallydifferentthe
Catholic theoryof bellumjustum is fromthe theoryof bellum legale, un-
derlyingthe Pact of the League of Nations and the Charterof the United
Nations. The authorwants to bring out the differences of Suarez' theory,
as comparedwith that of the other writersof the Spanish Neo-Scholastie
School.
Suarez, theologian,S.J., is, like all the other Spanish Neo-Scholasties,
still in deep connectionwith the Middle Ages and Catholic natural law-
very differentfrom Grotius. But he is more modern than the other
Spanish Neo-Scholasties. He fullyrecognizesthe definitiveend of medieval

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430 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

unity,the pluralism of sovereignstates. Living in a period of crisis not

unsimilar to the present one, he tries, although recognizingmodern de-
velopments,to save the eternal values of the Middle Ages out of the
shipwreck. Hence his fundamental attitude that mankind, although
divided into nations,has still an even quasi-politicalunity.
On the otherhand-and that is the author's principalnew contribution-
Suarez is not only a Jesuit,but a highlySpanish Spaniard of the Golden
Century,who intensivelylived the imperial missionof Spain. His theory
of war is a political theory: he is the theoreticianof imperial Spain, the
defenderof Philip II beforethe tribunal of history,just as the work of
the Italian Protestant Albericus Gentilis is a defense of the policy of
Elizabeth of England. His political theoryof war is-in the words of the
author-a dialectical synthesisof the political thesis of Macchiavelli and
the juridical antithesisof Francisco de Vitoria. For him, living in a
period of crisis,it is the imperial missionof Spain to defend Catholicism
and justice, in order to lay the foundationsfor European unity and cul-
ture. His most importantideas are the unity of mankind and the dy-
namic peace, based on justice, friendshipand charity.
It is the great event of the Spanish conquest of Portugal which in-
fluencedhis doctrine,led to its politicizationand made it differentfrom
that of Vitoria. This politicizationis, firstof all, seen in Su'arez' "proba-
bilism," so sharplyattackedby modernNeo-Thomists. If the justa causa
is doubtful,the king is bound to have his title investigatedby experts; but
it is for him to choosehis experts,for him to determinewhich of differing
opinions he wants to follow,for him alone to make the decision. If he
reaches the convictionof the greater probabilitythat the right is on his
side, he can go to war, as a judge in a criminal procedure. It is this
doctrine of "greater probability" and of subjective appreciation which
constitutesthe politicizationof the doctrine. There is a furtherpoint:
Suarez distinguishesthe bellum justum fromthe "bellum licitum": even
if the king is convincedof his greaterright,he may go to war onlyif he has
hope to win; he must not have, as Cayetano asked, "the moral certainty
of victory,"but, at least, "more probable hope." There is one exception:
if the injury by the enemywas a violationof the honorof Spain, the king
must go to war, even if there is a probabilityof defeat. Sixteenth-cen-
tury Spain: "el honor." We are here in theologyexactlywherewe are in
the dramas of Calderon de la Barca: withouthonor there is no sense in
living.
The authorholds that Suarez' concretetheoryof war cannot help us to-
day, because it is too much time-and-nation bound (Catholicism,absolute
monarchy,exalted feeling of national honor). But his general principles
-unity of mankind, dynamic peace, based on justice, friendship and
charity-may very well contain the directivesfor overcomingthe tragic
crisis of our own days.
JOSEFL. KUNz

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